In the matter of Goldstone Private Equity VCMP LP (ILP2300030)

Category: Procedural rulings

Parties: James Angelis as trustee for the JA Goldstone Carry Trust (Plaintiff)
Goldstone Private Equity VCMP LP (ILP2300030) (Defendant)

Representation: Counsel:
C Gleeson/T Scott (Plaintiff)
P Flynn (Interested Persons)
Solicitors:
Ashurst Australia (Plaintiff)
Herbert Smith Freehills (Interested Persons)

File Number(s): 2025/124805

JUDGMENT – ex tempore (Revised 28 April 2025)

Background

1. By Originating Process filed on 1 April 2025, the Plaintiff, Mr Angelis, as trustee for the JA Goldstone Carry Trust sought an order for the winding up of Goldstone Private Equity VCMP LP (ILP 2300030) (“VCMP”), which is an incorporated limited partnership registered under the Partnership Act 1892 (NSW) (“Partnership Act”). That application was brought, at least in part, on the basis of a breakdown in the relations between the directors and shareholders of that entity. At the time those proceedings were commenced in this Court, it appears that proceedings were also on foot in the Federal Court of Australia (“FCA Proceedings”) raising some similar issues, although VCMP, which was the Defendant to the proceedings commenced in this Court, was not a party to the FCA Proceedings.

2. Subsequently, the Plaintiffs in the FCA Proceedings, WIJOAV Services Pty Ltd and Ms Commins (“FCA Plaintiffs”) brought an application for, inter alia, an anti-suit injunction in the Federal Court of Australia which was resolved on the basis that an undertaking was given that Mr Angelis would apply for the transfer of these proceedings to the Federal Court of Australia.

3. I should pause to note two things about that application. The first is that, by the time that application was brought, developments had occurred in the FCA Proceedings, to which I refer below, which had brought about an increased overlap between the proceedings in this Court and the FCA Proceedings. In particular, the FCA Plaintiffs had taken steps to join VCMP, the Defendant in these proceedings, as a Defendant in the FCA Proceedings.

4. Second, an application in an Australian Court that seeks an anti-suit injunction in respect of proceedings in another Australian Court of co-ordinate jurisdiction is potentially destructive of comity between Australian courts, and of the integrity of the proceedings that will be affected by that injunction. I proceed on the basis that one Australian Court has power to grant an anti-suit injunction in respect of the conduct of proceedings by parties in another Australian Court and, by extension, the other Australian Court also has the power to grant an anti-anti-suit injunction and each Court has power to grant the extended iterations of such an injunction ad infinitum. The reason that course should generally not be taken has been recognised in judgments of the Federal Court of Australia and in this Court, and parties should be conscious of those judgments in bringing applications of the kind here brought by the FCA Plaintiffs.

5. In Wigmans v AMP Ltd [2018] NSWSC 1118 (“Wigmans v AMP”), Ward CJ in Eq (as the President of the Court of Appeal then was) observed at [18]:

“I am of the firm view that, as a matter of policy, this Court [the Supreme Court of New South Wales] should not take steps that may interfere with or undermine the processes of the Federal Court; just as I would expect that judges of the Federal Court would be concerned, as a matter of comity, not to take steps which would interfere or cause interference in the integrity of processes of this Court. In my view, there would need to be powerful reasons given for an anti-anti-anti-suit injunction of the kind that was sought in the notice of motion filed today to be made (just as there would need to be, I would hope, recognised a need for powerful reasons before any anti-anti-suit injunction might be granted in the Federal Court if to do so would affect or undermine the integrity of the processes of this Court).”

6. In Wileypark Pty Ltd v AMP Limited (2018) 265 FCR 1; [2018] FCAFC 143 at [10], Allsop CJ (with whom Middleton and Beach JJ agreed) referred with approval to Ward CJ in Eq's judgment in Wigmans v AMP and also, in the context of a class action, noted that decisions of case management involving issues of complexity were likely not best addressed by applications for anti-suit injunctions and the like. That approach has in turn been approved, in this Court, in Hancock v Rinehart [2020] NSWSC 1853 and in Re Austral Bronze Pty Ltd (No 2) [2020] 149 ACSR 221 at [94]; [2020] NSWSC 1633.

