Australian Wholesale Meats (Sydney) v S&R Cool Logistics Pty Ltd

[2018] NSWSC 1541

Supreme Court

New South Wales

Medium Neutral Citation:	Australian Wholesale Meats (Sydney) v S&R Cool Logistics Pty Ltd [2018] NSWSC 1541
Hearing dates:	4 October 2018
Date of orders:	04 October 2018
Decision date:	04 October 2018
Jurisdiction:	Common Law
Before:	Beech-Jones J
Decision:	(1) Order that pursuant to s 140(1) of the Civil Procedure Act 2005 the proceedings before the District Court of New South Wales, being 2015/349540, be transferred to the Supreme Court of New South Wales. (2) That the costs of this summons be reserved. (3) The proceedings so transferred be listed before the Registrar for directions on 18 October 2018 at 9am.
Catchwords:	Transfer of proceedings – doubt about District Court jurisdiction
Legislation Cited:	Civil Procedure Act 2005 (NSW) District Court Act 1973 (NSW)
Cases Cited:	Commonwealth Bank of Australia v QBE Insurance (Australia) Pty Ltd [2018] NSWSC 1440 NTF Group Pty Ltd v PA Putney Finance Australia Pty Ltd (2017) 324 FLR 261; [2017] NSWSC 1194 Sapphire Suite Pty Ltd v Bellini Lounge Pty Ltd [2018] NSWSC 136
Category:	Procedural and other rulings
Parties:	Australian Wholesale Meats (Sydney) Pty Ltd (Plaintiff) S&R Cool Logistics Pty Ltd (First Defendant) Ultra Refrigeration Pty Ltd (Second Defendant)
Representation:	Counsel: DF Elliott (Plaintiff) A Ahmadi (First Defendant)   Solicitors: Lander & Rogers Lawyers (Plaintiff) Holman Webb Lawyers (First Defendant) Barry Nilsson Lawyers (Second Defendant)
File Number(s):	2018/289998

EX TEMPORE Judgment

1. In 2015 proceedings were commenced in the District Court by Australian Wholesale Meats (Sydney) Proprietary Limited (“AWM”). By their amended statement of claim filed on 12 July 2017 they propounded a case against two defendants alleging, in effect, breach of contract, and to an extent negligence in respect of their work in the fit-out and then leasing of a meat chilling room at premises owned by the plaintiff. In the end result it is alleged that because of one or both of the defendants' conduct the chilling room was not maintained at the correct temperature which caused a spoliation of stock. The estimate of the value of the claim is around $182,840.

2. Notwithstanding the fact that the case is ultimately about allegedly spoilt meat, it does have a commercial flavour as the pleadings reveal that the dispute turns on the contractual and other arrangements between the parties.

3. By summons filed 21 September 2018 the plaintiff in the District Court, that is AWM, seeks the transfer of the proceedings to this Court pursuant to s 140(1) of the Civil Procedure Act 2005 (NSW). The two defendants do not oppose that application.

4. The necessity for the application has arisen because a number of decisions of this Court at first instance have held that by a combination of s 44 of the District Court Act1973 (NSW) and the legislative provisions governing the assignment of cases in this Court that were applicable as at 2 February 1998, the District Court does not have jurisdiction in proceedings arising out of commercial transactions, those being the type of matter previously assigned to the former Commercial Division of this Court (see Commonwealth Bank of Australia v QBE Insurance (Australia) Pty Ltd [2018] NSWSC 1440 at [6]; Sapphire Suite Pty Ltd v Bellini Lounge Pty Ltd [2018] NSWSC 1366, and NTF Group Pty Ltd v PA Putney Finance Australia Pty Ltd (2017) 324 FLR 261; [2017] NSWSC 1194, especially at [46] per Parker J.)

5. This case not being personal injury proceedings, it follows that the relevant provision governing a transfer of proceedings out of the District Court into this court is s 140(1) of the Civil Procedure Act. In short, that provision only requires that there be sufficient reason for the proceedings to be transferred.

6. In this case, the relevant reason is that by virtue of the decisions to which I have referred there is now more than sufficient doubt about the jurisdiction of the District Court to hear and determine the claim to justify their transfer to this Court.

7. In these circumstances it is not part of my function on an application in the Duty List for myself to consider whether those decisions should be followed. Clearly that awaits consideration by the Court of Appeal, or perhaps better yet legislative intervention.

8. Parties such as those in this matter should not be required to continue to litigate while there is a cloud of uncertainty over whether the forum they are in can ultimately quell their dispute.

9. Accordingly, and notwithstanding what really is a relatively modest sum in dispute, I do not think I have any choice other than to transfer the proceedings into this Court.

10. Accordingly, I make the following orders:

1. Order that pursuant to s 140(1) of the Civil Procedure Act 2005 the proceedings before the District Court of New South Wales, being 2015/349540, be transferred to the Supreme Court of New South Wales.

2.   That the costs of this summons be reserved.

3.   The proceedings so transferred be listed before the Registrar for directions on 18 October 2018 at 9am.

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