Compaq Computer Australia Pty Ltd v IPN Services Pty Ltd
[2003] VSC 431
•8 September 2003
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
PRACTICE COURT
No. of
| COMPAQ COMPUTER AUSTRALIA PTY LTD | Plaintiff |
| v | |
| IPN SERVICES PTY LTD | Defendant |
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JUDGE: | KELLAM J. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 1 and 8 September 2003 | |
DATE OF JUDGMENT: | 8 September 2003 | |
CASE MAY BE CITED AS: | Compaq Computer Australia Pty Ltd v IPN Services Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2003] VSC 431 | |
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JURISDICTION OF COURTS (CROSS-VESTING) ACT 1987 (VIC), s.52(2) – Governing law of contract – Connection with Victoria – Costs and convenience – Original choice forum – Interests of justice.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P.D. Corbett | Forbes Dowling |
| For the Defendant | Mr M. Pirrie (on 1 September 2003) Unrepresented on 8 September 2003 | Frenkel Partners |
HIS HONOUR:
The plaintiff, Compaq Computer Australia Pty Ltd (“Compaq”) seeks an order that these proceedings be transferred to the Supreme Court of New South Wales under s.5(2) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (“the Act”).
Compaq is a manufacturer and supplier of computer hardware, software and support services. The defendant, IPN Services Pty Ltd (“IPN”) carries on the business of the provision of information technology support and services.
By amended statement of claim filed in these proceedings and dated 17 October 2002, Compaq alleges that IPN entered into an agreement with it in or about October 2000 whereby Compaq agreed to supply and deliver, and IPN agreed to purchase computer hardware, software and support services. Compaq alleges that it supplied such goods and services and that IPN has failed to pay Compaq the sum owing pursuant to the agreement of $545,740.20.
By its defence and counterclaim filed on 3 December 2002, IPN denies the agreement and the alleged debt owed to Compaq. IPN counterclaims against Compaq and against another company, Compaq Financial Services Australia Pty Ltd (which company has since changed its name to HP Financial Services Australia Pty Ltd). The counterclaim is to the effect that IPN, Compaq and Compaq Financial Services had agreed, in early to mid 2000, to jointly carry on a business in the provision of hardware, software, services and funding. IPN by counterclaim alleges that Compaq and/or Compaq Financial Services failed to comply with the terms of the alleged joint enterprise agreement and acted in breach of fiduciary duties owed to IPN. IPN claims damages in consequence thereof.
On 27 June 2002, Compaq Financial Services commenced proceedings in the Supreme Court of New South Wales against IPN in relation to an alleged lease agreement between Compaq Financial Services and IPN. Compaq Financial Services alleges that it leased certain computer equipment to IPN and that IPN has not paid the lease payments due pursuant to lease agreements entered into between it and Compaq Financial Services. Compaq Financial Services claims the sum of $2,735,311 pursuant to the alleged lease agreements. The lease agreement provided that the law of the contract was to be New South Wales and that the parties submitted to the non‑exclusive jurisdiction of the courts of New South Wales for the determination of any disputes.
On 25 September 2002, IPN filed its defence and a cross-claim in the New South Wales proceeding. It named Compaq Financial Services as the first cross‑defendant for the cross‑claim and Compaq as the second cross‑defendant. The cross‑claim made in the New South Wales proceedings is in identical terms to the counterclaim which was subsequently filed in the Victorian proceedings on 3 December 2002.
The plaintiff seeks an order transferring the Victorian proceedings to New South Wales under s.5(2) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Vic) which provides 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 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-sub-paragraph (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.”
Compaq places its application to transfer the proceeding on the following grounds:
(a)The defence and counterclaim raised by IPN is identical to the claim made by Compaq in the Victorian proceedings is identical to the defence and counterclaim made by it in the New South Wales proceeding.
(b)Both Compaq and Compaq Financial Services are incorporated in New South Wales and their principal place of business and their registered offices are in New South Wales.
(c)The solicitors for each of the plaintiffs (in both proceedings) are from New South Wales.
(d)There have been few interlocutory steps taken in the Victorian proceeding and the New South Wales proceeding is likely to be heard first.
(e)The parties to both proceedings are the same.
(f)IPN has been ordered by the Supreme Court of New South Wales to provide security for the costs of the cross-claim against Compaq and thus to allow IPN to articulate an identical cross‑claim in the Victorian proceeding would allow IPN to avoid the order for security made by consent in the proceedings in the Supreme Court of New South Wales and therefore undermine orders of that court.
Compaq argues that by transferring the Victorian proceedings to the Supreme Court of New South Wales duplication of proceedings will be avoided, the integrity of the orders of the Supreme Court of New South Wales will be maintained, and there will be no risk of inconsistent findings in each proceeding. It submits there will be obvious savings as to costs and resources.
