Lewis, in the matter of Damilock Pty Ltd (In Liquidation) ACN 008 083 985 v Insato Furniture Pty Ltd ACN 099 762 713
[2008] FCA 1100
•22 July 2008
FEDERAL COURT OF AUSTRALIA
Lewis, in the matter of Damilock Pty Ltd (In Liquidation) ACN 008 083 985 v Insato Furniture Pty Ltd ACN 099 762 713 [2008] FCA 1100
MARTIN DAVID LEWIS AND BRUCE JAMES CARTER AS LIQUIDATORS OF DAMILOCK PTY LTD (IN LIQUIDATION) ACN 008 083 985 v INSATO FURNITURE PTY LTD ACN 099 762 713
SAD 68 OF 2008
MANSFIELD J
22 JULY 2008
ADELAIDE
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
SAD 68 OF 2008
IN THE MATTER OF DAMILOCK PTY LTD (IN LIQUIDATION) ACN 008 083 985
BETWEEN:
MARTIN DAVID LEWIS AND BRUCE JAMES CARTER AS LIQUIDATORS OF DAMILOCK PTY LTD (IN LIQUIDATION) ACN 008 083 985
PlaintiffsAND:
INSATO FURNITURE PTY LTD ACN 099 762 713
Defendant
JUDGE:
MANSFIELD J
DATE OF ORDER:
22 JULY 2008
WHERE MADE:
ADELAIDE
THE COURT ORDERS THAT:
1.The application be refused.
2.The costs of the application for transfer proceedings be reserved.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
SAD 68 OF 2008
IN THE MATTER OF DAMILOCK PTY LTD (IN LIQUIDATION) ACN 008 083 985
BETWEEN:
MARTIN DAVID LEWIS AND BRUCE JAMES CARTER AS LIQUIDATORS OF DAMILOCK PTY LTD (IN LIQUIDATION) ACN 008 083 985
PlaintiffsAND:
INSATO FURNITURE PTY LTD ACN 099 762 713
Defendant
JUDGE:
MANSFIELD J
DATE:
22 JULY 2008
PLACE:
ADELAIDE
REASONS FOR JUDGMENT
I will make some brief remarks ruling on the application to have the proceeding conducted in the New South Wales District Registry henceforth. I reserve to myself the right to publish more fulsome reasons for the ruling I am about to make. If any party wishes that to be done.
The defendant seeks orders pursuant to s 48 of the Federal Court of Australia Act 1976 (Cth) and O 30 r (2) of the Federal Court Rules, to have the conduct of this proceeding transferred to the New South Wales District Registry. The defendant, through its solicitors, has provided very helpful written submissions which accurately set out the background, the Court’s powers, and the appropriate test to be applied in determining that application, which I have entertained on the directions hearing with the consent of the plaintiffs. I will not repeat any of those matters.
The defence has also identified the issue in dispute. It is said to be confined to the defence available under s 588FG(2) of the Corporations Act 2001 (Cth). I note that counsel for the plaintiffs has pointed out that para 11 of the statement of claim has not been admitted in the defence, so that the plaintiffs will have to prove that the payments in issue in fact had a preferential effect. How that is to be done remains to be seen, but I anticipate that it could be relatively easily done if it remains in issue. I do not assume necessarily that that will be the case.
On the principal matter in issue, the defendant presently proposes to call one witness, Ms Skinner, who is resident in Sydney, and whose evidence will touch upon all the matters to which s 588FG(2) directs attention. At present, there is no indication that the defendant proposes to call other witnesses. There will obviously be a cost to the defendant, if the matter proceeds to hearing in Adelaide, of having Ms Skinner come to Adelaide and her accommodation. It is up to the defendant whether it chooses to engage counsel resident in Sydney or counsel resident in Adelaide. As far as I can see, there will be no reason to have solicitors other than her present solicitors, whether the matter is heard in Sydney or in Adelaide. The matter of choice of solicitors, as well as counsel, is a matter for the parties in every matter.
Apart from the plaintiffs having the obligation of proving the preferential effect ,in fact, of the payments in issue, the plaintiffs say that they may need to call a Ms Jap, who is resident in Adelaide, and who was at material times apparently an officer of the defendant, and one of its directors, Mr Cheung who is resident in Melbourne. As he is resident in Melbourne, if his evidence becomes necessary to be called, there will be a comparable expense whether he has to come to Adelaide or Sydney, and I discount that feature in the balancing exercise which the authorities say I should engage in.
The plaintiffs also say that Ms Skinner has been examined and that her evidence at the examination is proposed to be tendered by them, so they query the need for her to give evidence at all. Of course, I have not seen that evidence. I accept the submission of the solicitor for the defendant that, in any event, she is likely to need to give evidence personally in relation to the matters in dispute. So I do not place weight on that factor.
That leaves, in my view, three things mitigating against the transfer of the proceedings.
Firstly, the proceedings have been commenced in Adelaide and it is the natural home of the proceedings because the company in liquidation has its registered office in Adelaide; its records are in Adelaide; its liquidators are in Adelaide; and to the extent to which reference is required to material, it will be in Adelaide and there will be a cost involved in transferring that material to Sydney. Associated with that is that the plaintiffs, being confronted with a defence such as that which is the real issue in the proceeding, are entitled to be present during the hearing and to give instructions in relation to it. They would have a greater familiarity with relevant materials than (one would assume) those whom they instruct. It is possible in the course of the evidence that reference is made to material which has not been the subject of instruction. I therefore think it is appropriate to take into account that the plaintiffs may quite properly and reasonably wish to have someone present during the hearing to give instructions in the course of Ms Skinner’s evidence.
Secondly, there is apparently the real prospect of a South Australian witness, Ms Jap, giving evidence.
Thirdly, there is the obligation of proving the preferential effect, in fact, of the payments.
Having regard to the factors to which I have referred, and the matters referred to in the respective submissions, at present I am not satisfied that there is sufficient reason to change the proper place of the proceeding from the South Australia District Registry to the New South Wales District Registry. The costs of the application to transfer the proceeding will be reserved.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield. Associate:
Dated: 22 July 2008
Counsel for the Plaintiffs: Mr S Doyle and Mr B Renfrey Solicitor for the Plaintiffs: Finlaysons Counsel for the Defendant: Mr M Mathas Solicitor for the Defendant: Deacons
Date of Hearing: 22 July 2008 Date of Judgment: 22 July 2008
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