Durie Design Pty Ltd v Chiodo Corporation Operations Pty Ltd [2020] NSWSC 949

Supreme Court New South Wales

Medium Neutral Citation: Durie Design Pty Ltd v Chiodo Corporation Operations Pty Ltd [2020] NSWSC 949 Hearing dates: 14 July 2020 Date of orders: 24 July 2020 Decision date: 24 July 2020 Jurisdiction: Equity - Technology and Construction List Before: Henry J Decision: (1) Dismiss the plaintiff's application for interim relief in the terms of paragraph 5 of its summons filed on 8 July 2020. (2) Pursuant to s 5(7) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW), order that these proceedings be transferred to the Supreme Court of Victoria, and otherwise dismiss the defendant's notice of motion filed on 13 July 2020. (3) Unless either party makes an application for a different costs order within seven days, the costs of the plaintiff's application for interim relief in the terms of paragraph 5 of its summons be costs in the cause. (4) Unless either party makes an application for a different costs order within seven days, the plaintiff to pay the defendant's costs of the defendant's notice of motion filed on 13 July 2020. (5) Note the undertaking of the defendant through its Senior Counsel to not oppose any application for expedition in the Supreme Court of Victoria of the plaintiff's claims as expressed in these proceedings. Catchwords: CIVIL PROCEDURE – Cross-vesting – Transfer to other Supreme Court – whether exclusive forum clause in contract sufficiently certain and complete – where clause does not specify the disputes to which it applies – whether proceedings should be stayed or transferred where contract contains an exclusive forum clause – whether it is in the interests of justice to transfer proceedings – proceedings transferred to Supreme Court of Victoria EQUITY – Equitable remedies – interim mandatory injunction – where plaintiff asserts contract granted licence and entitlement to return of documents upon breach of contract upon failure to pay amounts due – where plaintiff did not adduce evidence of hardship or inconvenience if interim relief refused – where some evidence of inconvenience to defendant if interim relief granted – where interim relief would interfere with the current status quo – interim relief refused Legislation Cited: Civil Procedure Act 2005 (NSW), s 56 Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW), ss 5(2)(b)(iii), 5(7). Uniform Civil Procedure Rules 2005 (NSW), r 12.11 Cases Cited: Ausino International Pty Limited v Apex Sports Pty Limited [2006] NSWSC 1119 Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63 Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57; [2006] HCA 46 Australian Health & Nutrition Association Limited v Hive Marketing Group Pty Limited (2019) 99 NSWLR 419; [2019] NSWCA 61 Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618; [1968] HCA 1 BHP Billiton Ltd v Schultz (2004) 221 CLR 400; [2004] HCA 61 Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499 Castlemaine Tooheys Limited v South Australia (1986) 161 CLR 148; [1986] HCA 58 Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7 FAI General Insurance Co Ltd v Ocean Marine Mutual Protection and Indemnity Association (1997) 41 NSWLR 117 GE Capital Asset Services & Trading Asia Pacific Pty Limited v Rocks Excavations & Plant Hire Pty Limited [2003] NSWSC 99 Global Partners Fund Limited v Babcock & Brown Limited (In Liq) (2010) 79 ACSR 383; [2010] NSWCA 196 Helen M Sedman & Associates Pty Ltd v Morgan Stanley Wealth Management Australia Pty Ltd [2013] VSC 549 James Hardie & Coy Pty Limited v Barry (2000) 50 NSWLR 357; [2000] NSWCA 353 Jardine Lloyd Thompson Pty Ltd v Puri [2016] NSWSC 150 Opes Prime Stockbroking Ltd (in Liq) v Stevens [2014] NSWSC 659 Parnell Manufacturing Pty Ltd v Lonza Ltd [2017] NSWSC 562 Patrick Badges Pty Limited v Commonwealth of Australia [2002] NSWSC 221 Singtel Optus Pty Ltd v Vodafone Pty Ltd (No 2) [2011] FCA 260 Tasmanian Land Company Ltd v Van Dairy Group Pty Limited [2018] VSC 618 Westpoint Finance Pty Limited v Chocolate Factory Apartments Limited [2002] NSWCA 287 Wholesome Bake Pty Limited v Sweetoz Pty Limited [2001] NSWSC 248 World Firefighters Games Brisbane v World Firefighters Games Western Australia [2001] QSC 164 Texts Cited: J D Heydon, M J Leeming and P G Turner, Meagher, Gummow & Lehane's Equity Doctrines and Remedies (5th ed, 2015, LexisNexis Butterworths) Category: Procedural and other rulings Parties: Durie Design Pty Ltd (Plaintiff) Chiodo Corporation Operations Pty Ltd (Defendant) Representation: Counsel: Mr Weinberger (Plaintiff) Mr Dunning QC with Mr Taylor (Defendant)