Pace v Antlers Pty Ltd

REASONS FOR JUDGMENT (ex tempore) 1 This proceeding is a winding up summons. It commenced life as proceeding No 2520 of 1978 in the Supreme Court of New South Wales and was transferred to this Court on 20 May 1994 under s 5 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW). At that time there were bankruptcy proceedings pending in this Court involving Mr and Mrs Kavich and ownership of a share holding in the respondent company ("Antlers"). 2 Following the decision of the High Court in Re Wakim; ex parte McNally (1999) 163 ALR 270, the question has arisen whether this Court has jurisdiction in respect of the matter, which, of course, arises under the Corporations Law. 3 The litigation involving Antlers, Mrs Kavich, her husband, George Kavich, her brother, Frank Portelli, the trustee in bankruptcy and the Commissioner of Taxation, has had a long and tortuous history as indicated in my judgment reported at (1998) 80 FCR 485. Reference may be made, in particular, to the chronology which is an appendix to that judgment. 4 When the question of jurisdiction was first raised, it seemed to me unfortunate if the proceeding could not be concluded in this Court. As I understand it, both parties also took this view. Apparently the only issues outstanding are finalisation of the assessment of the liquidator's remuneration and questions of costs, although, in view of the propensity of the parties demonstrated in the past to think of further issues, perhaps this will prove to have been an unduly optimistic view. 5 The parties have made written submissions on the question of jurisdiction but at the end of the day they reluctantly agree that the Court does not have jurisdiction. I have considered, of course, the question of accrued jurisdiction as described most recently in Re Wakim but it suffices for me to say that I agree with the parties that the winding up proceeding is not within the Court's accrued jurisdiction. Of course the fact that the proceeding was transferred from the Supreme Court of New South Wales to this Court on account of the considerations referred to in s 5 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) is no indication that the Judge ordering the transfer took, or would have taken, the view that the proceeding was in respect of a matter which fell within the accrued jurisdiction. 6 I order that the proceeding be permanently stayed for want of jurisdiction. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.