Eclectic Investments v Polymetals Group

CATCHWORDS : PROCEDURE - cross-vesting - application to cross-vest - application to stay proceedings or for court to decline to exercise jurisdiction - whether Supreme Court of Queensland the more appropriate forum - interests of justice - connecting factors - where contract concluded - where breach occurred - balance of convenience - location of relevant witnesses - availability of listing in commercial list in Queensland - not satisfied that Queensland is the more appropriate forum - UCPR r 12.11, Civil Procedure Act 2005 (NSW) s 70, Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) - LEGAL PRACTITIONERS - duties and liabilities - application to restrain solicitor from acting - where solicitor may be witness - whether conduct of party's case could conflict with interests of solicitor - where no evidence that solicitor would not fulfil professional obligations - motion dismissed - Law Society of NSW Professional Conduct and Practice Rules 1995 r 19, Queensland Law Society Legal Profession (Solicitors) Rules 2007 r 13.4

Civil Procedure Act 2005 (NSW) Corporations Act 2001 (Cth) LEGISLATION CITED : Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) Law Society of NSW Professional Conduct and Practice Rules 1995 Uniform Civil Procedure Rules

Australasian Performing Right Association Ltd v Austarama Television Pty Ltd [1971] 2 NSWLR 467 Goldamere v Metso Minerals [2007] NSWSC 980 Hooker Town Developments Pty Ltd v Director of War Service Homes (1973) 47 ALJR 320 CASES CITED : Kallinicos v Hunt (2005) 64 NSWLR 561 Mitchell v Burrell [2008] NSWSC 772 Pearlbran Pty Ltd v Win Mezz No 19 Pty Ltd [2009] QSC 292 Valceski v Valceski (2007) 70 NSWLR 36 Watkins v Christian [2009] QCA 101

Eclectic Investments Pty Ltd (Plaintiff) PARTIES : Polymetals Group Pty Ltd (First Defendant) Polymetals (Hellyer) Pty Ltd (Second Defendant)

COUNSEL : A P Cheshire (Plaintiff) M J Walsh (Defendants)

SOLICITORS : McLachlan Thorpe (Plaintiff) Cooper Grace Ward Lawyers (Defendants)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION COMMERCIAL LIST

2009/298746 ECLECTIC INVESTMENTS PTY LIMITED v POLYMETALS GROUP PTY LIMITED JUDGMENT

1 HIS HONOUR: These proceedings concern a share buy-back agreement made between the plaintiff (Eclectic) and the first defendant (Group) on about 19 October 2007. By that agreement, Group agreed to offer to buy back the ordinary shares held in it by Eclectic (subject to the passing of a special resolution of members of Group approving that buy-back) and Eclectic agreed to accept that offer. Clause 2.3 of the agreement specified that the price for the share buy-back would be $4,912,870 of which $141,810 was to be a return of capital. The price was to be satisfied by a cash payment of $2,736,070 and the entering into by the second defendant (Hellyer) and Eclectic of another agreement known as the "Profit Share Agreement". 2 In essence, Eclectic claims that on the proper construction of clause 2.3, Group was obliged to pay it the full sum of $4,912,870. It is common ground that Group has not paid that full sum and that something of the order of $1,708,183 remains unpaid. 3 As I understand it, Group will say that it is not obliged to pay that balance because part of the consideration (the entry into the Profit Share Agreement) was executed: presumably something in the nature of an accord and satisfaction. 4 In the alternative, Eclectic makes claims based on various implied terms and, in the further alternative, a claim for rectification. 5 What is before the Court today is a notice of motion filed on 17 December 2009 by Group and Hellyer seeking, among others, orders, pursuant to UCPR r 12.11 or s 67 of the Civil Procedure Act 2005 (NSW) staying the proceedings or declining to exercise jurisdiction; alternatively, orders pursuant to s 5 (2) (b) (iii) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) transferring the proceedings to the Supreme Court of Queensland. 6 There is also before the Court Eclectic's notice of motion filed on 1 March 2010 seeking to restrain the defendants' solicitor, Mr David Grace, and his firm, Cooper Grace Ward (CGW), from acting for the defendants. 7 Although it was agreed that, logically, the defendants' notice of motion should be heard first, what has happened, very sensibly, is that the parties have addressed both the notices of motion. These reasons deal with both. 8 What I will call the cross-vesting application is based on principles explained by Brereton J in Valceski v Valceski (2007) 70 NSWLR 36 at [69]. In the interests of economy, I set that paragraph out: [69] Accordingly, the Family Court has accrued jurisdiction, just as does the Federal Court and the High Court, to determine the whole of a justiciable controversy, even though some aspects of it may involve state and not federal law. So long as the controversy arises under the Family Law Act (Cth), it need not be limited to it. Once seized of jurisdiction in respect of a matter arising under the Family Law Act (Cth) - pursuant to the Family Law Act (Cth), s 31(1)(a) - the jurisdiction of the Court extends to the whole of the matter , that is to say, the justiciable controversy, even though its determination requires the application of State law. While there may be a discretion to decline to exercise accrued jurisdiction, it will be an exceptional case in which that discretion can properly be exercised so that the whole of a justiciable controversy is not resolved in the one court.

