Probiotic Technologies v Wilson [2005] NSWSC 181

New South Wales Supreme Court

CITATION : Probiotic Technologies v Wilson [2005] NSWSC 181

HEARING DATE(S) : 4 March 2005

JUDGMENT DATE : 4 March 2005

JURISDICTION : Equity

JUDGMENT OF : Campbell J

DECISION : Proceedings transferred

CATCHWORDS : PROCEDURE - miscellaneous procedural matters - transfer of proceedings under cross-vesting legislation - whether in interests of justice for proceedings to be transferred to Supreme Court of another State

Jurisdiction of Courts (Cross-vesting) Act 1987 LEGISLATION CITED : Property Law Act 1974 (Qld)

Anson v Anson [2004] NSWSC 766 Baumgartner v Baumgartner (1987) 164 CLR 137 CASES CITED : Guttershield Systems v LBI Holdings Pty Ltd [2003] NSWSC 241 Patrick Badges Pty Ltd v Commonwealth of Australia [2002] NSWSC 221

Probiotic Technologies Pty Limited - Plaintiff PARTIES : Patrick Shaun Wilson - Defendant

FILE NUMBER(S) : SC 6294/04

S Kaur-Bains - Plaintiff COUNSEL : B Peters - Defendant

Jackson Smith Solicitors - Plaintiff SOLICITORS : McClellands Lawyers - Defendant

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION DUTY JUDGE LIST

CAMPBELL J

FRIDAY 4 MARCH 2005

6294/04 PROBIOTIC TECHNOLOGIES PTY LTD v PATRICK SHAUN WILSON JUDGMENT – Ex Tempore (Revised 9 March 2005) 1 HIS HONOUR: These proceedings are ones which were begun by the filing of a summons on 23 November 2004. The plaintiff's case is very simple. It seeks an order that the defendant holds a particular block of land at Bilambil Heights upon trust for the plaintiff absolutely, and an order that the defendant transfer that land to it. The plaintiff's case is that it provided all the purchase price, and hence the property is held on a resulting trust for it. 2 Though the defendant has appeared, he has not put on any defence, or filed any affidavits. 3 Today the defendant makes an application to transfer these proceedings to the Supreme Court of Queensland, under section 5(2)(b)(iii) (the "interest of justice" ground) Jurisdiction of Courts (Cross-vesting) Act 1987. There appears to be no dispute as to the relevant principles on which the Court acts in connection with such an application. They are set out in the judgment of Howie J in Patrick Badges Pty Ltd v Commonwealth of Australia [2002] NSWSC 221, at paragraphs [3] and [4], and repeated by me in Guttershield Systems v LBI Holdings Pty Ltd [2003] NSWSC 241 at [2]. 4 After the present proceedings were begun, the defendant began proceedings in the Supreme Court of Queensland. In those proceedings, he sues Ms Joanne Hanbrook, as first of a total of twenty-seven defendants. The second to twenty-fifth defendants, inclusive, are corporations. His allegation in those proceedings is that he and Ms Hanbrook were in a de facto relationship for many years, and that the various corporate defendants were all companies through which their shared activities were carried out. The plaintiff in these New South Wales proceedings is the twentieth defendant. 5 In the Queensland proceedings two different types of relief are sought, in broad terms. One type of relief is a declaration of a constructive trust. The constructive trust, which appears to be one based on Baumgartner v Baumgartner (1987) 164 CLR 137, is alleged, in paragraph 33 of the statement of claim in the Queensland proceedings to have resulted in the defendant having a constructive trust in his favour over not only certain identified items of real property, but also, "the company's further assets" - which I take to be whatever assets there are of those companies which are not the identified items of real property. 6 The declaration sought in the New South Wales proceedings, that the defendant holds the land at Bilambil Heights on trust for the plaintiff absolutely, is one which would preclude and be inconsistent with a finding that that same land was held, to any extent, on a constructive trust for Mr Wilson. A constructive trust imposed on Baumgartner principles prevails over a resulting trust based on contributions to purchase price: Anson v Anson [2004] NSWSC 766. In that way, the claims made in the two proceedings are in conflict one with the other. 7 The second type of claim made in the Queensland proceedings is for relief under the Property Law Act 1974 of Queensland, or alternatively in what is said to be the Queensland Supreme Court's equitable jurisdiction, for what appears to be a discretionary division of property including Ms Hanbrook's shareholding in each of the corporate defendants. That second claim is one which does not in terms affect the beneficial ownership of the Bilambil land, just what might become of the shareholdings in the corporate plaintiff. However, the Queensland court might possibly find it relevant to know, in deciding what, if any, discretionary re-allocation of the shareholdings it should make, whether the plaintiff is a company with real worth because it owns beneficially the Bilambil Heights land, whether (as seems a possibility on the evidence) it holds its assets beneficially for itself or on the trusts of a superannuation fund, or whether Mr Wilson has full beneficial title to the Bilambil land. For that purpose it would need to cover at least some of the same evidentiary ground as will be involved in these proceedings. 8 The proceedings in Queensland are complex ones. There is some suggestion that it may take as much as two years to bring them to trial, although if they can be transferred to the Commercial List they may be able to be brought on quicker. Possible delay in an eventual hearing is one point against transferring the proceedings, but not a decisive one. 9 There were various factors relied upon by the defendant in support of the transfer, beyond the inter-relationship between these New South Wales proceedings and the Queensland proceedings. He says that it is expensive and inconvenient for him to travel to New South Wales. It is to some extent expensive and inconvenient for anyone to travel inter-state. I do not give much weight to that consideration, in the absence of any evidence that it would impose any financial or other hardship upon him to do so. There is also evidence of the defendant having lawyers already retained in Queensland. That is a matter to which some weight should be given as their involvement includes some of the matters relevant to the present claim in the New South Wales proceedings. Against that, though, the plaintiff has New South Wales lawyers engaged, who are not involved in the Queensland proceedings. It seems to me that these two items of inconvenience cancel each other out. 10 As well, the defendant gives a list, a very long list, of witnesses who reside in Queensland "in relation to the matters". This seems to be a list of people who have had something to do with the activities of the plaintiff and the defendant of a business nature over the years, whether connected to the plaintiff in these proceedings or not. 11 I am not persuaded that it has been established that there are any of the witnesses who are referred to, apart from solicitors who were involved in the purchase of the Bilambil land, who are ones who would be likely to be called if the trial were to be held in Sydney, and hence whose convenience ought to be taken into account. 12 However, the inter-relationship between the issues in the two proceedings seems to me to be a decisive matter. It is because of that inter-relationship that I order that proceedings 6294 of 2004 in the Equity Division of this Court be transferred to the Supreme Court of Queensland. I order that the costs incurred to date in 6294 of 2004 be costs in the Queensland proceedings. **********