Sheraz Pty Ltd (ACN 009 134 016) as trustee for the Terranora Family Trust v Vegas Enterprises Pty Ltd (ACN 009 074 148)

[2015] HCASL 172

SHERAZ PTY LTD (ACN 009 134 016) AS TRUSTEE FOR THE TERRANORA FAMILY TRUST

v

VEGAS ENTERPRISES PTY LTD (ACN 009 074 148)

[2015] HCASL 172
P7/2015

1. The applicant was the trustee of a discretionary family trust, and was controlled by Mr Clifford.  Mr Clifford was a beneficiary under the trust.  In 2006, Mr Clifford caused the applicant to acquire shares in the respondent. 

2. In 2009, Mr Clifford commenced proceedings in his own name in the Federal Court of Australia against the respondent and two of its directors, alleging that the applicant's acquisition of shares in the respondent was affected by misleading or deceptive conduct by them.  The proceedings were dismissed by Barker J.  Mr Clifford unsuccessfully appealed that decision to a Full Court of the Federal Court (North, Besanko and Jessup JJ). 

3. Mr Clifford then caused the applicant to commence proceedings against the respondent in the Supreme Court of Western Australia, again alleging that the applicant's acquisition of shares in the respondent was a result of misleading or deceptive conduct by it.  The respondent applied for summary judgment against the applicant on the basis that the proceedings in the Supreme Court were an abuse of process.  On 19 February 2013, Master Sanderson gave judgment for the respondent and ordered that the applicant's claim be dismissed, holding that there was such identity between the applicant and Mr Clifford that it would be inappropriate to allow the matter to continue. 

4. On 16 January 2015, the Court of Appeal of the Supreme Court of Western Australia (Buss and Murphy JJA and Chaney J) dismissed the applicant's appeal.  The Court of Appeal held that there was substantial identity between the issues in the Federal Court proceedings and the Supreme Court proceedings and that the continuation of the proceedings would have been seriously and unfairly burdensome or unjustifiably oppressive to the respondent. 

5. The applicant requires an extension of time in which to bring an application for special leave to appeal to this Court.  There is no reason to doubt the correctness of the decision of the Court of Appeal.  An appeal would not enjoy sufficient prospects of success to warrant the grant of special leave to appeal.  The grant of an extension of time would be futile. 

6. Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing the application, with costs.

S.M. Kiefel
15 October 2015 P.A. Keane