9 I applied his Honour's reasons in my decision in Goldamere v Metso Minerals [2007] NSWSC 980 at [7] and following. In the interests of economy, again I set out what I then said at [8] to [12]. [8] As his Honour said, the identification of the interests of justice requires a consideration of connecting factors so as to enable the Court to identify the "natural forum" for the resolution of the disputes. On the brief description that I have given, it might be wondered why the Supreme Court of Tasmania is not the natural forum. If that court is the natural forum, and is therefore the more appropriate forum, it is plain that the interests of justice require, in the sense of mandating, that a cross-vesting order be made: see BHP Billiton Limited v Schultz (2004) 221 CLR 400, for example in the reasons of Callinan J at 481 [222].

[9] Once the determination is made that another court is the more appropriate forum, so that transfer is required, the parties have to take that forum as they find it. In particular, as Kirby J pointed out in Schultz at 464 [164], they must take it as they find it "even if it is in certain respects less advantageous...than the [chosen] forum". His Honour was quoting from the judgment of Lord Goff of Chieveley in Connelly v RTZ Corporation Plc [1998] AC 854 at 872.

[10] As his Honour then noted, there is an exception where it is clear that "substantial justice" cannot be done to the plaintiff in what is otherwise "the appropriate" forum. In this case no one submitted that substantial justice could not be done to the plaintiff, either in this Court or in the Supreme Court of Tasmania.

[11] In James Hardie & Coy Pty Ltd v Barry (2000) 50 NSWLR 357, Spigelman CJ said at 361 [7] that, in considering the interests of justice for the purposes of a cross-vesting application, the court should look at the place of the tort. His Honour continued by saying that "Where the place of the tort and the residence of the parties coincide, this will generally be determinative... .

[12] In the present case, as I have indicated, the place of the tort is Tasmania. However, the "residence of the parties" or, to be more accurate, their residences, are scattered across this nation. In Schultz at 468 [170], Kirby J (who had expressly agreed at 465 [165] with the observations of Spigelman CJ in Barry , to which I have referred), expanded upon the observations of the Chief Justice. His Honour said that:

Normally the interests of justice...will require the transfer of proceedings...[to] the Supreme Court of another State or Territory where that court, rather than the court of the forum selected by the plaintiff, is the "natural forum"...Usually that will be the place of the wrong or of the contract or of the operation of the statute sued upon and particularly where that is also the place of the residence of the parties. 10 I should indicate that I am dealing with the application to cross-vest because, as the case was argued, Mr M J Walsh of counsel for the defendants accepted that if I were to come to the conclusion, adopting the language of Brereton J in Valceski, that the Supreme Court of Queensland could not be found to be the more appropriate forum, then there would be no other basis on which the Court should exercise its jurisdiction under s 67 of the Civil Procedure Act 2005 (NSW) to stay the proceedings in this Court. Nor, Mr Walsh accepted, would there be, on that hypothetical assumption, any basis for granting other relief, including declining to exercise jurisdiction, under r 12.11. 11 There was a deal of evidence addressed to the factors that are relevant to the cross-vesting application; and some of that evidence was relevant also to the application by Eclectic to prevent Mr Grace and CGW from continuing to act. 12 As I have indicated, the case is based on a written contract. The evidence suggests that the contract was prepared by CGW in Brisbane, essentially on the instructions of Mr David Sproule, a director of Group, and that when the form of contract was complete so far as Group was concerned, it was sent by Mr Sproule to Mr Clive Carroll, the director of Eclectic, for execution. Mr Carroll said that when he received the documents on 10 October 2007 he executed them and sent them back to Mr Sproule by registered post for execution by Group. 13 For reasons that were not explained in the evidence, the execution on behalf of each party (Group and Eclectic) was dated 19 October 2007. It is a little difficult to see how this could have happened, particularly where the dates have been written in in separate handwriting. The evidence does not show when it was, or by what means, that Group communicated to Eclectic that the share buy-back agreement had been executed by Group.

