China Insurance Group Finance Company Ltd v Kingston (No 2)

[2020] NSWSC 1309

Supreme Court

New South Wales

Medium Neutral Citation:

China Insurance Group Finance Company Ltd v Kingston (No 2) [2020] NSWSC 1309

Hearing dates:

25 September 2020

Date of orders:

25 September 2020

Decision date:

25 September 2020

Jurisdiction:

Equity - Commercial List

Before:

Stevenson J

Decision:

Proceedings transferred to the Commercial Court of the Supreme Court of Victoria

Catchwords:

CIVIL PROCEDURE – whether proceedings should be transferred to the Commercial Court of the Supreme Court of Victoria – whether that court a more appropriate forum – where plaintiff incorporated in Hong Kong – where defendant lives in Melbourne – where subject of proceedings has no apparent connection to New South Wales

CIVIL PROCEDURE – whether proceedings should be transferred to the Commercial Court of the Supreme Court of Victoria – whether matter likely to progress more quickly in the Commercial List than in Victorian Commercial Court

Legislation Cited:

Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW)

Cases Cited:

China Insurance Group Finance Company Ltd v Kingston [2020] NSWSC 1273

Stammbach v MBD Energy Limited [2014] NSWSC 807

Category:

Consequential orders (other than Costs)

Parties:

China Insurance Group Finance Company Ltd (Plaintiff)
Phillip James Kingston (Defendant)

Representation:

Counsel:
Mr G Ng (Plaintiff)
Mr C T Moller (Defendant)

Solicitors:
Ashurst Australia (Plaintiff)
HWL Ebsworth (Defendant)

File Number(s):

2020/246363

EX TEMPORE Judgment (REVISED)

1. The background to this matter is set out in my judgment of 17 September 2020[1] . These reasons assume familiarity with that judgment. I shall use the same abbreviations.

   1. China Insurance Group Finance Company Ltd v Kingston [2020] NSWSC 1273.

2. By notice of motion filed on 21 September 2020, Mr Kingston seeks an order that these proceedings be transferred to the Commercial Court of the Supreme Court of Victoria pursuant to s 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW).

3. That section provides:

5 Transfer of proceedings

(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:

…

(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.

4. By that section, I am obliged to transfer these proceedings to Victoria if the “interests of justice” require it.

5. The authorities establish:

1. that it is both necessary and sufficient for a transfer to be made that the transferee Court is the "more appropriate" forum; and

2. no particular significance attaches to the plaintiff's choice of forum. [2]

   2. Eg Stammbach v MBD Energy Limited [2014] NSWSC 807 at [6] (Brereton J).

6. China Insurance is a Hong Kong company. The loan contract, which is the subject to these proceedings, is governed by Hong Kong law.

7. So far as witnesses are concerned, no matter where the matter is finally determined it seems likely if not certain that the matter will be heard virtually. That is, the location of witnesses is not a matter that weighs heavily in the balance as, wherever they are, they can and are likely to give their evidence via one platform than another.

8. But Mr Kingston lives in Melbourne. His legal advisors are in Melbourne. He is being sued for something in the order of $122 million.

9. There appears to be no relevant connection between these proceedings and New South Wales save for the fact that China Insurance’s solicitors commenced proceedings here because of their apprehension, based upon information conveyed to them by their colleagues in Melbourne, that "the effective lockdown in greater Melbourne was likely to cause disruptions to the operation of the [Victorian] Court".

10. On the face of it, therefore, Victoria is the more appropriate forum.

11. China Insurance submits that, nonetheless, proceedings should remain in this Court because of the current COVID-19 lockdown in Melbourne.

12. Mr Ng, for China Insurance, drew attention to limitations on use that can be made of in-court appearances by reason of the directions recently given by the Victorian Deputy Public Health Commander. The effect of those directions may well be that there is a limited facility for the Victorian Commercial Court to conduct in-court hearings. However, in this List in-court hearings are currently rare, and have been since the outbreak of the COVID-19 pandemic.

13. Mr Ng also submitted that, "there has been considerably less disruption" to this Court's operations, and the operations of the Commercial List in particular, by of the reason COVID pandemic, than has occurred in the Supreme Court of Victoria, and in its Commercial Court in particular. Mr Ng submitted that "these proceedings will progress to judgment more quickly if they remain in the Commercial List than if transferred to Victoria".

14. The basis for that submission is a matter deposed to by the plaintiff’s solicitor, Mr Wen-Tsai Lim, at paragraph 32 of his affidavit:

“On Monday 21 September 2020, I telephoned Fiona Hudgson of the Victorian Bar. Ms Hudgson has a busy commercial practice and appears frequently in the Commercial Court of the Supreme Court of Victoria. She informed me, and I believe:

(a)   judges and registry staff are, except in very limited circumstances, working from home;

(b)   in her observation, the ability of the Commercial Court to operate normally has been adversely affected by the lockdown;

(c)   proceedings commenced in the Commercial Court are being listed for preliminary directions about six weeks after the filing of originating process; and

(d)   two hearings in which she is briefed have recently been vacated.”

15. It may be that some judges of the Supreme Court of Victoria are working from home. That is the case in this Court. I am not aware that this has adversely affected this Court's operations, and see no reason to think that it would adversely affect that Court's operations.

16. According to Ms Hudgson, to whom Mr Lim spoke, Registry staff of the Victorian Supreme Court are also working from home. That may well be. But it is well-known that all the major law firms in the country have started working from home to a large extent, and they all seem to be functioning satisfactorily.

17. The opinion reported from Ms Hudgson that “the ability of the Commercial Court to operate normally has been adversely affected by the lockdown", apart from being inadmissible by reason of not being based on any exposed process of reasoning, is so lacking in specificity that I feel I can place no reliance on it.

18. The reported fact that two hearings in which Ms Hudgson has been briefed have, for reasons unexplained, been vacated, takes the matter no further.

19. So far as the questions of "preliminary directions" are concerned, I propose now to direct that Mr Kingston file his defence within 21 days.

20. Were the matter to remain in this Court, it would in all probability be held in a virtual court using Microsoft Teams.

21. It is true, as Mr Lim has deposed, matters in this List have proceeded satisfactorily using remote technology. I have no reason to doubt that were the matter to be transferred to the Supreme Court of Victoria's Commercial Court the matter would be dealt with similarly there.

22. Overall I have no reason to doubt that this matter will receive the same degree of expedition in the Victorian Commercial List as it would receive here.

23. In those circumstances I:

1. Direct that the defendant file and serve his defence by 16 October 2020.

2. Order that pursuant to s 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW), this proceeding be transferred to the Commercial Court of the Supreme Court of Victoria.

3. Order that the costs of the defendant's Notice of Motion of 21 September 2020 be the defendant's costs in the cause.

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Endnotes

Decision last updated: 25 September 2020