The Bell Group Ltd (In Liquidation) v Westpac Banking Corporation
[2011] WASC 367
•16 JANUARY 2012
THE BELL GROUP LTD (In Liquidation) -v- WESTPAC BANKING CORPORATION [2011] WASC 367
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2011] WASC 367 | |
| 16/01/2012 | |||
| Case No: | CIV:1464/2000 | 21 NOVEMBER 2011 | |
| Coram: | MARTIN CJ | 21/11/11 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | THE BELL GROUP LTD (In Liquidation) (ACN 008 666 993) THE BELL GROUP LTD (In Liquidation) AS TRUSTEE FOR DOLFINNE PTY LTD (In Liquidation) THE BELL GROUP LTD (In Liquidation) AS TRUSTEE FOR INDUSTRIAL SECURITIES PTY LTD THE BELL GROUP LTD (In Liquidation) AS TRUSTEE FOR MARANOA TRANSPORT PTY LTD THE BELL GROUP LTD (In Liquidation) AS TRUSTEE FOR NEOMA INVESTMENTS PTY LTD BELL GROUP FINANCE (In Liquidation) (RECEIVER AND MANAGER APPOINTED) BELL GROUP (UK) HOLDINGS LTD (In Liquidation) (IN ADMINISTRATIVE RECEIVERSHIP) BELL PUBLISHING GROUP PTY LTD (In Liquidation) BELL GROUP NV (In Liquidation) AMBASSADOR NOMINEES PTY LTD (In Liquidation) and OTHERS GEOFFREY FRANK TOTTERDELL AS LIQUIDATOR OF FIRST PLAINTIFF AND OF FIRST, SECOND, THIRD, FIFTH, NINTH, TENTH, ELEVENTH, THIRTEENTH, FOURTEENTH, SIXTEENTH, SEVENTEENTH AND NINETEENTH NAMED SEVENTH PLAINTIFFS ANTONY LESLIE JOHN WOODINGS AS LIQUIDATOR OF THE THIRD PLAINTIFF, FIFTH PLAINTIFF AND OF THE FOURTH, SIXTH, SEVENTH, EIGHTH, TWELFTH, FIFTEENTH, EIGHTEENTH NAMED SEVENTH PLAINTIFFS GARRY JOHN TREVOR AS LIQUIDATOR OF THE SIXTH PLAINTIFF WESTPAC BANKING CORPORATION (ACN 007 457 141) SOCIETE GENERALE AUSTRALIA LTD NATIONAL AUSTRALIA BANK LTD HONGKONGBANK OF AUSTRALIA LTD STANDARD CHARTERED BANK AUSTRALIA LTD COMMONWEALTH BANK OF AUSTRALIA LLOYDS BANK PLC BANCO ESPIRITO SANTO E COMERCIAL DE LISBOA BANK FUR GEMEINWIRTSCHAFT AG THE GOVERNOR AND COMPANYOF THE BANK OF SCOTLAND CAISSE NATIONALE DE CREDIT AGRICOLE BANK AUSTRIA AKTIENGESELLSCHAFT CREDIT LYONNAIS DRESDNER BANK AG KREDIETBANK NV SKOPBANK DG BANK DEUTSCHE GENOSSENSCHAFTSBANK THE GULF BANK KSC GENTRA LTD (FORMERLY ROYAL TRUST BANK) BANQUE INDOSEUZ EQUITY TRUST (CURACAO) NV |
Catchwords: | Practice and procedure Case management principles Application to vary order that two related applications be heard together High likelihood of appeal of interlocutory proceedings Proceedings potentially impacted by proceedings in United Kingdom Turns on own facts |
Legislation: | Civil Judgments Enforcement Act 2004 (WA) Rules of the Supreme Court 1971 (WA), O 4A |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- First Plaintiff
THE BELL GROUP LTD (In Liquidation) AS TRUSTEE FOR DOLFINNE PTY LTD (In Liquidation)
THE BELL GROUP LTD (In Liquidation) AS TRUSTEE FOR INDUSTRIAL SECURITIES PTY LTD
THE BELL GROUP LTD (In Liquidation) AS TRUSTEE FOR MARANOA TRANSPORT PTY LTD
THE BELL GROUP LTD (In Liquidation) AS TRUSTEE FOR NEOMA INVESTMENTS PTY LTD
Second Plaintiffs
BELL GROUP FINANCE (In Liquidation) (RECEIVER AND MANAGER APPOINTED)
Third Plaintiff
