Central Queensland Development Corporation Pty Ltd (Formerly Bluechip Development Corporation (Gladstone) Pty Ltd) v BMT and Assoc Pty Ltd

[2015] WASC 195

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   CENTRAL QUEENSLAND DEVELOPMENT CORPORATION PTY LTD (FORMERLY BLUECHIP DEVELOPMENT CORPORATION (GLADSTONE) PTY LTD) -v- BMT & ASSOC PTY LTD [2015] WASC 195

CORAM:   KENNETH MARTIN J

HEARD:   ON THE PAPERS

DELIVERED          :   28 MAY 2015

FILE NO/S:   CIV 2789 of 2013

BETWEEN:   CENTRAL QUEENSLAND DEVELOPMENT CORPORATION PTY LTD (FORMERLY BLUECHIP DEVELOPMENT CORPORATION (GLADSTONE) PTY LTD)

First Plaintiff

PRIME PROPERTY INVESTMENT PTY LTD (ADMINISTRATOR APPOINTED)
Second Plaintiff

SIDNEY CHARLES KNELL
Third Plaintiff

HARBOUR LIGHTS INVESTMENTS PTY LTD AS FORMER TRUSTEE FOR HARBOUR LIGHTS TRUST 2007
Fourth Plaintiff

PRIME PROPERTY INVESTMENT (NSW) PTY LTD AS TRUSTEE FOR HARBOUR LIGHTS TRUST 2007
Fifth Plaintiff

AND

BMT & ASSOC PTY LTD
First Defendant

BRADLEY FRANCIS BEER
Second Defendant

THOMAS CHARLES PLENTY
Third Defendant

BRENDAN MARK FARRUGIA
Fourth Defendant

Catchwords:

Cross-vesting jurisdiction - Transfer of proceedings to another State - More appropriate forum - Where parties consent to transfer - No connection between subject matter of proceedings and Western Australia

Legislation:

Jurisdiction of Courts (Cross-Vesting) Act 1987 (WA), s 5(2)(b)(iii)

Result:

Matter transferred to the Supreme Court of New South Wales

Category:    B

Representation:

Counsel:

First Plaintiff                :     No appearance

Second Plaintiff            :     No appearance

Third Plaintiff              :     No appearance

Fourth Plaintiff            :     No appearance

Fifth Plaintiff                :     No appearance

First Defendant            :     No appearance

Second Defendant        :     No appearance

Third Defendant           :     No appearance

Fourth Defendant         :     No appearance

Solicitors:

First Plaintiff                :     Lawton Gillon

Second Plaintiff            :     Lawton Gillon

Third Plaintiff              :     Lawton Gillon

Fourth Plaintiff            :     Lawton Gillon

Fifth Plaintiff                :     Lawton Gillon

First Defendant            :     DLA Piper

Second Defendant        :     DLA Piper

Third Defendant           :     DLA Piper

Fourth Defendant         :     DLA Piper

Case(s) referred to in judgment(s):

Anderson Formrite Pty Ltd v Baulderstone Hornibrook Pty Ltd [2004] WASC 115; (2004) 206 ALR 614

Bankinvest AG v Seabrook (1987) 14 NSWLR 711

BHP Billiton Ltd v Schultz [2004] HCA 61; (2004) 221 CLR 400

Covus Corporation Pty Ltd v A J Lucas Drilling Pty Ltd [2006] WASC 154

Mullins Investments Pty Ltd v Elliott Exploration Co Pty Ltd (1989) 1 WAR 531

Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460; [1986] 3 WLR 972

Whyalla Refiners Pty Ltd v Grant Thornton (A Firm) [2001] WASC 49; (2001) 182 ALR 274

1. KENNETH MARTIN J:  This matter comes before me by way of a memorandum of consent orders signed by the parties to this action and filed with the Supreme Court on 15 April 2015.  By that memorandum, the parties, by consent, are applying to the court for the following orders pursuant to Rules of the Supreme Court 1971 (WA) (RSC) O 43 r 16:

   1.The proceedings are hereby transferred to the Supreme Court of New South Wales pursuant to section 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (WA).

   2.The costs of and incidental to these orders be in the cause.

2. As noted in a letter addressed to the Principal Registrar of the Supreme Court, sent by the solicitors for the plaintiffs, dated 10 April 2015, by RSC O 81E r 8 an application for the transfer or removal of a proceeding under cross‑vesting laws must be determined by a judge. It is in those circumstances that this matter, and the parties' application for orders transferring this matter to the Supreme Court of New South Wales, comes to me.

3. Aside from the memorandum of consent orders and letter of the plaintiffs, the parties' application is also accompanied by two affidavits:  one of a Mr Sidney Charles Knell, the third plaintiff, sworn on 6 March 2015 and filed on behalf of the plaintiffs on 15 April 2015; and one of a Mr Thomas Charles Plenty, the third defendant and a director of the first defendant, sworn on 2 April 2015 and filed by the defendants also on 15 April 2015.  Though the parties have not explicitly requested the application for transfer of these proceedings to the New South Wales Supreme Court be determined on the papers, it is evident from the materials filed in support of this application that the parties do not seek a hearing for the determination of their application.

4. Whilst the action began on 28 November 2013, it has manifested only limited activity since that date.  Aside from the writ of summons with an attached indorsement of claim, no pleadings have been filed.  Aside from the originating document, the only documents on the court file that are not related to this application for a transfer of the proceedings to New South Wales, are a memorandum of appearance for the first, second, third and fourth defendants, and a notice of change of solicitor for the plaintiffs.

5. From the indorsement I gather that the plaintiffs say they were engaged in the development of an apartment building known as 'Harbour Lights' in Gladstone, Queensland between 2007 and 2009.  The plaintiffs sought the services of the defendants in their business as quantity surveyors with respect to the Harbour Lights development.  The plaintiffs allege that errors made by the defendants with respect to variations, excesses, overruns and delays during the construction period of the Harbour Lights development, led to the actual costs of the development vastly exceeding budgeted costs.  The plaintiffs seek a wide variety of remedies from that bare factual matrix, including damages for breach of contract, negligence, compensation in tort, restitutionary remedies, and claims under the Australian Consumer Law 2010 (Cth) (among others).

6. For the reasons elaborated upon below, I am independently satisfied that in the end it is proper in all the circumstances to make the orders sought in the plaintiffs' memorandum of consent orders, noted above. I publish these reasons to, first, establish the basis upon which I conclude that I have been satisfied that the requirements of s 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (WA) (Cross‑Vesting Act) are met, supporting a transfer of these proceedings to the New South Wales Supreme Court and, second, to provide an explicit explanation of record concerning why this matter has altered location from one superior court of Australia to another.

The requirements of s 5(2)(b)(iii) of the Cross-Vesting Act

1. The basis for determining whether or not these proceedings should be transferred from the Supreme Court of Western Australian to the Supreme Court of New South Wales is found within s 5 of the Cross-Vesting Act titled 'Transfer of Proceedings'. That section provides a number of bases upon which a court shall transfer proceedings to another court (whether Federal, State or Territory courts). The relevant subsection for the purposes of this application, as appropriately referred to by the plaintiffs in their letter of 10 April 2015, is s 5(2)(b)(iii) of the Cross‑Vesting Act. The subsection provides:

   (2)Where ‑

   (a)a proceeding (in this subsection referred to as the relevant proceeding) is pending in the Supreme Court (in this subsection 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 another State or of a Territory and it is more appropriate that the relevant proceeding be determined by that other Supreme Court;

   (ii)having regard to ‑

   (A) whether, in the opinion of the first court, apart from this Act and any law of the Commonwealth or another State relating to cross-vesting of jurisdiction, the relevant proceeding or a substantial part of the relevant proceeding would have been incapable of being instituted in the first court and capable of being instituted in the Supreme Court of another State or Territory;

   (B) the extent to which, in the opinion of the first court, the matters for determination in the relevant proceeding are matters arising under or involving questions as to the application, interpretation or validity of a law of the State or Territory referred to in sub-subparagraph (A) and not within the jurisdiction of the first court apart from this Act and any law of the Commonwealth or another State relating to cross-vesting of jurisdiction; and

   (C) the interests of justice,

   it is more appropriate that the relevant proceeding be determined by that other Supreme Court; or

   (iii)it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of another State or of a Territory,

   the first court shall transfer the relevant proceeding to that other Supreme Court.

