Arm Equipment Finance Pty Ltd v Halse Holdings Pty Ltd [2004] NSWSC 1013

New South Wales Supreme Court

CITATION : Arm Equipment Finance Pty Ltd v Halse Holdings Pty Ltd [2004] NSWSC 1013 HEARING DATE(S) : 22 October 2004 JUDGMENT DATE : 22 October 2004 JURISDICTION: Equity JUDGMENT OF : Hamilton J DECISION : That the proceedings should be transferred to the Supreme Court of Western Australia.

CATCHWORDS : PROCEDURE [26] - Courts - Concurrent jurisdiction of different Courts - Transfer of proceedings under cross vesting legislation - Where appropriate in interests of justice - Relevant considerations. LEGISLATION CITED : Jurisdiction of Courts (Cross-vesting) Act 1987 s 5(2)(b)(iii) Arm Equipment Finance Pty Limited (P1) PARTIES : Australian Integrated Finance Pty Limited (P2) Halse Holdings Pty Limited (D) FILE NUMBER(S) : SC 4310/04 COUNSEL : M J Stevens (Ps) A Beech (D) SOLICITORS : Lincoln Smith & Company (Ps) Brian Muir & Company (D)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HAMILTON J

FRIDAY, 22 OCTOBER 2004

4310/04 ARM EQUIPMENT FINANCE PTY LIMITED & ANOR v HALSE HOLDINGS PTY LIMITED JUDGMENT 1 HIS HONOUR: This is an application to transfer to the Supreme Court of Western Australia proceedings relating to the ownership of some paintings. The order is sought under s 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-vesting) Act 1987 on the grounds that it is otherwise in the interests of justice that the proceeding be determined by the Supreme Court of Western Australia. 2 Mr Andrew Beech, of counsel, has usefully given me a written submission gathering the most relevant authorities in support of his application. The paintings, the subject of the proceedings, are physically in Western Australia. There are three transactions that relate to the title to the paintings, two of which took place completely in Western Australia and one of which took place between Western Australia and New South Wales. The plaintiffs obviously have chosen this Court as the forum in which they brought their proceedings. 3 The facts as to convenience appear to me to be as follows. Each side is likely to call two witnesses. Both the defendant's witnesses are resident in Western Australia. One is a director of the defendant, which is a private company, which trades only in Western Australia. The plaintiffs, without descending to detail, are or are associated with a group of finance companies which has operations as well as in Sydney in Brisbane, Melbourne and Perth. The two witnesses that the plaintiffs propose to call are resident in Sydney. There is an outside possibility, but it is fairly put only as an outside possibility, that the defendant may need to call a third witness associated with the transactions, who is in custody serving a prison sentence in Western Australia. 4 The greater association of the subject matter with Western Australia is a matter in favour of the trial taking place in Western Australia. So is the fact that it may be necessary, although it is only put as a distant possibility, to bring a Western Australian prisoner to court to give evidence. However, the last matter is far from certain and I regard the actual convenience and cost of the attendance of people, viewed in the context of who those people are, as being the most important consideration. The defendant itself is a small company and its two witnesses are resident in Western Australia. The plaintiffs are larger companies or part of a group of companies of more financial substance than the defendant. Furthermore, that group of companies maintains an office in Perth as well as maintaining an office in Sydney. 5 In my view the most convenient forum is in the Supreme Court of Western Australia and I make an order in the terms of prayer 2 in the notice of motion. 6 Mr Stevens has resisted the making of a simple order for the costs of the motion in the defendant's favour. However, it seems to me that this is an interlocutory motion where the defendant has applied for this order and the plaintiffs have resisted the making of the order and lost. I order that the plaintiffs pay the defendant's costs of the application. **********