Poole v Aspect One Pty Limited atf Aspect Homes Unit Trust No 1

[2019] NSWSC 1790

Supreme Court

New South Wales

Medium Neutral Citation:

Poole v Aspect One Pty Limited atf Aspect Homes Unit Trust No 1 [2019] NSWSC 1790

Hearing dates:

03 December 2019

Date of orders:

03 December 2019

Decision date:

03 December 2019

Jurisdiction:

Common Law

Before:

Cavanagh J

Decision:

(1)   The application is dismissed.
(2)   The fifth defendant pay the plaintiff’s costs of the motion.

Catchwords:

CIVIL PROCEDURE — cross-vesting — transfer to other Supreme Court — whether transfer to the Supreme Court of Queensland in the interests of justice — where respondent has already incurred significant costs pursuing proceedings in New South Wales — application dismissed

Legislation Cited:

Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW), s 5

Cases Cited:

BHP Billiton Ltd v Schultz (2004) 221 CLR 400; [2004] HCA 61

Category:

Procedural and other rulings

Parties:

Aspect One Pty Limited ACN 097 856 356 as trustee for Aspect Homes Unit Trust No 1 (Plaintiff/Respondent)
Fortunam Stafford Pty Ltd ACN 610 869 157 as trustee for Safford Unit Trust (First Defendant)
Sassari Terraces Pty Ltd ACN 606 319 377 as trustee for Sassari Unit Trust (Second Defendant)
Fortunam Malvern Pty Ltd ACN 609 186 825 as trustee for Malvern Unit Trust (Third Defendant)
Fortunam Blackburn Pty Ltd ACN 608 219 021 as trustee for Blackburn Unit Trust (Fourth Defendant)
Marie-Therese Poole (Fifth Defendant/Applicant)
Michelle Lee-Anne Coleman (Sixth Defendant)

Representation:

Counsel:
Mr N Li (Plaintiff)

 

Solicitors:
Thurlow Fisher Lawyers (Plaintiff/Respondent)

  Defendants (self-represented)

File Number(s):

2019/297152

Publication restriction:

None

Revised EX TEMPORE Judgment

1. These proceedings come before the Court by way of a motion filed on behalf of Marie Therese Poole, the fifth defendant.

2. Ms Poole originally sought orders, firstly, transferring the proceedings to the Supreme Court of Queensland pursuant to s 5 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) ("the Act"); and, secondly, declaring that the originating process had not been properly served on all of the defendants.

3. Mr Li of counsel appears on behalf of the plaintiff. The plaintiff opposes the orders sought in the motion. Ms Poole is at this stage representing herself, as is the sixth defendant, Michelle Lee-Anne Coleman. They, in some way today also seek to represent the interests of the companies, the first to fourth defendants. "They" (meaning Ms Poole as the fifth defendant and Ms Coleman as the sixth defendant) have not yet instructed legal representatives.

4. Ms Poole and Ms Coleman obtained leave from the Registrar to pursue this application by way of telephone as Ms Poole lives in the Sunshine Coast in Queensland and Ms Coleman lives in Melbourne.

5. At the commencement of the hearing of the application, I was informed that they no longer sought a declaration in respect of proper service. They now accept that they have been served.

6. I have received written submissions on behalf of the plaintiff from Mr Li. Submissions were made orally, that is over the phone, by Ms Poole and Ms Coleman.

7. The issue on the application is whether I should transfer the proceedings to Queensland at this time. In support of the application, Ms Poole relied upon her own affidavit of 31 October 2019. The plaintiff relied on an affidavit of Gary George of 2 December 2019. Ms Poole raised a concern that they had only received the affidavit very late. I indicated to Ms Poole and Ms Coleman that they were entitled to object to the affidavit but it would be unlikely that the application would proceed without allowing the plaintiff to adduce some evidence on the application. They did not object to the affidavit, understanding that I would have regard to the material in the affidavit in making any decision.

8. Ms Coleman explained the basis of the application as being that, even though she lived in Melbourne, Ms Poole lived on the Sunshine Coast and they chose Queensland as the forum to which they wish to have the proceedings transferred. The basis of their application is that they say that the businesses were conducted in Queensland; that the companies were all established in Queensland and that most of the properties are in Queensland. Ms Poole informed the Court that she is very unwell and that she lives in Queensland. Unfortunately, she is required to have surgery and says that she will be out of action for 10 weeks.

9. The plaintiff relies on the affidavit of Gary George of 2 December 2019. The thrust of that affidavit is that the plaintiff has already incurred significant legal costs in pursuing the proceedings in the Supreme Court of New South Wales. Attached to the affidavit are some articles about iron deficiency and anaemia (relevant to Ms Poole’s health). I have no regard to those articles in determining the outcome of this matter.

