Interstate Trading Co Ltd v D and J Spencer Holdings P/L

[1994] FCA 1016

JUDGMENT No. .... .. ......, 1 0 1 6 ,,,,, ,,,,,, ..,, , C)?

IN-THE FEDERAL COURT OF AUSTRALIA	)
1
VICTORIA DISTRICT REGISTRY	1 No. VG 3486 of 1994
1
GENERAL DIVISION	1
B E T W E E N :

INTERSTATE TRADING CO LIMITED

Applicant

- and -

D 6 J SPENCER HOLDINGS PTP LIMITED

(formerly Notron (No 196) Pty Llmited and

before that The Sportsfactory Pty Limitedpespondents

JUDGE :	Heerey J
m:	7 December 1994
PLACE :	Melbourne

EX TEMPORE REASONS FOR JUDGMENT

satisfied that there is, within the

principles laid down in National Mutual Pty Limited v Sentry

Corporation (1988) 19 FCR 155 at 162 "sound reason" why this proceeding which was commenced in the Victorla District Reglstry

should be transferred to the New South Wales District Registry. I think I can summarise those grounds by saying that this is really a Sydney case. It arises out of an agreement which was made in Sydney for the satisfaction of a debt due to the applicant by the payment of cash, the assignment of certain debts (or, perhaps more strictly, a direction to the respondent's debt

collector to pay the proceeds of the debts to the applicant) and

the transfer of a motor boat.

The only connection with Melbourne is that the applicant's solicitors carry on practice in Melbourne and that the breach of the agreement was caused by non-payment of the amount due in

Melbourne. However, it is not in dispute, as I understand it, that the amount claimed was not in fact paid. The respondent's defence alleges certain oral representations, collateral . warranties, implied terms, the precise legal characterisation of which is not relevant for present purposes. What is clear, however, is, as Mr David Spencer, the managing director of the respondent, deposes, witnesses to be called on behalf of the respondent are resident in Sydney and even if there is in fact only one witness, Mr Spencer himself, he lives in Sydney himself and the respondent has always carried on business in Sydney.

An mportant factor feature to my mind is that the applicant has

already commenced proceedings agalnst Mr Spencer himseli in the District Court of New South Wales, lumber 5411 of 1994. Proceedings were commenced on 12 September 1994 and Mr Spencer filed a defence on 20 October 1994. So it would seem to me on the face of it oppressive and onerous for the applicant to proceed against Mr Spencer in New South Wales and then against the respondent company on essentially the same cause of action in Victoria. No explanation has been proffered as to why that course was taken. There was some mention of delay and I accept, of course, that delay may be a relevant factor in the exercise of a discretion of this sort. However, this proceeding only commenced in the Victorian registry on 25 October 1994 when the application to wind up the respondent was filed, and the respondent's notice of motion was filed on 2 December. That, in itself, is a period of time of not much more than a month. In the meantime it does not appear that the applicant has engaged

on any very substantial interlocutory procedures. The court file indicates that there has only been the formal affidavits filed. There is no prejudice to the appllcant in that respect, because once the matter was transferred to New South Wales those affidavits would have precisely the same effect.

I will order that the proceeding be transferred to the New South

Wales District Registry of this court.

I do not think what Mr Cosgrave has said weighs agalnst the

making of the usual order that costs follow the event. The appllcant took the decision to proceed and contest the respondent's application, notwithstanding short servlce. No doubt if the application had been dismissed the applicant would have sought its costs and would have received them. I do not thlnk is appropriate to reserve the costs, because the issue of transfer to New South Wales is a dlscrete issue which will not be dealt with on the general merits of the case. So I order that the applicant pay the respondent's costs of the motion dated

2 December 1994, including today's hearing.

I certify that this and the

preceding three (3) pages are a true copy of the reasons for judgment of his Honour M r Justice Heerey.

D a t e p m c b

Associate

ADpearances

Counsel for the applicant:	P J Cosgrove
Solicitor for the applicant:	Arthur Robinson Hedderwicks
Counsel for the respondent:	A M Donald
Solicitor for the respondent:	Gledhill Burrldge & Cathro
Date of hearing:

JUDGES' CHAMBERS

FEDERAL COURT OF AUSRALIA

2 AUSTRALIA L$ 450 LITTLE BOURKE STREET

4*$L<<<44C MELBOURNE, 3000

21 December 1994

Sonia Cornale

Federal Court of Australia

Principal Registry

Law Courts Building

Queens Square

SYDNEY NSW 2000

Dear Sonia,

Interstate Tradina CO Limited v D h J S~encer	Holdinas Ptv Ltd
No. VG 3486 of 1994

Re: Ivo Komlienovic Ex varte: Official Trustee in BanhDtcy

No. VB 1523 of 1994

I enclose copies of the judgments delivered by his Honour Mr

Justice Heerey.

A diskette record of the catchwords, minutes and reasons for judgment is also enclosed.

These judgments are not for general distribution.

Regards,

avid Br nan

kL Associate to Heerey J

enc.