Bank of Queensland Limited v Jones; Bank of Queensland Limited v Xu; Bank of Queensland Limited v Chowdhury

The case involves three separate proceedings brought by the Bank of Queensland Limited against three defendants, Jones, Xu, and Chowdhury. The proceedings stem from failed bank franchise agreements and are based on guarantees provided by the defendants for business term loans and overdraft facilities. The defendants applied for the proceedings to be transferred to the Supreme Court of New South Wales or, in the alternative, for the proceedings to be stayed. They argued that comparable proceedings were being litigated in the New South Wales Supreme Court, and transferring the proceedings would avoid duplication of costs and enable the cases to be managed more efficiently. The Bank opposed the transfer and sought orders to strike out substantial parts of the defences, or in the alternative, an order compelling the defendants to file a defence compliant with the Uniform Civil Procedure Rules 1999 (Qld). The Bank contended that the proceedings should remain in Queensland due to the contractual choice of Queensland law and forum, and the availability of witnesses and residence of the parties.

The court had to determine whether the proceedings should be transferred to the Supreme Court of New South Wales and whether the defences should be struck out. The court considered the factors relevant to determining whether the proceedings should be transferred, including the appropriateness and interests of justice, and whether there were common issues of fact and law that could be more efficiently managed in New South Wales. The court also had to consider the contractual choice of forum and law, and the implications for the disposition of the New South Wales proceedings.

The court refused the defendants’ applications for transfer, finding that there was no assurance that the cases would be heard at the same time as those in New South Wales and that transferring the proceedings would likely dislocate the disposition of the New South Wales proceedings. The court found that the contractual choice of Queensland law and forum, and the availability of witnesses and residence of the parties, favoured keeping the proceedings in Queensland. The court also found that the defendants’ defences were not in compliance with the Uniform Civil Procedure Rules 1999 (Qld), and ordered that the defences be struck out in part. The court ordered costs to be assessed on the standard basis in relation to the applications for transfer and the applications to strike out the defences.

The court's orders were that each defendant’s application for transfer was refused, with costs to be assessed on the standard basis. On each application by the plaintiff filed 4 August 2010, in relation to the striking out of the defence, the order was in terms of paragraphs 1, 3, and 4, with costs to be assessed on the standard basis.