Ottoway Engineering Pty Ltd v Westpac Banking Corporation (No 2) - [2017] FCA 39

FEDERAL COURT OF AUSTRALIA
Ottoway Engineering Pty Ltd v Westpac Banking Corporation (No 2)
[2017] FCA 39

File number: SAD 90 of 2016

Judge: BESANKO J

Date of judgment: 30 January 2017

Date of publication of reasons: 31 January 2017

Catchwords: PRACTICE AND PROCEDURE – application for joinder by a non-party to the proceeding – whether non‑party’s interest is directly affected by injunction – commercial as opposed to legal interest – whether rights of chargee directly affected by injunction
PRACTICE AND PROCEDURE – application for dissolution of injunction – delay in making application seeking dissolution of an injunction – whether grounds for dissolution of injunction shown

Legislation: Federal Court Rules 2011 (Cth) rr 1.32, 9.05

Cases cited:
Clough Engineering Ltd v Oil and Natural Gas Corporation Ltd and Others [2008] FCAFC 136; (2008) 249 ALR 458

Cretanor Maritime Co Ltd v Irish Marine Management Ltd [1978] 1 WLR 966

John Alexander’s Clubs Pty Limited and Another v White City Tennis Club Limited [2010] HCA 19; (2010) 241 CLR 1

Kadam v MiiResorts Group 1 Pty Ltd [2016] FCA 1205

News Limited v Australian Rugby Football League Limited and Others (1996) 64 FCR 410

Ottoway Engineering Pty Ltd v Westpac Banking Corporation [2016] FCA 635

Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52

Simic v New South Wales Land and Housing Corporation [2016] HCA 47

State of Victoria and Another v Sutton and Another (1998) 195 CLR 291

Sugar Australia Pty Ltd v Lend Lease Services Pty Ltd [2015] VSCA 98

Wood Hall Limited v The Pipeline Authority and Another (1979) 141 CLR 443

Date of hearing: 19 January 2017

Registry: South Australia

Division: General Division

National Practice Area: Commercial and Corporations

Sub-area: Commercial Contracts, Banking, Finance and Insurance

Category: Catchwords

Number of paragraphs: 24

Counsel for the Applicant: Mr N Floreani

Solicitor for the Applicant: Mardi Conduit

Counsel for the Respondent: Mr M Hoffman QC

Solicitor for the Respondent: HWL Ebsworth Lawyers

Counsel for the Prospective Respondents: Mr D Solomon

Solicitor for the Prospective Respondents: Solomon Brothers

ORDERS

SAD 90 of 2016

BETWEEN:
OTTOWAY ENGINEERING PTY LTD (ACN 125 531 428)

Applicant

AND:
WESTPAC BANKING CORPORATION (ABN 33 007 457 141)

Respondent

JUDGE:

BESANKO J

DATE OF ORDER:

30 JANUARY 2017

THE COURT ORDERS THAT:
1.The interlocutory application issued by ECAP Finance Pty Ltd, Troy James Millen and Kelly Jean O’Brien (“the applicants for joinder”) dated 19 December 2016 be dismissed.
2.The respective applications of the applicant and the respondent against the applicants for joinder for the costs of the application be adjourned to a date to be fixed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
BESANKO J:
Introduction

This is an application by a corporation and two individuals to be joined as respondents to a proceeding between Ottoway Engineering Pty Ltd (“Ottoway”) and Westpac Banking Corporation (“Westpac”). The applicants for joinder are ECAP Finance Pty Ltd (“ECAP”), Troy James Millen and…

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.

Keep reading for free

Create a free CaseChat account to read Ottoway Engineering Pty Ltd v Westpac Banking Corporation (N... and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] FCA 39
Decision Date: 30 January 2017

CaseChat Overview and Summary

Ottoway Engineering Pty Ltd brought proceedings against Westpac Banking Corporation in the Federal Court of Australia. The dispute involved an interlocutory injunction, with a subsequent application by ECAP Finance Pty Ltd, Troy James Millen, and Kelly Jean O'Brien for joinder as parties to the proceeding. The applicants argued that their interests were directly affected by the injunction. Westpac opposed the application, contending that the applicants' interest was only commercial and not legal, thus not warranting joinder. Additionally, Westpac made an application for the dissolution of the injunction, citing delay and other grounds.

