Mortgage Acceptance v Aust Thoroughbred and Darvall No. SCGG 94/1480 Judgment No. 5167 Number of Pages 12 Practice Jurisdiction
[1995] SASC 5167
•18 July 1995
COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA MATHESON J
CWDS
Practice - Jurisdiction - proceedings issued by lessor in Supreme Court of South Australia for debt against lessee and against guarantor - lessee not defending and in liquidation - application by guarantor who lives in New South Wales to transfer proceedings to New South Wales Supreme Court under Jurisdiction of Courts (Cross-Vesting) Act 1987 - review of authorities - Supreme Court of South Australia more appropriate court - application dismissed.
Bankinvest AG v Seabrook and Ors (1988) 90 ALR 407; Pegasus Leasing Ltd v Tieco International (Aust) Pty Ltd and Ors Unreported Jt 4044 delivered 14/7/1993; Pegasus Leasing Limited v Cardoroll Pty Ltd and Ors Unreported Jt 4325 delivered 9/12/1993 (available on SCALE), applied.
HRNG ADELAIDE, 7 July 1995 #DATE 18:7:1995 #ADD 11:9:1995
Counsel for plaintiff: Mr G D Coppola
Solicitors for plaintiff: Kelly and Co
Counsel for defendant Darvall: Mr M A Frayne
Solicitors for defendant Darvall: Randle and Taylor
ORDER
Application dismissed.
JUDGE1 MATHESON J On or about 30 August, 1989 the plaintiff and the first defendant entered into an agreement described as "Master Lease Agreement - Livestock", ("the lease"). The purpose of the lease was to enable the first defendant to obtain shares in bloodstock. The second defendant signed the lease as an authorised officer of the first defendant. At the same time, he also signed a Deed of Guarantee and Indemnity ("the guarantee") guaranteeing the performance of the lease by the first defendant. Between August, 1989 and April, 1990 the first defendant took leases over certain thoroughbred horses.
2. On 20 September, 1994, the plaintiff issued proceedings in the Supreme Court of South Australia against both defendants. It alleges, inter alia, that they have "in breach of the Master Lease Agreement ... and the guarantee failed, refused and neglected to make payments of sums due and payable thereunder".
3. The first defendant has never appeared and is apparently in liquidation. The second defendant was served on 11 November, 1994. He failed to enter an appearance and the plaintiff entered judgment against him on 8 February, 1995. On 27 March the second defendant applied for the following orders:
"1. That the judgment obtained by the plaintiff as against
the second defendant on the 8th day of February 1995 be set
aside.
2. That the proceedings as against the second defendant be
transferred to the Supreme Court of New South Wales."
4. On 15 June Judge Kelly said, in the course of making orders:
"1. This is an application by the 2nd defendant to set aside
a judgment. His reason for not filing a defence was, on his
affidavit material, that he believed through his solicitor
that the plaintiff's solicitor had agreed to take no action
without first advising that solicitor. Even were that so,
and the plaintiff's solicitor denies it, Kelly and Co's
letter of 7/12/94 makes it perfectly clear that the defence
was required and constitutes the promised advice to the
plaintiff's former solicitor, so if there were an
undertaking as alleged, the plaintiff's solicitor has
complied by sending the 7/12/94 letter. If the defendant is
to be believed, it is his former solicitor's fault that the
matter was not defended at the outset. There is clearly an
inten(t) to defend. As to prejudice, an order for costs in
favour of the plaintiff can make good any prejudice to the
plaintiff. As to grounds of defence, whilst the defence's
claim might seem prima facie a surprising one, that is,
forgiveness of the debt, nevertheless I cannot but find on
the affidavit material that the defendant demonstrates an
arguable defence. Finally, it is clear, if the defendant be
believed, that he took proper steps to instruct solicitors
who, on his version, let him down. This is a factor to be
taken into account. In the end, narrowly I consider the
judgment should be set aside with all costs thrown away to
date to be the plaintiffs and I certify fit for counsel.
2. As to the second order sought, I refer that question to
the Chamber Judge for the purpose to arrange the necessary
appointment through the Registrar."
5. The second defendant then filed a defence on 28 June alleging, inter alia, an estoppel. He claims that the plaintiff represented to him that the debt the subject of the action would not be pursued. He alleges that he acted to his detriment in reliance upon that representation. He admits the execution of the relevant documents as well as the first defendant's default. I have before me now the second defendant's application seeking an order that the proceedings be transferred to the Supreme Court of New South Wales pursuant to the Jurisdiction of Courts (Cross-vesting) Act, 1987. There are no proceedings on foot in New South Wales. The application is made pursuant to s5 of the Act, the relevant part of which reads:
"(1) ...
(2) Where -
(a) a proceeding (in this subsection referred to as the
'relevant proceeding') is pending in the Supreme Court (in
this subsection referred to as the 'first court');
and
(b) (i) and (ii) ...
or
(iii) it appears to the first 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,
the first court shall transfer the relevant proceeding to
that other Supreme Court."
6. At the time of the execution of the lease and the guarantee, the registered office of the plaintiff was in Sydney, but since June 1992 its registered office has been at Level 28, 91 King William Street, Adelaide. All the files and records of the plaintiff with respect to this matter are located at the plaintiff's offices at that address. In an affidavit sworn on 22 May, 1995, Glenn Phillip Wallace, a collection officer employed by the plaintiff, deposed inter alia:
"5. All current officers required to give evidence on the
part of the Plaintiff in this action are resident in South
Australia.
6. The Plaintiff no longer maintains an office in Sydney and
has not done so since about the end of 1991.
7. The Plaintiff proposes calling its former officers Paul
Campbell and Girvan Roberts as witnesses in this matter and
the Plaintiff will bear all the expense in bringing those
witnesses to Adelaide if it is necessary for them to give
evidence."
7. The second defendant on the other hand deposed in an affidavit sworn on 3 May, 1995, inter alia:
"21. The Master Lease Agreement - Livestock, Requests made
thereunder and Deed of Guarantee were all executed in New
South Wales. Mortgage Acceptance Nominees Limited and
Australian Thoroughbred Finance Pty Limited were both
companies incorporated and registered in New South Wales.
All transactions under the Master Lease Agreement related to
livestock located in New South Wales. At the hearing of the
matter I would intend calling as witnesses, Girvan Roberts
and Paul Campbell who are both residents of New South Wales
as is myself"
8. In an affidavit sworn on 6 July, 1995, the second defendant's Adelaide solicitor, Michael Randle, deposed:
"1. I am the solicitor in South Australia for the second
defendant.
2. On 6th July 1995 Mr Michael King solicitor in the Sydney
firm of GH Healey and Co (who are instructing my firm in
this matter) informed me that if this action were
transferred to the Supreme Court of New South Wales it would
go into the commercial division, be recognised as a short
case and be likely to be heard within one year of the time
of transfer.
3. I know the facts deposed to in this affidavit as a result
of information supplied to me by Michael King which I
believe to be true having no reason to doubt what he says."
9. I was referred to several clauses in the lease. Clause 7 reads:
"7. GOVERNING LAW
(a) This Master Lease and all of the leases shall be
governed by and construed in accordance with the law for the
time being enforced in New South Wales and the Lessee
submits to the non-exclusive jurisdiction of the courts of
New South Wales (including the High Court of Australia) in
respect of all matters arising under this Master Lease and
any of the leases.
(b) Notwithstanding the submission in Clause 7(a) hereof,
the Lessor shall be entitled (but not obliged) to take
proceedings against the Lessee in any other jurisdiction or
jurisdictions necessary to enforce this Master Lease and/or
any of the leases and the Lessee agrees to submit to the
jurisdiction thereof and waives any objection to proceedings
in any such jurisdiction on the grounds of venue or that the
proceedings have been brought in an inconvenient forum."
10. Clause 5 of the First Schedule to the lease which sets out the actual terms of the lease states:
"Payment
The Lessee will make all payments to the Lessor's office as
set out above or as the Lessor may direct in writing."
11. Clause 17 of the First Schedule states, inter alia:
"If an Event of Default occurs, the Lessor shall be entitled
to:-
(a) - (d) ...
(e) commence proceedings in a court of law to enforce
performance by the Lessee of the terms and conditions of the
lease."
12. I was referred to the following clauses in the guarantee:
"3. PAYMENT OF DEBT
The Guarantor shall pay the Debt to the Financier in the
manner and at the time specified in the Documents for
payment and where not specified upon demand made by the
Financier." (The "documents" are defined in the guarantee
to mean and include "the Master Lease Agreement, all leases
entered into pursuant to the Master Lease Agreement and all
collateral securities".)
"10. MISCELLANEOUS
(a) - (b) ...
(c) This Deed shall be construed in accordance with the laws
for the time being of the State of New South Wales and the
Guarantor hereby submits to the jurisdiction of the Courts
of that State.
(d) - (g) ..."
13. I was referred to many of the cases on the legislation. Perhaps the leading case is Bankinvest AG v Seabrook and Ors (1988) 90 ALR 407. The facts were summarised in the headnote thus:
"The plaintiff commenced proceedings in New South Wales
seeking judgment against the defendants who were guarantors
of money lent by the plaintiff. The defendants claimed that
they were induced to enter the guarantees by fraudulent
representations, conspiracy and breaches of fiduciary duty
by certain promoters, and that the plaintiff had knowledge
of the wrongful acts and breaches of duty of the promoters
so as to make the guarantees unenforceable. The defendants
also alleged that the plaintiff failed to comply with the
provisions of the Money Lenders Act 1916 (Qld) with the
result that the guarantees were void.
Several of the defendants and the promoters and companies
related thereto were also engaged in litigation in
Queensland. The defendants sought to have the proceedings
transferred to Queensland pursuant to the provisions of the
Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW)."
14. The Court of Appeal unanimously ordered that the proceedings be transferred to the Supreme Court of Queensland. The principal judgment was delivered by Rogers AJA, and at p410, Street CJ said:
"The reasons prepared by Rogers AJA will henceforth be
definitive of the law and practice on this topic in this
State." At p420, Rogers AJA said:
"It is important that full effect be given by the courts to
the imaginative and detailed code for ensuring that
throughout Australia disputes are dealt with by the one
court and that be the court most appropriate for the
particular dispute. Consistently with the preservation of
dual State and federal court systems and with State courts
dispensing justice within the State boundaries, there has
been a legislative recognition of the need to transcend
State boundaries in appropriate cases. No longer is it
appropriate to regard the court of another State as a
'foreign' court.
One consequence is that the principles of forum non
conveniens, applied in circumstances where the competition
is between an Australian and a non-Australian court, have no
role to play in the resolution of applications made under
the legislation or in its interpretation. Legislation
prescribes the criteria whereby such applications are to be
determined. The criteria are rather more specific in some
respects but in referring to the 'interests of justice',
call for considerations of a more general kind than the
judicially established rules of forum non conveniens." Then at p421, his Honour said:
"Mr Nicholas submitted that consideration of the question
whether an order for transfer should be made should follow
two steps. First, there is a prima facie presumption that
the court, the jurisdiction of which was properly invoked,
should exercise it. The litigant invoking the jurisdiction
had an entitlement and the court had a corresponding
obligation to exercise jurisdiction. Secondly, there is an
onus resting on the person moving to transfer to show some
positive basis on which it could be contended that the
entitlement of the other party to the exercise of
jurisdiction should be displaced.
In my view, this approach should be firmly rejected. If
accepted, it would entrench the concept of one Australian
jurisdiction being 'foreign' to another. No allowance would
be made for the fact that the Australian States are
federation. Most relevantly, the purpose of the legislation
would be lost. The cross-vesting legislation does not call
for this approach. Indeed, it positively rejects it. The
only lodestar that a judge may steer by is what do the
interests of justice dictate should be done? It is inapt to
speak in terms of onus. Bearing in mind that the court may
make an order of its own motion, the language of onus being
discharged is inapplicable." At p422, he said:
"... the criteria laid down by Lord Goff of Chieveley, (in
Spiliada Maritime Corp v Cansulex Ltd (1987) l AC 460) with
the approval of the other members of the House, for the
application of principles of forum non conveniens, broadly
correspond to the criteria designated by the Act. The
questions posed by Spiliada and the legislation are the
same. What court is more appropriate and what court is
pointed to by the interests of justice? This appears
clearly from the following statement by Lord Goff (at 476):
'... a stay will only be granted on the ground of forum non
conveniens where the court is satisfied that there is some
other available forum, having competent jurisdiction, WHICH
IS THE APPROPRIATE FORUM for the trial of the action, ie in
which the case may be tried MORE SUITABLY FOR THE interests
of all the parties AND THE ENDS OF JUSTICE' (emphasis
added).
I am not suggesting that the draftsman had the speech
available when drafting the Act. However, quite obviously,
both the House of Lords in Spiliada and the Parliaments
enacting the cross-vesting legislation were responding to
the same needs. In Spiliada, His Lordship gave
consideration to the meaning to be ascribed to the word
'conveniens' in the Latin tag. Lord Goff ... said (at 475):
'... I cannot help thinking that it is wiser to avoid use
of the word "convenience" and to refer rather, as Lord
Dunedin did, to the APPROPRIATE FORUM' (emphasis added).
As Lord Goff said earlier, 'the question is not one of
convenience but of the suitability or appropriateness of the
relevant jurisdiction'. As the minority pointed out in
Oceanic Sun Line (Special Shipping Co Inc v Fay (1988) 79
ALR 9) (at 21): 'to focus the search on the appropriate
forum supplies a broader frame of reference than a
concentration on convenience and expense.'
In my opinion, initially, the search under the Act as in the
English courts is for the 'natural forum'. As Deane J
pointed out in Oceanic Sun Line (at 48), the term 'natural'
in the context simply means 'more appropriate'.
Later Rogers AJA said at pp423-424: "In the present case,
first and foremost, the law governing the guarantees is
specified to be the law of Queensland. Clearly, in
Australia the same difficulties do not arise as in the case
of a truly foreign court where the applicable law is that of
the other court. None the less, in the context of reopening
a money lending transaction, local circumstances may play an
important role. To that extent, at any rate, a Queensland
court is better able to gauge the validity of the
application for reopening and if the transaction is
reopened, what relief should be granted. If there were some
infringement of the provisions of the money lending
legislation, the plaintiff may be expected to invoke the
provisions of s4C of the Money Lenders Act and in
determining whether or not relief should be granted, against
the consequences of breach, once again, local circumstances
will have an important role to play.
It is also of relevance to note that, but for the cross-vesting
legislation, the jurisdiction of the Money Lenders
Act could not have been exercised by a New South Wales
court. Although this is one of the specific matters to be
considered under s5(2)(b)(ii), as well, it must have a role
to play under the provisions of the earlier sub-section.
Although neglected in argument, it should not be forgotten
that an important aspect of the cross-claim is the claim of
negligence against the Queensland solicitors. Once again,
it seems to me that a determination whether or not a
professional person has been negligent is much better gauged
by a local tribunal more closely aware of local practice and
the demands imposed on practitioners.
The wrongful acts charged have all been allegedly committed
in Queensland and, in that sense, the connection between the
proceedings and Queensland is exceedingly close. On the
other side of the coin is the fact that the only connection
that the proceedings have with New South Wales is that the
plaintiff's office is located in this State.
In all that I have said, I have not so far adverted to the
convenience of having the dispute determined in the Supreme
Court of Queensland. That is a factor clearly thrown up for
consideration and it comes down overwhelmingly in favour of
a Queensland venue. Expense and inconvenience must be taken
into account in determining which court is more appropriate.
The charts, helpfully prepared by Mr Einstein, show that the
preponderance of parties, witnesses and documents are
located in Queensland. Of necessity, the cost of litigation
will be lower if the venue is in Queensland than in New
South Wales. Sheer convenience in the day-to-day conduct of
the proceedings also dictates a Queensland venue." Finally at p425, his Honour said:
"What then are the 'interests of justice' which the
legislature considers should be taken into account in this
process? To my mind, the relevant matters and
considerations are essentially the same as were specified by
the House of Lords in Spiliada. These considerations were
criticised and held to be inapplicable, at least by
Brennan J, in Oceanic Sun Line on the basis that they are
too uncertain. Yet, in my opinion, they have already, in
effect, been made applicable in Australian courts in
relation to transfers between Supreme Courts by the various
Australian Parliaments. As this jurisdiction comes to be
exercised more frequently and the courts better acquainted
with the discretion conferred (if not before), it may be
that the perception in Oceanic Sun Line that the criteria
are uncertain in content will undergo review.
