Zinc Corporation v Pasminco - [2004] NSWSC 339

Reported Decision:
49 ACSR 129

Supreme Court

CITATION: Zinc Corporation v Pasminco [2004] NSWSC 339

HEARING DATE(S): 19 April 2004

JUDGMENT DATE:
27 April 2004

JURISDICTION:
Equity

JUDGMENT OF: Austin J

DECISION: Leave granted under s 444E(3), on condition that the plaintiffs commence the substantive proceedings in either the Victoria District Registry of the Federal Court, or the Supreme Court of Victoria

CATCHWORDS: CORPORATIONS - administration under deeds of company arrangement - creditors bound by deeds seek leave to commence proceedings in Supreme Court of New South Wales against subject companies - deeds of company arrangement provide for proceedings to be commenced in Federal Court or Supreme Court of Victoria - defendants' application to transfer leave proceedings to Victoria denied - plaintiffs granted leave to commence substantive proceedings, on condition that they be commenced in Victorian court

LEGISLATION CITED: Corporations Act 2001 (Cth), ss 58AA, 439A, 444A, 444B, 444D, 444E, 556

CASES CITED: Acton Engineering Pty Ltd v Campbell (1991) 103 ALR 437
Akai Pty Ltd v People's Insurance Co Ltd (1996) 188 CLR 418
Aquila Resources Ltd v Spark [2004] FCA 39
Bankinvest AG v Seabrook (1988) 14 NSWLR 711
Compagnie des Maritimes v Wilson (1954) 94 CLR 577
Huddart Parker Ltd v The Ship "Mill Hill" (1950) 81 CLR 502
James Hardie & Co Pty Ltd v Barry (2000) 50 NSWLR 357
KC Park Safe (SA) Pty Ltd v Adelaide Terrace Investments Pty Ltd (unreported, Federal Court of Australia, 15 May 1998)
McCluskey v Pasminco Ltd (2002) 120 FCR 326
Meehan v Stockmans Australian Cafe (Holdings) Pty Ltd (1996) 22 ACSR 123
News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410
Oceanic Sun Line Special Shipping Inc v Fay (1988) 165 CLR 97
Racecourse Betting Control Board v Secretary for Air [1944] Ch 114
Re AJ Benjamin Ltd (in liq) and the Companies Act (1969) 90 WN(Pt 1)(NSW) 107
The "Eleftheria" [1970] P 94

PARTIES :

1446/04
The Zinc Corporation Pty Ltd ACN 004 551 622 (P1)
Hamersley Resources Ltd ACN 004 887 656 (P2)
Pasminco Australia Ltd (subject to a Deed of Company Arrangement) ACN 004 074 962 (D1)
Pasminco Broken Hill Mine Pty Ltd (subject to a Deed of Company Arrangement) ACN 000 005 774 (D2)
Pasminco Cockle Creek Smelter Pty Ltd (subject to a Deed of Company Arrangement) ACN 000 083 670 (D3)
1447/04
NBH Ltd (P1)
Gunns Forest Products Pty Ltd (P2)
Pasminco Australia Ltd (subject to a Deed of Company Arrangement) ACN 004 074 962 (D1)
Pasminco Broken Hill Mine Pty Ltd (subject to a Deed of Company Arrangement) ACN 000 005 774 (D2)
Pasminco Cockle Creek Smelter Pty Ltd (Subject to a Deed of Company Arrangement) ACN 000 083 670 (D3)

FILE NUMBER(S): SC 1446/04, 1447/04

COUNSEL: P M Wood (P/R)
A J Meagher SC, G Lucarelli, A Maroya (D/A)

SOLICITORS: Blake Dawson Waldron (P/R)
Minter Ellison (D/A)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

AUSTIN J

TUESDAY 27 APRIL 2004

1446/04 THE ZINC CORPORATION…

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: [2004] NSWSC 339
Decision Date: 27 April 2004

CaseChat Overview and Summary

The Zinc Corporation sought to enforce a deed of company arrangement against Pasminco, and several other companies. The deed provided for the administration of the companies' affairs under a deed of company arrangement and specified that any proceedings be commenced in the Federal Court or the Supreme Court of Victoria. The plaintiffs sought leave to commence proceedings in the Supreme Court of New South Wales against Pasminco and the other companies. The defendants applied to transfer the proceedings to Victoria. The court was required to determine whether the plaintiffs were bound by the choice of court clause in the deed of company arrangement and, if so, whether the plaintiffs could be granted leave to commence proceedings in the Supreme Court of New South Wales.

The court held that the plaintiffs were bound by the choice of court clause in the deed of company arrangement and that the defendants' application to transfer the proceedings to Victoria should be dismissed. However, the court granted the plaintiffs leave to commence substantive proceedings in the Supreme Court of Victoria, on the condition that they be commenced in that court. The court found that the plaintiffs had made out a prima facie case for the relief sought and that there were compelling circumstances to grant leave to commence proceedings in the Supreme Court of New South Wales, despite the choice of court clause in the deed of company arrangement.

The court denied the defendants' application to transfer the proceedings to Victoria and granted the plaintiffs leave to commence substantive proceedings in the Supreme Court of Victoria, on the condition that they be commenced in that court. The court held that the plaintiffs were bound by the choice of court clause in the deed of company arrangement but that there were compelling circumstances to grant leave to commence proceedings in the Supreme Court of New South Wales. The court considered the convenience of the parties and witnesses, the location of relevant documents and evidence, and the potential impact on the administration of justice in determining whether to grant leave to commence proceedings in the Supreme Court of New South Wales. The court found that these factors outweighed the defendants' preference for the choice of court clause in the deed of company arrangement.

Orders