7. The FCA Plaintiffs were here heard as interested persons in the transfer application. Mr Flynn, who appears for them, indicates that they sought the anti-suit injunction in the Federal Court of Australia because they considered that aspects of the proceedings commenced by the Plaintiffs in this Court were destructive of the substratum of the FCA Proceedings. It remains, however, that the proper administration of justice and comity between Australian Courts is not likely to be served by threats of anti-suit injunctions, anti-anti-suit injunctions, anti-anti-anti suit injunctions and the further iterations of applications of that kind, where Australian Courts have the power to transfer proceedings in the interests of justice under the Jurisdiction of Courts (Cross-Vesting) legislation and under s 1337H of the Corporations Act 2001 (Cth) (“Act”), as applicable. A judge of this Court or a judge of the Federal Court of Australia would no doubt have regard to that matter in dealing with an application for an anti-suit injunction; but it is no less a matter to which parties should themselves have regard in the conduct of proceedings.

8. In any event, as events developed, the Federal Court of Australia did not grant an anti-suit injunction against the Plaintiffs that had commenced these proceedings, who gave the undertaking to which I referred above where the overlap between the two proceedings had by then increased; the Federal Court of Australia had indicated that it would likely allocate an early hearing date for the proceedings in a way that would determine the underlying issue between the parties as to the breakdown of their relationship; and the Defendant in these proceedings, VCMP, had then been joined as a Defendant in the FCA Proceedings. In those circumstances, the question now arises, in an application brought by the Plaintiff consistent with his undertaking to the Federal Court of Australia, whether these proceedings should be transferred to the Federal Court of Australia.

Affidavit evidence

9. I should add to my oral ex tempore judgment that the Plaintiff relies on two affidavits dated 17 and 28 April 2025 of his solicitor, Mr Storer, in support of the transfer application. In his first affidavit dated 17 April 2025, Mr Storer refers to the evidence led by Mr Angelis in these proceedings. He refers to the removal of Goldstone Fund Management Pty Ltd as the general partner of VCMP on 1 April 2025, which is contested in the FCA Proceedings. He refers to the commencement of the FCA Proceedings on or about 6 March 2025 seeking relief for alleged oppression, and to the steps taken by the FCA Plaintiffs on 12 April 2025 (after the commencement of these proceedings on 1 April 2025) to join VCMP as the Fifth Defendant in the FCA Proceedings and another entity, Goldstone Private Equity VCLP LP, as the Sixth Defendant in the FCA Proceedings. He also refers to the application brought by the Plaintiffs in the FCA Proceedings seeking, inter alia, the anti-suit injunction to which I referred above, and to orders then made by consent as to the conduct of the FCA Proceedings. He notes the undertaking then given by the Plaintiff in these proceedings to take all reasonable steps to transfer these proceedings to the Federal Court of Australia.

10. Mr Storer also there sets out the basis of the transfer application, now propounded by the Plaintiff and supported by the FCA Plaintiffs, namely that:

“The amendments made by [the FCA Plaintiffs] to the [FCA Proceedings], including the joinder of [VCMP] and the relief now sought concerning their governance and management, mean that both proceedings concern the same underlying controversy: namely, the breakdown in the business relationship between the parties, the allegations of oppressive conduct in respect of the affairs of the Goldstone Companies, and the effect of those matters on the operations of the VCMP and the VCLP.”

11. Mr Storer also referred to the basis on which the Plaintiff in these proceedings had now formed the view that these proceedings and the FCA Proceedings form part of a single controversy, such that the Federal Court of Australia now had accrued jurisdiction over the matters in these proceedings, overlapping with this Court’s jurisdiction in these proceedings, and expressed the view that:

“The existence of a common substratum of factual and legal issues results in these proceedings being related to the [FCA Proceedings] and renders it appropriate and efficient for the proceedings to be heard together in the Federal Court.”

