Commercial Waste Treatment Pty Ltd v Transpac Capital Pty Ltd
[2011] VSC 497
•4 October 2011
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
S CI 2009 10702
| COMMERCIAL WASTE TREATMENT PTY LTD | Plaintiff | |
| v | ||
| TRANSPAC CAPITAL PTY LTD | Defendant | |
---
JUDGE: | DALY AsJ | ||
WHERE HELD: | Melbourne | ||
DATE OF HEARING: | 25 August 2011 | ||
DATE OF JUDGMENT: | 4 October 2011 | ||
CASE MAY BE CITED AS: | Commercial Waste Treatment Pty Ltd v Transpac Capital Pty Ltd | ||
MEDIUM NEUTRAL CITATION: | [2011] VSC 497 | Revised 7 November 2011 | |
---
REASONS FOR DECISION
---
Jurisdiction of Courts (Cross Vesting) Act 1987 - Later proceeding commenced in another Jurisdiction - Considerations governing applications for transfer - In the interest of justice for related proceedings to be heard together.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Andrews | Noble Lawyers |
| For the Defendant | Mr N Evans | Stynes Dixon Lawyers |
HER HONOUR:
Introduction
In this proceeding, the plaintiff (“CWT”) has claimed the sum of $200,257.12 from the defendant (“Transpac”) in respect of unpaid fees for the installation of a sewage treatment plant at a mining site on Moorvale Station, near Coppabella, Queensland (“works”). The works were commissioned by Transpac (or its lead contractor, Civmec) to service an accommodation village for mining staff developed between 2007 and 2009 (“Moorvale development”). The amount claimed by CWT represents the difference between the amount invoiced by CWT in respect of the works and the amount paid to it.
Transpac defends the claim on the following basis:
(a)the contract for the works was between CWT and Civmec Construction and Engineering Pty Ltd (“Civmec”), not CWT and Transpac;
(b)the amount invoiced by CWT for the works exceeded the agreed contract price (including any agreed variations);
(c)the works were defective, in that they, have used “poor design philosophy”, and do not meet EPA requirements; and
(d)the works were not finished on time (or at all).
Transpac has relied upon the alleged defects in CWT’s performance of the works to make a claim of $315,148.20 by way of set off and/or counterclaim. In its reply and defence to counterclaim, CWT restates its assertion that it entered into a contract with Transpac, and contends that any dealings between it and Civmec was in Civmec’s capacity as agent for Transpac. CWT agreed that the invoices issued by CWT were in excess of the original contract price, but that an additional amount of $27,272.73 was invoiced in respect of additional works caused by the failure of Civmec to correctly excavate the site of the sewerage treatment plant. CWT denies that the sewerage treatment plant installed by CWT did not properly function, and contends that there were no relevant EPA standards with which compliance was required.
The proceeding was commenced on 11 December 2009, and is now close to ready for setting down for trial. At an early stage in the proceeding, Transpac made an application under s 5(2)(b)(iii) of the Jurisdiction of Courts (Cross‑Vesting) Act 1987 (Vic) (“Act”) to transfer the proceeding to the Supreme Court of Queensland. This application was dismissed on 1 March 2010.
On 16 March 2011 Transpac issued a summons seeking orders that the proceeding be transferred to the Supreme Court of New South Wales pursuant to s 5(2) of the Act: alternatively, that the proceeding be stayed. Transpac primarily relies on ss 5(2)(b)(i) and (iii) of the Act, which state as follows:
(2)Where –
(a)a proceeding (in this sub‑section referred to as the “relevant proceeding” is pending in the Supreme Court (in this sub‑section 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 Territory and 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.
Evidence
Transpac relies upon an affidavit sworn by its sole director, Mr Peter Knight, on 15 March 2011. The following paragraphs summarise the uncontested evidence of Mr Knight in relation to the Moorvale development, the background to the proceeding, and the dispute between Transpac (or its related entities) and the principal contractor for the Moorvale development, Civmec.
Mr Knight established Transpac in 1996 as a vehicle for an asset financing business, which owns and operates what are described as “strategic assets” which produce a long term income stream, specialising in accommodation villages for mine sites. For each transaction, Mr Knight arranges for the establishment of a separate corporate entity is established to acquire land, to obtain the necessary permits, to engage contractors to design and construct the village, and to operate the village.
