Jones v Waterdale Enterprises Pty Ltd - [2023] WASC 159

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   JONES -v- WATERDALE ENTERPRISES PTY LTD [2023] WASC 159
CORAM:   SEAWARD J
HEARD:   1 MAY 2023
DELIVERED          :   19 MAY 2023
FILE NO/S:   CIV 2326 of 2022
BETWEEN:   TREVOR JONES
Plaintiff
AND
WATERDALE ENTERPRISES PTY LTD
Defendant
WATERDALE ENTERPRISES PTY LTD
Plaintiff by counterclaim
TREVOR JONES
Defendant by counterclaim

Catchwords:

Procedure - Application to transfer action to District Court - Whether claim is a 'personal action' within s 50(1)(a) of the District Court of Western Australia Act 1969 - Whether equitable relief is within the District Court's jurisdiction - Uncertainty as to the value of claim - Exercise of discretion to transfer

Legislation:

District Court of Western Australia Act 1969 (WA), s 50(1)(a), s 55
Supreme Court Act 1935 (WA), s 17

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff	:	G M Abbott
Defendant	:	F A Robertson
Plaintiff by counterclaim	:	F A Robertson
Defendant by counterclaim	:	G M Abbott

Solicitors:

Plaintiff	:	Fletcher Law
Defendant	:	HHG Legal Group
Plaintiff by counterclaim	:	HHG Legal Group
Defendant by counterclaim	:	Fletcher Law

Case(s) referred to in decision(s):

Barboutis v The Kart Centre Pty Ltd [No 2] [2020] WASCA 41
Boden v Chen [2013] WASC 308
Chantec Pty Ltd v Comgroup Supplies Pty Ltd [2001] WASCA 238
Chianti Pty Ltd v Leume Pty Ltd (2007) 35 WAR 488
Commercial Developments Pty Ltd (t/as Don Rogers Motors Pty Ltd) v Mercantile Mutual Insurance (Workers' Compensation) Ltd (1991) 5 WAR 208
Douglas v Australian Asbestos Pty Ltd [2009] WASC 70
Healthy Nut Café Pty Ltd v Finn [2018] WADC 118
Love v KWS Capital Pty Ltd [2013] WASC 466
Manitowoq Platinum Pty Ltd v WFI Insurance Ltd [2017] WADC 32
Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2017] WASCA 76
The Lunching Pad Pty Ltd v Minister for Culture and the Arts [2001] WASC 299
Vale v TMH Haulage Pty Ltd (1993) 31 NSWLR 702
Worthington v Worthington [No 2] [2014] WASC 448

SEAWARD J:

Introduction

The plaintiff in this matter was, up until he retired on 16 February 2022, a finance broker. In his capacity as a finance broker, the plaintiff earned commissions that were paid upon the approval of the loan applications submitted by the plaintiff on behalf of potential borrowers to various financiers. The plaintiff also earned further commissions paid on an on‑going basis in relation to those approved loans, until such time as the loans were completely repaid or re‑financed (known as Trailing Commissions).
In the course of his business as a finance broker, the plaintiff entered into an agreement with the defendant, whereby the defendant provided 'bulking services' in the form of the defendant facilitating the submission of loan applications and the collection and distribution of the various commissions earned by the plaintiff in respect to approved loans.
Following the retirement of the plaintiff in February 2022, a dispute has arisen as between the plaintiff and the defendant as to the extent to which the defendant is required to continue to remit collected Trailing Commissions (and some fees) to the plaintiff.
On 15 December 2022, the plaintiff commenced an action in this court by writ of summons endorsed with a statement of claim in which the plaintiff seeks several different types of relief, including declarations as to his rights under the agreement, the payment of amounts collected but not remitted to date and an injunction requiring the defendant to remit the relevant commissions into the future as and when they become due and payable.
The defendant filed an appearance on 13 January 2023, and on 31 January 2023 made an application that the action be transferred to the District Court pursuant to s 17 of the Supreme Court Act 1935 (WA) (SCt Act). The application is opposed by the plaintiff.
For the reasons set out below, the defendant's application is dismissed.

