Smartscaff Pty Ltd v Capital Scaffolding Pty Ltd

[2017] VSC 814

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
COMMERCIAL COURT

S ECI 2017 00130

SMARTSCAFF PTY LTD (ACN 146 220 260)	Plaintiff
v
CAPITAL SCAFFOLDING PTY LTD (ACN 613 162 511)	Defendant

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JUDGE:	Robson J
WHERE HELD:	Melbourne
DATE OF HEARING:	4 October 2017
DATE OF RULING:	4 October 2017
CASE MAY BE CITED AS:	Smartscaff Pty Ltd v Capital Scaffolding Pty Ltd
MEDIUM NEUTRAL CITATION:	[2017] VSC 814

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CIVIL PROCEDURE — Application for matter to be transferred from Victoria to New South Wales — Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) — Irwin v The State of Queensland (2011) VSC 291 — Interests of justice — Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D Triaca	Macpherson Kelly
For the Defendant	Mr A Spencer	Brown & Partners Solicitors

HIS HONOUR: 

1. I have before me an application by Capital Scaffolding Pty Ltd, who I will call the third company, for orders pursuant to s 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), that these proceedings be transferred from the Supreme Court of Victoria to the Supreme Court of New South Wales. The proceeding in Victoria has been commenced by way of originating motion by Smartscaff Pty Ltd (Smartscaff) against Capital Scaffolding Pty Ltd and Ganellen Pty Ltd. The proceedings against Ganellen Pty Ltd were subsequently dismissed.

1. Smartscaff has prepared a statement of claim, which has been provided to the third company, but not formally filed or served.  Smartscaff is in the business of hiring scaffolding, and it alleges that it leased some 900 tonnes of scaffolding to a company controlled by Mr Slobodan (Denny) Aleksic called Capital Scaffold NSW Pty Ltd (in liq).  The scaffolding, as I understand it, was provided from the plaintiff’s site in Ingleby, New South Wales, which I am informed is a suburb in the west of Sydney.

1. Capital Scaffold NSW Pty Ltd (in liq), which I will call the first company, also had a site at Ingleby from which it then made available to builders, no doubt for a fee, the scaffolding that it had hired from Smartscaff. 

1. Capital Scaffold NSW Pty Ltd (in liq) became insolvent and went into liquidation.  The scaffolding stock of Smartscaff, was taken over by another company controlled by Mr Denny Aleksic called Capital Scaffolding N.S.W. Pty Ltd (in liq), the second company.  The plaintiff Smartscaff then entered into a hiring agreement with the second company. 

1. The second company also went into liquidation, and the stock of scaffolding was taken over by the third company, now the defendant, Capital Scaffolding Pty Ltd, also under the control of Mr Denny Aleksic.

1. Mr Denny Aleksic has gone into bankruptcy and his son, Mr Nebojsa (Ned) Aleksic, is the sole director of the defendant.  The affidavit material shows that the son has limited knowledge about this transaction, and I can only infer that he obtained that information from his father.  I also infer that the father is still running the defendant’s business. 

1. The defendant submits that I should be satisfied that it appears to this court that it is in the interests of justice that the relevant proceeding be determined in the Supreme Court of New South Wales, as all the relevant witnesses that the defendant would seek to call reside in New South Wales.  If it so appears to this court, then I accept that I am bound to transfer the proceedings to the Supreme Court of New South Wales.  The relevant principles have been canvassed by me in the case of Irwin v The State of Queensland (2011) VSC 291.

1. The defendant says that the transactions in issue, that is, the providing of scaffolding by Smartscaff to the defendant to this proceeding, have taken place in New South Wales.  Mr Denny Aleksic, who seems to be the source of information about what the defendant has done, or not done, with respect to the scaffolding, reside in or proximate to Sydney, notwithstanding the plaintiff contends his address is in Canberra.

1. Other witnesses who may be able to give evidence as to what happened to the stock, that was in the possession of the defendant at its site in Ingleby, also, I infer, are residents of New South Wales. 

1. The plaintiff says it alleges that, according to its accounting records, it delivered 973 tonnes of scaffolding to either the first or second company (and, in my view, it does not really matter which, as they are all under the control of Mr Denny Aleksic) and only 320 tonnes have since been returned.

1. A demand for the return of the scaffolding has been made, and the allegation is that the defendant has failed to return the 320 tonnes of scaffolding.  The causes of action are conversion and detinue, that the defendant has converted the goods for its own purpose, or has improperly detained them.

1. I agree with counsel for the plaintiff that there is no difference in the law between the two states, that there is only one common law of Australia and the claims are in tort. 

1. The plaintiff says that essentially the case is going to be an accounting exercise, going through the plaintiff’s records of what it delivered to Mr Aleksic’s companies and what it has received back.  There is likely to be evidence of sightings of the plaintiff’s scaffolding at other building sites in New South Wales. 

1. The distinctive factor about this case, which separates it from many of the other cases where an application is made to transfer proceedings, is that this is a commercial dispute between corporations concerning significant sums of money.  It is not a case of personal injuries where doctors need to be called and people, who are not involved in commerce, may have witnessed things. 

1. I do not think in a commercial case, such as this, very much turns on whether the witness is giving evidence in Melbourne or Sydney, as they still have to take a day off work and travel, whether in a plane or car.  As I said, it is not a case where it is awkward for one party to continue the case in one state, because they have got medical witnesses, or the witnesses they call are lay people where it is difficult for them to travel and the like. 

1. From a practical level, I can see very little, if any, inconvenience to one party or another of holding the hearing in either Melbourne or Sydney.  It has to appear to me that in the interests of justice, that the matter should be heard in the Supreme Court of New South Wales as opposed to the Supreme Court of Victoria.  On the basis that this is a commercial matter between corporations, where there is no evidence that the relevant witnesses would not be able to come to Melbourne, or find it difficult to come to Melbourne, I am not satisfied that it appears to me that it is in the interests of justice that it be heard in Sydney, rather than Melbourne.  For those reasons, I dismiss the application.