Pico Holdings Inc v Dominion Capital P/L

[2001] VSC 331

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 6630 of 2001

PICO HOLDINGS INCORPORATED	Plaintiff
v
DOMINION CAPITAL PTY. LTD.	Defendant

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JUDGE:	BONGIORNO, J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	29 AUGUST 2001
DATE OF RULING:	29 AUGUST 2001
CASE MAY BE CITED AS:	PICO HOLDINGS INC. v. DOMINION CAPITAL PTY. LTD.
MEDIUM NEUTRAL CITATION:	[2001] VSC 331

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Practice and Procedure – Adjournment of application – Discretion to adjourn proceeding.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr. M. Pearce	Gilbert & Tobin
For the Defendant	Mr. J. Styring	Malleson Stephen Jaques

HIS HONOUR:

1. The first matter I have to deal with is an application by the defendant to adjourn all of the proceedings currently before me, namely, a judgment summons issued on behalf of the plaintiff and a summons by the defendant seeking orders that it have leave to withdraw its appearance, that it have leave to file a conditional appearance, that the action itself be permanently stayed that alternatively the plaintiff give security for costs and that otherwise the action be dismissed.

1. The background to the matter need not be rehearsed at this point.  It is sufficient to say that if I were to grant this adjournment, the principal issue which calls for decision namely, the question as to whether this court should entertain the action brought by the plaintiff will be deferred and in effect, subordinated to the decision of a foreign court before which proceedings brought by the defendant are presently pending.

1. The relief that this Court can give depends ultimately upon the question of what the contract between the parties was and what the effect of that contract now is, having regard to what the parties (particularly, perhaps, the defendant) have done since the plaintiff issued this proceedings.

1. The entry of an unconditional appearance by the defendant, at least prima facie, constitutes a submission to the jurisdiction of this court.  It seems to me essential at this point that the application by the defendant to withdraw that unconditional appearance be determined.  If that application is unsuccessful then the other questions flowing from the jurisdiction and choice of law clause in the promissory notes will have to be entertained, but it seems to me to be essential at this stage and before the Californian proceedings proceed any further that the question of the status of this proceeding before this Court be determined.  That will be determined by a determination of the defendant's application to withdraw its unconditional appearance and enter a conditional appearance.

1. It would be, in the circumstances, unjust to permit these applications now to be adjourned pending the determination in the Californian court.  After there is a determination as to the status of the defendant's appearance and the question as to whether it can withdraw that appearance has been determined, it may be then appropriate for the defendant to renew its application to adjourn the matter and I will give it leave to do so depending upon the outcome of that application.

1. Insofar as the application of the defendant for an adjournment related to its own application to withdraw its unconditional appearance and enter a conditional appearance, that application to adjourn is refused and that matter will now be heard.

1. The applications to adjourn the other applications by both the plaintiff and the defendant will themselves be adjourned pending the determination of the first question.

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