RESOURCE EQUITIES LTD (SUBJECT TO DEED OF COMPANY ARRANGEMENT) -v- CARR [2007] WASC 246

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2007] WASC 246
Published:	24/10/2007
Case No:	CIV:1605/2006	Heard:	27 SEPTEMBER 2007
Coram:	MARTIN CJ	Delivered:	27/09/07
No of pages:	15	Judgment Part:	1 of 1
Result:	Both proceedings transferred to the Supreme Court of New South Wales
Category:	B
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Parties:	RESOURCE EQUITIES LTD (SUBJECT TO DEED OF COMPANY ARRANGEMENT) (ACN 067 748 109) LEON PHILLIP CARR NIGEL CHARLES PURVES RICHARD JOHN THOMAS (Action dismissed 23 May 2007) JOHN HILTON GARRETT LOUISE MARY GARRETT
Catchwords:	Jurisdiction Cross-vesting Application by defendants to transfer proceedings to the Supreme Court of New South Wales pursuant to Corporations Act 2001 (Cth) ss 1337H, 1337L and Jurisdiction of Courts (Cross-vesting) Act 1987 (WA) s 5(2)(b) Proceedings based on events that occurred in Sydney prior to relocation of the plaintiff's offices to Western Australia Defendants' residence and majority of witnesses outside Western Australia Plaintiff's legal representatives based in Western Australia Two of the three directors of the plaintiff reside in Western Australia
Legislation:	Corporations Act 2001 (Cth), s 1337H, s 1337L Jurisdiction of Courts (Cross-vesting) Act 1987 (WA), s 5(2)(b)
Case References:	Bankinvest AG v Seabrook (1988) 14 NSWLR 711 BHP Billiton Ltd v Schultz [2004] HCA 61; (2004) 211 ALR 523; (2004) 221 CLR 400 Re Dstore Ltd; Dwyer v Hindal Corporate Pty Ltd [2005] SASC 24; (2005) 52 ACSR 335

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : RESOURCE EQUITIES LTD (SUBJECT TO DEED OF COMPANY ARRANGEMENT) -v- CARR [2007] WASC 246 CORAM : MARTIN CJ HEARD : 27 SEPTEMBER 2007 DELIVERED : 27 SEPTEMBER 2007 PUBLISHED : 24 OCTOBER 2007 FILE NO/S : CIV 1605 of 2006 BETWEEN : RESOURCE EQUITIES LTD (SUBJECT TO DEED OF COMPANY ARRANGEMENT) (ACN 067 748 109)

Plaintiff

AND

LEON PHILLIP CARR

First Defendant

NIGEL CHARLES PURVES

Second Defendant

RICHARD JOHN THOMAS (Action dismissed

23 May 2007)

Third Defendant

JOHN HILTON GARRETT

Fourth Defendant

(Page 2)

FILE NO/S : CIV 1606 of 2006 BETWEEN : RESOURCE EQUITIES LTD (SUBJECT TO DEED OF COMPANY ARRANGEMENT)
(ACN 067 748 109)

Plaintiff

AND

JOHN HILTON GARRETT

First Defendant

LOUISE MARY GARRETT

Second Defendant

RICHARD JOHN THOMAS (Action dismissed

23 May 2007)

Third Defendant

LEON PHILLIP CARR

Fourth Defendant

NIGEL CHARLES PURVES

Fifth Defendant

Catchwords:

Jurisdiction - Cross-vesting - Application by defendants to transfer proceedings to the Supreme Court of New South Wales pursuant to Corporations Act 2001 (Cth) ss 1337H, 1337L and Jurisdiction of Courts (Cross-vesting) Act 1987 (WA) s 5(2)(b) - Proceedings based on events that occurred in Sydney prior to relocation of the plaintiff's offices to Western Australia - Defendants' residence and majority of witnesses outside Western Australia - Plaintiff's legal representatives based in Western Australia - Two of the three directors of the plaintiff reside in Western Australia

(Page 3)

Legislation:

Corporations Act 2001 (Cth), s 1337H, s 1337L

Jurisdiction of Courts (Cross-vesting) Act 1987 (WA), s 5(2)(b)

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.

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Details

Case: [2007] WASC 246
Decision Date: 27 SEPTEMBER 2007

CaseChat Overview and Summary

In the case of Resource Equities Ltd v Carr, the plaintiff, Resource Equities Ltd, sought to have proceedings transferred to the Supreme Court of New South Wales from the Supreme Court of Western Australia. The plaintiff, a company with two of its three directors residing in Western Australia, initiated the proceedings in Western Australia. However, the events giving rise to the dispute occurred in Sydney, New South Wales, prior to the plaintiff's relocation of its offices to Western Australia. The defendants, who reside outside of Western Australia, along with the majority of the witnesses, applied for the case to be transferred to New South Wales on the basis of cross-vesting provisions under the Corporations Act 2001 (Cth) and the Jurisdiction of Courts (Cross-vesting) Act 1987 (WA).

The court was required to determine whether the cross-vesting provisions applied, which would permit the transfer of the proceedings to the Supreme Court of New South Wales. The primary considerations included the location of the events in question, the residence of the defendants and witnesses, and the location of the plaintiff’s legal representatives. The court had to balance these factors against the principle of forum non conveniens, which suggests that a court may decline jurisdiction if there is a more appropriate forum available.

The court found that the cross-vesting provisions were applicable, given that the events occurred in New South Wales and the majority of the relevant parties, including the defendants and witnesses, were located there. Although the plaintiff had its legal representatives in Western Australia, the court determined that the appropriate forum for the proceedings was New South Wales due to the geographical and factual connections to that jurisdiction. Consequently, the court granted the application and transferred both proceedings to the Supreme Court of New South Wales.

The final orders of the court were that both the proceedings be transferred to the Supreme Court of New South Wales, reflecting the court's determination that the matters were more appropriately heard in that jurisdiction. This decision underscores the importance of jurisdictional considerations in multi-state litigation, particularly when applying cross-vesting provisions.

Orders

Orders of the court

Both proceedings transferred to the Supreme Court of New South Wales.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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