Supreme Court New South Wales Medium Neutral Citation: Allan v Bendigo and Adelaide Bank Limited [2018] NSWSC 177 Hearing dates: 21 February 2018 Date of orders: 21 February 2018 Decision date: 21 February 2018 Jurisdiction: Common Law Before: Schmidt J Decision: Orders sought made. Catchwords: CIVIL PROCEDURE – Courts – application to transfer District Court proceeding to Supreme Court – application to cross-vest proceeding to Supreme Court of Victoria – consent application – orders made Legislation Cited: Civil Procedure Act 2005 (NSW) Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) Cases Cited: Bendigo and Adelaide Bank Limited v Rathbone [2017] NSWSC 1547 Category: Principal judgment Parties: Greig Millar Allan (Plaintiff) Bendigo and Adelaide Bank Limited ACN 068 049 178 (Defendant) Representation: Counsel: Mr T Bagley (Plaintiff) Mr J Hynes (Defendant) Solicitors: Pike & Verekers Lawyers (Plaintiff) Turks Legal (Defendant) File Number(s): 2018/55463 Publication restriction: Nil EX TEMPORE Judgment 1. HER HONOUR: Dr Allan defends proceedings brought against him in the District Court by the Bendigo and Adelaide Bank Limited to enforce loans assigned to it following the collapse of managed investment schemes run by a group of companies known as the Great Southern Group. They are listed to be heard on 28 and 29 February 2018. 2. Dr Allan now applies to have the proceedings transferred to this Court under s 140(1) of the Civil Procedure Act 2005 (NSW) and then to the Supreme Court of Victoria under s 5(2) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) in circumstances dealt with by R A Hulme J in Bendigo and Australia Bank Limited v Rathbone [2017] NSWSC 1547. There his Honour made orders, by consent in respect of a similar application. 3. That and other similar matters are now listed before Croft J in the Supreme Court of Victoria, who is to hear various matters before that Court under a procedure outlined by his Honour, in a note which is in evidence. I also understand from the parties that his Honour is now to hear all such cases before that Court consecutively. 4. Dr Allan's application is now consented to by the Bank. 5. It is pertinent to note that R A Hulme J explained in Rathbone how that application arose out of managed investment schemes operated by Great Southern, 18 of which had been the subject of numerous class action proceedings in the Supreme Court of Victoria in 2012 and 2013, which were settled in 2014. 6. That Court later approved the deed of settlement in terms which other courts in proceedings later brought in relation to other parties who are claimed to have been bound by that deed, have been found to be enforceable and to bind those who had not elected to opt out of the Victorian proceedings. 7. It also appears from R A Hulme J's judgment that a Mr Peter Dimitrov has also issued proceedings in the original jurisdiction of the High Court challenging the jurisdiction of the Supreme Court of Victoria to approve the deed of settlement, amongst other things. Hearing of cases pending in the Supreme Court of Victoria were then vacated pending determination of that application. 8. On 1 December 2017, Edelman J rejected the Dimitrov application, but Mr Dimitrov is now pursuing an application for leave to appeal that judgment. Croft J has, nevertheless, now listed the cases pending in the Supreme Court of Victoria for hearing commencing on 18 July 2018, according to a scheme which is in evidence. According to his Honour's note, if the relief Dimitrov is now pursuing, is granted in the High Court in the meantime, that decision may have to be revisited. 9. Dr Allan's solicitor, Ms Hold, explained in her affidavit that she understands that issues raised in his defence are similar to those raised in the Victorian cases, including as to the construction of the deed of settlement and the power of the Supreme Court of Victoria in respect of the deed. 10. In those circumstances the parties agreed that like the proceedings dealt with by R A Hulme J, the interests of justice also require that the proceedings brought against Dr Allan in the District Court, should be transferred initially to this Court and then to the Supreme Court of Victoria. 11. I also note that the parties have informed me that earlier this week, Rein J made similar orders transferring proceedings pending in this Court in Bendigo and Adelaide Bank Limited v Burkett, to the Supreme Court of Victoria. Reasons for that decision have not yet been published. 12. Nevertheless, in all of the circumstances I have outlined, like their Honours, I am also satisfied that the interests of justice require that the orders which the parties have agreed be made. 13. Even though it now appears from what has fallen from the parties that the procedure in Victoria, is not strictly a test case procedure, it will nevertheless be more effective and efficient to have one Judge hear all of these pending matters. It is plain that resolution of similar issues in one case by the Supreme Court of Victoria may also have the potential benefit of encouraging parties to consider the outcome in other proceedings and perhaps even then to resolve their proceedings by agreement. 14. In all of those circumstances I am satisfied that the Court's discretion to make the orders which the parties have agreed in terms of the document which is marked MFI 1 should be made. I order accordingly. ********** 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: 22 February 2018