Herriots (Cairns) Pty Limited v Genworth Financial Mortgage Insurance Pty Limited; Herriots Pty Limited as Trustee for the Ian Herriot Family Trust v Genworth Financial Mortgage Insurance Pty Limited

[2015] NSWDC 139

District Court

New South Wales

Medium Neutral Citation:	Herriots (Cairns) Pty Limited v Genworth Financial Mortgage Insurance Pty Limited; Herriots Pty Limited as Trustee for the Ian Herriot Family Trust v Genworth Financial Mortgage Insurance Pty Limited [2015] NSWDC 139
Hearing dates:	12 June 2015
Date of orders:	15 June 2015
Decision date:	15 June 2015
Jurisdiction:	Civil
Before:	Neilson DCJ
Decision:	Stay of proceedings granted  Applicants to pay respondent’s costs
Catchwords:	PRACTICE AND PROCEDURE – Stay of proceedings – Whether New South Wales or Queensland District Court the appropriate court – Property valuation dispute – Property subject of proceedings situated in Queensland – Representation of value of property ultimate issue – NSW law probably applicable law as representations made to NSW-based companies – Law in both States the same – Witnesses might be required from each State but valuers who made variations residents of Queensland and expert evidence required of Queensland valuations
Legislation Cited:	District Court of Queensland Act 1987 (QLD) Service and Execution of Process Act 1992 (Cth) Trade Practices Act 1974 (Cth) Uniform Civil Procedure Rules 1999 (QLD)
Cases Cited:	ACN 080 988 807 Pty Ltd v Kneipp [2002] SADC 165 Simmons v Wanless [2014] QDC 42 St George Bank Ltd v McTaggart [2003] QCA 59; [2003] 2 Qd R 568 Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538
Category:	Procedural and other rulings
Parties:	2015/41346 Herriots (Cairns) Pty Limited (Applicant/Defendant) Genworth Financial Mortgage Insurance Pty Limited (Respondent/Plaintiff)     2015/41347 Herriots Pty Limited as Trustee for the Ian Herriot Family Trust (First Applicant/First Defendant) Mark Lester as Trustee for the Lester-Kelly Family Trust (Second Defendant) Jolbrook Pty Ltd as Trustee for Pie in the Sky Trust (Third Defendant) Genworth Financial Mortgage Insurance Pty Limited (Respondent/Plaintiff)
Representation:	Counsel: Mr T Marskell (Applicants/Defendants) Mr R Carey (Respondent/Plaintiff)
File Number(s):	2015/41346; 2105/41347
Publication restriction:	No

Judgment

1. HIS HONOUR: There are currently before me two motions on notice, the hearing of which I conducted last Friday. The case was very ably presented and argued by two experienced members of the legal profession, two members of the Bar, which is a very unusual occurrence for Friday motions in this Court.

2. Each application is by the defendant for a stay of proceedings pursuant to s 20 of the Service and Execution of Process Act 1992 (Cth) ("SEPA"). The plaintiff in each set of proceedings is the same. The defendants in the proceedings are different, but in essence, have the same interest.

3. The first matter is 41346 of 2015. It arises out of the valuation of a property known as 79 Upolu Esplanade, Clifton Beach in Queensland. I shall refer to this matter as the Clifton Beach matter. The second set of proceedings, matter number 41347 of 2015, arises out of the valuation of land known as 502/89 Landsborough Avenue, Scarborough in Queensland. I shall refer to these proceedings as the Scarborough matter.

4. Clifton Beach is a town north of Cairns. Scarborough is a suburb of Brisbane, north of that city, as I understand it, on the Redcliffe Peninsula. The Clifton Beach valuation was made by Ms Cheryl Adriane Brodribb on behalf of Herriots (Cairns) Pty Ltd, the defendant in that matter. The valuation of the Scarborough property was made by Mr Mark Lester, who is either an employee of one of or a contractor to one of the named defendants in those proceedings, Herriots Pty Ltd as trustee for the Ian Herriot Family Trust, Mark Lester himself, as trustee for the Lester-Kelly Family Trust and Jolbrook Pty Ltd as trustee for the Pie in the Sky Trust.

