CP Design and Marketing v Samuel

[2012] NSWDC 80

District Court

New South Wales

Medium Neutral Citation:

CP Design & Marketing v Samuel [2012] NSWDC 80

Hearing dates:

4 May 2012

Decision date:

04 May 2012

Before:

P Taylor SC DCJ

Decision:

Orders 1, 2 and 3 of the summons dated 2 April 2012.

The plaintiff to pay the defendant's costs thrown away by reason of the amendments to the statement of claim and the defence to the cross-claim.

The defendant to have leave to file and serve a defence to the amended statement of claim on or before 25 May 2012.

Subject to the preceding orders, the costs of the summons and the costs in the Local Court be costs in these proceedings.

Catchwords:

Transfer of proceedings from Local Court - Venue

Legislation Cited:

Uniform Civil Procedure Rules 2005

Category:

Interlocutory applications

Parties:

CP Design & Marketing - Plaintiff
Peter Samuel - First Defendant
Heger Australia Pty - Second Defendant

Representation:

Mr M Lawson - Plaintiff
Mr B Miles - Defendants
Michael Smith, Halcyon Group P/L t/as Smith Lawyers - Plaintiff
James G Sloan - Defendants

File Number(s):

2011/371790

Judgment

1. HIS HONOUR: In this matter the plaintiff seeks to transfer Local Court proceedings between the parties currently in Albury to the Sydney Registry of the District Court, and leave to file an amended statement of claim and an amended defence to the cross-claim.

1. The defendant consents to these orders but seeks that they be made subject to two conditions, namely that the venue be changed to Albury and that the plaintiff pay the costs thrown away by reason of the amendments, including the costs of a notice of motion no longer applicable to the pleadings.

1. As to the question of venue, I take into account that the Local Court proceedings are currently in Albury and the question of venue was the subject of consideration in the Local Court. In that court the proceedings were transferred from Sydney to Albury by reason of matters of convenience including the location of prospective witnesses and the location of where the cause of action arose. On the other hand, the plaintiff under rule 8.1 of the Uniform Civil Procedure Rules 2005 generally chooses the venue and has twice chosen Sydney.

1. The choice by the plaintiff of the Local Court in Sydney is not so significant, particularly in light of the change of venue in that court. But the summons seeking the current orders has been filed in the Sydney Registry. In addition, the increased complexity of the matters arising from the defence and amendments to the cross-claim also are matters that to my mind indicate that the matter might better be kept in the Sydney Registry.

1. Were I to determine the venue for hearing at this stage I would probably choose Albury, largely by reason of the earlier interlocutory decision of the Local Court. However, it is premature in the present proceedings to determine the venue for hearing. In my view, the matter should remain in the Sydney Registry until such time as the affidavits and expert evidence are served. At that point a better decision can be made as to where the matter should most conveniently be heard. I do not wish either to prejudge that matter or to say anything to preclude an application by the defendant at an appropriate time. Accordingly I propose to make orders 1, 2 and 3 of the summons.

1. As to the question of costs, the ordinary rule should apply and I propose to order that the plaintiff pay the costs thrown away by reason of the amendments. Although those costs appear to me to include the costs of the defendant's notice of motion in the Local Court dated 14 February 2012, I do not propose to foreclose the assessment process by making any order to that effect.

1. Accordingly I make the following orders:

I make orders 1, 2 and 3 of the summons of 2 April 2012.

I order the plaintiff to pay the defendant's costs thrown away by reason of the amendments to the statement of claim and the defence to the cross-claim.

I order that the defendant have leave to file and serve a defence to the amended statement of claim on or before 25 May 2012.

I order that subject to the preceding orders, the costs of the summons and the costs in the Local Court be costs in these proceedings.

Decision last updated: 01 June 2012