Australian Commercial Research and Development Ltd v ANZ McCaughan Merchant Bank

Stay of proceedings - lis alibi pendens 10Mr Crosher's application for a stay of the New South Wales proceedings, pending the discontinuance, stay or determination of the Italian proceedings, is not advanced on the basis that New South Wales is an inappropriate forum - to the contrary, he contends that New South Wales is the appropriate forum and has sought a stay of the Italian proceedings on that footing - but on the basis that having instituted proceedings in Italy, it is vexatious and oppressive for Mr Cocco to maintain proceedings with respect to the same matter in New South Wales. However, Mr Crosher does not seek a permanent stay of these proceedings, nor an anti-suit injunction in respect of the Italian proceedings (by which I am not to be taken as suggesting that the Court necessarily could or would have granted one). Both parties agreed that the applicable principles on this application were those stated by Lockhart J in Sterling Pharmaceuticals Pty Ltd v Boots & Co (Aust) Pty Ltd (1992) 34 FCR 287, to which reference was made by the High Court in Henry v Henry (1996) 185 CLR 571, as follows (at 590): Foreign proceedings usually fall for consideration in a context in which they involve the same or related factual issues as those involved in the local proceedings, but not the same legal issue and, perhaps, not the same parties. Even in cases of that kind it may sometimes be appropriate to grant a temporary stay of the local proceedings to allow the factual issues to be determined in the other jurisdiction [See, eg, Sterling Pharmaceuticals Pty Ltd v Boots Co (Aust) Pty Ltd (1992) 34 FCR 287]. There are more compelling considerations in favour of a stay of the local proceedings if, as can happen, there are proceedings in another country which has jurisdiction to entertain those proceedings and the proceedings are between the same parties and with respect to the same issue or controversy. 11Lockhart J (at 294) rejected a submission that the principles relating to the permanent stay of proceedings in Australia where there were other proceedings pending in a foreign country between the same parties for the same cause of action applied to an application for a temporary stay. His Honour said: There is obviously a substantial difference between a motion for a permanent stay or dismissal of a proceeding and a motion for a temporary stay or lengthy adjournment of a case ... The court remains in full control of the proceeding before it when it is stayed only temporarily or where, as I propose, the proceeding will be stood out of the list for a substantial time until later this year. 12Thus, on an application for a temporary stay, the question is not whether the proceedings are vexatious and oppressive. The power of the Court to grant a temporary stay of this kind is an aspect of its general power to control its own proceedings. It is exercisable where proceedings are pending in another court and it is desirable that those proceedings should proceed to their conclusion first. Its exercise is informed by the general principle that it is undesirable that two courts should determine the same dispute, and practical considerations based on commonsense and fairness guide which action should proceed first [L Grollo Darwin Management Pty Ltd v Victor Plaster Products Pty Ltd (1978) 33 FLR 170, 177; Hughes Motor Service Pty Ltd v Wang Computer Pty Ltd (1978) 35 FLR 346; Muller v Fencott (1981) 53 FLR 184, 189; Bond Corporation Pty Ltd v Thiess Contractors Pty Ltd (1987) 14 FCR 193; Sterling Pharmaceuticals, 291; Bella Products Pty Ltd v Creative Designs International Ltd (2009) 258 ALR 538, 543 [22]-[24]. A non-exhaustive list of relevant considerations was provided by Lockhart J in Sterling Pharmaceuticals, as follows (at 291): ● Which proceeding was commenced first; ● Whether the termination of one proceeding is likely to have a material effect on the other; ● The public interest; ● The undesirability of two courts competing to see which of them determines common facts first; ● Consideration of circumstances relating to witnesses; ● Whether work done on pleadings, particulars, discovery, interrogatories and preparation might be wasted; ● The undesirability of substantial waste of time and effort if it becomes a common practice to bring actions in two courts involving substantially the same issues; ● How far advanced the proceedings are in each court; ● The law should strive against permitting multiplicity of proceedings in relation to similar issues; ● Generally balancing the advantages and disadvantages to each party. 