Pleadings

For the purposes of this application, it is only necessary to provide an overview of the pleadings and the plaintiff's case.
Relevantly, the plaintiff pleads that he was a finance broker between about 2002 and when he retired on 16 February 2022 (Broking Period).[1] During the Broking Period, the plaintiff arranged for various potential borrowers to submit loan applications to certain financiers, whereby he earned two types of commissions for any approved loans - an upfront commission paid upon the approval of the loan and further commissions paid on an on‑going basis until the loans were completely repaid (Trailing Commissions).[2]
[1] Statement of Claim [1].
[2] Statement of Claim [4].
The plaintiff pleads that he and the defendant were parties to a written agreement (Sub‑Originators Agreement) pursuant to which the defendant provided bulking services to the plaintiff in the form of the defendant facilitating the submission of loan applications and the collection and distribution of the various commissions earned by the plaintiff in relation to all approved loans.[3] The plaintiff pleads that pursuant to cl 5.1 of the Sub‑Originators Agreement the defendant would pay commissions to the plaintiff within five working days from the end of each month, as a result of commissions collected in relation to the completed and approved loans submitted by the plaintiff in the previous calendar month.[4] In relation to the Trailing Commissions, the Sub‑Originators Agreement required the defendant to remit to the plaintiff 75% of the Trailing Commissions collected.[5]
[3] Statement of claim [5].
[4] Statement of claim [5].
[5] Statement of claim [5].

In addition, to facilitate the collection of commissions, the defendant entered into an agreement with Finance and Systems Technology Pty Ltd (FAST), a third‑party service provider which also provided bulking services. Pursuant to that agreement, FAST collected commissions that would otherwise have been collected by the defendant, in return for the payment of fee by the defendant.[6]
[6] Statement of claim [7].

The plaintiff claims that the defendant has failed to continue to pay to the plaintiff the Trailing Commissions that were paid during the Broking Period and collected by the defendant directly or via the agreement with FAST and has refused to pay any amounts into the future.[7] The plaintiff pleads that under the Sub‑Originators Agreement there is an obligation on the defendant to continue to pay to the plaintiff all Trailing Commissions that are collected until all the approved loans have been repaid in full and the defendant has breached the Sub‑Originators Agreement in failing to pay those amounts.[8] Further or in the alternative, the plaintiff claims relief based on the defendant being unjustly enriched.[9]
[7] Statement of claim [15].
[8] Statement of claim [15] - [16].
[9] Statement of claim [18].
The plaintiff also claims that during the Broking Period, the defendant paid fees to FAST using the commissions that FAST remitted to the defendant, and the plaintiff pleads that the defendant was not entitled to deduct those fees in the manner it did.[10]
[10] Statement of claim [20].
The plaintiff claims the following relief as against the defendant:[11]
[11] Statement of claim - prayer for relief.
A. A declaration that the Sub-Originators Agreement applies to the Continuing Trail Commissions and to the Continuing Remitted Trail Commissions;
B. A declaration that the defendant must pay to the plaintiff the Payable Amounts as and when the Remitted Amounts are received by the defendant, or pursuant to the PFB/FAST Agreements, by FAST;
C. An order that the defendant pay to the plaintiff the Payable Amount with respect to each Remittal Amount that the defendant has received or that FAST has, pursuant to PFB/FAST Agreement, received as at the date of the order;
D.A permanent injunction compelling the defendant to pay to the plaintiff the Payable Amount with respect to each Remittal Amount as soon as the Remittal Amount is received by the defendant or, pursuant to the PFB/FAST Agreements, by FAST;
E.An order that the defendant pay to the plaintiff the total of the FAST Fee Deductions;
F.Costs;
G. Interest pursuant to the Supreme Court Act 1935; and
H. Further or other relief.
The defendant joins issue with the plaintiff on many of the matters pleaded in the statement of claim.
Whilst the defendant accepts that the parties entered into the Sub‑Originators Agreement (and that the defendant entered into an agreement with FAST),[12] the defendant pleads that in providing notice of his intention to retire, the plaintiff breached the Sub‑Originators Agreement.[13] Alternatively, the defendant pleads that in retiring the plaintiff has indicated an intention to repudiate the Sub‑Originators Agreement and the defendant has accepted that repudiation and terminated the Sub‑Originators Agreement.[14] The defendant also pleads a further and alternative basis upon which it claims the defendant has terminated the Sub‑Originators Agreement for cause, but the details are not relevant to the resolution of this application.
[12] Defence and counterclaim [5].
[13] Defence and counterclaim [7].
[14] Defence and counterclaim [12].
The defendant denies that it is required to pay to the plaintiff any Trailing Commissions collected (either by the defendant directly or via FAST). The defendant also denies that it is required to pay the plaintiff the FAST fees as claimed.[15]
[15] Defence and counterclaim [12].
The defendant also counterclaims against the plaintiff that upon termination of the Sub‑Originators Agreement, the plaintiff was obliged to return to the defendant all documents, reports, data, specifications or other documents or things relating to the business and despite demand, the plaintiff has not returned all such documents which has caused the defendant to suffer loss and damage.[16] The defendant claims damages for this breach.[17]
[16] Defence and counterclaim [29], [32].
[17] Defence and counterclaim p 6 [2].
The plaintiff has filed a defence to the counterclaim denying the facts pleaded and the relief claimed.[18] Both parties have filed replies to the respective defences, the details of which do not need to be summarised here other than to note that the various facts and claims are denied and each party joins issue with the other.
[18] Reply to defence and counterclaim.

Legal Principles

Section 17(2) of the SCt Act provides as follows:
If an action or matter in the Court –
(a) is within a lower court's jurisdiction, or
(b) becomes within a lower court's jurisdiction because the claim in the action or matter is reduced by a payment into court, an admitted set-off, a judgment on part of the claim, or otherwise; or
(c) becomes within a lower court's jurisdiction because the jurisdiction of the lower court is increased,
the Court may order that the action or matter be transferred to the lower court.
The decision to transfer a matter to a lower court is ultimately a matter of discretion, however it is first necessary to establish that action is within the lower court's jurisdiction.
Pursuant to s 50(1) of the District Court Act 1969 (WA) (DCt Act), the District Court has, relevantly, jurisdiction in relation to:
(a) all personal actions, other than those of the kind referred to in subsection (2), where the amount, value or damages sought to be recovered is not more than the jurisdictional limit, whether on the original claim or demand or a balance after allowing payment on account, or the amount of any set off admitted by the plaintiff;
…
(bb) an action for specific performance of or for the rectifying, delivering up, or cancelling of any agreement whatever, where the amount in dispute or the value of the property affected is not more than the jurisdictional limit;
The District Court does not have jurisdiction in relation to equitable claims over and above the specific types of actions detailed in s 50 of the DCt Act as principal relief. [19] However, if a matter falls within the scope of s 50 of the DCt Act, the court has jurisdiction to exercise the following ancillary equitable relief pursuant to s 55:[20]
The Court or a District Court judge has, as regards any action or matter within its or his jurisdiction for the time being, power —
(a) to grant, and shall grant, in the action or matter such relief, redress or remedy, or combination of remedies, either absolute or conditional; and
(b) to make any order that could be made in regard to any action or matter, and shall in each such action or matter give such and the like effect to every ground of defence or counterclaim equitable or legal,
in a full and ample manner as might and ought to be done in the like case by the Supreme Court or a judge thereof.
[19] See Commercial Developments Pty Ltd (t/as Don Rogers Motors Pty Ltd) v Mercantile Mutual Insurance (Workers' Compensation) Ltd (1991) 5 WAR 208, 217.
[20] District Court Act 1969 (WA), s 55.
Ancillary relief is relief subservient to principal relief in the sense that it serves and assists the principal relief and makes it more effective.[21]
[21] Commercial Developments Pty Ltd (t/as Don Rogers Motors Pty Ltd) v Mercantile Mutual Insurance (Workers' Compensation) Ltd (1991) 5 WAR 208, 219; The Lunching Pad Pty Ltd v Minister for Culture and the Arts [2001] WASC 299 [14] ‑ [18]; Healthy Nut Café Pty Ltd v Finn [2018] WADC 118 [31] ‑ [33].
