Virgtel Ltd v Zabusky - [2013] QSC 88

SUPREME COURT OF QUEENSLAND

CITATION:

Virgtel Ltd & Anor v Zabusky & Ors [2013] QSC 88

PARTIES:

VIRGTEL LIMITED AND ANOR
(applicants)
v
HARVEY ZABUSKY AND ORS
(respondents)

FILE NO:

BS6547 of 2005

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

4 April 2013

DELIVERED AT:

Brisbane

HEARING DATE:

19 July 2012, 28 August 2012, 4 September 2012

JUDGE:

Daubney J

ORDERS:

1.   The application by the first and fifth respondents for discharge of the orders made on 10 July 2012 is dismissed, with costs reserved.

2.   Paragraph 1 of the order made on 10 July 2012 is varied to read as follows:

     1.   Until the hearing of the application for final relief sought in the Application filed by leave on 10 July 2012, that:

          (a)   the second, third and fourth applicants shall make, and

          (b)   the first respondent shall cause Morganat Enterprises SA to make

      applications (such applications to be made separately but contemporaneously) in the Federal High Court of Nigeria, suit number FHC/L/CS/547/2012 (“the Nigerian Proceedings”) for the variation of the ex parte interim order made 30 May 2012 by amending:

     (i)      Order 1 by inserting before the words “pending the hearing” the words “other than in or in connection with the conduct of proceedings in the Supreme Court of Queensland in proceedings BS 6547/05 (‘the Queensland Proceedings’)”;

      (ii)     Order 2 by inserting at the end of that order the words “provided that nothing in this Order affects the ability of the defendants to conduct and defend the Queensland Proceedings”.

3.   Paragraph 4 of the order made on 10 July 2012 is varied to read as follows:

4.   It is directed that the applicants conduct this proceeding, including all interlocutory applications in this proceeding:

     (a)    without doing so (if otherwise that be the case) by acting or purporting to act in the name of Virgin Technologies Limited;

(b) without holding themselves out (if otherwise that be the case) as directors, members or shareholders of Virgin Technologies Limited including that the applicants be relieved of any requirement of the Uniform Civil Procedure Rules or otherwise to include or read any statement that might otherwise be made in a pleading, affidavit, statement or submission as to whether they or any of them are directors, members or shareholders of Virgin Technologies Limited pending further direction of the Court.

CATCHWORDS:

PROCEDURE – JUDGMENTS AND ORDERS – AMENDING, VARYING AND SETTING ASIDE – INHERENT POWER TO AMEND TO GIVE EFFECT TO MEANING AND INTENTION OF COURT – where the respondents make application for discharge of court orders – whether the application should be allowed

Uniform Civil Procedure Rules 1999 (Qld), r 5

Virgtel Ltd & Ors v Zabusky & Ors [2011] QSC 269
Virgtel Ltd & Zabusky [2006] 2 Qd R 81

COUNSEL:

M M Stewart SC and S Monks for the applicants
D R Cooper SC and C Wilson for the first and fifth respondents on 19 July 2012
D Tucker (Solicitor) for the first and fifth…

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: [2013] QSC 88
Decision Date: 4 April 2013

CaseChat Overview and Summary

The matter before the court involved an application by the first and fifth respondents to discharge certain orders made on 10 July 2012. The respondents sought to be discharged from these orders, which were made in the context of proceedings involving complex international litigation and jurisdictional issues. The court was tasked with deciding whether to allow the respondents’ application to be discharged from these orders. The court also had to consider whether any of the orders should be varied to better reflect the intentions of the parties and the jurisdictional nuances of the case.

The central legal issue before the court was whether the application for discharge should be allowed, and if not, whether any of the orders should be varied to better reflect the parties’ intentions and jurisdictional considerations. The court had to balance the inherent power to amend orders to give effect to the court's true intention against the principle that once an order is made, it should generally be adhered to unless there is a clear justification for variation. The court also had to consider the implications of the orders on related international proceedings in Nigeria and the Supreme Court of Queensland.

The court ultimately dismissed the application for discharge, finding that there was no valid reason to set aside the orders made on 10 July 2012. However, the court did vary certain parts of these orders to more accurately reflect the parties' intentions and the jurisdictional nuances of the case. Specifically, the court amended the orders to clarify the scope of the Nigerian Proceedings and to ensure that the applicants were not held out as directors, members, or shareholders of Virgin Technologies Limited in this proceeding. The court emphasised the need for consistency and clarity in the international litigation process, and the importance of ensuring that orders do not inadvertently affect related proceedings in other jurisdictions.

The court's final orders were that the application for discharge was dismissed, with costs reserved. Additionally, certain paragraphs of the orders made on 10 July 2012 were varied to provide greater clarity and to ensure compliance with the jurisdictional requirements of the related proceedings in Nigeria and Queensland.