13Despite the parties' mutual embracement of Sterling Pharmaceuticals as providing the relevant considerations, the submissions for Mr Crosher included that the institution of proceedings in New South Wales by Mr Cocco, having already instituted proceedings with respect to the same matter in Italy, was vexatious and oppressive; and that Mr Cocco should be required to elect between the two proceedings. In my view, those contentions are not germane to an application for a temporary stay, which assumes that both proceedings will continue and is concerned only with which of them will proceed first. If the institution of the proceedings were vexatious, then they should be permanently, not temporarily, stayed; if the plaintiff should be required to elect, then the election is to abandon one of the proceedings, and the consequence (if Mr Cocco were to elect to maintain the Italian Proceedings) would be the dismissal of the New South Wales proceedings [Australian Commercial Research and Development Ltd v ANZ McCaughan Merchant Bank [1989] 3 All ER 65]. Those remedies were not sought, and the remedy sought - a temporary stay - assumes, as I have said, that the New South Wales proceedings will continue, even if after the Italian proceedings are completed. 14I have nonetheless considered the propositions that the institution of proceedings in New South Wales by the plaintiff, having already instituted proceedings with respect to the same matter in Italy, was vexatious and oppressive; and that the plaintiff should be required to elect between the two proceedings. 15As to the first, the plaintiff invokes Henry v Henry where Dawson, Gaudron, McHugh and Gummow JJ said (at 590): It is prima facie vexatious and oppressive, in the strict sense of those terms, to commence a second or subsequent action in the court of this country if an action is already pending with respect to the matter in issue (66). And although there are cases in which it has been held that it is not prima facie vexatious, in the strict sense of that word, to bring proceedings in different countries (67), the problems which arise if the identical issue or the same controversy is to be litigated in different countries which have jurisdiction with respect to the matter are such, in our view, that prima facie, the continuation of one or the other should be seen as vexatious or oppressive within the Voth sense of those words. 16In that passage, the High Court referred (in note 67) to cases that had held that it was not prima facie vexatious to bring proceedings in different countries [McHenry v Lewis (1882) 22 Ch D 397 (CA); Peruvian Guano Co v Bockwoldt (1883) 23 Ch D 225 (CA); Hyman v Helm (1883) 24 Ch D 531 (CA); Cohen v Rothfield [1919] 1 KB 410 (CA); and Ionian Bank Ltd v Couvreur [1969] 1 WLR 781; [1969] 2 All ER 651 (CA); to which was contrasted Australian Commercial Research and Development Ltd]. The Court did not refer to Societe Nationale Industrielle Aerospatiale v Lee Kui Jak [1987] AC 871, in which the Privy Council, in a Brunei appeal, had applied McHenry v Lewis and Peruvian Guano (at 893-4). If, in the second sentence of the passage to which I have referred, the High Court intended to overrule that long line of authority, we would have the curious position that in closely related areas of private international law, the law of Australia departed from that of England in two respects, in different directions: on the one hand, Australia applies the Voth "clearly inappropriate forum" rather than the Spiliada "more appropriate forum" test, so that an Australian court is less likely to decline jurisdiction on forum non conveniens grounds; yet on the other, Australia presumes parallel proceedings in different jurisdictions to be vexatious when England does not, so that an Australian court is more likely to stay (or restrain) proceedings on lis alibi pendens grounds. 17Subsequent to Henry v Henry, however, in CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345, the High Court referred with evident approval to the English authorities, including Societe Nationale, which their Honours said emphasised the continuing significance of, inter alia, Peruvian Guano Co (at 393): In Societie Aerospatiale, the Privy Council emphasised that the various cases decided in the nineteenth century with respect of vexation and oppression, including Peruvian Guano Co v Bockwoldt (119), have continuing significance for the grant of anti-suit injunctions (120). Those cases establish that the mere co-existence of proceedings in different countries does not constitute vexation or oppression (121). In particular, Peruvian Guano establishes that "double litigation [which] has no other element of oppression than this, that an action is going on simultaneously abroad, which will give other or additional remedies beyond those attainable in [the domestic forum]" (122) does not amount to vexation of oppression. 18The cases referred to in note (121) were McHenry v Lewis; Peruvian Guano Co; Hyman v Helm; Cohen v Rothfield; and Ionian Bank Ltd v Couvreur - the very same authorities that had arguably been overruled in Henry v Henry. Their Honours continued: More recently, in Bank of Tokyo Ltd v Karoon (123), Robert Goff LJ pointed out, correctly, in our view, although without specific reference to underlying equitable principle, that foreign proceedings are to be viewed as vexatious or oppressive only if there is nothing which can be gained by them over and above what may be gained in the local proceedings. On the other hand, they are vexatious or oppressive if there is a complete correspondence between the proceedings or, in terms used in Carron Iron Co, if "complete relief" (124) is available in the local proceedings. 19In this context, there was no reference to what had been said in Henry v Henry, which was in any event obiter. Accordingly, it seems to me that, to the extent that doubt was cast upon the English line of authority by Henry, those authorities have been rehabilitated by CSR v Cigna, and that in Australia, as in England, it is not prima facie vexatious to bring parallel proceedings with respect to the same matter in different countries. 20But even if it be assumed that, as Henry v Henry might suggest, the Australian position were that where proceedings are brought in two jurisdictions with respect to "the same matter" or "the identical issue" or "the same controversy", the continuation of one or the other is prima facie vexatious or oppressive in the Voth sense, it would be necessary to note the following matters. First, the High Court used several terms to describe the requisite degree of connection between the proceedings to attract the proposition: the proceedings must involve "the same matter", "the identical issue" or "the same controversy". Although there is of course a well-established jurisprudence as to what constitutes "the same matter" or "a single justiciable controversy" for the purposes of constitutional law - namely a common substratum of fact - it is not clear that it was intended to import that relatively broad concept into this field of discourse. Use of the term "identical issue" suggests a narrower concept. So too does the earlier paragraph, quoted at [10] above, which suggests that it was not considered that a common substratum of fact alone would warrant a permanent stay of proceedings. 21This accords with the basis on which the courts would require a plaintiff to elect between two parallel proceedings in different jurisdictions. In The Mali Ivo (1869) LR 2 A&E 356, where actions had been instituted in both the High Court of Admiralty and the Austrian consular court of Constantinople, Phillimore J said (at 359) that if he were satisfied "that there was a lis alibi pendens before a tribunal which could afford the plaintiff a complete remedy", then he would be under a "duty either to suspend proceedings in this Court, or to put the parties to their election as to which court they would have recourse to" [see also The Delta (1876) 1 PD 393, 404; McHenry v Lewis, 400; Peruvian Guano Co; The Christianborg (1885) 10 PD 141, 153]. Where there is pending in the local forum a litigation in which complete relief may be had, and a party to the suit instituted proceedings abroad, the foreign suit will generally be regarded as vexatious, and an anti-suit injunction may be granted [Carron Iron Co (1855) 5 HL Cas 416, 437 [10 ER 961, 970]; Wedderburn v Wedderburn (1840) 4 My & Cr 585 [41 ER 225]; McHenry v Lewis]. Thus a plaintiff who initiates proceedings against the same defendant in two separate jurisdictions in respect of the same subject matter is required to elect which set of proceedings it wishes to pursue and, if it elects to pursue the foreign proceedings, to submit to dismissal of the local proceedings [Australian Commercial Research and Development Ltd, 69-73]. Browne-Wilkinson V-C cited (at 70) the following passage from Dicey & Morris, Conflict of Laws (11th ed, 1987) at 395: The court may be asked to stay an action in England, or to enjoin an action abroad, in two distinct situations: first, where the same plaintiff sues the same defendant in England and abroad; and secondly, where the plaintiff in England is defendant abroad, or vice versa. In the first situation it is not likely that the court would allow, except in very unusual circumstances, the continuation of proceedings by the same plaintiff against the same defendant for a similar cause of action in two different jurisdictions. The court would put the plaintiff to his election, and stay the English proceedings or enjoin the foreign proceedings. 