14 The mechanism proposed by the share buy-back agreement was that Eclectic should make an offer which Group should accept. That was done, and I infer that the offer and acceptance (in each case dated 19 October 2007) was performed at the same time as the execution of the share buy-back agreement. 15 That, I think, is the evidence as to where it was the agreement was made. If it is thought that the act of Mr Sproule in sending the draft contract to Mr Carroll was an offer, then it could be said Mr Carroll's signing it on behalf of Eclectic and sending it back was an acceptance of that offer. Alternatively, it could be said that Mr Carroll's sending back the executed documents was an offer which was accepted by Group in the manner that I have indicated. On that basis, the contract would be made when and where Group communicated its acceptance to Eclectic; and, as I have said, there is no evidence of when or how this occurred. 16 For these somewhat long-winded reasons, I do not think that the evidence enables a conclusion to be drawn with any degree of certainty as to where the agreement was made. 17 The share buy-back agreement specifies a "governing law" in clause 4.1. By that clause, the agreement is "to be construed in accordance with the laws in force in Queensland and the parties submit to the jurisdiction of the Courts of Queensland". As Mr A P Cheshire of counsel for Eclectic pointed out, the choice of law is not a matter of enormous significance in this case because, to the extent that the questions fall to be resolved according to the general law, it is the general law of Australia; and to the extent that considerations of statutory law are relevant, the statute which requires consideration is the Corporations Act 2001 (Cth). 18 Turning to the question of the place of breach, the breach asserted is that, on the proper construction of the contract either as it stands (including by that reference to terms that Eclectic says should be implied) or as it is reformed, Group failed to make all payments due under it to Eclectic. 19 On that basis, since Eclectic is incorporated and has its place of business in this State, the breach took place in this State. That is because, the contract being silent on that point, the obligation of Group to make payments (assuming that it has not discharged all its obligations) is to make them where Eclectic is to be found. Thus, to the extent that that somewhat formal consideration is relevant, it suggests a connection with this State. 20 Other matters that require consideration relate to the convenience of conducting the proceedings in one jurisdiction or the other. For example, if the proceedings are conducted here, it may be that witnesses will have to come from Queensland to Sydney to give evidence; and if proceedings are conducted in Queensland, it is certain that a witness will have to travel from Sydney to Queensland to give evidence. 21 The evidence that is likely to be given will relate both to the factual matrix (if I may call it that) - considerations relevant both to construction and implication - and to corresponding contractual intention - in relation to rectification. It seems to be fairly plain that the agreement (perhaps I should say the consensus) was negotiated between Mr Carroll for Eclectic and Mr Sproule for Group. Mr Carroll lives and works in Sydney (although he travels around Australia in the course of his duties) and obviously enough would prefer to give evidence in Sydney. 22 Mr Sproule lives in a place called Meerschaum Vale in northern New South Wales and works there and in Brisbane. It appears that he too travels around Australia in the course of his duties. Meerschaum Vale is about 20 kilometres distant from Ballina and about 210 kilometres distant from Brisbane. Thus, if Mr Sproule is to give evidence, he has to proceed either by driving to Brisbane (there being no direct flight from Ballina to Brisbane) or by driving to Ballina and catching a plane to Sydney (there are direct flights from Ballina to Sydney). 23 Group has its office in Samford, a suburb of Brisbane. Those offices are located about 21 kilometres distant from the Supreme Court of Queensland. No doubt, if Mr Sproule were working at Samford, it would be convenient for him to travel those 21 kilometres to the Supreme Court of Queensland rather than the substantially greater distance to this Court. As I have said, the evidence is that Mr Sproule works both from home and at Sanford; and that, in addition, he travels around Australia. 24 If matters went no further, it would not be possible to conclude that the Supreme Court of Queensland is the more appropriate forum for the conduct of these proceedings. However, Mr Walsh pointed to other matters which he submitted showed that it was. There was evidence from a Ms Neesha Pierce, a solicitor employed by CGW, as to the witnesses who may be called in Group's case. Ms Pierce asserted that those witnesses could well include a Mr Brent Ducker, and a Mr Cameron Bradley. Mr Ducker is or was an accountant in the firm of Ernst & Young who gave tax and other advice to Group in connection with the transaction. He is resident, and I assume works, in Brisbane. 