Marque Lawyers Pty Ltd v Ryer Development Ltd [2017] NSWSC 1397

Supreme Court New South Wales

Medium Neutral Citation: Marque Lawyers Pty Ltd v Ryer Development Ltd [2017] NSWSC 1397 Hearing dates: 11 October 2017 Date of orders: 13 October 2017 Decision date: 13 October 2017 Jurisdiction: Common Law Before: Lonergan J Decision: The notice of motion is dismissed with costs. Catchwords: CIVIL PROCEDURE – transfer of proceedings – application to transfer proceedings to Local Court – where Defendant incorporated overseas – where Local Court service cannot be effected overseas – proper jurisdiction – where judgments of the Supreme Court are enforceable overseas by statute but judgments of the Local court are not Legislation Cited: Civil Procedure Act 2005 (NSW) ss 56, 57, 58, 146 Uniform Civil Procedure Rules 2005 (NSW) r 8.2, Pts 11, 39, 40 Cases Cited: Bodenstein v Hope Street Urban Compassion [2014] NSWSC 174 Category: Procedural and other rulings Parties: Marque Lawyers Pty Ltd (Plaintiff) Ryer Development Ltd (Defendant) Representation: Counsel: N Mattock, solicitor (Plaintiff) D Parish (Defendant)

Solicitors: Marque Lawyers (Plaintiff) Aubrey Brown Lawyers (Defendant) File Number(s): 2017/141503 Publication restriction: Nil

Judgment 1. These proceedings concern a claim in contract for payment of legal fees for work performed by the Plaintiff for the Defendant between January 2013 and May 2016. The Plaintiff is a firm of lawyers which conducts its practice in George St, Sydney. The Defendant is a company incorporated in Hong Kong. 2. The Defence filed in the proceedings in June 2017 raises by way of defence that the work undertaken was not carried out efficiently or with due care and skill and that unnecessary costs were incurred in breach of the implied terms of the costs agreements. 3. The proceedings were commenced in May 2017 and have proceeded efficiently to this stage with current orders in place for the Defendant to complete service of its evidence by 26 October, the Plaintiff having completed service of its evidence by 28 September 2017. The proceedings are listed for further directions on 2 November 2017. 4. The Defendant, by way of Notice of Motion filed 22 September 2017 (and as amended in Court on 11 October 2017) seeks transfer of the proceedings to the Local Court of New South Wales. By way of secondary order, it seeks a notation that the preferred venue is Wyong. The order is sought pursuant to s 146(1) of the Civil Procedure Act 2005 (NSW), and the venue of Wyong is sought pursuant to Uniform Civil Procedure Rules 2005 (NSW) r 8.2(1). 5. Section 146(1) of the Civil Procedure Act 2005 (NSW) provides as follows: 146 Transfer of proceedings to lower court (1) If the Supreme Court is satisfied, in relation to proceedings before it: (a) that the proceedings could properly have been commenced in the District Court or the Local Court, and (b) that any cross-claim in the proceedings could properly have been brought as a cross-claim in the District Court or the Local Court, the Supreme Court may order that the proceedings, including any such cross-claim, be transferred to the District Court or to the Local Court, as the case requires. 1. Rule 8.2 of the UCPR provides as follows: 8.2 Change of venue generally (1) If it appears to a court: (a) that a fair or unprejudiced trial of a question arising or likely to arise in or in connection with any proceedings cannot otherwise be had, or (b) for any other reason it is appropriate for the venue of any proceedings to be changed, the court may, subject to this Part, make an order changing the venue of the proceedings. (2) The judicial officer before whom proceedings are being heard by the court may direct that proceedings commenced at one location be continued at another location at which he or she is authorised to hear those proceedings. 1. Also relevant to the application are ss 56, 57 and 58 of the Civil Procedure Act 2005 (NSW) which provide relevantly as follows: 56 Overriding purpose (1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule. … 57 Objects of case management (1) For the purpose of furthering the overriding purpose referred to in section 56 (1), proceedings in any court are to be managed having regard to the following objects: (a) the just determination of the proceedings, (b) the efficient disposal of the business of the court, (c) the efficient use of available judicial and administrative resources, (d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties. (2) This Act and any rules of court are to be so construed and applied, and the practice and procedure of the courts are to be so regulated, as best to ensure the attainment of the objects referred to in subsection (1). 58 Court to follow dictates of justice (1) In deciding: (a) whether to make any order or direction for the management of proceedings, including: (i) any order for the amendment of a document, and (ii) any order granting an adjournment or stay of proceedings, and (iii) any other order of a procedural nature, and (iv) any direction under Division 2, and (b) the terms in which any such order or direction is to be made, the court must seek to act in accordance with the dictates of justice. (2) For the purpose of determining what are the dictates of justice in a particular case, the court: (a) must have regard to the provisions of sections 56 and 57, and (b) may have regard to the following matters to the extent to which it considers them relevant: (i) the degree of difficulty or complexity to which the issues in the proceedings give rise, (ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities, (iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties, (iv) the degree to which the respective parties have fulfilled their duties under section 56 (3), (v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings, (vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction, (vii) such other matters as the court considers relevant in the circumstances of the case. 1. In support of its application, the Defendant relies on the affidavit of Michelle Aitken, sworn 22 September 2017. That affidavit deposed to the asserted connections with Wyong that comprised in essence, the place of business of the solicitors for the Defendant, the address of a possible witness for the Defendant, and the Defendant's business interests in the area, which their main witness, Mr Charlesworth, attends when he is in Australia. 2. In opposition to the application, the Plaintiff relied on the affidavit of Nathan Thomas Mattock, sworn 5 October 2017. That affidavit comprised a combination of evidence and submissions.