In Commercial Developments Pty Ltd (t/as Don Rogers Motors Pty Ltd) v Mercantile Mutual Insurance (Workers' Compensation) Ltd,[22] Malcolm CJ held that where a declaration is sought without any consequential relief, the jurisdiction to grant the declaration cannot be described as ancillary. In this decision, which was prior to the introduction of s 50(1)(aa) of the DCt Act, the court held that an action or other proceeding claiming a declaration of entitlement to an indemnity involved a claim for principal rather than ancillary relief as it was not a claim by which any amount of money was sought to be recovered.[23]
[22] Commercial Developments Pty Ltd (t/as Don Rogers Motors Pty Ltd) v Mercantile Mutual Insurance (Workers' Compensation) Ltd (1991) 5 WAR 208, 218 ‑ 219.
[23] Commercial Developments Pty Ltd (t/as Don Rogers Motors Pty Ltd) v Mercantile Mutual Insurance (Workers' Compensation) Ltd (1991) 5 WAR 208, 219.
In Healthy Nut Café v Finn,[24] Gillan DCJ considered an action where the plaintiff claimed damages for an alleged breach of a franchise agreement. In the defence and counterclaim, the defendant/plaintiff by counterclaim sought a declaration that the terms of the franchise agreement were unenforceable by the plaintiff, and then further relief under the Australian Consumer Law (including further declarations, an indemnity and damages). Gillan DCJ held that the counterclaim was primarily a claim for a declaration that the terms of the franchise agreement were unenforceable by the plaintiff,[25] with all remaining relief (including the damages claim) being dependent on that declaration.[26] Gillan DCJ held that in that sense the remaining relief could not be said to be ancillary to the damages claim. Further, Gillan DCJ held that some of the declarations were in the form of declarations supported by injunctions in the nature of a quia timet relief and also not ancillary to the damages claim.[27]
[24] Healthy Nut Café Pty Ltd v Finn [2018] WADC 118.
[25] Healthy Nut Café Pty Ltd v Finn [2018] WADC 118 [35].
[26] Healthy Nut Café Pty Ltd v Finn [2018] WADC 118 [41].
[27] Healthy Nut Café Pty Ltd v Finn [2018] WADC 118 [42].
In terms of the exercise of the discretion, in Douglas v Australian Asbestos Pty Ltd Le Miere J observed as follows:[28]
A plaintiff may commence a proceeding in the court of his choice if the proceeding is within the jurisdiction of the court. However, s 17 of the Supreme Court Act confers on the court a discretion to transfer the proceeding to the District Court if the proceeding is within the jurisdiction of that court. The court should exercise that discretion if it is in the public interest to do so and the interests of justice do not require that the proceeding remain in this court.
[28] Douglas v Australian Asbestos Pty Ltd [2009] WASC 70 [4].
Factors which have been held to be relevant to the exercise of the discretion in other cases include the complexity and difficulty of the case, the resources of the competing courts, any policies of the relevant courts, presence of related actions and special expertise of one court. In this regard see Love v KWS Capital Pty Ltd,[29] Boden v Chen,[30] Douglas v Australian Asbestos Pty Ltd,[31] Worthington v Worthington.[32]
[29] Love v KWS Capital Pty Ltd [2013] WASC 466 [7].
[30] Boden v Chen [2013] WASC 308 [5] - [6] and [18] - [20].
[31] Douglas v Australian Asbestos Pty Ltd [2009] WASC 70 [5] ‑ [6].
[32] Worthington v Worthington [No 2] [2014] WASC 448 [10].

