Peregrine Properties Pty Ltd v St Crispin's Property Pty Ltd

[2009] FCA 1103

FEDERAL COURT OF AUSTRALIA

Peregrine Properties Pty Ltd v St Crispin’s Property Pty Ltd [2009] FCA 1103

PEREGRINE PROPERTIES PTY LTD v ST.CRISPIN'S PROPERTY PTY LTD (ACN 104 769 244), LIFE AND LEISURE PTY LTD (ACN 087 534 432), MARK ANTHONY ELMOWY and CHRISTOPHER SCOTT MEEHAN

VID 365 of 2009

KENNY J
16 SEPTEMBER 2009
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 365 of 2009

BETWEEN:

PEREGRINE PROPERTIES PTY LTD
Applicant

AND:

ST.CRISPIN'S PROPERTY PTY LTD (ACN 104 769 244)
First Respondent

LIFE AND LEISURE PTY LTD (ACN 087 534 432)
Second Respondent

MARK ANTHONY ELMOWY
Third Respondent

CHRISTOPHER SCOTT MEEHAN
Fourth Respondent

JUDGE:	KENNY J
DATE OF ORDER:	16 SEPTEMBER 2009
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The motion for transfer be adjourned sine die.

2.Liberty be reserved to the parties to apply on reasonable notice.

3.Costs be reserved.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 365 of 2009

BETWEEN:

PEREGRINE PROPERTIES PTY LTD
Applicant

AND:

ST.CRISPIN'S PROPERTY PTY LTD (ACN 104 769 244)
First Respondent

LIFE AND LEISURE PTY LTD (ACN 087 534 432)
Second Respondent

MARK ANTHONY ELMOWY
Third Respondent

CHRISTOPHER SCOTT MEEHAN
Fourth Respondent

JUDGE:	KENNY J
DATE:	16 SEPTEMBER 2009
PLACE:	MELBOURNE

EX TEMPORE REASONS FOR JUDGMENT

1. This proceeding was commenced in the Victoria District Registry of this Court by an application and statement of claim filed on 14 May 2009. By a notice of motion, the respondents seek the transfer of the whole proceeding to the New South Wales District Registry of the Court pursuant to s 48 of the Federal Court of Australia Act 1976 (Cth). The transfer application is supported by an affidavit of Christopher Scott Meehan (the fourth respondent). This affidavit is filed on behalf of all respondents.

2. The principles that govern an application for transfer are well known and are authoritatively stated in National Mutual Holdings Pty Ltd v Sentry Corp (1988) 19 FCR 155 at 162.

3. This is an action for damages for alleged misleading and deceptive conduct in contravention of s 52 of the Trade Practices Act 1974 (Cth) and the corresponding Victorian, New South Wales and Queensland legislative provisions. The conduct in question relates to alleged representations made in connection with the sale of three apartments and common property in Port Douglas by St Crispin’s Property Pty Ltd to the applicant, Peregrine Properties Pty Ltd. In substance Peregrine alleges that the respondents falsely represented that the construction of the apartments would proceed only when 50% of presales had been achieved and that the construction was brought forward in 2005 by reason of the high level of presales. The representations were alleged to be made in the following ways:

   ·a marketing presentation in Sydney in 2004 by St Crispins’ selling agents, where oral representations were made to Peregrine;

   ·on-line marketing of the apartments via various websites and by means of marketing publications by the respondents to Peregrine;

   ·written representation by St Crispin’s in a letter and distributed newsletter to the applicant; and

   ·the respondents’ conduct in authorising, consenting to, publishing and making the foregoing representations.

4. Peregrine alleged that the representations were misleading and deceptive because the construction proceeded without St Crispin’s having achieved 50% of presales and that the construction was not brought forward due to the success of the presales. Peregrine further alleged that it was induced to purchase the property on the faith of the representations. It pleaded resulting loss and damage. Peregrine alleges that the liability of Mark Elmowy (the third respondent) and Mr Meehan arises under s 75B of the Trade Practices Act (and the corresponding State legislation) because they were each involved in the alleged contraventions of s 52 of the Trade Practices Act.

5. In their defence dated 19 June 2009, the respondents denied that Peregrine is entitled to the relief claimed.

6. Peregrine filed its list of documents on 23 July 2009 (amended on 24 July 2009). The respondents provided their list of documents on 13 August 2009.  Inspection has taken place.  

7. In his affidavit, Mr Meehan pointed to the following nexus with NSW which he said favours the transfer:

   ·The alleged oral representations made in the marketing presentation in 2004 were made in NSW;

   ·The alleged internet representations were made on internet websites in which materials were originally created and uploaded from an administration in NSW;

   ·The alleged written representations were made by the respondents in NSW;

   ·The principal place of business of St. Crispin’s and the second respondent (Life and Leisure Pty Ltd) is located in NSW;

   ·Mr Elmowy and Mr Meehan reside in NSW; and

   ·The respondents intend to call witnesses, each of whom resides in NSW.

8. At the hearing today, Ms Gearing, who appeared for the respondents, referred to a number of these matters including the cause of action, which is said to arise in New South Wales, and the number of witnesses the respondents propose to call. She estimated that these witnesses would be around seven in number and include the persons involved in the administration of the website in question, selling agents and an office manager. She also referred to documentary material being located in New South Wales.

9. The factors to which Ms Gearing referred, and the matters to which Mr Meehan deposed, argued in favour of a trial in New South Wales. These matters may however be managed otherwise than by transfer; for example, by holding part of the trial in New South Wales without transferring the whole of the proceeding. Ms Gearing suggested no real difficulty in preparing for trial without the proposed transfer or in dealing with further interlocutory steps, other than the fact that the respondents’ solicitors were in New South Wales.

10. The Court is, however, familiar with this kind of situation and, as the applicant pointed out, appropriate steps have already been taken between the parties and may be taken by the Court to minimise the inconvenience to the respondents and their solicitors and to minimise any costs which might otherwise arise. Mr Carmichael, who appeared for the applicant, noted that the applicant’s principal place of business is in Victoria and that the applicant proposes to call at least three witnesses, who also reside in Victoria, who will be relied upon in relation to the representations.

11. It was not suggested by the respondents that the applicant has instituted the proceeding in Victoria capriciously or otherwise than properly. At present, the proper place for the trial, within the meaning of the Rules of Court, is the Victoria District Registry. The respondents’ case for transfer was expressed at a high level of generality. As expressed, there are factors which militate both in favour of and against a transfer. As presently advised, the respondents have not satisfied me that an order for transfer should be made at this stage of the proceeding.

12. The position may however appear differently once the parties have filed their witness statements. At that point, it should be clear how many witnesses are involved in the trial who may be required for cross-examination, their place of residence, and if it is possible to conduct the trial partly in Victoria and partly in New South Wales, or whether it should be conducted entirely in New South Wales. There may be other matters too which will appear once witness statements are filed, including the nature of the documentary evidence that is likely to be relied upon and other matters.

13. Accordingly, for these reasons, it seems to me appropriate that the motion for transfer should be adjourned for the time being, with liberty to the respondents to re-apply for transfer at any time after the witness statements have been filed.

14. I would order that:

    1.        The motion for transfer be adjourned sine die.

    2.        Liberty be reserved to the parties to apply on reasonable notice.

    3.        Costs be reserved.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.

Associate:

Dated:        16 September 2009

Counsel for the Applicant:	Mr H Carmichael
Solicitor for the Applicant:	Oakley Thompson & Co
Counsel for the Respondents:	Ms J Gearing
Solicitor for the Respondents:	Levitt Robinson

Date of Hearing:	16 September 2009
Date of Judgment:	16 September 2009