Daws v Duncan

[2001] WASC 180

DAWS -v- DUNCAN [2001] WASC 180

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASC 180
Case No:	CIV:2745/2000	Heard:	5 JULY 2001
Coram:	MASTER BREDMEYER	Delivered:	9/07/01
No of pages:	4	Judgment Part:	1 of 1
Result:	Application allowed
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Parties:	GRAHAM DAWS NEVILLE DUNCAN
Catchwords:	Jurisdiction Transfer to District Court Choice of venue
Legislation:	District Court of Western Australia Act 1969, s 69, s 73(1)(a)
Case References:	Nil Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : DAWS -v- DUNCAN [2001] WASC 180 CORAM : MASTER BREDMEYER HEARD : 5 JULY 2001 DELIVERED : 9 JULY 2001 FILE NO/S : CIV 2745 of 2000 BETWEEN : GRAHAM DAWS

Plaintiff

AND

NEVILLE DUNCAN
Defendant

Catchwords:

Jurisdiction - Transfer to District Court - Choice of venue

Legislation:

District Court of Western Australia Act1969, s 69, s 73(1)(a)

Result:

Application allowed

(Page 2)

Representation:

Counsel:

Plaintiff : Mr W Naseem
Defendant : Mr A J Prentice

Solicitors:

Plaintiff : Cocks Macnish
Defendant : Beere May & Meyer

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Nil

(Page 3)

1 MASTER BREDMEYER: This is an application by the defendant to have the proceedings transferred to the District Court sitting at Bunbury and for the plaintiff to pay the defendant's costs of the application. The dispute is over the sale of a horse for $25,000. The plaintiff says that the defendant agreed to sell the horse to the plaintiff for this sum and then reneged on the sale. The is also a claim for damages, but that is minor and I consider the action is clearly under the monetary limit of the District Court which is $250,000. The plaintiff lives in Perth and is represented by Perth solicitors. The defendant lives in Busselton and is represented by Mr Beere based at Margaret River.

2 Section 73(1)(a) of the District Court of Western Australia Act1969 provides that where an action is brought in the Supreme Court that might have been brought in the District Court without the consent of the defendant, the defendant may at any time apply to the Supreme Court for an order remitting the action to the District Court sitting at such place as the order specifies and the court shall make an order accordingly unless it considers that, under the circumstances of the case, it is advisable that the action or matter should be tried in the Supreme Court.

3 I consider this matter is clearly within the jurisdiction of the District Court and there are no special circumstances which would justify it remaining in the Supreme Court, so I propose to transfer it to the District Court.

4 The next question is whether I should transfer it to the District Court sitting in Perth, which is the position favoured by the plaintiff, or whether I should transfer it to the District Court sitting at Bunbury, which is the application of the defendant. Section 69 of the District Court of Western Australia Act1969 provides, inter alia, that an action shall be commenced in the court sitting at the place nearest to where the defendant resides or where the cause of action arose, etcetera. The plaintiff's counsel says that the cause of action arose in Perth. The plaintiff says the contract was an oral one. Mr Daws in Perth spoke by telephone with Mr Duncan in Busselton on 22 September 2000. Mr Daws offered to purchase the horse for $25,000 plus some other consideration which I need not go into here and Mr Duncan accepted the offer by telephone. Thus, it is said the contract is concluded where the acceptance is received and that was received by the plaintiff by telephone in Perth.

5 The defendant admits that there was a telephone conversation, but denies that any agreement was reached. The plaintiff may, at trial, be able to establish that the defendant accepted the offer over the telephone, in

(Page 4)

which case I agree that the contract was entered into in Perth. However, an indication that this might not be established is revealed in the plaintiff's faxed letter to the defendant of 22 September 2000. As I understand it, this letter addressed to the defendant was, in fact, faxed to the defendant's agent, Mr Damon Gabberty, of Belmont Bloodstock Agency, based in Perth. I can understand a telephone conversation in which one party then faxes the other confirming his understanding of the agreement reached in the telephone conversation. That is commonly done by solicitors, lest a misunderstanding later arises as to exactly what was said or what was agreed. The faxed letter is evidence of the verbal agreement. In this case, the letter starts off in that vein:

"This is to confirm our telephone conversation this morning whereby we agreed to the following … "

It is signed Graham Daws and underneath the following appears:

"Agreed: …

Neville Duncan."

6 So, the form of the letter suggests that the oral "agreement" was to be later "agreed" by the written letter. It was intended that the defendant sign the letter indicating that he had agreed to those terms. In the face of this letter, I am not too confident that the plaintiff will be able to establish that an agreement was reached over the telephone. There may have been a preliminary agreement reached, intended to be confirmed later in writing. The defendant never signed the letter.

7 The alternative jurisdictional basis for the choice of venue is where the defendant resides. I consider that a much firmer base for my decision in this case. There is no doubt that the defendant resides in Busselton. I therefore propose to accede to his request. I will order that the proceedings be transferred to the District Court sitting at Bunbury. I will order that the defendant's costs of this application be costs in the cause.