The Clifton Beach matter

5. I shall deal firstly with the Clifton Beach matter. On 12 February 2000, Rebecca Lea Mcdonald Jones sold the property to her parents, Dianne Marjorie Mcdonald and William Keith Mcdonald for $380,000. I do not know whether that was at full valuation or whether there was a presumption of advancement by the daughter in favour of her parents, should the usual presumption be reversed. However, I do know that Rebecca Lea Mcdonald Jones had bought the same property on 15 September 1998 for $385,000. The valuation made by Ms Rodribb was made on 9 August 2005. The property was valued by her in the sum of $1.5 million. The valuation was not for the purpose of any purchase, but, clearly, to refinance a mortgage. The "Organisation/Client" to whom the valuation was addressed was "Macquarie Mortgages Pty Ltd". The valuation itself says that the "Business Unit" of the "Client" was "Brisbane" and that the contact person was Rebecca Bronte.

6. The request for the valuation was made by Macquarie Mortgages Pty Ltd, of Level 22, 20 Bond Street, Sydney on 5 August 2005 by, I infer, Rebecca Bronte, who identifies herself in the request for the valuation as the person to contact and she provides, as her email address, an address which seems to indicate that she was somehow associated with "Brisbane". The email address is [email protected]. An inference can be drawn that the "Brisbane" business unit of Macquarie Mortgages Pty Ltd was conducted from Sydney. The current registered address of Macquarie Mortgages Pty Ltd is in Sydney and all former registered offices were in Sydney. The current principal place of business of Macquarie Mortgages Pty Ltd and all former principal places of business of Macquarie Mortgages Pty Ltd is/were in Sydney. The facsimile transmission number used by Herriots (Cairns) Pty Ltd to send the valuation to Macquarie Mortgages Pty Ltd was the same facsimile transmission number as set out in the letter, which was clearly sent by facsimile, from Macquarie Mortgages to Herriots on 5 August 2005.

7. According to the pleadings, the valuation on its face on p 3 is extended for the use of Macquarie Bank Ltd, Macquarie Securitisation Ltd, Macquarie Mortgages Pty Ltd, Perpetual Trustees Australia Ltd, PMI Mortgage Insurance Ltd ("PMI"), PMI Indemnity Ltd, GE Mortgage Insurance Services and Royal and Sun Alliance Lenders Mortgage Insurance Ltd. The reference to "GE Mortgage Insurance Services" is a reference to the plaintiff.

8. Ultimately, the lender was Perpetual Ltd, formerly known as Perpetual Trustees Australia Ltd, whose current registered office is in Sydney and all of whose previous registered offices were in Sydney, and whose current principal place of business is in Sydney and all its previous principal places of business were in Sydney.

9. Paragraph 7 of the statement of claim is this:

"In reliance upon the Valuation and the Valuation Representations, the plaintiff entered into a contract of lender's mortgage insurance ("LMI Contract") with Perpetual Ltd ("Perpetual"), concerning a loan managed by Macquarie Securitisation Ltd, entered into by Perpetual with Marjorie D and William K Mcdonald, such loan being secured by way of mortgage over the property."

No defence has been filed by the defendant, but as I understand the argument presented to me, there is no dispute that that is what actually occurred. I qualify what I have just said in that learned counsel for the defendant/applicant has risen to his feet to indicate that there may well be an averment by the defendant that the plaintiff did not rely upon the valuation or the valuation representations. That may be the case, however, there appears to be little doubt that the loan was, in fact, given by Perpetual Ltd to the Mcdonalds and that Perpetual Ltd took out an LMI contract with the plaintiff.

10. The offer of the loan was made on 17 August 2005. The final date for acceptance of the offer was 17 September 2005. It appears to be common ground that the Mcdonalds took up the loan.

11. On 13 September 2012, the Clifton Beach property was sold by the Mcdonalds for $835,000. Perpetual Ltd made an application under the LMI Contract granted by the plaintiff to it. The pleadings tell me that the plaintiff was required to pay, and has paid, to Perpetual Ltd $590,656.98. That is the sum, together with interest, claimed in the statement of claim.

