New South Wales Supreme Court CITATION : SIM v WILLIAMS [2002] NSWSC 37 CURRENT JURISDICTION: EQUITY FILE NUMBER(S) : SC 5809/2001 HEARING DATE(S) : 1/02/2002 JUDGMENT DATE : 1 February 2002 PARTIES : Colin Sim - Plaintiff Paul Williams - Defendant JUDGMENT OF : Bryson J at 1 COUNSEL : D.G. Charles - Plaintiff D.J. Fagan S.C. & M. Walsh SOLICITORS : Colin Biggers & Paisley - Plaintiff Horowitz & Bilinsky - Defendant CATCHWORDS : COURTS AND JUDGES - Cross-vesting legislation - plaintiff applied in NSW against defendant resident here for injunction to restrain breach of covenant in Joint Venture Deed against attacking plaintiff's title to Mining Leases - JV Deed contained Choice of Law for WA law and non-exclusive submission to NSW Courts - defendant brought plaints before WA Mining Warden's Court for forfeiture of leases for non-working - after review of circumstances a Cross-vesting Order was refused. LEGISLATION CITED : Mining Act 1978 (W.A.) Jurisdiction of Courts (Cross-vesting) Act 1987 (N.S.W.) CASES CITED : Bankinvest v A G Seabrook and others (1988) 14 NSWLR 711 DECISION : Cross-vesting refused:; See para [32] IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION BRYSON J. 1 FEBRUARY 2002 5809/01 COLIN SIM v. PAUL WILLIAMS JUDGMENT 1 BRYSON J: These proceedings were commenced on 4 December last. The plaintiff claims remedies against the defendant's proceeding with 22 plaints pending in the Warden's Court in Western Australia which are to be heard at Perth on an appointed day in May 2002. 2 The plaintiff is the registered owner of the mining leases to which the plaints relate and has entered into an agreement made on 29 August 2001 to sell the tenements to West Kimberley Black Granite Resources Pty Limited for $2.75 million. The proposing purchaser is an interest unrelated to either the plaintiff or the defendant in these proceedings. 3 The plaintiff is subject to time constraints for completion of the proposed sale and is not able to proceed to completion while plaints which could conceivably result in orders for forfeiture of the tenements are pending and have not been determined. 4 When proceedings on the plaintiff's summons first came before me on 14 December I granted the plaintiff's application for expedited hearing and set the proceedings down for hearing before me on 13 and 14 February. There is, in my view, a clear case of urgency requiring the plaintiff to seek to have a judicial determination of his claim in sufficient time for the result to be available when the plaints come before the Mining Warden at Perth in May. The urgency arises out of the prospective loss of the commercial opportunity presented by the contract with West Kimberley Black Granite Resources Pty Limited, if the leases are forfeited but also if there is undue delay in achieving resolution of the plaints. 5 The defendant's application to transfer the proceedings to the Supreme Court of Western Australia is grounded on subs.5(2) of the Jurisdiction of Courts (Cross-vesting) Act 1987, particularly the provision in subpara (b)(iii) which requires a Court to transfer the proceedings to relevantly the Supreme Court of Western Australia if it appears to this Court that: "(3) It is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of another State or of a territory". 6 The address required to the interests of justice is not further indicated by the terms of the legislation and is not closely controlled by judicial decisions or appellate authority. 7 I refer to the review of the workings of this legislation of Rogers AJA in Bankinvest v A G Seabrook and others (1988) 14 NSWLR 711 commencing at p 717 but particularly to the passage at p 729 A-B where his Honour addressed the significance of the decision of the litigation requiring the application of legislation special to the proposed transferred jurisdiction. The judgment generally illustrates how much at large are the matters for consideration. 8 In an attempt to discern what relevantly are the interests of justice, it should, I think, in opening be observed that there are several factors which mark the plaintiff's choice of the jurisdiction of this Court as a legitimate choice. 9 The agreement between Mr Sim and Mr Williams is expressed in a somewhat complex way in three different documents, but the matters of principle are established by their Agreement for Sale of Mining Property and Operating Agreement bearing date 7 May 1998. 10 The first agreement bearing that date was, it appears, later replaced by two documents in which the parties bear the same obligations, and the replacement documents also bear the date 7 May 1998 although that date may have been attributed to them on their formation somewhat later. At that time, the mining tenements were owned by interests connected with Mr De Biasi but had been worked under licence by Mr Williams, relatively intensely until 1992 and again less intensely in 1995, but not later. So there had been at least two years and perhaps longer of inactivity on the site. 11 The parties' arrangements for reviving activity on the site in a joint venture contemplated that Mr Sim would acquire the mining tenements as nominee of Mr Williams in exercise of an entitlement of Mr Williams to exercise an option to acquire them, and that Mr Sim would licence the tenements to Rusdan Holdings Proprietary Limited which was to be a joint venture vehicle and was to be controlled by Mr Sim and Mr Williams. The $1 million required to exercise the option and acquire the titles was to be found by Mr Sim. Seemingly he did find that sum as the option was exercised and after some litigation with another interested party in the Warden's Court the tenements were transferred to Mr Sim on 8 June 2000. 