Bai v Canberra Future Property Pty Ltd - [2024] NSWSC 1273

Supreme Court

New South Wales

Medium Neutral Citation: Bai v Canberra Future Property Pty Ltd [2024] NSWSC 1273
Hearing dates: 10 October 2024
Date of orders: 10 October 2024
Decision date: 10 October 2024
Jurisdiction: Common Law
Before: Wright J
Decision:
(1) Under s 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW), these proceedings are transferred to the Supreme Court of Victoria.
(2) The costs of each party in respect of the proceedings in this Court are to be costs in the cause.
The Court notes the undertaking by the fourth defendant that he will file his defence within five business days after the Supreme Court of Victoria allocates a proceeding number in respect of the transferred proceedings.

Catchwords:
CIVIL PROCEDURE – cross-vesting – transfer to another Supreme Court – relevant factors – more appropriate or convenient forum – transfer granted

Legislation Cited:
Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW), ss 5(2), 5(2)(b)(iii)

Cases Cited:
BHP Billiton Ltd v Schultz (2004) 221 CLR 400; [2004] HCA 61
Pilbara Ports Authority v Ashton [2019] NSWSC 1488

Category: Principal judgment
Parties: Hua Bai (Plaintiff)
Canberra Future Property Pty Ltd (First Defendant)
Xu Li (Second Defendant)
Youxin Zhao (Third Defendant)
Lin Zhang (Fourth Defendant)
Representation:
Counsel:
D Edney (Plaintiff)
Mr C Beshara with Mr L Shivarey (First and Second Defendants)
Solicitors:
Pancific Legal (Plaintiff)
TNS Lawyers (First and Second Defendants)
KHQ Lawyers (Third Defendant)
Prudentia Legal (Fourth Defendant)

File Number(s): 2024/00280308
Publication restriction: N/A

ex tempore JUDGMENT

By a notice of motion filed on 17 September 2024 the fourth defendant, Mr Lin Zhang, has sought orders dismissing or staying the proceedings on the ground of forum non conveniens or, alternatively, an order pursuant to s 5(2) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) (the Cross-vesting Act) for the transfer of these proceedings to the Supreme Court of Victoria. In addition, Mr Zhang has sought an order that the requirement for him to file a defence be deferred until the determination of the application. As to costs, Mr Zhang sought that the plaintiff, Mr Bai, be ordered to pay his costs of the motion.
In support of his application, Mr Zhang relied on an affidavit of his solicitor, Mr Andrew Zhu, sworn on 17 September 2024. There was no challenge to Mr Zhu’s evidence and I accept it.
The parties have now reached agreement to resolve the notion of motion and short minutes of orders proposed to be made by consent were signed on behalf of each party. The orders proposed to be made by consent were in the following terms:

“1 The proceeding be transferred to the Supreme Court of Victoria pursuant to section 5(2) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW).
2 That the fourth defendant file a defence within 5 business days after the Supreme Court of Victoria allocates proceeding number to the transfer proceedings.
3 Cost in the cause.”

The background to this application is that the plaintiff’s statement of claim was filed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bai v Canberra Future Property Pty Ltd

Details

AGLC: Bai v Canberra Future Property Pty Ltd [2024] NSWSC 1273
Case: [2024] NSWSC 1273
Decision Date: 10 October 2024

CaseChat Overview and Summary

The case involved Bai, the plaintiff, and Canberra Future Property Pty Ltd, the defendant. The dispute pertained to a property transaction, and Bai sought to transfer the case from the Supreme Court of New South Wales to the Supreme Court of the Australian Capital Territory. The legal matter was heard in the Supreme Court of New South Wales, where the plaintiff sought a cross-vesting order to facilitate the transfer of the proceedings to another Supreme Court. The primary legal issues revolved around the factors that should be considered when determining whether a case should be transferred to a more appropriate or convenient forum. The court had to assess whether the transfer was warranted based on the circumstances presented.

The court considered several factors in making its decision, including the convenience of the parties, the witnesses, and the location of the property in question. The court also examined whether the transfer would cause any undue delay or prejudice to either party. In this instance, the court determined that the transfer was justified because the property in dispute was located in the Australian Capital Territory, and most of the witnesses resided there. Additionally, the court concluded that the transfer would not result in any undue hardship or delay for either party. Consequently, the court granted the plaintiff's application for cross-vesting.

The court's reasoning and outcome in this case underscore the importance of considering various factors when deciding whether to transfer a case to another Supreme Court. In this particular instance, the court found that the transfer was appropriate and granted the plaintiff's application. The final orders included the transfer of the proceedings to the Supreme Court of the Australian Capital Territory, allowing the case to proceed in a more convenient and appropriate forum for the parties involved.

Orders