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

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

In the Federal Court of Australia, Vanda Holdings P/L, the applicant, brought an application against G L Tierney P/L, the respondent, to set aside a statutory demand under s.459G of the Corporations Law. The primary dispute centred on the service of an answering affidavit by the respondent and the applicant's need to obtain records from the respondent's former accountant. The application was filed on 15 April 1994, and the respondent served its answering affidavit on 31 May 1994.

The court needed to determine whether the application for an adjournment should be granted. The applicant argued for an adjournment due to the late service of the answering affidavit and the need for additional records. The respondent, however, opposed the adjournment. The court had to consider whether the statutory demand procedure, which is intended to be summary, allowed for an extended inquiry into the merits of the dispute. Moreover, the court had to decide whether the application should be transferred to another court due to overlapping litigation in the Supreme Court of Victoria concerning the same issue.

Justice Ryan concluded that the application for an adjournment should not be granted in the Federal Court. The court noted that the statutory demand procedure was meant to be summary and did not allow for a detailed examination of the merits. However, due to the overlap in issues with ongoing litigation in the Supreme Court of Victoria, the court found it appropriate to transfer the case to the Supreme Court. The transfer was deemed to be in the interests of justice and efficiency, considering the substantial identity of issues between the two proceedings. The court ordered the transfer of the proceeding to the Supreme Court of Victoria and reserved the costs of both parties to be determined by the Supreme Court.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

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.