Incafe Restaurant Pty Ltd v Complete Coffee Pty Ltd - [2025] NSWSC 1250

Supreme Court

New South Wales

Medium Neutral Citation: Incafe Restaurant Pty Ltd v Complete Coffee Pty Ltd [2025] NSWSC 1250
Hearing dates: 15 October 2025
Date of orders: 15 October 2025
Decision date: 15 October 2025
Jurisdiction: Common Law
Before: Cavanagh J
Decision:
(1) Pursuant to s 140 of the Civil Procedure Act 2005 (NSW), the proceedings before the Local Court bearing case number 2024/255800 (including the cross-claim) be transferred to the Supreme Court.
(2) Pursuant to s 65(1)(b) of the Civil Procedure Act, InCafe Restaurant Pty Ltd and Ruoliu Xie be granted leave to rely upon the amended cross-claim filed without leave on 18 September 2025.
(3)   InCafe Restaurant Pty Ltd and Ruoliu Xie to pay Complete Coffee Pty Ltd’s costs thrown away by reason of the vacation of the hearing date in the Local Court.
(4)   The costs of this application be costs in the cause.
(5)   Complete Coffee Pty Ltd is to serve any additional evidence on which it relies by 14 November 2025.
(6)   InCafe Restaurant Pty Ltd and Ruoliu Xie are to serve any evidence in reply by 28 November 2025.
(7)   List the matter for hearing on 9 February 2026 with an estimate of two days.
(8)   Make the usual orders for hearing.

Catchwords:
CIVIL PROCEDURE – jurisdiction – transfers to and from other courts – application to transfer proceedings from Local Court to the Supreme Court – whether sufficient cause shown to justify the transfer – where the Local Court does not have jurisdiction to deal with aspects of the defence and cross-claim – proceedings transferred
COSTS – party/party – costs thrown away by reason of the vacation of the hearing date – costs where the plaintiff seeks an indulgence – transfer of the matter to a court with appropriate jurisdiction not an indulgence – costs in the cause

Legislation Cited:
Civil Procedure Act 2005 (NSW), ss 56, 140

Cases Cited:
Riaz v Technical and Further Education Commission [2024] NSWSC 474

Texts Cited:
Nil

Category: Procedural rulings
Parties: InCafe Restaurant Pty Ltd (First Plaintiff)
Ruoliu Xie (Second Plaintiff)
Complete Coffee Pty Ltd (Defendant)
Representation:
Counsel:
R Size (First and Second Plaintiff)
P Farrell (Defendant)
Solicitors:
Legal Vision (First and Second Plaintiff)
Lionheart Lawyers Pty Ltd (Defendant)

File Number(s): 2025/00376661
Publication restriction: Nil

REVISED EX TEMPORE JUDGMENT

Pursuant to a summons filed on 1 October 2025, the plaintiffs, who are defendants in Local Court proceedings, seek orders pursuant to s 140 of the Civil Procedure Act 2005 (NSW) that the proceedings be transferred from the Local Court to the Supreme Court, and further that they be granted leave to rely on an amended cross-claim and defence dated 18 September 2025.
Mr Size appears for the plaintiffs and Mr Farrell appears for the defendant. Both counsel provided helpful written and oral submissions.
The plaintiffs rely on an affidavit of their solicitor Jodie Thomson, affirmed 30 September 2025. The defendant relies on an affidavit of its solicitor Nazih Touma, affirmed on 10 October 2025.

Background

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NSWSC 1250
Decision Date: 15 October 2025

CaseChat Overview and Summary

The case of Incafe Restaurant Pty Ltd v Complete Coffee Pty Ltd involved a dispute that originated in the Local Court of New South Wales. The plaintiff, Incafe Restaurant Pty Ltd, filed an action against Complete Coffee Pty Ltd, seeking relief related to contractual obligations and alleged breaches. The defendant responded with a defence and subsequently filed a cross-claim that extended beyond the jurisdictional limits of the Local Court. As a result, the plaintiff applied to transfer the proceedings to the Supreme Court of New South Wales, arguing that the Local Court lacked the necessary jurisdiction to adjudicate on the cross-claim. The defendant opposed the transfer, and the matter was considered by the Supreme Court.

The primary legal issue before the court was whether sufficient cause existed to justify the transfer of the proceedings from the Local Court to the Supreme Court. The court needed to determine whether the cross-claim filed by the defendant exceeded the jurisdiction of the Local Court and whether transferring the matter to the Supreme Court was warranted. Additionally, the court needed to assess the costs implications of the transfer, particularly in light of the plaintiff's application for an indulgence due to the vacation of the hearing date.

In its decision, the court held that the cross-claim filed by the defendant contained elements that the Local Court was not empowered to adjudicate. Consequently, the court found that there was sufficient cause to transfer the proceedings to the Supreme Court, which had the appropriate jurisdiction to hear and determine the entire matter, including the cross-claim. Regarding costs, the court noted that while the plaintiff sought an indulgence due to the vacation of the hearing date, transferring the matter to a court with appropriate jurisdiction was not an indulgence. Therefore, the plaintiff's application for costs was dismissed.

The final orders of the court were that the proceedings be transferred from the Local Court to the Supreme Court, and that the plaintiff's application for costs be dismissed.

Orders