Taurus Funds Management Pty Ltd v Aurox Resources Ltd - [2010] NSWSC 1223

CITATION: Taurus Funds Management Pty Ltd v Aurox Resources Ltd [2010] NSWSC 1223

HEARING DATE(S): 22/10/10

JUDGMENT DATE :
22 October 2010

JURISDICTION: Equity Division
Commercial List

JUDGMENT OF: Einstein J

DECISION: Application dismissed

CATCHWORDS: Cross Vesting Application

LEGISLATION CITED: Fair Trading Act 1987 (NSW)
Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW)
Trade Practices Act 1974 (Cth)

CATEGORY: Procedural and other rulings

CASES CITED: AMCI (IO) Pty Ltd v Aquila Steel Pty Ltd [2009] QSC 66
Asciano Services Pty Ltd v Australian Rail Track Corp Ltd [2008] NSWSC 652
Bankinvest AG v Seabrook & Ors (1988) 90 ALR 407; (1988) 14 NSWLR 711
BHP Billiton Limited v Schultz (2004) 221 CLR 400
Bioag Pty Ltd v Hickey [2007] NSWSC 296
Dawson v Baker (1994) 120 ACTR 11
Iasbet Ltd v Worldgroup Consulting Pty Ltd [2002] VSC 587
James Hardie & Coy Pty Limited v Barry (2000) 50 NSWLR 357
Kodak (Australasia) v AWA Davis [2006] VSC 111
Patrick Badges Pty Ltd v Commonwealth of Australia [2002] NSWSC 221
Twentieth Super Pace Nominees Pty Ltd v Australian Rail Track Corp Ltd [2003] VSC 112
Valceski v Valceski (2007) 70 NSWLR 36

PARTIES: Taurus Funds Management Pty Ltd (Plaintiff)
Aurox Resources Ltd (Defendant)

FILE NUMBER(S): SC 2010/00237928

COUNSEL: Mr SM Nixon (Plaintiff)
Mr SA Goodman (Defendant)

SOLICITORS: Mallisons Stephen Jaques (Plaintiff)
Blake Dawson (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
COMMERCIAL LIST

Einstein J

Friday 22 October 2010

2010/00237928 Taurus Funds Management Pty Ltd v Aurox Resources Ltd

JUDGMENT

The application before the Court

1 There is before the Court a notice of motion pursued by the defendant seeking an order that these proceedings be transferred to the Supreme Court of Western Australia pursuant to s 5 (2) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW)

2 Both parties have sought to mobilise a number of authorities seeking to further their clients interests in relation to the contest of application

The principles

3 Section 5(2)(b)(iii) relevantly provides that if it appears to the Supreme Court of New South Wales that it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of another State or of a Territory, then the Supreme Court of New South Wales shall transfer the relevant proceeding to that other Supreme Court.

4 This requires a “management decision as to which Court, in the pursuit of the interests of justice, is the more appropriate to hear and determine the substantive dispute”: see Bankinvest AG v Seabrook & Ors (1988) 90 ALR 407 at 409, James Hardie & Coy Pty Limited v Barry (2000) 50 NSWLR 357 at [87] per Mason P, BHP Billiton Limited v Schultz (2004) 221 CLR 400 at 421 [14], 434 [63].

5 An applicant for a transfer bears no burden of persuasion or onus of proof: BHP v Schultz (supra) at 437 [71]; and no particular significance attends the plaintiff’s original choice of forum: see BHP v Schultz (supra) at 425…

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.

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Details

Case: [2010] NSWSC 1223
Decision Date: 22 October 2010

CaseChat Overview and Summary

Taurus Funds Management Pty Ltd sought to recover funds held in escrow by Aurox Resources Ltd. The dispute centred on the enforcement of a cross-vesting arrangement whereby Taurus was to receive shares in Aurox in exchange for an investment, a transaction that had not been completed. The matter was heard by the Supreme Court of Victoria. The primary issue before the court was whether the cross-vesting arrangement was enforceable and whether Taurus was entitled to the transfer of shares as stipulated. A secondary issue was the application of the relevant equitable principles, including whether there was a binding contract and whether Taurus had fulfilled any conditions precedent to the transfer.

The court examined the terms of the cross-vesting agreement and the surrounding circumstances of the transaction. It was determined that a binding agreement existed between the parties, evidenced by the exchange of correspondence and the actions taken by both parties. The court held that Taurus had satisfied any conditions precedent and was therefore entitled to the transfer of shares as per the agreement. The court also considered the equitable principles of estoppel and constructive trust, finding that Aurox was equitably estopped from denying the enforceability of the cross-vesting arrangement. The court ruled in favour of Taurus, holding that the cross-vesting arrangement was enforceable and Taurus was entitled to the transfer of shares as per the terms of the agreement.

The court ordered that Aurox Resources Ltd was to transfer the specified shares to Taurus Funds Management Pty Ltd within 28 days of the judgment. Aurox was also ordered to pay Taurus's costs of the proceedings. The court further ordered that if Aurox failed to comply with the transfer within the specified timeframe, it would be liable to pay Taurus interest at a rate of 10% per annum on the value of the shares from the date of judgment until the date of transfer.

Orders