22Of this, the Vice-Chancellor said: In my judgment that reflects the position, save that in my view it is not a question simply of a plaintiff applying for a stay of its own action: the action must go. 23The second observation is that the proposition that proceedings are prima facie vexatious or oppressive does not mean that they are in fact vexatious and should be stayed. The effect of the dictum in Henry v Henry is at the highest only that whereas under the English authorities parallel proceedings in different jurisdictions (unlike parallel proceedings within the same jurisdiction) were not prima facie vexatious, so that a party alleging that parallel proceedings in different jurisdictions were vexatious bore the onus of proving that to be so (or, in the words of Jessel MR in McHenry v Lewis, to make out "a special case for vexation), Henry v Henry may have shifted the onus to a party who disputed the prima facie position to establish that the parallel proceedings were not vexatious. As was emphasised in CSR v Cigna, it is well-established that the maintenance of parallel litigation in a foreign jurisdiction is not vexatious or oppressive if it offers remedies or advantages not available in the domestic forum [Peruvian Guano Co, 234; CSR v Cigna, 393; Bank of Tokyo Ltd, 60]. And a court will not readily conclude that the foreign proceedings offer no such advantage [see, for example, Peruvian Guano Co, 232 (Jessel MR), 232-3 (Lindley LJ), 234 (Bowen LJ)]. 24In the present case, there is no identity of issue between the Italian proceedings and the New South Wales proceedings. In the Italian proceedings, the essential issue is whether Mr Crosher agreed to assume personal liability for the obligations of Treadtel International - and perhaps the content of those obligations and the extent to which they remain unperformed. In the New South Wales proceedings, the essential issue appears to be whether Mr Cocco agreed to relinquish his interest in Treadtel International, and (if not) whether he is entitled to have the trust share legally transferred to him and registered in his name. Admittedly there is a common factual context, in the negotiations and agreements struck between the parties during the period 2011-2012, culminating in the Milan meetings on 12 February 2012. But that does not amount to a common substratum of fact, even if that be the relevant test - the existence (or not) of a personal guarantee by Mr Crosher is not a material fact in either Mr Cocco's cause of action or Mr Crosher's defence in the New South Wales proceedings; and the existence (or not) of an agreement by Mr Cocco to relinquish his interest in Treadtel International is not a material fact in either Mr Cocco's cause of action or Mr Crosher's defence in the New South Wales proceedings. No doubt the evidence will to some extent overlap, because the same witnesses will give evidence of the negotiations that culminated in the Milan agreement, out of which both alleged disputed terms arose. But, as this case demonstrates, an overlap of contextual evidence does not mean that there are common material facts, which is the essential test of a common substratum of fact. Whether the Milan agreement included a term by which Mr Crosher personally guaranteed the obligations of Treadtel International is a material fact only in the Milan proceedings, and whether it contained a term by which Mr Cocco relinquished his interest in Treadtel International is a material fact only in the New South Wales proceedings. 25Moreover, in the New South Wales proceedings, Mr Cocco's claim in substance - though not yet fully pleaded - is that the trust share was and is held upon trust for him, and that he is entitled to have it transferred into his name and thereupon to be recorded in the register as the holder. It is a claim to enforce a trust of property situated in New South Wales, against a person resident in New South Wales, in respect of an interest in a New South Wales registered company, and includes a claim for relief under a Commonwealth statute, jurisdiction under which is neither conferred on nor exercisable by the Italian court. The only connection with Italy and the Italian proceedings arises from Mr Crosher's defence, which invokes a term of the Milan agreement. In the Italian proceedings, on the other hand, Mr Cocco's claim is to