Beckwith, Jacqueline v Applied Financial Services Pty Ltd

[1998] FCA 1063

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 269  of   1998

BETWEEN:

JACQUELINE BECKWITH
First Applicant

ROBERT YEE
Second Applicant

AND:

APPLIED FINANCIAL SERVICES PTY LIMITED
ACN 006 842 771
First Respondent

JOHN PAUL EDWARD CROWLEY-CLOUGH
Second Respondent

FINCHLEYS PTY LTD
ACN 051 419 026
Third Respondent

JUDGE:

HILL J

DATE OF ORDER:

21 AUGUST 1998

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1. The proceedings be remitted to the Victoria Registry of this Court.

1. The New South Wales Registrar forward the file to the Victoria Registrar so that a date can be notified to the parties as a return date for the next directions hearing on a date not sooner than 13 November 1998.

1. The Applicants pay the costs of today including the time taken up until now to argue matters and otherwise direct that the costs of the motion, excluding the costs relating to security for costs, if there be any, be costs in the proceedings.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 269 of 1998

BETWEEN:

JACQUELINE BECKWITH
First Applicant

ROBERT YEE
Second Applicant

AND:

APPLIED FINANCIAL SERVICES PTY LIMITED
ACN 006 842 771
First Respondent

JOHN PAUL EDWARD CROWLEY-CLOUGH
Second Respondent

FINCHLEYS PTY LTD
ACN 051 419 026
Third Respondent

JUDGE:

HILL J

DATE OF ORDER:

21 AUGUST 1998

WHERE MADE:

SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

The Respondents in the present proceedings, Applied Financial Services Pty Limited, John Paul Edward Crowley-Clough and Finchleys Pty Limited move the Court for an order that the proceedings be removed to the Victorian registry of this Court.

The statement of claim alleges an agreement entered into between the Applicants, Jacqueline Beckwith and Robert Yee, with Applied Financial Services Pty Limited relating to an alleged arrangement for the provision of finance to Applied Financial Services Pty Limited.  The allegation is that that company breached the agreement, inter alia, by failing to issue shares to one or both of the Applicants.

One might have wondered why the matter is at all in the jurisdiction of this Court but the application is said to rely not only upon the Trade Practices Act 1974 but also s 1005 of the Corporations Law, so there is an allegation in the statement of claim, inter alia, of unconscionable conduct.  It does, however, seem to me that the parties ought perhaps to give some consideration as to whether the case ought more properly to be heard in the Supreme Court rather than this Court, but that is not a matter that directly falls for decision by me this morning.

Evidence adduced on the motion makes it clear that the Applicants carry on business as advisers and financial intermediaries in Hong Kong.  They have no office in New South Wales or for that matter Victoria.  The First Respondent is both incorporated in and a resident of Australia.  It has no office or operation in New South Wales.  The Second Respondent resides in Victoria.  The Third Respondent is again incorporated in and registered in Victoria and has no office and conducts no operations in this State.  It seems clear that if any contract was made, as alleged, it took place as a result of conferences, telephone conversations and email communications between Melbourne and Hong Kong, London or Tokyo, but that no communication ever took place in New South Wales or was with any person who was at that time, or now, in the State.

Indeed, the representative of the Applicants conceded before me (no evidence having been filed on behalf of his clients in the motion or for that matter in accordance with orders previously made in the application) that there was no connection at all between the subject matter or the parties and New South Wales, other than being his representation in this State of the Applicants.

It is not suggested that any witness would reside in New South Wales and it is obvious that the witnesses in the hearing will be either the Applicants themselves or persons resident outside the jurisdiction and the Respondents or persons connected with them who are in Victoria.  Although, no doubt, it is appropriate to give consideration to the place where proceedings commence as a relevant matter in the exercise of discretion, the case is clearly one where the efficient administration and management of the case, and in particular the hearing, would be most appropriate if the matter is remitted to the Victorian registry of this Court rather than that it continue in this State, particularly in circumstances where it may very well be that there is a need for the Respondents to be separately represented and each of them is likely to be represented in Victoria.

In the circumstances I propose to order that the proceedings be remitted to the Victoria Registry of this Court and I would direct the New South Wales Registrar to forward the file to the Victoria Registrar so that a date can be notified to the parties as a return date for the next directions hearing.  I should perhaps for completeness, mention that the Applicants have failed to comply with directions made on the last occasion which would have led to the matter being ready for hearing today.  Not a single one of those directions was complied with, the only excuse given being that negotiations were taking place on the question of security of costs.  I have, as requested by the parties, extended the time for various interlocutory steps to be taken which, if complied with, should ensure that the matter is ready for hearing on a date after 13 November 1998.

Should those directions not be complied with on this occasion no doubt the Court would entertain an application by the Respondents to strike out the proceedings. 

I will direct that the Applicants pay the costs of today, including the time taken up until now to argue matters and otherwise.  I direct that the costs of the motion, excluding the costs relating to security for costs be just costs in the proceedings, if there be any.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill

Associate:

Dated:            August 1998

Counsel for the Applicants:	Mr Barbouttis
Solicitor for the Applicants:	J M Barbouttis
Counsel for the Respondents:	Ms Deamer
Solicitor for the Respondents:	Phillips Fox
Date of Hearing:	21 August 1998
Date of Judgment:	21 August 1998