Motor Trade Finances Prestige Leasing Pty Ltd v Elderslie Finance Corporation Ltd
[2005] VSC 360
•15 April 2005
| Do Not Send for Reporting | ||
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
COMMERCIAL LIST
No. 5371 of 2004
F5817
| MOTOR TRADE FINANCES PRESTIGE LEASING PTY LTD | Plaintiff |
| V | |
| ELDERSLIE FINANCE CORPORATION LTD & ORS | Defendants |
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JUDGE: | WHELAN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 April 2005 | |
DATE OF RULING: | 15 April 2005 | |
CASE MAY BE CITED AS: | Motor Trade Finances Prestige Leasing v Elderslie Finance Corporation | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 360 | |
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PRACTICE AND PROCEDURE – Transfer of proceeding – Jurisdiction of Courts (Cross-Vesting) Act 1987 (Vic) s 5(2)(b)(iii) – Relevant agreements envisage conduct of litigation in New South Wales – Convenience to witnesses – Proceeding transferred to Supreme Court of New South Wales.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J R Dixon | Jerrard & Stuk |
| For the Defendants | Mr C R C Newlinds SC with Ms B Lim | Clayton Utz |
HIS HONOUR:
By a summons of 17 March 2005 the defendants seek, amongst other things, an order pursuant to s 5 of the Jurisdiction of Courts(Cross-Vesting) Act1987 (“the Act”) for the transfer of this proceeding to the Supreme Court of New South Wales. The provision which is applicable is s 5(2) and, in particular, s 5(2)(b)(iii).
The plaintiff’s claim in this proceeding is in two parts. First, there are what I might describe as contractual claims founded upon what is alleged to be a “Discount Agreement” constituted by a letter sent by the first defendant to the plaintiff dated 8 March 2002, signed by the plaintiff on 11 March 2002. It is then alleged that a number of agreements described as “Security Documentation” were executed, including a “Master Receivables Purchase Agreement” and a “Deed of Charge and Mortgage”. It is alleged that the first defendant breached or repudiated the Discount Agreement.
The second aspect of the claim is based upon alleged misleading conduct. In substance, misrepresentations are alleged to have been made by the three defendants in relation to the first defendant’s capacity to make available finance facilities as set out in the letter of 8 March 2002.
The defendants deny that there was any “Discount Agreement” as alleged, or, if there was, they say it was superseded by formal contracts entered into between the parties, including the Master Receivables Purchase Agreement and the Deed of Charge and Mortgage.
Section 5(2) of the Act relevantly provides:
“(2) Where –
(a)a proceeding (in this sub-section referred to as the “relevant proceeding”) is pending in the Supreme Court (in this sub-section referred to as the “first court”); and
(b) it appears to the first court that –
…
(iii)it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of another State …
the first court shall transfer the relevant proceeding to that other Supreme Court.”
The principles applicable on these applications seem to me to be as follows. First, one starts with the statement of Street CJ in Bankinvest AG v Seabrook,[1] recently cited by the High Court in BHP Billiton Ltd v Schultz,[2] and by Gillard J in this Court in Ewins v BHP Billiton Ltd:[3]
“It calls for what I might describe as a “nuts and bolts” management decision as to which court, in the pursuit of the interests of justice, is the more appropriate to hear and determine the substantive dispute.”[4]
[1](1988) 14 NSWLR 711.
[2][2004] HCA 61, [13] per Gleeson CJ, McHugh and Heydon JJ.
[3][2005] VSC 4, [24].
[4]Bankinvest AG v Seabrook (1988) 14 NSWLR 711, 714.
Whilst described as a “nuts and bolts” decision, this does not mean that it is an administrative decision, as opposed to an inter partes exercise of judicial power.[5]
[5]BHP Billiton Ltd v Schultz [2004] HCA 61, [71] per Gummow J.
Second, there is a statutory requirement to exercise the power of transfer whenever it appears that it is in the interests of justice that it should be exercised.[6]
[6]Ibid [14] per Gleeson CJ, McHugh and Heydon JJ, [62] per Gummow J and [222] per Callinan J.
Third, the issue arising under the legislation is not the same as the issue which arises in the context of “forum non-conveniens”, but factors identified in cases in that context, in particular, the House of Lords decision in Spiliada Maritime Corporation v Cansulex Ltd,[7] remain relevant.[8] Amongst the factors which are so relevant are questions of convenience and expense, issues of the availability of witnesses, the places of residence or business of the parties and the witnesses, and the law which governs the relevant transactions.[9] In any particular case the law governing the relevant transactions may be of greater importance or lesser importance.[10]
[7][1987] AC 460.
[8]BHP Billiton Ltd v Schultz [2004] HCA 61, [18]-[20] per Gleeson CJ, McHugh and Heydon JJ and [42] per Gummow J.
[9]Ibid [18]-[19] per Gleeson CJ, McHugh and Heydon JJ and [163] per Kirby J.
[10]Ibid [20] per Gleeson CJ, McHugh and Heydon JJ.
A further factor which may be important is the question of delay. A party should not be permitted, by conducting a case for a time in one court, to, in effect, approbate and reprobate by then applying to have the matter transferred to another court.[11] The rules reflect the need for applications for transfer to be made as soon as practicable.
