TAJ Productions Pty Ltd v White & Ors [2005] NSWSC 1146

Reported Decision : 56 ACSR 114

New South Wales Supreme Court

CITATION : TAJ Productions Pty Ltd v White & Ors [2005] NSWSC 1146

HEARING DATE(S) : 31 October 2005

JUDGMENT DATE : 31 October 2005

JURISDICTION : Equity Division

JUDGMENT OF : Palmer J

DECISION : Application refused.

CATCHWORDS : CORPORATIONS – PRACTICE AND PROCEDURE – TRANSFER – Whether in interests of justice for proceedings to be transferred to Victorian Supreme Court – finely balanced considerations – whether applicants discharged onus to demonstrate transfer justified.

Corporations Act 2001 (Cth) - s.1337H, s.1337L LEGISLATION CITED : Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) – s.5(2)

CASES CITED : James Hardie & Company Pty Ltd v Barry (2000) 50 NSWLR 357

TAJ Productions Pty Ltd – Plaintiff Warren White – First Defendant PARTIES : Craig Crosbie – Second Defendant Melbourne 2005 Deaflympic Games Limited (in liq) – Third Defendant

FILE NUMBER(S) : SC 4458/05

A.F. Fernon – Plaintiff COUNSEL : J.E. Richards – Defendants

Toomey Pegg Drevikovsky – Plaintiff SOLICITORS : Riordan Hume (Melbourne) – Defendants

LOWER COURT JURISDICTION :

