Profit Gain Developments (Aust) Pty Ltd v Charnley Vale Pty Ltd
[2002] VSC 488
•13 November 2002
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
PRACTICE COURT
No. 7126 of 2002
| PROFIT GAIN DEVELOPMENTS (AUST) PTY LTD (ACN 007 084 148) and MEI LAN TSOI POON | Firstnamed Plaintiff Secondnamed Plaintiff |
| v | |
| CHARNLEY VALE PTY LTD (ACN 056 928 422) | Defendant |
No. 7378 of 2002
| CHARNLEY VALE PTY LTD (ACN 056 928 422) | Plaintiff |
| v | |
| MEI LAN TSOI POON and REGISTRAR OF TITLES | Firstnamed Defendant Secondnamed Defendant |
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JUDGE: | Balmford J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 & 29 October 2002 | |
DATE OF JUDGMENT: | 13 November 2002 | |
CASE MAY BE CITED AS: | Profit Gain Developments v Charnley Vale | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 488 | |
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Transfer of proceeding – Matter within the jurisdiction of both Supreme Court and County Court – Courts (Case Transfer) Act, section 30
County Court Act 1958 – section 37
Courts (Case Transfer) Act 1991 – section 30
Property Law Act 1928 – sections 3, 49(2),
Transfer of Land Act 1958 – sections 4(1), 90(3), 118
Bantick v Boss Properties Pty Ltd (No 2) [2000] VSC 165
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs in No 7126 and the Firstnamed Defendant in No 7378 | Mr S Chizik | C Tang & Associates |
| For the Defendant in No 7126 and the Plaintiff in No | Mr P Barton | A Agrotis & Associates |
7378
HER HONOUR:
This is the return of a summons filed on 17 October 2002 seeking the transfer to the County Court of proceeding Number 7126 of 2002.
By a contract dated 15 February 2002 the defendant in proceeding No 7126 of 2002 and plaintiff in proceeding No 7378 of 2002 (“Charnley Vale”) sold to the secondnamed plaintiff in proceeding No 7126 of 2002 and firstnamed defendant in proceeding No 7378 of 2002 (“Mrs Tsoi”) and/or her nominee the property known as 31 Peter Street Box Hill North and being the whole of the land described in Certificate of Title Volume 8051 Folio 263 (“the land”) for a purchase price of $500,800 inclusive of GST. A total of $50,800 was paid by way of deposit, $10,000 on the signing of the contract and the balance on 21 March 2002. On 15 March 2002 Mrs Tsoi nominated the firstnamed plaintiff in proceeding No 7126 of 2002 (“Profit Gain”) to be the purchaser under the contract.
In proceeding No 7126 of 2002 (“the deposit proceeding”) Profit Gain and Mrs Tsoi applied under section 49(2) of the Property Law Act 1928 (“the PLA”) for:
(i)a declaration that the contract has been avoided by the plaintiffs by reason of the failure of the defendant to comply with section 137B(2) of the Building Act 1993;
(ii)a declaration that the contract has been rescinded by the plaintiffs by reason of the defendant’s failure to comply with section 32(1A)(c) of the Sale of Land Act 1962; and
(iii)an order for the return of the deposit.
In proceeding No 7378 of 2002 (“the caveat proceeding”) Charnley Vale seeks an order that the caveat No AB26255Y lodged by or on behalf of Profit Gain on the Certificate of Title to the land be removed pursuant to section 90(3) of the Transfer of Land Act 1958 (“the TLA”), and compensation pursuant to section 118 of the TLA on the ground that the caveat was lodged without reasonable cause. The secondnamed defendant in that proceeding notified the court on 30 September 2002 that on the basis of present information he did not intend to appear in the action.
On 17 October 2002 Charnley Vale, as defendant in the deposit proceeding, applied under section 30 of the Courts (Case Transfer) Act 1991 (“the Case Transfer Act”) for that proceeding to be transferred to the County Court sitting at Melbourne. Mr Barton, for Charnley Vale, submitted at the outset that if the deposit matter were transferred it would also be appropriate for the claim under section 118 of the TLA to be transferred to the County Court, assuming that this Court had already dealt with the matter of the caveat.
Section 30(1) of the Case Transfer Act reads:
30.Other transfers
(1)The Supreme Court (constituted by a judge) or the County Court (constituted by a judge) may, of its own motion or on the application of a party to a proceeding pending in that court, order that the proceeding be transferred to a lower court.