[11]Ibid [19]-[22] per Gleeson CJ, McHugh and Heydon JJ and [64] per Gummow J; Broken Hill Pty Co Ltd v Zunic [2001] NSWSC 561.
Finally, it must be observed that the High Court has made it clear that a disinclination to override the plaintiff’s choice of forum is not a relevant factor to be taken into account.[12]
[12]BHP Billiton Ltd v Schultz [2004] HCA 61, [25] per Gleeson CJ, McHugh and Heydon JJ, [72] per Gummow J and [167] per Kirby J.
On this application the defendants submit that the interests of justice require transfer to the Supreme Court of New South Wales as a result of the following matters:
1. Their witnesses are in New South Wales. Material relied upon on behalf of the defendants suggest they will have ten such witnesses. All of the defendants, including the two who are natural persons, reside in New South Wales.
2. The case is about agreements. Two of the important agreements, which the defendants submit are the only relevant agreements, contain provisions dealing with choice of law and forum. The Master Receivables Purchase Agreement includes the following provision:
“This document will be governed by and construed in accordance with the laws of New South Wales and the parties agree to submit to the jurisdiction of the courts of New South Wales.”
The Deed of Charge and Mortgage provides:
“ 15.1 Governing Law
This document is to be governed by and construed in accordance with the laws applying in New South Wales.
15.2 Jurisdiction
15.2(a) The Mortgagor irrevocably submits to and accepts generally and unconditionally the non-exclusive jurisdiction of the courts and appellate courts of New South Wales with respect to any legal action or proceedings which may be brought at any time relating in any way to this Mortgage.
15.2(b) The Mortgagor irrevocably waives any objection it may now or in the future have to the venue of such action or proceedings and any claim it may now or in the future have that action or proceeding has been brought in an inconvenient forum.”
The plaintiff, on the other hand, submits that the Victorian Court is more appropriate. It relies on the following factors:
1.The matter has been before the Victorian Court for a considerable period already. The plaintiff has Victorian solicitors who were engaged during the course of the proceeding and who have now familiarised themselves with the matter. Those solicitors have no office in Sydney.
2.The costs of litigation in Sydney are greater.
3.The plaintiff’s witnesses are in Victoria. On issues concerning liability, on both the contractual claims and the misleading conduct claims, the plaintiff’s only witness is likely to be Mr Craig Dunn, however, on issues of damages, including both causation and quantum, there will be other witnesses who are likely to be from Victoria.
4.The Discount Agreement, upon which the plaintiff relies, has no provision concerning either choice of law or forum.
It seems to me that the relevant matters to be addressed in this particular case are the following:
1.The connections between the relevant transactions and New South Wales and Victoria respectively.
2.The convenience of the parties and the witnesses.
3.The contractual provisions.
4.The issue of delay.
The transactions in question here took place in both Victoria and New South Wales. An allegedly important letter dated 8 March 2002 was written in New South Wales. It was sent to the plaintiff in Victoria. It seems there were meetings in New South Wales and in Victoria, or at least that is the allegation which the plaintiff makes. Lease proposals were, according to the material relied upon by the defendants, submitted by the plaintiff in relation to transactions which originated in both New South Wales and Victoria. It is not entirely clear on the material where the various contractual, or allegedly contractual, documents were executed, but it seems to me to be likely that relevant executions took place in both New South Wales and in Victoria.
The convenience of parties and witnesses seems to me to favour New South Wales. On liability, it seems likely the plaintiff will only have one witness. The defendants are likely to have a number of witnesses, perhaps up to ten, all of whom are likely to be from New South Wales. The substantive factual issues in the case are likely to arise on the misleading conduct claims, and it seems to me, on the limited material I have, that those issues are likely to concern events occurring, or circumstances existing, in New South Wales.
Whilst I understand the plaintiff’s submission as to reliance on the Discount Agreement, on any view the Master Receivables Purchase Agreement and the Deed of Charge and Mortgage are important documents in this case.
There is a very clear indication in each of those agreements, the Deed of Charge and Mortgage more so than the Master Receivables Purchase Agreement, that New South Wales is the venue at which the parties envisaged litigation would occur between them. In my view, this is a very important consideration. Counsel for the defendants suggested in submissions that it was a contractual breach to have brought this claim in Victoria. In my view that puts the matter too highly. However, it must be said that the parties, in the contracts which they signed, gave a very clear indication that litigation would be in New South Wales.
Delay is important in this matter. The rules require an application as soon as possible. If it were not for the clear contractual provisions, it is likely that delay in this case would be fatal to the defendants’ application. However, as Mr Dixon, counsel for the plaintiff, very fairly conceded, whilst the case has been on foot since April 2004 it can fairly be said that it really only began in December last year when an amended writ was filed and the second and third defendants were added.
Accordingly, it seems to me that the matter ought to be transferred to New South Wales, as that is the venue likely to be most convenient to the preponderance of the witnesses and because the parties in the documents which they executed gave a very clear indication that that was the appropriate venue for litigation.
I will make an order under s 5(2) transferring this proceeding to the Supreme Court of New South Wales.
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