Vanda Holdings P/L v G L Tierney P/L

[1994] FCA 281

FEDERAL COURT OF AUSTRALIA

Principal Registry

Pile PAO

Minute to:	All Receivers of Federal Court Judgments
M m :	Mary Smart, Librarian Records
Date:	14 June 1994
Subject:	Norfolk Jsland Judgment

Please note that judgment 281 of 1994 has been deleted from our judgments index (JDG) because it is a Norfolk Island judgment and has been entered Into the Norfolk Island Judgments database (number 7/94). You may wish to remove the hard copy from your collection or mark it accordingly.

The new judgment for 281 of 1994 is attached.

Thank you.

I / 9 Y

JUDGMENT NO. .... 2.6 ........

IN THE FEDERAL COURT OF AUSTRALIA	) 1
VICTORIA DISTRICT REGISTRY	1 No VG 3134 of 1994
)
GENERAL DIVISION	1

BETWEEN :  VANDA HOLDINGS PTY LTD

(Applicant)

AND:  G L TIERNEY PTI LTD

(Respondent)

m:  Ryan J

Place: Melbourne

Date:  01 June 1994

REASONS FOR JUDGMENT

Rvan J:  The applicant has applied, on essentially two

grounds, for an adjournment of this application under s.459G of the Corporations Law. The applicant relies on the short service of an answering affidavit by the respondent which, I

have been told from the Bar table, was served by facsimile
transmission at 8.36 am yesterday morning. The applicant also

relies on a desire to obtain records which are in the

possession of the applicant's former accountant, copies of

which are believed to be in the possession of the respondent.

As has been observed in several cases decided since the relevant legislation was enacted, Division 3 of Part 5.4 of the Corporations Law contemplates a summary procedure which excludes any extended inquiry by the Court, to which application to set aside the demand is made, into the merits of the dispute. All that is required is identification of a genuine dispute and a conclusion, where a cross-demand is set

up, in the light of the available evidence and all inferences
which can be drawn from it, that there is a real, as opposed
to a fanciful or illusory, prospect that the cross-demand will
equal or overtop the statutory demand.

In the light of these reflections I would have been minded to refuse the adjournment. However, it appears from the evidence presently before the Court that a critical part of the dispute between these parties is the subject of litigation commenced in the Supreme Court of Victoria after the application to set aside the statutory demand was filed in this Court on 15 April.

The applicant in this Court, Vanda Holdings Pty Ltd, has, apparently on 7 April 1994, served a notice under s.146 of the Property Law Act ( V i c ) purporting to terminate the interest of the respondent to these proceedings, G. & L. Tierney Pty Ltd, in a head lease of land on which a service station is being conducted in Main Street, Romsey.

G. & L. Tierney Pty Ltd in turn has commenced proceedings in

the Supreme Court of Victoria against Wilguckie Investments
Pty Ltd. Regrettably the exhibits to the affidavits filed in
this Court do not include the pleadings in the Supreme Court
proceedings. However, it does appear that a critical issue
common to both proceedings is whether certain petrol tanks
installed or maintained on the service station site by G. & L.
Tierney Pty Ltd were defective or caused contamination of the
site or adulteration of petrol sold by Vanda Holdings Pty Ltd
as operator of the service station, and supplied, it seems to
be common ground, by G. & L. Tierney Pty Ltd. The statntory
demand which is the subject of the present proceedings, as I
understand it, was for the cost of fuel supplied pursuant to
that arrangement.

In the course of his submissions, Mr Kelly of Counsel for the respondent, G. & L. Tierney Pty Ltd drew my attention to the provisions of the Jurisdiction of Courts (Cross Vesting) Act and it does seem to me on reflection having regard to the substantial identity between an lssue in the present proceedings and one in the Supreme Court proceedings to which I have referred, that it should be determined in one and the same Court.

I have further been informed from the Bar table that interlocutory proceedings in the Supreme Court are at an advanced stage and the return of a motion for an icterlocutory injunction is before that Court on next Monday, 6 June.

Having regard to the criteria set out in sub-s.5(4) of the	Cross Vesting Act I consider that it is appropriate in the
interests of justice that the present application to set aside the statutory demand be determined by the Supreme Court of Victoria.
Accordingly, I propose to make an order transferring that proceeding to the Supreme Court and I shall order that the costs of both parties in this Court be reserved to the Supreme Court.

I certlfy that this and the

preceding three (3) pages
are a true copy of the
reasons for judgment of his

Honour M r Justice Ryan

Associate: Q-LAL.4 A&

Counsel for applicant:	MS M Kennedy
Solicitors for applicant:	Still & CO
Counsel for respondent:	M r Kelly

Solicitors for respondent:  Hall & Wilcox