(2)An order may only be made by a court under sub-section (1) if it is satisfied –
(a)that it does not have exclusive jurisdiction to hear and determine the proceeding; and
(b)that -
(i)the lower court has jurisdiction to hear and determine the proceeding; or
(ii)the parties consent to the transfer; and
(c)that in all the circumstances it is desirable to make the order.
Section 49(2) of the PLA empowers “the Court” to order the return of a deposit in respect of a contract for the sale of any interest in land. Section 3 of that Act reads:
3.Definition
In this Act unless inconsistent with the context or subject-matter, “Court” means the Supreme Court of Victoria and, in relation to property the value of which property does not exceed the jurisdictional limit of the County Court, the Supreme Court or the County Court.
Section 4(1) of the TLA contains a similar provision, which is relevant to the applications in the caveat proceeding.
Section 37 of the County Court Act 1958 (“the County Court Act”) reads, so far as relevant:
37.Extent of jurisdiction
(1)The court has jurisdiction to hear and determine -
(a)all applications, claims, disputes and civil proceedings regardless of the type of relief sought or the subject-matter as are not by this or any other Act excluded from its jurisdiction; and
.. .
(c)all other civil proceedings in respect of which jurisdiction is given to the court by this or any other Act.
(2)The court does not have jurisdiction to hear or determine any application, claim, dispute or other civil proceeding (other than proceedings to which sub-section (1)(b) or (c) applies) -
(a)in which the amount sought to be recovered or the value of the subject matter is more than the jurisdictional limit unless the parties consent in writing; or
(b)by which title to any property, the value of which at the time of commencement of the proceeding is greater than the jurisdictional limit, is sought to be affected unless the parties consent in writing; or
.. .
Section 3 of that Act provides:
3. Definitions
(1)In this Act, unless the context or subject-matter otherwise requires:
.. .
"jurisdictional limit" means -
(a)in a proceeding in which damages are claimed that consist of or include damages in respect of personal injury - unlimited; and
(b)in any other proceeding other than a criminal proceeding - $200,000.
The parties are in agreement that the contract of sale is no longer in force, although there is a dispute as to which party effected the rescission. That being so, the title to the property is not sought to be affected in either proceeding.
In Bantick v Boss Properties Pty Ltd (No 2)[1] , Gillard J was concerned with the question of whether costs were to be awarded on the Supreme Court or the County Court scale, the plaintiff having succeeded in a claim for return of the deposit under a contract of sale of land. The plaintiff had also sought declaratory relief, but that claim had not been pressed. His Honour found that the proceeding was “a proceeding for debt or damages” in terms of Rule 63.24(1) of the Rules, and that the claim for a declaration was unnecessary and superfluous to the real cause of the plaintiff’s complaint. That is also the situation here.
[1][2000] VSC 165
I am satisfied that in the deposit proceeding the amount sought to be recovered is the amount of the deposit, which is less than the jurisdictional limit of the County Court. There is no issue by which title to the property is sought to be affected, which would take the matter out of the jurisdiction of the County Court by virtue of section 37(2)(b) of the County Court Act. Similarly the caveat proceeding does not affect the title to the property, and the amount of compensation sought to be recovered under section 118 of the TLA is unlikely to exceed $200,000.
Accordingly, I am satisfied, in terms of sections 30(1) and 30(2)(a) of the Case Transfer Act that this Court does not have exclusive jurisdiction to hear and determine either proceeding and that the County Court has jurisdiction to hear and determine both of them. The difference in scales of costs between the two courts is sufficient to satisfy me that in all the circumstances it is desirable that both proceedings be transferred to the County Court and that they be heard together. It does not seem to me appropriate that two proceedings, arising directly out of the same transaction, should be litigated piecemeal and separately, in different courts, with resulting additional and unnecessary costs.
Although no formal application has been made for the transfer of the caveat proceeding to the County Court, I note the submission of Mr Barton referred to in [5] above. In any case, the Court is empowered by section 30 of the Case Transfer Act to make an order under that section of its own motion. Accordingly there will be orders that both proceedings be transferred to the County Court sitting at Melbourne. Counsel may wish to make submissions as to the form of the orders to be made and as to costs.
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