Apollo Kitchens (NSW) Pty Limited v Goway Travel Pty Limited (No. 3)

[2020] NSWSC 1751

Supreme Court

New South Wales

Medium Neutral Citation:

Apollo Kitchens (NSW) Pty Limited v Goway Travel Pty Limited (No. 3) [2020] NSWSC 1751

Hearing dates:

On the papers

Date of orders:

7 December 2020

Decision date:

07 December 2020

Jurisdiction:

Common Law

Before:

Johnson J

Decision:

1 Pursuant to r 21.2 of the Uniform Civil Procedure Rules 2005 (NSW) the Plaintiff give discovery by 8 December 2020.

2   The Defendant provide access to the balance of its discovered documents by 18 December 2020.

3 The parties exchange verified lists of discovered documents in accordance with rr 21.3 and 21.4 Uniform Civil Procedure Rules 2005 (NSW) by 5 February 2021.

4 Pursuant to s 146 of the Civil Procedure Act 2005 (NSW), the proceedings be transferred to the District Court of New South Wales.

Catchwords:

PRACTICE AND PROCEDURE - proceedings commenced in Supreme Court - parties agree that transfer of proceedings to District Court is appropriate given quantum of claim - order made for transfer of proceedings to District Court

Legislation Cited:

Civil Procedure Act 2005

Cases Cited:

Apollo Kitchens (NSW) Pty Limited v Goway Travel Pty Limited [2020] NSWSC 852

Apollo Kitchens (NSW) Pty Limited v Goway Travel Pty Limited (No. 2) [2020] NSWSC 1157

Texts Cited:

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Category:

Procedural and other rulings

Parties:

Apollo Kitchens (NSW) Pty Limited (Plaintiff)
Goway Travel Pty Limited (Defendant)

Representation:

Counsel:
Mr D Talintyre; Mr M Cobb-Clark (Plaintiff)
Mr AE Maroya; Ms SA Scott (Defendant)

Solicitors:
Blackstone Waterhouse (Plaintiff)
Richard Glover Law Practice (Defendant)

File Number(s):

2018/253671

Publication restriction:

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Judgment

1. JOHNSON J: The history of this litigation in the Supreme Court is contained in my judgment of 28 August 2020: Apollo Kitchens (NSW) Pty Limited v Goway Travel Pty Limited (No. 2) [2020] NSWSC 1157 (“Apollo Kitchens (No. 2)”).

2. In Apollo Kitchens (No. 2), I made orders for discovery and concerning costs thrown away as a result of the earlier vacation of a hearing date in the proceedings.

3. In recounting what lay ahead in the proceedings, I said at Apollo Kitchens (No. 2) at [3]:

“A joint position has been reached by Apollo and Goway that, given the quantum of the claim, the proceedings should be transferred to the District Court of New South Wales pursuant to s.146(1) Civil Procedure Act 2005. At an appropriate point, I will make an order to that effect so that the progress and determination of the proceedings will occur in the District Court.”

4. At the request of the parties, the proceedings remained in the Supreme Court for a period to allow the discovery phase of the litigation to be progressed before an order was made for transfer to the District Court. I observed that, at an appropriate time, an order would be made under s.146(1) transferring the proceedings to the District Court: Apollo Kitchens (No. 2) at [109].

5. Since 28 August 2020, the process of giving discovery as between the parties has not been straightforward and has been complicated further by the impact of the COVID-19 pandemic. It is not necessary, for the purposes of the present judgment, to recount what has happened since 28 August 2020 concerning discovery.

6. It is the case that further steps remain to be taken by both the Plaintiff and the Defendant concerning discovery and that orders should be made in this respect. However, the parties agree that the time has come for an order to be made transferring the proceedings to the District Court.

7. Section 146(1) Civil Procedure Act 2005 permits the Supreme Court, if satisfied that proceedings could properly have been commenced in the District Court, to transfer the proceedings to that Court. In determining whether the proceedings could properly have been commenced in the District Court, this Court must have regard to the current limits of the jurisdiction of the District Court as if they had applied when the proceedings were commenced in the Supreme Court on 17 August 2018: s.146(3) Civil Procedure Act 2005.

8. The quantum of the Plaintiff’s claim, and the prospect of transfer to the District Court, was mentioned by me on 30 June 2020 in Apollo Kitchens (NSW) Pty Limited v Goway Travel Pty Limited [2020] NSWSC 852 at [50] when vacating the hearing of the matter. Thereafter, the parties agreed that the quantum of the claim was such that the District Court was the appropriate forum for the hearing and determination of the matter.

9. The quantum of the Plaintiff’s claim in these proceedings is such that I am satisfied that transfer of the proceedings to the District Court is appropriate.

10. There is a practical advantage in the transfer order being made at this stage. The orders made concerning discovery require the parties to take certain steps over the law vacation. In this way, the proceedings should be advanced, in a practical respect, when the first listing occurs in the District Court.

11. In circumstances where an order for transfer has been made by this Court, it is appropriate that short reasons for the making of the order be provided to assist the District Court in understanding why the order was made.

12. It was for these reasons, with the consent of the parties, I made the following orders in Chambers today:

“1 Pursuant to r 21.2 of the Uniform Civil Procedure Rules 2005 (NSW) the Plaintiff give discovery by 8 December 2020.

2   The Defendant provide access to the balance of its discovered documents by 18 December 2020.

3 The parties exchange verified lists of discovered documents in accordance with rr 21.3 and 21.4 Uniform Civil Procedure Rules 2005 (NSW) by 5 February 2021.

4 Pursuant to s 146 of the Civil Procedure Act 2005 (NSW), the proceedings be transferred to the District Court of New South Wales.”

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Decision last updated: 07 December 2020