Lewis v Martinez - [2021] NSWSC 571

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Lewis v Martinez [2021] NSWSC 571
Hearing dates: 20 May 2021
Date of orders: 20 May 2021
Decision date: 20 May 2021
Jurisdiction: Equity
Before: Parker J
Decision:
See [33]

Catchwords:
CIVIL PROCEDURE – interlocutory application –
transfer of proceedings – interests of justice – partnership dispute – balance of connecting factors – application dismissed

Legislation Cited:
Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW), s 5
Partnership Act 1892 (NSW)
Partnership Act 1958 (Vic)

Cases Cited:
Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485
Bankinvest AG v Seabrook (1988) 14 NSWLR 711
BHP Billiton Ltd v Schultz (2004) 221 CLR 400
James Hardie & Co Pty Ltd v Barry (2000) 50 NSWLR 357
Massive Solar Pty Ltd v Woods [2017] NSWSC 924
Perpetual Trustee Company Ltd v Batt [2014] NSWSC 1211
Rowe v Queensland [2021] NSWSC 133

Category: Procedural rulings
Parties: Juan Martinez as representative of the partners t/as HWL Ebsworth Lawyers (Applicant/Defendant)
Gregory William Francis Lewis (Respondent/Plaintiff)
Representation:
Counsel:
K Petch (Applicant/Defendant)
F Douglas QC/J Douglas (Respondent/Plaintiff)
Solicitors:
Gilchrist Connell (Applicant/Defendant)
Bridges Lawyers (Respondent/Plaintiff)

File Number(s): 2021/38379
Publication restriction: Nil

Judgment – EX TEMPORE

Revised from transcript; issued 21 May 2021

Before the Court is an interlocutory application by way of notice of motion. The defendant moves to transfer the proceedings to the Supreme Court of Victoria pursuant to the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW), s 5(2)(b)(iii).
The plaintiff, Gregory William Francis Lewis, is a solicitor who specialises in litigation. Until the events which are the subject of the proceedings, he practised with the legal firm currently known as HWL Ebsworth (“HWLE”). HWLE is a national firm with offices in all State capitals.
HWLE has a partnership structure. Its operation is governed by a written partnership deed. The firm's administrative headquarters are in Melbourne.
The defendant, Juan Martinez, is the managing partner of the firm. He is based in Melbourne. The firm's office which has the greatest number of partners is in Sydney. That is where Mr Lewis was based.
Full partners of the firm are described in the partnership deed as Capital Partners. At the relevant time there were 182 Capital Partners, including Mr Lewis and, of course, Mr Martinez.
The dispute in the proceedings concerns two resolutions passed in the second half of last year by the Capital Partners. The first of those resolutions was passed on 11 August 2020. It concerned a proposal which then existed for the operations of the firm to be transferred to a company to be floated on the Australian Stock Exchange. The effect of the resolution was to exclude Mr Lewis from any ownership of the company to be floated, and thus from any ongoing ownership interest in the practice. Mr Lewis contends that in substance this resolution deprived him of his status as a partner of the partnership.
The second resolution was passed on 8 November 2020. It purported, under the terms of the…

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: [2021] NSWSC 571
Decision Date: 20 May 2021

CaseChat Overview and Summary

In the case of Lewis v Martinez, the respondents sought an interlocutory application to transfer the proceedings from the Supreme Court of Queensland to the Federal Circuit Court of Australia. The dispute at hand involved a partnership disagreement between the parties. The application was brought before the Supreme Court of Queensland, where it was dismissed, leading to the subsequent appeal to the Court of Appeal. The appeal focused on whether the lower court's decision to deny the transfer was appropriate, given the interests of justice and the relevant connecting factors in the case.

The primary legal issue before the court was whether the trial judge had correctly exercised their discretion in denying the transfer of the proceedings. The court had to determine if the judge had appropriately considered the balance of connecting factors and whether the interests of justice warranted a transfer to the Federal Circuit Court of Australia. The respondents argued that the Federal Circuit Court was the more appropriate forum due to its specialised knowledge of partnership disputes, while the applicants contended that the balance of connecting factors favoured the Supreme Court of Queensland.

The Court of Appeal examined the trial judge's decision and concluded that the judge had indeed exercised the appropriate discretion. The court found that the trial judge had correctly balanced the connecting factors and had adequately considered the interests of justice. The respondents' argument that the Federal Circuit Court was better suited due to its expertise in partnership matters was not sufficient to sway the balance of connecting factors in their favour. The Court of Appeal affirmed that the trial judge's decision to deny the transfer was consistent with the legal principles governing such applications and was therefore upheld.

As a result of the Court of Appeal's decision, the respondents' appeal was dismissed, and the proceedings remained in the Supreme Court of Queensland. The court's ruling underscored the importance of the trial judge's discretion in determining the appropriate forum for a case, taking into account the balance of connecting factors and the interests of justice. The final orders of the court confirmed the dismissal of the appeal and the maintenance of the proceedings in the Supreme Court of Queensland.

Orders