SARAH CIVIL PTY LTD v STORK ICM PTY LTD (Applicant) No. SCGRG-98-2448 Judgment No. 6713 Number of Pages - 8 Procedure - Cross Vesting - [1998] SASC 6713

SARAH CIVIL PTY LTD V STORK ICM AUSTRALIA PTY LTD

Civil

LANDER J

On 20 February 1998 the plaintiff issued a summons with a statement of claim annexed claiming damages for breach of contract against the defendant in the sum of $3,115,658.85.

It is alleged in the statement of claim that the plaintiff and defendant entered into a contract on 17 January 1996 the terms of which required the plaintiff to carry out certain building works being earthworks and civil building works at Ballera in the State of Queensland. All of the work was carried out in Queensland.

It is claimed that work commenced on the site in March 1996 and continued until, I think, January 1997.

The plaintiff claims that the defendant has failed to make a number of payments which the defendant was obliged to make under the contract. The claims are for payments for Schedule of Rates; Day Works; Extra Works; Back Charges; Wages and On Costs Claims; and Insurance Claims.

On 18 March 1998 the defendant filed an application seeking orders that these proceedings be stayed until further order or that the proceedings be removed or transferred from this Court to the Supreme Court of Queensland pursuant to the provisions of the Jurisdiction Of Courts (Cross Vesting) Act 1987.

It is with that application that I am presently concerned.

A number of affidavits have been filed by both the defendant in support of its application and the plaintiff in answer to the application.

I shall set out the relevant facts.

The plaintiff is incorporated in this State and carries on its business from this State. The defendant is incorporated in Victoria and its administration centre is in that State. Both parties’ connection with Queensland arises out of the head contract and the sub contract.

The defendant entered into a head contract with Santos Limited on 21 November 1995 pursuant to which the defendant agreed to design and construct a gas treatment facility in South West Queensland at Ballera, which is about 1,000 kilometres west of Brisbane. It entered into a sub contract with the plaintiff pursuant to which the plaintiff was to carry out earthworks and civil works. The sub contract sum was $5,082,748.07 which sum was based on a Schedule of Rates and Estimated Quantities set out in a Bill of Quantities which was attached to the sub contract.

On the same day as the defendant issued this application it also issued proceedings in the Supreme Court of Queensland against the plaintiff. A week later it filed its statement of claim in those proceedings.

The claim brought by the defendant in the Supreme Court of Queensland could have been brought in the proceedings in this State by way of counterclaim. That was frankly admitted by Mr Manly who appeared for the defendant on this application.

The claim is for the sum of $861,468 together with interest. The claim is made under four heads. The sum of $168,848 is claimed for moneys paid pursuant to a…

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

AGLC: SARAH CIVIL PTY LTD v STORK ICM PTY LTD (Applicant) No. SCGRG-98-2448 Judgment No. 6713 Number of Pages - 8 Procedure - Cross Vesting [1998] SASC 6713
Case: [1998] SASC 6713
Decision Date: 12 June 1998

CaseChat Overview and Summary

Sarah Civil Pty Ltd brought an action against Stork ICM Australia Pty Ltd for damages for breach of contract. The dispute arises from a subcontract under which Sarah Civil Pty Ltd was to carry out certain building works in Queensland. Stork ICM Australia Pty Ltd, seeking to have the matter heard in Queensland, applied to have the proceedings cross vested to the Supreme Court of Queensland. The central issue before the court was whether it was in the interests of justice to transfer the proceedings to Queensland. The court considered several factors, including the contractual choice of law and forum, the location of relevant documents, the complexity of the claims, and the inconvenience and cost to the parties of having the trial in another state. The court found that, while there were some objective factors favoring the transfer to Queensland, such as the location of some documents and witnesses, these factors were not decisive. The court concluded that it was not in the interests of justice to require the plaintiff to continue the proceedings in Queensland, as the plaintiff had chosen this jurisdiction and the matter was justiciable in South Australia. Therefore, the application for cross vesting was dismissed.

The court's decision hinged on the broader considerations of justice and fairness in the litigation process. While acknowledging that the defendant would face some inconvenience if the proceedings continued in South Australia, the court found that the plaintiff would face greater inconvenience and increased costs if the matter was transferred to Queensland. Given that the defendant would still need to manage the case from Victoria, the court concluded that the balance of convenience favored keeping the proceedings in South Australia. The court also noted that the plaintiff, having performed its obligations under the subcontract in Queensland, had a legitimate interest in having the matter heard in the state where it conducted its business. Ultimately, the court's ruling reflected a pragmatic approach to balancing the interests of both parties, emphasizing that the decision should not be driven solely by the defendant's preference for a different jurisdiction.

Orders