Orders

Orders of the court

1. The application by the first and fifth respondents for discharge of the orders made on 10 July 2012 is dismissed, with costs reserved.

2. Paragraph 1 of the order made on 10 July 2012 is varied to read as follows:

1. Until the hearing of the application for final relief sought in the Application filed by leave on 10 July 2012, that:

(a) the second, third and fourth applicants shall make, and

(b) the first respondent shall cause Morganat Enterprises SA to make

applications (such applications to be made separately but contemporaneously) in the Federal High Court of Nigeria, suit number FHC/L/CS/547/2012 (“the Nigerian Proceedings”) for the variation of the ex parte interim order made 30 May 2012 by amending:

(i) Order 1 by inserting before the words “pending the hearing” the words “other than in or in connection with the conduct of proceedings in the Supreme Court of Queensland in proceedings BS 6547/05 (‘the Queensland Proceedings’)”;

(ii) Order 2 by inserting at the end of that order the words “provided that nothing in this Order affects the ability of the defendants to conduct and defend the Queensland Proceedings”.

3. Paragraph 4 of the order made on 10 July 2012 is varied to read as follows:

4. It is directed that the applicants conduct this proceeding, including all interlocutory applications in this proceeding:

(a) without doing so (if otherwise that be the case) by acting or purporting to act in the name of Virgin Technologies Limited;

(b) without holding themselves out (if otherwise that be the case) as directors, members or shareholders of Virgin Technologies Limited including that the applicants be relieved of any requirement of the Uniform Civil Procedure Rules or otherwise to include or read any statement that might otherwise be made in a pleading, affidavit, statement or submission as to whether they or any of them are directors, members or shareholders of Virgin Technologies Limited pending further direction of the Court.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Virgtel Ltd & Anor v Zabusky & Ors [2013] QSC 88
PARTIES:	VIRGTEL LIMITED AND ANOR (applicants) v HARVEY ZABUSKY AND ORS (respondents)
FILE NO:	BS6547 of 2005
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	4 April 2013
DELIVERED AT:	Brisbane
HEARING DATE:	19 July 2012, 28 August 2012, 4 September 2012
JUDGE:	Daubney J
ORDERS:	1. The application by the first and fifth respondents for discharge of the orders made on 10 July 2012 is dismissed, with costs reserved. 2. Paragraph 1 of the order made on 10 July 2012 is varied to read as follows: 1. Until the hearing of the application for final relief sought in the Application filed by leave on 10 July 2012, that: (a) the second, third and fourth applicants shall make, and (b) the first respondent shall cause Morganat Enterprises SA to make applications (such applications to be made separately but contemporaneously) in the Federal High Court of Nigeria, suit number FHC/L/CS/547/2012 (“the Nigerian Proceedings”) for the variation of the ex parte interim order made 30 May 2012 by amending: (i) Order 1 by inserting before the words “pending the hearing” the words “other than in or in connection with the conduct of proceedings in the Supreme Court of Queensland in proceedings BS 6547/05 (‘the Queensland Proceedings’)”; (ii) Order 2 by inserting at the end of that order the words “provided that nothing in this Order affects the ability of the defendants to conduct and defend the Queensland Proceedings”. 3. Paragraph 4 of the order made on 10 July 2012 is varied to read as follows: 4. It is directed that the applicants conduct this proceeding, including all interlocutory applications in this proceeding: (a) without doing so (if otherwise that be the case) by acting or purporting to act in the name of Virgin Technologies Limited; (b) without holding themselves out (if otherwise that be the case) as directors, members or shareholders of Virgin Technologies Limited including that the applicants be relieved of any requirement of the Uniform Civil Procedure Rules or otherwise to include or read any statement that might otherwise be made in a pleading, affidavit, statement or submission as to whether they or any of them are directors, members or shareholders of Virgin Technologies Limited pending further direction of the Court.
CATCHWORDS:	PROCEDURE – JUDGMENTS AND ORDERS – AMENDING, VARYING AND SETTING ASIDE – INHERENT POWER TO AMEND TO GIVE EFFECT TO MEANING AND INTENTION OF COURT – where the respondents make application for discharge of court orders – whether the application should be allowed Uniform Civil Procedure Rules 1999 (Qld), r 5 Virgtel Ltd & Ors v Zabusky & Ors [2011] QSC 269 Virgtel Ltd & Zabusky [2006] 2 Qd R 81
COUNSEL:	M M Stewart SC and S Monks for the applicants D R Cooper SC and C Wilson for the first and fifth respondents on 19 July 2012 D Tucker (Solicitor) for the first and fifth…