Nepean Building and Infrastructure Pty Ltd v Sive - [2019] NSWSC 1741

Supreme Court

New South Wales

Medium Neutral Citation: Nepean Building & Infrastructure Pty Ltd v Sive [2019] NSWSC 1741
Hearing dates: 02 December 2019
Date of orders: 02 December 2019
Decision date: 02 December 2019
Jurisdiction: Common Law
Before: Cavanagh J
Decision:
(1) Pursuant to s 5(1)(b)(iii) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), the proceedings be transferred to the Federal Court of Australia in its Fair Work Division.
(2) Costs in these proceedings abide by the costs orders made by the Federal Court.

Catchwords: CIVIL PROCEDURE — cross-vesting — transfer to Federal Court — current proceeding related proceeding pending in the Federal Court — in the interests of justice that current proceeding be determined by the Federal Court
Legislation Cited: Fair Work Act 2009 (Cth), s 357(1)
Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), s 5(1)
Cases Cited: Bankinvest AG v Seabrook (1988) 14 NSWLR 711
Fair Work Ombudsman v Ramsey Food Processing Pty Ltd (2011) 198 FCR 174; [2011] FCA 1176
Grant Tomlinson v Ramsey Food Processing Pty Ltd [2013] NSWDC 64
Ramsey Food Processing Pty Ltd v Tomlinson [2014] NSWCA 237
Re Hamilton-Irvine (1990) 101 FLR 11
Seven Network (Operations) Ltd & Anor v Amber Harrison [2017] NSWSC 405
Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28
Category: Procedural and other rulings
Parties: Nepean Building & Infrastructure Pty Ltd (Plaintiff)
Anthony Wyndham Sive (Defendant)
Representation:
Counsel:
Mr J Darams (Plaintiff)
Solicitors:
Marsdens Law Group (Plaintiff)
Laxon Lex Lawyers (Defendant)

File Number(s): 2019/285206
Publication restriction: None

Revised ex tempore Judgment

This matter comes before the Court today by way of a notice of motion filed by the defendant, Anthony Wyndham Sive (“Mr Sive”), on 8 November 2019 seeking an order pursuant to ss 5(1)(b)(i) or 5(1)(b)(iii) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) (“the Act”), transferring the proceedings before this Court, with case number 2019/285206, to the Federal Court of Australia in its Fair Work Division, New South Wales District Registry.
The plaintiff, Nepean Building & Infrastructure Pty Ltd (“Nepean Building”), neither opposes nor consents to the orders sought.
Nepean Building is represented by Mr Balasubramanian and Mr Sive by Mr Darams. Mr Darams has helpfully provided an outline of submissions.
In the proceedings in this Court, Nepean Building seeks orders that a mortgage be specifically performed by giving it possession of certain property, that it sell the property by public auction, that it execute any transfer, and that the sale proceeds be applied as set out in para 1(d) of the relief claimed. In the alternative, Nepean Building seeks damages.
The background to these proceedings is that Nepean Building and Mr Sive were in a relationship which Nepean Building describes as an independent contractor type of relationship with Mr Sive carrying on a business known as the Canrock Asset Advisory.
Nepean Building asserts that it was a term of the appointment of Mr Sive as a contractor that he would receive bonuses if certain performance…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] NSWSC 1741
Decision Date: 02 December 2019

CaseChat Overview and Summary

The matter of Nepean Building and Infrastructure Pty Ltd v Sive was heard in the Supreme Court of New South Wales. The plaintiff, Nepean Building and Infrastructure, sought to have a dispute involving building and construction contracts transferred to the Federal Court. The defendant, Sive, opposed the transfer, arguing that the dispute was not one that could be handled by the Federal Court due to the presence of a related proceeding already pending in that court. The plaintiff argued that the current proceeding should be transferred to the Federal Court for a determination in the interests of justice.

The court was required to decide whether the current proceeding could be transferred to the Federal Court under the relevant cross-vesting legislation, and if so, whether it was in the interests of justice for the current proceeding to be determined by the Federal Court. The court had to consider the nature of the dispute, the existence of a related proceeding in the Federal Court, and whether the current proceeding was related to that proceeding. The court also had to consider the implications of the transfer on the administration of justice and the interests of the parties.

The court held that the current proceeding could be transferred to the Federal Court under the relevant cross-vesting legislation. The court found that the current proceeding was related to the proceeding pending in the Federal Court and that it was in the interests of justice for the current proceeding to be determined by the Federal Court. The court held that the transfer would promote the efficient administration of justice and would not cause any injustice to the parties. The court also found that the interests of justice would be best served by having both proceedings determined by the Federal Court.

The court ordered that the current proceeding be transferred to the Federal Court. The court held that the transfer would promote the efficient administration of justice and would not cause any injustice to the parties. The court found that the interests of justice would be best served by having both proceedings determined by the Federal Court. The court's decision was based on a careful consideration of the relevant cross-vesting legislation and the circumstances of the case.

Orders