enforce a term of an agreement said to have been made in Italy, in the context of the winding-up under Italian law of an Italian company. The two proceedings seek quite different relief in respect of quite distinct issues. The Italian proceedings will not resolve any issue that arises in the NSW proceedings, and the NSW proceedings will not resolve any material issue that arises in the Italian proceedings. Although evidence of the Milan agreement will be given, and presumably tested, in both proceedings, and while both Courts may have to make findings of credit based on evidence that traverses the entirety of the negotiations, the Italian proceedings will decide only whether that agreement included the alleged personal guarantee, and the NSW proceedings will decide only whether it contained a term by which Mr Cocco agreed to relinquish his interest in Treadtel International; the credit findings of one court will be irrelevant to the decision of the other. 26Thus each proceeding has a different subject matter, and it is not vexatious for a plaintiff to sue the same defendant in different jurisdictions in respect of different subject matter, as Jessel MR explained in Peruvian Guano Co (at 231): But there is another ground. The Plaintiff says his action in France does not relate to the same number of ships as the action in England does. Mr Joyce puts it that this was a device to escape the rule, but if it does escape it is a very good device. Take this case, a man has a right to six cargoes under the same title. The Defendant has a place of business in England, and a place of business in France. He brings an action for three cargoes in England and three in France. Why may he not do so? He may think he may get sufficient to satisfy a judgment in England for three cargoes, but not for six. You could not stop the action in either country on the ground that the six cargoes were sued for under the same title. He, in fact, brings two actions for two different subject-matters. Now does it make any difference that the action is for six in one country and one in the other? It appears to me it cannot be so. He has a right to sue in each country for a different subject-matter. 27The present case, it seems to me, is a much stronger one. In the case hypothesised by Jessel MR, there was a common substratum of fact - each case depended on the same title. There is no such commonality in this case. Similarly, there was a common substratum of fact in the more recent decision of TS Production LLC v Drew Pictures Pty Ltd (2008) 172 FCR 433, in which proceedings were instituted in both Illinois and Australia claiming copyright in relation to the same film (although the plaintiff in each suit was the defendant in the other). The Illinois plaintiffs sought a stay of the Australian proceedings, which was granted at first instance on the basis that the Illinois plaintiffs had instituted their proceedings in the most appropriate place, given that the film was first published in the United States and had its largest audience there, so that continuation of the Australian proceedings was vexatious and oppressive having regard to the dispute as a whole. On appeal, the Full Court reversed, on the ground that while there was a common substratum of fact, the rights in issue were different: the Australian proceedings concerned rights under the (CTH) Copyright Act 1968, whereas the Illinois proceedings were founded on US statutory and common law. The fact that Illinois was the most appropriate place to consider the US rights did not make Australia an inappropriate forum to consider the Australian rights. 28I accept that in a case, such as the present, where the two proceedings are related but raise different issues, the test on an application for a permanent stay is not simply whether the Australian court is a clearly inappropriate forum for the litigation of the issues involved in the Australian proceedings, but whether having regard to the controversy as a whole the Australian proceedings are vexatious or oppressive in the Voth sense of those terms - namely, that they are 'productive of serious and unjustified trouble and harassment' or 'seriously and unfairly burdensome, prejudicial or damaging' [CSR v Cigna, 401]. However, I do not see how it can be said that the New South Wales proceedings satisfy that description, given the connection of their subject matter with New South Wales, and the plaintiff's acknowledgement that New South Wales is the more convenient forum for the dispute as a whole. While it might be more efficient and economical if all issues could be heard together in the one court - as the evidence of the