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Wiggett v Stone

Wiggett v Stone

Case [2022] NSWSC 771 10 June 2022

Civil Litigation & Procedure

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Wiggett v Stone [2022] NSWSC 771
Hearing dates: 09 June 2022
Date of orders: 10 June 2022
Decision date: 10 June 2022
Jurisdiction: Common Law
Before: Schmidt AJ
Decision:
1. The proceedings must be dismissed.
2. Under r 42.1 of the Uniform Procedure Rules 2005 (NSW) costs follow the event, Mr Wiggett must thus pay the liquidator’s costs, as agreed or assessed. Unless the parties approach to be heard within 7 days, that will be the Court’s order.
3. If there is any dispute they should file proposed orders and short submissions to be considered on the papers.

Catchwords:
COURTS AND JUDGES — Courts — cross-vesting — where first defendant as liquidator has brought proceedings against plaintiffs in District Court for insolvent trading and seeks recovery — where second plaintiff has commenced proceedings in Federal Circuit and Family Court of Australia for division of matrimonial property — where first plaintiff seeks orders to remove District Court proceedings to Supreme Court and then transfer to Federal Circuit and Family Court of Australia — where orders are opposed by liquidator — whether Supreme Court should exercise its power — Civil Procedure Act2005 (NSW), s 140 — Corporations Act 2001 (Cth), s 1337H — interests of justice — balance of relevant factors — whether proceedings are intertwined or discrete — orders refused

Legislation Cited:
Civil Procedure Act2005 (NSW), s 140
Corporations Act2001 (Cth), ss 588G, 588H, 588M, 1337C, 1337H
Family Law Act 1975 (Cth), s 79
Uniform Civil Procedure Rules, r 42.1

Cases Cited:
Bankinvest AG v Seabrook (1988) 14 NSWLR 711
Bellamy v Gladwell (No 2) [2017] FamCAFC 238
BHP Billiton Ltd v Schultz (2004) 221 CLR 400; [2004] HCA 61
BOC v MDL [2019] NSWSC 278
Browne v Green [1999] FamCA 1483; (1999) 25 Fam LR 482
In the Marriage of Hickey [2003] FamCA 395; (2003) 30 Fam LR 355
In the matter of Peter G Ward Industries Pty Ltd [2020] NSWSC 339
In the matter of PJL Group Pty Ltd [2018] NSWSC 756
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
Parry v WGE Engineering Pty Ltd [2003] NSWSC 337
Roff v Aqua Distributors Pty Ltd [1996] FCA 966; (1996) 22 ACSR 248
Valceski v Valceski (2007) 70 NSWLR 36; [2007] NSWSC 440
Vaughan v Frost [2010] NSWSC 492
Yara Pilbara Fertilisers Pty Ltd v Oswal (No 8) [2015] FCA 49
Zhu v Tech Universal (HK-Macau) Development Pty Ltd, in the matter of Tech Universal (HK-Macau) Development Pty Ltd [2005] FCA 256; (2005) 53 ACSR 704

Category: Principal judgment
Parties: Dominic Wiggett (First Plaintiff)
Elke Wiggett (Second Plaintiff)
Richard Stone (First Defendant)
Zorro Pressure Cleaning Pty Ltd (Second Defendant)
Representation: Counsel:
M McGirr (Plaintiffs)
J Raftery (Defendants)
Solicitors:
McPhee Kelshaw (First Plaintiff)
Ziman & Ziman (Second Plaintiff)
Roser Lawyers (First and Second Defendants)

File Number(s): 2022/22003

Judgment

In May 2021 the liquidator of Zorro Pressure Cleaning Pty…

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.

Continue reading Wiggett v Stone

Details

AGLC: Wiggett v Stone [2022] NSWSC 771
Case: [2022] NSWSC 771
Decision Date: 10 June 2022

CaseChat Overview and Summary

In Wiggett v Stone, the plaintiffs, represented by their solicitor, sought orders to transfer proceedings from the District Court to the Federal Circuit and Family Court of Australia. The District Court proceedings involved a liquidator, as the first defendant, who had brought an action for insolvent trading against the plaintiffs. The Federal Circuit and Family Court of Australia proceedings were initiated by the second plaintiff, who sought a division of matrimonial property. The first plaintiff argued that the proceedings should be transferred to the Federal Circuit and Family Court of Australia to avoid the inconvenience and expense of litigating the matters in two separate courts. The liquidator opposed the application, arguing that the proceedings were discrete and should remain in the District Court.

The court was required to determine whether it should exercise its power to remove the proceedings from the District Court and transfer them to the Federal Circuit and Family Court of Australia. The legal issues involved interpreting the relevant statutory provisions, including section 140 of the Civil Procedure Act 2005 (NSW) and section 1337H of the Corporations Act 2001 (Cth), and balancing the interests of justice against the opposing submissions of the parties. The court considered whether the proceedings were intertwined or discrete and whether the transfer of proceedings would serve the interests of justice.

The court held that it would not exercise its power to transfer the proceedings from the District Court to the Federal Circuit and Family Court of Australia. The court found that the proceedings were discrete and did not involve common issues of fact or law. The court also considered that the liquidator had a legitimate interest in pursuing the insolvent trading claims in the District Court and that the transfer of proceedings would not serve the interests of justice. The court concluded that the balance of relevant factors did not favour the transfer of proceedings. The application was refused.

Orders