PRD Realty Pty Ltd v King - [2007] NSWSC 734

CITATION: PRD Realty Pty Ltd v King & Ors [2007] NSWSC 734

HEARING DATE(S): 15/06/07

JUDGMENT DATE :
9 July 2007

JUDGMENT OF: Gzell J

DECISION: Proceedings transferred to Supreme Court of Queensland.

CATCHWORDS: PROCEDURE - Cross-vesting - Interests of justice - Principles involved - Allegations of breach of fiduciary duty and breach of confidence by employed real estate agents resident and working in Queensland - Contracts of employment governed by Queensland law - Individual defendants subsequently employed by corporate defendant with head office in New South Wales but individual continuing to work in Queensland - Plaintiff's head office moved from Queensland to New South Wales - Plaintiff's witnesses mainly resident in New South Wales - Defence witnesses mainly resident in Queensland - Plaintiff's solicitors in New South Wales, defence solicitors in Queensland - Inference that alleged breaches occurred in Queensland

LEGISLATION CITED: Jurisdiction of Courts (Cross-vesting) Act 1987

CASES CITED: BHP Billiton Ltd v Schultz (2004) 221 CLR 400
BHP Co Ltd v Zunic (2001) 22 NSWCCR 92
Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460
Bankinvest AG v Seabrook (1988) 14 NSWLR 711
James Hardie & Coy Pty Ltd v Barry (2000) 50 NSWLR 357
The Abidin Daver [1984] AC 398
Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538

PARTIES: PRD Realty Pty Ltd - Plaintiff
Andrew King - First Defendant
Mark Evans - Second Defendant
Anthony Ott - Third Defendant

FILE NUMBER(S): SC 6476/06

COUNSEL: Mr A Moses/ Mr B Miles - Plaintiff
Mr H Fraser QC/ Mr K Barlow - First, Second and Third Defendants

SOLICITORS: Gaden Lawyers - Plaintiff
Minter Ellison Lawyers - First, Second and Third Defenants
Henry Davis York Lawyers (Mr A Woods - Fourth Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

GZELL J

MONDAY 9 JULY 2007

6476/06 PRD REALTY PTY LTD v ANDREW KING & ORS

JUDGMENT

1 Andrew King, Mark Evans and Anthony Ott, the first, second and third defendants, seek an order that these proceedings to be transferred to the Supreme Court of Queensland. DTZ Australia (Queensland) Pty Ltd, the fourth defendant, has no objection to that order being made. It is opposed by PRD Realty Pty Ltd, the plaintiff.

2 The application is brought under the Jurisdiction of Courts (Cross-vesting) Act 1987, s 5(2). It is in the following terms:

(A) whether, in the opinion of the first court, apart from this Act and any law of the Commonwealth or another State relating to cross-vesting of jurisdiction,…

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: [2007] NSWSC 734
Decision Date: 9 July 2007

CaseChat Overview and Summary

PRD Realty Pty Ltd, an entity governed by New South Wales law, brought a claim against King and other defendants, who were employed by the plaintiff as real estate agents and were governed by Queensland law. The plaintiff alleged breaches of fiduciary duty and confidence by the agents. The agents were subsequently employed by a corporate defendant, also governed by New South Wales law, but continued to work in Queensland. The plaintiff's head office moved from Queensland to New South Wales, and most of the plaintiff's witnesses were resident in New South Wales, while the defence witnesses were mainly resident in Queensland. The plaintiff's solicitors were based in New South Wales, and the defence solicitors were in Queensland.

The court was required to determine whether the case should proceed in New South Wales or be transferred to Queensland. The court considered the convenience of the parties and witnesses, the location where the alleged breaches occurred, and the law governing the contracts of employment. The court was also required to consider the principles involved in cross-vesting and the interests of justice.

The court found that the convenience of the witnesses, who were mainly resident in Queensland, and the location where the alleged breaches occurred, which was likely in Queensland, favoured transferring the case to that jurisdiction. The court also found that the principles involved in cross-vesting and the interests of justice favoured transferring the case to Queensland. The court transferred the case to that jurisdiction.

No final orders are provided in the text.

Orders