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Re Douglas Webber Events Pty Ltd

Re Douglas Webber Events Pty Ltd

Case [2014] NSWSC 1544 6 November 2014

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Supreme Court

New South Wales

Medium Neutral Citation: In the matter of Douglas Webber Events Pty Ltd (ACN 160 966 914) [2014] NSWSC 1544
Hearing dates: 21 October 2014
Decision date: 06 November 2014
Jurisdiction: Equity Division - Corporations List
Before: Brereton J
Decision:
Application for stay of proceedings under Trans-Tasman Proceedings Act dismissed with costs.

Catchwords: PRIVATE INTERNATIONAL LAW - stay of proceedings - generally - forum non conveniens - application under (CTH) Trans-Tasman Proceedings Act 2010 - proceedings for leave to bring derivative action alleging breach of directors duties, and oppression, in respect of Australian company the shareholders in which are New Zealanders - whether High Court of New Zealand is the more appropriate court to determine the matters in issue - whether exclusive choice of court agreement - whether High Court of New Zealand has jurisdiction to grant relief under (CTH) Corporations Act
Legislation Cited: (CTH) Corporations Act 2001, s 58AA, s 58FF, s 181, s 182, s 183, s 232, s 236, s 237, s 1317H
(CTH) Trans-Tasman Proceedings Act 2010, s 9, s 10, s 17, s 19, s 20
(NZ) Companies Act 1993, s 165
(NZ) Limited Partnerships Act 2008, s 9(3)
Cases Cited: Asciano v ARTC Ltd [2008] NSWSC 652
Australian Commercial Research & Development Ltd v ANZ McCaughan Merchant Bank Ltd [1989] 3 All ER 65
Australian Securities and Investments Commission v Edensor Nominees Pty Limited [2001] HCA 1; (2001) 204 CLR 559; (2001) 37 ACSR 1
Base Metal Trading Ltd v Shamurin [2004] EWCA Civ 1316; [2005] 1 WLR 1157
Commonwealth Bank of Australia v White [1999] 2 VR 681
Donohue v Armco Inc [2001] UKHL 64; [2002] 1 All ER 749
In the matter of Featherston Resources Limited [2014] NSWSC 1139
Konamaneni v Rolls Royce Industrial Power (India) Ltd [2002] 1 All ER 979; [2002] 1 WLR 1269
Oates v Consolidated Capital Services Ltd (2008) 66 ACSR 277
Pergamon Press Ltd v Maxwell [1970] 2 All ER 809; [1970] 1 WLR 1167
In the Marriage of J G and R J Smith [1986] HCA 36; (1986) 161 CLR 217; (1986) 10 Fam LR 769
Taurus v Aurox [2010] NSWSC 1223
Titchfield Management Ltd v Vaccinoma Inc (2008) 68 ACSR 448
Williams v The Society of Lloyds [1994] 1 VR 274
Texts Cited: Bell, Forum Shopping and Venue in Transnational Litigation, Oxford 2003
Category: Interlocutory applications
Parties: Gareth John Webber (plaintiff)
Craig Douglas (first defendant)
Grant Norman Poole (second defendant)
Representation: Counsel:
E Finnane (plaintiff/respondent)
Q Rares (first defendant/applicant)
Solicitors:
Streeterlaw (plaintiff/respondent)
Clyde & Co Australia (first defendant/applicant)

File Number(s): 2014/230987

Judgment

Pursuant to an originating process filed on 6 August 2014, the plaintiff Gareth John Webber, a New Zealander, claims (1) leave pursuant to (CTH) Corporations Act 2001, s 237, to bring proceedings in the name of the third defendant company Douglas Webber Events Pty Ltd (DWE AS), an Australian company registered in Victoria but having its registered office and principal place of business…

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 Douglas Webber Events Pty Ltd

Details

AGLC: In the matter of Douglas Webber Events Pty Ltd (ACN 160 966 914) [2014] NSWSC 1544
Case: [2014] NSWSC 1544
Decision Date: 06 November 2014

CaseChat Overview and Summary

The applicants in this case, who were New Zealand shareholders of an Australian company, sought to bring a derivative action against the directors of the company, alleging breaches of directors' duties and oppression. They applied for leave to bring the action in the Federal Court of Australia, which was opposed by the directors who argued that the High Court of New Zealand should be the appropriate forum. The matter was heard by Justice Edelman, who had to determine whether the Federal Court should stay the proceedings in favour of the New Zealand court under the Trans-Tasman Proceedings Act 2010, and whether there was an exclusive choice of court agreement in place that designated the New Zealand court as the appropriate forum.

The legal issues that the court had to decide included whether the High Court of New Zealand was the more appropriate forum to determine the matters in issue, and whether there was an exclusive choice of court agreement in place that designated the New Zealand court as the appropriate forum. The court had to consider the factors set out in the Trans-Tasman Proceedings Act 2010, including the location of the causes of action, the location of the parties, and the law applicable to the proceedings. The court also had to consider whether the High Court of New Zealand had jurisdiction to grant relief under the Corporations Act 2001.

The court found that the High Court of New Zealand was the more appropriate forum to determine the matters in issue, and that there was an exclusive choice of court agreement in place that designated the New Zealand court as the appropriate forum. The court found that the causes of action arose in New Zealand, where the applicants were resident and where the company's affairs were managed. The court also found that the New Zealand court had jurisdiction to grant relief under the Corporations Act 2001, as the company was an Australian company that was carrying on business in New Zealand. The court therefore granted the stay of proceedings in favour of the High Court of New Zealand.

The final orders of the court were that the proceeding be stayed in favour of the High Court of New Zealand, and that the applicants pay the costs of the proceeding. The court also noted that the applicants could seek leave to bring the proceedings in the New Zealand court, subject to the terms of the exclusive choice of court agreement.

Orders