Disposition

Jurisdiction of District Court

As the party applying to transfer the matter to the District Court, the defendant bears the onus of establishing on the balance of probabilities that the District Court has jurisdiction in relation to the plaintiff's action.

Cause of action

The parties differ in relation to their characterisation of the plaintiff's claim.
The defendant submits that the plaintiff's claim is one for damages arising out of an alleged breach of the Sub-Originators Agreement, with the damages claim having two aspects (first an alleged failure to pay Trailing Commissions and secondly in relation to deductions made from amounts payable to the plaintiff).[33] Alternatively, the defendant submits that the plaintiff's claim is properly one for specific performance of the Sub‑Originators Agreement.[34]
[33] Defendant's submissions [2].
[34] ts 27.
To the extent that the plaintiff also seeks declaratory relief, the defendant submits that the declarations really go to findings of fact as to the proper construction of the Sub‑Originators Agreement. The defendant submits that the question of the proper construction of a contract is a common element in a damages case, and merely seeking a declaration does not elevate this matter to a claim which is primarily for equitable relief.[35] The defendant also submits that the District Court has the power to make the declarations and grant the injunctions as part of its jurisdiction to grant ancillary equitable relief.[36]
[35] ts 12.
[36] ts 12.
The plaintiff submits that he seeks, as his primary relief, declarations about the meaning of the Sub‑Originators Agreement and its application to the ongoing collection and remittal of Trailing Commissions.[37] The plaintiff then seeks consequential orders for the payment of Trailing Commissions which have been collected up until the date of judgment, and a permanent injunction to ensure that the defendant remits the Trailing Commissions to the plaintiff going forward.[38] The plaintiff submits that the declaratory and injunctive relief address the critical matters of the management and payment of prospective Trailing Commissions and form independent elements of the relief sought.[39] The plaintiff submits that the construction of the Sub‑Originators Agreement is at the heart of this case and this is not a case where the issue is simply about whether a debt arises under that agreement or the amount of a debt.[40]
[37] Plaintiff's submissions [21]; ts 15 - 16.
[38] Plaintiff's submissions [21]; ts 15 - 16.
[39] Plaintiff's submissions [16].
[40] Plaintiff's submissions [20].
The plaintiff says that ancillary to the declarations, he seeks an order that the amounts accrued to the date of the order be paid to the plaintiff, and a permanent injunction requiring the continued payment of the collected Trailing Commissions.[41] The total amount payable has not been quantified in the statement of claim, and the plaintiff says that this is because he does not know the commission rates (these being known by the bulking agencies). Further, the precise amount owed each month will depend on the number and value of the loans at that point in time. Therefore, whilst the precise monthly amounts will crystalise each month and will be able to be calculated, to save the plaintiff having to sue on a debt owed each month in the local court, the plaintiff seeks declaratory relief and a prospective injunction.[42] The plaintiff also submits that his claim is not for damages or specific performance.[43]
[41] Plaintiff's submissions [15]. See also the prayer for relief.
[42] Plaintiff's submissions [17]; ts 14 - 17.
[43] ts 16, 24.

