In the matter of Samwise Holdings Pty Limited [2016] NSWSC 1610

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Samwise Holdings Pty Limited [2016] NSWSC 1610 Hearing dates: Thursday, 10 November 2016 Date of orders: 10 November 2016 Decision date: 10 November 2016 Jurisdiction: Equity - Corporations List Before: Brereton J Decision: Proceedings transferred to Supreme Court of South Australia. Plaintiff respondent to pay fifth defendant applicant's costs of the motion. Catchwords: PROCEDURE – application for order to transfer substantive proceedings to Supreme Court of South Australia – appropriate forum for litigation Legislation Cited: (CTH) Corporations Act 2001, s 1337H, s 1337J(2) (CTH) Jurisdiction of Courts (Cross-Vesting) Act 1987 (CTH) Personal Property Securities Act 2009 Cases Cited: BHP Billiton Limited v Schultz (2004) 221 CLR 400 Category: Procedural and other rulings Parties: Allied Distribution Finance Pty Ltd ACN 608 777 108 (plaintiff/respondent) Samwise Holdings Pty Limited (fifth defendant/applicant) Representation: Counsel: A Spencer (plaintiff/respondent) K Anderson (fifth defendant/applicant)

Solicitors: Bayside Solicitors (plaintiff/respondent) Christie & Associates (fifth defendant/applicant) File Number(s): 2016/299391

Judgment (ex tempore) 1. HIS HONOUR: By interlocutory process filed on 17 October 2016 the fifth defendant applicant, Samwise Holdings Pty Limited, applies for an order pursuant to (CTH) Corporations Act 2001, s 1337H, that the substantive proceedings be transferred to the Supreme Court of South Australia. 2. Although when they were instituted there were, at least potentially, other issues in the substantive proceedings, they now essentially involve a dispute between the plaintiff Allied Distribution Finance Pty Limited and the fifth defendant Samwise Holdings as to their respective priority as secured creditors of the company in liquidation Samwise Pty Limited. Corporations jurisdiction is involved because the company is in liquidation – with the consequence that leave to proceed against it is required – and because the dispute is over assets of the company in liquidation. Nonetheless, the principal relief sought is under (CTH) Personal Property Securities Act 2009, rather than the Corporations Act. 3. The subject matter of the proceedings is two motor cycles, which were held by the company pursuant to a floor plan. That subject matter is located in South Australia. The remaining active defendant – the present applicant – has its place of business and registered office in South Australia. The company conducted its business and had its registered office in South Australia. Its liquidators are located in South Australia and, prior to the institution of these proceedings, they had foreshadowed an application for directions to the Supreme Court of South Australia. Although it seems unlikely that oral evidence will be required at the hearing, the fifth defendant's witnesses, if any, appear to be located in South Australia. 4. The plaintiff, on the other hand, is located in New South Wales, and its witnesses, so far as appears, are located in New South Wales. 5. The bailment agreement between the company and the plaintiff, pursuant to which it obtained its security, contains a provision providing that the governing law of that agreement is the law of New South Wales and by which the parties to that contract – which I hasten to add do not include the present applicant – submitted to the jurisdiction of the Courts of this State. 6. Corporations Act, s 1337J(2) provides as follows: (2) If it appears to the transferor court: (a) that the relevant proceeding arises out of, or is related to, another proceeding pending in: (i) the Federal Court; or (ii) another State or Territory court; and that the Court which the other proceeding is pending is the most appropriate court to determine the relevant proceeding; 1. In applications under that provision, as in applications for transfer between courts under the (CTH) Jurisdiction of Courts (Cross-Vesting) Act 1987, the essential consideration is the identification of the more appropriate forum [see BHP Billiton Limited v Schultz (2004) 221 CLR 400 at [14]]. It is sometimes possible to identify a "natural" forum for the litigation in question. In the context of Federal jurisdiction and national legislation Act legislation such as the Corporations Act and the Personal Properties Securities Act, where companies are now incorporated not in a particular state but within Australia, and where the State Supreme Courts exercise concurrent jurisdiction with the Federal Court under the Corporations legislation, it may be that notions of a natural forum carry less weight than otherwise. Nonetheless, one function of s 1337J is to encourage plaintiffs to institute proceedings in the most appropriate court and to discourage them from opportunistic forum shopping, at least without consent. 2. It would be quite wrong, however tempting, for this Court to hold that the New South Wales Corporations Court was a more appropriate forum than any other for any corporations dispute in the country. While one can understand a party seeking to invoke the expedition and expertise that a specialist court such as this Court's Corporations list claims to offer, it is worth observing that the test is the more "appropriate", rather than the more "convenient" court. 3. It may well be, as Mr Spencer has submitted, that in the light of the remaining issues in these proceedings the attendance of no witness will be required, and that the dispute will involve only a question of law depending on documentary evidence and could be resolved in a short time – potentially, if the case were to remain in this Court, though unlikely if they were transferred, even before the end of this year. But while considerations of convenience are not irrelevant to appropriateness, they are not determinative of it. 4. The natural forum for this litigation is and always has been South Australia. That is dictated by the location of the subject matter, the location of the defendant, the location of the company in liquidation and the location of its liquidators. That is not outweighed by the location of the plaintiff. In those circumstances, I am satisfied that the more appropriate forum for this litigation is the Supreme Court of South Australia. 5. Accordingly, the Court orders that: 1. These proceedings be transferred to the Supreme Court of South Australia. 2. The plaintiff respondent pay the fifth defendant applicant's costs of the motion.