2. The parties justify this transfer application under s 5(2)(b)(iii) of the Cross-Vesting Act, namely on the basis that it is 'otherwise in the interests of justice' that these proceedings be transferred to the Supreme Court of New South Wales. 'Otherwise' in that section means without regard to factors outlined in s 5(2)(b)(i) and s 5(2)(b)(ii). Hence it is thereby necessary for me to determine in what sense it would be in the 'interests of justice' that these proceedings be determined by the Supreme Court of New South Wales, as opposed to the Supreme Court of Western Australia. I note at this juncture, that if satisfied that it is in the interests of justice to transfer these proceedings to the New South Wales Supreme Court, the Cross‑Vesting Act affords no discretion over choosing to do so.

3. The pivotal question then with respect to the parties' application in this matter is when it will otherwise be in the 'interests of justice' that this, as the relevant proceeding, be determined by the Supreme Court of another State or Territory. Perhaps unsurprisingly, the Cross-Vesting Act itself provides no guidance towards filling that phrase with content. Accordingly, I turn to relevant case authorities that have considered the operation of s 5(2)(b)(iii).

'Interests of justice':  relevant authorities

1. As noted by Justice Blaxell in Covus Corporation Pty Ltd v A J Lucas Drilling Pty Ltd [2006] WASC 154 at par 20 ‑ par 26, prior to the decision of the High Court in BHP Billiton Ltd v Schultz [2004] HCA 61; (2004) 221 CLR 400, there was a divergence of approaches taken to the appropriate interpretation to the content of the phrase 'interests of justice' found in s 5(2)(b)(iii).

2. One approach, advanced by the New South Wales Court of Appeal in Bankinvest AG v Seabrook (1987) 14 NSWLR 711 (referring, of course, to the New South Wales version of the Act, which has an identical s 5(2)(b)(iii)) rejects the traditional principles of forum non conveniens in light of the Cross‑Vesting Act, doing away with the requirement that the party seeking a transfer displace the entitlement of the plaintiff to the exercise of a jurisdiction which is properly invoked. Rather, the only test is what do the interests of justice dictate should be done?

3. A competing approach, advanced by Ipp J in Mullins Investments Pty Ltd v Elliott Exploration Co Pty Ltd (1989) 1 WAR 531, was that the ordinary rules of private international law apply in appropriate instances to proceedings under the Cross-Vesting Act. Accordingly, it isn't sufficient, in an application to transfer proceedings under s 5(2)(b)(iii), to merely establish that there exists a more appropriate forum for the proceedings than the forum in which the action presently presides.

4. However, the divergence of approach was resolved by the High Court in BHP Billiton Ltd v Schultz.  There, affirming the Bankinvest approach, the High Court at par 14 said:

   In the context of the Cross-vesting Act, one is not concerned with the problem of a court, with a prima facie duty to exercise a jurisdiction that has been regularly invoked, asking whether it is justified in refusing to perform that duty.  Rather, the court is required by statute to ensure that cases are heard in the forum dictated by the interests of justice.  An application for transfer under s 5 of the Cross-vesting Act is brought upon the hypothesis that the jurisdiction of the court to which the application is made has been regularly invoked.  If it appears to that court that it is in the interests of justice that the proceedings be determined by another designated court, then the first court 'shall transfer' the proceedings to that other court.  There is a statutory requirement to exercise the power of transfer whenever it appears that it is in the interests of justice that it should be exercised.  It is not necessary that it should appear that the first court is a 'clearly inappropriate' forum.  It is both necessary and sufficient that, in the interests of justice, the second court is more appropriate. (My emphasis)

5. With respect I adopt Blaxell J's reference in his reasons in Covus Corporation to the decision of Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460; [1986] 3 WLR 972 at 478, where Lord Goff described the factors relevant to determining whether a second court is a 'natural forum':

   So it is for connecting factors in this sense that the court must first look; and these will include not only factors affecting convenience or expense (such as availability of witnesses), but also other factors such as the law governing the relevant transaction… and the places where the parties respectively reside or carry on business.

6. To determine, then, the application to transfer the present proceedings to the New South Wales Supreme Court, requires me to consider whether or not the New South Wales Supreme Court is the 'more appropriate forum' for these proceedings.

More appropriate forum:  relevant factors

1. It is evident from the materials provided to me by the parties, in particular the affidavits of Mr Knell and Mr Plenty, that New South Wales is the more appropriate forum for these proceedings.

