ERG Transit Systems Ltd v Keane Australia Micropayment Consortium Pty Ltd; ERG Transit Systems Ltd v Keane Australia Micropayment Consortium Pty Limited

[38]

iii. By its Cross-Claim, Kamco alleges that ERG Transit breached clause 45.3 of the NTS Subcontract when it was subject to a change in control without Kamco's consent. 18 ERG generally sought to minimise the significance of the many aspects of the proceedings pointed to by Kamco as having 'nuts and bolts' connections with witnesses to be called from Victoria and similar. 19 ERG submitted that a realistic approach to the crucial issue was to regard the litigation as driven by the cross contentions concerning the alleged change in control provision. Essentially it was submitted by ERG that the change in control controversy was so significant that if necessary a separate question regime could be ordered. This it was suggested might put an end to much of the litigation depending upon whom succeeded in the exercise. 20 ERG's submissions unfortunately did not take into account the proposition upheld by Marks v Helliar (1990) 14 Fam LR 276 a decision of Hodgson J. Decision is authority for the proposition that the Cross-vesting Act does not authorise the transfer of part of proceedings. This was because there is no definition of "Proceedings" and the reference in subsection 5 of that Act to "a specific part of the relevant Proceedings" suggested strongly that the power to transfer did not extend to a power to transfer only part of the relevant proceedings. 21 Whilst Hodgson J in Marks was able to circumvent this problem [by utilising the equivalent of Part 6 rule22 of the Uniform Civil Proceedings Rules 2005 which permitted the court should be considered that the joinder of parties or causes of action in any proceedings may embarrass, inconvenience or delay the conduct of the proceedings, to order separate trials or to make such other order as it thought fit] no such route is open to the plaintiff presently. Decision 22 Applying the principles earlier set out in these reasons I have reached the clear conclusion that the interests of justice dictate that both sets of proceedings be determined by the Supreme Court of Victoria. 23 Whilst the ERG submission as to the critical significance of the change in control provision controversy was superficially attractive, standing back from the entirety of the litigation and particularly bearing in mind the above described ruling in Marks, it seems clear that the notion of a particular separate question being first heard in New South Wales [ and arguably thereafter if ERG failed to succeed on that issue, the matter being transferred to Victoria] is misconceived Orders 24 The Court makes the following orders:

ERG Transit Systems Ltd v Keane Australia Micropayment Consortium Pty Ltd; ERG Transit Systems Ltd v Keane Australia Micropayment Consortium Pty Limited - [2009] NSWSC 1296 - NSWSC 2009 case summary — Zoe

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Judgment (42 paragraphs)

Cases Cited (5)

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