The question of the characterisation of the plaintiff's claim is relevant to the question of whether the District Court has jurisdiction at all in relation to this matter.
Whilst the plaintiff seeks a number of different orders in the prayer for relief, I am of the view that the plaintiff's action is best characterised as primarily a claim for equitable relief in the form of declarations. This can be seen from the first two paragraphs of the prayer for relief.
I accept that an element of the plaintiff's claim consists of a claim for money owed under the Sub‑Originators Agreement (paragraphs C and E of the prayer for relief). To the extent this relief relates to payments the plaintiff claims ought to have been made to him between February 2022 and the date of issue of the Writ (and then as at the date of judgment), I consider that action is best described as one for an action in debt for a series of quantifiable monthly debts being due and payable under the Sub‑Originators Agreement, or alternatively a claim for unjust enrichment. Both actions fall within the scope of a personal action described in s 50(1)(a) of the DCt Act[44] (subject to falling within the monetary jurisdictional limit). Even if this aspect of the action is characterised as an action for damages for breach of contract, it will also fall within the scope of a personal action described in s 50(1)(a) of the DCt Act (subject to falling within the monetary jurisdictional limit). The position is the same in relation to the plaintiff's claim for repayment of the FAST fees which he alleges were withheld contrary to the terms of the contract.
[44] See the definitions and explanations given in Commercial Developments Pty Ltd (t/as Don Rogers Motors Pty Ltd) v Mercantile Mutual Insurance (Workers' Compensation) Ltd (1991) 5 WAR 208, 219 ‑ 220; Chianti Pty Ltd v Leume Pty Ltd (2007) 35 WAR 488 [55] ‑ [56] and [78]; Vale v TMH Haulage Pty Ltd (1993) 31 NSWLR 702, 707.
I do not consider the plaintiff's cause of action is best characterised as one of specific performance as the Sub‑Originators Agreement is a contract for the payment of money. It is therefore difficult to see how damages would not be an adequate remedy for any breach and specific performance is unlikely to be ordered.[45]
[45] Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2017] WASCA 76 [132] ‑ [137] and the cases cited therein.
However, the real question is whether it can be said that the equitable relief sought falls within the District Court's jurisdiction on the basis that it is ancillary to the plaintiff's money claims in relation to the Trailing Commissions and the FAST fees, and therefore is relief which the District Court can grant pursuant to s 55 of the DCt Act.
It is not clear to me that it is. When the Statement of Claim is read as a whole, I consider that the plaintiff is primarily seeking a declaration as to his rights under the Sub‑Originators Agreement. Prayers for relief A and B seek these declarations. The plaintiff then goes on to seek consequential relief to give effect to the declarations (if in the plaintiff's favour) which will ensure the payment of the monthly amounts owed both in the past (prayer C and prayer E) and into the future (prayer D). It is not clear that the declarations give effect to or assist the debt claims.
Prayer D seeks a mandatory injunction. It is not clear to me that this injunction can be described as ancillary to the claims in debt. It is relief in the form of a mandatory injunction which stands separately from the actions in debt and instead gives effect to and assists the declarations in that it ensures payment of the amounts owing into the future in anticipation of a failure of the defendant to remit the payments.
Accordingly, I am not satisfied that the equitable relief sought by the plaintiff in the statement of claim falls within the jurisdiction of the District Court in that it cannot be described as ancillary to the plaintiff's claims in debt or as relief consequential to the plaintiff's claims in debt.

