GALZON PTY LIMITED v DOMINANCE INDUSTRIES PTY LTD [2000] NSWSC 785

New South Wales Supreme Court

CITATION : GALZON PTY LIMITED v DOMINANCE INDUSTRIES PTY LTD [2000] NSWSC 785 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC R400107 HEARING DATE(S) : 26 June 2000 JUDGMENT DATE : 26 June 2000

PARTIES : Galzon Pty Limited (Plaintiff) Dominance Industries Pty Ltd (Defendant) JUDGMENT OF : Adams J at 1

COUNSEL : Mr S M Kettle (Plaintiff) Mr A S Bell (Defendant) SOLICITORS : Walsh & Blair (Plaintiff) Carter Newell (Defendant) LEGISLATION CITED : Jurisdiction of Courts (Cross-vesting) Act 1987 CASES CITED : Bankinvest AG v Seabrook & Ors (1988) 14 NSWLR 711 DECISION : Proceedings to be transferred to theSupreme Court of Victoria; Plaintiff to pay defendant's costs of this application and of the application for adjournment.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADAMS J MONDAY 26 JUNE 2000

46167/00 GALZON PTY LTD v DOMINANCE INDUSTRIES PTY LTD JUDGMENT

1 HIS HONOUR: Proceedings in this matter were commenced in this Court by the plaintiff seeking damages for breach of contract against the defendant, which is also a New South Wales corporation. The defendant seeks orders that the proceedings be transferred to the Supreme Court of Victoria pursuant to s5(2)(ii) of the Jurisdiction of Courts (Cross-vesting) Act, 1987, New South Wales. 2 Essentially such an order will be made where it is required "in the interests of justice". In Bankinvest AG v Seabrook & Ors (1988) 14 NSWLR 711 the Chief Justice said (at p 714) - "...it can be seen to be highly desirable that the judicial administration of the day-to-day working of the cross-vesting scheme is not encumbered by an encrustation of judge-made pronouncements of principles to be applied when considering making transfer orders. It calls for what I might describe as a 'nuts and bolts' management decision as to which court, in the pursuit of the interests of justice, is the more appropriate to hear and determine the substantive dispute." 3 The contract lying at the centre of this litigation was entered into in Victoria and is in terms to be interpreted according to Victorian law and was to be undertaken and completed in Victoria. Underlying the contract was the function of the Victorian Plantations Corporation, as it then was, governed by the Victorian Plantations Corporations Act, 1993. It may be necessary to interpret this Act for the purpose of disposing of the case. 4 As the contract continued the parties undertook negotiations as to its mode of completion. Those negotiations and their effect are in issue. Amongst other things they dealt with potential alternatives for fulfilling the contract involving harvesting activities, also in Victoria. 5 The defendant's plant is situated in Wangaratta and it was the failure of equipment in that plant which, it seems to me, was the starting point of their disputation which ultimately resulted in this litigation. 6 Both parties have read affidavits which identify some of the factual issues in dispute and the witnesses which it is anticipated will be necessary to be called to resolve them. The bulk of witnesses, it seems, will be called by the defendant and I accept that it is in their interest to give evidence in Victoria, more than likely in Melbourne, rather than in New South Wales, more than likely in Sydney. 7 The plaintiff is located in Wagga Wagga where also its main witness resides. Whether the case is heard in Sydney or in Melbourne, it is clear this will be inconvenient. It may be that some additional evidence not yet identified may have to be called by the plaintiff from persons also resident in Wagga or the surrounding district. 8 The plaintiff has submitted that if the case were tried in Wagga Wagga that would be fairer to it than having to undertake the cost and inconvenience of a trial in Melbourne. That may be accepted. However, having regard to the expected length of the trial, whilst accepting that there is a reasonable possibility, if it stayed in this Court, it would be tried in Wagga Wagga, I think in all likelihood it will be tried in Sydney. Accordingly, this consideration is not so weighty as it might otherwise be. 9 However, even if the trial were to be heard in Wagga Wagga, I have no doubt when all relevant considerations are appropriately weighed it is in the interests of justice that this matter should be tried in Victoria. Accordingly, I make the order sought. 10 In my view the appropriate order is that the defendant/applicant should have the costs both of the application for adjournment and today's hearing.