Transpac and the entity established for the purpose of the Moorvale development, RSA (Moorvale) Pty Ltd (“RSA”), are incorporated in New South Wales, and have their registered offices and principal place of business in New South Wales. Mr Knight is resident in Sydney. RSA was incorporated on 4 September 2007, after Transpac was nominated by the mine owner as the successful tenderer to develop the accommodation village at Moorvale. The tender specifications included the construction and maintenance of a sewerage treatment plant.
In March 2008, RSA engaged Civmec to construct the accommodation village. The original contract between RSA and Civmec did not include the sewerage treatment plant, which RSA had originally intended to finance and construct separately. However, in June 2008, RSA’s financier stipulated that the construction of the sewerage treatment plant was required to be included in the construction contract between RSA and Civmec to optimise the financier’s security position.
Accordingly, in June 2008 the engineering company engaged by RSA (which appears to be a related company to Civmec) issued tender documents for the construction of the sewerage treatment plant. In July 2008, Mr Knight was contacted by Mr Max Bell, the then sole director of CWT, expressing interest in constructing and operating the sewerage treatment plant. CWT had its registered office in New South Wales, and Mr Bell was based in Sydney.
Mr Knight deposed that during a meeting between him and Mr Bell in Sydney, he [Mr Knight] said words to the following effect:
“Civmec is the principal contractor for construction of the village. If CWT is the successful tenderer it will be a sub‑contractor to Civmec.”
Mr Bell responded:
“That’s good. I can get Civmec to do the excavation work for the tanks. Normally I would have to bring in an outside contractor.”
On 25 August 2008 Mr Knight wrote to Mr Bell (on RSA letterhead) in the following terms:
“Dear Max
We are in receipt of Commercial Waste Treatment Pty Ltd’s proposal dated 24th July 2008, to construct and install a 140,000 litres per day sewerage treatment plant at our accommodation village at Coppabella, Queensland.
We are pleased to advise that we intent (sic) to accept your proposal, detailed in the letter of the 24th July to provide a fully installed and tested plant (Model GIB-12-420) at an all inclusive price of $657,283.00 plus GST.
We note this proposal also includes 2 years of maintenance support.
We also note that installation of the first module of the plant will be completed by the second week of October 2008.
The actual contract will be with our principal contractor, CIVMEC Construction and Engineering Pty Ltd.
I shall follow up with CIVMEC tomorrow to expedite the formal contract and payment of the deposit. However in the interim we would be pleaded if you would commence the project so that the delivery date can be met.
Should you have any queries regarding this matter please do not hesitate to contact me.
Yours sincerely,
Peter Knight
Director”
On or about 1 October 2008, RSA and Civmec entered into an agreement to vary the contract between them to incorporate the construction of the sewerage treatment plant. Prior to and after this time, CWT rendered invoices for the works to Civmec, and CWT was paid by cheques issued by Civmec.
Mr Bell died in October 2008. He was replaced as a director of CWT by his widow, Ms Margot Brenton, who lives in Victoria and who up until that time did not appear to have been involved in the operations of CWT. Works on the sewerage treatment plant continued. CWT left the site before Christmas 2008. By April 2009, the parties were in dispute regarding the completion of the works and payment of outstanding invoices.
By the date a certificate of practical completion was issued to Civmec in July 2009, the sewerage treatment plant had not been completed or commissioned (this is a matter of dispute between Transpac and CWT in this proceeding). Disputes had arisen between RSA and Civmec in respect of a range of matters regarding the Moorvale development, including the state of the sewerage treatment plant. Mr Knight deposed that the total value of RSA’s claims against Civmec to remedy defects may approach $2 million, and RSA also has a claim for some $2.69 million by way of liquidated damages for delay. Mr Knight deposed that he believes RSA may also have claims against the parent company of Civmec arising out of alleged misrepresentations made by its directors and officers in the course of negotiating the construction contract for the Moorvale development.
While Mr Knight’s affidavit is a little vague as to what transpired between RSA and Civmec between December 2008 and October 2009, it appears that efforts were made during this period to attempt to resolve the disputes between them without resort to litigation. Also, the defects liability period was extended. However, in July 2010 Civmec issued a statutory demand against RSA in relation to a debt said to be arising out of a lease agreement between RSA and Civmec over part of the Moorvale development site. The statutory demand was set aside by the Supreme Court of New South Wales, following which Civmec issued a proceeding in the Supreme Court in Queensland claiming the relevant amount.
In February 2011 RSA issued a proceeding in the Technology and Construction List of the Supreme Court of New South Wales against Civmec and the VDM Group Ltd (Civmec’s parent company) (“NSW proceeding”). The first section of the Technology and Construction List Statement filed by RSA (which is equivalent to a statement of claim) conveniently summarises the scope of RSA’s claims against Civmec in the NSW proceeding, and is reproduced below.
