M&M Global Financials Pty Limited v Financial Elements Pty Limited

[2022] NSWDC 386

District Court

New South Wales

Medium Neutral Citation:

M&M GLOBAL FINANCIALS PTY LIMITED v FINANCIAL ELEMENTS PTY LIMITED [2022] NSWDC 386

Hearing dates:

11 August 2022

Date of orders:

11 August 2022

Decision date:

11 August 2022

Jurisdiction:

Civil

Before:

Montgomery DCJ

Decision:

(1)   I determine that the New South Wales District Court has jurisdiction to hear all matters pleaded in the defendant’s Amended Statement of Cross-Claim filed 23 March 2021

(2)   In relation to the plaintiff’s Notice of Motion filed 20 May 2022 and defendant’s Notice of Motion filed 6 June 2022 and on the issue of jurisdiction only, costs be costs in the cause.

Catchwords:

PRACTICE AND PROCEEDURE – jurisdiction – District Court NSW – District Court Act – Ss 44(1)(a); 44(1)(c); 44(1)(d); 134(1)(h)

Legislation Cited:

District Court Act 1973 (NSW)

Cases Cited:

Abbott v Klein [2015] NSWDC 45

Great Northern Developments Pty Ltd v Lane [2021] NSWCA 150

Reid v Commonwealth Bank of Australia [2022] NSWCA 134

M&M GLOBAL FINANCIALS PTY LIMITED v FINANCIAL ELEMENTS PTY LIMITED [2022] NSWDC 355

Texts Cited:

Equity: Doctrines and Remedies 5th ed (2014), Meagher, Gummow and Lehane.

Category:

Procedural rulings

Parties:

M&M GLOBAL FINANCIALS PTY LIMITED, plaintiff
FINANCIAL ELEMENTS PTY LIMITED, defendant

Representation:

Counsel:
Mr J. Pokoney for the plaintiff/cross-defendant
Mr M. Swanson for the defendant/cross-claimant

Solicitors:
Mills Oakley Lawyers, solicitor for the plaintiff/cross defendant
Fortis Law, solicitor for the defendant/cross claimant

File Number(s):

2020/00160887

Judgment ex tempore

On the issue of jurisdiction of District Court; see transcript p 3;

1. See first judgment M&M GLOBAL FINANCIALS PTY LIMITED v FINANCIAL ELEMENTS PTY LIMITED [2022] NSWDC 355.

2. HIS HONOUR: On the issue of jurisdiction, on 22 July 2022, I delivered ex tempore reasons of my preliminary view on the issue of jurisdiction of the District Court of New South Wales to determine the whole of the issues in these proceedings, and specifically in relation to actions and relief pleaded in the Amended Statement of Cross-claim, for equitable compensation or equitable damages for breach of duty of confidence and for account to be taken of profits of the cross defendant won by its breach of its duty of confidence. In the interim the parties have assisted by written submissions delivered 1 August 2022 from the defendant/cross claimant and 4 August 2022 from the plaintiff/cross defendant.

3. In that writing and today orally in the Court, counsel for the parties adopt the correctness of my preliminary view. The submissions offer further reference in support of finding - as was my preliminary view - that the Court has the jurisdiction required.

4. With the benefit of that assistance, I give the following addendum reasons for my preliminary view, based as it was on s 134(1)(h) of the District Court Act. Firstly, I referred to the judgement of his Honour Leeming JA in Great Northern Developments Pty Ltd v Lane [2021] NSWCA 150.

5. His Honour revisited in Reid v Commonwealth Bank of Australia [2022] NSWCA 134. Of value is the observation in the leading text Meagher, Gummow and Lehane, Equity: Doctrines and Remedies 5th ed (2014) including at [42-190]; that accounts for profit is a regular remedy sought in proceedings for breach of confidence. Whether it arises out of legal or equitable obligations. And in chapter 25 of that book the observation that concepts of “an account stated” at common law and of “settled accounts” in equity have over time become difficult to distinguish and indeed, the learned authors use the descriptive “merged”.

6. This observation is particularly pertinent to the passages which I have above referred to in my early preliminary view adopting the judgement of Leeming JA in Lane’s case.

7. Finally, I would make reference to s 44 of the District Court Act. The application of references to the division of work in the Supreme Court of NSW - specifically the Common Law division - when considering an action in this Court - pursuant to s 44 (1)(a) - was the study of the judgement by Judge Taylor SC of this Court in Abbott v Klein [2015] NSWDC 45. I respectfully adopt the assistance of his Honour’s reasons in relation to that subsection.

8. Nevertheless, my view is that because jurisdiction with respect to the financial elements claim for an account of profits is available under s134 (1)(h) of the District Court Act; the case otherwise falling within the jurisdiction of this court, s44 (1) (a) is not a fatal hurdle to jurisdiction. Were that previously a matter of concern the recent expansion of the jurisdiction of this Court by amendment of s44 in relation to jurisdiction for determining actions arising out of commercial transactions puts any concern in regard to jurisdiction away.

9. In my view, the actions here fall properly within the description of arising out of a commercial transaction. The parties have expressed the view that the amount claimed does not exceed the Court’s jurisdiction. S44 (1)(c1) provides subject to s 44(1)(c) that any action arising out of a commercial transaction in which the amount, if any, claimed does not exceed the cap court’s jurisdictional limit, whether on a balance of account or after an admitted set-off or otherwise is an action falling within the jurisdiction of the Court. Section 44 (1)(c) has no application here because it concerns actions for the whole or part of an unliquidated balance of a partnership account, or the amount or part of the amount of the distributive share under an intestacy or of a legacy under a will. The causes of action here are not of those natures. In the result I determine that the District Court of New South Wales has jurisdiction to determine all actions in the proceedings.

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