Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd and Anor [2004] FCA 169

FEDERAL COURT OF AUSTRALIA

Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd and Anor [2004] FCA 169

PRACTICE AND PROCEDURE – application to cross-vest proceedings from Federal Court to Supreme Court – no issues of principle

Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) s 5(4) CONCRETE PTY LTD v PARRAMATTA DESIGN AND DEVELOPMENTS PTY LTD AND GHASSAN FARES N 1509 OF 2003 CONTI J 1 MARCH 2004 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1509 OF 2003

BETWEEN: CONCRETE PTY LTD

APPLICANT

AND: PARRAMATTA DESIGN & DEVELOPMENTS PTY LTD

FIRST RESPONDENT

GHASSAN FARES

SECOND RESPONDENT

JUDGE: CONTI J

DATE OF ORDER: 11 FEBRUARY 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The notice of motion filed 9 February 2004 be dismissed. 2. Costs reserved. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1509 OF 2003

BETWEEN: CONCRETE PTY LTD

APPLICANT

AND: PARRAMATTA DESIGN & DEVELOPMENTS PTY LTD

FIRST RESPONDENT

GHASSAN FARES

SECOND RESPONDENT

JUDGE: CONTI J

DATE: 1 MARCH 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 By notice of motion filed 9 February 2004, the first and second respondents ('respondents') seek a variety of orders relating to the cross-vesting of proceedings N 1509 of 2003 to the Supreme Court of New South Wales. This application is vigorously opposed by the applicant on a number of grounds, primarily on account of the fact that a hearing date was consensually agreed to by both parties and fixed on 2 February 2004 for early April of this year in this Court. 2 The criteria for cross-vesting proceedings from the Federal Court to the Supreme Court of a State are contained in s 5(4) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) ('Cross-Vesting Act'). Although counsel for the respondents did not specifically refer to a subparagraph in s 5(4) of the Cross-Vesting Act on which he relied in his oral submissions on the motion (no written submissions were provided prior to the hearing of the motion, but rather reliance was placed on the affidavit of Benjamin Barrak, solicitor for the respondents, sworn and filed 9 February 2004), his argument broadly outlined leads me to conclude that he relied on sub-par (iii) of par (b) thereof, the full statutory context of which reads as follows: '(4) Where: (a) a proceeding (in this subsection referred to as the "relevant proceeding") is pending in the Federal Court or the Family Court (in this subsection referred to as the "first court"); and (b) it appears to the first court that: … (iii) it is otherwise in the interests of justice that the relevant proceedings be determined by the Supreme Court of a State or Territory; the first court shall transfer the relevant proceeding to that Supreme Court.' 3 The issue therefore arising is whether it is in the 'interests of justice' that the cross-vesting order sought by the respondents ought to be made. 4 The background to this matter, and a summary of the proceedings in the Supreme Court thus far to which counsel for the respondents seeks to have these Federal Court proceedings joined, is given in Mr Barrack's affidavit where the following appears: '2. The subject matter of these proceedings concerns the purchase by the applicant company of the property 5 Laman Street, Nelson Bay, ("the property"), and whether the Applicant has an implied licence to use the copyright in certain plans which copyright is owned by the First Respondent. 3. The circumstances in which the Applicant company acquired this property were by public auction conducted on 7 August 2003. 4. The property was purchased by the Applicant under contract from Anthony Stanislaus Carroll and Ross McDonald who were appointed as trustees for sale by orders of the Supreme Court of New South Wales in proceedings no. 4541 of 02. Messrs Carroll and McDonald were the registered proprietors of the property at the time of sale. 5. The 4541 of 02 proceedings are proceedings in which Mr Carroll and Mr McDonald were appointed trustees for sale and as a result of a dispute between Landmark Building Developments Pty Limited ("Landmark") as Defendant and Toyama Pty Limited ("Toyama") as Plaintiff, in which Toyama sought relief on account of the breakdown of a joint venture agreement between Landmark and Toyama concerning the development of the property by the joint venture. 6. These proceedings are now completed save for a notice of motion filed by Landmark in which Landmark seeks supervisory orders of the court, but seeks no relief against Toyama. So far as Landmark and Toyama are concerned, no further relief is sought by either one against the other in 4541 of 02 proceedings. 7. Ancillary to the 4541 of 02 proceedings is a set of proceedings no. 50099 of 2003 in which Landmark now sues Toyama Pty Ltd, Jeanette Haviland and others alleging breaches of the joint venture between Landmark and Toyama that gave rise to the 4541 of 02 proceedings. These proceedings are presently being case managed by Bergin J in the Commercial List of the Supreme Court of New South Wales. They are next returnable before Bergin J on 13 February 2004. 8. With respect to the proceedings before the Supreme Court of New South Wales, the outstanding issues in these proceedings so far as I am aware relate only to the service of expert reports. The proceedings can thereafter be reasonably anticipated to be allocated a hearing date. 9. Adjunctively to the 50099 of 03 proceedings, Toyama filed an application for consolidation of the 50099 of 03 proceedings with other proceedings alleged against it by Parramatta Design and Developments Pty Limited in the District Court of New South Wales. The application for consolidation was determined by Her Honour Bergin J on 7 November 2003. Her Honour ordered that the proceedings be joined in the same list, but that they would be allocated a separate proceedings no, being proceedings no 50172 of 03. 10. Issues to be determined in the 50099 of 03 proceedings and in the 50172 of 03 proceedings include: - i. the terms of the joint venture agreement between Toyama and Landmark, Haviland and one other.