ANATURE OF DISPUTE
1The dispute relates to the construction of 320 mining camp accommodation units and related works which the first defendant contracted to carry out and complete for the plaintiff under a construction contract entered into between the plaintiff and the first defendant on 26 March 2008.
2The plaintiff alleges that:
(a)the first defendant did not carry out the work associated with the construction project as required by the construction contract in that it failed to complete the construction project by the required time and aspects of the work it undertook in relation to the construction project were substandard in that it did not conform with the specifications in the contract or was otherwise unworkmanlike and was not rectified as required;
(b)the first defendant claimed amounts to undertake certain works associated with the construction project which it was not entitled to and which were paid by the plaintiff under mistake;
(c)the plaintiff relied on certain representations of the second defendant in consideration of its entry into the construction contract, and which formed terms of a collateral contract between the plaintiff and the second defendant, which were breached by the second defendant; and
(d)the first and/or second defendant engaged in misleading or deceptive conduct concerning their performance, and ability to perform, the works associated with the construction project prior to the entry into the construction contract.
In the NSW proceeding, RSA claims damages in respect of the rectification works required for a large number of alleged defects in the Moorvale development. Further, the statement in the NSW proceeding includes the following paragraphs with respect to the works being the subject of this proceeding:
CLAIMS IN RESPECT OF STP WORKS
Relevant terms of Construction Contract
90It is a term of the Construction Contract that the Superintendent may direct the first defendant to vary the works which the first defendant is required to carry out and complete under the Construction Contract by carrying out additional work, and the Superintendent may do so either on its own initiative or upon the request of the first defendant.
Particulars
(1)Clauses 36.1 and 36.3 of Section 2 – General Conditions.
91The plaintiff refers to and repeats the term of the Construction Contract pleaded in paragraph 18 above.
Variation of works to include STP Works
92On or about 9 October 2008, the works under the Construction Contract were varied by the addition of the STP Works (as defined in paragraph (3) below).
Particulars
(1)Letter dated 1 October 2008 from the first defendant to the Superintendent, being “Variation – Claim 004 Sewerage Treatment Plant” (Variation 004).
(2)The Superintendent’s approval of Variation 044 is evidenced by item 2.2.13 of the Minutes of the Moorvale Station Weekly Site Meeting No. 13 dated 9 October 2008.
(3)The STP Works are the works described in Variation 004 and the enclosed Attachment 1 (being a letter dated 25 August 2008 from the plaintiff to Max Bell of Commercial Waste Treatment Pty Ltd (CWT) and a letter dated 24 July 2008 from Max Bell of CWT to Belleng VDM) and the enclosed Attachment 2 (being a letter dated 27 September 2008 from the plaintiff to Max Bell of CWT).
Breaches of contract
93In breach of clause 2.1 of Section 2 – General Conditions, the first defendant failed to carry out and complete the STP Works in accordance with the Construction Contract.
Particulars
(1)Calibrated equipment and metering systems was not installed to monitor the performance of the plant and to minimize likelihood of environmental harm, together with sampling points and dosing and release points, including the following:
(a)Turbidity Meter; Sludge volume Index Reader;
(b)Flow Meters on influent and effluent lines;
(c)Free chlorine meter and sampling, dosing and release points;
(d)Alum dosing pumps; and
(e)Stand by pumps in the event of pump station overflow.
(2)An operational back to base telemetry system for remote monitoring of the mechanical operation of the STP was not installed.
(3)Isolation (shut off) valves, float valves, pumps and pipe work to enable the effluent flow between different stages/tanks of treatment to be balanced by staging treatment of varying volumes of effluent as occupancy of the village increased or decreased over time, was not installed.
(4)A control system and associated vales for four effluent pipes for each of the four zones for release and use of treated effluent for landscaping was not installed.
(5)An irrigation system for landscaping was not installed.
94In breach of clause 11.1 of Section 2 – General Conditions (as amended by clause 6 of Annexure B), the first defendant failed to ensure the STP Works complied with the requirements of the EPA.
Particulars
(1)EPA Permit Number IPCE004550406411 dated 15 January 2007.
(2)Further particulars will be provided upon discovery and service of the evidence.
95In breach of the Express Workmanship Term, the first defendant has failed to use suitable new materials and proper and tradesmanlike workmanship in carrying out and completing the STP Works which h as resulted in numerous defects in those works.