25 Mr Bradley is also an accountant. At the relevant time he was either a principal or an employee of a firm known as Pitcher Partners. He provided audit and related services, in particular relevant to the accounts upon the basis of which, it appears, the transaction was structured. He too lives, and I assume works, in Brisbane. 26 Ms Pierce says that she thought it was likely that Mr Ducker and Mr Bradley would be important witnesses to be called by Group. Although Ms Pierce was not cross-examined, I have some difficulty in accepting this aspect of her evidence. To the extent that there are questions of factual matrix, those questions are likely to be dealt with either by Messrs Carroll and Sproule or by the tender of relevant documents. To the extent that there are questions of intention, the relevant intention is not some uncommunicated and private intention but, rather, a corresponding intention "met and satisfied" on each side so as to show "objectively a consensual relationship" (see Street CJ in Eq in Australasian Performing Right Association Ltd v Austarama Television Pty Ltd [1971] 2 NSWLR 467, 473, approved by Menzies J in Hooker Town Developments Pty Ltd v Director of War Service Homes (1973) 47 ALJR 320). 27 It may be that Mr Bradley or Mr Ducker could give evidence of what was said to them by (for example) Mr Sproule; but as I have said, evidence of uncommunicated or private intentions is unlikely to be of any real assistance. 28 I have some doubt that Mr Ducker or Mr Bradley are likely to do more to prove the various documents that they created. Certainly, Ms Pierce said she has spoken to both of them and it is to be noted she has given no indication of either the subjects or the general nature of the evidence that either of these gentlemen might give. 29 Likewise, Ms Pierce says that a Mr Christopher Clarke, the former financial controller of Group, would be a relevant witness. She says that he could give evidence of the preparation of valuations and the financial documentation and of "facts relevant to conversations and negotiations" between Messrs Carroll and Sproule. 30 Mr Clarke is employed in Brisbane, and would prefer to give evidence there, understandably enough. The evidence for Eclectic suggests that he has said that he would be prepared to travel to Sydney to give evidence. The evidence for Group suggests that he did not say this. I cannot resolve the controversy because there has been no cross-examination. On the other hand, the evidence for Group does not go so far as to say that he would be unwilling to travel to this State to give evidence. 31 Again, I think, the likelihood that Mr Clarke will give evidence of any significance may be doubted. To the extent that he may be able to give evidence of conversations and negotiations, the general nature of that has not been suggested by Ms Pierce in her affidavits. 32 The other suggested witness is Mr Andrew Lawry. He is the chief executive officer of Group, and lives and works in Brisbane. It is suggested that he too can give evidence as to conversations and negotiations with Mr Carroll. The substance of that, or the general nature of it, has not been disclosed. 33 It is very difficult to make an evaluation of the strength or the likelihood of the relevance of these gentlemen when no detail has been given which would enable any evaluation to be carried out. In the circumstances, whilst I acknowledge the possibility that they may be called, I have difficulty in seeing that they are likely to be witnesses of such significance that they should be regarded as tipping the balance in favour of the Supreme Court of Queensland. 34 I acknowledge that if they are to be called, and if the proceedings continue in this State, there will be additional expense in bringing them here and putting them up (if necessary) whilst they give evidence. But it does not follow from that that the Supreme Court of Queensland is the more appropriate forum. 35 To the extent that the business records of the parties are relevant, then that seems to me to be relevantly a neutral factor. Eclectic has its records in Sydney. Group has its records in Brisbane. There should be little difficulty in the records being discovered (presumably electronically) and produced. 36 In connection with Eclectic's application in relation to Mr Grace and CGW, Mr Cheshire submitted that Mr Grace would be an important witness on the rectification claim. Likewise, he submitted, the person who did a lot of work - a Ms Carly Fradgely, then known as Carly Mann - would be relevant. Ms Mann, as I shall call her for convenience, since that is how she is referred to in the documents, was a graduate who worked under the supervision of Mr Grace. 37 Mr Walsh did not accept that either Mr Grace or Ms Mann would be significant witnesses on the rectification case. Further, he submitted, if they were relevant witnesses then this was a favour that tended to strongly to suggest that the appropriate forum was the Supreme Court of Queensland. On that basis, he submitted, it would not merely be Mr Sproule on one side and Mr Carroll on the other, with the nebulous prospects (my words, not his), of the other witnesses to whom I have referred, but also the need to take evidence from Mr Grace and Ms Mann. He submitted that if this were to be done, it would indicate very strongly factors of convenience suggesting that Queensland is the more appropriate forum. 