The Scarborough matter

12. I turn now to the Scarborough mattery. The Scarborough property was sold to Ian Nichol Pritchard and Pauline Eleanor Pritchard on 28 September 2003 for $580,000. On 12 September 2005, Mr Mark Lester, one of the defendants in the second set of proceedings, valued the property at $750,000. Clearly, that was for the purpose of refinancing any mortgage obtained by the Pritchards for the property.

13. The "Organisation/Client" requesting the valuation was "National Mortgage Company". The request for the valuation was made by National Mortgage Company on 8 September 2005, four days earlier. That request lists a number of entities to which the valuation should be extended. That list of companies included the plaintiff. The fourth page of the valuation report is specifically extended to a large number of entities, which includes the plaintiff.

14. National Mortgage Company Pty Ltd was incorporated in Queensland on 12 June 1996. Originally, it was known as Whitecliff Pty Ltd, but changed its name on 7 September 1999. The current registered office of National Mortgage Company Pty Ltd is at Worongary in Queensland, which I understand to be a locality on the Gold Coast. Its current principal place of business is at Broadbeach in Queensland, which is on the Gold Coast. All former registered offices and principal places of business of this company have always been in Queensland, either in suburban Brisbane or on the Gold Coast. The current company director and secretary is Mr Steven Edward Dover, whose address given in the company search is 100 Possum Creek Road, Bangalow, which is in New South Wales, on the Pacific Highway, west of Byron Bay and about one and a half hour's drive from the Gold Coast.

15. The lender to the Pritchards was Permanent Custodians Ltd. Its current registered office is in Sydney and its previous registered offices have always been in Sydney. Its principal place of business is in Clarence Street, Sydney and all its previous principal places of business have been in Sydney.

16. The relevant statement of claim, in par 7, pleads this:

"In reliance upon the Valuation and the Valuation Representations, the plaintiff entered into a contract of lenders mortgage insurance ('LMI Contract') with Permanent Custodians Ltd ('Permanent'), concerning a loan entered into by Permanent with Ian and Pauline Pritchard, such loan being secured by way of mortgage over property."

17. Again, as I understand it, there is no dispute that the lender to the Pritchards was Permanent Custodians Ltd and that the plaintiff granted to Permanent Custodians Ltd an LMI Contract. The loan agreement appears to have been organised or managed by ING Bank (Australia) Ltd, whose current registered office is in Sydney, and all of whose previous registered offices were in Sydney. The same bank has its principal place of business in Sydney and all its previous principal places of business have been in Sydney. The loan amount was $600,000. The disclosure date for the loan agreement was 14 September 2005, but the loan itself appears to have been accepted on 27 September 2005.

18. The property was sold on 23 February 2012 for $500,000. The transfer was effected by "third party". I assume that is a relevance in the relevant document to a sale by the mortgagee in possession.

19. As a result of that transaction, Permanent Custodians Ltd made a claim on the LMI Contract with the plaintiff, resulting in the requirement that the plaintiff pay to Permanent Custodians Ltd the sum of $163,704.63, which is the amount claimed in the statement of claim, together with interest.

The legislation

20. The relevant parts of s 20 of SEPA are these:

“(2) The person served may apply to the court of issue for an order staying the proceeding.

(3) The court may order that the proceeding be stayed if it is satisfied that a court of another State that has jurisdiction to determine all the matters in issue between the parties is the appropriate court to determine those matters.

(4) The matters that the court is to take into account in determining whether that court of another State is the appropriate court for the proceeding include:

(a) the places of residence of the parties and of the witnesses likely

to be called in the proceeding; and

(b) the place where the subject matter of the proceeding is situated; and

(c) the financial circumstances of the parties, so far as the Court is aware of them; and

(d) any agreement between the parties about the Court or place in which the proceeding should be instituted; and

(e) the law that would be most appropriate to apply in the proceeding; and

(f) whether a related or similar proceeding has been commenced against the person served or another person;

but do not include the fact that the proceeding was commenced in the place of issue.

[...]

(9) This section does not affect the court's power to stay a proceeding on a ground other than the ground mentioned in subsection (3)."

