Triple Take Pty Ltd v Clark Rubber Franchising Pty Ltd [2004] NSWSC 485

New South Wales Supreme Court

CITATION : Triple Take Pty Ltd v Clark Rubber Franchising Pty Ltd [2004] NSWSC 485 HEARING DATE(S) : 23/04/04 JUDGMENT DATE : 23 April 2004

JURISDICTION: Equity Division Commercial List JUDGMENT OF : Einstein J DECISION : Motion dismissed.

CATCHWORDS : Practice and Procedure - Cross Vesting - Motion to Cross Vest LEGISLATION CITED : Jurisdiction of Courts (Cross Vesting) Act 1987 (NSW) Bankinvest AG v Seabrook (1988) 14 NSWLR 711 Bourke v State Bank of New South Wales (1988) 22 FCR 378 Chapman v Jansen (1990) 100 FLR 66 CASES CITED : Dawson v Baker (1994) 120 ACTR 11 Hoddell v Hoddell Pty Ltd [1999] WASC 156 James Hardie & Coy Pty Ltd v Barry (2000) 50 NSWLR 357 Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460 PARTIES : Triple Take Pty Ltd (Plaintiff) Clark Rubber Franchising Pty Ltd (Defendant) FILE NUMBER(S) : SC 50020/04 COUNSEL : Mr D Hammerschlag SC, Mr R Bellamy (Plaintiff) Mr P Walsh (Defendant) SOLICITORS : Slater & Gordon (Plaintiff) Mason Sier Turnbull (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION COMMERCIAL LIST

Einstein J

Friday 23 April 2004 ex tempore Revised 3 June 2004

50020/04 Triple Take Pty Ltd v Clark Rubber Franchising Pty Ltd JUDGMENT 1 There is before the Court in proceedings No. 50020/04 a notice of motion by which the defendant Clark Rubber Franchising Pty Limited seeks an order pursuant to section 5(2) of the Jurisdiction of Courts (Cross Vesting) Act 1987 (NSW) that the proceedings be transferred to the Supreme Court of Victoria. 2 Although the notice of motion in terms seeks an alternative order staying the proceedings, it has been made plain to the Court by Mr Walsh of counsel who appears for the defendant/applicant that the stay order is not pursued otherwise than as tangential to the transfer orders sought in paragraph 1 of the motion. The motion is contested. 3 The short position is that the proceedings commenced by summons filed on 17 March 2004. The plaintiff, Triple Take Pty Limited, has pleaded that it entered into an agreement with the defendant in March 1995 whereunder the defendant appointed the plaintiff as the defendant's master co-ordinator in New South Wales. 4 The plaintiff's case concerns an alleged entitlement under the agreement to exercise an option to renew the agreement, it having been, it is pleaded, a term of the agreement that at the conclusion of the initial nine year period of the agreement the plaintiff had an option to renew the agreement on two separate occasions for nine year periods respectively. 5 The plaintiff's stance in the pleading is that it exercised that option to renew on 28 October 2003; that on several occasions the defendant has alleged that the plaintiff has breached the agreement and has refused to acknowledge or take any steps to effect renewal of the agreement; that the defendant has refused to specify the alleged breaches of the agreement; that on 20 February 2004 the defendant advised the plaintiff that the agreement would not be extended and that the agreement has been extended and is on foot. 6 The stage which the proceedings have reached in formal terms is simply that, namely the filing of the summons, followed shortly by the filing of the motion the subject of this judgment. 7 Albeit that the principled approach to determining an application such as that presently before the Court appears to be that there is high significance in the swift bringing of an application for a matter to be cross vested, the circumstance that the applicant/defendant on such a motion has not been in a position even from the bar table [or by tendering a draft], to identify the precise issues which are to be raised and litigated, makes the task of the Court by no means simple when weighing the balance of convenience and treating with the general parameters with which the Court requires to deal in hearing such an application. 8 It is common ground that the application is pursued pursuant to section 5(2)(b)(iii) of the Jurisdiction of Courts (Cross Vesting) Act 1987 (NSW). In short the defendant bears a relevant onus to satisfy the Court that it is otherwise in the interests of justice that the relevant proceedings be remitted by the Supreme Court of New South Wales here to the Supreme Court of Victoria. 9 The Court has received affidavit evidence both in support of the notice of motion and in answer to the notice of motion. The parties have also taken the convenient step of producing short overview written submissions in each case. 10 There has been no serious issue at the bar table as to the general approach proper to be taken by the Court in hearing proceedings such as the present. Clearly enough the relevant sub-section, as counsel for the defendant has submitted, requires the Court to decide which is the more appropriate Court to determine the proceedings brought by the plaintiff; Bankinvest AG v Seabrook (1988) 14 NSWLR 711 at 714(e), 727(b). Clearly also, one Court will be more appropriate than another if, in that Court, the case may be "tried more suitably for the interests of all the parties and the ends of justice": Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460 at 476 applied in James Hardie & Coy Pty Ltd v Barry (2000) 50 NSWLR 357 at 378. 11 I accept also as of substance the submission by Mr Walsh that one can take from James Hardie at 379 what is described as "a useful check list of factors" relevant to the decision to order a transfer of category (iii) cases, namely: · Application of substantive law; · Forensic advantage or detriment conferred by procedural law; · The choice made by a plaintiff of a forum and the reasons for that choice; · Substantive connections with the forum; · Balance of convenience to the parties and witnesses; · Convenience to the Court system. 12 This case [as do some others], raises the question of whether or not it is apt to speak of an onus resting upon the applicant for transfer. Most recently in James Hardie v Barry, Mason P referred to comments made by Rogers AJA with which Street CJ agreed [and Kirby P probably agreed] in Bankinvest that it was inapt to speak of any onus resting upon the applicant for transfer. Mason P put the matter as follows: