Carter-Lannstrom v Lucas & Curmesh Pty Ltd - [1996] QSC 181

IN THE SUPREME COURT
OF QUEENSLAND
No. 4415 of 1996

Brisbane

Before the Hon. Justice Mackenzie

[Carter-Lannstrom v. Lucas & Curmesh Pty Ltd]

BETWEEN
  MARGARET CARTER-LANNSTROM
  Plaintiff
AND
  RALPH WILLETT LUCAS
  First Defendant
AND
  JOAN MARGARET LUCAS
  Second Defendant
AND
  ALAN REGINALD LUCAS
  Third Defendant
AND
  CURMESH PTY LTD   (ACN 001 212 228)
  Fourth Defendant

JUDGMENT - MACKENZIE J.

Judgment delivered 24 September 1996

CATCHWORDS:

PRACTICE and PROCEDURE - Jurisdiction of Courts (Cross-vesting) Act 1987 - application for transfer of matter under s. 5(2)(b)(iii) - whether it is in the interests of justice that the matter be determined by the Supreme Court of New South Wales

Counsel:P. Dutney QC for applicant defendants
R. Bain QC for respondent plaintiff

Solicitors:Clayton Utz for applicants

T.F. Wardrobe as town agents for McLaughlins for respondent

Hearing date: 19 September 1996
IN THE SUPREME COURT

OF QUEENSLAND

Brisbane No. 4415 of 1996

Before the Hon. Mr Justice Mackenzie

[Carter-Lannstrom v. Lucas & Curmesh Pty Ltd]

BETWEEN

MARGARET CARTER-LANNSTROM

Plaintiff

AND

RALPH WILLETT LUCAS
First Defendant

AND

JOAN MARGARET LUCAS
Second Defendant

AND

ALAN REGINALD LUCAS
Third Defendant

AND

CURMESH PTY LTD (ACN 001 212 228)

Fourth Defendant

JUDGMENT - MACKENZIE J.
Judgment delivered 24 September 1996

This is an application for transfer of the present proceedings to the Supreme Court of New South Wales. The application relies solely on s. 5(2)(b)(iii) of the Jurisdiction of Courts (Cross‑vesting) Act 1987. The test is whether "it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of another State ...". If the Court is of that opinion it is required to transfer the proceeding to the other Supreme Court. The respondent plaintiff sought relief against the four defendants in relation to an alleged joint venture agreement. A statement of claim has been delivered but at the time the application was heard the defence had not been delivered. There was an affidavit from the first defendant dealing with aspects of the agreement alleged in the statement of claim.
The structure of the statement of claim would require proof by the plaintiff of several matters. Some may not be significantly in dispute in view of the affidavit of the first defendant. The matters necessary to be proved under the statement of claim are the following:

That there was an oral joint venture agreement, and its terms.
That the first and fourth defendants were fiduciaries.
That there was a breach of contract and fiduciary duty by the first and fourth defendants by failing to repay the plaintiff's investment and interest on time, and consequential loss because legal fees were incurred.
That there was a breach of contract and fiduciary duty by the first and fourth defendants failing to cause a second mortgage to be given in favour of the plaintiff to secure repayment of the investment, interest and the plaintiff's profit share, and consequential loss because legal fees were incurred.
That there was a breach of the joint venture agreement and fiduciary duty by the first and fourth defendant not causing proper accounts of the joint venture to be delivered, and consequential loss because legal fees were incurred.
That the fourth defendant is in a position to sell the remaining land and pay the plaintiff her share of the profits.
That the first and fourth defendants intend to avoid paying her profit share to the defendant.
That the fourth defendant intends to act contrary to the plaintiff's interest by borrowing money to subdivide the remaining land, placing the realisation of a profit at risk and delaying payment of the plaintiff's profit share, in breach of fiduciary duty.
That the third defendant as a director of the fourth defendant owes a fiduciary duty to the plaintiff or is a knowing participant in breach of fiduciary duty.
That the second defendant was given a second mortgage by the fourth defendant as security for payment of principal interest and profit share.
That the second defendant made a declaration of trust in favour of the plaintiff and others.
That the second defendant preferred her own interests in breach of duty as trustee, by failing to register the mortgage, causing it to be discharged and failing to secure payment of the plaintiff's profit share whereby loss and damage was caused.
That the second defendant was a knowing participant in breach of fiduciary duty by the first and fourth defendants.
That the first defendant as agent for the fourth defendant gave negligent advice to the plaintiff by which she was induced to enter into the joint venture agreement.
Various forms of relief sought are the following:
(a)Compensation for breach of fiduciary duty against the first, second, third and fourth defendants;
(b)Compensation for breach of trust against the second defendant;
(c)Damages for negligent misrepresentation against the first and fourth defendants;
(d)An account of profits, against the first, second, third and fourth defendants;
(e)Appointment of a receiver/manager of the property of the fourth defendant;
(f)Specific performance by the fourth defendant of the agreement to give a registered second mortgage;
(g)Interest against the first and fourth defendants;
(h)Costs.
The application is based on the circumstance that while the joint venture agreement is alleged to have been made in Queensland the land which was to be developed under it is situated in New South Wales and that most relevant acts therein occurred in New South Wales. All of the defendants live in New South Wales. It is apprehended by the defendants that a number of New South Wales based witnesses, including experts, would have to be called by the defendants. If the trial is heard in Brisbane the defendant will suffer great inconvenience. The first defendant also deposes to certain personal and business commitments being disrupted if the trial were to be held in Brisbane. The defendants are represented by a national law firm. I therefore discount the suggestion that a significant disruption would occur by reason of having to obtain different legal representation. It is true that a solicitor, Mr Toltz, deposes to having a close connection with the company but given the nature of the representation of the defendants any difficulty arising from that is not as great as it might be in other circumstances.
          From the point of view of the plaintiff she has an arrangement with her present solicitor under which she pays outlays but professional costs have been deferred until the end of the action. She is apprehensive that she will not be able to achieve a similar arrangement if the matter is to be dealt with in New South Wales. She is also concerned on the basis of information deposed in an affidavit of Ms Edwards, an articled clerk with her solicitors, that court annexed mediation is not available in New South Wales. The present intention is apparently to seek mediation at a later stage of the proceedings. She also wishes to attempt to consolidate the present action with another in the Supreme Court which seeks relief in respect of certain financial obligations alleged to arise out of a personal relationship between the first defendant and her. I do not consider that that is a significant factor in the equation as in my view the prospects of consolidation are not obviously overwhelming. Nor are her personal circumstances. A perusal of the matters which are raised in the statement of claim indicates that much of it is focused on the formation, terms and consequences of the joint venture agreement on the rights and obligations of the parties. There is little overtly said in the statement of claim about the issue of quantification of any profits arising from the transaction.
          The issue of convenience to the parties and witnesses was addressed in the defendants' submissions. They are largely focused on the question of what witnesses would be necessary in the event that there was a dispute as to profitability of the project to date and as to the allegation that there will be an attempt to defeat the chances of a profit by the way in which the project proceeds in future. It was also submitted that in view of the allegation that the first defendant had no reasonable basis for making representations about the duration and profitability predicted for the project it would be necessary to call New South Wales witnesses to address that issue.
          The difficulty that I have about the application at this stage of proceedings is that it is by no means clear precisely how the matter will develop as the pleadings mature. If they develop in a direction which clearly involves the kinds of matters which are of concern to the defendants the balance of the interests of justice may shift in their direction. The difficulty that I have at the present stage of proceedings in being satisfied that it is in the interests of justice that the proceedings be transferred to the Supreme Court of New South Wales is that it remains to be seen to what extent the matters of detail as to which the defendants have an apprehension become a sufficiently significant element in the proceedings to justify the step of transferring the matter to the Supreme Court of New South Wales. On the material as it stands I am not satisfied that I should do so and the application is dismissed with costs to be taxed.