LIGHTSOUNDS P/L v JEFFERS & ANOR [2001] NSWSC 478

New South Wales Supreme Court

CITATION : LIGHTSOUNDS P/L v JEFFERS & ANOR [2001] NSWSC 478 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 1820/01 HEARING DATE(S) : 05/06/2001 JUDGMENT DATE : 12 June 2001

Lightsounds Pty Ltd - Plaintiff PARTIES : Wayne Jeffers - First Defendant Ian David Medland - Second Defendant JUDGMENT OF : Bryson J at 1

COUNSEL : A. Teese - Plaintiff P. Walsh - Defendants SOLICITORS : Duker & Associates - Plaintiff Egans Solicitors - Defendants CATCHWORDS : COURTS and JUDGES - Cross-vesting - Proceedings relating to conversion of goods and goodwill of business in Coorparoo, Q. were transferred to SCQ LEGISLATION CITED : Service and Execution of Process Act 1992 (Cth) Jurisdiction of Courts (Cross-Vesting) Act 1987 CASES CITED : _ DECISION : (1) The proceedings are transferred to the Supreme Court of Queensland.; (2) Costs of the Notice of Motion are defendants' costs in the proceedings.

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

BRYSON J.

TUESDAY 12 JUNE 2001

1820/01 LIGHTSOUNDS P/L v. WAYNE JEFFERS & ANOR

JUDGMENT

1 HIS HONOUR: The defendants have applied by Notice of Motion filed on 19 April 2001 for orders that the proceedings be permanently stayed, alternatively that they be transferred to the Supreme Court of Queensland at Brisbane; and an order for costs. 2 On the first return of the Summons on 2 April 2001, I made some observations and referred to some matters which led me to take under consideration whether I should of my own motion remit the proceedings to the Supreme Court of Queensland under the Cross-vesting Legislation. In those ex tempore observations I incorrectly referred to Pt 10 r 1A of the Rules of this Court; however r 1A does not deal with service of New South Wales process in Queensland, and the effect of s 15(1) of the Service and Execution of Process Act 1992 (Cth) is that service is not restricted to designated classes of cases and there is no requirement for any particular connection between the cause of action and this State for service to be effective in accordance with that Act. 3 On the hearing of the Notice of Motion I have read the affidavit of the first defendant sworn 9 April 2001, the affidavit of the second defendant sworn the same day, the affidavits of Ricki Chisholm sworn on 16 March, 28 March and 12 April, 2001, and the affidavit of Michael Daverne sworn 16 March 2001. The plaintiff's solicitor produced in Court a form of Statement of Claim which he said the plaintiff wishes to obtain leave to file. This made different claims to those in the Summons. It claims against the first defendant $130,000 for a guarantee liability for goods and equipment supplied to Electronic Systems and Engineering Pty Limited ("ESAE"). It alleges that the first defendant was in breach of Fair Trading legislation in respect of many matters, mainly to the effect that he did not disclose to the plaintiff circumstances relating to the business of ESAE. This claim was also put by reference to alleged contractual and equitable duties of good faith and fidelity. It was also alleged that the defendants have in various ways appropriated to themselves interests in the business or goodwill of ESAE and that they have removed from the premises of ESAE various items of property which belong to the plaintiff and that they have let that property out on hire. This claim is expressed as a claim for detention of goods or for their conversion. There are claims for collecting hiring fees, claims for damages, an account of profits, equitable compensation and other accounts and for remedies under Fair Trading legislation. 4 In summary the burden of the plaintiff's claim is that the defendants wrongly appropriated to themselves the goodwill of the business of ESAE, that the plaintiff was entitled to that goodwill because the plaintiff had a charge over the assets of ESAE, and that the defendants have converted or otherwise wrongly dealt with property belonging to the plaintiff which the plaintiff forwarded on consignment for sale by ESAE. Almost all the relevant events and acts complained of occurred in Queensland, mostly in some way related to the conduct of the business of ESAE at Coorparoo, Queensland. The connections with New South Wales which was put forward by the plaintiff's solicitor were that one or it may have been two of the relevant agreements between the plaintiff and ESAE provided for the law of New South Wales to be the governing law of the agreement, that the plaintiff's operations are conducted from its premises in Lewisham, New South Wales and that its executives and principal witnesses, its General Manager, its Managing Director and its Accounts Controller, live in Sydney and work at and from its premises. It was said that there would be inconveniences for the plaintiff in attending to litigation conducted in Brisbane and in giving evidence there. 5 In my view these proceedings have little real connection with New South Wales. They arise out of the operations of ESAE in Queensland and from acts of detinue and conversion in Queensland of goods which the plaintiff consigned to ESAE in Queensland for sale there. In my view there would be great inconveniences for the defendants and some inconveniences for both parties in marshalling evidence, including documents, for a hearing in Sydney; there would be difficulties about the production of documents under subpoena by other persons if that should be required, and the inconveniences of possibly having to attend in Brisbane for hearings of litigation were incurred by the plaintiff when it decided to enter into a piece of business there. The contracts between the plaintiff and ESAE are only marginally involved, although one of the defendants was a guarantor party, and the choice of the governing law has little or no part in the case. 6 In terms of s 5(3) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 I have determined that it appears to me that having regard to the interest of justice it is more appropriate that these proceedings be determined by the Supreme Court of Queensland. 7 I have not yet decided whether there should be an amendment; I will leave that for consideration by the Supreme Court of Queensland, and I will return the draft document, which is not altogether satisfactory, to the plaintiff's solicitor. 8 ORDER: