Rabsnead Pty Ltd v Schmierer - [2002] FCA 304

FEDERAL COURT OF AUSTRALIA
Rabsnead Pty Ltd v Schmierer [2002] FCA 304
PRACTICE AND PROCEDURE – cross-vesting – Corporations Act proceedings commenced in Federal Court by contributory for removal of administrators of corporation – related professional negligence claim by that contributor against administrators currently pursued in Queensland Supreme Court – whether ‘appropriate’ and ‘in the interests of justice’ to cross-vest proceedings in Federal Court to Queensland Supreme Court for purposes inter alia of consolidation with Queensland Supreme Court proceedings.
Corporations Act 2001 (Cth) ss 445F, 491, 1337H
Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) s 5(4)(b)
The Bell Group Limited v Westpac Banking Corporation (2000) 104 FCR 305 referred to
Re Wakim; Ex parte McNally (1999) 198 CLR 73 referred to
J N Taylor Finance Pty Ltd (in liq) v BCF (Bond Corporation Finance) Ltd (1991) 4 ASCR 483 considered
Bourke v State Bank of New South Wales (1998) 85 ALR 61 considered
Johnson Tiles Pty Ltd v Esso Australia Ltd [2001] FCA 421 followed
RABSNEAD PTY LTD v TREVOR JOHN SCHMIERER AND DENNIS JOHN OFFERMANS
N 3005 OF 2002
CONTI J
20 MARCH 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 3005 OF 2002

IN THE MATTER OF SEAFOOD ONLINE.COM LIMITED (FORMERLY SUBJECT TO DEED OF ARRANGEMENT) (NOW IN VOLUNTARY LIQUIDATION)

BETWEEN:

RABSNEAD PTY LTD (ACN 010 315 983)
APPLICANT

AND:

TREVOR JOHN SCHMIERER
FIRST RESPONDENT

DENNIS JOHN OFFERMANS
SECOND RESPONDENT

JUDGE:

CONTI J

DATE OF ORDER:

6 MARCH 2002

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.Pursuant to section 1337H of the Corporations Act 2001, or alternatively, section 5(4)(b) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), the matters to be determined in the subject proceedings in this Court numbered N 3005 of 2002 be transferred to the Supreme Court of Queensland (Brisbane Registry).

2.That the costs of the proceedings thus far in this Court be costs in the cause to be continued in the Supreme Court of Queensland.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 3005 OF 2002

IN THE MATTER OF SEAFOOD ONLINE.COM LIMITED (FORMERLY SUBJECT TO DEED OF ARRANGEMENT) (NOW IN VOLUNTARY LIQUIDATION)

BETWEEN:

RABSNEAD PTY LTD (ACN 010 315 983)
APPLICANT

AND:

TREVOR JOHN SCHMIERER
FIRST RESPONDENT

DENNIS JOHN OFFERMANS
SECOND RESPONDENT

JUDGE:

CONTI J

DATE:

20 MARCH 2002

PLACE:

SYDNEY

REASONS FOR JUDGMENT
Background to the proceedings

Seafood Online.Com Limited (“Seafood Online”) entered into a Deed of Company Arrangement on 24 April 2001, whereof the Respondents were at all material times joint and several Administrators. The Applicant Rabsnead Pty Ltd (“Rabsnead”) is a contributory and creditor who had been dissatisfied with the administration of the affairs of Seafood Online, and sought the removal of the Respondents.
Orders were first made in these proceedings by Hely J on 14 February 2002 to the effect that an application should be filed by Rabsnead and made returnable…

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.

Continue reading Rabsnead Pty Ltd v Schmierer

Details

AGLC: Rabsnead Pty Ltd v Schmierer [2002] FCA 304
Case: [2002] FCA 304
Decision Date: 6 MARCH 2002

CaseChat Overview and Summary

Rabsnead Pty Ltd brought proceedings against Schmierer in the Federal Circuit Court of Australia. The nature of the dispute involved the determination of certain matters under the Corporations Act 2001 and the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth). The legal issues before the court were whether the subject proceedings should be transferred to the Supreme Court of Queensland and, if so, the appropriate costs order to be made.

The court considered the legislative framework and the jurisdiction of both the Federal Circuit Court and the Supreme Court of Queensland. The court noted that the proceedings involved matters that were more appropriately determined by a court with jurisdiction under state law, rather than federal law. Consequently, the court found that the matters should be transferred to the Supreme Court of Queensland. Regarding costs, the court determined that the costs of the proceedings thus far should be costs in the cause to be continued in the Supreme Court of Queensland.

In light of the findings, the court ordered the transfer of the proceedings to the Supreme Court of Queensland and directed that the costs incurred in the Federal Circuit Court be treated as costs in the cause to be continued in the Supreme Court of Queensland.

Orders

Orders of the court

1. Pursuant to section 1337H of the Corporations Act 2001, or alternatively, section 5(4)(b) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), the matters to be determined in the subject proceedings in this Court numbered N 3005 of 2002 be transferred to the Supreme Court of Queensland (Brisbane Registry).

2. That the costs of the proceedings thus far in this Court be costs in the cause to be continued in the Supreme Court of Queensland.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

CONTI J

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Ratio Decidendi

Legal Principle Established

Established by: CONTI J

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IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 3005 OF 2002

BETWEEN:	RABSNEAD PTY LTD (ACN 010 315 983) APPLICANT
AND:	TREVOR JOHN SCHMIERER FIRST RESPONDENT DENNIS JOHN OFFERMANS SECOND RESPONDENT
JUDGE:	CONTI J
DATE OF ORDER:	6 MARCH 2002
WHERE MADE:	SYDNEY

JUDGE:	CONTI J
DATE:	20 MARCH 2002
PLACE:	SYDNEY