12. By his second affidavit dated 28 April 2025, Mr Storer expanded on the procedural history of the two proceedings.

Transfer application

13. The parties both consider that this application should be determined by reference to s 5 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) (“Cross-Vesting Act (Cth)”) which provides, relevantly, for the transfer of proceedings from the Supreme Court of a state to the Federal Court of Australia where it is otherwise in the interests of justice that the relevant proceeding be determined by the Federal Court of Australia. The parties took the common view that s 1337H of the Act did not apply, by reason of a relatively complex analysis of the position as to a winding up application brought in respect of an incorporated partnership established under the Partnership Act. It is not necessary to determine that question where, as in many applications of this kind, similar issues arise under s 5 of the Cross-Vesting Act (Cth) and s 1337H of the Act, and the discretion which is available under the latter but not the former would not alter the result of this application.

14. Ms Gleeson, with whom Mr Scott appeared for the Plaintiff, also drew attention to matters relevant to this Court's jurisdiction to hear the matter, partly in explanation of why these proceedings were commenced in this Court, where the Plaintiff and his advisers considered there was doubt as to whether the Federal Court of Australia had jurisdiction to hear the matter, at least before the circumstances which now give rise to its accrued jurisdiction arose. I am satisfied that, for the reasons Ms Gleeson points out, this Court had and has jurisdiction to wind up VCMP under Part 5.7 of the Act, which here applies by reason of s 73A and Schedule 1 of the Partnership Act and the Corporations (Ancillary Provisions) Act 2001 (Cth) (*“*Ancillary Provisions Act”). The analysis is complex, but relatively familiar, where similar issues arise in respect of the winding up of incorporated associations and have been addressed in decisions in this Court including QBE Workers Compensation v Wandiyali ATSI Inc (2004) 62 NSWLR 117; [2004] NSWSC 1022 and Re Order of AHEPA NSW Inc [2020] NSWSC 1626.

15. It is also common ground that, as the issues arising in the FCA Proceedings have developed, and by reason of the joinder of VCMP as party to the FCA Proceedings, there is now little or no doubt that the Federal Court of Australia has accrued jurisdiction to deal with the relevant matters, as distinct from jurisdiction conferred on it under the Partnership Act and the Ancillary Provisions Act. The existence of jurisdiction in the Federal Court of Australia appears to have been common ground between the parties and that Court in the discussion in the Court that preceded the acceptance of the Plaintiff’s undertaking in that Court to bring this application.

16. Where the parties have now reached the position they have reached, by the unfortunate route which they have taken to reach it, it is plain that the jurisdiction to transfer the proceedings to the Federal Court of Australia should be exercised. It is not necessary to decide whether there is here a risk of inconsistent findings between the Courts, which may be limited by principles of issue estoppel, although that would in turn be complicated by the question of the parties to the relevant partnerships. It is here sufficient to recognise, as is now common ground, the common underlying issues in the two proceedings and the joinder of VCMP as party to the FCA Proceedings. There is no reason to think that the underlying issues of breakdown of relationship that arise here would not be determined in the FCA Proceedings, or that the relief that is sought in these proceedings could not be granted by the Federal Court of Australia, if these proceedings are transferred to it, in its accrued jurisdiction. In these circumstances, the reason for transfer is straightforward, that otherwise the parties will be put to the costs of conducting two parallel proceedings, and the community will be put to the costs of devoting judicial and administrative resources of the Courts to two parallel proceedings, where the issues can properly be resolved in the one Court in proceedings that would likely be heard together or, as the undertaking given by the Plaintiff appears to contemplate, consolidated in the Federal Court of Australia.

17. For these reasons I make orders 1-3 in the Short Minutes of Order initialled by me and placed in the file. I add a further order 4 that the exhibits be returned. I note paragraphs 5 and 6 of those orders.

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