No& Yor Generel Deskatouh on PRACTICE AND PROCEDURE - alleged misrepresentation, fraud and breach of contract - contract to purchase brick-making machine - respondent's application to transfer proceedings from Perth to Sydney - witnesses in both States - machine in Sydney - contract formed in Sydney broken in Western Australia - balance of convenience equal - need to demonstrate a manifest balance of inconvenience to justify transfer. Trade Practices Act 1974 s.52 s.53C Sale of Goods Act 1983 s.14(1) Hodder v Australian Workers Union (1984) 4 FCR 541 GERALD CAREW MOSS v BERGOOD PTY LTD NO. WAG 106 of 1986 FRENCH J. 19 FEBRUARY 1987 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION wee we ww NO. WAG 106 of 1986 BETWEEN: GERALD CAREW MOSS Applicant and BFRGOOD PTY LTD Respondent MINUTE OF ORDER JUDGE MAKING ORDFR: FRENCH J. DATE OF ORDER: 19 February 1987 WHERE MADE: PERTH THE COURT ORDERS THAT: l. The motion is dismissed. 2. Respondent to pay Applicant's costs of the motion. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COUPT OF AUSTRALIA WESTEPK AUSTPALTA DISTRICT REGISTRY GENEPAL DIVISTON eee NO. WAG 104 c£ 1986 BCTWERHEPF Ns GEPALD CAREY NOSS Applicant and PEPGOOD PTY LTD Pespondent CORAM: FRENCH J. 19 FEPRUARY 1987 EX TEMPOPT. REASONS FOP JUDGMENT This application was instituted on 30 October 1986 in the Western Australian District Pegistry. By it, the applicant claims damages against the respondent for contraventions of ss. 52 and 53C of the Trade Practices Act 1974. The contraventions are said to arise from representations made by the respondent to the applicant in connection with the sale to the applicant of a TDN-6 diesel traller-mounted brick-maker. The applicant also alleges fraud and breach of contract on the part of the respondent and claims damages which, [ am informed by counsel, will be in the vicinity of $40,000. The respondent moves the court for an order that the proceedings should be transferred to the Federal Court of Australia, Sydney Registry. The statement of claim filed in these proceedings indicates that the respondent 1s and was at all material times a company incorporated in New South Wales and carrying on the business of the manufacture, sale and supply of goods, namely the brick-mraker in question. A written agreement was said to have been entered into between the applicant ane the respondent with a view to the supply of the brick-maker to the applicant for a total purchase price of $31,600. Various representations were said to have been made by the respondent prior to the formation of the agreement in relation to the performance characteristics of the brick-maker, and in particular its production rate. Those representations are said to have constituted conduct which is misleading and deceptive in trade and commerce in contravention of s.52 of the Trade Practices Act. Alternatively, they are said to have been made fraudulently. Alternatively it 1s alleged that there was an implied condition of the contract of sale that the brick-maker should be of merchantable quality pursuant to s.14(2) of the Sale of Goods 3. Act 1985 and that 1t should be reasonably suiteble for naking bricks under the conditions of 1tsS operation pursuant to s.14(1) of that Act. In an affidavit Filed 1n support of its application to have the matter transferred to the Sydney Registry, the respondent by its solicitor, says that all relevant witnesses for its case are present in Sydney, including experts who are familiar with the construction and manufacture of the brick-maker. In particular it 1s said, that Mr Rernard Marriage, who was subcontracted to design the brick-maker and build its chassis and cylinders, would be available in Sydney to give evidence on the allegation by the applicant that it was unfit for its purpose and was of unmerchantable quality. The brick=maker 1S situated in Sydney, having been returned there by the applicant's financier who took possession of the machine. It 1s stored with a company called Pason Pty Limited, which bought from the respondent the rights' to manufacture the brick-maker. It 1s further pointed out, that the contract to purchase the brick-maker was formed in Sydney, beina the place at which the applicant's offer to purchase was accepted and that prior to the date of contract, the applicant had attended at the respondent's factory at Harbord in Sydney for a demonstration. enenten en mimes oe 4, I am told by Mr Doherty, counsel for the applicant, that it 1s anticipated that there would be at least two witnesses called for the applicant both of whom reside in Sydney. The affidavit contends that the cost and tnconvenience to the respondent in continuing the