FEDERAL COURT OF AUSTRALIA

Consolidated Byrnes Holdings Limited v Hardel Investments Pty Limited
[2008] FCA 873

PRACTICE AND PROCEDURE – application for transfer of proceedings to the South Australian Registry – whether transfer appropriate in the circumstances of the case  

National Mutual Holdings Pty Ltd v Sentry Corporation (1988) 19 FCR 155 applied     

IN THE MATTER OF HARDEL INVESTMENTS PTY LIMITED ACN 083 276 000; CONSOLIDATED BYRNES HOLDINGS LIMITED ACN 111 052 585 AND ALPHA ASSET GROUP PTY LIMITED ACN 108 722 541 v HARDEL INVESTMENTS PTY LIMITED ACN 083 276 000

NSD 424 of 2008

IN THE MATTER OF AVPRI PTY LIMITED ACN 109 814 057; CONSOLIDATED BYRNES HOLDINGS LIMITED ACN 111 052 585 AND ALPHA ASSET GROUP PTY LIMITED ACN 108 722 541 v AVPRI PTY LIMITED ACN 109 814 057

NSD 425 OF 2008

IN THE MATTER OF HARDEL INVESTMENTS PTY LTD ACN 083 276 000 AND AVPRI PTY LTD ACN 109 814 057; HARDEL INVESTMENTS PTY LTD (ACN 083 276 000) AND AVPRI PTY LTD (ACN 109 814 057) v CONSOLIDATED BYRNES HOLDINGS LIMITED (ACN 111 052 585) AND ALPHA ASSET GROUP PTY LTD (ACN 108 722 541)

NSD 584 OF 2008

GYLES J

4 JUNE 2008

SYDNEY

IN THE MATTER OF HARDEL INVESTMENTS PTY LIMITED ACN 083 276 000

THE COURT:

1.                  ORDERS that the proceeding be transferred to the South Australian Registry of the Court.

2.                  ORDERS that the costs of the application for transfer be costs in the cause.

3.                  ORDERS that the time for filing of the plaintiffs’ evidence in relation to service of the statutory demands be extended to 10 June 2008.

4.                  DIRECTS that the matter be listed for directions by arrangement with the South Australian Registry as soon as convenient.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

IN THE MATTER OF AVPRI PTY LIMITED ACN 109 814 057

THE COURT:

1.                  ORDERS that the proceeding be transferred to the South Australian Registry of the Court.

2.                  ORDERS that the costs of the application for transfer be costs in the cause.

3.                  ORDERS that the time for filing of the plaintiffs’ evidence in relation to service of the statutory demands be extended to 10 June 2008.

4.                  DIRECTS that the matter be listed for directions by arrangement with the South Australian Registry as soon as convenient.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

IN THE MATTER OF HARDEL INVESTMENTS PTY LTD ACN 083 276 000 AND AVPRI PTY LTD ACN 109 814 057

THE COURT:

1.                  ORDERS that the proceeding be transferred to the South Australian Registry of the Court.

2.                  ORDERS that the costs of the application for transfer be costs in the cause.

3.                  ORDERS that the time for filing of the respondents’ evidence in relation to service of the statutory demands be extended to 10 June 2008.

4.                  DIRECTS that the matter be listed for directions by arrangement with the South Australian Registry as soon as convenient.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

IN THE MATTER OF HARDEL INVESTMENTS PTY LIMITED ACN 083 276 000

IN THE MATTER OF AVPRI PTY LIMITED ACN 109 814 057

IN THE MATTER OF HARDEL INVESTMENTS PTY LTD ACN 083 276 000 AND AVPRI PTY LTD ACN 109 814 057

REASONS FOR JUDGMENT

1                     This is an application to transfer three proceedings from the New South Wales Registry to the South Australian Registry of this Court.  The first and second are proceedings to wind up two separate companies – Hardel Investments Pty Limited is one and Avpri Pty Limited is the other – at the suit of Consolidated Byrnes Holdings Limited and Alpha Asset Group Pty Limited.  The third proceeding in time, although logically in a sense it is first, is an application by each of Hardel Investments Pty Limited and Avpri Pty Limited to set aside the statutory demands which are relied upon in support of the creditors’ winding up proceedings.

