Sakari Resources Ltd v Purvis

Case [2016] WASCA 24

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   SAKARI RESOURCES LTD -v- PURVIS [2016] WASCA 24

CORAM:   BUSS JA

NEWNES JA
MURPHY JA

HEARD:   6 OCTOBER 2015

DELIVERED          :   2 FEBRUARY 2016

FILE NO/S:   CACV 43 of 2015

BETWEEN:   SAKARI RESOURCES LTD (ARBN 132 692 481)

Appellant

AND

MARTIN DAVID PURVIS
Respondent

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :MASTER SANDERSON

Citation  :PURVIS -v- SAKARI RESOURCES LTD [2015] WASC 63

File No  :CIV 2372 of 2014

Catchwords:

Conflicts of laws - Application for stay of proceedings - Related proceedings commenced by defendant in Singapore involving additional parties - Relevant principles - Whether continuation of local proceedings would be vexatious or oppressive to defendant - Need to consider local proceedings in context of controversy as a whole

Legislation:

Nil

Result:

Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     Mr M D Howard SC

Respondent:     Mr H J Dixon SC & Mr A Gotting

Solicitors:

Appellant:     MKI Legal

Respondent:     Ashurst Australia

Case(s) referred to in judgment(s):

CSR v Cigna Insurance Australia Ltd [1997] HCA 33; (1997) 189 CLR 345

Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55; (1990) 171 CLR 538

  1. BUSS JA:  I agree with Newnes JA.

  2. NEWNES JA:  This is an appeal from a decision of Master Sanderson who dismissed the appellant's application for a stay of proceedings commenced by the respondent against the appellant in the general division of this court (the WA proceedings).  In the WA proceedings, the respondent claims the sum of AUD$554,454.17, said to be the balance of a termination payment owing to the respondent pursuant to his contract of employment with the appellant.

  3. Shortly after being served with the WA proceedings, the appellant, a company incorporated in the Republic of Singapore, commenced proceedings in the High Court of Singapore (the Singapore proceedings) relating to the matters raised in the WA proceedings.  It then made the application to the master for an order staying the WA proceedings permanently.  It did so, in substance, on the ground that the continuation of the WA proceedings would be vexatious or oppressive to the appellant.  In the alternative, it sought a temporary stay of the WA proceedings pending the outcome of the Singapore proceedings.

  4. The master dismissed the application.  The appellant contends that the master erred in doing so.

  5. The appellant requires leave to appeal:  Supreme Court Act 1935 (WA), s 60(1). On 24 March 2015, the application for leave was referred to the hearing of the appeal.

Background

The proceedings in this court

  1. The respondent's action against the appellant was commenced by a specially indorsed writ of summons filed on 30 September 2014 and served on the appellant in Western Australia on 1 October 2014.

  2. In the statement of claim, the respondent pleads that, by an agreement made on or about 7 October 2010 (the employment agreement), he was appointed chief executive officer of the appellant.  The employment…

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Sakari Resources Ltd v Purvis [2016] WASCA 24
Case
[2016] WASCA 24
Decision Date

CaseChat Overview and Summary

The dispute in Sakari Resources Ltd v Purvis involved Sakari Resources Ltd, a company incorporated in Singapore, and Purvis, who commenced proceedings in the general division of the Supreme Court of Western Australia. The controversy stemmed from Purvis' claim against Sakari for a termination payment under his contract of employment. Sakari, after being served with these proceedings, initiated related proceedings in the High Court of Singapore involving additional parties. Sakari then applied to the Master for a stay of the Western Australian proceedings on the grounds that their continuation would be vexatious or oppressive. The Master dismissed the application, finding that Western Australia was not a clearly inappropriate forum for the proceedings.

The legal issues before the court centred on the appropriate test to apply in determining whether to grant a stay of proceedings in the face of related proceedings in another jurisdiction. The court had to decide whether the Master had applied the correct legal test and whether the Western Australian proceedings were vexatious or oppressive when considering the entire controversy, including the Singapore proceedings. Additionally, the court needed to address whether a temporary stay pending the outcome of the Singapore proceedings was warranted.

