Bendigo and Adelaide Bank v Gannon

[2018] NSWSC 1520

Supreme Court

New South Wales

Medium Neutral Citation:

Bendigo and Adelaide Bank v Gannon [2018] NSWSC 1520

Hearing dates:

9 October 2018

Date of orders:

09 October 2018

Decision date:

09 October 2018

Jurisdiction:

Common Law

Before:

Davies J

Decision:

1. District Court proceeding no. 2016/00057712 (Proceeding) be transferred to the Supreme Court of New South Wales pursuant to s 140(1) of the Civil Procedure Act 2005 (NSW).

 

2. The Proceeding be then transferred to the Supreme Court of Victoria pursuant to s 5(2) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW).

 3. Costs are costs in the cause.

Catchwords:

CIVIL PROCEDURE – cross-vesting – transfer to another Supreme Court – transfer of commercial proceedings from District Court to Supreme Court – related proceedings in Supreme Court of Victoria – interests of justice to transfer proceedings to Supreme Court of Victoria

Legislation Cited:

Civil Procedure Act 2005 (NSW).
Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW)
Supreme Court Rules 1970 (NSW)

Cases Cited:

BHP Billiton v Schultz (2004) 221 CLR 400, [2004] HCA 61
Commonwealth Bank of Australia v QBE Insurance Australia Limited [2018] NSWSC 1440
NTF Group Pty Limited v PA Putney Finance Australia Pty Limited [2017] NSWSC 1194; 324 FLR 261

Texts Cited:

Nil

Category:

Procedural and other rulings

Parties:

Bendigo and Adelaide Bank (Plaintiff)
Scott Andrew Gannon (Defendant)

Representation:

Counsel:
F Reynolds (Plaintiff)
Mentioned by F Reynolds (Defendant)

  Solicitors:
Turks Legal (Plaintiff)
S Ivantsoff, Solicitor (Defendant)

File Number(s):

2018/292794

Publication restriction:

Nil

Judgment

1. The plaintiff seeks, by summons, the transfer of District Court proceedings numbered 2016/57712 to this Court pursuant to s 140 (1) of the Civil Procedure Act 2005 (NSW) and thereafter the transfer of the proceedings to the Supreme of Victoria pursuant to s 5 (2) of the Jurisdiction of Courts (Cross-Vesting) Act1987 (NSW). The District Court proceedings arise out of an investment scheme in which the defendant invested certain moneys. To do so, the defendant obtained loans from various entities. It is alleged by the plaintiff that those loans have ultimately been assigned to it, in some cases, having been first assigned to other entities.

2. The investment scheme was ultimately unsuccessful, and Group Proceedings were instituted in the Supreme Court of Victoria. It is alleged that the Group Proceedings were opt-out proceedings and that the defendant did not opt-out of the proceedings.

3. The plaintiff was a party to the Group Proceedings. The Group Proceedings were settled by a Deed of Settlement approved by Croft J in the Supreme Court of Victoria on 11 December 2014. The settlement involved various acknowledgments by the plaintiffs in those proceedings concerning the validity of the loans obtained by those plaintiffs. It is asserted by the plaintiff in the District Court proceedings that the present defendant is bound by the Deed of Settlement and the various acknowledgments concerning those loans.

4. The principal purpose of the transfer of the proceedings from the District Court to this Court and then to the Supreme Court of Victoria is so that the proceedings can be linked with a number of other proceedings in the Supreme Court of Victoria that are being case managed and apparently heard by Croft J. They are related proceedings in that the defendants in those proceedings were also investors in the failed scheme.

5. A subsidiary reason for the transfer of the proceedings from the District Court to this Court is the assertion by the plaintiff that the District Court in fact has no jurisdiction to hear the proceedings that were commenced by the plaintiff in that Court. The matters associated with that submission have been dealt with in a number of decisions in this Court, the latest of which is Commonwealth Bank of Australia v QBE Insurance Australia Limited [2018] NSWSC 1440. In that case, N Adams J followed, in particular, a judgment of Parker J of this Court in NTF Group Pty Limited v PA Putney Finance Australia Pty Limited [2017] NSWSC 1194; 324 FLR 261, where his Honour held that the District Court did not have jurisdiction to hear matters arising out of commercial transactions under pt 14 r 2 of the earlier Supreme Court Rules 1970 (NSW).

6. The defendant in the present case consents to the transfer of the proceedings from the District Court to this court and thereafter to the Supreme Court of Victoria. It is, nevertheless, necessary for this court to form a view, despite that consent, that it is appropriate under the cross-vesting legislation that the proceedings should be transferred to the Supreme Court of another State.

7. Having regard to what was said by the High Court in BHP Billiton v Schultz (2004) 221 CLR 400, [2004] HCA 61, I am satisfied that it is in the interests of justice that the District Court proceedings should be determined in the Supreme Court of Victoria with the other similar cases being heard and case managed by Justice Croft in circumstances where the claims in the present case arise out of the failure of the same investment scheme. For that to occur, the proceedings must first be transferred to this Court from the District Court.

8. Accordingly, I make the following orders:

(1) District Court proceedings number 2016/0057712 be transferred to this court pursuant to s 140(1) of the Civil Procedure Act 2005 (NSW);.

(2) The proceedings thereafter be transferred to the Supreme Court of Victoria pursuant to s 5(2) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW);

(3)   The costs are costs in the cause.

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Decision last updated: 09 October 2018