Interstate Trading Co Ltd v. D & J Spencer Holdings P/L [1994] FCA 1016

JUDGMENT No. 0/69 9,

IN- THE FEDERAL COURT OF AUSTRALIA

) ) VICTORIA DISTRICT REGISTRY ) No. VG 3486 of 1994 ) )

GENERAL DIVISTON

BETWEEN:

INTERSTATE TRADING CO LIMITED Applicant - and -

D_ & J SPENCER HOLDINGS PTY LIMITED (formerly Notron (No 196) Pty Limited and before that The Sportsfactory Pty Limited Respondents

JUDGE : Heerey J DATE: 7 December 1994 PLACE: Melbourne

EX TEMPORE REASONS FOR JUDGMENT

Iam satisfied that there is, within the meaning of thé principles laid down in National Mutual Pty Limited v Sentry Corporation (1988) 19 FCR 155 at 162 "sound reason" why this proceeding which was commenced in the Victoria District Registry should be transferred to the New South Wales District Registry. I think I can summarise those grounds by saying that this is really a Sydney case. It arises out of an agreement which was made in Sydney for the satisfaction of a debt due to the applicant by the payment of cash, the assignment of certain debts (or, perhaps more strictly, a direction to the respondent's debt

collector to pay the proceeds of the debts to the applicant) and

the transfer of a motor boat.

The only connection with Melbourne is that the applicant's solicitors carry on practice in Melbourne and that the breach of

the agreement was caused by non-payment of the amount due in

Melbourne. However, it is not in dispute, as I understand it, that the amount claimed was not in fact paid. The respondent's defence alleges certain oral representations, collateral warranties, implied terms, the precise legal characterisation of which is not relevant for present purposes. What is clear, however, is, as Mr David Spencer, the managing director of the respondent, deposes, witnesses to be called on behalf of the respondent are resident in Sydney and even if there is in fact

only one witness, Mr Spencer himself, he lives in Sydney himself