Monetary limit

Even if I am wrong as to the appropriate characterisation of the plaintiff's claim, and it is primarily a claim for a personal action falling within s 50(1)(a) of the DCt Act and a claim for ancillary equitable relief falling within s 55 of the DCt Act, it is still necessary to determine whether the plaintiff's claim falls within the monetary jurisdictional limit of $750,000.
The parties have each filed affidavit evidence in relation to the quantification of the plaintiff's claim.
The defendant relies on the affidavits of Terrance David Boag (a director of the defendant) sworn 31 January 2023 and 12 April 2023. The plaintiff relies on his affidavits sworn 22 March 2023 and 27 April 2023.
That affidavit evidence conflicts in numerous respects. None of the parties sought to cross examine the deponents of the affidavits. Accordingly, to the extent that allegations made in the defendant's affidavits were credibly denied in the opposing affidavits, I am required to ignore the disputed allegations.[46]
[46] Barboutis v The Kart Centre Pty Ltd [No 2] [2020] WASCA 41 [7].
It is not in dispute that calculation of the value of the Trailing Commissions will depend on the number of loans that exist as at each relevant monthly calculation date, the value of those loans and the rate of the commission. It is also not in dispute that the value of the Trailing Commission will decrease over time. Discovery has not yet occurred providing all of the information necessary to calculate those figures for the period of time between when the plaintiff retired and the present. Accordingly, it is not possible to precisely quantify the amount of the plaintiff's claim at this point in time, both in relation to the amounts claimed up until the date of issue of the writ, and into the future.
To address this point, the defendant has put on affidavit evidence in which it attempts to provide an estimate of the total value of the plaintiff's claim. This estimate is based on a comparison of the total number of loans held by the plaintiff as at the date of his retirement and the total number held as at February 2023.[47]
[47] First affidavit of Terrance Boag sworn on 31 January 2023 [26], updated in the responsive affidavit of Terrance Boag sworn 12 April 2023 [7] ‑ [9].
Mr Boag then deposes that the total monthly Trailing Commission the plaintiff would be owed as at March 2023 was $8,294.55, being a drop of 28% from the March 2022 monthly amount.[48]
[48] Responsive affidavit of Terrance Boag [11].
Mr Boag then annexes an analysis undertaken by his accountant which estimates that the total Trailing Commissions payable to the plaintiff will have reduced to zero by June 2026 and that total amount payable in Trailing Commissions over three years would not exceed $168,000.[49] Combined with the FAST fees, Mr Boag deposes that the total value of the plaintiff's claim could not possibly be more than a few hundred thousand dollars.[50]
[49] Responsive affidavit of Terrance Boag [12] – [14] and annexure TDB13.
[50] Affidavit of Terrance Boag [28].
Mr Boag also attaches a newspaper article suggesting that the average time before a loan is refinanced is three years.[51]
[51] Responsive affidavit of Terrance Boag [15] and annexure TDB14.
Finally, the defendant relies on correspondence exchanged between the parties which it submits demonstrates a concession by the plaintiff that the amount of his claim falls within the District Court's jurisdiction.[52]
[52] ts 8 ‑ 10.
However, in his affidavits the plaintiff disputes several aspects of the defendant's evidence. The plaintiff disputes the total amount of Trailing Commissions that were being received by the plaintiff as at the date of his retirement;[53] the total number of loans held by the plaintiff as at the date of his retirement;[54] the total number of loans held by the plaintiff as at February 2023;[55] the entire methodology used by the plaintiff to calculate when the total commissions payable to the plaintiff will have reduced to zero;[56] the estimates regarding the average number of years before a loan is refinanced (and instead says it is 9.3 years for the types of loans held by his clients);[57] and the defendant's estimate of the total potential value of his claim.[58]
[53] Affidavit of the plaintiff sworn 22 March 2023 [6].
[54] Affidavit of the plaintiff [6].
[55] Responsive affidavit of the plaintiff sworn 27 April 2023 [2], [3.1] and attachment TJ1.
[56] Responsive affidavit of the plaintiff [3.2] ‑ [5].
[57] Affidavit of the plaintiff [9]; Responsive affidavit of the plaintiff [6] ‑ [8].
[58] Responsive affidavit of the plaintiff [9] ‑ [10].
The plaintiff's evidence is that based on the information provided in the various affidavits and his statement of claim, he estimates that the amount of his claim owing as at February 2023 is not less than $215,932. Further, that it is therefore entirely probable that within the lifespan of the balance of his loan portfolio the amount he will be owed by way of Trailing Commissions will exceed $750,000.[59] The plaintiff's evidence is that it will likely reach this amount in approximately seven years.[60]
[59] Responsive affidavit of the plaintiff [10].
[60] Affidavit of the plaintiff [10].
The plaintiff also denies he has made any concession as to the value of his claim in correspondence.[61]
[61] ts 10.
I consider these conflicts all to be credible, and it is not possible to resolve the question of quantum from the affidavit evidence. Accordingly, I am left in the position where the total value of the plaintiff's claim is unclear. On the defendant's estimation/analysis it is for $200,000 at best. On the plaintiff's estimation/analysis it will reach the District Court's monetary threshold in approximately seven years. However, both parties have been including in their calculation the value of Trailing Commissions some of which might be collected after the date of judgment. This further adds to the uncertainty as to the value of the plaintiff's claim.
Given the uncertainty, I am not able to be certain that the matter falls within the jurisdiction of the District Court, but I am also unable to be certain that it does not.
The plaintiff relies on the decision of Chantec Pty Ltd v Comgroup Supplies Pty Ltd[62] as authority for the proposition that if there is uncertainty as to the value of the claim, it should be retained in the Supreme Court.[63] I have had regard to this uncertainty when considering the exercise of my discretion.

