Techtronic Industries Pty Limited v Mitre 10 Australia Limited [2008] NSWSC 740

New South Wales Supreme Court

CITATION : Techtronic Industries Pty Limited v Mitre 10 Australia Limited [2008] NSWSC 740

HEARING DATE(S) : 11/7/08 JURISDICTION : Equity Division Commercial List

JUDGMENT OF : Einstein J

EX TEMPORE JUDGMENT DATE : 11 July 2008

DECISION : The notice of motion for transfer dismissed.

CATCHWORDS : Jurisdiction of Courts (Cross Vesting) Act 1987 [NSW] - Checklist of factors relevant to decision - Video link technology.

LEGISLATION CITED : Jurisdiction of Courts (Cross Vesting) Act 1987 [NSW]

CATEGORY : Procedural and other rulings

Bankinvest AG v Seabrook (1988) 14 NSWLR 711 Chapman v Jansen, Re (1990) 100 FLR 66 CASES CITED : 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 Triple Take Pty Ltd v Clark Rubber Franchising Pty Ltd [2004] NSWSC 485

PARTIES : Techtronic Industries Pty Limited (Plaintiff) Mitre 10 Australia Limited (Defendant)

FILE NUMBER(S) : SC 50088/08

COUNSEL : Mr De Buse (Plaintiff) Mr R Scruby (Defendant)

SOLICITORS : Truman Hoyle Lawyers (Plaintiff) Middletons (Defendant)

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

Einstein J

Friday 11 July 2008 ex tempore Revised 21 July 2008

50088/08 Techtronic Industries Pty Limited v Mitre 10 Australia Limited JUDGMENT 1 There is before the Court a notice of motion under cover of which the defendant seeks an order pursuant to section 5(2)(b)(iii) of the Jurisdiction of Courts (Cross Vesting) Act 1987 [NSW] that the proceedings be transferred to the Supreme Court of Victoria. The application is opposed. 2 The dispute concerns monies which the plaintiff contends are due to it by the defendant for goods sold and delivered. The summons identifies the nature of the dispute: including that the goods sold and delivered have been invoiced; that the invoices have been outstanding for more than 45 days from the date upon which the payment became due pursuant to terms of trade which have been reduced to writing between the plaintiff and the defendant. 3 There is no issue but that clause 23.1 of the Purchase Agreement states that all matters arising from the sale of goods pursuant to the Purchase Agreement are "governed by and are to be construed in accordance with the laws in force in the State of the Victoria in the Commonwealth of Australia". Clause 23.2 goes on to state that "each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the Courts of Victoria in the Commonwealth of Australia". 4 There has been no serious issue at the bar table as to the general approach proper to be taken by the Court in determining applications such as the present. Clearly enough the relevant subsection 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 of 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. 5 I accept as of substance the proposition that one can take from James Hardie [at 739] what is described as "a useful list check 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 connection with the forum' · Balance of convenience to the parties and witnesses; · Convenience to the Court system. 6 In Triple Take Pty Ltd v Clark Rubber Franchising Pty Ltd [2004] NSWSC 485, I observed that the application raised the question of whether or not it is apt to speak of an onus resting upon the applicant for transfer. I observed that most recently in James Hardie, Mason P had 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 matters as follows: