Bolch, T. v Sorensen Nominees Pty Ltd

[1989] FCA 550

i,dGMENT No. ........ ........ ........ .....- 5501 89

IN THE FEDERAL COURT OF AUSTRALIA )

)

VICTORIA DISTRICT REGISTRY	)	No. VG 222 of 1989
)
GENERAL DIVISION	)

BETWEEN: TORBEN BLOCH

(Flrstnamed Appllcant)

AND :	HELGA BLOCH (Secondnamed Appllcant)
AND :	SORENSEN NOMINEES PTY LTD
-
(Firstnamed Respondent)
AND :	BJARNE SORENSEN (Secondnamed Respondent)
-	AND :	ANNETTE SORENSEN (Thirdnamed Respondent)

coram: Ryan J
Date: 5 September 1989

Place: Melbourne

EX TEMPORE REASONS FOR JUDGMENT

The application in this matter was issued on 12 July 1989. By it, the applicants seek relief under sections 52, 53, 59 and 82 of the Trade Practices Act 1974 and, alternatively, damages at common law. The allegedly misleading and deceptive conduct relied on by the applicants occurred in the course of a sale of a business known as "Danish Woodburning Stoves", formerly carried on by the respondents at 1111 Burwood Highway, Ferntree Gully, in

State of Victoria.

.

I .W . .

The frrst respondent, Sorensen Nominees Pty Ltd, had earlier, on 20 September 1988, issued proceedings in the Local Court of Western Australia, clalming moneys due in respect of goods sold to Mr and Mrs Bloch and other relief in respect of other goods entrusted to them for sale on consignment. Those proceedings were subsequently transferred to the District Court of Western Australla whlch, on a summons for flnal ludgment, ordered that the present applicants, Mr and Mrs Bloch, pay to the plaintiff $13,036.56, together with interest, pursuant to section 32 of the Supreme Court Act, as amended, amounting to $2,665.80, with costs to be in the cause. Secondly, it was ordered that the defendants do have leave to defend the balance of the clalm. That balance was not specified, but I gather it is an amount referable to the alleged supply of goods to Mr and Mrs Bloch for sale on consignment.

In opposition to the summons for final judgment, Mrs Bloch swore an affldavit raising, amongst other things, the misrepresentations in the course of the sale of the business which are alleged in the statement of claim flled in thls Court .

Of that affidavit, Mr Deputy Registrar Kingsley, in his

reasons for declsion delivered on 2 June 1989, observed at
page 4 of those reasons:

"In Bloch's affldavit they seek to raise rssues of

fraudulent misrepresentation in relation to the Sale of Business Agreement and Licence Agreement. The defendants allege that there was a term that there was a lease in existence and that in breach of a restrictive convenant, the plaintiff has established a similar bus~ness withln 30 kilometres of the defendants' business.

In Western Australia from W. Pope & Co. Pty Ltd -v- Edward Souvery & Co. Pty Ltd I19831 WAR 117 a claim for unliauidated damaqes could be the - -

subject of a set off "...if an otherwise sufficient equity can be found... But a defendant can establish an equity only by br~nging forward a claim which impeaches that of the plaint~ff ..."

The learned Deputy Registrar continued:

"In the end I am not satisfied that such a countervailing clarm can be established. I am satisfied that the statement of clarm is defective as to pleading the necessary sale of the consigned goods to establish the breach of agreement, and that the claim for an account fails for that reason. However, the defendants have failed to establish a reasonable probability of a defence in relat~on to the purchase of the goods and accordrngly judgment will be entered for the sum of $13,036.56."

In Mr Bloch's affidavit, express reference was made to a sale of business agreement and a licence agreement between Mr and Mrs Bloch and Sorensen Nominees Pty Ltd, both made 11 August 1987. By motion on notice dated 24 August 1989, the firstnamed respondent, Sorensen Nominees Pty Ltd, seeks orders:

"1. That the Application be dismissed as

vexatious or in the alternative an abuse of
the process of the Court.

2.  In the alternative, that this proceeding be remitted to the Local Court of Western Australia.

3. The Applicants pay the Respondent's costs."

In the light of an affidavit sworn on 4 September 1989 and filed today on behalf of the applicants, Mr and Mrs Bloch, application was made to amend paragraph 2 of the motion on notlce to seek remitter to the Supreme Court of Western Australia. That application for leave to amend was granted.

