Supreme Court New South Wales Medium Neutral Citation: Thorne Developments v Graham David Laird as Trustee for the Laird Family Trust [2014] NSWSC 487 Hearing dates: 28/03/2014 Decision date: 28 March 2014 Jurisdiction: Equity Division - Commercial List Before: McDougall J Decision: Proceedings transferred to the Supreme Court of Queensland. Defendant to pay plaintiff's costs of and incidental to the adjournment proceedings on 28 February 2014. Subject to that, plaintiff to pay the defendants' cost of the defendants' notice of motion. Costs of plaintiff's notice of motion reserved. Catchwords: PROCEDURE - transferring proceedings to a court in another State - whether in the interests of justice to transfer proceedings - whether transferee court is the more appropriate forum PROCEDURE - costs - interlocutory proceedings Legislation Cited: Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) Cases Cited: Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460 Mulvaney Holdings Pty Ltd v Thorne [2012] QSC 247 Category: Procedural and other rulings Parties: Thorne Developments Pty Limited (Plaintiff) Graham David Laird as trustee for the Laird Family Trust (First Defendant) Rick Williamson Investments Pty Limited (Second Defendant) Graham David Laird (Third Defendant) Richard John Williamson (Fourth Defendant) Representation: Counsel: D S Weinberger (Plaintiff) P Roney QC / A Kaufmann (Defendants) Solicitors: Gills Delaney Lawyers (Plaintiff) Macrossan & Amiet Solicitors (Defendants) File Number(s): 2013/337573 Judgment (ex tempore - revised 28 march 2014) 1HIS HONOUR: This is an application by the defendants in this proceeding to have the proceedings transferred to the Supreme Court of Queensland pursuant to s 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) (the Cross-Vesting Act). If the proceeding is to be transferred, it must be because this Court concludes that it is in the interests of justice that the transfer should take place. 2The authorities establish, and it is non-contentious, that the way in which the interests of justice are investigated is by looking at whether the transferee Court is, vis-a-vis the Court in which the proceeding was commenced, the more appropriate forum. 3In turn, the matters that are looked at in making that decision include matters such as the places where the parties reside or carry on business, the availability of witnesses, and the governing law: what might be called, as Lord Goff of Chieveley called them in Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460 at 478, the "connecting factors". 4For the reasons that follow, I conclude that the relevant connecting factors, to the extent that the evidence displays them, show that the Supreme Court of Queensland is the more appropriate forum for the determination of the disputes in this matter. 5Before I turn to those connecting factors, I should deal with a little bit of procedural history. The matter came before the Court on 28 February 2014. At that stage, the defendants, who had not filed any commercial list response, sought to have their application for cross-vesting heard. I declined to do so on that occasion. I took that course because it appeared to me, with the greatest of respect to those who advanced them, that the suggested defences were, at best, hollow. As I said in brief reasons given on that day, there would be little utility in transferring the proceeding to the Supreme Court of Queensland if the inevitable result were that that Court would enter judgment on a summary basis. That was a decision that could be made quickly, and more cheaply, in this Court. 6Thereafter, at my direction, the defendants filed and served a commercial list response. The plaintiff wishes to argue that the commercial list response discloses no defence, and that it should in any event have summary judgment. Mr Weinberger of counsel, who appeared for the plaintiff, urged upon me that I should deal first with his client's notice of motion for summary judgment. 7However, a complicating factor entered the equation. Mr Morrow, a solicitor from Queensland, announced that he acted for a Ms Suzanne Thorne, who claimed an interest in the debt which is the subject matter of this proceeding. One of the disputes between the plaintiff and the defendants is whether (as the plaintiff says) the plaintiff is suing in its own capacity or whether (as the defendants say) the plaintiff is suing in its (purported) capacity as trustee. Ms Thorne apparently wishes to say that the debt in question is trust property and that she is the lawful trustee of that trust. In those circumstances, it seemed to me to be inappropriate to deal with the plaintiff's summary judgment application until such time as Ms Thorne had been given an opportunity to seek to be joined, and to put her case to the Court. As I observed in the course of argument, it would be an exercise in futility to consider the questions involved in the summary judgment application only to have someone who might (or might not) be a relevant and indeed necessary party not bound by the determination. 8I return to the cross-vesting application. 9The plaintiff is a company. It is controlled effectively by a Mr Daniel Juratowitch, who is the trustee in bankruptcy of the former director and shareholder of the plaintiff. Mr Juratowitch conducts his practice from Melbourne, although (as one would expect) he travels around Australia, or at least up and down the eastern seaboard, in the course of his practice. 10The staff of Mr Juratowitch's firm who have the day to day conduct of the bankruptcy live and work in Sydney, but of course their work is performed under the ultimate supervision of Mr Juratowitch. 11The plaintiff's registered office is in Sydney. Its lawyers are located in Sydney. 