Sim v WILLIAMS - [2002] NSWSC 37

CITATION: SIM v WILLIAMS [2002] NSWSC 37

CURRENT JURISDICTION: EQUITY

FILE NUMBER(S): SC 5809/2001

HEARING DATE(S): 1/02/2002

JUDGMENT DATE: 1 February 2002

PARTIES :

Colin Sim - Plaintiff
Paul Williams - Defendant

JUDGMENT OF: Bryson J at 1

COUNSEL : D.G. Charles - Plaintiff
D.J. Fagan S.C. & M. Walsh

SOLICITORS: Colin Biggers & Paisley - Plaintiff
Horowitz & Bilinsky - Defendant

CATCHWORDS: COURTS AND JUDGES - Cross-vesting legislation - plaintiff applied in NSW against defendant resident here for injunction to restrain breach of covenant in Joint Venture Deed against attacking plaintiff's title to Mining Leases - JV Deed contained Choice of Law for WA law and non-exclusive submission to NSW Courts - defendant brought plaints before WA Mining Warden's Court for forfeiture of leases for non-working - after review of circumstances a Cross-vesting Order was refused.

LEGISLATION CITED: Mining Act 1978 (W.A.)
Jurisdiction of Courts (Cross-vesting) Act 1987 (N.S.W.)

CASES CITED: Bankinvest v A G Seabrook and others (1988) 14 NSWLR 711

DECISION: Cross-vesting refused:; See para [32]

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRYSON J.

1 FEBRUARY 2002

5809/01 COLIN SIM v. PAUL WILLIAMS

JUDGMENT

1 BRYSON J: These proceedings were commenced on 4 December last. The plaintiff claims remedies against the defendant's proceeding with 22 plaints pending in the Warden's Court in Western Australia which are to be heard at Perth on an appointed day in May 2002.

2 The plaintiff is the registered owner of the mining leases to which the plaints relate and has entered into an agreement made on 29 August 2001 to sell the tenements to West Kimberley Black Granite Resources Pty Limited for $2.75 million. The proposing purchaser is an interest unrelated to either the plaintiff or the defendant in these proceedings.

3 The plaintiff is subject to time constraints for completion of the proposed sale and is not able to proceed to completion while plaints which could conceivably result in orders for forfeiture of the tenements are pending and have not been determined.

4 When proceedings on the plaintiff's summons first came before me on 14 December I granted the plaintiff's application for expedited hearing and set the proceedings down for hearing before me on 13 and 14 February. There is, in my view, a clear case of urgency requiring the plaintiff to seek to have a judicial determination of his claim in sufficient time for the result to be available when the plaints come before the Mining Warden at Perth in May. The urgency arises out of the prospective loss of the commercial opportunity presented by the contract with West Kimberley Black Granite Resources Pty Limited, if the leases are forfeited but also if there is undue delay in achieving resolution of the plaints.

5 The defendant's application to transfer the proceedings to the Supreme Court of Western Australia is grounded on subs.5(2) of the Jurisdiction of Courts (Cross-vesting) Act 1987, particularly the provision in subpara (b)(iii) which requires a Court to transfer the proceedings to…

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 Sim v WILLIAMS

Details

AGLC: Sim v Williams [2002] NSWSC 37
Case: [2002] NSWSC 37
Decision Date: 1 February 2002

CaseChat Overview and Summary

In the case of Sim v Williams, the plaintiff, Sim, sought an injunction in the Supreme Court of New South Wales against the defendant, Williams, who is a resident of Western Australia. The dispute arose from a breach of a covenant in a Joint Venture Deed concerning mining leases. Sim sought to restrain Williams from attacking the plaintiff's title to the mining leases. The Joint Venture Deed included a choice of law clause specifying Western Australia law and also a non-exclusive submission to the jurisdiction of the New South Wales courts. In response, Williams initiated proceedings in the Mining Warden's Court of Western Australia seeking the forfeiture of the leases on the basis of non-working.

The central legal issues before the court involved the interpretation and application of cross-vesting legislation, specifically whether the New South Wales court had jurisdiction to hear the matter given the choice of law and jurisdictional clauses in the Joint Venture Deed. The court also needed to consider whether the proceedings in Western Australia concerning the forfeiture of the leases impacted the New South Wales court's ability to grant the injunction sought by Sim.

The court found that the cross-vesting legislation did not permit the exercise of jurisdiction in this case. It concluded that the choice of law clause in the Joint Venture Deed, which specified Western Australia law, and the non-exclusive jurisdictional clause did not confer exclusive jurisdiction on the New South Wales courts. Moreover, the pending proceedings in the Mining Warden's Court of Western Australia regarding the forfeiture of the leases were a significant factor in the decision. The court ultimately determined that it was inappropriate to exercise jurisdiction over the matter, leading to the refusal of the cross-vesting order.

Orders