Seventeenth Febtor Pty Ltd v Veldara Pty Ltd

[1999] QSC 196

IN THE SUPREME COURT

OF QUEENSLAND  No. 1493 of 1999

Brisbane

[Seventeenth Febtor Pty Ltd v Veldara Pty Ltd]

BETWEEN:

SEVENTEENTH FEBTOR PTY LTD (In Liquidation)
ACN 006 263 074

Plaintiff

AND:

VELDARA PTY LTD ACN 070 003 164

Defendant

REASONS FOR JUDGMENT - ATKINSON J

Judgment delivered 20 August 1999

CATCHWORDS:     PROCEDURE - COURTS AND JUDGES GENERALLY - COURTS - CONCURRENT JURISDICTION OF DIFFERENT COURTS - TRANSFER OF PROCEEDINGS - WHERE APPROPRIATE AND IN INTERESTS OF JUSTICE - COMPANIES - application to transfer action from Queensland to Victoria - where subject of the action is mortgage over land in Queensland - where no suggestion that practical reasons would favour Victoria.

Counsel:  PA Looney for the applicant/defendant.

Solicitors:                   Peter Rowe, solicitor, as town agent for Oakley Thompson & Co Solicitors for the applicant/defendant.

Clarke and Kann for the respondent/plaintiff.

Hearing Date: 3 June 1999

IN THE SUPREME COURT

OF QUEENSLAND  No.1493 of 1999

Brisbane

BETWEEN:

SEVENTEENTH FEBTOR PTY LTD (In Liquidation)
ACN 006 263 074

Plaintiff

AND:

VELDARA PTY LTD ACN 070 003 164

Defendant

REASONS FOR JUDGMENT - ATKINSON J

Judgment delivered 20 August 1999

1. On 3 June 1999 I dismissed an application that the proceeding commenced by Writ No. 1493 of 1999 between Seventeenth Febtor Pty Ltd (In Liquidation) (ACN 006 263 074) and Veldara Pty Ltd (ACN 070 003 164) be transferred to the Supreme Court of Victoria at Melbourne and ordered that the defendant pay the costs of and incidental to the notice of motion to be taxed.  On that occasion I also adjourned an application for judgment on the basis of admissions to allow the defendant to place further material before the Court.  I gave directions about the filing of material and relevant disclosure.  I now give my reasons for the decision dismissing the transfer application.

2. The application for transfer to the Supreme Court of Victoria was made pursuant to s. 44 of the Corporations (Queensland) Act 1990 which empowers the Court to transfer a proceeding with respect to a civil matter arising under the Corporations Law of Queensland. Section 44(2) provides:

   “Where it appears to the court that, having regard to the interests of justice, it is more appropriate for the proceeding, or an application in the proceeding, to be determined by another court having jurisdiction in the matters for determination in the proceeding or application, the first-mentioned court may transfer the proceeding or application to that other court.”

Section 44B provides that in deciding whether or not to order such a transfer the court must have regard to:

“(a)the principal place of business of any body corporate concerned in the proceeding or application; and

(b)the place or places where the events that are the subject of the proceeding or application took place;

(c)the other courts that have jurisdiction to deal with the proceeding or application.”

1. This matter is a civil matter arising under the Corporations Law and so s. 44 operates, under s. 40 of the Corporations (Queensland) Act 1990, to the exclusion of the jurisdiction of Courts (Cross-vesting) Act 1987. 

2. In this case the plaintiff has no principal place of business as it is in liquidation.  The defendant carries on business in Victoria.  The mortgage which is the subject of the action was prepared in Queensland and relates to land that is in Queensland. 

3. The litigation is concerned with the following allegations.  The bill of mortgage concerns property of which the plaintiff is mortgagee and the mortgagor is Queensland Premier Mines Pty Ltd (ACN 010 614 552) and the land is land as described in Title Reference 30205056, County of Livingstone, Parish of Yeppoon, having the description Lot 8 on RP 602399.  That mortgage was executed on 10 April 1992.  It was drawn up by a Queensland firm of solicitors, Swanwick, Murray & Roche.  A deed of retirement of existing trustee and appointment of new trustee was executed on 8 May 1997 whereby the defendant became the new trustee in place of the plaintiff as retiring trustee.  The transfer of the mortgage was lodged by Messrs Hunt & Hunt Solicitors of Brisbane with the Registrar of Titles in Queensland on 7 October 1998.  On 27 November 1998 a caveat was lodged by Clarke and Kann Lawyers of Brisbane on behalf of the plaintiff with the Registrar of Titles in Queensland. 

4. Any change to the identity of the mortgagee would require a change to the register in Queensland by the Registrar of Titles.  Relief sought on the writ which was filed on behalf of the plaintiff on 18 February 1999 was for:

   “1.A declaration that the Deed of Retirement of Existing Trustee and Appointment of New Trustee made 8 May 1998 is voidable pursuant to s. 588FE of the Corporations Law;

   2.A declaration that the Plaintiff is entitled to the benefit of Mortgage 601155648 registered on Lot 8 RP 602399 County of Livingstone Parish of Yeppoon (Title Reference 30205056);

   3.A mandatory injunction requiring the Defendant, its officers, servants, employees or directors to execute all and any documents required to transfer from the Defendant to the Plaintiff the benefit of Mortgage 601155648 registered on Lot 8 RP 602399 County of Livingstone Parish of Yeppoon (Title Reference 30205056);

   4.Costs.”

1. In considering an application under s. 44, McLelland J in Re Terranora Leisure Time Sales Pty Ltd[1] referred to the decision of Debelle J in JN Taylor Finance Pty Ltd (in liq) v. BCF (Bond Corporation Finance) Ltd[2] where his Honour held that the factors referred to in s. 44(3) did not mean “that a consideration of those factors will necessarily dictate the ultimate result ... The court retains an overriding discretion and is at liberty to have regard to such other factors as might be relevant”.

   [1](1991) 9 ACLC 1,111 at 1,113.

   [2](1991) 9 ACLC 819 at 824.

2. In this case a factor of great relevance is that the Register of Titles in Queensland would need to be amended and that the mortgage documents were prepared and executed in Queensland.  There is no suggestion that practical reasons would favour Victoria.  As the plaintiff further submitted there is no suggestion that the matter could be more speedily determined in Victoria; that particular witnesses would have to be called by the defendant at any stage in the proceedings and that those witnesses would be greatly inconvenienced by a trial in Queensland; that the volume of documentation held by the defendant in Victoria is great; that the defendant will not need to call witnesses from Queensland; or that the costs which would be incurred by the defendant in proceedings in Queensland would be prohibitive.  Indeed one essential witness lives in Sri Lanka and would have to travel from there to attend any trial. 

3. The material shows a much stronger connection with Queensland than with Victoria.  In my view then the more appropriate court for hearing this dispute between these parties is the Supreme Court of Queensland and for these reasons I declined to transfer these proceedings to the Supreme Court of Victoria.