12 The provision in the agreements between Mr Sim and Mr Williams which gives rise to the claim in this litigation is found in clause 18 of the first form, Exhibit PW1, in these terms: "The Parties each covenant that as from the Effective Date they will not at any time knowingly do any act, deed, matter or thing whereby the Mining Tenement or any part thereof or any right comprised therein may be forfeited lost, charged or encumbered other than in accordance with this Agreement and further agree that they will not omit or permit to be done any act, deed, matter or thing which is within their reasonable control which might imperil or endanger the title to any Mining Property. The Parties shall each use their best endeavours to obtain extension or renewals of the Mining Tenements and to comply with any new or varied conditions affecting such extensions or renewals in any way" 13 It will be seen that according to the literal terms of clause 18, it restrains each party by covenant from action "at any time". The operation of the restraint is not made coterminous with the operation of other provisions of the agreement by any express words in clause 18 or elsewhere. 14 It is also important to note that times provided for performance of various steps under that agreement were made of the essence by clause 21.3. Clause 25 contains a provision by which the parties chose the laws of Western Australia as the governing law of the agreement, but agreed to submit to the jurisdiction of courts of New South Wales. Clause 25 was in these words: "Governing Law and Courts This agreement shall be governed by and construed in accordance with the laws of Western Australia. The parties will be agreed to submit to the non-exclusive jurisdiction of the courts, State of New South Wales, and all Courts competent to hear appeals therefrom." 15 It will be seen that the agreement to submit to the jurisdiction of the Courts of New South Wales was not expressed to be exclusive of the jurisdiction of any other Court, and there was no promise not to invoke any other jurisdiction. The word used in clause 25 is "non-exclusive" and I do not regard and I was not asked to regard the present application as in breach of clause 25: a party submitting to the jurisdiction here might well ask for an order under cross-vesting legislation in the exercise of the jurisdiction submitted to. 16 Nonetheless the plaintiff's choice of jurisdiction does not lack legitimacy. It is further supported by the consideration that both parties are, according to their summons and appearance, resident in New South Wales and indeed the only other person who thus far is identified as a witness or potential witness in the proceedings is also resident in this State, being a solicitor practising at Neutral Bay. 17 The plaintiff approaches the Court in exercise of his right to do so and to seek justice here, and interests of justice which might move the Court to decide to transfer the proceedings have to be brought into account, I do not say into balance, but have to be appraised with the plaintiff's entitlement to seek justice here as he has. 18 Certainly this is not the only jurisdiction that the plaintiff might have invoked. The jurisdiction of the Supreme Court of Western Australia was available, because the litigation relates to property situated within that State. Further, the Mining Act 1978 of Western Australia by s 132 subs (1)(e) confers jurisdiction on the Warden's Court in relation to matters including "Specific performance of contracts relating to mining tenements or mining", which plainly extends to the present claim, and in the same subsection there is a further and more general conferral of jurisdiction with respect to rights with respect to mining tenements. 19 That is to say, it was open to the plaintiff to seek the substantial remedies claimed here in proceedings before the Warden. I do not know enough about procedure before the Warden in Western Australia to understand whether he could have done so by cross-claims or by fresh application, but there seems no reason to doubt that the remedies now claimed could have been invoked before the Warden and dealt with either at the same time or in some way in conjunction with the plaints which are now pending. However I am not asked to transfer the proceedings to the Warden and I have no power to do so. Although there was some reference initiated by me in the course of argument to the possibility that the Supreme Court of Western Australia or indeed this Court might compel resort to the Warden by simply deferring consideration of proceedings in the superior court, I do not think that it would be appropriate to enter on any such exercise. 20 Considerations of convenience relating to conduct of the trial and attendance of witnesses and the state of preparation of the litigation for hearing in this Court under arrangements made for expedition, and for the hearing to take place at a time later this month, support retaining the proceedings here. There are other considerations. 21 It would, it seems to me, be of considerable value for the court which was to hear and determine these proceedings to have some familiarity with the mining law of Western Australia. It should be supposed that such familiarity is more readily available both to judges and also to legal practitioners in Perth. However the central questions in the case do not appear to me to revolve around the application of mining laws of Western Australia. Knowledge of them is available to litigants here, perhaps with research and perhaps assisted by consultation with expert practitioners. 22 There are no pleadings in this litigation but the positions of the parties appear, at least in a broad way, from the matters which have been raised in their affidavits. I have also had the assistance of an outline of the proposed matters of defence by the defendant's leading counsel in the course of presenting this application. I am not seeking to state fully what he will put in issue but the issues include defences to the effect that, on the true meaning and operation of the party's contractual documents and in the events which have happened, Mr Williams is no longer restrained by clause 18 from lodging complaints or from competing for title to the leases because the agreement in the party's contractual documents has been performed so far as it can be, but in large part cannot now be performed, that the parts of their agreements which involve continuing cooperation either relate to events times for the performance of which were fixed and were of the essence are now past, or relate to obligations which have been mutually abandoned or (in what may be another interpretation of the same events) have been repudiated in repudiations which have been accepted. 