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

1. 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.

2. 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.

3. 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.”

4. The background to this application is that the plaintiff’s statement of claim was filed on 31 July 2024 in this Court and relates principally to debts allegedly due under a loan agreement together with interest and costs. It was a term of the loan agreement that the agreement would be governed by and construed in accordance with the laws of Victoria and there was a clause which provided for the parties’ non-exclusive submission to the jurisdiction of the courts of Victoria.

5. The registered address and the principal place of business of the first defendant are in Victoria and the second and fourth defendants are both residents of Victoria. The third defendant is a resident in the Australian Capital Territory. All four defendants’ legal representatives are based in Victoria. The plaintiff is a resident in the Australian Capital Territory but his solicitors are located in New South Wales. There are two witnesses, other than the parties, whom the fourth defendant proposes to call and they are both resident in Victoria.

6. The transfer of proceedings from this Court to the Supreme Court of Victoria is governed by s 5(2) of the Cross-vesting Act, which relevantly provides as follows:

“5   Transfer of proceedings

(2) Where –

(a) a proceeding (in this subsection referred to as the relevant proceeding) is pending in the Supreme Court (in this subsection referred to as the first court), and

(b) it appears to the first court that –

…

(iii) it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of another State or of a Territory,

the first court shall transfer the relevant proceeding to that other Supreme Court.”

7. By virtue of s 5(2), the Court must determine whether it is in the "interests of justice" to order the transfer of the proceedings to the Supreme Court of Victoria. In doing so, the Court can take into account but is not bound by any consent of the parties to the transfers. The relevant principles were considered in BHP Billiton Ltd v Schultz (2004) 221 CLR 400; [2004] HCA 61 (Schultz). These principles were helpfully summarised by Lonergan J in Pilbara Ports Authority v Ashton [2019] NSWSC 1488 at [12] and include the following:

““a. The power to exercise the power to transfer is not a discretionary power but a mandatory obligation when the interests of justice are determined. No question of discretion arises:[Schultz] at 434-5 [62]-[63] (per Gummow J); 481 [222] (per Callinan J).

b. The plaintiff's choice of forum, indicated by commencement of the proceedings, does not require any specific emphasis or weight to be given to it: Schultz at 425 [25] (per Gleeson CJ, McHugh and Heydon JJ); 439 [77] (per Gummow J); 466 [170] (per Kirby J); 492 [258] (per Callinan J).

c. The court hearing the application is required to decide which is the more appropriate court upon a fair balancing of all the factors defining the relevant interests of justice: Schultz at 424 [22] (per Gleeson CJ, McHugh and Heydon JJ).

d. The interests of justice are not the same as the interests of one party and there may be interests wider than those of either party to be considered: Schultz at 421 [15] (per Gleeson CJ, McHugh and Heydon JJ).

e. The more appropriate court will be the court that is the natural forum as determined by connecting factors to that forum: Schultz at 419-20 [10] (per Gleeson CJ, McHugh and Heydon JJ); Valceski v Valceski [2007] NSWSC 440 at 411 [69].

f. Relevant connecting factors include matters of convenience and expense such as the availability of witnesses, the places where the parties respectively live or carry on their business, especially if relevant to the issues, and the law regulating the relevant facts in issue: Schultz at 422-3 [18]-[19] (per Gleeson CJ, McHugh and Heydon JJ).

g. In many cases, there will be a preponderance of connecting factors with one forum so that the answer to the question of which is the more appropriate forum is clear: Schultz at 423 [19] (per Gleeson CJ, McHugh and Heydon JJ).

…”.

8. Taking into account the principles set out above, all of the evidence before this Court and the agreement of the parties contained in the proposed consent orders, I am satisfied that it is in the interests of justice for the proceedings to be determined by the Supreme Court of Victoria. Accordingly, an order in accordance with par 1 of the form of consent orders referred to above should be made.

9. Paragraph 2 of the form of consent orders, however, presents a difficulty. Once the proceedings are ordered to be transferred, it does not appear to me to be appropriate for this Court to make orders in relation to the future conduct of the proceedings in the Supreme Court of Victoria. Nonetheless, in order to give effect to the substance of the agreement of the parties recorded in the form of short minutes, the Court could note an undertaking by the fourth defendant to file a defence within five business days after the Supreme Court of Victoria allocates a proceeding number to the transferred proceedings. I note that the fourth defendant is prepared to give such an undertaking.

10. As far as the costs in this Court are concerned, in light of the parties’ agreement referred to in par 3 of the form of consent orders, the costs of the proceedings in this Court should be costs in the cause.

11. Accordingly, the orders of the Court are:

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.

12. 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.

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Decision last updated: 10 October 2024