Ex tempore

Introduction

1 A company called Melbourne 2005 Deaflympic Games Limited was a special purpose company incorporated for the purpose of promoting and conducting a cultural festival in Melbourne earlier this year focused upon the activities of the deaf. I will refer to it as "M2005" as the parties do in their evidence and submissions. 2 M2005 entered into a contract with TAJ Productions Pty Ltd ("TAJ") whereby TAJ was engaged to undertake certain activities in connection with promotion of the festival. It is not necessary to elaborate upon the nature of the activities to be conducted. 3 Unfortunately, M2005 has been placed in liquidation. TAJ lodged a proof of debt with the liquidators claiming that M2005 was indebted to it in an amount of $586,000 in respect of damages for breach of contract. The liquidators rejected the proof of debt and TAJ has commenced proceedings in the New South Wales Supreme Court, appealing against the liquidators' decision. The liquidators and M2005 now apply for the transfer of the proceedings from the New South Wales Supreme Court to the Supreme Court of Victoria. The application is made pursuant to s.1337H of the Corporations Act 2001 (Cth) and s.5(2)(b)(ii) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth). 4 The essential question for determination is whether it is in the interests of justice that proceedings be transferred from this Court to the Victorian Supreme Court. 5 Section 1337L of the Corporations Act requires the Court to have regard to three specific considerations in determining an application for transfer. That requirement is, of course, in addition to the requirement that the Court be satisfied that the interests of justice require the transfer. The requirements of s.1337L are not exhaustive. That section merely enumerates three factors to which the Court must pay regard in considering where the interests of justice lie. 6 The background to the litigation may be summarised briefly. TAJ is a company incorporated in New South Wales and carrying on its business in New South Wales. M2005 is a company incorporated in Victoria and presumably its principal place of business was in Victoria while it was still trading. M2005 was placed in voluntary liquidation and its liquidators, Messrs White and Crossbite, are Victorian residents. Apparently the liquidators, although they have their principal place of business in Melbourne, also have an office in Sydney. 7 Section 1337L requires that the first consideration to which the Court must pay regard is the principal place of business of any body corporate concerned in the proceedings. There are two bodies corporate concerned in these proceedings. The first is, of course, TAJ, which has its principal place of business in New South Wales. The second body corporate is M2005 which has ceased to trade by virtue of being placed in liquidation, so that it cannot be said currently to have any place of business. However, it is realistic to consider M2005 as being embodied, for all practical purposes, in its liquidators; they are Victorian residents having their principal office in Melbourne. 8 Accordingly, looking at the first consideration to which attention must be paid under the section, TAJ on the one hand is based in New South Wales and carries on its business activities there, and M2005, insofar as it presently has any interests, is located in Victoria. The scales are, thus far, evenly balanced. 9 The second consideration to which the Court must pay attention under s.1337 is: "The place or places where the events that are the subject of the proceeding or application took place." 10 What the full range of "events that are subject to the proceeding" is very much indeterminate at this stage. TAJ seeks to sue on a contract for the performance of services, some of which no doubt were to be performed at the cultural festival to be held in Melbourne and others which were to be performed by personnel in its New South Wales place of business. I do not think that it is right to say that the events in question here are solely concerned with acts or omissions of only one party to the contract or only with the events that occurred in Melbourne. It is true that the festival was held in Melbourne but I do not think that the actual location of the festival is a critical determinative factor in the present case. That is because TAJ complains of breaches of contract by M2005 such as failing to act in good faith or acting together with TAJ to ensure the success of the festival. 11 The breaches alleged are very general in some respects and particular in others. For example, it is said to be a breach of the agreement that M2005 failed to provide marketing assistance in that it failed to provide any or any proper marketing or signage in or around the Atrium or the rest of Federation Square where certain events were to take place. Although the location of the omission in this regard is specified, no significance in determining the case can attach to the fact that there was an absence of appropriate signage in one place when all that has to be contested is whether or not there was any signage and what was the extent of it. As to that issue, the matter will be decided by reference to what people on both sides of the contest say about the matter. That is true, I think, of many of the alleged breaches which are set forth in the Statement of Claim proposed to be filed by TAJ. 12 I do not think that the location of the festival in Melbourne is in itself a ground for regarding the interests of justice as weighted in favour of a transfer of proceedings to Melbourne. I think that this question is more tied up with the location of the witnesses whom each side says it may call in support of its case. TAJ says that it has some fourteen or fifteen witnesses who may be able to give evidence in its case and the majority of those witnesses are located in Sydney. The liquidators say that there are some seventeen or eighteen witnesses whom they may wish to call and those witnesses are for the most part resident in Melbourne. 13 The parties have, I think it is fair to say, endeavoured to find as many potential witnesses as is possible at this stage in order to support their respective contentions that either the Supreme Court of Victoria or the Supreme Court of New South Wales is the more convenient location for the matter to be heard in terms of availability of witnesses. I do not say this in any sense of criticism. It is understandable that each party wishes to contest the proceedings in the place most convenient to it. However, I do not think that I can place decisive weight on the numbers of potential witnesses given by each side in support of its contention. 14 The proceedings are at a very early stage of preparation. As far as I can see from the Court file, no substantive affidavit on the merits or substance of the case has been filed by anyone. The proceedings were only commenced a short time ago. I have a strong suspicion that neither side has yet taken anything like complete witness statements or has even settled upon a list of witnesses who will give evidence. I get the distinct impression from the affidavit material filed by both sides that all that has been done so far, apart from identifying the obvious key witnesses, is compiling a list of people who may, and I emphasise may, have some information which may be of assistance and who will require some interviewing. 15 In other words, I do not think that this application can be resolved by the simple exercise of counting up the number of potential witnesses resident in Melbourne or resident in Sydney and deciding in favour of that side which has the longer list. It is clear that there will be perhaps more than a handful, perhaps as much as seven or eight witnesses, probably on each side. I do not think the addition of one or more witnesses or subtraction of one or more witnesses from either side's potential list will decide the fate of this application. 16 The third consideration to which the Court is to have regard under s.1337L is whether any other court has jurisdiction to deal with the proceedings. It is clear that both the New South Wales Supreme Court and the Victorian Supreme Court have jurisdiction to deal with the application. It does not matter in this respect that M2005 was incorporated in Victoria. 17 I turn now to the broader considerations of the interests of justice. The phrase has received considerable judicial attention and there is a "checklist", as it is commonly referred to, in the decision of the Court of Appeal in James Hardie & Company Pty Ltd v Barry (2000) 50 NSWLR 357, at 379. It is useful simply to run through the checklist to demonstrate that I have given consideration to the factors. 18 The first consideration is whether there is any difference in substantive law between one forum or the other which should be of any consequence in the consideration of justice. Clearly, the Victorian Supreme Court will be applying the law pertaining to the Corporations Act in exactly the same way as the New South Wales Supreme Court will be applying that law. This factor therefore is entirely neutral. 19 The second consideration in the checklist is forensic advantage or detriment conferred by procedural law. Again, neither side has suggested that there will be any advantage one way or the other in the conduct of the case, in terms of procedure or expedition, whether the matter is conducted in the New South Wales Supreme Court or the Victorian Supreme Court. Again this factor is entirely neutral. 20 The third consideration is the choice made by TAJ for the forum and the reasons for that choice. The evidence which TAJ has filed in opposition to this application shows that it is a very small company and its personnel are few in number. The suggestion is made that it would be far more disruptive for TAJ to have to conduct proceedings in the Victorian Supreme Court and during the trial to have its essential personnel in attendance at the Victorian Supreme Court than it would be for the liquidators to conduct the proceedings through solicitors and agents in Sydney. 21 I think that this is a telling consideration. It seems to me that while the liquidators are Melbourne-based, they will, of necessity, have the assistance of their office staff and agents in running this litigation in the same way as they would run many proceedings in which they are necessarily involved in the course of their duties as liquidators. No doubt, this is but one of many proceedings for the liquidators and it arises as a natural consequence of the duties of their office. The liquidators presumably have the professional resources to be able to deal with this sort of litigation, wherever it occurs. The same cannot be said of TAJ. 22 The fourth consideration is the substantive connections with the forum. For the reasons I have given, I think that this factor also is neutral. TAJ will doubtless have undertaken much of its activity pursuant to the contract in New South Wales even though the festival was located in Victoria; many of the breaches of contract are said to have occurred in Victoria. 23 The next factor is balance of convenience to parties and witnesses. As I have already said, it seems to me that the scales are fairly evenly balanced as far as convenience to witnesses can be discerned at this early stage. As far as the balance of convenience to the parties is concerned it seems to me that the balance is weighed in favour of TAJ. 24 As to the final factor, convenience to the Court system, no submissions have been made by either side one way or the other as to whether this consideration is in favour of the Supreme Court of Melbourne or the Supreme Court in Sydney. 25 It seems to me that this is an application which is very finely balanced. This Court clearly has jurisdiction to entertain the proceedings and it was not clearly inappropriate to commence the proceedings here. There will be inconvenience to whichever side has to contest the proceedings in the Court of another State. The preponderance of witnesses cannot be said to be heavily on one side or the other side. Both parties seem to have around about the same number of witnesses whom they regard as potentially available or able to give evidence. 26 At the end of the day I must be persuaded that the interests of justice favour the transfer from this Court, being a court possessed of jurisdiction, in favour of another court. I am not persuaded that the applicants have discharged the onus of demonstrating that the interests of justice favour the transfer. Accordingly, I must refuse the application. 27 I order that the Defendants pay the Plaintiff's costs of this application. 28 I will stand the proceedings over for directions into the Registrar's List on 14 November 2005. – oOo –