38 I shall deal with the significance of Mr Grace and his evidence (and likewise Ms Mann) a little later on. However, for reasons that will become apparent, I am at present not persuaded that it is likely that they will be witnesses of significance in the case, even on the issue of rectification. Thus, I do not think that their convenience is a factor to be taken into consideration in considering whether the Supreme Court of Queensland is the more appropriate forum. 39 The question which is to be addressed is, having regard to the factors outlined in the cases, and the evidence to which I have referred (and the other evidence which, although before the Court and addressed in submissions, I have not summarised), what is the "natural forum" for the resolution of the present dispute. 40 In my view, the factors go each way. The consideration that there is some balance of convenience in favour of Queensland is important. However, the consideration that the breach on which reliance is placed occurred in this State is also important. Likewise, although Mr Sproule works in Queensland (and elsewhere throughout Australia) he has chosen to make his residence in this State. 41 That leaves one other matter which I regard as being of significance. The proceedings are in the Commercial List and, if they stay in this Court, they will be case managed by a List Judge from time to time and will be given as early a hearing date as appropriate having regard to the degree of urgency that they possess. Having been entered in this list, they are here in effect as of right, and will remain here unless something happens to justify removing them. If, however, the proceedings are sent to the Supreme Court of Queensland, an application would have to be made to enter them into the Commercial List of that Court. 42 The practice direction relating to the Commercial List (Practice Direction 3/02 dated 26 March 2002) suggests that proceedings may be listed in the Commercial List when the issues are or are likely to be of a general commercial character or arise out of trade and commerce in general, and where they have an estimated trial time of five days or less. Proceedings which fall within the first of these categories include proceedings involving the construction of a business contract or the commercial document. It is clear that the first requirement is likely to be satisfied. However, Ms Pierce says that it is likely the proceedings will take more than five days; she estimates six days. If that is so, then the proceedings would be perhaps unlikely to be entered in the Commercial List, although alternative arrangements could be made, as indicated in the Practice Note, to have the case managed as if it were in the List. 43 Clearly, the proceedings are ones which (leaving aside the cross-vesting application) are appropriate to be heard and managed in the Commercial List of this Court. It is advantageous to the parties to have that done, because the directions to be given by the Court will seek to ensure, so far as possible, that the real issues in dispute are identified and prepared for hearing as quickly and as cheaply as possible. Whilst I do not for a moment suggest that anything different would happen if the proceedings remained in some general list in the Supreme Court of Queensland, nonetheless, I think, the certainty that the proceedings will stay in the Commercial List in this Court as opposed to the possibility that they may not be entered into the Commercial List of the Supreme Court of Queensland is an important factor to be taken into account in considering where lies the outcome of the balancing consideration called for under s 5 (2) (b) (iii). 44 As I have indicated already, the evidence canvassed many other matters and the parties referred to those in their submissions. I do not propose to take further time in going through those matters. It is sufficient to say that, balancing all the matters to which I have referred, including those other matters on which reliance is placed, I am not satisfied that the Supreme Court of Queensland is the appropriate forum. 45 It follows that, in the language of s 5 (2) (b) (iii), that the interests of justice do not require that the proceedings be transferred. 46 I turn to Eclectic's notice of motion. 47 Mr Cheshire suggested that this was a case where the conduct of Mr Grace in particular, and CGW in general, might be called into question so as to raise the possibility that an independent observer would think that the interests of justice might not be served if he, or his firm, continued to act for the defendants in the proceedings. He referred to the decisions of Brereton J in Kallinicos v Hunt (2005) 64 NSWLR 561; and Mitchell v Burrell [2008] NSWSC 772. As his Honour said in the latter case at [20]: I do not accept that the mere circumstance that a solicitor will be a material witness, even on a controversial matter, of itself justifies restraining the solicitor from continuing to act.

