Southern Equity Pty Ltd v Timevale Pty Ltd [2008] FCA 1395

FEDERAL COURT OF AUSTRALIA

Southern Equity Pty Ltd v Timevale Pty Ltd [2008] FCA 1395

COURTS AND JUDGES – jurisdiction – cross-vesting – whether in interests of justice to transfer proceeding by consent to State court – doubt about whether judicial power of the Commonwealth could be exercised – proceeding may have been a nullity – proposed amendment to remove federal element from proceeding PRACTICE AND PROCEDURE – costs – thrown away by reason of amendment – proceeding transferred to State court – whether Court should order that costs be taxed – file to be forwarded to State court

Judiciary Act 1903 (Cth), s 78B Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), s 5(4) SOUTHERN EQUITY PTY LTD (ACN 006 760 685) v TIMEVALE PTY LTD (ACN 033 364 985)

VID 324 of 2006

GRAY J

3 SEPTEMBER 2008

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 324 of 2006

BETWEEN: SOUTHERN EQUITY PTY LTD (ACN 006 760 685)

Applicant

AND: TIMEVALE PTY LTD (ACN 033 364 985)

Respondent

JUDGE: GRAY J DATE OF ORDER: 3 SEPTEMBER 2008

WHERE MADE: MELBOURNE

THE COURT NOTES that the applicant, by its counsel, undertakes to consent to an order in the Supreme Court of New South Wales that the costs the subject of para 4 of the orders be assessed and payable forthwith. BY CONSENT, THE COURT ORDERS: 1. That the date fixed for the trial of this proceeding, 3 September 2008, be vacated. 2. That the applicant have leave to file a further amended application and further amended statement of claim in the form tendered to the Court this day. 3. Pursuant to s 5(4) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), that the proceeding be transferred to the Supreme Court of New South Wales. 4. That the applicant pay the respondent's costs thrown away by: (a) the filing of the further amended application and further amended statement of claim; and (b) the vacation of the trial date.