It is common ground between the parties before me that of the matters referred to in subs (4), the matters contained in pars (a), (b), (e) and (f) are the relevant considerations and I do not need to concern myself with the matters contained in pars (c) and (d). It is also well established that the matters referred to in subs (4) are matters which are not exclusive, although I must consider the matters in subs (4) but exclude from my consideration, the fact that proceedings have been commenced in this Court. The competing court that may have jurisdiction to determine all the matters in issue between the parties is the District Court of Queensland.

Witnesses

21. I turn now to a consideration of the matter in par (a) of s 20(4). A principle witness, as far as Clifton Beach is concerned, is clearly Ms Cheryl Adriane Brodribb, who made the valuation. She lives in a suburb of Cairns. The evidence does not disclose the identity of any other witness from Herriots (Cairns) Pty Ltd. The defendants' witnesses that might be called are, with an exception to which I shall refer, all resident in Sydney. For example, the affidavit of Mr Jonathon Gaius Downes, sworn on 27 May 2015, tells me that it may be necessary to call lay evidence from Genworth employees concerning the adherence to Genworth's LMI underwriting policies and procedures. There might also be a need to call expert evidence concerning the appropriateness of those underwriting policies and procedures. It might also be necessary to call evidence relating to a reliance upon each of the valuations made by or on behalf of the defendants concerning two properties. As at the date of the preparation of his affidavit, Mr Downes tells me that the relevant witnesses would be Mr Gerard Martin, a senior customer experience manager, and from Ms Geran De Bono, an underwriter, and if expert evidence is required concerning the appropriateness of the plaintiff's underwriting standards is required, that would probably be able to be called from Ms Rachel Perry, a former employee of a former LMI provider, who resides in Sydney. The number of LMI providers in this country is small and they all appear to be based in Sydney, if they are not a captive of some particular company. Other potential witnesses that could be called by the defendant, in particular concerning the Scarborough property, are Cheryl Morrissey, a claims manager, and Jodie Burton, a claims team leader, all of whom reside in Sydney.

22. The exercise of the power of sale in respect of the Clifton Beach property was managed by Macquarie Securitisation Ltd on behalf of Perpetual Ltd and the offices of those two companies are in Sydney. Likewise, the exercise of the power of sale in respect of the Scarborough property was managed by ING Bank (Australia) Ltd on behalf of Permanent Custodians Ltd, the offices of both of which companies are in Sydney.

23. However, the fact remains that expert evidence would also need to be called from valuers and one would expect, in the normal course, that those valuers would have expertise in the valuation of property in Queensland, in particular with regard to the property at Clifton Beach, which is a long way from Sydney. Furthermore, if it were sought to rely upon Sydney valuations of properties north of Cairns, and a property in the northern suburbs of Brisbane, one could readily foresee that the expertise of such valuers might be called into question, because their experience of property markets in North Queensland and North Brisbane might be limited.

24. I should also point out that Mr Mark Lester, clearly a principal witness in the case concerning the Scarborough property, is a resident of Brisbane. The number of witnesses that the plaintiff might need to call from Sydney would depend upon what formal defences are raised by the defendants. In neither action, has any of the defendants yet filed any defence. Furthermore, one will note, from what I have earlier said, that when I quoted par 7 of the statement of claim in the Clifton Beach matter, learned counsel for the defendants/applicant rose to point out that he reserved the right to raise as a defence whether the plaintiff relied upon the representations made in the two valuations. Without any formal defences having been pleaded, it is impossible to know how many witnesses it may be necessary for the plaintiff to call from Sydney. There could be a large number of them if, for example, the defendant relied upon the expertise of the lenders to satisfy the requirement that the valuation was appropriate, such that it might be necessary for the plaintiff to call officers of the two lending companies or the agents of the two lending companies, or both officers of the lending companies and of the lending companies' agents.

25. However, the question of expert witnesses raises the countervailing consideration that I have mentioned. Bearing in mind that the applicant on these applications bears the onus of proof, on the balance of probabilities, I cannot find under this paragraph of s 20(4) that the convenience of witnesses favours Brisbane or Cairns rather than Sydney.