Particulars
(1)The plaintiff repeats the particulars provided in paragraph 93 above.
96In breach of the Implied Workmanship Term, the first defendant has failed to carry out and complete the STP Works with all proper care and skill and in a good an workmanlike manner, and has failed to use materials which are of good or merchantable quality and/or reasonable (sic) for the purpose for which the materials were required, which has resulted in numerous defects in the works.
Particulars
(1)The plaintiff repeats the particulars to paragraph 93 above.
97By reason of the first defendant’s breaches of contract referred to in paragraphs 93 to 96 above, the plaintiff has suffered loss and damage.
Particulars
(1)The sum of $279,400.00 being the cost to complete and commission the STP Works.
(2)Septic tank waste removal from 1 November 2008 to 31 January 2009 in the amount of $29,258.20.
(3)Maintenance program for 2 years as provided for in the STP Subcontract but not completed in the amount of $6,490.00.
(4)Further particulars will be provided following service of the evidence.
Indemnity claim
98The plaintiff refers to and repeats the term of the Construction Contract pleaded in paragraph 19 above.
99Further and in the alternative, the first defendant is liable to indemnify the plaintiff in respect of the loss and damages suffered by the plaintiff arising out of the first defendant’s and/or its subcontractor’s defective workmanship.
The damages claimed by RSA against Civmec set out in paragraph 97 of the statement in the NSW proceeding mirror the damages claimed by Transpac in its counterclaim against CWT in this proceeding.
Finally, Mr Knight deposed as to his belief regarding which witnesses were likely to be required to be called by RSA and Civmec with respect to the construction of the sewerage treatment plant in the NSW proceeding. None are located in Victoria.
In his affidavit sworn 20 September 2011, Mr James Beatty, the solicitor acting for RSA in the NSW proceeding, deposed as follows:
(a)he originally received instructions from RSA in relation to a claim by RSA under a guarantee given by Civmec in respect of the construction of the Moorvale development;
(b)this claim was resolved with the issue of a new guarantee, to expire on 15 May 2011;
(c)he first received instructions to prepare the statement in the NSW proceeding in November 2011. The NSW proceeding was issued in February 2011;
(d)in March 2011 Civmec and the other defendants in the NSW proceeding issued an application seeking to transfer the NSW proceeding to the Supreme Court of Queensland. This application was heard and dismissed in May 2011;
(e)shortly after the dismissal of the transfer application, the parties in the NSW proceeding reached a “standstill agreement” in order to facilitate settlement discussions, which provided for an extension of the validity of the bank guarantee, an agreement preventing parties relying upon the lapse of time for the purposes of a limitation defence in respect of any claims, and a suspension of the court timetable; and
(f)while the parties have exchanged some documents informally (including documents relating to this proceeding), Mr Beatty expects that the Court is likely to require the parties to formally progress the NSW proceeding in the near future.
The orders exhibited to Mr Beatty’s affidavit show that the standstill agreement has resulted in the completion of interlocutory steps being postponed on at least two occasions. As at 22 September 2011 the orders in the NSW proceeding require the defendants in that proceeding to file and serve the equivalent of any defence and counterclaim by 7 October 2011, and for RSA to file and serve any reply and defence to counterclaim by 28 October 2011. The next scheduled directions hearing is on 4 November 2011.
Transpac’s application to transfer this proceeding to New South Wales is opposed by CWT. CWT relied upon an affidavit sworn by Ms Margot Brenton, the sole director of CWT. Ms Brenton deposed as follows:
(a)CWT submitted a tender for the construction of the sewerage treatment plant to Transpac on 7 July 2008;
(b)in January 2009 Transpac requested that CWT enter into a contract with Civmec in substitution for Transpac, after the works had been substantially completed, and after Transpac had defaulted on a number of payments. She rejected this request on behalf of CWT;
(c)CWT did not contract with RSA, Civmec, or VDM Group Ltd, and was not a party to any dispute between those parties. She deposed that “Any contract or dispute has nothing to do with CWT”;
(d)CWT’s registered office and all of its records are located in Victoria;
(e)the works were undertaken by CWT in Queensland;
(f)Ms Brenton, a Victorian resident, will be required to give evidence regarding her involvement in the project following the death of Mr Bell, her husband. She deposed as follows:
“These proceedings have already caused me significant financial and emotional stress. This stress will be exacerbated if the proceedings are transferred to New South Wales.”