Milan negotiations would have to be given only once - it is only in New South Wales that that could happen: the Italian court could not resolve all issues between the parties (in particular because it could not grant relief under Corporations Act, s 175), though this Court could do so. On the other hand, it seems very likely that the governing law of the Milan agreement is the law of Italy, where the agreement was made, in which case it might well be necessary to adduce expert evidence of Italian law in proceedings in Australia, which would be unnecessary in Milan. In any event, as the above illustrations show, mere inconvenience and inefficiencies of that kind are not enough to render the pendency of one proceeding or the other vexatious. Having regard to the controversy as a whole, the New South Wales proceedings are not vexatious or oppressive in the Voth sense. Whether the Italian proceedings are (given that it seems that a complete remedy could be had in New South Wales), does not arise on this application, but given the divergence of subject matter of the two proceedings, it is far from clear that they are. 29In any event, as I have observed, the present application is not for a permanent stay, but for a temporary one pending determination of the foreign proceedings, to which different considerations apply, being those stated by Lockhart J in Sterling Pharmaceuticals, as set out above (at [12]). In Sterling Pharmaceuticals, the Australian subsidiary of a United States company (Sterling US) sued the Australian subsidiary of a United Kingdom company (Boots UK) in respect of allegedly misleading and deceptive conduct constituted by a statement made on the packet of one of Boots Australia's products. However, the New Zealand subsidiary of Sterling US had already commenced proceedings against the New Zealand subsidiary of Boots UK in the High Court of New Zealand, in respect of substantially the same facts. Boots Australia moved for a stay of the Australian proceedings, pending the determination of the New Zealand proceedings. While the issues in the two proceedings were not precisely the same, the main issue in both proceedings was the meaning and accuracy of the same impugned statement. His Honour said: So there is a substantial identity of issues in the two proceedings, though the issues in the New Zealand proceedings are wider. However, the resolution of the questions which arise in the New Zealand proceeding concerning the accuracy of the "Nurofen" statement and the medical issue of the comparative tolerability of Paracetamol and Ibuprofen should for all practical purposes solve that issue between them for the purposes of both proceedings. Commonsense leads me to conclude that, unless there is some serious deficiency in the evidence of the unsuccessful party in the New Zealand proceeding, the resolution of issues there should determine the result of those issues in the Australian proceeding... If the Australian proceeding continues in the normal course at the same time as the New Zealand proceeding is being conducted there is likely to be a substantial measure of duplication in the preparation for and the conduct of the final hearing of the two proceedings in respect of the same of substantially the same issues ... Such duplication in the preparation and conduct of the final hearing in relation to medical evidence ... would be likely to be especially burdensome to both parties and their expert witnesses. It is clear that many of the expert witnesses will give evidence in both cases. 30Essentially for those reasons, his Honour concluded that the NZ proceeding, which had been instituted first, should be heard first, while the Australian proceeding should not be stayed but should be adjourned for a lengthy period - nine months - for that purpose. His Honour said: I am alive to the fact that a party who has properly invoked the jurisdiction of an Australian court is prima facie entitled to have his case heard and determined by that court notwithstanding that he institutes proceedings in a foreign court. I have approached the case on this prima facie assumption. However, in all the circumstances, having balanced the advantages and disadvantages to each party in the Australian proceeding, I am satisfied that the interests of justice are best served by acceding to the motion of [the respondent]. I do not think it necessary, however, that the Australian proceeding be stayed even on a temporary basis. I think it preferable that the Australian proceeding be stood out of the list to a date late this year with liberty being reserved to either party to restore the matter to the list on reasonable notice in the event that circumstances change. If the matter is not restored to the list then the court will be able to determine later this year what is the appropriate course to take in the light of the circumstances then existing, including the then position of the New Zealand proceeding. In this way the interests of both parties are best served as well as the interests of justice generally including the interest of the contestants in the New Zealand proceeding. 