JH7 Holdings Pty Ltd v Chung - [2020] NSWSC 985

Supreme Court

New South Wales

Medium Neutral Citation: JH7 Holdings Pty Ltd v Chung [2020] NSWSC 985
Hearing dates: 28 July 2020
Date of orders: 28 July 2020
Decision date: 28 July 2020
Jurisdiction: Equity
Before: Henry J
Decision:
(1) Pursuant to s 5(2) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW), the proceedings be transferred to the Supreme Court of Queensland.
(2) Other than the costs of the defendants’ motion filed on 24 June 2020, the costs of the proceedings in this Court be costs of the proceedings in the Supreme Court of Queensland.
(3) The plaintiff to pay the defendants’ costs of its notice of motion filed on 24 June 2020.

Catchwords:
CIVIL PROCEDURE – Cross-vesting – Transfer to other Supreme Court – where joint venture between parties to develop land in Queensland – where plaintiff alleged defendant breached loan agreement – where defendant purported to terminate joint venture agreement – where plaintiff seeks declaration of an equitable interest and possession of land in Queensland and rectification of loan agreement – where majority of likely witnesses located in Queensland – where joint venture and loan agreements contains choice of forum clauses in favour of Queensland courts – whether it is in the interests of justice to transfer proceedings – proceedings transferred to Supreme Court of Queensland

Legislation Cited:
Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW), s 5(2)(b)(iii)
Jurisdiction of Courts (Foreign Land) Act 1989 (NSW), s 3
Land Title Act 1994 (Qld), ss 122(1), 126(2)
Service and Execution of Process Act 1992 (Cth)
Uniform Civil Procedure Rules 2005 (NSW), r 42.1

Cases Cited:
Asciano Services Pty Ltd v Australian Rail Track Corp Ltd [2008] NSWSC 652
Bankinvest AG v Seabrook (1988) 14 NSWLR 711
BHP Billiton Ltd v Schultz (2004) 221 CLR 400; [2004] HCA 61
FAI General Insurance Co Ltd v Ocean Marine Mutual Protection & Indemnity Association Ltd (1997) 41 NSWLR 117
Greater Bank Ltd v Official Trustee in Bankruptcy and Marteene [2017] NSWSC 1496
James Hardie & Coy Pty Ltd v Barry (2000) 50 NSWLR 357; [2000] NSWCA 353
Patrick Badges Pty Ltd v Commonwealth of Australia [2002] NSWSC 221
Starr-Diamond v Diamond (No 3) [2013] NSWSC 351
Taurus Funds Management Pty Ltd v Aurox Resources Ltd [2010] NSWSC 1223

Texts Cited:
Nil

Category: Procedural and other rulings
Parties: JH7 Holdings Pty Ltd (Plaintiff)
Kuo-Jen Chung (First Defendant)
Kuo-Jen Chung as trustee for the Chung Family Trust (Second Defendant)
Representation:
Solicitor:
I Benson (Plaintiff)
Counsel:
D Robertson (First and Second Defendant)
Solicitors:
AR Conolly & Company Lawyers (Plaintiff)
NXT Legal (First and Second Defendant)

File Number(s): 2020/119016
Publication restriction: Nil

Judgment Ex tempore (revised)

By notice of motion filed on 24 June 2020, Kuo-Jen Chung, in his personal capacity as first defendant and in his capacity as trustee for the Chung Family Trust as second defendant (defendants), seeks an order pursuant to s 5(2) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) (Cross-vesting Act) that these proceedings…

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: [2020] NSWSC 985
Decision Date: 28 July 2020

CaseChat Overview and Summary

In JH7 Holdings Pty Ltd v Chung, the parties involved were JH7 Holdings Pty Ltd, the plaintiff, and Chung, the defendant. The case revolved around a joint venture agreement to develop land in Queensland, with the plaintiff alleging that the defendant breached a loan agreement. The plaintiff sought a declaration of an equitable interest and possession of the land, as well as the rectification of the loan agreement. The legal dispute required the court to determine whether it was in the interests of justice to transfer the proceedings from the Supreme Court of New South Wales to the Supreme Court of Queensland.

The central legal issue before the court was whether the proceedings should be transferred to the Supreme Court of Queensland under the Cross-vesting legislation. The plaintiff argued that the transfer was necessary because the majority of the likely witnesses were located in Queensland, and both the joint venture and loan agreements contained choice of forum clauses favouring Queensland courts. The defendant contested the transfer, asserting that the court should consider other factors in addition to the location of witnesses and choice of forum clauses.

The court considered the relevant factors, including the location of witnesses, the choice of forum clauses, and other practical considerations. The court found that transferring the proceedings to the Supreme Court of Queensland was in the interests of justice. It determined that the majority of witnesses being located in Queensland and the choice of forum clauses were significant factors, and that these factors outweighed other considerations. Consequently, the court ordered the transfer of the proceedings to the Supreme Court of Queensland.

The final orders of the court were that the proceedings be transferred to the Supreme Court of Queensland. This decision acknowledged the practical implications of witness location and contractual stipulations in determining the appropriate forum for resolving the dispute. The transfer aimed to ensure a fair and efficient resolution of the case, considering the circumstances and legal provisions relevant to cross-vesting under Australian law.

Orders