Virgtel Ltd v Zabusky

SUPREME COURT OF QUEENSLAND

CITATION:

Virgtel Ltd & Anor v Zabusky & Ors [2011] QSC 269

PARTIES:

VIRGTEL LIMITED
(first applicant)
and
VIRGTEL GLOBAL NETWORKS NV
(second applicant)
v
HARVEY ZABUSKY
(first respondent)
and
AMALIA ZABUSKY
(second respondent)
and
EREZ ZABUSKY
(third respondent)
and
COMMSLOGIC PTY LTD (ACN 109 057 543)
(fourth respondent)
and
SOFTQUEST SOLUTIONS PTY LTD (ACN 057 679 599)
(fifth respondent)
and
VIRGIN TECHNOLOGIES LIMITED
(sixth respondent)

FILE NO/S:

BS 6547 of 2005

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

9 September 2011

DELIVERED AT:

Brisbane

HEARING DATE:

14 and 15 February 2011
Further written submissions

JUDGE:

Daubney J

ORDER:

1.    The parties shall bring in an order providing for the joinder nunc pro tunc as applicants of Viscaya Panama and Viscaya Anguilla, with the costs of the joinder application to be reserved;

2.    The respondents’ application for a temporary stay is dismissed with costs.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – PARTIES – OTHER MATTERS – where the applicants seek to join two other companies as applicants in the proceeding under rule 69(1)(b) of the Uniform Civil Procedure Rules 1999 (Qld) – whether it is appropriate for the companies to be joined

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – STAYING PROCEEDINGS – where the respondents apply for a temporary stay of proceedings - where the respondents submit that the present proceeding mirrors issues in proceedings in other jurisdictions – whether the Court should exercise its inherent jurisdiction to temporarily stay the proceedings

Corporations Act 2001 (Cth), s 236(3)
Uniform Civil Procedure Rules 1999 (Qld), r 69(1)(b)

Angas Law Services Pty Ltd (in liq) v Carabelas (2005) 226 CLR 507, cited
Biala Pty Ltd v Mallina Holdings Ltd (No 4) (1993) 13 WAR 11, cited
Foss v Harbottle (1843) 2 HARE 461; 67 ER 189
OZ-US Film Products Pty Ltd (in liq) v Heath [2000] NSWSC 967, cited
Virgtel Ltd v Zabusky [2006] 2 Qd R 81, considered
Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538, cited

COUNSEL:

G C Newton SC with S S Monks for the applicants
D R Cooper SC with C Wilson for the first, second, third and fifth respondents

SOLICITORS:

James Conomos Lawyers for the applicants
Tucker & Cowen for the first, second, third and fifth respondents

1. The background to this litigation has been essayed in a number of previous judgments.  At its most basic, it is a contest between Mr van Leeuwen and

   
   

   Mr Zabusky.  The van Leeuwen side of the record contends that Mr Zabusky wrongly caused large sums of money which were supposed to have been paid to Virgin Technologies Ltd (“VTL”), a Nigerian company in which Mr van Leeuwen and Mr Zabusky indirectly had interests, to be diverted to the benefit of

   
   

   Mr Zabusky, other members of the Zabusky family and other companies associated…