(g)other witnesses that CWT proposes to call at the trial of the proceeding reside in Tasmania, Queensland, Victoria and South Australia;
(h)it is unclear what relevant evidence the potential evidence the witnesses identified by Mr Knight will give; and
(i)Transpac’s lawyers have refused to co‑operate with Civmec’s lawyers in arranging for mediation to take place in accordance with previous directions given by the Court.
Submissions
Transpac’s primary submission is that the transfer should take place because of the existence of the NSW proceeding. While Transpac also submitted that it was otherwise in the interests of justice that the proceeding be transferred to New South Wales, it was agreed by counsel for both parties that given that potential lay and expert witnesses in both this proceeding and the NSW proceeding are located in many locations across the country it is not possible to conclude that either NSW or Victoria is clearly the most convenient forum for the disputes to be determined.
Even if such a concession had not been made, it is far from clear that there is a forum which is the “natural” home of this proceeding (or, for that matter, the NSW proceeding). The Moorvale development is in Queensland, the original discussion between Mr Knight and Mr Bell took place in New South Wales, CWT is domiciled in Victoria and Transpac in New South Wales, and potential witnesses are located across the country.
Accordingly, the determination of whether it is appropriate to transfer this proceeding to New South Wales is substantially dependent upon the degree of connection between this proceeding and the NSW proceeding, and upon the extent to which it is desirable that this proceeding and the NSW proceeding be heard and determined together, noting that even if the application for transfer is successful, Transpac and/or RSA will need to make an application to have the two proceedings managed and determined together.
Counsel for Transpac submitted that this proceeding should be transferred to New South Wales because:
(a)The Court in the NSW proceeding will be required to determine the same issues that are in dispute between the parties in this proceeding, in particular, the contracting parties and the performance of the contract;
(b)this proceeding requires the determination of a dispute which is a part of a broader dispute which is the subject of the NSW proceeding;
(c)the preponderance of connecting factors favour New South Wales as the more appropriate forum; and
(d)the delay in making the application to transfer is explicable and excusable, in that RSA refrained from issuing the NSW proceeding in order to facilitate settlement negotiations between it and Civmec.
Finally, counsel for Transpac submitted that if the transfer application is unsuccessful, Transpac will apply to have Civmec joined to this proceeding.
Counsel for CWT submitted that the application to transfer the proceeding to New South Wales should be rejected as vexatious, particularly having regard to the fact that a previous transfer application has failed, and because this proceeding is ready to be set down for trial. Further, there is no particular disadvantage to any party of having this proceeding heard and determined in Victoria given the location of the works in Queensland and given that witnesses are located across Australia. Finally, Transpac chose to issue the New South Wales proceeding in New South Wales, despite Mr Knight having previously sworn in this proceeding that the appropriate forum for the determination of this dispute is Queensland, and despite Transpac’s previous application for a transfer being dismissed. Finally, it appears that the NSW proceeding is dormant, and there is no evidence as to when the NSW proceeding is likely to be heard.
Discussion
From an analysis of the pleadings in this proceeding and the New South Wales proceeding, along with the undisputed evidence of Mr Knight, it is apparent that this proceeding is “related” to the NSW proceeding within the meaning of the Act.
First, in the NSW proceeding, RSA claims from Civmec the same damages in respect of the alleged defects and non‑performance of the sewerage treatment plant as Transpac has claimed in this proceeding against CWT. Accordingly, in each proceeding the Court or Courts will need to determine the questions of the quality and fitness for purpose of the sewerage treatment plant, irrespective of the broader questions of which party is liable, and to whom.
Secondly, in this proceeding Transpac denies liability for any claims by CWT for non—payment in respect of the works, on the basis that Civmec, rather than Transpac (or perhaps, more properly, RSA) was the contracting party. This is consistent with RSA’s position in the NSW proceeding in claiming damages with respect to the alleged defects in the works against Civmec. Whether the identify of the party who contracted with CWT is truly an “issue” in the NSW proceeding will not become apparent until Civmec files its defence.
Indeed, the approach adopted by Civmec in the NSW proceeding may affect CWT’s position in this proceeding. If, in the New South Wales proceeding Civmec admits in its pleadings in the NSW proceeding that it contracted with RSA to construct the sewerage treatment plant for RSA, that would not bind the judge hearing the trial in this proceeding, but would surely heighten the risk to CWT of seeking to recover against Transpac alone. If, on the other hand, Civmec denies that it contracted with RSA to construct the sewerage treatment plant, then substantially the same issue would arise in this proceeding and the New South Wales proceeding: that is, the liability of the parties to (a) meet any payment claim by CWT and/or (b) meet any claim for damages in respect of any defective works or other contract performance issues.
