Smits v Unicomb [2015] NSWDC 265

District Court New South Wales

Medium Neutral Citation: Smits v Unicomb [2015] NSWDC 265 Hearing dates: 12 November 2015 Date of orders: 12 November 2015 Decision date: 12 November 2015 Jurisdiction: Civil Before: Levy SC DCJ Decision: 1.The defendant's motion filed on 31 August 2015 seeking a change of venue from Lismore to Newcastle is dismissed; 2.The defendant is to pay the costs of the dismissed motion. Catchwords: PRACTICE & PROCEDURE – application for change of venue Category: Procedural and other rulings Parties: Leonardus Smits (Plaintiff) Michael Charles Unicomb (Defendant) Representation: (The parties are self-represented. The parties did not appear. They consented to the matter being dealt with on the papers) File Number(s): 2015/226676 Publication restriction: None

Judgment

Notice of motion 1. This is a notice of motion filed by the defendant on 31 August 2015 seeking that the venue for the hearing of these proceedings be transferred from Lismore to Newcastle. The underlying proceedings involve a defended claim for an amount of $165,000 allegedly owing under a Deed of Assignment dated 26 July 2015. Due to difficulties concerning their respective availabilities, the parties agreed to have the motion determined in their absence on the papers and for the outcome to be published electronically.

Evidence on the motion 1. The only evidence read on the motion was an affidavit from the defendant, Mr Michael Unicomb, sworn on 31 August 2015, and an affidavit from the plaintiff, Mr Leonardus Smits, sworn on 21 October 2015.

Consideration 1. The defendant lives at East Maitland and conducts an accountancy business in the Maitland region. There are other proceedings numbered 2014/325866 between the parties in the District Court at Newcastle. There is no satisfactory evidence that those proceedings involve the same subject matter as these proceedings. 2. The defendant has stated that to his knowledge the plaintiff variously and occasionally resided in Mullumbimby, Lismore and the Maitland area. The defendant noted that the affidavit verifying the plaintiff's statement of claim, whilst identifying the plaintiff's address as being in Mullumbimby, was sworn in East Maitland on 3 August 2015. 3. In contrast, the plaintiff has stated that at all material times he has resided at Mullumbimby. The plaintiff's affidavit contained material that was largely extraneous. In essence, due to his illness that required surgery, he has had extensive periods in hospital in Queensland, which he said explained his successive inability to make court appearances on the various occasions his case has been mentioned. 4. The plaintiff's connection to the Hunter region has been that during the period covered by the statement of claim he has stayed at hotels and guest houses in the Hunter region as had been variously arranged by the defendant. Those arrangements are no longer current. 5. The plaintiff has pointed to the defendant's involvement in "many" litigation matters issued in Brisbane and Sydney, and that he travels extensively and engages solicitors in Newcastle and Maitland for those matters. The source of that knowledge was stated to be the plaintiff's extensive familiarity and experience of the defendant. The plaintiff consequently argued that the defendant could readily engage solicitors from Lismore to act for him or to appoint solicitors to act as the agents of any solicitors he might engage in Newcastle or Maitland. 6. At present, the defendant has no solicitors on the record, however, he arranged for a Lismore solicitor, Mr L Warren, of Somerville Laundry Lomax, to represent him for the limited purpose of indicating his consent to this motion being dealt with on the papers. 7. Whilst the locations in Lismore and Newcastle are not entirely convenient to either of the self-represented parties, the defendant has not demonstrated that the forum chosen by the plaintiff is in the relevant sense, inconvenient. Nor has the defendant demonstrated any lack of appropriate nexus to the North Coast region. The evidence discloses that the defendant has had dealings with the plaintiff in that region by email and by correspondence, which also tends to confirm the plaintiff's location in the area. 8. In my view it has not been shown that the plaintiff commenced his proceedings in Lismore inappropriately. Nor has it been shown that the venue of Lismore is in the relevant sense, inconvenient. On the evidence, the defendant has not made a case for a change of venue.