23 The defendant's position also includes contentions relating to the operation in time of restraints in clause 18 and their relation to other provisions of the parties' contractual documents. 24 The plaintiff claims specific performance of clause 18 and that claim naturally directs attention to whether the whole of the party's contractual arrangements can be specifically performed and are suitably the subject of a judicial order for specific performance. It seems to be the position according to the plaintiff's case, that everything of substance except clause 18 has perished in one way or another so that there is nothing else to be enforced or capable of enforcement by an order for specific performance. It seems to be involved in the plaintiff's case that the covenants in clause 18 are perpetual, and are not inter-related with the underlying purpose which it might be supposed they are intended to serve as ancillary to effectuation of what were initially the principal parts of the relationship. The somewhat arresting words "will not at any time" may not dispose finally of consideration of how long clause 18 was to operate. 25 I will say parenthetically that at a logically later point in time there may arise for consideration whether, if clause 18 on its true meaning is perpetual in its operation, it is appropriate to enforce it by injunction in circumstances where no other part of the party's arrangements is to be enforced. The passage of time, the passing of the opportunity to perform other acts under the agreements and the plaintiff's course in seeking to dispose of the mining tenements in a way inconsistent with further action in the joint venture demonstrate plainly enough that no provision other than clause 18 can be expected to be invoked for enforcement by a party. 26 It was a contention of the defendant's senior counsel that, in addressing the meaning and effect of clause 18 and what may be implied in its terms, it is necessary to bring to bear an understanding of the mining law of Western Australia and generally the operation of public policy in that law. Defendant's senior counsel also told me that it intended to rely on the question whether the provision of clause 18 was an unreasonable restraint of trade. That question, of course, involves the application of the law of Western Australia. 27 Another matter of defence to which he referred was a prospective defence against the claim for injunction of want of clean hands, which he contended arose out of Mr Sim in his turn, later than Mr Williams, bringing some pending plaints for forfeiture of the leases through the medium of a company to which it is alleged he is related. 28 I well see that an address to some matters of defence may require an understanding of the mining law of Western Australia, at least in some significant respects, but I have seen nothing to indicate that any truly recondite element of that law may be involved or that there will be any special difficulty in gaining access to necessary learning by study of the legislation and case law. Insofar as a prediction can be made, it does appear to me that close familiarity with the mining law of Western Australia will not be a prominent factor in resolution of the issues. 29 I have not been referred to any element in the contract law of Western Australia which it will be necessary to apply and can be expected to be significantly different or different at all from the law of this State, nor have I been referred to any significant departures in the law relating to the grant of injunctions or remedies of specific performance. 30 Counsel also pointed out, in my view correctly, that there are procedural advantages in the exercise of the jurisdiction of the superior court taking place in Western Australia in relation to any control which might require to be exercised over proceedings in the Warden's Court and also that there are, or at least in concept there may be procedural advances in relation to any appeal which may become necessary against a decision at first instance here, and the interaction of proceedings of appeal with the now fast approaching hearing in the Warden's Court at Perth. These are relevant considerations which I do not disregard. 31 Overall, I see no strong factor relating to the interests of justice which appears to me to require the Court to intervene and to override the legitimate choice of jurisdiction which the plaintiff has made or to depart from the agreement to submit to jurisdiction here which the parties expressed in their contractual documents. There are indeed respects in which the interests of justice would be served by transfer of the proceedings to Western Australia, but I do not see them as, on the whole, outweighing the matters to which I have already referred which support the plaintiff's choice and support maintaining the course which the court has already established by directions for a hearing later this month. 32 The order is: (1) The defendant's notice of motion 14 December 2001 is dismissed with costs. (2) The plaintiff's notice of motion dated 18 January 2002 is adjourned to Friday, 8 February 2002 at 9.30am before the Registrar. (3) The defendant's cross-claim is to be filed and served on or before 8 February 2002, I dispense with verification. (4) I direct that the defendant file and serve points of defence on or before 8 February 2002. (5) I direct that any further affidavit relied on by either party at the hearing be filed and served on or before Monday 11 February 2002. ********** Last Modified: 03/05/2002 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.