Bendigo and Adelaide Bank Limited v Heath

[2018] NSWSC 1030

Supreme Court

New South Wales

Medium Neutral Citation:	Bendigo and Adelaide Bank Limited v Heath [2018] NSWSC 1030
Hearing dates:	2 July 2018
Date of orders:	02 July 2018
Decision date:	02 July 2018
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	1. District Court proceedings number 2016/0044540 (Proceeding) is removed to the Supreme Court pursuant to s 8 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW). 2. The proceeding is then transferred to the Supreme Court of Victoria pursuant to s 5(2) of the said Act. 3. Costs are costs in the cause. I note that matters agreed between the parties recorded in paras 1 and 2 of the notation to the consent order.
Catchwords:	PRACTICE AND PROCEDURE – application to remove proceedings pending - whether proceedings should be transferred to the Supreme Court of Victoria - Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) - class action - deed of settlement
Legislation Cited:	Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW), ss 5, 8 Supreme Court Act 1986 (Vic)
Cases Cited:	Nil
Texts Cited:	Nil
Category:	Consequential orders (other than Costs)
Parties:	Bendigo and Adelaide Bank Limited (Plaintiff) Kerry Elizabeth Heath (Defendant)
Representation:	Counsel: B Koch (Plaintiff) ex parte     Solicitors: TurksLegal (Plaintiff) Sasha Ivantsoff Solicitors (Defendant)
File Number(s):	2018/00182257
Publication restriction:	No

Judgment

1. HIS HONOUR: This is an application to remove proceedings pending in the District Court to this Court for the purpose of considering whether they should be transferred to the Supreme Court of Victoria under the provisions of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) (“Cross-Vesting Act”). Similar applications arising from the same matrix have been dealt in other matters by other judges of this Court being RA Hulme J, Rein J and Schmidt J. Their Honour's decisions are annexed to the affidavit of Ms P M Kastanias (Solicitor) upon whose affidavit Mr Koch of Counsel moves for the relief sought. It is unnecessary to detail them. The defendant consents to the orders being made.

2. The proceedings essentially maybe taken to arise out of the collapse as it has been put, of Great Southern which was an investment scheme in agribusinesses which has been the subject of a class action in the Supreme Court of Victoria. There Croft J is the managing judge. His Honour approved a deed of settlement on 11 December 2014.

3. It appears from the material before me that a great many questions remain to be determined in individual cases. His Honour has divided the outstanding cases into three categories and has fixed a schedule for their determination between about the middle of July 2018 and November 2018, according to my perusal of the material. It seems that there is something in the nature of a test case to be determined in each category - that is not perhaps the completely appropriate way of putting it - and it is likely that the resolution of those so-called test cases by his Honour will facilitate the resolution of the balance of the outstanding cases.

4. I should mention that there is apparently an application for leave to appeal pending from a decision, at first instance, of Edelman J of the High Court who held that the class action provisions of the Supreme Court Act 1986 (Vic.) are not invalid. Croft J is apparently aware of those proceedings and acknowledges that the outcome of any appeal to the Full Court of the High Court will be relevant, necessarily, to the progress of matters in the Supreme Court of Victoria.

5. The affidavit evidence also establishes that the defendant accepts that her case falls into Justice Croft's category 1. Although she disputes that she is bound by the deed of settlement.

6. In all in the circumstances, I think it appropriate that the matter be removed to this Court, and having considered the application, including the consent of the defendant, I am of the view that it is in the interests of justice that the proceedings be transferred to the Supreme Court of Victoria pursuant to s 5(2) of the Cross-Vesting Act.

Orders

7. The orders I will make (once I receive a re-engrossed form of the consent orders) are as follows:

1. District Court proceedings number 2016/0044540 (Proceeding) is removed to the Supreme Court pursuant to s 8 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW).

2. The proceeding is then transferred to the Supreme Court of Victoria pursuant to s 5(2) of the said Act.

3. Costs are costs in the cause.
    

8. I note that matters agreed between the parties recorded in paras 1 and 2 of the notation to the consent order.

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Decision last updated: 04 July 2018