2. By reference to the respective parties' affidavit materials, the factors affecting convenience or expense (to adopt Lord Goff's expression) on analysis, fall heavily in favour of the action being litigated in New South Wales.  First, by reference to par 3 of Mr Knell's affidavit filed on 15 April 2015, the first defendant, BMT & Assoc Pty Ltd's 'registered office' and 'principal place of business' are both in New South Wales and have been since the company was formed in 1997.  All of the corporate officers of the company are also resident of the state of New South Wales.  Mr Knell also attests that all relevant parties to the application are in either the state of New South Wales or Queensland, and the events relevant to the action all occurred within the state of New South Wales (which presumably refers to the defendants' provision of advice as the construction development itself was carried out in Queensland).  A glance at the indorsement of claim accompanying the writ of summons filed on 28 November 2013 supports that contention.  By contrast the only apparent connection with Western Australia appears to be that the first defendant had a business address in Western Australia at the relevant time (see par 2(e) of the indorsement of claim).

3. The affidavit of Mr Plenty similarly supports a conclusion that New South Wales is a more appropriate forum for this action.  Mr Plenty's affidavit establishes that essentially every factor pertaining to increased convenience and decreased expense with regard to the litigation to a trial of this action indicates towards the convenience of the matter being transferred to New South Wales (see par 5 - par 19 of Mr Plenty's affidavit):

   (a) at the time of providing quantity surveying services, the first defendant's principal place of business was at an address in Sydney, New South Wales, as was its registered office;

   (b) the second and third defendants are both directors of the first defendant, reside in New South Wales, and work out of the first defendant's offices in Sydney, New South Wales;

   (c) the fourth defendant is also a resident of New South Wales working out of the first defendant's Sydney office;

   (d) the quantity surveyor who provided the relevant services to the plaintiff is also resident in New South Wales, and works out of the first defendant's Sydney office; and

   (e) to Mr Plenty's knowledge, all communications sent and received with respect to the work that is the focus of these proceedings were sent or received from the first defendant's Sydney office.

4. On the basis of those factors, Mr Plenty contends that these proceedings being conducted anywhere other than the state of New South Wales would lead to great expense and inconvenience, given that all the defendants (and their relevant officers) reside and work in New South Wales.  I agree.  The State of Queensland (where the Harbour Lights development occurred) presents theoretically as another alternate forum with a connection to this dispute.  However, neither party pushes for the Supreme Court of Queensland as an appropriate forum to resolve this litigation.

5. In addition to a clear connection of this dispute with the state of New South Wales, I can see little if any connection whatsoever to Western Australia, aside from the bare fact that the first defendant, BMT, has an office in Perth, and the circular fact that this action was begun in Western Australia by the plaintiffs' writ of summons of 28 November 2013.  There is also nothing arising from the indorsement of claim to suggest the law governing the relevant events is somehow uniquely applicable to Western Australia, supporting the action being litigated here.

6. Finally, a factor present in this case, that may not have been present in other decisions of this court considering the operation of s 5(2)(b)(iii) of the Cross-Vesting Act (see, for example, Anderson Formrite Pty Ltd v Baulderstone Hornibrook Pty Ltd [2004] WASC 115; (2004) 206 ALR 614; and Whyalla Refiners Pty Ltd v Grant Thornton (A Firm) [2001] WASC 49; (2001) 182 ALR 274), is that all parties consent to the proceedings being transferred to the Supreme Court of New South Wales.

7. In light of the above factors weighing heavily in favour of the Supreme Court of New South Wales being the more appropriate forum for these proceedings, and the parties' consent to the transfer of this action to that forum, I conclude pursuant to s 5(2)(b)(iii) of the Cross-Vesting Act, that I must make orders transferring this matter to the Supreme Court of New South Wales.

8. Accordingly, I make the following orders, as requested by the terms of the plaintiff's memorandum of consent orders filed on 15 April 2015.  These orders issue automatically upon the publication of these reasons:

   Pursuant to Order 43 Rule 16 of the Rules of the Supreme Court 1971 (WA) and BY CONSENT, IT IS ORDERED THAT:

   1.The proceedings are hereby transferred to the Supreme Court of New South Wales pursuant to section 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (WA).

   2.The costs of and incidental to these orders be in the cause.