Lambert v Twigg Investments Pty Limited ACN 124 880 799 as Trustee for the Twigg Investments Trust
[2018] NSWSC 1748
•16 November 2018
Supreme Court
New South Wales
Medium Neutral Citation: Lambert v Twigg Investments Pty Limited ACN 124 880 799 as Trustee for the Twigg Investments Trust [2018] NSWSC 1748 Hearing dates: 14 November 2018 Decision date: 16 November 2018 Jurisdiction: Equity - Commercial List Before: Ball J Decision: The defendant’s notice of motion filed on 24 August 2018 be dismissed with costs.
Catchwords: CIVIL PROCEDURE – Cross-vesting – Transfer to other Supreme Court – Relevant factors Legislation Cited: Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW)
Limitation of Actions Act 1958 (Vic)Cases Cited: Taurus Funds Management Pty Ltd v Aurox Resources Ltd [2010] NSWSC 1223 Category: Procedural and other rulings Parties: Frances Lambert (First Plaintiff)
Elizabeth Flintoft (Second Plaintiff)
Diane Twigg (Third Plaintiff)
Twigg Investments Pty Limited ACN 124 880 799 as Trustee for the Twigg Investments Trust (Defendant)Representation: Counsel:
Solicitors:
M Elliott SC with D Barlin (Plaintiffs)
JC Giles SC with A Kaufmann (Defendant)
Roberts & Partners Lawyers (Plaintiffs)
Radcliffs (Defendant)
File Number(s): 2018/212326 Publication restriction: None
Judgment
Introduction
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By a notice of motion filed on 24 August 2018, the defendant, Twigg Investments Pty Limited, seeks an order pursuant to s 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) (the Cross-Vesting Act) transferring these proceedings to the Supreme Court of Victoria.
Background
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The proceedings were commenced on 10 July 2018, originally in the General List. They were transferred to this list by order made on 9 November 2018.
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The proceedings concern a discretionary family trust. The plaintiffs are each beneficiaries of the trust. The first plaintiff, Mrs Frances Lambert, and the second plaintiff, Mrs Elizabeth Flintoft, are sisters. The third plaintiff, Mrs Diane Twigg, is their mother. The defendant is the trustee of the trust, the sole director of which is Mr Maxwell Twigg, who is the brother of Mrs Lambert and Mrs Flintoft. Mrs Lambert resides in New South Wales. Mrs Flintoft and Mrs Twigg reside in Victoria. The evidence is that Mr Twigg also resides in Victoria, although it appears that he spends much of his time in Queensland and he has retained solicitors there to act on behalf of the defendant. The defendant’s registered office and principal place of business is in Victoria. The trust deed is governed by the laws of Victoria.
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Originally, the plaintiffs sought access to the records of the trust. The relief they claim was amended on 13 July 2018 to include a claim for an injunction restraining the defendant from diminishing the assets of the trust. The relief they claim was amended again on 14 September 2018 to claim unpaid beneficial entitlements said to be owing to plaintiffs which exceed $2,000,000 each.
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It is apparent from the defence filed by the defendant that the real issue in the case is whether the plaintiffs reached an agreement with the defendant in early 2009, a term of which was that they would immediately give back their entitlements to the amounts they claim and whether any claim to those entitlements is now time barred.
Relevant legal principles
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Section 5(2)(b)(iii) of the Cross-Vesting Act relevantly provides that if it appears to the Court that it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of another State or of a Territory, then the Court shall transfer the relevant proceeding to that other court.
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The principles governing the exercise of the power conferred by s 5(2)(b)(iii) are set out by Einstein J in Taurus Funds Management Pty Ltd v Aurox Resources Ltd [2010] NSWSC 1223 at [4]-[6], where his Honour said:
4 This [that is, the decision whether to transfer] requires a “management decision as to which Court, in the pursuit of the interests of justice, is the more appropriate to hear and determine the substantive dispute”: see Bankinvest AG v Seabrook & Ors (1988) 90 ALR 407 at 409, James Hardie & Coy Pty Limited v Barry (2000) 50 NSWLR 357 at [87] per Mason P, BHP Billiton Limited v Schultz (2004) 221 CLR 400 at 421 [14], 434 [63].
