Fiesta Ingredients Pty Ltd v Globex Australia Pty Ltd

[2012] VCC 1787

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted

AT MELBOURNE

COMMERCIAL LIST
GENERAL DIVISION

Case No. CI-10-04559

FIESTA INGREDIENTS PTY LTD	Plaintiff
v.
GLOBEX AUSTRALIA PTY LTD & ORS	Defendants

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JUDGE:	His Honour Judge Anderson
WHERE HELD:	Melbourne
DATE OF HEARING:	14 November 2012
DATE OF JUDGMENT:	14 November 2012 (revised 16 November 2012)
CASE MAY BE CITED AS:	Fiesta Ingredients Pty Ltd v. Globex Australia Pty Ltd & Ors
MEDIUM NEUTRAL CITATION:	[2012] VCC 1787

REASONS FOR JUDGMENT

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Catchwords:            Practice and procedure – Appropriate forum for dispute to be litigated – Section 20(4) Service and Execution of Process Act 1992 (Cth).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J. Arthur	Mackinnon Jacobs Horton & Irving Pty Ltd
For the Defendants	Mr J. Searle	Harish Prasad & Associates

HIS HONOUR:

1I am asked to determine whether this proceeding should continue in this Court or whether the appropriate forum is a court in New South Wales. The application is made pursuant to section 20 of the Service and Execution of Process Act 1992 (Cth) and the inherent powers the Court gains by statute from the Supreme Court.

2The proceeding was commenced against four defendants. Default judgment was obtained against the third defendant. The first defendant has been deregistered and the plaintiff does not intend to have the company re-registered so that the action can proceed against it. The remaining defendants, the second and fourth defendant, were directors of the first defendant.

3The plaintiff claims that a transaction was entered into for the importation of goods from Iran through the agency of the first defendant. The goods imported were paid for by the plaintiff. They were, however, rejected by the quarantine authorities and a repayment was made by the Iranian supplier.

4What is not clear is:

a.the involvement of the first defendant in the transaction and whether it acted as agent for the plaintiff in relation to the Iranian supplier. Apparently, invoices and perhaps other documents were prepared in the name of the first defendant. The second and fourth defendants deny that such documents were prepared with the authority of the first defendant;

b.the payment made by the plaintiff in order to have the goods released apparently was processed through the first defendant’s bank account in August 2009. This suggests that the first defendant had some involvement in the transaction;

c.the bank account of the first defendant seems to record the receipt on 14 May 2010 of the total sum of $79,935 in its bank account, yet the second and fourth defendants continue to deny that these monies were received by the first defendant and further deny that they received any benefit from those funds. These are critical issues which need to be decided in the dispute.

5An amended statement of claim was filed on 26 October 2012 and a defence to that amended pleading was filed on 12 November 2012. The disputed issues I have referred to are essentially articulated in the pleadings. However, the fact that the claim against the first defendant will not proceed means that the pleading against the second and fourth defendants now has greater significance. Unfortunately that pleading is at the end of the document in summary form with the essential allegations of fact relied on by the plaintiff pleaded as particulars. As a consequence, the defence response in that regard is not particularly useful.

6In terms of where the dispute should be litigated, the legislation requires me to not take account of the fact that the proceeding was commenced in this Court. I consider that the only way that matter has some relevance would be if there had been a significant delay in making the application for a stay. Although the proceeding was issued in 2010, I do not consider that the delay in making the present application for a stay of proceeding is a matter which should determine the present application.

7The plaintiff is a Victorian company, the defendants, more relevantly the second and fourth defendants, are resident in New South Wales. The only other relevant considerations in determining the appropriate forum for this dispute are where the witnesses are likely to come from and where the subject matter of the dispute arises. The only witnesses plaintiff’s counsel referred to were Mr Pemberton, a director of the plaintiff who resides in Victoria and the Iranian supplier’s representative, who presumably resides in Iran. The defendant’s witnesses, the defendants themselves including the third defendant, and independent witnesses who were involved in the transaction, including in the rejection of the goods and the receipt through bank accounts of monies, are witnesses likely to be resident in New South Wales. Further, the witnesses would refer to documents likely to have been created in New South Wales.

8The issues in dispute between the plaintiff and the remaining defendants relate to matters which occurred primarily in New South Wales. It is possible that the agreement that is alleged by the plaintiff between itself and the first defendant, arose in Victoria. At present, that is not clear because the plaintiff relies on some written documents and some unspecified conversations.

9Without regard to the fact that this proceeding was issued in Victoria, I consider that the other relevant factors determine that the more relevant forum for the dispute to be heard would be a court in New South Wales. Whether this might be the Local Court would depend on whether the total claim is less than $100,000.

10As a consequence, the orders I will make will be as follows:

1The proceeding is stayed.

2The costs of the plaintiff and the second and fourth defendants of the proceeding including any reserved costs, the costs of the defendants’ summons filed 26 September 2012 and of the hearing today, shall be costs in the cause in any proceeding instituted in a court in New South Wales in relation to the dispute between the parties or, if such a proceeding is not issued, will be subject to further order.

3Reserve liberty to apply.

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Certificate

I certify that these 3 pages are a true copy of the reasons for decision of His Honour Judge Anderson delivered on 14 November 2012 and revised on 16 November 2012.

Dated: 16 November 2012

Philippa Gilkes

Associate to His Honour Judge Anderson