Parramatta Operations TC Pty Ltd trading as APX Parramatta v Consulting Professional Engineers Pty Ltd trading as Consulting Professional Engineers Pty Ltd

[2018] NSWDC 202

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Parramatta Operations TC Pty Ltd trading as APX Parramatta v Consulting Professional Engineers Pty Ltd trading as Consulting Professional Engineers Pty Ltd [2018] NSWDC 202
Hearing dates:	24 July 2018
Date of orders:	24 July 2018
Decision date:	24 July 2018
Jurisdiction:	Civil
Before:	P Taylor SC DCJ
Decision:	(1)   Grant leave to file in court the Amended Statement of Claim. (2)   Note that the parties agree that this Court has no jurisdiction to hear and determine the commercial dispute between them. (3)   Note that proceedings between the parties dealing with the same matter in the Magistrates' Court of Victoria remain stayed by consent. (4)   Transfer these proceedings under s 20 of the Service and Execution of Process Act 1992 (Cth) to the Local Court of New South Wales. (5)   Order the plaintiff/cross-defendant to pay the defendant's/cross-claimant's costs of today.
Catchwords:	CIVIL PROCEDURE — Jurisdiction — Transfers to and from other courts — District and Local Courts – Stay of proceedings
Legislation Cited:	Service and Execution of Process Act 1992 (Cth), s 20
Cases Cited:	Abbott v Klein [2015] NSWDC 45 Forsyth v Deputy Commissioner of Taxation (2007) 231 CLR 531; [2007] HCA 8 May v Brahmbhatt [2013] NSWCA 309 Mega-top Cargo Pty Ltd v Moneytech Services Pty Ltd [2015] NSWCA 402 New South Wales Land and Housing Corporation v Quinn [2016] NSWCA 338 Sapphire Suite Pty Ltd v Bellini Lounge Pty Ltd [2018] NSWDC 160 The NTF Group Pty Ltd v PA Putney Finance Australia Pty Ltd [2017] NSWSC 1194
Category:	Procedural and other rulings
Parties:	Parramatta Operations TC Pty Ltd trading as APX Parramatta (plaintiff/cross-defendant) Consulting Professional Engineers Pty Ltd trading as Consulting Professional Engineers Pty Ltd (defendant/cross-claimant)
Representation:	Counsel: Dr A J Greinke (plaintiff/cross-defendant) Ms J A Grainger (defendant/cross-claimant)   Solicitors: Lodhia Lawyers Pty Ltd (plaintiff/cross-defendant) Weinberg Lawyers (defendant/cross-claimant)
File Number(s):	2016/137882
Publication restriction:	None

Judgment

1. This is another matter where the limited and uncertain commercial jurisdiction of this Court has impacted adversely on the quick, cheap, and just resolution of a dispute between parties in this Court.

2. Today, when the parties were made aware on the first day of the hearing of a number of decisions with respect to the commercial jurisdiction of this Court,[1] the parties agreed between themselves that this Court has no jurisdiction to hear the dispute between them. I accept that there is force in that view.

   1. The NTF Group Pty Ltd v PA Putney Finance Australia Pty Ltd [2017] NSWSC 1194, Mega-top Cargo Pty Ltd v Moneytech Services Pty Ltd [2015] NSWCA 402, May v Brahmbhatt [2013] NSWCA 309, Sapphire Suite Pty Ltd v Bellini Lounge Pty Ltd [2018] NSWDC 160, New South Wales Land and Housing Corporation v Quinn [2016] NSWCA 338, Abbott v Klein [2015] NSWDC 45, Forsyth v Deputy Commissioner of Taxation (2007) 231 CLR 531; [2007] HCA 8.

3. The plaintiff sought then to have the matter transferred to the Local Court of New South Wales, and obtained leave to file an Amended Statement of Claim abandoning any amount outside the Local Court's jurisdictional limit.

4. The defendant, on the other hand, sought to have these proceedings stayed under s 20 of the Service and Execution of Process Act 1992 (Cth), on the basis that there are proceedings in the Magistrates' Court of Victoria that cover the same ground as these proceedings. I was referred to the provisions of s 20(4) and the factors that suggest that the Victorian Magistrates' Court is an appropriate court and a court having jurisdiction to determine all matters in issue between the parties. Ultimately, neither of those matters was in dispute.

5. The factors favouring one place or court rather than the other are relatively evenly balanced. The defendant has a strong connection with Victoria, and the plaintiff has a similar connection with New South Wales. There are witnesses that are resident in New South Wales and others that are resident in Victoria. There is some limited evidence of financial challenges faced by the defendant meeting proceedings in New South Wales.

6. There is evidence of a term that Victorian law would apply to the dispute, although whether that term was part of the agreement between the parties was a matter in dispute.

7. The parties in recent times agreed to have proceedings conducted in the New South Wales District Court, rather than in the Magistrates' Court of Victoria, although that agreement was frustrated by the position the parties have now reached - that there is an absence of jurisdiction in this Court. As part of that agreement, the proceedings in the Victorian court were stayed by consent. So ultimately, the question to be determined is whether I should transfer the proceedings to the Local Court of New South Wales, when there are already proceedings in Victoria, and the proceedings in New South Wales were commenced in a court which the parties now say has no jurisdiction. Or should I, alternatively, stay (or dismiss) these proceedings for want of jurisdiction, when they can perhaps readily be transferred to the Local Court, and conducted more efficiently by the current New South Wales counsel involved, in circumstances where the Victorian proceedings are currently stayed.

8. Although the matter is finely balanced, I think the most expeditious and efficient way forward is to transfer these proceedings to the Local Court, especially because the New South Wales' counsel are prepared and ready to conduct the hearing. If those legal representatives were retained to conduct the Victorian proceedings, there would still be greater costs than proceedings in New South Wales because of the travel. And if those counsel were not retained for the Victorian proceedings, further preparation costs would be required.

9. As to costs, I think that the costs of today should be borne by the plaintiff: the proceedings were commenced in a court which it now accepts was without jurisdiction to hear and determine the matter.

10. Accordingly, the orders I make in this matter are:

1. Grant leave to file in court the Amended Statement of Claim.

2. Note that the parties agree that this Court has no jurisdiction to hear and determine the commercial dispute between them.

3. Note that proceedings between the parties dealing with the same matter in the Magistrates' Court of Victoria remain stayed by consent.

4. Transfer these proceedings under s 20 of the Service and Execution of Process Act 1992 (Cth) to the Local Court of New South Wales.

5. Order the plaintiff/cross-defendant to pay the defendant's/cross-claimant's costs of today.

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Endnote

Amendments

30 July 2018 - Typographical corrections in [5], [8] and [9].