John Sheahan v Schaffer Corporation Limited No. SCGRG 92/1935 Judgment No. 3767 Number of Pages 3 Practice Cross-vesting

[1992] SASC 3767

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA PERRY J

CWDS
Practice - cross-vesting - application to transfer to Supreme Court of Western Australia action by liquidator of company which carried on business in South Australia seeking order declaring payments to defendant company, which carried on business in Western Australia, a preference - consideration of factors involved -held on the facts that the application should be refused - observations as to the manner in which such applications should be approached. Jurisdiction of Courts (Cross-Vesting) Act ss (2)(b)(iii) and Corporations (South Australia) Act 544. Re Preble Ptv Ltd (in liquidation) (Receivers and Managers annointed) (1991) 6 ACSR 181, discussed.

HRNG ADELAIDE, 15 December 1992 #DATE 15:12:1992
Counsel for applicant Schaffer:     Mr J Oks
Solicitors for applicant:             Home Taylor &; Co
Counsel for respondent:             Mr M O'Donnell
Solicitors for respondent:            Thomson Simmons

ORDER
Application refused.

JUDGE1 PERRY J The plaintiff, John Sheahan, is the official liquidator of Heading Australia Pty Ltd, ("Heading") which was ordered to be wound up by order of this Court on 24 April 1990. Subsequently, the company changed its name to Diquid Pty Ltd. Before its liquidation, Heading carried on business in South Australia, during the course of which it ordered goods from the local representative of the defendant. The defendant operated a tannery at Coogee, Western Australia. The present proceedings were instituted in this Court by a summons on 28 August 1992. 2. In the proceedings Mr Sheahan claims that certain payments made by Heading to the defendant were preferences liable to be set aside pursuant to s.451 of the Companies Code or s.565 of the Corporations Law. The defendant has filed a defence to the proceedings in which it denies that the relevant payments were preferences, and asserts that the payments were received by the defendant in good faith and for valuable consideration and in the ordinary course of business. 3. The defendant now applies by an application filed on 14 October 1992 (document No. 6) for an order that "the Supreme Court of South Australia does not have jurisdiction", or in the alternative that "the Supreme Court of Western Australia is the proper forum for the trial of the action". 4. Contrary to the requirements of Form 21, the application does not indicate the statute or rule upon which it is brought. However, during the course of the hearing of the application it became clear from the submissions of Mr Oks for the applicant, that in fact the application is to transfer the proceedings to the Supreme Court of Western Australia either pursuant to s.5(2)(b)(iii) of the Jurisdiction of Courts (Cross-Vesting) Act, or pursuant to s.44 of the Corporations (South Australia) Act. 5. As to the first part of the application, Mr Oks did not address an argument that the Supreme Court of South Australia does not have jurisdiction. Clearly it does. 6. The question then is whether under either of the provisions to which I have referred it would be proper to make an order that the proceedings be transferred for hearing to the Supreme Court of Western Australia. I do not approach that question on the basis that the applicant has any onus to discharge or on the footing that there is any presumption in favour of the forum in which the plaintiff has chosen to institute the proceedings. In my opinion on a proper application of either of the provisions which have been invoked, the only consideration is whether on the evidence and other material put before the court it is proper to make the order sought. 7. As was pointed out by Debelle J in Re Preble Pty Ltd (in liquidation) (Receivers and Managers appointed) (1991) 6 ACSR 181, the overriding consideration is the interests of justice. I accept that in the final analysis the question comes down basically to matters of convenience and expense, and in particular factors of the kind referred to in Preble at 184. 8. In support of its application the defendant has filed an affidavit of a Mr Mazanetz, the secretary of the defendant, in which he deposes to matters which on the argument advanced by the defendant would support the view that the factual enquiry which will be necessary in order to address the issues raised on the pleadings, would have most to do with Western Australian, and in particular would require evidence to be given by a number of witnesses who reside in that State. 9. In an answering affidavit, the plaintiff has referred to a number of considerations local to South Australia, including the presence in this State of a number of witnesses whom he says it would be necessary for the plaintiff to call. 10. As I put to counsel during the course of argument, in my opinion both affidavits suffer from an exaggerated statement of the number of witnesses which it was suggested it might be necessary to call from one jurisdiction or the other. I cannot believe that the presentation of the case on either side could possibly involve the calling of so many witnesses as is suggest in either of the affidavits. 11. With respect to the affidavit of Mr Mazanetz there is another factor, that is the suggestion he makes that the defendant's solicitors in Western Australia wish to engage the services of a particular accounting firm in Western Australia to investigate the solvency of Heading at the relevant time. Apparently, that firm of accountants is retained with respect to a number of other actions being conducted by that firm of solicitors. In my opinion that assertion must be regarded as a colourable attempt to contrive a situation suggestive of a greater local content in Western Australia than the objective facts would support. 12. The plain fact of the matter is that there are many firms of accountants in this State competent and capable of investigating the solvency of Heading at the relevant time, and there would not seem to be the slightest reason why accountants in Western Australia should be engaged for that purpose. 13. I have given careful consideration to both affidavits and to the submissions of counsel. In my opinion the balance of convenience would favour the view that the action should stay where it is, and that it should be brought to trial in this Court. It is true that it will be necessary for one or more witnesses to attend from Western Australia, but wherever the action is heard it will be necessary for witnesses on one side or the other to travel between the States. The books and records of Heading are no doubt in this State and are more conveniently examined and produced here. It seems to me that a proper attention to pre-trial procedures, such as interrogation and inspection, requests to admit documents and the like, should in a case such as this reduce the number of witnesses whom it might be thought necessary to call to give oral evidence. An intelligent application to pre-trial procedures should minimise the cost to both parties of the trial. 14. The application is refused.