I am not satisfied that the Institution of proceedings in this Court was either vexatious or an abuse of the process of thls Court. The questlon therefore remalns whether the proceedings in this Court should be remitted to the Supreme Court of Western Australia under the provisions of the Jurisdiction of Courts (Cross-vesting) Act 1987. That Act, by section 5 ( 4 ) , provides that:

Where-

(a) a proceeding (in this sub-section referred to as the 'relevant proceeding') is pending in the Federal Court or the Family Court (in this sub-section referred to as the 'first court'); and

(b) it appears to the first court that-

(i) the relevant proceeding arises out of, or is related to, another proceeding pending in the Supreme Court of a

appropriate that the relevant State or Territory and it is more

proceeding be determined by that
Supreme Court;

(ii) having regard to-

( A ) whether, in the opinion of the

first court, apart from this Act and any law of a State relating to cross-vesting of jurisdiction, the relevant proceeding or substantial part

of the relevant proceeding

would have been incapable of being instituted in the first court and capable of belng instituted in the Supreme Court of a State or Territory;

(B) the extent to which, in the oplnlon of the flrst court, the matters for determination in the relevant proceedlng are matters arlslng under or Involving questions as to the appllcatlon, lnterpretation or validity of a law of the State or Terrltory referred to in sub-sub-paragraph (A) and not within the lurisdictlon of the first court apart from thls Act and any law of a State relating t o cross-vestlng of lurlsdictlon; and

(C) the interests of justlce,

~t is more appropriate that the relevant proceedlng be determlned by that Supreme Court; or

( ~ l i )	it is otherwise in the Interests of
lustlce that the relevant proceedlng be determlned by the Supreme Court of a State or Terrltory,

the first court shall transfer the relevant

proceeding to that Supreme Court."

The proceedings in Western Australia are not at present
pending in the Supreme Court of that State, but Nr Downing,

of counsel for the first respondent in this Court, the

his client will seek to have the proceedings presently	applicant on the motion, has indicated on instructions that	pending in the District Court of Western Australia transferred to the Supreme Court of that State.
It is clear that irrespective of whether the issues sought to be raised in this Court are resolved in Victoria or Western Australia, inconvenience will be occasioned to one side or the other by the need to call witnesses in one State or the other. However, I conclude on balance that it is approprlate for the proceedlngs to be determined by the Supreme Court of Western Australia.
I am influenced in comlng to that view, first, by the fact that ligitatlon between the parties was instituted first in Western Australia as long ago as September 1988. I consider that the relevant proceeding in thls Court is related to another proceeding pendlng in a Court, although not the Supreme Court of Western Australia. It is significant in that context that Mr and Mrs Bloch saw sufficient relationship between the alleged misrepresentatlons on which they rely in this Court and the pending actlon in Western Australia to rely on those misrepresentations in an affidavit in opposition to a summons for final judgment in the Western Australian action. I also take account, thlrdly, of the fact that each of the sale of business and the licence agreement, the terms of which Mr and Mrs Bloch seek to lnvoke in their actlon in thrs Court, respectively provides that such agreement is to be governed by the law of Western Australia.
Accordingly, I conclude that it is approprlate to order that, upon the Western Australian proceedlngs No. 6769 of 1988 being transferred on the application of the plaintiff in those proceedings to the Supreme Court of Western Australia, the proceedings in this Court No. VG 222 of 1989 be transferred to the Supreme Court of Western Australia and that, subject to any direction of a Judge or Master of that Court, the statement of claim filed herein on 21 July 1989 stand as the cross-claim or counter-claim of Torben Bloch and Helga Bloch in the proceedings in that Court.
I further order that the costs of each party of the proceedings in this Court, including the costs of the motion on notice dated 24 August 1989 and this day, be costs in the cause in the proceedings in the Supreme Court of Western Australia. I reserve liberty to either party to apply for further directions herein in the event that the said proceedings No 6769 of 1988 in the Dlstrlct Court of Western Australia have not been transferred to the Supreme Court of Western Australia within 28 days of this day.

I certify that this and the preceding six (6) pages are a true copy of the Reasons for Judgment of hls Honour Mr Justice Ryan.

Associate: 8

Dated:  /PM

Counsel for the Appllcants
In Proceedings and Respondents

in Motion on Notice:	MC J. Beach
SoliciLors for the Applicants
In Proceedlngs and Respondents
in Motion on Notice:	Gadens Ridgeway
Counsel for the Firstnamed
Respondent in Proceedlngs
and Firstnamed Applicant in
Motion on Notice:	Nr R.N. Downlng
Solicitors for the Flrstnamed
Respondent In Proceedings
and Firstnamed Applicant in
Motion on Notice:	Nahony & Galvin
Date of Hearing:	5 September 1989
Date of Judgment:	5 September 1989