The court found that the Master had applied an incorrect test by focusing on whether Western Australia was a clearly inappropriate forum rather than assessing whether the Western Australian proceedings were vexatious or oppressive in the context of the broader controversy. The court concluded that the Master should have considered the entire controversy, including the Singapore proceedings, in determining whether the Western Australian proceedings were vexatious or oppressive. Given that the appeal was dismissed and the alternative ground relating to the temporary stay was not pressed, the court did not address the latter issue. The appeal was thus dismissed, and the respondent applied for indemnity costs based on the Calderbank offer.

The court ordered that the appeal be dismissed, and it granted the respondent's application for indemnity costs on the basis that the appellant had rejected a Calderbank offer. The costs were to be determined on the papers, reflecting the appellant's rejection of the settlement offer without a hearing.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

JUDGMENT OF THE COURT: On 2 February 2016, we dismissed an appeal by the appellant from a decision of Master Sanderson who had dismissed the appellant's application for a stay of proceedings commenced by the respondent against the appellant in the general division of this court: Sakari Resources Ltd v Purvis [2016] WASCA 24. The respondent has applied for an order that the appellant pay its costs of the appeal on an indemnity basis on the ground that the appellant had rejected a Calderbank offer made by the respondent to settle the appeal. Pursuant to orders made on 2 February 2016, the application is to be determined on the papers. The respondent commenced proceedings against the appellant in the general division of this court (the WA proceedings) claiming the sum of AUD$668,737.55, which the respondent said was the balance of a termination payment to which he was entitled under his contract of employment with the appellant. Shortly after being served with the WA proceedings, the appellant, a company incorporated in the Republic of Singapore, commenced proceedings against the respondent and two other parties in the High Court of Singapore (the Singapore proceedings) relating to the matters raised in the WA proceedings. It then made an application to the master for an order staying the WA proceedings permanently. It did so, in substance, on the ground that the continuation of the WA proceedings would be vexatious or oppressive to the appellant. In the alternative, it sought a temporary stay of the WA proceedings pending the outcome of the Singapore proceedings. The master dismissed the application. He found, in substance, that Western Australia was not a clearly inappropriate forum for the WA proceedings [26]. The appellant filed an appeal notice on 4 March 2015 and the appellant's case on 20 March 2015. The respondent's answer was filed on 27 March 2015. On 14 April 2015, the respondent's solicitors wrote to the appellant's solicitors making an offer, expressed to be a Calderbank offer, to resolve the appeal. The respondent proposed that the appeal be resolved on the basis that:(1)(a) the application for leave to appeal and the appeal be dismissed;(b)the appellant be entitled to 50% of its costs of the appeal to the date of the Calderbank offer on a party and party basis; and(c)there otherwise be no order as to costs in the proceedings;(2)the appellant file a minute of consent orders to give effect to those terms within seven days of the date of the offer. In the letter, the respondent reserved the right to seek an order for indemnity costs in the event that the appeal was unsuccessful or that this court dismissed the appellant's application for a stay. Although not expressly stated, it is evident that the latter was based upon an outcome in which the appeal against the master's decision was upheld but that in re‑exercising the discretion this court dismissed the appellant's application for a stay. The appeal came on for hearing on 6 October 2015. We upheld the appellant's contention, in grounds 1 and 2 of the grounds of appeal, that the master had applied the wrong test. The question the master had to determine was not whether Western Australia is a clearly inappropriate forum for the WA proceedings, but whether, having regard to the controversy as a whole (including the issues raised in the Singapore proceedings), the WA proceedings were vexatious or oppressive in that they would be 'productive of serious and unjustified trouble and harassment' or 'seriously and unfairly burdensome, prejudicial or damaging' to the appellant. A further ground of appeal, relating to the master's refusal of a temporary stay, was not pressed by the appellant on the hearing of the appeal and we concluded that it was without substance.

Ratio Decidendi

Legal Principle Established

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