10. In determining the application I must have regard to appropriate legal principles, irrespective of the health of Ms Poole. I do not mean to say that I will not take account of that, but in a case such as this, the Court will not make its decision to transfer proceedings merely on the basis that one of the defendants is having surgery in a different State.

11. As set out in the amended statement of claim, the plaintiff seeks recovery of amounts said to be owing by the corporate first to fourth defendants and guaranteed by the fifth and sixth defendants. Mr Li says that the proceedings are in the nature of debt recovery proceedings or, as against the fifth and sixth defendants, enforcement of a guarantee.

12. For the purposes of this application, it would be important to understand the basis on which the matter might be defended. I was informed by either Ms Poole or Ms Coleman over the phone that there was a dispute as to the actual amounts. I am not certain of the reason for that dispute. I was informed by them that they had been told that it would not be necessary to file a defence at this time, but rather that they should await the outcome of this application. I understand in the circumstances why they have not filed defences and I will not have regard to the fact that they have not filed defences in making any decision.

13. However, they were afforded an opportunity to outline the nature of their defences and they explained it as relating to the amounts owing. The basis on which they intend to defend the matter is an important factor in any determination on the application.

14. It is not suggested on the application that the proceedings should be stayed or that the plaintiff was not entitled to commence proceedings in New South Wales. The application is for transfer pursuant to the Act. I am not sure on which part of s 5 of the Act Ms Poole and Ms Coleman rely but, on my own interpretation of the Act, it must be that they are suggesting that it is in the interests of justice that the matter be transferred to the Supreme Court of Queensland. I am not aware of there being any other proceedings on foot to which these proceedings relate.

15. The essential question is whether it is in the interests of justice that the matter be transferred because another Court is a more appropriate forum. If it is in the interests of justice that the matter be transferred, then I should transfer the proceedings to the Supreme Court of Queensland (See BHP Billiton Ltd v Schultz (2004) 221 CLR 400; [2004] HCA 61 at [62]–[63]) (‘Schultz’). As is emphasised in Schultz at [15], the interests of justice are not the same as the interests of one party. It is necessary that I balance the interests of both parties. Further, I will have regard to whether there are connecting factors to another forum in making any decision to transfer. Connecting factors may be where parties live or carry on business, in some circumstances.

16. The plaintiff has commenced these proceedings in the Supreme Court in New South Wales. It has instructed solicitors in New South Wales and, having regard to the evidence of Mr George, incurred a considerable sum already in pursuing these proceedings.

17. Ms Coleman lives in Melbourne and Ms Poole lives on the Sunshine Coast. It may be more convenient for Ms Poole that the proceedings be heard in the Supreme Court of Queensland, but it is not more convenient for the plaintiff or Ms Coleman (although she would like the matter transferred to Queensland).

18. Bearing in mind that the issues in the proceedings are likely to be limited to the actual amount owing, at least according to that which I was informed of today by Ms Coleman and Ms Poole, the fact that the defendants are said to have previously conducted business in Queensland does not make Queensland a more appropriate forum. As Mr Li submits, the incorporation of the companies, being the first to fourth defendants, is, a neutral factor because they hardly reside in any particular State. Further, the fifth and sixth defendants, said to be the guarantors, reside in different States, only one of which is Queensland.

19. It does not seem to me that the address of the securities is particularly relevant to this application. This is not a case about whether persons live at a particular address in Queensland. On my understanding of the issues, it is not a case that will require a long list of witnesses from various addresses in Queensland. In any event, no evidence is before me to that effect.

20. In all the circumstances, I am not satisfied on the evidence before me today that I should transfer these proceedings to the Supreme Court of Queensland. Considerable costs have already been incurred and the issues as identified by and on behalf of the defendants are not likely to lead to a number of witnesses from Queensland. I understand that Ms Coleman and Ms Poole would prefer that the matter be heard in the Supreme Court of Queensland and that it would certainly be more convenient for Ms Poole to have the matter heard in the Supreme Court of Queensland, but they are intending to instruct solicitors, and living in Queensland is not a barrier to instructing solicitors to represent them in the Supreme Court of New South Wales.

21. In the circumstances, the application is dismissed.

22. The plaintiff seeks an order for costs on the motion. The normal rule is that costs follow the event. The defendants have been unsuccessful on their motion. The motion was brought on by the fifth defendant. I understand that Ms Poole and Ms Coleman say that they were served late with the evidence and they wanted to get the matter sorted out. However, none of that displaces the usual rule as the motion was brought by the fifth defendant, Ms Poole.

23. I order that the fifth defendant, Ms Poole, pay the plaintiff's costs of the motion.

**********

Decision last updated: 13 December 2019