Enviropacific Services Limited v Cardno Victoria Pty Ltd

[2021] NSWSC 1589

Supreme Court

New South Wales

Medium Neutral Citation:

Enviropacific Services Limited v Cardno Victoria Pty Ltd [2021] NSWSC 1589

Hearing dates:

1 December 2021

Decision date:

09 December 2021

Jurisdiction:

Equity - Technology and Construction List

Before:

Ball J

Decision:

(1) Order that pursuant to s 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) proceeding number 2021/00249785 be transferred to the Supreme Court of Victoria;

(2)   Order that the plaintiff pay the costs of the notice of motion filed on 29 September 2021.

Catchwords:

CIVIL PROCEDURE — Jurisdiction — Transfers to and from other courts — Whether proceedings ought to be transferred to the Supreme Court of Victoria

Legislation Cited:

Australian Consumer Law

Building and Construction Industry Security of Payment Act 2002 (Vic)

Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW)

Cases Cited:

Bankinvest AG v Seabrook (1988) 14 NSWLR 711

BHP Billiton v Schultz (2004) 221 CLR 400; [2004] HCA 61

James Hardie & Coy Pty Ltd v Barry (2000) 50 NSWLR 357

Joshan v Pizza Pan Group Pty Ltd [2021] NSWCA 219

Category:

Procedural rulings

Parties:

Enviropacific Services Limited (Plaintiff)
Cardno Victoria Pty Ltd (Defendant)

Representation:

Counsel:
D Hume (Plaintiff)
TJ Breakspear SC with TJ Boyle (Defendant)

Solicitors:
McCullough Robertson Lawyers (Plaintiff)
Thomson Geer (Defendant)

File Number(s):

2021/249785

Publication restriction:

Nil

Judgment

1. By a notice of motion filed on 29 September 2021, the defendant, Cardno Victoria Pty Ltd (Cardno), seeks an order that these proceedings be transferred to the Supreme Court of Victoria pursuant to s 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) (Cross-vesting Act).

2. In these proceedings the plaintiff, Enviropacific Services Limited (Enviropacific), seeks to recover damages or amounts said to be due to it under a contract by which Enviropacific agreed to remediate contaminated soil and groundwater at the Barry Beach Marine Terminal Adjacent Lands Project located in Agnes, Victoria, approximately 200 kms south-east of Melbourne. Cardno had been engaged by Mobil Oil Australia Pty Ltd to remediate the contaminated land. The work the subject of the contract between Cardno and Enviropacific had been put out to tender by Cardno and Enviropacific had been the successful tenderer. Enviropacific claims that the actual quantities of soil it remediated were greater than the quantities stated in Cardno’s request for tender. It claims the costs of processing the additional soil and damages for delay caused by the additional work. It brings an alternative claim for misleading and deceptive conduct in contravention of s 18 of the Australian Consumer Law.

3. No list response has yet been filed. However, it is apparent from evidence given by Cardno’s solicitor that Cardno intends to raise a number of factual issues concerning the work undertaken by Enviropacific.

4. Enviropacific has its principal place of business in Sydney, although it has an office in Melbourne. Its legal advisers are based in Sydney. Cardno has its principal place of business in Brisbane, although it also has an office in Melbourne. Its legal advisers are based in Brisbane and Melbourne.

5. The contract under which the work was performed is expressed to be governed by the laws of Victoria. It provides for payment in Melbourne. The contract identifies addresses in Melbourne for the service of notices on each of the parties and the superintendent appointed under the contract. It gives either party who wishes to make a claim under the contract an option to refer the claim to arbitration in Melbourne.

6. It appears the majority of the likely witnesses are located in Melbourne, although a number are also located in Sydney. Enviropacific has engaged two expert witnesses who are both located in Sydney. Cardno has yet to engage expert witnesses, although it anticipates doing so. It is possible, but uncertain, that one or more of Cardno’s expert witnesses will need to visit the site.

7. A considerable amount of evidence was given by the parties on the respective procedures that operated in this list and in the Technology, Engineering and Construction List of the Supreme Court of Victoria and the relative merits of those procedures. In my opinion, the most that can be said on this topic is that both courts have specialist lists that are well placed to deal with disputes of this kind.

8. It is perhaps also relevant to observe that the work under the contract was the subject of two payment claims made under the Building and Construction Industry Security of Payment Act 2002 (Vic).

9. Section 5(2) of the Cross-vesting Act relevantly provides:

(2)   Where:

(a)   a proceeding (in this subsection referred to as the relevant proceeding) is pending in the Supreme Court of a State or Territory (in this subsection referred to as the first court), and

(b)   it appears to the first court that:

(i)   …

(ii)   …

(iii)   it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of another State or Territory,

the first court shall transfer the relevant proceeding to that other Supreme Court.

10. The principles that concern an application for transfer under the Cross-vesting Act are well settled. The Court must determine which court is more appropriate to hear and determine the substantive dispute, having regard to the interests of justice: see Bankinvest AG v Seabrook (1988) 14 NSWLR 711 at 714.

11. In determining that question, the Court is not to start by preferring the plaintiff’s position. Rather, the Court must apply the “statute without any kind of presumption as to where the balance of the interests of justice might come down” (BHP Billiton v Schultz (2004) 221 CLR 400; [2004] HCA 61 per Gleeson CJ, McHugh and Heydon JJ at [25]). In some cases, the question whether an order should be made has been answered by asking which court is the “natural forum” for the dispute (Schultz [18]) or asking the question where the “centre of gravity” of the dispute is: Joshan v Pizza Pan Group Pty Ltd [2021] NSWCA 219 at [115]. In answering those questions, a range of factors must be taken into account, including the applicable substantive law, substantive connections with the forum, and balance of convenience to the parties and witnesses: see James Hardie & Coy Pty Ltd v Barry (2000) 50 NSWLR 357 at [95].

12. In my opinion, the natural forum for, or centre of gravity of, this dispute is Victoria. The dispute concerns work undertaken in Victoria under a contract that is governed by Victorian law and is between parties that both have offices in Melbourne. As I have said, the majority of witnesses are likely to be based in Melbourne.

13. It appears that Enviropacific chose to commence proceedings in this Court because its head office is in Sydney, its legal advisors are based here and it believes that it will get an earlier hearing date in this Court. However, no weight can be given to the plaintiff’s preference. The first two factors are counter-balanced by the fact that Cardno has its head office in Brisbane and its legal advisors are based there and in Melbourne. As to the third matter, as I have said, the most that can be said is that both courts have specialist lists that are well equipped to deal with this dispute.

14. Enviropacific submits that less weight should be given to the connections with Victoria because the relevant work was undertaken at Agnes, which is approximately 200 kilometres from Melbourne, with the result that if it becomes necessary for an expert witness to visit the site some travel will be inevitable. However, that does not alter the fact that most connecting factors are with the State of Victoria. Moreover, the likelihood is that if the site is visited by a witness based in Sydney, that witness will need to fly to Melbourne and then drive to Agnes, which will involve substantial additional travel.

15. It follows that in accordance with accepted principles, the interests of justice favour transfer of the proceedings to the Supreme Court of Victoria. Having reached that conclusion, the Court has no discretion.

16. The orders of the Court therefore are:

1. Order that pursuant to s 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) proceeding number 2021/00249785 be transferred to the Supreme Court of Victoria;

2. Order that the plaintiff pay the costs of the notice of motion filed on 29 September 2021.

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Decision last updated: 13 December 2021