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Sims v Jooste & Ors (No.2)

Sims v Jooste & Ors (No.2)

Case [2016] FCCA 1468 21 June 2016

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FEDERAL CIRCUIT COURT OF AUSTRALIA

SIMS v JOOSTE & ORS (No.2)

[2016] FCCA 1468

Catchwords:
PRACTICE & PROCEDURE – CORPORATIONS – Application in a Case for inspection of company records – whether jurisdiction – whether false factual premise for application – whether orders ought to be made against existing parties or non-party – whether estoppel in relation to earlier factual findings by District Court of Western Australia remaining undisturbed on appeal and on an application for special leave to appeal – comity between federal and state courts.

COURTS AND JURISDICTION – Whether Court has jurisdiction to hear application under Corporations Act 2001 (Cth) for inspection of company records.

Legislation:

Corporations Act 2001 (Cth), ss.9, 58AA, 198F, 290, 1303
Family Law Act 1975 (Cth), s.41(2)

Cases cited:

Boulos v Carter [2005] NSWSC 891; (2005) 194 FLR 96; (2005) 220 ALR 572; (2005) 54 ACSR 827; (2005) 24 ACLC 46
Stewart v Normandy NFM Limited [2000] SASC 344
Lei, in the matter of Tai-Ao Aluminium (Australia) Pty Ltd v Cordukes [2004] FCA 1488; (2004) 51 ACSR 465
Oswal v Burrup Holdings Limited [2011] FCA 609; (2011) 281 ALR 432; (2011) 84 ACSR 65; (2011) 29 ACLC 11-031
Oswal v Burrup Fertilisers Pty Ltd [2013] FCAFC 9; (2013) 7 BFRA 852; (2013) 295 ALR 708
Pegasus Leasing Limited v Cadoroll Pty Limited & Ors (1996) 59 FCR 152; [1996] ATPR 41-495
Sims v Jooste & Ors [2016] FCCA 1343
Sims v Suda Ltd [2014] WADC 7
Sims v Suda Ltd (No. 2) [2015] WASCA 105
Sims v Suda Ltd [2015] HCASL 182
Stewart v Normandy NFM Limited [2000] SASC 344

Applicant:

DOUGLAS ARTHUR SIMS

First Respondent:

PETER INNES JOOSTE (DEC’D)

Second Respondent:

MICHAEL ROBERT STEWART

Third Respondent:

MARTIN LAWRENCE BENNETT

File Number:

PEG 30 of 2014

Judgment of:

Judge Antoni Lucev

Hearing date:

9 June 2016

Date of Last Submission:

9 June 2016

Delivered at:

Perth

Delivered on:

21 June 2016

REPRESENTATION

For the Applicant:

In person

Counsel for the First Respondent:

Mr N Ebbs

Solicitors for the First Respondent:

Bennett + Co

For the Second Respondent:

No appearance

Counsel for the Third Respondent:

Mr S Popperwell

Solicitors for the Third Respondent:

Denman Popperwell Lawyers

ORDERS (as made on 9 June 2016)

The applicant’s application in a case filed 30 May 2016 be dismissed.
Reasons for judgment to be published from Chambers at a later date.
No order as to costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 30 of 2014

DOUGLAS ARTHUR SIMS

Applicant

And

PETER INNES JOOSTE (DEC’D)

First Respondent

MICHAEL ROBERT STEWART

Second Respondent

MARTIN LAWRENCE BENNETT

Third Respondent

REASONS FOR JUDGMENT

Introduction

By an Application in a Case filed on 30 May 2016 the applicant, Mr Sims, seeks an order (transcribed without amendment) as follows:
1.Order of access against Suda Ltd for the Applicant to inspect the records of Suda Ltd pursuant to S 198F (10 (2) (3) (4) & Section 290 of Australian Corporations and…

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 Sims v Jooste & Ors (No.2)

Details

AGLC: Sims v Jooste & Ors (No.2) [2016] FCCA 1468
Case: [2016] FCCA 1468
Decision Date: 21 June 2016

CaseChat Overview and Summary

This matter concerned an application by the plaintiff, Sims, for orders to inspect the records of a company, Jooste & Ors. The application was brought in the Supreme Court of Western Australia.

The primary legal issues before the Court were whether it possessed jurisdiction to hear the application under the Corporations Act 2001 (Cth), whether the application was based on a false factual premise, and whether any orders for inspection ought to be made against the existing parties or a non-party. The Court also considered the principles of comity between federal and state courts and the potential impact of earlier factual findings made by the District Court of Western Australia, which remained undisturbed on appeal and on an application for special leave to appeal.

Justice Lucev determined that the Supreme Court of Western Australia did have jurisdiction to hear the application for inspection of company records under the Corporations Act. However, his Honour found that the application was predicated on a false factual premise, rendering it inappropriate to grant the orders sought. The Court declined to make orders against the existing parties or a non-party, given the flawed basis of the application and the prior findings of the District Court.

Orders