Eminent Holdings Pty Ltd v Ashbolt - [2002] WADC 151

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: EMINENT HOLDINGS PTY LTD & ORS -v- ASHBOLT & ANOR [2002] WADC 151

CORAM: YEATS DCJ

HEARD: 7 JUNE 2002

DELIVERED : Delivered Extemporaneously on 7 JUNE 2002 typed from tape and edited by Trial Judge

FILE NO/S: CIV 1727 of 2001

BETWEEN: EMINENT HOLDINGS PTY LTD (ACN 009 265 972)
TARGET RANGE PTY LTD (ACN 056 058 550)
PRIME POINT PTY LTD (ACN 059 968 535)
TERENCE ROY DIX
CAROLYN WINIFRED DIX
VALDA ABERY
Plaintiff
AND
MICHAEL ANTHONY ASHBOLT
GAIL ANN ASHBOLT
Defendants

Catchwords:

Practice and procedure - Application to transfer proceedings from Perth to Busselton - Turns on own facts

Legislation:

District Court Act 1969, s 71

Result:

Application granted

Representation:

Counsel:

Plaintiff: Mr D L Jones
Defendants: Mr J A Prentice

Solicitors:

Plaintiff: Joanne Matich & Associates
Defendants: Mossensons

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

Narrabri Nominees Pty Ltd v Coffey (1999) 23 SR (WA) 162

Case(s) also cited:

Nil

YEATS DCJ: This is the defendants' application under s 71 of the District Court Act 1969 to transfer this matter from Perth to Busselton. Section 71 is in these terms:
"Where an action or matter is commenced in the Court sitting at a place that should have been commenced in the Court sitting at another place, the Court or a District Court Judge may order its removal to be tried or heard by the Court sitting at that other place, or may so order that the action or matter be tried or heard in the Court sitting at the place in which it has been commenced."
The defendants submit that this action should have been commenced in Busselton. That submission is based on the provisions of s 69 of the District Court Act which provide where an action is to be commenced. Section 69(2) is in these terms:
"(2)An action shall be commenced in the Court sitting at the place nearest to where -
(a)the defendant or one of 2 or more defendants, as the case may be, resides or carries on business;
(b)the cause of action or claim arose either wholly or in some material part; ..."
The defendants relied on the affidavit of the defendant Michael Anthony Ashbolt sworn on 19 March 2002 in par 2 where he says:
"Both of the Defendants reside in Busselton and the Busselton District Court is the closest to that place where they reside."
I note that the face of the writ, which was served on 29 June 2001, states that it is a writ addressed to Michael Anthony Ashbolt and Gail Ann Ashbolt, both of 278 Geographe Bay Road, Busselton WA, 6280. I accept, however, on the affidavit evidence before me, from Terence Rowe Dix on behalf of the plaintiffs, that the writ of summons was, in fact, served on the defendants by a process server at a place in Como believed to be the defendants' residential address as listed in the White Pages telephone directory for Perth. The plaintiff also relies on the fact that in his affidavit sworn on 19 March 2002, the defendant Michael Ashbolt provides a Post Office address in Busselton which is irregular.
The first issue that I must determine is whether, within the meaning of s 70, this is a case where the action was commenced in a court sitting in a place that should have been commenced in a court sitting in another place. The other factors that need to be taken into account - besides the residential situation in relation to the defendants - is where the cause of action arose. In that regard, I accept on affidavit evidence that the contract was entered into in Busselton, and the contract related to a development in Dunsborough. The claim by the plaintiffs is a claim for professional negligence on behalf of the defendants in the design of electrical circuitry at a development in Dunsborough. There is evidence of some rectification being done but not being done satisfactorily. Part of the damages is for loss of rent in the development when there was an inadequate power supply for the development.
I have been assisted by a decision of Viol J in the case of Narrabri Nominees Pty Ltd v Coffey (1999) 23 SR (WA) 162. In his judgment Viol DCJ considered s 71 and said this:
"The wording of s71 involves a discretion; that is to say, where there is a situation where an action or matter is commenced in a court sitting at a place that should have been commenced in the court sitting at another place, a District Court judge may order its removal to be tried or heard by the court sitting at that other place or may so order that the action or matter be tried and heard in a court sitting at the place in which it has been commenced. So that the court is in a position where it can in its discretion leave the matter where it is or require that the matter be moved to some other court."
In his decision Viol DCJ said that the important issue was where the facts of the case were most closely aligned. In this particular case one cannot avoid the fact that this dispute arises in relation to a development in Dunsborough and it relates to the supply of electrical power to that subdivision. I accept the evidence before me that the contract was made in Busselton. I also accept, based on the affidavit evidence of Mr Ashbolt, that although he may well have a residence in Como, he and the other defendant do reside in Busselton, and that the Busselton District Court is the closest court to their place of residence.
Taking all of these matters into account, I do accept that in terms of witnesses there will be workers in Busselton and an electrician in Busselton. Looking at the question of the loss of rent will require some evidence from Busselton about the level of rent. There are a number of witnesses from that area who undoubtedly will need to be called. I also accept that all the directors of the plaintiff companies are in Perth, that their expert witnesses will be in Perth, including architects and engineers, and I accept that their counsel and solicitors are in Perth. The defendants' solicitors are in Margaret River.
I agree, with respect, with Viol DCJ that the location of counsel is a minor consideration. The court is looking at where the cause of action is most closely aligned and where the defendants reside. In this case, on the balance of probabilities, I am satisfied that the defendants do reside at Dunsborough. I am certainly satisfied that the matter in dispute is more closely aligned with Busselton than with anywhere else, and certainly it is not aligned in any way with Perth.
I also note that with the provision of video conferencing in the courtrooms in all the new courts used by the District Court, expert evidence can easily be provided by video‑link to reduce costs in places such as Busselton, so the court is much more concerned with the evidence of witnesses whose credibility may be an issue. Expert evidence is quite satisfactorily provided in my experience by video-link.
Taking all of these factors into account, I believe that this is a case where my discretion should be exercised in favour of the defendants and, therefore, pursuant to s 71 of the District Court Act, I order that this action be tried and heard in the District Court sitting at Busselton.