Finally, Compaq submits that the Supreme Court of New South Wales is the more appropriate forum for the hearing and determination of the dispute in terms of convenience.
When this matter first came on for hearing in the Practice Court last Monday Mr Pirrie of Counsel appeared for the defendant to oppose the application. In essence, the application was opposed on the basis that the defendant company is incorporated in Victoria and that certain directors were resident in Victoria. Mr Pirrie suffered the disadvantage that his client had filed no affidavit in opposition notwithstanding that it was served with the summons in excess of two weeks before the listed hearing date. After having made such submissions as he was able, Mr Pirrie sought leave to further adjourn the matter to arrange for appropriate affidavit material to be prepared and filed. As any prejudice suffered by the defendant could be cured by an order for costs I granted the adjournment sought by Mr Pirrie until today.
In the meantime, no affidavit material has been provided to the court, or to the plaintiff, by the defendant. This morning a Mr Bogoevski, who informed me that he was the financial controller of the defendant, appeared and said that the defendant had terminated the retainer of “its barrister” and he wanted an adjournment for two weeks. He was not able to advance any other grounds for such an adjournment to be granted. When pressed by me as to the basis of the defendants’ submission in opposition to the summons before the court he informed me that the directors of the company are situated in Victoria and would have to go to Sydney to give evidence. In the circumstances, I informed him that I was not prepared to grant a further adjournment but that I would stand the matter down until 2.15 today to enable a properly authorised officer of the company to appear and produce evidence and/or to make such submissions as were desired before me. I now have a facsimile before me that demonstrates that the defendant now consents to an order of transfer of the proceedings to New South Wales. I might add that I also have a facsimile before me which demonstrates that HP Financial Services Australia Pty Ltd, the second defendant by counterclaim, also consents to the transfer of the proceedings to the Supreme Court of New South Wales.
However, notwithstanding such consent it is apparent that there are certain matters of which I must be satisfied under s.5(2) of the Act.
In determining whether to order a transfer under s.5(2) of the Act I must be satisfied as to which is the “more appropriate forum” for the hearing and determination of the dispute: Bankinvest AG v Seabrook;[1] Schmidt v Won.[2] The courts have held that the “more appropriate forum” is the forum with the “most real and substantial connection” with the subject matter of the proceeding; Bankinvest;[3] Spiliada Maritime Corporation v Cansulex Limited.[4] Relevant factors to be taken into account in determining the more appropriate forum have included three factors. First, the governing law of any agreement in dispute. Secondly, the connection between the alleged conduct and jurisdiction. Thirdly, the cost and inconvenience to the parties as to the forum selected; Bankinvest.[5]
[1](1988) 14 NSWLR 711.
[2](1988) 3 VR 435.
[3]Supra, at 728.
[4](1987) AC 460, 478.
[5]Supra, at 729.
In so far as the governing law is concerned there is no evidence before me as to whether the agreements between the parties in the Victorian proceeding contained any provisions specifying the governing law. It is not possible on the material before me to say where the alleged agreements were entered into by the parties. All that is known is that IPN is a company incorporated in the State of Victoria, and both Compaq and Compaq Financial Services are each companies incorporated in the State of New South Wales. It is clear that Compaq Financial Services and the defendant agreed that any dispute between them should be subject to the law of New South Wales. It is of course true that Compaq saw fit to commence proceedings for debt in relation to goods and services allegedly supplied by it to IPN in Victoria before proceedings were commenced by Compaq Financial Services in New South Wales. It is true also that the goods were delivered by Compaq to an address in Victoria. However, balanced with that is the fact that it is the counterclaim made by IPN in the New South Wales proceedings which has raised the issue of whether there should be transfer of the Victorian proceedings by cross‑vesting. There does not appear to me to be any substantial basis to say that the cost and inconvenience to the parties is of such weight that the proceeding which has been issued in Victoria should continue to be heard in Victoria as against in New South Wales.
In circumstances whereby it appears to me that issues which are to be litigated in the proceedings in the Supreme Court of Victoria are almost, if not entirely, identical to the issues which are to be litigated in the proceeding in New South Wales, it is appropriate to make the order sought by the plaintiff to avoid duplicity of proceedings, leave aside any other argument. Clearly the proceedings are related and the interests of justice are served by having such proceedings heard together.
Accordingly, the orders that will be made are–
(a)Pursuant to s.5(2) of the Jurisdiction of Courts (Cross‑Vesting) Act 1987 the claim and counterclaim in this proceeding be transferred to the Supreme Court of New South Wales Sydney Registry at Queens Square, Philip Street, Sydney, in the State of New South Wales.
(b)By consent the costs of the plaintiff’s summons dated 6 August 2003, save for the costs ordered be paid by the defendant on 1 September 2003 are otherwise reserved.
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