Absent the presence of related proceedings or inter-State
law, the inquiry directed by consideration of the 'interests
of justice' encompass all the matters that determine which
is the more appropriate forum that I have already discussed.
The two considerations of 'more appropriate' and the 'ends'
or 'interests' of justice are used in the same sense by Lord
Goff in the passage I have already cited. I would be going
over ground I have already covered if I were to discuss the
contents of 'interests of justice' further. I should,
however, mention that its presence and content call for a
rejection of Mr Nicholas' submission that the principle of
forum non conveniens continues to exist concurrently with
the legislation. The former has been clearly subsumed by
s5(2)(b)(iii).
In my opinion, the court should order that the proceedings
be transferred to the Supreme Court of Queensland."
15. Other cases including two decisions of this Court. In Pegasus Leasing Ltd v Tieco International (Aust) Pty Ltd and Ors Unreported Jt No 4044 delivered 14 July, 1993, Debelle J said:
"... the essential ground advanced in support of the
application is the convenience of witnesses and the relative
costs of hearing the action in Adelaide as compared with
Melbourne. The accountants support the contentions of the
defendants.
In answer the plaintiff contends that the claim it makes is
relatively simple. Given that it is now common ground that
the parties entered into the leasing agreements, the only
issue remaining to be proved by them is the amount now due
pursuant to those agreements, a relatively simple
arithmetical task. The plaintiffs also refer to the fact
that the defence did not initially contain any plea of a
set-off. An attempt has now been made to plead an equitable
set-off. But, says the plaintiff, it comes late in the day
and is an obvious attempt to delay it in securing a
judgment. The plaintiff refers also to the fact that the
action was properly instituted in this Court. It asserts
also that, if this action is transferred to Victoria, it
will be necessary for it to incur the costs of taking three
witnesses to Victoria. Thus, so far as the issues of
convenience are concerned there is a slight preponderance in
favour of the defendants. In the final analysis, however,
wherever the action is heard witnesses will have to travel
from one State to another.
The action in this Court is plainly related to the action in
the Supreme Court of Victoria. In considering whether it is
more appropriate that the action be determined in Victoria,
I do not think that the defendants have any onus to
discharge. Section 5(2) assumes both courts are appropriate
but requires a determination which is the more appropriate.
While it might be said that the balance in terms of
convenience and expense might tip slightly in favour of the
convenience of the defendants, that is not the only relevant
factor. In these days of quick and efficient transport and
communication, arguments of convenience have less force than
hitherto. Such arguments have even less force when the two
courts are as proximate as Melbourne and Adelaide. When
courts are determining cross-vesting applications, they will
generally speaking aim to select the court which, in all the
circumstances, most facilitates the course of the
litigation: Seymour-Smith v Electricity Trust of South
Australia (1989) 17 NSWLR 648, 662. Factors relevant to
that decision are the place where the parties reside or
carry on business, the places where witnesses reside or
carry on business, the place where other evidence is
located, the desirability of avoiding unnecessary costs and
the law governing the questions which fall for determination
in the action. But the question whether one court is more
appropriate than another does not depend merely on questions
of comparative suitability and convenience. Regard must
also be had to the interests of justice. Although the
expression 'the interests of justice' does not appear in
s.5(2)(b)(i), it would be curious, at the very least, if it
were not a relevant factor. To conclude otherwise would be
to conclude that the interests of justice are relevant in
the case of the paragraphs (ii) and (iii) of s.5(1)(2)(b)
but not in the case of paragraph (i). The proposition has
only to be stated to be rejected.
The phrase 'the interests of justice' should be read widely.