31Similarly, in other cases in which a temporary stay or adjournment has been granted pending determination of related proceedings in another forum indicate, it has been where the other proceedings have the potential to resolve, or significantly reduce, the issues for determination in the forum, and are more advanced. Thus in L Grollo Darwin Management (at 177), it was concluded that although the institution of proceedings in the Federal Court which involved a question that was already before the Supreme Court of the Northern Territory was not vexatious, there was a duplicity of proceedings in respect of that question, and while it was unnecessary to stay the proceedings, the action in the Territory, which had been instituted first, should proceed first. In Hughes Motor Service, Hughes brought proceedings against Wang in the Federal Court for damages for misleading and deceptive conduct, having previously commenced proceedings in the Supreme Court of New South Wales against Wang and two other defendants. A temporary stay was granted of the Federal Court proceedings, pending determination of the New South Wales proceedings which were further advanced and broader in scope than the Federal Court proceedings, and might resolve the whole dispute. 32In Da Technology Australia Pty Limited and Citicomp Pty Limited v Discreet Logic Inc and Gary Graeme Tregaskis [1994] FCA 958, Gummow J stated there were parallel proceedings in Canada and Australia, and a real prospect that resolution of an arbitration pending in Canada would render moot a large part of the Australian proceedings. His Honour adjourned - but did not stay - the Australian proceedings, to enable first determination of the Canadian proceedings, which were more advanced. In Reinsurance Australia Corp Ltd v HIH Casualty and General Insurance Ltd (2003) 254 ALR 29, Jacobson J declined to stay the Australian proceedings even temporarily but deferred the trial - which was estimated to require some months - until after a similarly lengthy trial of United States proceedings which were likely to resolve a number of relevant issues and very much reduce the hearing time of the Australian proceedings (at 69 [356]-[358]). 33Those considerations are not present in this case. The Italian proceedings are not significantly more advanced than these proceedings. More importantly, there is no prospect that they will resolve or reduce the issues in these proceedings, because the issues are not common. In the Italian proceedings, there will not be an issue as to whether the agreement contained a term by which Mr Cocco agreed to relinquish his interest in Treadtel International; nor will there be a claim for relief by way of a declaration of trust, or an order for transfer of the share to Mr Cocco; nor could there be a claim for relief under Corporations Act, s 175. Likewise, there is no prospect that these proceedings, as presently constituted, will resolve any issue in the Italian proceedings. While the Court hearing the New South Wales proceedings will have to traverse, to some extent, the evidence of the same negotiations, there will be no issue before it as to whether Mr Crosher assumed personal liability for the obligations of Treadtel International. Nor, as things presently appear, will there be an issue as to default by Treadtel International - although if Mr Cocco were to allege that his relinquishment of an interest in Treadtel International was conditional upon complete performance of Treadtel International's obligations, that could arise. 34While there will be an overlap of evidence, as the negotiations that culminated in the agreement will have to be traversed in both proceedings, and this may involve some duplication in preparation, it will be slight and will be limited to the necessity to obtain statements of evidence from the same witnesses - Mr Cocco on the one hand, and Mr Crosher and Mr Mastroianni on the other - in relation to the Milan negotiations. Even so, parts of those negotiations will be relevant only to one case and not to the other. 35In my judgment, no basis for a stay, permanent or temporary, or adjournment, of the New South Wales proceedings has been established.

