New South Wales Supreme Court CITATION : Landmark Property v Goodfellows [2010] NSWSC 1161 HEARING DATE(S) : 11 October 2010 JUDGMENT OF : Gzell J EX TEMPORE JUDGMENT DATE : 11 October 2010 DECISION : Defendant's application for transfer dismissed with costs. CATCHWORDS : PROCEDURE - Cross-vesting - Jurisdiction of Courts (Cross-vesting) Act 1987, s 5(2)(b)(iii) - application by defendant that proceedings be transferred to the Supreme Court of Queensland - contract for performance of work by plaintiff resident in NSW in relation to land situated in Qld and owned by a Qld resident - defendant to rely on conversations in Qld alleged to have varied the contract and breached the Trade Practices Act 1974 (Cth) - plaintiff to rely on conversations in NSW - work done in NSW - predominance of witnesses resident in NSW - plaintiff's records in NSW LEGISLATION CITED : Jurisdiction of Courts (Cross-vesting) Act 1987 Trade Practices Act 1974 (Cth) Bankinvest AG v Seabrook (1988) 90 ALR 407 Dawson v Baker (1994) 120 ACTR 11 CASES CITED : James Hardie & Coy Pty Ltd v Barry [2000] NSWCA 353; (2000) 50 NSWLR 357 ERG Transit Systems Ltd v Keane Australia Micropayment Consortium Pty Limited [2009] NSWC 1296 BHP Billiton Limited v Schultz [2004] HCA 61; (2004) 221 CLR 400 PARTIES : Landmark Property Group Australia Pty Limited (Plaintiff) Goodfellows Developments Pty Limited (Defendant) FILE NUMBER(S) : SC 2010/152862 COUNSEL : L Shipway (Defendant) SOLICITORS : Lander & Rogers (Plaintiff) Romans & Romans Lawyers (Defendant) IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION GZELL J MONDAY 11 OCTOBER 2010 2010/152862 LANDMARK PROPERTY GROUP AUSTRALIA PTY LTD v GOODFELLOWS DEVELOPMENT PTY LIMITED EX TEMPORE JUDGMENT 1 Before the court is an application by the defendant pursuant to the Jurisdiction of Courts (Cross-vesting) Act 1987 s 5(2)(b)(iii). It provides that where a proceeding is pending in this court, called the first court in the rule, and it appears to the first court that it is in the interests of justice for reasons other than those specified earlier in s 5(2) that the relevant proceeding be determined by the Supreme Court of another State or Territory, the first court shall transfer the relevant proceeding to that other Supreme Court. 2 The substantive proceedings involve a claim for payment under an agreement between the parties for the performance of work by the plaintiff. The defendant alleges that the written agreement between the parties was varied by subsequent conversations in January and February of 2009. 3 The first issue that the defence will raise is as to the interpretation of the agreement as varied orally by the parties. With respect to that issue it is submitted that the crucial questions to be determined in relation to whether or not the application for cross-vesting should succeed are: where did the conversations take place and which witnesses were present? 4 There is a conflict of evidence on the question where the conversations took place. The plaintiff refers to conversations that took place later than January and February 2009 at its offices in Sydney, whereas the defendant relies on the conversations in January and February that it alleges took place in Queensland. 5 There is also a conflict in the evidence as to the presence of witnesses during the conversations. 6 The second aspect is the proposed cross-claim to be raised under the Trade Practices Act 1974 (Cth) alleging misleading and deceptive conduct. The defendant says this issue comes back to the meetings and conversations in January and February of 2009. 7 In dealing with an application such as this a pragmatic approach is to be adopted. In Bankinvest AG v Seabrook (1988) 90 ALR 407 at 409 Street CJ said this: "As a very broad generality it can be said that the ordinary day to day administration of the cross-vesting scheme in its operation on a given proceeding is placed in the hands of whatever court it may be in which they are commenced. Ordinarily it could be expected that a single judge of that court would decide whether it is in the interests of justice to transfer the proceedings to one of the other nine courts. If such an order be made then in practical terms it effects what might be likened to an administrative redirection of the proceedings to the other court selected. In the hands of that other court the proceedings will continue to attract the Australia-wide jurisdiction and law which would have been exercisable and applicable by the court from which they were transferred. Viewed from this standpoint, it can be seen to be highly desirable that the judicial administration of the day to day working of the cross-vesting scheme is not encumbered by any encrustation of judge-made pronouncements of principles to be applied when considering making a transfer order. It calls for what I might describe as a "nuts and bolts" management decision as to which court, in the pursuit of the interests of justice, is the more appropriate to hear and determine the substantive dispute. Consideration of textured principle and deep learning – in particular principles of international law such as forum non conveniens – have no place in a cross-vesting adjudication." 8 In Dawson v Baker (1994) 120 ACTR 11 at 25 Higgins J, with whom Gallop J agreed, itemised a series of matters that should be taken into account in dealing with such an application. At 25 his Honour said: "• Application of substantive law If the law to be applied is that of the transferee jurisdiction, transfer will be favoured if that law is peculiar to that jurisdiction. This would be particularly significant if the validity or interpretation of local legislation was in issue. • Forensic advantage or detriment conferred by procedural law If there is a proper forensic advantage which a party might gain or lose by a transfer then that is relevant. • The choice made by the plaintiff of a forum and the reasons for that choice The more cogent the reasons for a choice of forum the more weight can be afforded that choice whether or not the procedural laws are relevantly different. For example, the desire in Baffsky of the plaintiff to avoid possible unfair prejudice from a "home town" jury was of some weight. • Substantive connections with the forum Residents, domicile, place of occurrence and choice of law will all be relevant. • Balance of convenience to parties and witnesses The comparative cost and delay will be relevant. However, there is the proviso that one court will not usually draw any adverse conclusion about the ability of another to deal as fairly and expeditiously with the matter as would the transferor court. Delay resulting from the transfer itself would be a relevant consideration. • Convenience to the court system Although this is regarded as an appropriate factor to be considered in the United States, it would be contrary to the duty of a court to hear a matter properly before it to accede to a request for transfer on those grounds. That is not to say, however, that the existence or absence of a specialist jurisdiction would be irrelevant. It might well justify a transfer, for example, of a matrimonial cause which may be more appropriately dealt with in the Family Court even if it had been regularly commenced under the Matrimonial Causes Act (Cth) in the Supreme Court of a State or Territory." 