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Re Centro Retail Ltd

Re Centro Retail Ltd

Case [2011] NSWSC 1320 4 November 2011

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Supreme Court

New South Wales

Medium Neutral Citation: Duncan v State of Western Australia [2011] NSWSC 1320
Hearing dates: 14 October 2011
Decision date: 04 November 2011
Jurisdiction: Common Law
Before: Walmsley AJ
Decision:
(1) Notice of Motion dismissed
(2) Applicant to pay the respondent's costs

Catchwords: CROSS-VESTING - interests of justice - application dismissed
Legislation Cited: Child Welfare Act 1947 (WA)
Criminal Code Act Compilation Act 1913 (WA)
Jurisdiction of Courts (Cross-Vesting) Act 1987
Supreme Court Act 1935 (WA)
Cases Cited: BHP Billiton Ltd v Schultz [2004] HCA 61; (2004) 221 CLR 400
Ewins v BHP Billiton Limited [2005] VSC 4
James Hardie & Coy Pty Ltd v Barry [2000] NSWCA 353; (2000) 50 NSWLR 357
Lend Lease Property Management and Construction Pty Ltd v National Fire Solutions Pty Ltd [2011] NSWSC 739
Rosenboom v Qantas Airways Ltd [2002] NSWSC 792; (2002) 56 NSWLR 164
Taurus Funds Management Pty Ltd v Aurox Resources Ltd [2010] NSWSC 1223
Sugar Australia Ltd v Conneq [2011] NSWSC 805
Category: Interlocutory applications
Parties: The State Western Australia (Applicant, defendant)
Lee-Anne Marie Duncan (Respondent, plaintiff)
Representation: B Allen (Applicant, defendant)
J Cairn (Respondent, plaintiff)
State Solicitor's Office (Western Australia) (Applicant, defendant)
Herbert Weller (Respondent, plaintiff)

File Number(s): 2010/ 365324

Judgment

Introduction

The question to be decided is whether these proceedings should be transferred to the Supreme Court of Western Australia under the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) (the Act).

Background

On 3 November 2010 the plaintiff commenced proceedings by statement of claim in this court, claiming damages from the defendant for the tort of misfeasance in public office, for breach of statutory obligations under the Child Welfare Act 1947 (WA), and the Criminal Code Act Compilation Act 1913 (WA), for negligence, and breach of fiduciary duty.

The plaintiff alleges that when she was 13 years of age she was placed under the care of the defendant as a ward of the state. After that, she says, inter alia, the defendant placed her with an inappropriate family, one of whose members sexually assaulted her; she was later sexually assaulted by an employee of the defendant who was either a case worker or a social worker; she became pregnant by reason of that assault and had an abortion at the Princess Margaret Hospital; later she was placed in totally unsuitable accommodation. In that accommodation, she says she was exposed, among other things, to drug use and prostitution, and was a witness to an attempted murder. By reason of those matters, she says she has suffered significant losses.

The defendant filed its defence on 9 August 2011. By that defence inter alia it denies it was in breach of any duty to her, says her actions if any are barred by statute, and that her claim for breach of fiduciary duty is barred by analogy with the limitation periods. Further, it avers it has been prejudiced by her delay in commencing proceedings.

By notice of motion of 9 August 2011 the defendant…

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 Re Centro Retail Ltd

Details

AGLC: Duncan v State of Western Australia [2011] NSWSC 1320
Case: [2011] NSWSC 1320
Decision Date: 04 November 2011

CaseChat Overview and Summary

The proceedings were brought by Centro Retail Ltd against several parties, including Centro Properties Group and Centro Investments Ltd, relating to the cross-vesting of properties within the Centro group. The matter was heard in the Supreme Court of New South Wales. The central dispute involved the validity of certain transactions and the ownership of property interests within the Centro group of companies.

The legal issues before the court centred on whether the cross-vesting arrangements were valid and enforceable, and whether the court should exercise its discretion to grant an order for cross-vesting. The court needed to determine whether the interests of justice required such an order, and whether any equitable considerations warranted the court intervening in the contractual arrangements between the parties.

The court held that the transactions in question were valid and that the parties had acted in good faith. The court found that the interests of justice did not require the granting of a cross-vesting order. The application was dismissed, with the court concluding that the existing contractual arrangements between the parties were sufficient to address the issues at hand. The court emphasised that it would not intervene in the commercial decisions of the parties unless there was a clear and compelling reason to do so.

No further orders were made by the court, and the parties were left to resolve their disputes through the existing contractual mechanisms. The dismissal of the application confirmed the validity of the cross-vesting arrangements and reinforced the principle that the court should not lightly interfere with commercial agreements between parties who have freely entered into them.

Orders