Provectus Care Pty Ltd v Epicor Software (Aust) Pty Ltd

[2009] NSWSC 1281

CITATION:	Provectus Care Pty Ltd v Epicor Software (Aust) Pty Ltd [2009] NSWSC 1281
HEARING DATE(S):	6 November 2009
JUDGMENT DATE :	6 November 2009
JURISDICTION:	Equity
JUDGMENT OF:	White J
EX TEMPORE JUDGMENT DATE:	6 November 2009
DECISION:	1. Make orders in accordance with paragraphs 1, 2, 3 and 4 of the summons; 2. order that the plaintiff's costs of the application for the transfer of the proceedings be the plaintiff's costs in the proceedings; 3. order that the plaintiff in these proceedings file its defence and cross-claim within seven days; 4. order the defendant in this Court, (plaintiff in the Local Court), file its defence to cross-claim seven days after that, being 20 November 2009; 5. stand the proceedings over to the Registrar's list on Wednesday, 25 November 2009.
CATCHWORDS:	PROCEDURE - transfer of proceedings - cross-claim in local court proceedings brings matter beyond monetary jurisdiction of local court - consideration of jurisdiction of District Court - sufficient doubt as to whether District Court would have jurisdiction - proceedings transferred to Supreme Court
LEGISLATION CITED:	Civil Procedure Act 2005 (NSW) Trade Practices Act 1974 (Cth) District Court Act 1973 (NSW)
CATEGORY:	Procedural and other rulings
CASES CITED:	Ryner Pty Ltd v Roller [2007] NSWSC 372
PARTIES:	Plaintiff: Provectus Care Pty Ltd Defendant: Epicor Software (Aust) Pty Ltd
FILE NUMBER(S):	SC 14803/09
COUNSEL:	Plaintiff: E Peden Defendant: D R Meltz
SOLICITORS:	Plaintiff: S Moran & Co Defendant: Coleman & Greig

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WHITE J

Friday, 6 November 2009

14803/09 Provectus Care Pty Ltd v Epicor Software (Aust) Pty Ltd

JUDGMENT

1 HIS HONOUR: In these proceedings the plaintiff, whom I will call Provectus Care, seeks an order pursuant to s 140(1) of the Civil Procedure Act 2005 (NSW) for the transfer of proceedings from the Local Court to this Court.

2 In the Local Court, Provectus Care is the defendant. The plaintiff there is Epicor Software (Aust) Pty Ltd. It sues Provectus Care for $14,505.95 for services rendered to Provectus Care between August and September 2008.

3 Provectus Care proposes to file a defence denying that it is indebted for the services rendered and relying upon a cross-claim. The cross-claim seeks rescission pursuant to s 87(1A) of the Trade Practices Act 1974 (Cth) of two agreements called a licence agreement and a service agreement, both said to have been entered into on or about 18 October 2007. The proposed cross-claim alternatively seeks "rescission of contracts at common law and repayment of $101,961.61".

4 In the proposed cross-claim Provectus Care pleads that it entered into those agreements in reliance on a representation alleged to have been made on behalf of Epicor Software that a particular software package included a certain software component that allowed on-line Medicare claims. It is not alleged that the representation was fraudulent. The reference in the proposed cross-claim to rescission of the contracts at common law is clearly enough intended to be a reference to rescission of the contracts in equity; given that the representation is not alleged to be a fraudulent representation and given that the contracts appear to have been partly performed.

5 The relief sought in the proposed cross-claim includes repayment of the sum of $101,961.61. The claim in the proposed cross-claim is outside the jurisdiction of the Local Court. The parties are at issue as to whether it is within the jurisdiction of the District Court.

6 Prima facie it would appear to me that the claim for rescission in reliance on s 87(1A) of the Trade Practices Act is a claim which would be within the jurisdiction of the District Court pursuant to s 86(2) of that Act, and by reason of s 135 of the District Court Act 1973 is not excluded by s 86(3) of the Trade Practices Act. The District Court may exercise jurisdiction in which relief is sought under the Fair Trading Act 1987 (NSW) and is within the monetary jurisdiction of the District Court of $750,000. Such relief would include relief under s 72 of the Fair Trading Act, which is a cognate provision to s 87 of the Trade Practices Act.

7 It appears from a decision of Price J in Ryner Pty Ltd v Roller [2007] NSWSC 372 that a different view was taken by at least one judge in the District Court. (See at [15] where that judge apparently concluded that the District Court would not have jurisdiction under s 87 of the Trade Practices Act.) Price J found it unnecessary to decide the question, but concluded that the proceeding should be transferred to this Court where there can be no jurisdictional controversy.

8 The claim for rescission in the proposed cross-claim appears to me to be a claim for rescission in equity. Although a view may have been formed by at least one judge in the District Court that that Court would have jurisdiction in respect of such a claim, that question might also be controversial. Prima facie it would appear to turn on the question of whether such a claim as is sought in the proposed cross-claim would, as at 2 February 1998, have been assigned to the Common Law Division or to the Equity Division if commenced in this court. (See s 44(1)(a)(1) of the District Court Act 1973 (NSW).)

9 That is not a straightforward question, particularly as that claim is associated with the claim under the Trade Practices Act and proceedings in which a claim was made for relief under the Fair Trading Act were assigned by the rules to either the Common Law Division or the Equity Division, as was appropriate to the nature of the proceedings.

10 I think there is sufficient doubt as to whether the District Court would have jurisdiction in the matter that the proceedings should be transferred to this Court, so that the parties do not suffer if it be ultimately held that the District Court would not have jurisdiction.

11 For these reasons I make orders in accordance with paragraphs 1, 2, 3 and 4 of the summons.

[The parties addressed on costs.]

12 The plaintiff has been successful on the application. On the other hand, if the plaintiff ultimately fails on its cross-claim, then it will be seen at that time that its cross-claim ought not to have been brought, and the matter should have stayed in the Local Court. I think the appropriate order in those circumstances is that the plaintiff's costs of the application for the transfer of the proceedings be the plaintiff's costs in the proceedings.

13 I order that the plaintiff in these proceedings file its defence and cross-claim within seven days and the defendant in this Court, (plaintiff in the Local Court), should file its defence to cross-claim seven days after that, being 20 November 2009. I stand the proceedings over to the Registrar's list on Wednesday, 25 November 2009.

******