Transglobal Marketing Pty Limited v Ferrero Australia Pty Limited [2002] NSWSC 427

New South Wales Supreme Court

CITATION : Transglobal Marketing Pty Limited v Ferrero Australia Pty Limited [2002] NSWSC 427 FILE NUMBER(S) : SC 10956/02 HEARING DATE(S) : 6/5/02;7/5/02 JUDGMENT DATE : 8 May 2002

PARTIES : Transglobal Marketing Pty Limited v Ferrero Australia Pty Limited JUDGMENT OF : O'Keefe J

COUNSEL : Ms L Judge - Plaintiffs Mr S Climpson - Defendants John McCormack, Darwin SOLICITORS : By their agents: Navado Legal, Sydney - Plaintiffs

Teece Hodgson and Ward, Sydney - Defendants CATCHWORDS : Cross-vesting - District Court action, set-off and cross-claim - Test on cross-vesting application - Onus of proof on cross-vesting application - Considerations for exercise of power LEGISLATION CITED : Jurisdiction of Courts (Cross Vesting) Act 1987 ss 5(2), 8(1) District Court Act s145 Bankinvest v Seabrook and ors (1988) 14 NSWLR 711 James Hardie & Co Pty Limited v Barry (2000) NSWLR 357 CASES CITED : Dawson v Baker (?) 120 ACTR 11 O'Hare v DPP [2000] NSWSC 430 Spiliada Maritime Corporation v Cansulux td (1987) AC 460 Oceananic Sunline Special Shipping Co Inc v Fay (1988) 165 CLR 195 DECISION : Relief refused; Summons dismissed; Plaintiff to pay the defendant's costs

- 10 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

O'KEEFE J

8 May 2002

10956/02 – TRANSGLOBAL MARKETING PTY LTD v FERRERO AUSTRALIA PTY LTD

JUDGMENT HIS HONOUR: 1 This is an application pursuant to s 8(1) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 to remove a District Court action (No 1177 of 2002) ("the New South Wales action") into the Supreme Court for the purposes of transferring it to the Supreme Court of the Northern Territory pursuant to s 5(2) of the Courts (Cross-Vesting) Act 1987 for hearing in Darwin. Alternatively, the application seeks to remove the action into the Supreme Court pursuant to s 145 of the District Courts Act. 2 There would be no utility in bringing the New South Wales action into this Court, except for the purpose of transferring it to the Supreme Court of the Northern Territory. If such a transfer were to be refused, then it would follow as a matter of logic that the New South Wales action should remain where it is. Thus, as a matter of logic, the Court should first determine whether (on the assumption that the New South Wales action is already in this Court) it would be transferred to the Northern Territory pursuant to the cross-vesting legislation. I therefore propose to proceed on the assumption that the matter is already in this Court, although that is clearly contrary to the fact. 3 The New South Wales action was commenced in the District Court by Ferrero Australia Pty Ltd ("Ferrero") on 4 March 2002. It is a claim for $76,861.32 and is for goods sold and delivered pursuant to contracts which involved a number of separate deliveries. The contracts were entered into between Ferrero and Transglobal Marketing Pty Ltd ("Transglobal") for the supply of chocolates by Ferrero to Transglobal, with delivery to take place at Lurnea, New South Wales, as well as for other deliveries by direction, to which I will advert later. 4 The deliveries arose out of telephone conversations between Mr Saquib Abbas Awan ("Mr Awan") and Jose Consentina ("Mr Consentina"). At the material times, Mr Anwan was in Darwin; Mr Consentina in Sydney. The Statement of Claim filed in the New South Wales action shows that the registered office of Ferrero is at North Sydney, New South Wales, and the registered office of Transglobal is at Berrimah, Northern Territory. Ferrero carries on business in New South Wales as a marketer of confectionery. 5 Transglobal filed a Notice of Grounds of Defence and of Cross-Claim in the New South Wales action. It put in issue the date on which payment of the amount claimed by Ferrero was due, denied the date of the invoice which set out details of the amounts for which recovery was sought, and denied certain of the terms of the contract sued upon. It also denied delivery but admitted its liability for goods in the sum of $71,930.64. However, it then pleaded a set-off in respect of damages said to have been sustained by Transglobal in consequence of the breach of contract by Ferrero arising out of non-delivery of chocolates. 6 The New South Wales action is presently standing awaiting hearing. A Notice of Motion for Judgment has been filed by Ferrero which is to be heard on 21 June 2002. 7 The disputes between Ferrero and Transglobal arose out of serial dealings between the two parties which led to Ferrero threatening legal action against Transglobal in November 2001. Transglobal commenced an action in the Supreme Court of the Northern Territory by a writ which was filed on 26 February 2002 and was served thereafter. In that action, Transglobal seeks damages for breach of contract being non-delivery of what should have been deliveries 5 and 6 in a series of deliveries. 8 In the cross-claim filed in the New South Wales action, Transglobal alleges, inter alia, that deliveries would be made by Ferrero on behalf of Transglobal to the Port of Sydney and, as I understand para 3(c) of the cross-claim, that Transglobal had a warehouse premises in Sydney. Certainly from para 3 of the cross-claim filed in the New South Wales action, it is clear that in the New South Wales action there will be a need for evidence as to the course of conduct of both the parties over the course of each of the contracts. There is thus a clear nexus between the matters raised for determination in the New South Wales action and those raised in the Northern Territory action, to which I will refer. 9 The amount claimed in Transglobal's cross-claim is $176,739, together with unspecified additional losses. 10 Transglobal commenced an action in the Supreme Court of the Northern Territory, as I have said, by a writ which was filed on 26 February 2002. Ferrero has not pleaded to the Northern Territory action but has filed a conditional appearance. It has also made an application to the Supreme Court of the Northern Territory for the cross-vesting of the action by Transglobal to New South Wales for determination, together with the existing action between the two parties. That application is to be heard on Thursday, 9 May 2002 and as a consequence both parties have submitted that the decision of this Court should be arrived at and published prior to that date. 11 The application which has been made to lift up the District Court action depends upon the power given to this Court by s 8 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 ("the cross-vesting legislation"). That section provides as follows: "(1) Where –