I respectfully adopt the observations of Wilcox J in Bourke
v State Bank of NSW (1988) 85 ALR 61 at 77 and 78:
'Under that rubric, as it seems to me, the court is entitled
to consider not only the ability of a particular court to
deal with all aspects of a matter, and to make and to
enforce all the orders to which a party may be entitled, but
also adjectival matters such as the availability of
particular evidence, the procedures to be adopted, the
desirable venue for trial and the likely hearing date. It
is not in `the interests of justice' to adopt a course, in
relation to those matters, which places unnecessary burdens
and delays upon the parties to the litigation ...
I take this to be a charter for the court to take the course
which appears to it to be more just, interpreting that word
widely. However, for an applicant's choice of forum to be
overridden, there must be some objective factor which makes
it possible to say that the interests of justice will be
better served by transfer than by non-transfer. Where, as
here, it is impossible to identify any such factor, the
sub-paragraph has no application.'
I do not understand the latter part of His Honour's reasons
to be suggesting that the party moving for a change of venue
should bear any onus: cf Seymour-Smith v Electricity Trust
of SA (supra) at 662. Instead His Honour is doing no more
than stating that account must be taken of the prima facie
right of a party who has regularly invoked the jurisdiction
of a competent court to insist upon its exercise and have
his claim heard and determined: Oceanic Sun Line Special
Shipping Co Inc v Fay (1988) 165 CLR 197 at 241.
It was not the purpose of the cross-vesting legislative
scheme to derogate from the common law rules which would be
relevant to the decision as to what is an appropriate court
in those cases where there is no issue as to the
jurisdictional limits of the court. The essential purpose
of the scheme was to avoid difficulties arising from want of
jurisdiction ...
It is well settled that the legislative scheme is not
intended to be used as a means of forum shopping. Litigation
should proceed in the court which, having regard to the
broad interests of justice, is the most appropriate:
Bankinvest AG v Seabrook (1988) 2 NSWLR 711, 725; Jackson v
John Fairfax and Sons Ltd (1988) 96 FLR 145; Mullins
Investments Pty Ltd v Elliott Exploration Co Pty Ltd (1990)
1 WAR 531.
There can be no suggestion of forum shopping on the part of
the plaintiff. It has properly commenced an action in the
court of the State in which it principally carries on
business. The action is in respect of debts payable in South
Australia pursuant to agreements to which the defendants are
parties. The cause of action arose in South Australia. It
is to be noted further that the agreements provide that the
proper law of the contract is the law of South Australia.
In every respect, the jurisdiction of this Court was
properly invoked.
In the circumstances of this case, it is proper to have
regard to the fact that the plaintiff instituted its action
first. Whilst mere accidents of time are by no means
decisive, the Court should, I think, be slow to deprive the
plaintiff of an advantage it has secured by initiating
litigation particularly where, as here, it appears that the
only defence available to the defendants is that of an
equitable set-off. I do not think the plaintiff should be
deprived of its ability to be dux litis in this litigation,
particularly given that all that it must prove to establish
its claim is the balance due under the leasing agreements
and where all that prevents it from entering judgment is the
defendants' claim for an equitable set-off. The interests
of justice require that it should be permitted to remain dux
litis to ensure, so far as lies within its power, that the
counterclaim is promptly prosecuted. I do not think the
slight balance of convenience and expense claimed by the
defendants is sufficient to displace the plaintiffs' prima
facie right to proceed in this Court. Further, there is no
respect in which it can properly be said that the interests
of justice will be better served in the Supreme Court of
Victoria than in this Court.
For these reasons, the defendants' application is refused."
(My underlining.)
16. In Pegasus Leasing Limited v Cardoroll Pty Ltd and Ors Unreported Jt No 4325 (available on SCALE) delivered 9 December, 1993, Debelle J said:
"In my view, what is significant is that the issues as
between Pegasus and members of the syndicates and the
guarantees are relatively straightforward and capable of
prompt and ready prosecution. There is no plea that the
defendants have rescinded or repudiated the loan agreements.
