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 and the respondent has always carried on business in Sydney. An important factor feature to my mind is that the applicant has already commenced proceedings against Mr Spencer himselt in the District Court of New South Wales, number 5411 of 1994. Proceedings were commenced on 12 September 1994 and Mr Spencer filed a defence on 20 October 1994. So it would seem to me on the face of it oppressive and onerous for the applicant to proceed against Mr Spencer in New South Wales and then against the respondent company on essentially the same cause of action in Victoria. No explanation has been proffered as to why that course was taken. There was some mention of delay and I accept, of course, that delay may be a relevant factor in the exercise of a discretion of this sort. However, this proceeding only commenced in the Victorian registry on 25 October 1994 when the application to wind up the respondent was filed, and the respondent's notice of motion was filed on 2 December. That, in itself, is a period of time of not much more than a month. In the meantime it does not appear that the applicant has engaged on any very substantial interlocutory procedures. The court file indicates that there has only been the formal affidavits filed. There is no prejudice to the applicant in that respect, because once the matter was transferred to New South Wales those affidavits would have precisely the same effect. I will order that the proceeding be transferred to the New South Wales District Registry of this court. I do not think what Mr Cosgrave has said weighs against the making of the usual order that costs follow the event. The applicant took the decision to proceed and contest the respondent's application, notwithstanding short service. No doubt if the application had been dismissed the applicant would have sought its costs and would have received them. I do not think is appropriate to reserve the costs, because the issue of transfer to New South Wales is a discrete issue which will not be dealt with on the general merits of the case. So I order that the applicant pay the respondent's costs of the motion dated 2 December 1994, including today's hearing. Appearances Counsel for the applicant: Solicitor for the applicant: Counsel for the respondent: Solicitor for the respondent: Date of hearing: I certify that this and the preceding three (3) pages are a true copy of the reasons for judgment of his Honour Mr Justice Heerey. Dnt) 1994 Associate P J Cosgrove Arthur Robinson Hedderwicks A M Donald Gledhill Burridge & Cathro 7 December 1994 & JUDGES' CHAMBERS FEDERAL COURT OF AUSRALIA 450 LITTLE BOURKE STREET Be MELBOURNE, 3000 21 December 1994 Sonia Cornale Federal Court of Australia Principal Registry Law Courts Building Queens Square SYDNEY NSW 2000 Dear Sonia, Interstate Trading Co Limited v D & J Spencer Holdings Pty Ltd No. VG 3486 of 1994 Re: Ivo Komlijenovic Ex parte: Official Trustee in Bankruptcy No. VB 1523 of 1994 I enclose copies of the judgments delivered by his Honour Mr Justice Heerey. A diskette record of the catchwords, minutes and reasons for judgment is also enclosed. These judgments are not for general distribution. Regards, avid Brefnan Associate to Heerey J enc.