CPT Custodian Pty Ltd and Ironbarkhills Pty Ltd as trustee for the AW Ward Family Trust and Ors

[2011] QDC 58

[2011] QDC 58

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 334 of 2010

CPT CUSTODIAN PTY LTD

Plaintiff

and

IRONBARKHILLS PTY LTD AS TRUSTEE FOR THE AW WARD FAMILY TRUST

and

DENMIA PTY LTD  

and

DENIS FRANCIS LEE

and

MIA LEE

and

CHI WAI LAN

and

MEI MING LUK

and

ANTHONY WILLIAM WARD

First Defendant

Second Defendant

Third Defendant

Fourth Defendant

Fifth Defendant

Sixth Defendant

Seventh Defendant

SOUTHPORT

..DATE 18/04/2011

ORDER

CATCHWORDS

District Court of Queensland Act 1967 s 85

Transfer to Supreme Court of proceeding against lessees and guarantors consequent upon amendment made that increased claim above the upper limit of the court's monetary jurisdiction - increased claim attributable to supervening termination of the lease

HIS HONOUR:  This is a civil matter, CPT Custodian Pty Ltd
v. Ironbarkhills Pty Ltd as trustee for the AW Ward
Family Trust and others, 334 of 2010.

Before the court is an application by the plaintiff which is
sought to be dealt with without an oral hearing.  It's not
contentious so far as most of the parties are concerned in that in document 44 on the court file we have a
consent document which has been executed by the legal
representatives for the second, third and fourth defendants.

The fifth and sixth defendants are to be removed from the
proceeding following a successful application by them for
summary judgment, presumably under rule 293.
There appears to be no consent by the first and seventh
defendants.  There is information from the Registrar suggesting that they are in liquidation and bankrupt respectively, and that the seventh defendant alone of tem has been served with the application, but not responded.  It is appropriate to deal with the application.

The plaintiff seeks not only amendment of the claim and
statement of claim to remove the fifth and sixth defendants
and to recast allegations in the statement of claim so that
references to them don't describe them as defendants, it also
seeks to increase the amount claimed to one well in excess of
this court's monetary jurisdiction, in fact, it's in
excess of two and a-half million dollars.

The explanation for that is that recent events have led the
plaintiff to increase its claim to seek rent of premises from
the current lessee, likewise from the prior lessee and various
guarantors.  The amended claim is to include retail rent, as it is called for a period running to 30th of November 2017 and, in addition, more modest sums described as promotion levies and outgoings for the same period.

The claim and statement of claim were filed on the 25th of
June 2010.  According to the proposed amended statement of
claim, the lease arrangements terminated in consequence of a
Notice to Quit served by the plaintiff consequent upon alleged
breaches on the 29th of July 2010.  Whether the plaintiff will
recover a sum in excess of this court's monetary jurisdiction
may well be doubtful.  It would be astounding if there weren't
circumstances which mitigated the claims as now deserved to be
made.

Nonetheless, it's sought to have the matter transferred to the
Supreme Court.  The relevant section of the District Court of
Queensland Act 1967 is section 85 rather than section 82 which
is relied on in the plaintiff's written submissions, document
43 in the court file.  It's clear that section 82 confers a
power on the Supreme Court to order transfer there of a
proceeding in this Court.

Section 85, on the other hand, confers powers on the District
Court "if [it] considered the court does not have jurisdiction to hear and decide a proceedgins started in the court.”
The District Court may order transfer of the
proceeding to the Supreme Court, if it is considered to have jurisdiction under subsection (2), unless the proceeding is one which must or may be struck out under the following subsections.

The unusual feature is that the heading of section 85 refers
to a proceeding "started" in the wrong court.  The current proceeding was within the District Court's jurisdiction when it commenced, but in consequence of the amendment sought to be made which, in my opinion, ought to be allowed come to be beyond the jurisdiction of the District Court.

For purposes of section 85(1), by virtue of the amendment there is here a proceeding beyond the court’s jurisdiction which has been “started” in this court (as one within jurisdiction). It's the court's discretion to order it transferred. Subsection (4) relates to cases in
which the plaintiff knew or ought to have known that the
District Court had no jurisdiction.

I do not think that the section hearing controls subsection (1), which therefore lets in a proceeding started with jurisidiction but later expanded to exceed jurisdiction.  There is no basis on which the court today could conclude that when the proceeding was commenced the plaintiff had
any actual or presumptive knowledge as described in subsection (4) - which means this is not a situation in
which rather than transferring the proceeding the court is
obliged to consider striking it out.

An earlier instance of transfer to the Supreme Court in similar circumstances is Jayasinghe v Ratnasekera [2006] QDC 123. See also Capital at Call Pty Ltd v Toumpas & Anor [2009] QDC 260 and Hale v Global Constructions Management (Qld) Pty Ltd [2009] QDC 262.

There will be an order in terms of the initialled draft.

-----