The subject matter

26. I turn then to consideration of par (b) of s 20(4). A relevant question is what does the statute mean by "the subject matter of the proceeding"? This is, in itself, an interesting question. The plaintiff says that the subject matter of the proceedings is the representation as to the value of land. The representations were received and acted upon by lenders and/or the lenders' agents in Sydney and by the plaintiff, in Sydney. Based upon that submission, it is pointed out that the proper law of the tort is most probably the law of New South Wales. The plaintiff took me to the very interesting discussion of this issue contained in Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538, which discusses the principle of "forum non conveniens". At p 545, the majority (Mason CJ, Deane, Dawson and Gaudron JJ) said this:

"Neither respondent, according to the evidence, carries on business in the United States. The group's operating company there was Manildra Milling Corporation ('MMC'), a corporation established under the laws of the State of Kansas. MMC is a wholly owned subsidiary of the second respondent, and it was to MMC that the appellant, in the ordinary course of his professional practice, provided accounting, auditing and related services.

At p 546, their Honours said:

"As it happened, MMC did not make the required deductions and payments of withholding tax between 1976 and 1983. The respondents assert that this omission was the fault of the appellant, or those for whom he was responsible. In 1984, the appellant's firm discovered the omission. It was decided that the withholding tax and penalty interest should be paid to the IRS."

As a result of that adjustment, the Australian companies suffered loss. The relevant dictum commences at the foot of p 567:

"One thing that is clear from Jackson v Spittall and from Distillers is that it is some act of the defendant, and not its consequences, that must be the focus of attention. Thus, in Distillers the act of ingestion of the drug Distaval by the plaintiff's mother was ignored, the place of that act being treated like the place of the happening of damage, as one that might have been 'quite fortuitous'.

In some cases an act passes across space or time before it is completed. Communicating by letter, telephone, telex and the like provide examples. In Diamond v Bank of London and Montreal [1979] QB 333 Lord Denning MR stated (at p 346) that a representation or a statement effected by telephone or telex takes place 'where the message is received wherever it is heard on the telephone by the receiver or tapped out by the telex machine in the receiver's office'. In the view of Stephenson LJ (at p 349 350) the situation was like the publication of a defamation or the act charged as an offence in DPP v Stonehouse [1978] AC 55 in that although initiated outside the country it 'operates on persons and property in this country'.

In The 'Albaforth' [1984] 2 Lloyd’s Rep 91 it was said by Ackner LJ (at p 92) and by Robert Goff LJ (at p 96) that it had been held in Diamond that the substance of the tort of negligent misstatement is committed where the statement is received and acted upon. That is accurate so far as it reflects the facts considered in that case. But there is not and cannot be any such general rule, for a statement may be received in one place and acted upon in another. And The 'Albaforth' provides no basis for a conclusion that it is the place where the statement is acted upon which determines the place at which the statement was made. That place may have no connection at all with the place where the statement was initiated or the place where it was completed. And the place where it is acted upon may be entirely fortuitous.

If a statement is directed from one place to another place where it is known or even anticipated that it will be received by the plaintiff, there is no difficulty in saying that the statement was, in substance, made at the place to which it was directed, whether or not it is there acted upon. And the same would seem to be true if the statement is directed to a place from where it ought reasonably to be expected that it will be brought to the attention of the plaintiff, even if it is brought to attention in some third place. But in every case the place to be assigned to a statement initiated in one place and received in another is a matter to be determined by reference to the events and by asking, as laid down in Distillers, where, in substance, the act took place.

