Asia Gold Mining Corp P/L v Gray Eisdell Timms P/L - [1999] QSC 222

IN THE SUPREME COURT
OF QUEENSLAND

No 5445 of 1999
Brisbane

Before Mr Justice Ambrose
[Asia Gold Mining Corp P/L v Gray Eisdell Timms P/L]

BETWEEN ASIA GOLD MINING CORPORATION NL
ACN 008 719 015
Plaintiff

AND GRAY EISDELL TIMMS PTY LIMITED
ACN 003 688 284
Defendant

REASONS FOR JUDGMENT - AMBROSE J
Judgment delivered 21 September 1999

CATCHWORDS: PRACTICE - Jurisdiction - whether the action commenced in the Supreme Court of Qld should be transferred to Supreme Court of NSW under s 5(2) of Jurisdiction of Courts (Cross-Vesting) Act 1987 - consideration of which court is the more appropriate forum - whether for the purposes of applying cross vesting legislation the Supreme Court of NSW should be regarded as ‘foreign to’ the State of Qld

Bankinvest AG v Seabrook & Ors (1988) 14 NSWLR 711
McKain v R W Miller & Co (South Australia) Pty Ltd (1991) 174 CLR 1
Tallangalook Pty Ltd & Ors v Duketon Goldfields NL unreported SC of Victoria 2061 of 1995; delivered 3 February 1997
Uniform Civil Procedure Rules
Jurisdiction of Courts (Cross-Vesting) Act 1987

Counsel: P E Hack for the plaintiff
D G Clothier for the defendant

Solicitors: Shand Taylor for the plaintiff
Minter Ellison for the defendant

Hearing Date: 28 July 1999
IN THE SUPREME COURT
OF QUEENSLAND

No 5445 of 1999
Brisbane

Before Mr Justice Ambrose
[Asia Gold Mining Corp P/L v Gray Eisdell Timmes P/L]