proceedings in Perth greatly outweighs the disadvantage to the applicant, if any, should the proceedings he transferred to Sydney. In an answering affidavit, a solicitor employed by the solicitors for the applicant, savs that all relevant witnesses for the applicant are presently in Perth, including engineering experts who have prepared a report analysing the performance of the brick~making machine to establish its production capabilities. There 1s also resident in Perth a bricklayer who placed a large order with the applicant, so it is said, for the supply of bricks which was subsequently cancelled when the applicant was unable to deliver within the specified period. Two other persons, a Mr Basten who regularly assisted the applicant in the operation of the brick-maker and a Mr Keefe who constructed modifications to the machine 1n an attempt to increase 1ts capacity, are also located in Perth. It 1s contended further in the affidavit that the contract to purchase the brick-maker was broken in Western Australia in that it failed to perform in accordance with the representations of the respondent when operated in this State. It will evidently be unnecessary [From the applicant's point of view to have the machine tested in Western Australia as 1t was so tested by independent engineers about four months after purchase. The applicant, who resides in Perth, 1s said as a result of the alleged failure in performance of the brick-maker, to have been reduced to impecunious circumstances and would find it a burden to attend court in New South Wales with his witnesses. The costs and inconvenience to the applicant involved in remitting the action to the Sydney Registry are therefore said to greatly outweigh the disadvantage, if any, to the respondent. The facts disclose, as indicated on the two affidavits, inconvenience arising to hoth parties in the event that the application proceeds to hearing in a forum other than that desired by the parties respectively. Plainly enough, 1f the application proceeds in Perth, the respondent will be disadvantaged. Its witnesses are based in Sydney, 1t has instructed counsel in Sydney, although that is a matter of choice, and it would be necessary for it to bring these people to Perth with all the attendant expense involved. On the other hand, 1£ the action is transferred to Sydney, 1t is plain that there will also be substantial inconvenience suffered by the applicant. 6. While it is difficult in these circumstances to enter into any realistic assessment of the comparative weight of the anconvenience to be suffered by either party, 1t seems to me on the materials presently before me that the balance of convenience, 1f anything, rather tends to favour the applicant. However, even assuming that the balance of convenience or inconven1ience 1s equal as between the narties, the relevant and accepted princinles governing applications for change of venue in such circumstances would militate against my acceding to the respondent's motion in this case. I will adopt the general principle enunciated in Hodder v Australian Workers Union (1984) 4 FCR at 541 and accept that 1t 18 necessary, in order to justify a change of venue, that there should be demonstrated a manifest balance of convenience in favour of the change, and that the Court should not lightly accede to altering the forum of choice of the applicant, given of course that the choice 1s neither arbitrary nor capricious, and certainly that cannot be said of the choice of forum in this particular case. Therefore, accepting as I do that there will be some inconvenience to the respondent in the matter proceeding in the Perth registry, I will nevertheless dismiss on the basis of the accepted principles, the motion for change of venue. In doing so, of course, J do not dismiss the possibility that the inconvenience may be mitigated by steps, if it should be necessary and economical to do so, to be taken to take some of the evidence in 7. the case in New South Wales, but that 1S a matter that can be dealt with when the action 1s further progressed and the partics are in a position to know precisely which witnesses they would wist to call and what matters are properly in issue between them. My crder will be that the motion is dismissed. I certify that this and the preceding six (6) pages are a true copy of the Reasons for Judgment herein of his Honour Mr Justice French. Associate: Miyabth bh nclererr Nate: 4 Math /9€ 7. Counsel . for the applicant : Mr P. Doherty instructed by Northmore Hale Davy & Leake . for the respondent : Mr M. McPhee instructed by McPhee and Meyer Date of Hearing: 19 February 1987 Date Judgment Delivered: 19 february 1987 pete -