Canningvale Australia Ltd v Integral Imports and Exports Pty; Ltd and Anor

[2011] VCC 214

IN THE COUNTY COURT OF VICTORIA Revised

(Not) Restricted

AT MELBOURNE
COMMERCIAL LIST

GENERAL DIVISION

Case No. CI-11-00333

CANNINGVALE AUSTRALIA LTD	Plaintiff
v.
INTEGRAL IMPORTS & EXPORTS PTY LTD & RAJKUMAR	Defendants
RAMAKRISHNAN

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JUDGE:	His Honour Judge Anderson
WHERE HELD:	Melbourne
DATE OF HEARING:	17 March 2011
DATE OF JUDGMENT:	17 March 2011
CASE MAY BE CITED AS:	Canningvale Australia Ltd v. Integral Imports & Exports Pty Ltd & Anor
MEDIUM NEUTRAL CITATION:	[2011] VCC 214

REASONS FOR JUDGMENT

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Catchwords:  Practice and procedure – Appropriate court for the parties’ dispute to be
litigated – s.20 Service and Execution of Process Act 1992 (Cth).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M. Purvis	Riordans Lawyers
For the Defendant	Mr L. Brown	Sewell & Kettle Pty Ltd
HIS HONOUR:

1        On 3 February 2011, the plaintiff issued a writ claiming $206,275.16, being goods sold and delivered to the first defendant and pursuant to a guarantee given by the second defendant. The writ was served on the first defendant, a corporation, at its registered office in Sydney. The second defendant, an individual, has not been served, but in affidavit material before the Court, has indicated that the writ has come to his attention. The defendants make application by summons, filed 1 March 2011, for a stay of proceedings pursuant to s.20 of the Service and Execution of Process Act 1992 (Cth) on the basis that the New South Wales courts are more appropriate to determine the matters in dispute.

2        Judgment was entered in default of appearance against the first defendant on 15 March 2011. The plaintiff has conceded that the judgment should be set aside to enable the merits of the application by both defendants to be determined. An affidavit has been filed in support of the application by the second defendant, and in opposition by the plaintiff’s solicitors based upon information and belief.

3        In determining the application, it is necessary for me to take account of matters relevant to the determination of what is the appropriate court, including the specific matters referred to in s.20(4) of the Act. The affidavit material indicates that there are disputes between the parties concerning:

a.	the place at which the contract for the supply of goods by the plaintiff to the first defendant was made;
b.	a possible counterclaim by the first defendant against the plaintiff on the basis that certain of the goods supplied were not as ordered or of appropriate quality, in the sense that the thread-count of the material in certain items supplied was less than agreed or anticipated, and therefore of a lesser value.

4         The plaintiff says that it is a Victorian company, with an office in Fitzroy. It supplied goods to the defendant which were dispatched from Melbourne and delivered to New South Wales. The goods were supplied following a meeting between representatives of the plaintiff and the first defendant, which occurred at the plaintiff’s offices in Fitzroy in October 2010. A letter from the plaintiff to the second defendant, dated 20 October 2010, refers to discussions and meetings between the parties and the terms upon which further dealings between the parties would be governed.

5         The trading terms of the plaintiff contain a provision that, for purposes of governing law and jurisdiction, “The law of the state or territory in which the goods are sold governs these terms of trade, and in the event of bona fide dispute as to the place of sale, the law of Victoria will apply” and that, “The parties submit to the non-exclusive jurisdiction of the courts of that state or territory”.

6 of a dispute. Those trading terms applied when the plaintiff operated out of Western Australia
rather than the relevant dealings between the parties at a time when the plaintiff had re-located to

The terms of trade previously provided that the law of Western Australia would apply in the event is not said that exclusive jurisdiction is given to the courts of a particular state or territory.

7         The principal matters relied upon by the defendants in the present application were:

a.	there was an argument that the contract was made in New South Wales because the goods were supplied in New South Wales and, until payment, the goods remained the property of the plaintiff;
b.	the defendants were located in New South Wales and any potential witnesses, including expert witnesses on behalf of the defendants as to the quality of the items supplied are located in New South Wales. The plaintiffs witnesses are located in Victoria;
c.	the financial circumstances of the defendants, being a proprietary limited trading company and the director of that company are more modest than the financial circumstances of the plaintiff, which is a public company with a substantial turnover.

8         In my view, the determinative factor in the present case is that the goods were supplied from Victoria, and it appears, pursuant to an agreement reached in Victoria. I am not persuaded that the failure by the defendants to pay for the goods affects that matter, as payment was probably to have been made in Victoria. In fact, it appears that the second defendant made a promise to pay the balance of the account, and that promise was communicated to the plaintiff in Victoria.

9         It would obviously be convenient for the plaintiff to have the litigation conducted in Victoria, and for the defendants to have the litigation conducted in New South Wales. I consider, therefore, that the location of potential witnesses is not a decisive factor. Litigation is always expensive and disruptive for parties and the need for a party to travel interstate for the purposes of trial and during the interlocutory stages is not necessarily a major expense.

10       In relation to the financial position of the parties, there is very little evidence on that matter. It does appear, however, that the first defendant was able to engage in substantial trade within a relatively short period, which would indicate that this factor is probably of little significance. The parties are more likely to be inconvenienced by the fact that they are in dispute, and at some stage the dispute may have to be litigated in court over a number of days. The relative costs of that litigation and the likely additional expense to one party or the other is, at present, a matter of speculation.

11       In the circumstances, I consider that I should conclude that the court in which the plaintiff has initiated the proceeding, not simply because of that fact, but because of the connection of the transaction between the parties with this state, is the decisive factor in determining in which Court

it is appropriate for the dispute to be litigated. The defendants’ summons, filed 1 March 2011, will
be dismissed.

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Certificate

I certify that these 3 pages are a true copy of the reasons for decision of His Honour Judge

Anderson delivered on 17 March 2011.

Dated: 17 March 2011

Caroline Dawes

Associate to His Honour Judge Anderson