BETWEEN ASIA GOLD MINING CORPORATION NL
ACN 008 719 015
Plaintiff

AND GRAY EISDELL TIMMS PTY LIMITED
ACN 003 688 284
Defendant

REASONS FOR JUDGMENT - AMBROSE J
Judgment delivered 21 September 1999

The defendant brings an application for an order that service upon it of a writ of summons be set aside pursuant to R16(f) of the Uniform Civil Procedure Rules, or in the alternative that the action commenced in this Court be transferred to the Supreme Court of New South Wales pursuant to s 5(2) of the Jurisdiction of Courts (Cross-Vesting) Act 1987.
On 10 June 1999 the plaintiff issued a writ of summons against the defendant claiming damages for breach of contract and for negligence.
On 29 June 1999 the defendant entered a conditional appearance denying jurisdiction of this Court to entertain the action against it without its consent.
On 22 July 1999 the plaintiff delivered a statement of claim which I will not attempt to analyse in detail. It suffices to say that the plaintiff alleges that certain mining equipment which it owned near Temora in the State of New South Wales was auctioned by the defendant which was an auctioneer and valuer conducting business in New South Wales.
The plaintiff alleges that it was a term of its retainer of the defendant to conduct that auction on its behalf that a 25 per cent deposit would be required on all purchases of equipment sold on the auction and that payment of this deposit would be required of successful bidders upon the fall of the auctioneer’s hammer. It is further alleged that it was standard industry practice in auctions of this kind that the auctioneer require a 25 per cent deposit to be paid by successful bidders on the fall of the hammer.
It is alleged that on 25 March 1999 the defendant sold by auction to a purchaser named Stefanetto certain items of the plaintiff’s mining equipment for a total price of $587,438.50.
It is further alleged that the defendant failed to obtain payment of a deposit of 25 per cent of the bid from Mr Stefanetto on the fall of the hammer. It is alleged that Mr Stefanetto having failed to pay the 25 per cent deposit forthwith, the defendant was obliged immediately to re-offer for sale by auction the goods which had been knocked down to him, at that auction.
It is alleged that the defendant failed to obtain instructions from the plaintiff before waiving “the purchaser’s obligation to pay a 25 per cent deposit on the fall of the hammer”.
It is alleged that Mr Stefanetto did not in fact pay any deposit and did not pay any part of the purchase price which he had agreed to pay when the goods were knocked down to him for the sum of $587,438.50.
It is pleaded that the plaintiff was forced to resell the goods for which Mr Stefanetto had failed to pay the agreed price, some by private treaty and some by a later auction sale. It is alleged that the total purchase price received for the goods resold was $248,375.00. In essence the plaintiff claims damages in the sum of $339,000.00 from the defendant for negligence and/or breach of contract upon the facts pleaded.
Although the application to set aside the writ of summons is purportedly made under R 16(f) rather than under R 16(a), the only argument advanced to support the application under R 16(f) is that the contract between the plaintiff and the defendant pursuant to which the auction sale was conducted, was made in Sydney.
It seems on the material not to be seriously contested that the defendant in New South Wales made an offer by facsimile to the plaintiff which it received in Brisbane and the plaintiff then accepted that facsimile offer by itself sending a facsimile message to the defendant which it received in Sydney. The defendant contends that the contract between the plaintiff and the defendant was thus made in Sydney because that is where acceptance of the offer was communicated to the defendant by the plaintiff.
After an interesting discussion of the distinction between a communication of acceptance of an offer by telephone and one by facsimile transmission during which reference was made to an unreported judgment of Hansen J in Tallangalook Pty Ltd & Ors v Duketon Goldfields NL - Butterworth’s unreported judgments BC9700223 at 1, it was contended by the plaintiff that whether the contract was made in Brisbane or Sydney was irrelevant to the jurisdiction of this Court to entertain the plaintiff’s action upon it. In my view that fact is irrelevant to the question of jurisdiction; it is relevant, although not of very significant weight upon the defendant’s cross vesting application. Insofar as the plaintiff seeks a remedy in tort, I refer only to McKain v R W Miller & Co (South Australia) Pty Ltd (1991) 174 CLR 1. To the extent that the plaintiff seeks to enforce contractual rights, in my view, the proper law of that contract is that of New South Wales - where the contract in my view was made, and where the property to be auctioned was located and where the auction sale was conducted and where both auctioneer and purchaser resided. The only connection with Queensland is the fact that it was a Queensland principal which retained an agent in New South Wales to conduct an auction sale in that State of equipment it had used in a New South Wales mining venture.
Although the plaintiff has elected to sue only the agent it retained to conduct the auction sale of its equipment, it seems quite likely to me that the defendant will seek to make parties to that action - in whichever jurisdiction it is conducted - Mr Stefanetto and the two persons who apparently retained him to bid for items at the auction on their behalf. One of those persons is a company in New South Wales and the other a company in Victoria. The plaintiff may also have joined such persons as defendants; however it has elected to proceed only against its commission agent. Presumably it anticipates that the defendant agent will incur the trouble and expense of pursuing rights in third party proceedings which it would undoubtedly have against Mr Stefanetto and the principals who retained him to purchase the plaintiff’s mining equipment on their behalf.
