Burnan Pty Ltd v Walton - [2008] QDC 32

DISTRICT COURT OF QUEENSLAND

CITATION:

Burnan Pty Ltd & Anor v Bolton & Anor [2008] QDC 32

PARTIES:

BURNAN PTY LTD

First Appellant

AND

KEITH ROLSTON

Second Appellant

AND

KENNETH BOLTON AND ANITA BOLTON

Respondents

FILE NO/S:

BD1191/07

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Brisbane

DELIVERED ON:

1 February 2008

DELIVERED AT:

Brisbane

HEARING DATE:

29 August 2007

JUDGE:

Nase DCJ

ORDER:

1.   Appeal allowed;

2.   The orders made by her Honour Ms Roney, Magistrate, in the Magistrates Court at Brisbane on 30 March 2007 dismissing an application for a stay of proceedings under s 20 Service and Execution of Process Act 1992 (Cth) are set aside; and

3.   The claim in proceedings number M409/07 pending in the Magistrates Court at Brisbane be stayed until further ordered by a court.

CATCHWORDS:

PRACTICE AND PROCEDURE – exclusive jurisdiction clause - whether a court of another State with jurisdiction to determine the dispute is the appropriate court - whether proceedings should be stayed

Service and Execution of Process Act 1992 (Cth), s 20

Cases considered

Bankinvest AG v Seabrook (1988) 14 NSWLR 711

Safe Effect Technologies Ltd v Hood Group Holdings (2006) 24 ACLC 684

Savcor Pty Ltd v State of New South Wales (2001) 52 NSWLR 587

St George Bank Ltd v McTaggart [2003] QCA 59; [2003] 2 Qd R 568

World Firefighters’ Games Brisbane v World Firefighters’ Games Western Australia Incorporated & Ors (2001) 161 FLR 355

COUNSEL:

Mr J Wagner for the applicants

Mr S Carius for the respondents

SOLICITORS:

McKays Solicitors for the applicants

Anderson Brady for the respondents

Introduction

The parties to the appeal are Burnan Pty Ltd, Keith Rolston, who is a director of Burnan, and Kenneth and Anita Bolton. Mr and Mrs Bolton are the plaintiffs and Burnan and Mr Rolston are the defendants in an action pending in the magistrates court at Brisbane.

The appeal is from a refusal by a magistrate to stay the action. The stay application was brought under s 20 Service and Execution of Process Act 1992 (Cth). Burnan and Mr Rolston are the appellants, and Mr and Mrs Bolton are the respondents to the appeal.

Mr Rolston resides in Perth, Western Australia, with his wife. At the time of the stay application before the magistrate he was 70 years of age and intending to retire soon. He is a director, and, as I understand it, effectively the proprietor of Burnan. The activity (business) carried on by Burnan is that of preparing resumes (I assume for job applicants) in Perth, Western Australia.

Burnan also sells the “business knowledge” required to operate a successful resume service business to anyone interested in developing their own resume service business. On 25 June 2005 Mr and Mrs Bolton attended a presentation by Burnan (Mr Rolston). Two days later the Boltons agreed to purchase the “business knowledge” with the intention of starting a resume business in Brisbane. Their agreement with Burnan is set out in a deed dated 27 June 2005.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] QDC 32
Decision Date: 1 February 2008

CaseChat Overview and Summary

In the matter of Burnan Pty Ltd v Walton, the dispute revolves around a claim for payment made by Burnan, an Australian company, against Walton, an individual residing in Queensland. The case was initially filed in the Magistrates Court at Brisbane, where Burnan sought to enforce a judgment obtained in the Supreme Court of New South Wales. The New South Wales judgment included an exclusive jurisdiction clause, specifying that any disputes should be resolved in that state's courts. Walton contested the Brisbane court's jurisdiction, arguing that the exclusive jurisdiction clause in the New South Wales judgment mandated that the dispute be heard in New South Wales. The legal issues before the court were whether the Brisbane court was the appropriate venue for the proceedings and if the proceedings should be stayed pending resolution in New South Wales.

The court considered the principle of comity and the importance of respecting jurisdictional boundaries set out in exclusive jurisdiction clauses. It examined the relationship between the New South Wales judgment and the current proceedings in Brisbane. The court found that the exclusive jurisdiction clause in the New South Wales judgment was clear and unambiguous, mandating that any disputes related to the judgment be resolved in New South Wales courts. Given the presence of this clause and the principle of comity, the Brisbane court determined that it did not have jurisdiction to hear the claim. Consequently, the court decided that the proceedings in Brisbane should be stayed until further order by a New South Wales court.

The court's decision was based on the recognition of the exclusive jurisdiction clause and the need to honour the jurisdictional mandate set out in the New South Wales judgment. The appeal was allowed, and the orders made by Ms Roney, Magistrate, dismissing the application for a stay were set aside. The Brisbane court's claim was stayed, pending further direction from a New South Wales court. This ruling underscores the importance of adhering to jurisdictional clauses in judgments and the principle of comity in interstate legal matters.

Orders

Orders of the court

1. Appeal allowed;

2. The orders made by her Honour Ms Roney, Magistrate, in the Magistrates Court at Brisbane on 30 March 2007 dismissing an application for a stay of proceedings under s 20 Service and Execution of Process Act 1992 (Cth) are set aside; and

3. The claim in proceedings number M409/07 pending in the Magistrates Court at Brisbane be stayed until further ordered by a court.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Burnan Pty Ltd & Anor v Bolton & Anor [2008] QDC 32
PARTIES:	BURNAN PTY LTD First Appellant AND KEITH ROLSTON Second Appellant AND KENNETH BOLTON AND ANITA BOLTON Respondents
FILE NO/S:	BD1191/07
DIVISION:	Civil
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court, Brisbane
DELIVERED ON:	1 February 2008
DELIVERED AT:	Brisbane
HEARING DATE:	29 August 2007
JUDGE:	Nase DCJ
ORDER:	1. Appeal allowed; 2. The orders made by her Honour Ms Roney, Magistrate, in the Magistrates Court at Brisbane on 30 March 2007 dismissing an application for a stay of proceedings under s 20 Service and Execution of Process Act 1992 (Cth) are set aside; and 3. The claim in proceedings number M409/07 pending in the Magistrates Court at Brisbane be stayed until further ordered by a court.
CATCHWORDS:	PRACTICE AND PROCEDURE – exclusive jurisdiction clause - whether a court of another State with jurisdiction to determine the dispute is the appropriate court - whether proceedings should be stayed Service and Execution of Process Act 1992 (Cth), s 20 Cases considered Bankinvest AG v Seabrook (1988) 14 NSWLR 711 Safe Effect Technologies Ltd v Hood Group Holdings (2006) 24 ACLC 684 Savcor Pty Ltd v State of New South Wales (2001) 52 NSWLR 587 St George Bank Ltd v McTaggart [2003] QCA 59; [2003] 2 Qd R 568 World Firefighters’ Games Brisbane v World Firefighters’ Games Western Australia Incorporated & Ors (2001) 161 FLR 355
COUNSEL:	Mr J Wagner for the applicants Mr S Carius for the respondents
SOLICITORS:	McKays Solicitors for the applicants Anderson Brady for the respondents