The present case is one that may properly be described either as a failure to advise (ie, an omission) or as a negligent misstatement of fact (ie, a positive act). Strictly, the complaint is one of negligent omission, namely, failure to do various things, including failure to draw the attention of MMC and the members of the Manildra Group (including the respondents) to the requirement to pay withholding tax on MMC's interest payments to the first respondent. However, there are cases where, when information is being imparted, the failure to draw attention to some particular matter is, for practical purposes, the same as a positive statement as to that matter. That was the situation in Shaddock and Associates Pty Ltd v Parramatta City Council (No 1) [1981] HCA 59; (1981) 150 CLR 225. And it would seem that that is also the present case, for, in a context in which the appellant was providing professional accountancy services on the basis that withholding tax was not payable, the failure to draw attention to the requirement that it be paid was, for all practical purposes, equivalent to a positive statement that it was not payable. When the case is approached on that basis it is clear that, in substance, the cause of complaint is the act of providing the professional accountancy services on an incorrect basis. The same is true if the matter is approached as an omission, for the omission takes its significance from that same act of providing those services. That act is in no way comparable to an act, such as that in Diamond and in The 'Albaforth', which passes across space to be completed in some place different from the place where it was initiated. The act of providing accountancy services was an act complete in itself, or, if not complete in itself, one that was initiated and completed in the one place. That place was Missouri. The fundamental significance of that simple fact is not diminished merely because it may be possible, for the purpose of legal classification, to treat that act as equivalent to a statement that was received or acted upon in Australia.

The act of the appellant giving the respondents their cause of complaint was committed in Missouri and thus the tort, if there was one, was committed in Missouri. Accordingly, even if the matter were to be litigated in this country, the appellant is liable to the respondents only if he is liable under the law of Missouri: see Phillips v Eyre, at p 28, where it is said that, 'the civil liability arising out of a wrong derives its birth from the law of the place, and its character is determined by that law'. The precise role of local law under the double actionability rule laid down in Phillips v Eyre need not be explored, but it has no direct bearing on the question whether the act of which the respondents complain was wrong for that must depend on Missouri law. The question whether it would have been wrong if committed in Australia, as is asked under the double actionability rule, merely brings local law to bear on that question hypothetically. Even though Australian revenue law features significantly in the respondents' damages claim, it is merely a circumstance bearing on the question whether damage was suffered and, if so, its quantum. It does not, in any relevant sense, determine the liability of the appellant for that damage or the quantum of recoverable damage. The proceedings have been conducted on the basis that the law of the place where the tort was committed has a significant bearing upon the determination of the dispute between the parties. In the light of what has been said it is more accurate to say that it is fundamental."

27. It is certainly arguable that the tort arose in New South Wales and that the law governing the tort is the law of New South Wales. However, it is common ground that the relevant law in Queensland is exactly the same as the New South Wales law and, for example, one of the things relied upon by the plaintiff in each case is conduct said to have breached s 52 of the statute then known as the Trade Practices Act 1974 (Cth), which, of course, extends throughout the Commonwealth and is to be given the same interpretation in both this State and in Queensland.

28. I return to the principal consideration as to what is meant by "the subject matter of the proceeding". This matter was considered by the Queensland Court of Appeal in St George Bank Ltd v McTaggart [2003] QCA 59; [2003] 2 Qd R 568. The judgment in that case was given by McPherson JA, with whom Davies JA and Philippides J concurred. His Honour opened his judgment with this short statement of facts:

"St George Bank Limited carries on business at various locations throughout Australia but, so far as relevant here, at its office at 345 Queen Street, Brisbane. On 21 June 2002 it filed a statement of claim in proceedings no D2673 of 2002 in the District Court at Brisbane. The other parties to the action are the first defendant Stephen McTaggart, who is alleged to be the principal of the second defendant Scotsdale Enterprises Pty Ltd, and the third defendant Kelmscott Truck Sales (WA) Pty Ltd, of which Noel John Best is a director and alleged personal friend of McTaggart."

After discussing the question of witnesses and the cost to witnesses, his Honour then said this:

“[15] The weight that that particular matter might otherwise attract in the overall exercise of the discretion under s 20(3) has, to my mind, to be considered in the context of the further statement in para 13 of McTaggart's affidavit that he believes that the first, second and third defendants are all based in Western Australia 'and the transactions which form the basis of the plaintiff's claim all occurred in Western Australia'. The first part of this proposition is only partly true. The third defendant as well as the plaintiff carries, or also carried, on business in Brisbane, and, inferentially from what Mr Saggers has to say, had done so for some time before October 1999. The second part of the proposition is plainly incorrect. The transactions and representations forming the basis of the plaintiff's claim all took place in Queensland and not Western Australia: CfACN 080 988 807 Pty Ltd v Kneipp [2002] SADC 165, at 5 6.