Accordingly, it is apparent that this proceeding and the New South Wales proceeding are “related” by reason of the parties, the subject matter, and the issues. Further, there is an appreciable risk that if the transfer is not made, and each proceeding progresses to trial and judgment, there could be conflicting findings on these issues. As noted in Australian Technology Fund Management v ATF Group,[1] this issue is a powerful argument in favour of transferring the proceeding to New South Wales. In this case McDougall J stated:
It cannot be in the interests of justice that those matters be determined twice: doubling the expense to the parties, doubling the consumption of court time, and with the risk of inconsistent findings of credibility and fact.[2]
[1][2009] NSWSC 673
[2]Ibid, [13].
However, in the current application, there are sound countervailing arguments against transferring this proceeding to New South Wales. The first issue is the timing of the application given the stage this proceeding has reached. While the reasons proffered by Mr Knight for the delay in commencing the NSW proceeding (and for not vigorously prosecuting that proceeding) are sound, the practical impact of this delay upon the plaintiff in this proceeding (if this proceeding is to be transferred) may be harsh, in that CWT would be forced to participate in a proceeding which is still in its early stages, rather than have this proceeding set down for trial. While there is no evidence before me as to the likely time at which a trial of the NSW proceeding would be held, I can assume there may be a further six to 12 month delay compared with a trial of this proceeding.
Further, another argument against transferring this proceeding to New South Wales is that it would compel the plaintiff in this proceeding, which is suing for an alleged debt in respect of a discrete component of the Moorvale development, to become a party to a proceeding (assuming that a successful application would be made to have this proceeding heard together with the NSW proceeding) in which RSA and Civmec are seeking to litigate disputes regarding a wide range of matters concerning the Moorvale development. The statement filed by RSA in the NSW proceeding makes claims against Civmec and its related entities with respect to the following matters: the excavation of the site, a list of defects in the construction of the accommodation units and common areas, including inadequate drainage and sound insulation, the communications and entertainment system for the village, and claims for lost revenue arising out of the delay of the completion of the Moorvale development. Accordingly, while careful management on the part of the Court and the parties could isolate the issues concerning the sewerage treatment plant and limit the necessity for CWT to be involved in each and every aspect of the NSW proceeding, it is inevitable that joinder of this proceeding to the NSW proceeding would cause CWT to incur additional legal costs in prosecuting its claims. On the other hand, CWT may enjoy some collateral benefit of the joinder of this proceeding to the NSW proceeding: in this proceeding CWT runs an appreciable risk that Transpac would be found not to have been the relevant contracting party. At least if CWT is a party to the NSW proceeding, and it is found to be entitled to recover unpaid fees, each of the parties potentially liable to pay those fees will be before the Court.
While the impact of additional cost, delay and inconvenience to CWT is a relevant factor in determining whether it is appropriate to transfer this proceeding to New South Wales, it is apparent from the authorities that
The interests of justice are not the same as the interests of one party, and there may be interests wider than those of either party to be considered.[3]
[3]BHP Billiton Ltd v Shultz and ors [2004] 221 CLR 400, at 421.
In particular, the interests of justice require that the risk of contemporaneous proceedings involving “the same issues and factual matrix” being prosecuted in two different jurisdictions be minimised. In Amcor and anor v Barnes and ors,[4] which was a proceeding where defendants who were natural persons applied to have a proceeding transferred to New South Wales, Osborn J recognised the existence of a range of factors which would weigh in favour of transfer, including minimising the hardship and inconvenience to the defendants, but found that the commonality of issues in that proceeding and another Victorian proceeding
“gave rise to a probability that:
(a)there will be a duplication of resources expended in the two proceedings unless they are heard together;
(b)there will be a waste of judicial resources unless they are heard together; and
(c)there is a prospect of different findings in different jurisdictions with respect to common issues. This prospect is contrary to the public interest in maintaining confidence and respect for the authority of the courts.[5]
[4][2007] VSC 515.
[5]Ibid, [46]
In Amcor v Barnes, New South Wales was more clearly a natural forum for the relevant dispute, and the cost, inconvenience and hardship to the relevant defendants was more substantial than in the current case, but the Court found the commonality of issues in the two proceedings necessitated their joint management and trial in Victoria, notwithstanding the natural connection between the dispute and New South Wales. In the current case, there are few if any material connecting factors between this dispute and Victoria.
Accordingly, I will order that this proceeding be transferred to the Supreme Court of New South Wales.
0
2
0