BELL GROUP (UK) HOLDINGS LTD (In Liquidation) (IN ADMINISTRATIVE RECEIVERSHIP)
- Fourth Plaintiff
BELL PUBLISHING GROUP PTY LTD (In Liquidation)
Fifth Plaintiff
BELL GROUP NV (In Liquidation)
Sixth Plaintiff
AMBASSADOR NOMINEES PTY LTD (In Liquidation) and OTHERS
Seventh Plaintiffs
GEOFFREY FRANK TOTTERDELL AS LIQUIDATOR OF FIRST PLAINTIFF AND OF FIRST, SECOND, THIRD, FIFTH, NINTH, TENTH, ELEVENTH, THIRTEENTH, FOURTEENTH, SIXTEENTH, SEVENTEENTH AND NINETEENTH NAMED SEVENTH PLAINTIFFS
Eighth Plaintiff
ANTONY LESLIE JOHN WOODINGS AS LIQUIDATOR OF THE THIRD PLAINTIFF, FIFTH PLAINTIFF AND OF THE FOURTH, SIXTH, SEVENTH, EIGHTH, TWELFTH, FIFTEENTH, EIGHTEENTH NAMED SEVENTH PLAINTIFFS
Ninth Plaintiff
GARRY JOHN TREVOR AS LIQUIDATOR OF THE SIXTH PLAINTIFF
Tenth Plaintiff
AND
WESTPAC BANKING CORPORATION (ACN 007 457 141)
First Defendant
SOCIETE GENERALE AUSTRALIA LTD
NATIONAL AUSTRALIA BANK LTD
HONGKONGBANK OF AUSTRALIA LTD
- STANDARD CHARTERED BANK AUSTRALIA LTD
COMMONWEALTH BANK OF AUSTRALIA
Second Defendants
LLOYDS BANK PLC
BANCO ESPIRITO SANTO E COMERCIAL DE LISBOA
BANK FUR GEMEINWIRTSCHAFT AG
THE GOVERNOR AND COMPANYOF THE BANK OF SCOTLAND
CAISSE NATIONALE DE CREDIT AGRICOLE
BANK AUSTRIA AKTIENGESELLSCHAFT
CREDIT LYONNAIS
DRESDNER BANK AG
KREDIETBANK NV
SKOPBANK
DG BANK DEUTSCHE GENOSSENSCHAFTSBANK
THE GULF BANK KSC
GENTRA LTD (FORMERLY ROYAL TRUST BANK)
BANQUE INDOSEUZ
Third Defendants
EQUITY TRUST (CURACAO) NV
Fourth Defendant
Catchwords:
Practice and procedure - Case management principles - Application to vary order that two related applications be heard together - High likelihood of appeal of interlocutory proceedings - Proceedings potentially impacted by proceedings in United Kingdom - Turns on own facts
Legislation:
Civil Judgments Enforcement Act 2004 (WA)
Rules of the Supreme Court 1971 (WA), O 4A
(Page 4)
Result:
Application dismissed
Category: B
Representation:
Counsel:
First Plaintiff : Mr J C Vaughan
Second Plaintiffs : Mr J C Vaughan
Third Plaintiff : Mr J C Vaughan
Fourth Plaintiff : Mr J C Vaughan
Fifth Plaintiff : Mr J C Vaughan
Sixth Plaintiff : Mr J C Vaughan
Seventh Plaintiffs : Mr J C Vaughan
Eighth Plaintiff : Mr J C Vaughan
Ninth Plaintiff : Mr J C Vaughan
Tenth Plaintiff : Mr J C Vaughan
First Defendant : Mr M C Garner
Second Defendants : Mr M C Garner
Third Defendants : Mr M C Garner
Fourth Defendant : Mr M C Garner
Solicitors:
First Plaintiff : Blake Dawson
Second Plaintiffs : Blake Dawson
Third Plaintiff : Blake Dawson
Fourth Plaintiff : Blake Dawson
Fifth Plaintiff : Blake Dawson
Sixth Plaintiff : Blake Dawson
Seventh Plaintiffs : Blake Dawson
Eighth Plaintiff : Blake Dawson
Ninth Plaintiff : Blake Dawson
Tenth Plaintiff : Blake Dawson
First Defendant : Holman Fenwick Willan
Second Defendants : Holman Fenwick Willan
Third Defendants : Holman Fenwick Willan
Fourth Defendant : Holman Fenwick Willan
Case(s) referred to in judgment(s):
Nil
(Page 6)
- MARTIN CJ:
(This judgment was delivered extemporaneously on 21 November 2011 and has been edited from the transcript.)
