Perro Colour Render Pty Ltd v Artesian Spa Motor Inn

[2010] QCAT 554

CITATION:		Perro Colour Render Pty Ltd  v Artesian Spa Motor Inn [2010] QCAT 554
PARTIES:	Perro Colour Render Pty Ltd
v
Artesian Spa Motor Inn

APPLICATION NUMBER:   BDL314-10  

MATTER TYPE: Building matters

HEARING DATE:     Decision on the papers

HEARD AT:  Brisbane

DECISION OF: Peta Stilgoe

DELIVERED ON: 4 November 2010

DELIVERED AT:      Brisbane

ORDERS MADE: The proceeding is dismissed.

CATCHWORDS :  JURISDICTION – forum non conveniens – building dispute – where work carried out in New South Wales - where the subject of the dispute is in New South Wales – where witnesses will attend from both New South Wales and Queensland – where resolution of the dispute will require application of New South Wales law – whether respondent has demonstrated that the tribunal is a clearly inappropriate forum
Oceanic Sun Line Special Shipping Company Inc v Fay
Pacific Petroleum Corporation v Nauru Phosphate Corporation

APPEARANCES and REPRESENTATION (if any):

This matter was heard on the papers in accordance with section 32 of the

Queensland Civil and Administrative Tribunal Act 2009

REASONS FOR DECISION

1. In 2009, Perro Colour Render Pty Ltd (“Perro”) undertook construction work for Artesian Spa Motor Inn (“Artesian”) on Artesian’s motor inn at Moree in New South Wales. The parties fell into dispute.  Perro brought a claim for payment of invoices in the minor civil disputes jurisdiction of this tribunal.  Artesian argues that the action should be determined by the Local Court in Moree.

2. Perro says that this tribunal is the appropriate forum to determine the dispute because:

a)the agreement was made in Queensland;

b)a director of Artesian has a residence in Queensland; and

c)Perro would be prejudiced if the proceedings were heard in Moree because its witnesses all live on the Sunshine Coast.  It will be cheaper to have witnesses attend a hearing in Brisbane.

1. Artesian says that the Local Court at Moree is the appropriate forum because:

a)the agreement was made in Moree;

b)the work was carried out in Moree;

c)the Local Court at Moree has a real and substantial connection with the subject matter of the dispute;

d)its residence and place of business is at Moree;

e)if a site inspection is required, it will be easier for a judicial officer from Moree to do that;

f)it will be more convenient and less costly for witnesses to attend Moree;

g)the Local Court at Moree is also a low cost jurisdiction so there is no prejudice to Perro; and

h)resolution of the dispute will require the application of the law of New South Wales.

1. Artesian has filed a response to the minor civil dispute application in which it did not dispute jurisdiction.  The issue of jurisdiction was first raised by the Adjudicator when the dispute came on for hearing on 16 September 2010.  Given that Artesian is taken to have submitted to the jurisdiction of this tribunal, the real question is not whether the tribunal has jurisdiction but whether it is the most convenient forum.

2. The test that the tribunal must apply in determining the appropriate forum is set out in Oceanic Sun Line Special Shipping Company Inc v Fay[1]:

   …a subjective balancing process in which the relevant factors will vary and in which both the question of the comparative weight to be given to particular factors in the circumstances of a particular case and the decision whether the power should be exercised are matters for individual judgment and, to a significant extent, matters of impression. … that onus will ordinarily be discharged by a defendant who applies promptly for a stay or dismissal if he persuades the local court that, having regard to the circumstances of the particular case and the availability of the foreign tribunal, it is a clearly inappropriate forum for the determination of the dispute between the parties.”

   [1] (1988) 165 CLR 197 at 247-248

1. The type of factors that the tribunal may consider include[2]:

a)factors affecting convenience or expense (such as availability of witnesses),

b)the law governing the relevant transaction; and

c)the places where the parties respectively reside or carry on business.

[2] Pacific Petroleum Corporation v Nauru Phosphate Corporation [2002] QSC 389

1. It is for Artesian to persuade the tribunal that it is a clearly inappropriate forum, because to allow the proceeding to continue in the tribunal would be oppressive and vexatious.

2. The connecting factors favour this dispute being heard in the Local Court at Moree:

a)the place where the contract was made, while in dispute, is not really a material factor;

b)the transaction will be governed by the law of New South Wales;

c)the subject matter of the dispute is located in New South Wales;

d)Artesian resides and carries on business in New South Wales. The fact that one of its directors owns a house in Queensland is not a sufficient connecting factor;

e)the fact that the tribunal has jurisdiction is not a sufficient connecting factor;

f)a hearing in Brisbane will put both parties to considerable expense in ensuring that their witnesses are available. A hearing in Moree will reduce this cost, at least for Artesian; and

g)the Local Court at Moree is an appropriate forum for this dispute.

1. Balancing all of those factors, the tribunal is satisfied that Artesian has demonstrated that this tribunal is a clearly inappropriate forum and that the dispute should be heard in New South Wales.  The proceeding is dismissed.