The defendants will be able to set aside the agreements only
if they are able to establish one or more of the statutory
defences on which they rely. All that Pegasus has to do is
to prove the loan agreements, which are in the main
admitted, the amount owing, and the guarantees. In short,
proof of the claim of Pegasus is capable of being relatively
straightforward. The defences in each of the actions in the
South Australian courts raise almost all of the issues which
are raised as between Pegasus and the syndicate members in
the Federal Court actions. The only issues not raised in the
South Australian actions are the defences under the
provisions of ss.169, 170 and 171 of the Companies (NSW)
Code and under the Contracts Review Act, 1980 (NSW),
defences which can be readily included in the actions in
this Court by amendment. Although the actions in South
Australia can be prosecuted without any undue delay, the
actions in the Federal Court might be delayed by issues
arising as between the syndicate members and the other four
sets of parties in the Federal Court actions. Those actions
have already been delayed by the applications to strike out
the statements of claim. The fact that Pegasus also applied
to strike out the statement of claim is not, I think,
relevant. Further, if the actions are transferred, Pegasus
will no longer be dux litis which could render it more
vulnerable to delays caused by applications by the other
parties in the Federal Court actions.
The application to transfer these actions is not grounded on
any want of jurisdictions in this Court. Instead, it is
grounded on what is said to be a greater convenience and
lesser cost than having the action heard in Victoria. One
can readily appreciate the inconvenience to each of the
defendants in having to defend these actions in this State
instead of in the Australian Capital Territory. However,
apart from the question of the representations alleged to
have been made to each of the defendants by Pegasus, the
issues are the same in each action. It would appear also
that there may be common issues as to the representations
which Pegasus is alleged to have made. It may be that a
decision in one of the actions will resolve a good number,
if not all, of the remaining actions. I do not think that
in these days of quick and efficient transport and
communication, the arguments of inconvenience are sufficient
to outweigh the interests of Pegasus being able promptly to
prosecute its claims to judgment. I have also considered
the likelihood that all of the issues between the parties
are capable of being determined in the one action in the
Federal Court and the advantages which might, therefore,
accrue. However, given that there are five sets of
respondents to those actions and the separate issues as
between the applicants and respondents, it is likely that it
will be some time before those actions will be heard and
determined. By contrast, proof of the claim of Pegasus is
likely to be relatively straightforward. I do not think
Pegasus should be liable to the possible delays in the
Federal Court actions to which I have referred and be denied
the opportunity promptly to prosecute its actions to
judgment in this Court.
Further, Pegasus has properly commenced these actions in the
court of the State in which it principally carries on
business. The action is in respect of debts payable in South
Australia. The cause of action arose in South Australia.
Pegasus has regularly invoked the jurisdiction of the courts
of this State and there is no challenge to their
jurisdiction to be able to determine all issues as between
the parties. I do not think that there is a risk of
inconsistent findings if the actions in this State proceed
as well as the Federal Court action. The greater likelihood
is that the Federal Court will be concerned only with the
issues as between the members of the respective syndicates
and the respondents other than Pegasus."
17. The plaintiff's task at the trial of the case at Bar would be simple and straightforward. The second defendant does not dispute the lease, or the guarantee, or the failure of the first defendant to pay. There is no argument about the construction of the guarantee, or any plea that the plaintiff has not complied with relevant legislation in New South Wales, (cf the Bankinvest case, supra). The first defendant will seek to rely on conversations he alleges he had with the plaintiff's former employees. Even the evidence for the defence is likely to be short. There is no counter-claim. True it is that the second defendant lives in New South Wales, and he may wish to call two New South Wales witnesses if the plaintiff does not. However, I agree with Debelle J that such considerations are not so important in these days of quick, efficient and frequent transport and communication. Discovery will be simple, and in any event all relevant documents would appear to be in South Australia. The plaintiff regularly invoked the jurisdiction of the Supreme Court of South Australia nearly ten months ago. Payments of moneys owing were to be paid in this State. No proceedings have been issued in New South Wales. The second defendant has South Australian solicitors who have been actively involved for some months. They have suggested that the proceedings would be heard in New South Wales within twelve months of their transfer. I am not in a position to say precisely how soon they would be heard here, but having regard to this Court's case flow management and what I know of the intervals between case readiness and hearing, I think I am entitled to take the view that the case will be heard here sooner than in New South Wales.
18. For all these reasons, I have concluded that this Court is the more appropriate Court and it would not be in the interests of justice to transfer the proceedings to the Supreme Court of New South Wales. The application is dismissed.
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