NEW SOUTH WALES COURT ISSUES JUDGEMENT FOR JAMES ANGELIS V/S GOLDSTONE PRIVATE EQUITY VCMP CASE

Australia, May 27 -- New South Wales Land and Environment Court issued text of the following judgement on April 28:

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.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/196807b16a3405f450dc67f3)

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