Marque Lawyers Pty Ltd v Ryer Development Ltd - [2017] NSWSC 1397

Supreme Court

New South Wales

Medium Neutral Citation: Marque Lawyers Pty Ltd v Ryer Development Ltd [2017] NSWSC 1397
Hearing dates: 11 October 2017
Date of orders: 13 October 2017
Decision date: 13 October 2017
Jurisdiction: Common Law
Before: Lonergan J
Decision:
The notice of motion is dismissed with costs.

Catchwords: CIVIL PROCEDURE – transfer of proceedings – application to transfer proceedings to Local Court – where Defendant incorporated overseas – where Local Court service cannot be effected overseas – proper jurisdiction – where judgments of the Supreme Court are enforceable overseas by statute but judgments of the Local court are not
Legislation Cited: Civil Procedure Act 2005 (NSW) ss 56, 57, 58, 146
Uniform Civil Procedure Rules 2005 (NSW) r 8.2, Pts 11, 39, 40
Cases Cited: Bodenstein v Hope Street Urban Compassion [2014] NSWSC 174
Category: Procedural and other rulings
Parties: Marque Lawyers Pty Ltd (Plaintiff)
Ryer Development Ltd (Defendant)
Representation:
Counsel:
N Mattock, solicitor (Plaintiff)
D Parish (Defendant)
Solicitors:
Marque Lawyers (Plaintiff)
Aubrey Brown Lawyers (Defendant)

File Number(s): 2017/141503
Publication restriction: Nil

Judgment

These proceedings concern a claim in contract for payment of legal fees for work performed by the Plaintiff for the Defendant between January 2013 and May 2016. The Plaintiff is a firm of lawyers which conducts its practice in George St, Sydney. The Defendant is a company incorporated in Hong Kong.
The Defence filed in the proceedings in June 2017 raises by way of defence that the work undertaken was not carried out efficiently or with due care and skill and that unnecessary costs were incurred in breach of the implied terms of the costs agreements.
The proceedings were commenced in May 2017 and have proceeded efficiently to this stage with current orders in place for the Defendant to complete service of its evidence by 26 October, the Plaintiff having completed service of its evidence by 28 September 2017. The proceedings are listed for further directions on 2 November 2017.
The Defendant, by way of Notice of Motion filed 22 September 2017 (and as amended in Court on 11 October 2017) seeks transfer of the proceedings to the Local Court of New South Wales. By way of secondary order, it seeks a notation that the preferred venue is Wyong. The order is sought pursuant to s 146(1) of the Civil Procedure Act 2005 (NSW), and the venue of Wyong is sought pursuant to Uniform Civil Procedure Rules 2005 (NSW) r 8.2(1).
Section 146(1) of the Civil Procedure Act 2005 (NSW) provides as follows:

146   Transfer of proceedings to lower court
(1)   If the Supreme Court is satisfied, in relation to proceedings before it:
(a)   that the proceedings could properly have been commenced in the District Court or the Local Court, and
(b)   that any cross-claim in the proceedings could properly have been brought as a cross-claim in the District Court or the Local Court,
the Supreme Court may order that the proceedings, including any such cross-claim, be transferred to the District Court or to…

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: [2017] NSWSC 1397
Decision Date: 13 October 2017

CaseChat Overview and Summary

In the case of Marque Lawyers Pty Ltd v Ryer Development Ltd, the plaintiff, Marque Lawyers, sought to transfer the proceedings from the Supreme Court to the Local Court. The dispute involved a claim for unpaid legal fees. The defendant, Ryer Development, was incorporated overseas and the plaintiff argued that the Local Court was the appropriate jurisdiction for the case. The defendants contested this, arguing that the Local Court did not have jurisdiction over them due to their incorporation outside Australia. The matter was heard by the Supreme Court which had to determine whether the Local Court had jurisdiction to hear the case and if the proceedings should be transferred.

The court was required to decide whether the Local Court had jurisdiction over the defendant, which was incorporated overseas, and whether it was appropriate to transfer the proceedings from the Supreme Court to the Local Court. The central issue was whether the inability of the Local Court to serve proceedings overseas precluded it from having jurisdiction, and if the enforceability of Supreme Court judgments overseas by statute meant that the Supreme Court was the proper forum.

The court considered that the Local Court did not have jurisdiction to serve proceedings overseas, which was a limitation on its authority. However, the court also noted that the Supreme Court's judgments were enforceable overseas by statute, which was not the case for the Local Court. Despite the inability to serve overseas, the court found that the proper jurisdiction for the case was the Supreme Court due to the statutory enforceability of its judgments overseas. The application to transfer the proceedings to the Local Court was therefore dismissed.

The Supreme Court dismissed the application to transfer the proceedings to the Local Court and ruled that the Supreme Court was the proper jurisdiction for the case. This decision was based on the inability of the Local Court to serve proceedings overseas and the statutory enforceability of Supreme Court judgments overseas. The court did not transfer the proceedings and maintained that the Supreme Court was the appropriate forum for the dispute.

Orders