48 His Honour referred to the "line" which would be crossed so as to justify restraint and said that this would occur "only when the solicitor has a personal stake in the outcome of the proceedings or in their conduct, beyond the recovery of proper fees for acting…"

49 His Honour said: the relevant stake may not necessarily be financial, but involves the personal or reputational interest of the solicitor, as will be the case if his or her conduct and integrity come under attack and review in the proceedings.

50 Further, as Brereton J pointed out at [24], concerns sufficient to justify restraint might arise where decisions about the conduct of the party's case could conflict with the interests of the solicitor. His Honour instanced decisions whether or not to call the solicitor as a witness, and what would happen if (for example) the evidence of the solicitor conflicted with the evidence of other witnesses called for the solicitor's client. 51 His Honour's approach appears to be accepted in Queensland (if that is relevant). See the decision of Douglas J in Pearlbran Pty Ltd v Win Mezz No 19 Pty Ltd [2009] QSC 292 at [23], [24]. However, as his Honour pointed out, in general the decision should be made only when the relevant facts can be ascertained. 52 Brereton J said in Mitchell at [3] that the "exceptional" jurisdiction to deprive a litigant of the lawyer of its choice should be raised and dealt with as soon as possible. However, as Douglas J pointed out in Pearlbran, it cannot be dealt with until the Court is in a position to obtain the relevant facts. In this respect, see Muir JA, with whom Fraser JA and White J agreed, in Watkins v Christian [2009] QCA 101 at [38]. 53 In this case, despite the submissions of Mr Cheshire, I am not persuaded that it is so likely that Mr Grace and Ms Mann will be called, let alone that their conduct will be called into question in such a way as to raise concerns as to the conduct of the case, as to justify making the exceptional order at this stage that would deprive the defendants of the likelihood of their choice. 54 I do note that both in Queensland and in this State there are professional rules binding solicitors, to the effect that they should not continue to act in a case in which it is known, or becomes apparent, that they will be required to give evidence material to the determination of the contested issues (Rule 19 of the Law Society of NSW Professional Conduct and Practice Rules 1995 in this State and Rule 13.4 of the Legal Profession (Solicitors) Rule 2007 in Queensland). I have absolutely no reason to doubt that Mr Grace, and if she is to be called Ms Mann, would be cognisant of their obligations under the relevant Rules and would perform them. 55 Mr Cheshire pointed to the fact that Mr Grace was the solicitor on the record for the defendants in these proceedings, and thus has an ultimate responsibility for all the documents (including affidavits) filed for the defendants. Again, I have no doubt that Mr Grace understands that if there arises either a situation to which the relevant Rule is applicable, or a situation in which, in his client's interests, he should bow out, that he would take the appropriate decision. 56 In those circumstances, even if there were a real likelihood that Mr Grace was to be called, I do not think that there is a sufficient ground shown at this stage for making the order sought by Eclectic. 57 In short, whilst acknowledging the inconvenience of putting the matter off until more is known about the issues and the evidence, I do not think that there is any basis yet shown for making the order sought by Eclectic. I note, in this context, that at paragraph 55 of his written outline Mr Walsh submitted that the issue should not be determined now but, rather, should be "subject of a contested application at an appropriate time in the future conduct of the matter." It would seem to me to follow that if, on a proper appreciation of the issues and the evidence, the application is renewed, the defendants can hardly complain that it was not raised and dealt with earlier. 58 For those reasons, I order that the defendants' notice of motion filed 17 December 2009 be dismissed with costs, and that the plaintiff's notice of motion filed on 1 March 2010 be dismissed with costs. I order that costs be set off. I stand the proceedings over to the Directions List on Friday next, 16 April 2010.

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