Aboud, Y. v Neville, J.P

[1993] FCA 643

IN THE FEDERAL COURT OF AUSTRALIA	)
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NEW SOU TH WALES DISTRICT REGISTRY ) NO. NG 500 of 1993

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GENERAL DIVISION )

BETWEEN :  YOLLA ABOUD

Applicant

AND :  JOHN PATRICK NEVILLE

1 6 SEP 1993 First Respondent

ALISON LINSLEY NEVILLE

Second Respondent

REASONS FOR JUDGMENT

LOCKHART J.

This is a motion by the applicant in a proceeding for leave

to appeal from an order of a single judge of the Court made on

12 August 1993 directing that the proceeding be transferred to

the District Court of New South Wales.

it is not apparent from the face of the order as to the particular source of jurisdiction relied on by his Honour, it is obvious that it was S. 86A of the T r a d e P r a c t i c e s A c t 1974. His Honour was obviously satisfied of the matters that must be established in order to invoke that jurisdiction.

~ E h o u ~ h

for declarations and for damages for alleged contravention of S.
The material that was before his Honour consisted of the
application which commenced the proceedings, and the statement

of claim which has been filed by the applicant. It appears from

those two documents that the applicant is suing the respondents

52 of the T r a d e P r a c t i c e s A c t and S. 42 of the F a i r T r a d i n g A c t

of New South Wales.

The applicant purchased a business, being a coffee shop and restaurant, at Penrith from the respondents and the applicant asserts that a number of false and misleading representations were made by or on behalf of the respondents to the applicant, primarily with respect to the gross takings of the business. The purchase price of the business was $450,000.

When the matter came into the list on the first occasion for directions hearing on 12 August, his Honour raised with counsel

the question whether it was appropriate that the matter be

retained in this Court or be transferred to the District Court.

His Honour took the view on the material before him which, as I

say, was an application and a statement of claim only, that it

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would be virtually impossible for the damages to exceed $250,000 in the light of the purchase price of the business being $450,000

and because the essential allegation was misleading conduct with

respect to gross takings of the business.

His Honour acted on his own motion in transferring the matter to the District Court, without opposition from the respondents but against the wishes of the applicant. Then the applicant took out this motion which is the first motion of its kind to have been taken out. Orders transferring proceedings under the cross-vesting legislation are unappealable, but this is an order that could not have been made under that legislation because the Court's power is to transfer matters only to superior courts which would not include the District Court of this state, hence the source of jurisdiction must have been, as I said, S.

86A of the T r a d e P r a c t i c e s A c t .

An order of that kind is, it seems to me, one that may be the subject of an appeal, but it is an interlocutory order, as

indeed the applicant fairly concedes in filing the motion seeking

leave to appeal which is necessary for an order of this kind.

There is before me this morning material which was not before his

Honour, namely an affidavit of a valuer, Mr Peter Frankel who

attaches to his affidavit a valuation report. I do not propose

to traverse it, except to say that he arrives at a value of the

business of approximately $150,000 being a valuation he assigns

as at November 1992 which is the month in which the applicant

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agreed to purchase the business from the respondents.

I will say nothing about whether the valuation is admissible in the substantive proceeding. If it were admitted into evidence and were not the subject of any challenge or scrutiny, then it may be that the applicant would be able to establish a case of damages beyond the monetary limit of the District Court, but that is, I think, essentially a matter of conjecture. There are many arguments that could be put to challenge the validity of the valuation.

I am not persuaded that if the matter were to proceed to trial the reasonable possibility is that the damages of the applicant would be greater than $250,000. I am not persuaded that the course taken by his Honour was a course which could be seriously challenged on the hearing of the appeal. It is true that his Honour had no evidence before him, but the Court not infrequently transfers of its own motion matters from this Court to another court based simply on the application or the statement of claim, doing the best it can in the circumstances. I have alreadymentioned that the only relief sought is declarations and damages, so it is not a case where the District Court would not have power to grant the relevant relief.

Applying all the relevant principles, I am not persuaded that it is a case appropriate for the grant of leave to appeal.

Accordingly, I decline to accede to the motion which is

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dismissed.

The respondents seek an order for costs of the motion. I

do not think it is appropriate that they receive their costs. The attitude taken by the respondents throughout the matter has been one of not consenting but not opposing the transfer of the proceedings to the District Court and the same attitude has been displayed in relation to today's motion, a perfectly proper attitude for the respondents to take but not one which I think

entitles them to costs.	I make no order as to costs of the
motion.

I certify that this and the preceding four (4) pages are a true copy of the reasons for judgment h e r p u y f r e

Mr. Justid Loc h r

,/'

Dated: 3 September 1993

Counsel for the Applicant	M Oakes
Solicitors for the Applicant :	Leslie E Abboud
Solicitors for the Respondents:	Peter John Adams
Date of Hearing	3 September 1993
Date of Judgment	3 September 1993