Dembo & Frampton v Vaisman

In the case of Dembo & Frampton v Vaisman, the plaintiffs, David Dembo and Peter Frampton, initiated legal proceedings against the defendants, Jack Vaisman, Piotr Vaisman, Dr Quoc Huan Ha, Dr Gary Aaron, and Dr Ramsay Sallis, in the Supreme Court of Queensland. The plaintiffs sought moneys due and owing from an agreement to sell and purchase shares in a company that operates impotence clinics in New Zealand. The defendants entered a conditional appearance, challenging the jurisdiction of the court to hear the case without their consent. The case raised questions about the appropriate procedural steps under the cross-vesting scheme and whether the plaintiffs or defendants should have initiated the jurisdictional challenge.

The court was required to determine the proper procedural steps for resolving jurisdictional challenges under the cross-vesting laws, specifically whether the plaintiffs should first file a summons for directions or if the defendants, having entered a conditional appearance, should promptly move to have service set aside. The court also needed to assess the defendants' delay in applying to set aside service and whether the filing of certain material constituted a submission to the jurisdiction.

The court held that both the plaintiffs and defendants should have moved to resolve jurisdictional issues simultaneously. It was not necessary to determine who should have made the first move. The court also ruled that the defendants' affidavit, which addressed the appropriateness of the Queensland jurisdiction, did not constitute a submission to the jurisdiction. The court ordered the plaintiffs to apply for leave to proceed and for directions within 21 days, while the defendants were required to apply to have service set aside and, if advised, to apply for the transfer of proceedings under the Jurisdiction of Courts (Cross-Vesting) Act. The summonses were to be made returnable on a date agreed upon by the parties or, if no agreement was reached, on the first available chamber day following the expiration of 21 days from the court's order. Costs were reserved.

The court's decision emphasised the importance of resolving jurisdictional issues comprehensively and efficiently. By requiring both parties to file their applications within a specified timeframe and to be heard together, the court aimed to prevent unnecessary delays and ensure a fair and expeditious resolution of the jurisdictional challenges. The court's ruling also clarified the nature of submissions to the jurisdiction, ensuring that the defendants' affidavit did not inadvertently waive their jurisdictional challenge.