Of course the defendant may elect simply to defend the plaintiff’s action without seeking to have whatever claims it might have against Mr Stefanetto and his principals determined in that action. If that course were adopted and the plaintiff did succeed in obtaining judgment against the defendant, undoubtedly the defendant would then consider whether it ought take proceedings against Mr Stefanetto and probably against his principals. In that event it would be likely that those proceedings would be taken in the State of New South Wales - presumably in the district where the auction sale was conducted.
Quite apart from the likely institution of such proceedings by the defendant against those parties, it would seem to me that an investigation of the events that occurred in the course of the auction sale in issue and the likely result for the plaintiff had the defendant immediately resubmitted the property for auction in the event that Mr Stefanetto did not immediately pay one-quarter of the bid would almost certainly necessitate the calling of a significant number of witnesses from New South Wales - more than would probably be called from Queensland.
On the material advanced upon the hearing of this application it is quite impossible to say what evidence might be led either from Mr Stefanetto or his principals as to his capacity at the time the auction was conducted to pay one-quarter of the sum he bid had he been asked to do so. There is no evidence to indicate whether according to the practice upon which the plaintiff seeks to rely the auctioneer ought to have publicly stated at the commencement of the auction that successful bidders should pay one-quarter of the price bid upon the fall of the hammer. It is impossible on the material to determine whether that will be asserted in the plaintiff’s case. It is certainly not at this stage pleaded in the statement of claim. I must say I would have thought it likely that if there were such a practice adopted by auctioneers of equipment of this sort in New South Wales, they would probably make a statement to that effect at the commencement of the auction sale to avoid the very significant inconvenience of conducting once more an auction of equipment should the successful bidder not immediately pay one-quarter of the sum bid.
It occurs to me that if it were a standard industry practice in auctions of this kind conducted in New South Wales to require a 25 percent deposit on the fall of the hammer a good deal, if not all, of the evidence led to establish that practice would be led from persons familiar with the way the industry was at the material time conducted in New South Wales.
While undoubtedly if the action proceeds in Queensland all such persons can be brought to Queensland to give evidence in Brisbane, I would expect that the costs and inconvenience that would result from that course would be far greater than would be the case if the proceedings were conducted in New South Wales.
In my view the Supreme Court of Queensland clearly does have jurisdiction to entertain the plaintiff’s action. However the important question is whether upon the defendant’s application in the alternative under s 5(2) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 it is more appropriate that the Supreme Court of New South Wales determine the proceedings currently pending in this Court which as I have indicated will probably involve a number of parties yet to be added before it is ultimately determined.
In my view Bankinvest AG v Seabrook & Ors (1988) 14 NSWLR 711 accurately states the guiding principles to be applied upon an application under this section.
Relevant to the facts of this case and the arguments advanced by each of the parties those principles may be stated as follows -
(i)there is no presumption that because this Court has jurisdiction to entertain the plaintiff’s action which has been properly instituted it should exercise that jurisdiction;
(ii)it is unhelpful to consider whether either party to the application has an onus to discharge to succeed in either having an order made or not made;
(iii)the relevant question for consideration is which of the Supreme Court of Queensland and the Supreme Court of New South Wales provides the more appropriate forum to determine the proceedings instituted by the plaintiff.
This may be determined simply by a consideration of the interests of justice in which minimization of costs and inconvenience to the present and likely future parties and their witnesses is relevant. As Rogers A-JA observed in Bankinvest at 724-725 Courts must take care to discourage forum shopping and one of the purposes of s 5(2) of the Act is to achieve this goal by ensuring that proceedings instituted in one State “in pursuit of some real or imaginary advantage, notwithstanding that the dispute as such bore no relation to (that) State” may be transferred from that State to the State with which the dispute does have some real relationship.
For the purpose of applying the cross-vesting legislation it is quite inappropriate to regard the New South Wales Supreme Court as a court “foreign to” the State of Queensland. For the purpose of exercising jurisdiction under the Act I regard that Court no differently from the way I would regard the Supreme Court of Queensland in the far-northern, northern or central districts of Queensland.
The real issue in dispute between the parties will involve a consideration of local circumstances and the “industry practice” in the area where the auction sale was conducted. A determination of the issue whether or not the defendant was negligent or in breach of local industry practice in my view would be more appropriately made in the State of New South Wales.
In my view the Supreme Court of New South Wales is a more appropriate forum in which to determine the dispute between the plaintiff and the defendant and likely other parties to be added to the plaintiff’s action than is the Supreme Court of Queensland. I therefore order that the plaintiff’s action against the defendant, No 5445 of 1999, be transferred to the Supreme Court of New South Wales.
I order that the costs incurred by each of the parties to this application be reserved to the Court of trial.