9 In James Hardie & Coy Pty Ltd v Barry [2000] NSWCA 353; (2000) 50 NSWLR 357 Mason P at 379 [95] endorsed the headings to which Higgins J referred as set out above. 10 As noted by Einstein J in ERG Transit Systems Ltd v Keane Australia Micropayment Consortium Pty Limited [2009] NSWC 1296 at [12], in light of the decision of the High Court in BHP Billiton Limited v Schultz [2004] HCA 61; (2004) 221 CLR 400, care must be taken in relation to the third bullet point in the list of Higgins J. 11 In the judgment of Gleeson CJ, McHugh and Heydon JJ at 421 [14] their Honours said: "In the context of the Cross-vesting Act, one is not concerned with the problem of a court, with a prima facie duty to exercise a jurisdiction that has been regularly invoked, asking whether it is justified in refusing to perform that duty. Rather, the court is required by statute to ensure that cases are heard in the forum dictated by the interests of justice. An application for transfer under s 5 of the Cross-vesting Act is brought upon the hypothesis that the jurisdiction of the court to which the application is made has been regularly invoked. If it appears to that court that it is in the interests of justice that the proceedings be determined by another designated court, then the first court "shall transfer" the proceedings to that other court. There is a statutory requirement to exercise the power of transfer whenever it appears that it is in the interests of justice that it should be exercised. It is not necessary that it should appear that the first court is a "clearly inappropriate" forum. It is both necessary and sufficient that, in the interests of justice, the second court is more appropriate." 12 Observations in a similar vein were made by Gummow J at 434-435 [63]. 13 When the matters discussed by Higgins J with the exception of the third bullet point are considered in this case in determining whether it is in the interests of justice that these proceedings be determined by the Supreme Court of Queensland, the matter is finely balanced. 14 The defendant's reliance upon the conversations of January and February 2009 favour Queensland as the appropriate jurisdiction; that is in relation to the question of variations to the contract and the question under the Trade Practices Act. 15 With respect to the performance of work under the contract, the present state of the evidence establishes, in my view, that the bulk of the work was performed in New South Wales. The plaintiff's case is that all of the work of significance was performed in New South Wales. It denies allegations in the affidavits read on behalf of the defendant that some work was performed at the defendant's premises in Queensland. 16 In Schultz it was said at 423 [19], again in the joint judgment of Gleeson CJ, McHugh and Heydon JJ: "Some of the factors might cancel each other out. If the action is between two individuals, and the plaintiff resides in one law area and the defendant in another, there may be no reason to treat the residence of either party as determinative, although, as already noted, it will ordinarily be the residence of the defendant that is important to establish jurisdiction." 17 It was submitted that that might be interpreted as a tie-breaker situation. I agree with that suggestion. 18 In this case there are other aspects to the matter that lead me to the conclusion that the application should be refused. 19 Reference was made to an observation of Kirby J in Schultz at 465 [165] where his Honour endorsed what had been said by Spigelman CJ in James Hardie at 361 [7]: "To determine which court is, in the interests of justice, the appropriate court, it is necessary to inquire, in the case of a tort, as to what is the place of the tort. Indeed, in the context of administering the co-operative national scheme in the Jurisdiction of Courts (Cross-vesting) Act, where the place of the tort and the residence of the parties coincide, this will generally be determinative of the issue of "appropriate court", although other factors may need to be assessed in the process of determining where the interests of justice lie." 20 In my view that consideration is also equally balanced in this case. The conversations of January and February 2009 upon which the defendant relies with respect to the variation of the contract and the allegation that the Trade Practices Act had been breached favour Queensland as the appropriate jurisdiction. But the allegations of a failure to comply with the requirements of the contract as varied favour the retention of the matter by the Supreme Court of New South Wales because, as I have said, it is my view that, as the evidence presently stands, the vast bulk of the work was performed from the offices of the plaintiff in this State. 21 The balance of convenience favours New South Wales. Each side has indicated the identity of witnesses they propose to call. The plaintiff proposes to call seven witnesses, all but one of whom reside in New South Wales. The defendant proposes to call three witnesses all from Queensland. 22 It was submitted that I should temper the weight given to these numbers because no reference was made to the significance of the evidence to be adduced by some of the witnesses identified by the plaintiff and it was said that a number of those witnesses were not involved in the meetings and conversations upon which the defendant places reliance. 23 As I have said the matter is finely balanced but I am moved to reject the application when consideration is given, not only to the balance of convenience so far as the jurisdictions in which proposed witnesses reside, but also to the circumstance that the records of the plaintiff which, no doubt, will be of significance in the substantive hearing, are at its offices in New South Wales. 24 For these reasons I have concluded that the application should be dismissed. The orders of the court, therefore, are that the notice of motion is dismissed. The defendant/applicant is to pay the plaintiff/respondent's costs. ***************** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.