1 There are two substantive applications before the court. One is an application by the judgment creditors, as I shall call them, who are the plaintiffs in the substantive proceedings, for certain relief pursuant to the provisions of the Civil Judgments Enforcement Act 2004 (WA) (the enforcement application). In addition, there is an application by the respondent to the enforcement application, who I shall call for the sake of brevity Gentra, to stay the enforcement application brought by the judgment creditors on the basis of proceedings that have been commenced in the United Kingdom (the stay application).
2 On 10 November 2011, at the first directions hearing before a judge of this court in relation to both matters at which all relevant parties were represented, I made directions to the effect that both applications be heard together and made programming orders to enable that to occur.
3 I invited counsel who appeared on behalf of Gentra on that occasion to advance any argument as to why that should not occur and no argument was advanced.
4 Gentra now applies, about 10 days later, to vary the orders that I made on 10 November 2011 on the basis of arguments that were not advanced to me on 10 November 2011. It does so on the basis that there was a misunderstanding between Gentra's Australian solicitors and the Perth agents of those solicitors who instructed counsel who appeared before me on 10 November 2011, but there is no evidence to that effect. I am simply asked to rely upon that proposition advanced from the bar table.
5 The principles of case management that are now enshrined in the Rules of the Supreme Court 1971 (WA) (the Rules) require that litigation be conducted in this court in an orderly fashion so as to avoid waste of the resources of the parties and of the limited resources of the court (see O 4A of the Rules).
6 One of the principles of case management is that there not be duplication of argument or uncertainty with respect to interlocutory rulings that are made by the court.
(Page 7)
7 That principle in turn requires that rulings made by the court when both parties are represented before it should only be revisited in limited circumstances. A change in relevant circumstances might justify revisiting an earlier order, but that is not the basis upon which this application is brought by Gentra; rather, the application is brought by Gentra on the basis of something that I am told from the bar table and that is unsubstantiated by evidence.
8 The principles of case management to which I have already referred seem to me to require that applications of this kind not be entertained without some evidence and that is, I think, a sufficient basis to dispose of the application that Gentra makes this morning. But in case a different view is taken elsewhere, I entertained argument on the substantive question which Gentra sought to agitate; that is, the question of the order in which the two applications should be heard. Against the contingency that a different view might be taken elsewhere in relation to the question of whether or not Gentra should be permitted to reagitate this issue, I will express my view on that issue.
9 Gentra points to the English proceedings and says, in essence, that the stay application should be heard first, essentially to avoid it incurring the costs of having to prepare for the enforcement application if the stay application and the enforcement application are to be heard together.
10 In that regard, it points to the affidavit evidence that it says it would need to compile in response to the enforcement application, the costs of which would be avoided if its application for a stay were heard in advance of those proceedings and it were successful in obtaining the grant of a stay.
11 Against that proposition are the various issues which I considered when the matter came before me on 10 November 2011. Those issues include the fact that there is a commercial imperative to endeavour to finally resolve these issues not later than 5 October 2012 because that is the date upon which the guarantee of the liability of Gentra to the judgment creditors expires unless demand has been given prior to that date.