12The first defendant, Mr Laird, is a resident of Queensland. He lives in Brisbane, which I understand to be on the central coast of Queensland. 13The fourth defendant, Mr Williamson, lives in Brisbane. 14The second defendant, Rick Williamson Investments, is a company controlled by Mr Williamson. It has its registered office in Victoria, at the address of Mr Williamson's elderly parents. Mr Williamson travels to Victoria from time to time to visit his parents. That no doubt would explain why service was effected upon him in Victoria. 15It is said that Rick Williamson Investments does not own any real estate or property in Victoria and I infer that, to the extent that it carries on business, it does so under Mr Williamson's direction at wherever it is that he is located: generally, apparently, in Brisbane. 16It seems that Mr Laird and Mr Williamson conduct at least one business which is described euphemistically as an "adult entertainment establishment". That is located in Brisbane - whether or not in Fortitude Valley, I do not know. Be that as it may, Mr Williamson, as I have said, lives in Brisbane adjacent to that business. 17To the extent that it is relevant, the defendants have retained Queensland lawyers to represent their interests. Ms Thorne, who wishes to intervene, likewise has retained a Queensland lawyer. 18The documents at the heart of these proceedings include a share sale agreement and a loan agreement. Each of those agreements provides in effect that its governing law is the law of Queensland, but that the jurisdiction of the courts of Queensland is non-exclusive. In other words, as one might expect, any party who is served within the jurisdiction of any court of this nation, or who is otherwise amenable to the jurisdiction of that court, may be sued under the agreements in that court, regardless of the choice of law clause. 19There is no reason to think that there is any relevant difference between the laws of Queensland and the laws of this State, in so far as they bear on the subject transactions. 20Mr Weinberger submitted that I could take account of the fact that this Court has a Commercial List in which proceedings of this nature are resolved swiftly and, at least in a relative sense, cheaply. There is no evidence, contrary to the tentative submission put by Mr Weinberger, that it would take any longer for the proceeding to be brought on for hearing more quickly in Queensland than in this Court. And I think I can take note, as Mr Roney of Queen's Counsel (who appeared with Mr Kaufmann of counsel for the defendants) submitted, that there is a Commercial List conducted in the Supreme Court of Queensland. If it is legitimate for me to take notice of that, I would infer that its proceedings are similar to those of this List, and that one of the objectives of those procedures is to have proceedings in the list heard as quickly and as cheaply as the subject matter permits. 21Another factor on which Mr Roney placed some stress was that those who stand behind the plaintiff commenced an action in the Supreme Court of Queensland raising issues, very similar to those that are likely to be raised in this case, relating to the effect of de-registration of the plaintiff on its entitlement to the debt claimed. That proceeding was commenced in the Mackay Registry of the Supreme Court of Queensland and McMeekin J has made orders in that proceeding (on 29 March 2012). His Honour has given a judgment ([2012] QSC 247) dealing with the issues that were then up for grabs in this case. That litigation has not been brought to a conclusion. 22The significance of those matters is that it would appear that those who effectively control or stand behind the plaintiff thought, at least for the purpose of the orders and disputes that were sought and that are being litigated, the Supreme Court of Queensland was an appropriate or natural forum. 23The likelihood is, I think, that the majority of the witnesses whose evidence is likely to be in contest will come from Queensland. Certainly, the majority of the parties have a closer and more real connection with Queensland than they do with this State. Of course, in the plaintiff's case, there is the position of Mr Thorne's trustee Mr Juratowitch. But there is no reason to think that Mr Juratowitch rather than his employees will be a witness. I accept that those employees are located in Sydney. However, if they are required to give evidence, it is likely that they could do so in Queensland. I see no reason to think that the peripatetic aspects of Mr Juratowitch's practice to which reference has been made would not apply equally to his employees. 24In short, when one considers the residence of the majority of the parties and the likely residence of the likely witnesses in the proceedings, the connection with Queensland seems to me to be far closer than it is with this State. In those circumstances, it seems to me, as I have indicated, that the Supreme Court of Queensland is the more appropriate forum. It follows that it is in the interests of justice that the order sought by the defendants be made. 25I make an order in terms of prayer 1 of the defendants' notice of motion filed on 20 December 2013. I will hear the parties on costs. [Counsel addressed.] 26I order the defendants to pay the plaintiff's costs of and incidental to the adjournment of the proceedings on 28 February 2014. Subject to that, I order the plaintiff to pay the defendants' costs of the defendants' notice of motion. I reserve the costs of the plaintiff's notice of motion to the judge who ultimately hears and disposes of that notice of motion. 27I order that the exhibits on the application be handed out. ********** 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. Decision last updated: 30 April 2014