Wiggett v Stone [2022] NSWSC 771

Wiggett v Stone [2022] NSWSC 771

The interests of justice did not require transfer because the liquidator's insolvent trading claims and the matrimonial property dispute were not sufficiently intertwined; there was no risk of conflicting orders and only a limited risk of conflicting factual findings; the Family Court proceedings were not far advanced; transfer would delay and increase the cost of the liquidator's proceedings; and that delay and cost would adversely affect the liquidation and unpaid creditors. Mr Wiggett therefore failed to discharge his onus, and the transfer application was refused.

Jurisdiction
Australia
Judgment Date
10 June 2022
Procedural Posture
Application to Remove District Court Proceedings to the Supreme Court and Transfer Them to the Federal Circuit and Family Court of Australia / Determination of Opposed Application; Principal Judgment
Outcome
The application was refused and the proceedings were dismissed.
Legal Topics
['cross Vesting and Transfer of Proceedings' 'insolvent Trading' 'liquidator Claims' 'matrimonial Property Proceedings' 'interests of Justice' 'costs Follow the Event']
['civil Procedure' 'corporations Law' 'family Law' 'courts and Judges'] ['cross Vesting and Transfer of Proceedings' 'insolvent Trading' 'liquidator Claims' 'matrimonial Property Proceedings' 'interests of Justice' 'costs Follow the Event']

Case Brief

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Procedural Posture

Application to Remove District Court Proceedings to the Supreme Court and Transfer Them to the Federal Circuit and Family Court of Australia / Determination of Opposed Application; Principal Judgment

Legal Issues

  1. 1 ['Whether the Supreme Court should exercise its discretionary power under s 140 of the Civil Procedure Act 2005 (NSW) and s 1337H of the Corporations Act 2001 (Cth) to remove the District Court insolvent trading proceedings and transfer them to the Federal Circuit and Family Court of Australia.' 'Whether the interests of justice required transfer having regard to the relationship between the insolvent trading proceedings and the matrimonial property proceedings.' "Whether the risk of overlapping evidence, conflicting factual findings, duplication, cost and delay justified transfer despite the liquidator's opposition and the interests of unpaid creditors."]

Ratio Decidendi

The interests of justice did not require transfer because the liquidator's insolvent trading claims and the matrimonial property dispute were not sufficiently intertwined; there was no risk of conflicting orders and only a limited risk of conflicting factual findings; the Family Court proceedings were not far advanced; transfer would delay and increase the cost of the liquidator's proceedings; and that delay and cost would adversely affect the liquidation and unpaid creditors. Mr Wiggett therefore failed to discharge his onus, and the transfer application was refused.

Court Disposition

The application was refused and the proceedings were dismissed.

Orders

  • ['The proceedings must be dismissed.' "Under r 42.1 of the Uniform Procedure Rules 2005 (NSW) costs follow the event, Mr Wiggett must thus pay the liquidator's costs, as agreed or assessed. Unless the parties approach to be heard within 7 days, that will be the Court's order." 'If there is any dispute they should...