[16] If in s 20(4)(b) the expression 'subject matter of the proceeding' refers to the cause of action, Queensland is the place where it is situated. What Mr McTaggart says about the matters referred to in para 13, and earlier in para 3(b) and 3(d), of his affidavit is incomprehensible without further elucidation from him, which he has not condescended to provide. There is nothing at all to show what the arrangement, if any, was between the first and second defendants and the third defendant or Best concerning the use of McTaggart's dealership licences, or the relevance of that arrangement if it existed. The first and second defendants have failed to explain how the third defendant came to be using a form of invoice emanating from the first or second defendants or to be using their 'dealership licence' in Western Australia, or to demonstrate its relevance, if any, to Queensland. Nor have they explained what happened to the $108,000 paid to the credit of his Westpac account, or why and how it, or most of it, came to be paid out of that account to the third defendant. If they intended to base their defence on these matters, they have failed to demonstrate their relevance."

29. One must note that his Honour commenced [16] with the observation that "If in s 20(4)(b) the expression 'subject matter of the proceeding' refers to the cause of action" rather than a statement that, the expression does mean the cause of action. His Honour had earlier referred to a decision of the South Australian District Court ACN 080 988 807 Pty Ltd v Kneipp [2002] SADC 165. I have obtained and read that judgment, a decision of Muecke J on appeal from the Master of the South Australian District Court. However, it is clear, from what his Honour said, that the District Court of South Australia did not have jurisdiction to determine all the matters in issue in that case. His Honour said this:

"[17] A caveat has been lodged in Queensland over that property. It is signed by the plaintiff's solicitor, giving an address in Kellyville, New South Wales. The grounds of the plaintiff's claim of an equitable interest in that property include the tracing of funds in this action. The caveat is subject to the Lands Titles Act 1994 of Queensland. The defendants' solicitor has given notice to the plaintiff's solicitor at its New South Wales address warning the caveat. The notice is given pursuant to the Lands Titles Act 1994 of Queensland which obliges the plaintiff to commence proceedings in a court of competent jurisdiction to establish the interest claimed under the caveat. A section of that Queensland Act requires an order from the Supreme Court of Queensland.

[18] In my view the relief sought by the plaintiff in par 35A of the Further Amended Statement of Claim seeks relief which this Court has no jurisdiction to grant. It appears that the only Court having jurisdiction to grant some of the relief claimed by the plaintiff in that paragraph is the Supreme Court of Queensland. If it could be any court in South Australia it would be the Supreme Court here, not the District Court."

30. True it is that the subject matter of these proceedings is the valuation of the land in Queensland. However, one cannot escape from the fact that the "res" in question in each matter is real property in Queensland and that, in essence, the cases ultimately revolve around the question of the value of that "res". Where the question in issue is so closely aligned to the valuation of real property, it appears to me to be more appropriate that the matter be determined by a court in the appropriate jurisdiction, if it does have jurisdiction to determine all the matters in issue. If the "res” in issue were a chattel, then one could easily postulate that the value of the chattel would be much the same in any place within the Commonwealth of Australia, and its value could be easily ascertained. Equally, the opinion or representation relied upon is one ultimately connected with the real property and not, for example, an opinion as to some intellectual matter, an opinion, for example, as to the standard of care to be adopted by a medical practitioner in providing surgical treatment and is not, for example, a matter that is merely the subject of some defamation proceedings. The representations relied upon here, ultimately, are tied to the real property in question.

The appropriate law

31. I turn now to s 20(4)(e). As I already indicated, there is no dispute that the law in both this State and in Queensland is relevantly the same. The jurisdiction of the District Court of Queensland is coterminous with the jurisdiction of this Court. Its monetary level of jurisdiction is $750,000 plus interest: District Court of Queensland Act 1987, s 68(2) and (3)(c).