12 Although that date is, of course, some distance hence, it is a date that has to be viewed in a context in which the amounts involved render appeals highly likely, and indeed appeals at every step in the process of decision making that might lead to the ultimate resolution of these issues.
(Page 8)
- The judgment debt is an amount which is escalating as a result of interest but I am told is presently in excess of $AUD40 million.
13 The Rules require this court to apply the doctrine of proportionality so that the costs incurred by the parties and the case management procedures adopted by the court are required to be proportional to the amount in issue.
14 Where the amount in issue is of the magnitude to which I have referred and where there is a temporal imperative of the kind to which I have referred, the case management approach to be taken by the court has to take those important considerations into account.
15 There are, I think, a number of disadvantages in separating the stay application from the enforcement application. The first is that there are a number of common issues in relation to the stay application and the enforcement application. It seems to me to be likely that any judge hearing the stay application would have to form a view with respect to the strength of the enforcement application in order to determine the stay application.
16 Given the amount of the judgment debt; that is, an amount in excess of $AUD40 million, it does not seem to me that it is likely that the stay application could be resolved simply by considering the amount of costs that might be thrown away when there is a temporal imperative of the kind to which I have referred and having regard to the size of the judgment debt when compared to the amount of the costs involved.
17 It also seems to me that another disadvantage of separating those issues is the high likelihood of any decision made on the stay application being itself made the subject of an appeal to the Court of Appeal in this State. There is a grave disadvantage in separating issues that are likely to be made the subject of an appeal, whereas if the stay application and the enforcement application are heard together, then there could be one appeal from the decisions in both matters.
18 Those are powerful case management considerations in favour of continuing to program both applications before the court for a joint hearing.
19 My attention has been drawn to the fact that the proceedings in the United Kingdom have now reached the point where a date has been allocated for the hearing of certain applications in that country, including the application to set aside registration of the judgment debt and the
(Page 9)
- application to have a receiver appointed, and I have been told and there is evidence to the effect that those proceedings will be heard in the England and Wales High Court on 12 January 2012. Of course, it is not known whether there will be a decision of the court on that date, nor is it known when any appeal from that decision will be resolved.
20 It seems to me, therefore, that the mere fact that there will be a hearing in the United Kingdom does not yet provide a sufficient basis for concluding that the Australian proceedings are likely to become moot because much will depend upon what happens in the United Kingdom.
21 However, again relying upon case management principles, there seems to be much to be said for the proposition that any hearing of the two applications that are before this court should be deferred until the hearing in the United Kingdom on 12 January 2012. That is because information can then be provided to this court as to what occurred on that date and as to the likely future progress of the proceedings in the United Kingdom which could be very important information for this court when it is called upon to resolve issues like the stay application. Indeed, there is a prospect that these proceedings could become moot depending on what happens in the United Kingdom on 12 January 2012. So there seems to me to be virtue in deferring any substantive decision on either of the applications until such time as we have some indication of what has happened in the United Kingdom on 12 January 2012.
22 On that basis, it seems to me that the case management directions that I should make should continue to move these proceedings forward, so that there is a prospect of substantive determination of these proceedings in sufficient time for the appellate process in Western Australia to be exhausted prior to 5 October 2012, but at the same time balancing the possibility that events that occur in the United Kingdom might render these proceedings redundant or make it appropriate for there to be a stay of these proceedings.
23 On the basis of the various competing case management considerations to which reference has been made, that course appears to me to strike the appropriate balance. For the reasons I have given, even if I were to entertain the substantive application to set aside my earlier order, I would nevertheless dismiss that application because of the utility from a case management perspective of maintaining the approach which requires the stay application and the enforcement application to be heard together and to make programming orders to enable that to occur. So for those reasons I will dismiss the application to revisit the direction that I made on
(Page 10)
- 10 November 2011 to the effect that the stay application and the enforcement application be heard together.
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