The legal issues before the court were whether the applicants for joinder had a legal interest directly affected by the injunction, warranting their inclusion in the proceeding, and whether the delay in applying for dissolution of the injunction was sufficient grounds for relief. The court considered the nature of the applicants' interest, whether it was a legal or commercial interest, and whether it was directly affected by the injunction. In addressing the application for dissolution, the court examined the grounds for delay and other relevant factors to determine if the injunction should be dissolved.

The court found that the applicants for joinder did not have a legal interest directly affected by the injunction. Their interest was characterized as commercial rather than legal, thus not qualifying them for joinder. The court also dismissed the application for dissolution of the injunction, as the delay and other grounds presented were insufficient to warrant relief. The court concluded that the interlocutory injunction should remain in place.

The court issued orders dismissing the interlocutory application for joinder by ECAP Finance Pty Ltd, Troy James Millen, and Kelly Jean O'Brien. The costs associated with the application were to be determined at a later date.

Orders

Orders of the court

1. The interlocutory application issued by ECAP Finance Pty Ltd, Troy James Millen and Kelly Jean O’Brien (“the applicants for joinder”) dated 19 December 2016 be dismissed.

2. The respective applications of the applicant and the respondent against the applicants for joinder for the costs of the application be adjourned to a date to be fixed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Nothing was put to me that satisfies me that I should depart from my earlier reasons and I see no reason to dissolve the interlocutory injunction.Conclusion The interlocutory application issued by the applicants for joinder must be dismissed. I should refer to one matter which was raised by counsel for Westpac at the conclusion of the submissions. He referred to the fact that Ottoway’s Amended Statement of Claim contains a plea that Bluenergy has engaged in a fraud on Ottoway (paragraph 37.3). Whether that circumstance would give Bluenergy CMC or some other person the right to be joined to the proceeding or to intervene in some way is not before me. That would be a different basis from that advanced on the present application.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number:	SAD 90 of 2016
Judge:	BESANKO J
Date of judgment:	30 January 2017
Date of publication of reasons:	31 January 2017
Catchwords:	PRACTICE AND PROCEDURE – application for joinder by a non-party to the proceeding – whether non‑party’s interest is directly affected by injunction – commercial as opposed to legal interest – whether rights of chargee directly affected by injunction PRACTICE AND PROCEDURE – application for dissolution of injunction – delay in making application seeking dissolution of an injunction – whether grounds for dissolution of injunction shown
Legislation:	Federal Court Rules 2011 (Cth) rr 1.32, 9.05
Cases cited:	Clough Engineering Ltd v Oil and Natural Gas Corporation Ltd and Others [2008] FCAFC 136; (2008) 249 ALR 458 Cretanor Maritime Co Ltd v Irish Marine Management Ltd [1978] 1 WLR 966 John Alexander’s Clubs Pty Limited and Another v White City Tennis Club Limited [2010] HCA 19; (2010) 241 CLR 1 Kadam v MiiResorts Group 1 Pty Ltd [2016] FCA 1205 News Limited v Australian Rugby Football League Limited and Others (1996) 64 FCR 410 Ottoway Engineering Pty Ltd v Westpac Banking Corporation [2016] FCA 635 Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52 Simic v New South Wales Land and Housing Corporation [2016] HCA 47 State of Victoria and Another v Sutton and Another (1998) 195 CLR 291 Sugar Australia Pty Ltd v Lend Lease Services Pty Ltd [2015] VSCA 98 Wood Hall Limited v The Pipeline Authority and Another (1979) 141 CLR 443
Date of hearing:	19 January 2017
Registry:	South Australia
Division:	General Division
National Practice Area:	Commercial and Corporations
Sub-area:	Commercial Contracts, Banking, Finance and Insurance
Category:	Catchwords
Number of paragraphs:	24
Counsel for the Applicant:	Mr N Floreani
Solicitor for the Applicant:	Mardi Conduit
Counsel for the Respondent:	Mr M Hoffman QC
Solicitor for the Respondent:	HWL Ebsworth Lawyers
Counsel for the Prospective Respondents:	Mr D Solomon
Solicitor for the Prospective Respondents:	Solomon Brothers

JUDGE:	BESANKO J
DATE OF ORDER:	30 JANUARY 2017