32. The current cause of action is a personal action and the District Court of Queensland has jurisdiction in all personal actions where the amount, value or damage sought to be recovered does not exceed the monetary limit of the court's jurisdiction: s 68(1)(a). I was concerned that the District Court of Queensland might not have available to it the relevant procedures for managing expert evidence, but I note from the judgment of Kingham DCJ in Simmons v Wanless [2014] QDC 42 that that Court does engage in the process popularly known as "hot tubbing": see [7]. I have also had reference to the relevant rules and they are UCPR 1999 Pt 5, and in my view, are apt for a proper disposal of all relevant matters and of properly managing expert evidence. On the other hand, a suggestion was raised by the defendants/applicants that it may be necessary for the Court to take a view, in which case clearly the District Court of Queensland would be a more appropriate forum. In my view, a view in a case such of this nature would not be necessary in any event. Photographs of the relevant property and an oral description would be adequate, in my view, for any purpose. There is no suggestion, for example, that there was some hidden defect in either property, nor some detriment to the amenity of either property, because of the blocking of some view or the like. In that regard, the applicants have failed to discharge the onus of its proving, on the balance of probabilities, that it might be necessary to take a view.

Related or similar proceedings

33. The final matter raised under s 20(4) is the matter contained in par (f). Here, the plaintiff argued that, because a valuation had been sought by a New South Wales company from Herriots (Cairns) Pty Ltd, and because the representation was first received in Sydney by Macquarie Mortgages Pty Ltd, that valuation was intended to be acted upon in Sydney, and therefore the case that it had in respect of the Clifton Beach property was stronger than the case it had concerning the Scarborough property, because there, the request for valuation came from a Queensland company, albeit that the principal of the Queensland company appears to be in New South Wales. However, because the loss om the Clifton Beach property far exceeded the Scarborough on the property, if the Court held that the cause of action concerning the Clifton Beach property arose in Sydney but it were otherwise for the Scarborough property, nevertheless the Court would keep the two cases together, because of the commonality of many of the witnesses involved. I agree that the cases ought not be split because the commonality of witnesses that might be called by or on behalf of the plaintiff. But in my view, par (f) is directed to other proceedings arising out of the same subject matter existing in some other court.

Statutory Interpretation

34. Finally, I should say this on the question of statutory interpretation. I have already quoted subs (3) of s 20 of SEPA. There is some tension in its verbiage. I need to recite the subsection. It is this:

"The court may order that the proceeding be stayed if it is satisfied that a court of another State that has jurisdiction to determine all the matters in issue between the parties is the appropriate court to determine those matters". [My emphases.]

In Kneipp, Muecke J was concerned in [10] and [11] that the Master may have used the terminology "more appropriate court" rather than the words of the statute itself. However, it is clear to me why no such adverb is used in subs (3). That is because if the courts of two States have jurisdiction to determine all the matters in issue, the question becomes which is the more appropriate court, but if the courts of three or more states have jurisdiction to determine all the matters in issue, the appropriate terminology would be "the most appropriate court". In my view, that is the way in which subs (3) should be approached; that the use of the definite article, without an adverb modifying "appropriate" is merely because the draftsman did not know whether to use the adverb "more" or the adverb "most". He could have used either, but in fact used neither.

Decision

35. Clearly, this is a weighing process. However, where the subject matter of the proceedings is tied so intimately to real property in another state and the court of the other state has jurisdiction to determine all the issues between the parties, I believe it is more appropriate to find that the District Court of Queensland is the more appropriate court to determine the matters in the current proceedings.

36. I sympathise with the plaintiff. Clearly, the plaintiff may need to call a large number of witnesses if the defendants take many technical points. However, that is a matter that can be managed by the District Court of Queensland. On the other hand, it must be borne in mind by persons such as the plaintiff, that if you wish to conduct business in another State, it may be necessary to embark upon litigation in the other State from time to time.

Orders

37. I have inquired of counsel for the parties whether any further reasons for judgment are required. I am told that none is so required. For those reasons, in each matter, I grant a stay of proceedings pursuant to s 20 of the Service and Execution of Process Act 1992 (Cth). I order the plaintiff/respondent to pay the defendants/applicant's costs of this application.

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Decision last updated: 30 July 2015