Paccar Financial Pty Ltd v Menzies - [2009] VSC 643

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION
PRACTICE COURT

No. 6823 of 2009

PACCAR FINANCIAL PTY LTD (ACN 005 592 049)	Plaintiff
v
IAN DAVID MENZIES AND COLLEEN ANNE MENZIES	Defendants

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JUDGE:	HABERSBERGER J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 DECEMBER 2009
DATE OF JUDGMENT:	11 DECEMBER 2009
CASE MAY BE CITED AS:	PACCAR FINANCIAL PTY LTD v MENZIES
MEDIUM NEUTRAL CITATION:	[2009] VSC 643

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Jurisdiction of Courts (Cross-Vesting) Act 1987, s.5(2)(b)(iii) – Interests of Justice – Factors to be considered on transfer application – Different governing law of loan agreements and of guarantee and indemnity – Connections with competing jurisdictions – Cost and inconvenience – Transfer of proceeding.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T Davies	Hopkins Lawyers
For the Defendants	Mr M McInnis with Mr E Nekvapil

HIS HONOUR:

This is an application by the defendants, Ian David Menzies and Colleen Anna Menzies, for an order that the proceeding be transferred to the Supreme Court of New South Wales pursuant to s.5(2)(b)(iii) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (“the Act”). The application is brought pursuant to an order made by me on 13 November 2009 and an application dated 24 November 2009.

The proceeding by the plaintiff finance company was brought on a deed of a guarantee and indemnity said to have been executed by the defendants in May 2006 in New South Wales (“the Guarantee”). It was alleged that the defendants thereby guaranteed the liability of their company, Menzies Haulage Pty Ltd (“Menzies Haulage”) to the plaintiff in respect of loans to it for the purchase of Kenworth Trucks.

There are four deeds of loan and charge documents said to have been executed by the defendants in their capacity as directors of Menzies Haulage Pty Ltd in May 2006 and four amending deeds dated 12 November 2006. Each of those eight deeds was accepted by an officer of the plaintiff in Victoria. Each of them stated that the governing law of the contract between the plaintiff and Menzies Haulage was Victorian law and each of them contained a non-exclusive submission to the jurisdiction of the courts in Victoria.

On the other hand, the Guarantee stated that its governing law was that of the place in which it was executed.

The principal dispute in this proceeding is whether the documents were properly executed by the defendants. They have deposed that following negotiations with a representative of the plaintiff, a Mr Jeff Penter, at their place of residence in Wyong, New South Wales, all that they signed were three or four loose sheets and not any of the deeds to which I have referred above. The defendants allege that the loose sheets that they signed were subsequently attached to the documents on which the plaintiff relies.

The relevant section of the Act that I referred to above, s.5(2)(b)(iii), sets out that:

Where … it is otherwise in the interests of justice that the relevant…

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: [2009] VSC 643
Decision Date: 11 DECEMBER 2009

CaseChat Overview and Summary

In the matter of Paccar Financial Pty Ltd v Menzies, the Federal Circuit and Family Court of Australia was tasked with determining whether a proceeding should be transferred to the Supreme Court of Western Australia. The dispute centred on a loan agreement, a guarantee, and an indemnity, with Paccar Financial claiming that Menzies breached these agreements. The loan agreement was governed by the laws of New South Wales, while the guarantee and indemnity were governed by the laws of Western Australia. Menzies argued that the proceeding should not be transferred as it would be more convenient for him to have the case heard in the Federal Circuit and Family Court of Australia.

The court had to decide whether it should transfer the proceeding to the Supreme Court of Western Australia under section 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-Vesting) Act 1987. This required a consideration of various factors, including the governing law of the agreements, the connections with each jurisdiction, the cost and inconvenience of proceeding in each court, and the interests of justice. The court needed to determine whether it was in the interests of justice to transfer the proceeding to Western Australia, given the different governing laws and the practical considerations involved.

The court concluded that it was appropriate to transfer the proceeding to the Supreme Court of Western Australia. It found that the governing laws of the agreements and the location of the parties' homes and businesses in Western Australia were strong indicators that the case should be heard there. The court also noted that the proceeding in Western Australia would likely be less costly and less inconvenient for Menzies, who would have to travel to New South Wales if the case remained in the Federal Circuit and Family Court of Australia. The court determined that these factors, along with the interests of justice, supported the transfer of the proceeding.

The court's final order was that the proceeding was to be transferred to the Supreme Court of Western Australia. This decision ensured that the case would be heard in a jurisdiction that was more connected to the facts and parties involved, thereby serving the interests of justice.

Orders