Talisman Technologies Inc v Queensland Electronic Switching Pty Ltd [2001] NSWSC 512

New South Wales Supreme Court

CITATION : Talisman Technologies Inc v Queensland Electronic Switching Pty Ltd [2001] NSWSC 512 CURRENT JURISDICTION: Equity Division Commercial List FILE NUMBER(S) : SC 55053/01 HEARING DATE(S) : 1 June 2001 JUDGMENT DATE : 21 June 2001

PARTIES : Talisman Technologies Inc -v- Queensland Electronic Switching Pty Limited & Bank of Queensland Limited & Compaq Computer Australia Pty Ltd JUDGMENT OF : Hunter J

COUNSEL : Applicant/First & Second Defendants: H Fraser QC Respondent/Plaintiff: J Sheahan SC & A S Bell SOLICITORS : Applicant/First & Second Defendants: Clayton Utz Respondent/Plaintif: Atanaskovic Hartnell CATCHWORDS : Practice & Procedure - application to transfer proceedings out of juridiction - "interests of justice" ground - overlapping issues with issues in Queensland Supreme Court proceedings - order for early determination of separate question in Queensland proceedings - avoidance of two tribunals exercising jurisdiction over related issues. LEGISLATION CITED : Jurisdiction of Courts (Cross-Vesting) Act 1987 Trade Practices Act 1974 DECISION : The proceedings be transferred into the Supreme Court of Queensland. Costs of the application to be costs in the proceedings.

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION COMMERCIAL LIST HUNTER J THURSDAY 21 JUNE 2001

50053/01 TALISMAN TECHNOLOGIES INC -v- QUEENSLAND ELECTRONIC SWITCHING PTY LIMITED & ORS REASONS FOR JUDGMENT

1 This is an application by Queensland Electronic Switching Pty Ltd (QES) and Bank of Queensland Ltd (BOQ) for the transfer of these proceedings to the Supreme Court of Queensland pursuant to s 5(2) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (the Act). That section is in the following terms: " (2) Where - (a) a proceeding (in this subsection referred to as the "relevant proceeding") is pending in the Supreme Court of a State or Territory (in this subsection referred to as the "first court"); and (b) it appears to the first court that- (i) the relevant proceeding arises out of, or is related to, another proceeding pending in the Supreme Court of another State or Territory and it is more appropriate that the relevant proceeding be determined by that other Supreme Court; (ii) having regard to- (A) whether, in the opinion of the first court, apart from this Act and any law of a State relating to cross-vesting of jurisdiction, the relevant proceeding or a substantial part of the relevant proceeding would have been incapable of being instituted in the first court and capable of being instituted in the Supreme Court of another State or Territory; (B) the extent to which, in the opinion of the first court, the matters for determination in the relevant proceeding are matters arising under or involving questions as to the application, interpretation or validity of a law of the State or Territory referred to in sub-subparagraph (A) and not within the jurisdiction of the first court apart from this Act and any law of a State relating to cross-vesting of jurisdiction; and (C) the interests of justice; it is more appropriate that the relevant proceeding be determined by that other Supreme Court; or (iii) it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of another State or Territory; the first court shall transfer the relevant proceeding to that other Supreme Court." 2 The only basis upon which a transfer of these proceedings is sought is on the "interests of justice" ground. Primarily, what has given rise to this application is the institution of proceedings in the Supreme Court of Queensland by QES for the winding up of Australian Company Number ACN 091 907 443 Pty Ltd (the Company) on the just and equitable ground (the Queensland proceedings). 3 The Company is the subject of a joint venture agreement dated 31 March 2001 (the agreement) between QES, BOQ, Talisman Technologies Inc. (Talisman), Saracen Financial Services (Saracen), Compaq Computer Australia Pty Ltd (Compaq), and the Company. 4 The recitals of the agreement were as follows: "RECITALS A. As at the date of this agreement, the sole shareholder of the Company is …[QES], which holds one Share…[BOQ] has reserved the company name EBANKOZ.COM on behalf of Talisman. B. ...[QES], Talisman, Saracen and Compaq wish to enter into a joint venture pursuant to which each of them will provide certain services and technology to the Company in return for Shares. C. Each of …[QES], Talisman, Saracen, and Compaq have agreed to subscribe for Shares constituting 49.9%, 22.5% and 5% of the Company respectively on the basis set out in this agreement. D. This agreement records the terms and conditions agreed by the Parties for the management and control of the Company and the contribution of certain services and technology to the Company by the Shareholders."