2                     The matter is very finely balanced.  I have had the benefit of written submissions from both parties before hearing the motion, which have been supplemented by oral submissions today.   I read some evidence directed particularly to the question of transfer.  I have also had regard to the general nature of the evidence as to the underlying disputes.  Without endeavouring to set out each of the full particulars of the nature of the proceedings, they can be summarised in this way.  So far as the application to set aside the statutory demands is concerned, firstly there is a question of service of the demands, which may or may not be an appropriate preliminary point, but is at least confined in its operation.  Second, there are issues as to the nature of the underlying foundation for the demands.  Those issues would overlap with the defences to the winding up proceedings. 

3                     The underlying commercial arrangements related to land in Queensland between what might be broadly described as a party or parties in New South Wales, on the one hand, and a party or parties in Adelaide, on the other.  There is a complication in relation to the Sydney party in that there was an assignment from the party said to be directly involved, to the party who has commenced the proceedings for winding up.

4                     There are two individuals who actually conducted the negotiations, one resident in Sydney and one resident in Adelaide.  The question of what other witnesses might be called is not clear at the moment.  Statements have been made from the bar table, particularly on the side of the Sydney parties, without any backup by affidavit at this stage.  It may be that some persons from Melbourne will be called.  That is a neutral circumstance.  It does appear that, in addition to the principal person in Adelaide, evidence in relation to the notices of demand will have to be given by an Adelaide practitioner who is not a servant of the companies involved.

5                     The principles involved in a transfer have been well-rehearsed in the authorities, and the submissions have collected a number of those authorities.  Principal among them, of course, is that of the Full Court in National Mutual Holdings Pty Ltd v Sentry Corporation (1988) 19 FCR 155.  In these matters it is fair to say that the statement of the test is not difficult.  Rather, it is the application of the test in view of the particular elements of the case or cases in question.  There will undoubtedly be inconvenience to one side or the other, depending upon from which Registry the matter is managed, even bearing in mind the availability of telephone and/or video links where appropriate.

6                     Each side says that they have lawyers in their own city which they wish to retain or have retained and wish to keep in the matter, albeit the Adelaide party did initially instruct a Sydney solicitor.  In my opinion, the matter is so evenly balanced that I regard as the tipping point the nature of the proceedings, being ultimately the winding up of companies, the registered offices of which are in Adelaide.  The books of account are in Adelaide and the persons in control of the companies also reside in Adelaide.  I appreciate that that will not always be the governing factor, but in this case it seems to me that where the applicant is seeking to wind up companies, the residence of those companies is, in the end, an important aspect which tips the scales here in favour of Adelaide as a venue.

7                     I mention, although it does not have the same significance, the fact that it is said that one of the underlying agreements identifies the laws of South Australia as the governing law. 

8                     So far as costs are concerned, in my opinion there is no occasion for this to be regarded as anything else but a routine application in case management.  It was evenly balanced and there was nothing unreasonable in the attitude of the applicants in wishing to preserve Sydney as a venue.  I make no special order as to costs.  The consequence is that these costs will be costs in the cause.

9                     Mention has been made of the fact that Consolidated Byrnes Holdings Limited and Alpha Asset Group Pty Limited have not yet completed filing of their evidence in relation to service of the statutory demands, which was required to be completed by 23 May 2008.  I will extend time for the filing of that evidence, for a short period, to enable the evidence as to service to be finalised so that whoever manages the matter in South Australia can, if he is so minded, split the matter to deal with service.  I do not think it is appropriate that I make any order about the balance of the evidence at this stage.  I think it should be brought on for an early directions hearing before the managing judge so that these decisions can be made promptly.

Associate:

Dated:         11 June 2008