In the matter of Nail Fairy Bulimba Pty Ltd

[2018] NSWSC 446

Supreme Court

New South Wales

Medium Neutral Citation:	In the matter of Nail Fairy Bulimba Pty Ltd [2018] NSWSC 446
Hearing dates:	Monday, 12 February 2018
Date of orders:	12 February 2018
Decision date:	12 February 2018
Jurisdiction:	Equity - Corporations List
Before:	Brereton J
Decision:	Pursuant to (NSW) Jurisdiction of Courts (Cross-Vesting) Act 1987 s 5(2), the Court orders that the proceedings be transferred to the Supreme Court of Queensland
Catchwords:	JURISDICTION – Cross-vesting – Transfer of proceedings – between State Supreme Courts – relevant considerations – where plaintiff resides in New South Wales and the defendant resides in Queensland – where the defendant company’s principal place of business is in Queensland – centre of main interests in Queensland – held, proceedings transferred.
Legislation Cited:	(CTH) Corporations Act 2001 (NSW) Jurisdiction of Courts (Cross-Vesting) Act 1987, s 5
Cases Cited:	BHP Billiton Limited v Shultz [2004] 221 CLR 400 British American Tobacco Australian Ltd v Gordon [2007] NSWSC 230 BioAg Pty Ltd v Hickey [2007] NSWSC 296
Category:	Procedural and other rulings
Parties:	Isabell Yenah Toh (Plaintiff) Nail Fairy Bulimba Pty Ltd (ACN 611 057 446) (First Defendant) David Kim (Second Defendant)
Representation:	Counsel: J Stephenson (Plaintiff) J. Lucy (First and Second Defendants)   Solicitors: H & H lawyers (Plaintiff) Panacea Lawyers (First and Second Defendants)
File Number(s):	2017/ 374468

Judgment (EX TEMPORE)

1. The plaintiff Isabel Yana Toh instituted proceedings in this Court by originating process filed on 11 December 2017 against three defendants: the first defendant the company Nail Fairy Bulimba Pty Ltd, the second defendant David Kim, and the third defendant his former wife Juyeon Kim. In the originating process the address of the second defendant was stated to be Birkenhead Crescent, Forest Lake in the State of Queensland, and the third defendant was said to be of that same address. By way of relief the plaintiff sought essentially to have rectified the register of the company, to the intent that she would be recorded as the sole shareholder in the company; specific performance of an agreement for the transfer of shares to her; and avoidance of the purported appointment of the second defendant as sole director and secretary. It would seem that the relief claimed relies, at least in part on the (CTH) Corporations Act 2001, and in part on general law principles.

2. By interlocutory process filed on 25 January 2018, the first and second defendants seek an order, pursuant to (NSW) Jurisdiction of Courts (Cross-Vesting) Act 1987, transferring the proceedings to the Supreme Court of Queensland. The third defendant has not yet been served.

3. On an application for transfer of proceedings under s 5, the central question is, which is the more appropriate Court? It is not necessary that the Court in which the proceedings were instituted be a “clearly inappropriate forum” before a transfer order will be made; merely that it be shown that the proposed transferee Court is a “more appropriate” forum. “Appropriateness” is not purely a question of convenience, but involves an inquiry – which is not always capable of answer – as to which is the forum in which the proceedings would most appropriately be brought. That involves questions of jurisdictional nexus as well as mere convenience.

4. In this case, the second defendant invokes his residency in Queensland, his responsibilities for the care of children there, the associated inconvenience with travel to Sydney, and the unavailability of others to care for his children or to operate the business in the event of his absence. In opposition to the application, the plaintiff points to substantially similar considerations which make the Supreme Court of New South Wales a more convenient venue for her. But, as I have said, the question is not so much one of convenience as to which is naturally the more appropriate Court.

5. At least where other matters are equal, the residence of a defendant tends to attract greater significance than the residence of the plaintiff. That is because jurisdiction ordinarily depends on the presence of a defendant rather than the presence of a plaintiff within its jurisdiction to enliven the Court's adjudicatory jurisdiction. Thus, it has been said, in the context of the cross-vesting jurisdiction, that, ordinarily, the residence of the defendant is more significant than that of the plaintiff to establish jurisdiction, and this may count in identifying the more appropriate forum: see BHP Billiton Limited v Shultz [2004] 221 CLR 400 at 423 [19]; British American Tobacco Australian Ltd v Gordon [2007] NSWSC 230 at [44], and BioAg Pty Ltd v Hickey [2007] NSWSC 296 at [7].

6. The proceedings are brought in the Corporations List, because they involve the affairs of a corporation. That corporation has its registered office in Queensland and its principal place of business in Queensland. If one were considering the matter in the context of international law and conventions applicable to corporate insolvency, one would say that the corporation's centre of main interest was plainly in Queensland. Its business operations are in Queensland.

7. The relevant dealings between the parties appear to have been made over the telephone and by email, between the plaintiff in New South Wales and the defendant in Queensland. In those circumstances it is not entirely clear whether any resultant contract would be taken to be made in New South Wales or Queensland, and ultimately the law is probably no different. While it seems more likely on the material at this stage that the contract was made in Queensland, I give that factor little weight.

8. In circumstances where the matters of inconvenience to both parties are substantially the same, where the defendant resides in Queensland, and where the “centre of main interests” of the corporation is in Queensland, it seems to me that the natural forum for the litigation is the Supreme Court of Queensland, and that that Court is the more appropriate court.

9. Pursuant to (NSW) Jurisdiction of Courts (Cross-Vesting) Act 1987 s 5(2), the Court orders that the proceedings be transferred to the Supreme Court of Queensland. The costs of the interlocutory process will be the first and second defendants' costs in the proceedings.

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Decision last updated: 11 April 2018