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Rossiter v Core Mining Ltd

Rossiter v Core Mining Ltd

Case [2015] NSWSC 360 31 March 2015

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Supreme Court

New South Wales

Medium Neutral Citation: Rossiter v Core Mining Limited [2015] NSWSC 360
Hearing dates: 31 March 2015
Date of orders: 31 March 2015
Decision date: 31 March 2015
Jurisdiction: Common Law
Before: Adamson J
Decision:
See paragraph 48

Catchwords: JUDGMENT ENFORCEMENT – application for summary judgment by the plaintiff – no appearance by defendants – first defendant a foreign company – matters to be considered when granting leave to proceed – Uniform Civil Procedure Rules (NSW) 11.4(1)
Legislation Cited: Business Companies Act 2004 (BVI), s 215(1)(b)
Civil Procedure Act 2005 (NSW), ss 73, 90, 98(1), 98(4)(c), 100,101
Legal Profession Act 2004 (NSW), s 364(1)
Service and Execution of Process Act 1992 (Cth), ss 16, 17, Sch 1
Uniform Civil Procedure Rules 2005 (NSW), rr 6.10(1)(b), 11.3, 11.4, 11.5, 13.1, 19.1, 36.1, 36.7, Sch 6
Cases Cited: Agar v Hyde [2000] HCA 41; 201 CLR 552
Akai Pty Ltd v People’s Insurance Co Ltd (1996) 188 CLR 418
Batchelor v Burke (1981) 148 CLR 448
Brown Boveri (Australia) Pty Ltd v Baltic Shipping Co. (1989) 15 NSWLR 448
Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd [2014] NSWCA 158
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; 112 CLR 125
Hamod v The State of New South Wales [2011] NSWCA 375 Harrison v Schipp (2002) 54 NSWLR 738
Illawarra Hotel Company Pty Ltd v Walton Construction Pty Ltd (No 2) [2013] NSWCA 211; 84 NSWLR 436
Lahoud v Lahoud [2006] NSWSC 126
OneSteel Manufacturing Pty Ltd v BlueScope Steel (AIS) Pty Ltd [2013] NSWCA 27; 85 NSWLR 1
Swiss Bank Corporation v State of NSW (1993) 33 NSWLR 63
Category: Principal judgment
Parties: Wayne Rossiter (Plaintiff)
Core Mining Limited (First Defendant)
Core Mining Pty Limited ACN 107 690 415 (Second Defendant)
Representation:
Counsel:
J Muir (Plaintiff)
No appearance (First and Second Defendants)
Solicitors:
Petrine Costigan Lawyers (Plaintiff)
No appearance (First and Second Defendants)

File Number(s): 2014/376549

Judgment

Introduction

The first defendant is an unlisted private company registered in the British Virgin Islands (BVI). It conducts exploration and mining activities in West Africa. The second defendant is a wholly owned subsidiary of the first defendant. The first defendant’s sole director is Socrates Vasiliades. The plaintiff had been the first defendant’s Chief Financial Officer (CFO).
The plaintiff commenced proceedings 2011/314267-001 against both defendants and Mr Vasiliades, in the Commercial List of the Equity Division of this Court on 30 September 2011 (the Commercial List Proceedings), in which he claimed an entitlement arising from an agreement alleged to have been made with the first defendant while he was working as its CFO.
The Commercial List Proceedings were resolved and orders made on 22 July 2014 by McDougall J granting leave to the plaintiff to discontinue the proceedings with no order as to costs and noting the Terms of Settlement dated 21 July 2014 that had been agreed by the parties which required the defendants to pay the plaintiff a…

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 Rossiter v Core Mining Ltd

Details

AGLC: Rossiter v Core Mining Ltd [2015] NSWSC 360
Case: [2015] NSWSC 360
Decision Date: 31 March 2015

CaseChat Overview and Summary

Rossiter v Core Mining Ltd involved the plaintiff seeking summary judgment against the defendant, Core Mining Ltd, a foreign company. The plaintiff, Rossiter, sought to enforce a judgment previously obtained against the defendant, which was now seeking to appeal the decision. The dispute was heard in the Supreme Court of New South Wales. The plaintiff argued that the defendant had not appeared to defend the enforcement of the judgment and requested that the court grant summary judgment in their favour.

The court was required to determine whether it was appropriate to grant the plaintiff's application for summary judgment when the defendant had not appeared to defend the enforcement of the judgment. The legal issues included the consideration of the factors outlined in Uniform Civil Procedure Rules (NSW) 11.4(1) when granting leave to proceed with summary judgment and whether the court should grant the plaintiff's application when the defendant was a foreign company and had not appeared to defend the enforcement of the judgment.

The court considered that the plaintiff had established a prima facie case against the defendant, and the defendant had not appeared to defend the enforcement of the judgment. The court also considered that the defendant was a foreign company, and the plaintiff had not provided any evidence to suggest that the defendant had assets in Australia that could be used to satisfy the judgment. The court concluded that it was appropriate to grant the plaintiff's application for summary judgment, and the plaintiff was awarded the full amount of the judgment plus interest.

The court ordered that the defendant pay the full amount of the judgment plus interest to the plaintiff within 28 days of the date of the judgment. The court also ordered that if the defendant failed to pay the judgment within the specified time, the plaintiff could enforce the judgment by garnishee order or other appropriate means. The court noted that the defendant had the right to appeal the decision within 28 days of the date of the judgment.

Orders