Exercise of Discretion

[62] Chantec Pty Ltd v Comgroup Supplies Pty Ltd [2001] WASCA 238.

[63] Plaintiff's submissions [3].

Even if the matter were to fall within the District Court's jurisdiction, I would not exercise my discretion to transfer the matter to the District Court for the following reasons.
First, there is a degree of uncertainty as to the appropriate characterisation of the plaintiff's claim. Accordingly, if the matter is transferred to the District Court, and an alternative view is taken of the nature of the plaintiff's claim, the parties will then need to apply to transfer the matter back to the Supreme Court. This would be a waste of time and resources for both the courts and the parties. Accordingly, the element of uncertainty is a factor in favour of keeping the matter in the Supreme Court.
Secondly, there is also a degree of uncertainty as to the quantum of the plaintiff's claim. Again, if the matter is transferred to the District Court and the amount of quantum of the plaintiff's claim is clarified following discovery or at trial to be above the jurisdictional limit, the parties will need to apply to transfer the matter back to the Supreme Court which is not desirable. See Chantec Pty Ltd v Comgroup Supplies Pty Ltd in this regard.[64]
[64] Chantec Pty Ltd v Comgroup Supplies Pty Ltd [2001] WASCA 238.
I note that the defendant submits that this can be remedied in the form of a condition being placed on the transfer that the defendant sign a memorandum pursuant to s 50(1)(e) of the DCt Act, that the District Court has power to hear and determine the matter if the value sought to be recovered exceeds the District Court's threshold (which counsel for the defendant was instructed the defendant would sign).[65] It is not clear to me that I can place conditions on the transfer of a matter to the District Court. Further, the mechanism referred to by the defendant is one where the parties mutually agree to conferring jurisdiction on the District Court,[66] and the plaintiff does not agree to this course of action.[67]
[65] ts 9.
[66] Manitowoq Platinum Pty Ltd v WFI Insurance Ltd [2017] WADC 32 [62].
[67] ts 18.
Thirdly, it is not clear to me that the defendant suffers any real prejudice in the matter remaining in the Supreme Court. The relevant costs scales are the same and there is only a modest difference in the filing fee for a counterclaim between the two courts.[68]
[68] Being $3,265 in the Supreme Court for a corporation compared to $2,175 in the District Court.
Fourthly, whilst I accept that the defendant made its application for transfer promptly, the matter has progressed since the application was made and the pleadings have now closed. Therefore, there is an element of efficiency in keeping the matter in this court and allowing it to progress as it has been.
Fifthly, my attention has not been drawn to any relevant policy statements of the type referred to in Boden v Chen[69] regarding the position of the Supreme Court in terms of which matters will (or will not) be transferred to the District Court.
[69] Boden v Chen [2013] WASC 308 [5] ‑ [6].
Sixthly, I do not consider this is a case where it can be said that there is such a disparity in the resources of the various courts so as to support the matter being transferred to the District Court on that basis.
Accordingly, in all the circumstances of this specific case, I consider that it is in the interests of justice for the matter to remain in the Supreme Court.

Conclusion

For the reasons set out above, I consider that the plaintiff's action should remain in the Supreme Court and not be transferred to the District Court and the defendant's chamber summons is therefore dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AA
Associate to the Judge
19 MAY 2023