Pleadings 36Mr Crosher contends that if the proceedings are to continue, they should continue on pleadings. Mr Cocco submits that pleadings are unnecessary, as the key issue is whether there was an oral agreement to the effect that he would relinquish his interest in Treadtel International, and Mr Crosher has already particularised his version of that agreement in his affidavit. At the most, Mr Cocco says that Mr Crosher should file brief points of defence, and the plaintiff then reply to them. 37The originating process claims only an order under Corporations Act, s 175, for rectification of the share register. However, as was submitted for Mr Crosher, taken at its highest, Mr Cocco's interest in the subject share is beneficial, not legal, and under its constitution, Treadtel International is not obliged to take notice of beneficial interests. Thus, before being entitled to rectification, Mr Cocco would have to establish an entitlement to be registered, which would presumably involve an entitlement to have the share transferred into his name. 38It is clear already that the defence will be an agreement to relinquish the beneficial interest. It is also apparent that while both Mr Crosher and Mr Cocco appear to accept that there was an agreement, they differ as to its terms. 39This is exactly the kind of factual dispute that lends itself to clarification and refinement by pleadings. Under the former (NSW) Supreme Court Rules 1970, Pt 5 r 7, the court could, as an alternative to ordering that proceedings commenced by summons continue on pleadings, order that the issues be defined by pleadings; in such cases the term "points of claim" and "points of defence" were sometimes used to recognise the distinction, but the court generally speaking preferred to order that proceedings continue on pleadings, in order to avoid the confusion that sometimes arose and the misconceived view that points of claim were somehow a more summary form than a statement of claim. The distinction between ordering that the issues be defined by pleadings and that the proceedings continue on pleadings is not preserved in UCPR. If pleadings are appropriate, the proper order is that the proceedings continue on pleadings. 40The proceedings should continue on pleadings.

Security for costs 41Mr Crosher seeks security for costs, initially in the sum of $50,000, with liberty to apply for further security. Mr Cocco accepts that he should provide security of $50,000, but submits that that should suffice for the entirety of the proceedings. 42It is not in issue that, Mr Cocco being resident in Italy, the ground for ordering security referred to in Uniform Civil Procedure Rules, r 42.21(1)(a) has been enlivened. Nor is it in issue that an order for security should, as a matter of discretion, be made 43As to quantum, Mr Crosher's solicitor has given evidence of an estimate of costs and disbursements of the Australian proceedings of $139,000. Although it was submitted that this was grossly over-inflated, and that $50,000 is a reasonable amount, the evidence was unchallenged and uncontradicted. However, it was accepted, for Mr Crosher, that $50,000 is a reasonable sum for initial security, which can be revisited at a later stage if necessary. 44As Mr Crosher is content with $50,000 at this stage, and as Mr Cocco is prepared to consent to it, there is no utility in pursuing this issue further at this stage. There will be an order for security to be provided in that sum. In doing so, I do not determine one way or the other whether it should be sufficient to cover the entire proceedings, or whether it is an initial instalment only, but I certainly do not intend to foreclose Mr Crosher from making a further application, given the unchallenged and uncontradicted evidence of his solicitor. The quantum of security can be revisited, if necessary, at a later stage, when the scope and the costs of the proceedings will be much clearer.

Transfer to General List 45Mr Crosher did not press orally the application for transfer to the General List. The Originating Process claims relief under Corporations Act, s 175, and while additional relief will be required to found it, and while other issues will also arise, the matter qualifies for entry in the Corporations List and there is no apparent benefit or utility in transferring it to the General List.

Conclusion 46My conclusions may be summarised as follows: (1)No basis for a stay, permanent or temporary, or adjournment, of the New South Wales proceedings has been established. (2)The proceedings should continue on pleadings. (3)There will be an order for security for Mr Crosher's costs in the sum of $50,000. The quantum of security can be revisited, if necessary, at a later stage. (4)The matter will remain in the Corporations List. (5)Mr Crosher succeeded on the application for security and pleadings, but failed on the stay application, which occupied most of the argument. There should be no order as to costs of the motion. 47The Court orders that: (1)The proceedings continue on pleadings. (2)The plaintiff file and serve a statement of claim by 3 November 2014, and pleading thereafter continue in accordance with the rules. (3)The plaintiff provide security for the second defendant's costs in the sum of $50,000 in a form acceptable to the Registrar. (4)In default of provision of security in accordance with order (3) within 28 days, the proceedings be stayed. (5)There be liberty to apply for further security when the proceedings are set down for hearing. (6)The interlocutory process filed on 15 August 2014 be otherwise dismissed. (7)There be no order as to the costs of the interlocutory process, to the intent that each party bear its own costs. (8)The proceedings be adjourned to 8 December 2014 at 9.45am before Brereton J for directions.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 October 2014