5 An applicant for a transfer bears no burden of persuasion or onus of proof: BHP v Schultz (supra) at 437 [71]; and no particular significance attends the plaintiff’s original choice of forum: see BHP v Schultz (supra) at 425 [26]-[27], 439 [77].
6 The interests of justice concern those of both parties, and rather than the selection of the most advantageous, or least disadvantageous, forum for one of them, the “interests of justice” are to be judged by more objective factors, such as to facilitate identification of the “natural forum”, in which objectively judged it might be expected that the dispute would fall to be resolved, with its concomitant juridical advantages and disadvantages for each party, whatever they may be: see Valceski v Valceski (2007) 70 NSWLR 36 at 60 [69] per Brereton J.
The defendant’s submissions
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The defendant submits that the interests of justice favour a transfer to the Supreme Court of Victoria. It points to the fact that the proceedings will be determined in accordance with Victorian law, including the Limitationof Actions Act 1958 (Vic). The relevant documents are likely to be located in Victoria and most of the likely witnesses are also resident there, including Mr Twigg, two of the three plaintiffs and a partner and a former partner of Pitcher Partners, the trust’s accountants. The only matters that point in favour of the case remaining in New South Wales are that one of the plaintiffs is resident here and the plaintiffs have chosen to retain New South Wales lawyers. However, in the defendant’s submissions, those matters cannot outweigh the factors it points to.
Decision
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I have concluded that it would not be in the interests of justice to transfer these proceedings.
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The case is not complicated and in the ordinary course of events, it is likely to be heard in the first half of next year if it remains in New South Wales.
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If a transfer order were made, that would inevitably cause some delay while the file was transferred and allocated to the appropriate list in the Supreme Court of Victoria and the parties retained lawyers in Victoria. Inevitably, the transfer would also bring about wasted and most likely additional costs. It would not be practical to conduct the case in the Supreme Court of Victoria without any local representation. Consequently, the plaintiffs would be required to retain lawyers in Victoria and make a decision whether they would use those lawyers exclusively, throwing away money they had invested in lawyers they had in Sydney, or incurring additional costs in having two sets of lawyers and flying the lawyers they had retained in Sydney to Melbourne.
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The evidence is that the defendant is likely to continue to use its lawyers in Queensland. It accepts that, if the matter is transferred, it will have to retain new lawyers in Melbourne, with the result that some of the costs it has incurred on lawyers in Sydney will be thrown away.
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In my opinion, in the context of this case, those are significant factors in favour of not transferring the proceedings. Although the application for transfer was brought promptly, it was not heard until November 2018 and it is apparent that in the meantime the parties have invested substantial time and money in progressing the case in New South Wales. Having regard to the nature of the case, that already represents a substantial proportion of the total costs and time the case is likely to involve.
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Little weight can be placed on the fact that the substantive issues in the case will be governed by the laws of Victoria. It is not suggested that they are relevantly any different from the laws of New South Wales.
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In circumstances where the defendant chose to use lawyers in Queensland and Mr Twigg spends much of his time there, little weight can be placed on the fact that he is a resident of Victoria.
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In addition, little weight can be put on the fact that two of the three plaintiffs are resident in Victoria. In my opinion, it is reasonable to conclude from the fact that the plaintiffs chose to commence the case in New South Wales that, on balance, it is more convenient for them for the case to be heard in Sydney.
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It is not suggested that the documents to be discovered in this matter are likely to be voluminous or that it will be necessary to produce original documents. The cost of transporting copies of relevant documents to Sydney is likely to be minimal.
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That leaves the position of third party witnesses. Apart from members of the family, the only potential witnesses who have been identified are a partner and a former partner of Pitcher Partners, both of whom reside in Victoria. It is unclear what evidence they will give and whether they will have to give that evidence in person. Again, however, having regard to the issues in the case, it is difficult to see that that evidence could last more than a day. The inconvenience to them of having to give evidence in Sydney rather than Melbourne therefore is likely to be minor.
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Taking these matters into account, I am not satisfied that it would be in the interests of justice to transfer the proceedings to the Supreme Court of Victoria.
Orders
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The notice of motion filed on 24 August 2018 is dismissed with costs.
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Decision last updated: 19 November 2018
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