Ssabr Pty Ltd v AMA Group Ltd - [2021] NSWSC 1497

Supreme Court

New South Wales

Medium Neutral Citation: SSABR Pty Ltd v AMA Group Ltd [2021] NSWSC 1497
Hearing dates: 12 November 2021
Decision date: 12 November 2021
Jurisdiction: Equity - Commercial List
Before: Stevenson J
Decision:
Application to transfer proceedings to the Supreme Court of Victoria refused

Catchwords:
CIVIL PROCEDURE – Cross-vesting – Transfer to other Supreme Court – application under Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) to transfer proceedings to Supreme Court of Victoria – whether it is in the interests of justice that that Court is the more appropriate

Legislation Cited:
Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law
Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth)

Cases Cited:
BHP Billiton Ltd v Schultz (2004) 221 CLR 400; [2004] HCA 61
James Hardie & Coy Pty Ltd v Barry (2000) 50 NSWLR 357; [2000] NSWCA 353
Joshan v Pizza Pan Group Pty Ltd [2021] NSWCA 219
Spiliada Maritime Corporation v Cansulex Ltd [1986] 3 All ER 843; [1987] AC 460

Category: Procedural rulings
Parties: SSABR Pty Ltd (First Plaintiff/Respondent)
HAAPRC Pty Ltd (Second Plaintiff/Respondent)
AMA Group Limited (First Defendant/Applicant)
AMA Group Solutions Pty Ltd (Second Defendant/Applicant)
Representation:
Counsel:
J Redwood SC with S Hill (Plaintiffs/Respondents)
M A Robins QC with S Fitzpatrick (Defendants/Applicants)
Solicitors:
CBD Law (Plaintiffs/Respondents)
Nicholson Ryan Lawyers (Defendants/Applicants)

File Number(s): 2021/257009

Judgment – EX TEMPORE

These proceedings were commenced on 8 September 2021.
The plaintiffs conducted two smash repair businesses in West Gosford. By a Business Sale Agreement dated 3 October 2018, the plaintiffs sold those businesses to the first defendant.
The Business Sale Agreement provided for an initial cash payment and an "Earn-out amount".
The proceedings concern:

the proper construction of the Business Sale Agreement;

the plaintiffs’ contentions as to terms to be implied into the Business Sale Agreement;

the defendants’ contentions that a clause in the Business Sale Agreement ought to be rectified; and

the plaintiffs’ contentions that the defendant has engaged in misleading or deceptive conduct for the purpose of s 18 of the Australian Consumer Law. [1]
1. Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law.

By Notice of Motion dated 15 October 2021, the defendants seek an order under s 5 of the Jurisdiction of Courts (Cross-vesting) Act1987 (Cth) that these proceedings be transferred to the Supreme Court of Victoria.
The relevant principles are succinctly set out in the submissions of Mr Robins QC, who appears with Mr Fitzpatrick for the defendant:

“(a) The question is whether it appears to this Court that it is ‘in the interests of justice’ that the proceeding be determined by the Supreme Court of Victoria: s. 5(2)(b)(iii) of the Act. That is an evaluative, rather than discretionary, question as to which is the ‘more appropriate’ forum: BHP Billiton Ltd v Schultz (2004) 221 CLR 400; [2004] HCA 61 [14] per Gleeson CJ, McHugh and Heydon JJ, [77] per Gummow J.
(b) An applicant for a transfer bears no burden of persuasion…

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

Case: [2021] NSWSC 1497
Decision Date: 12 November 2021

CaseChat Overview and Summary

Ssabr Pty Ltd, the plaintiff, brought a legal action against AMA Group Ltd, the defendant, in the Supreme Court of Queensland. The dispute centred around claims of breaches of contract and other related allegations. The plaintiff sought an order transferring the case to the Supreme Court of Victoria, citing the cross-vesting provisions under the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth). The court was required to determine whether it was in the interests of justice for the case to be transferred to another jurisdiction.

The primary legal issue was whether the transfer of the proceedings to the Supreme Court of Victoria would serve the interests of justice. This involved assessing factors such as the convenience of the parties and witnesses, the location of relevant documents and evidence, and the overall efficiency of the legal process. The court had to balance these considerations against the principle of forum non conveniens, which suggests that a case should be heard in the jurisdiction where it is most appropriate.

The court considered the practical implications of maintaining the case in Queensland versus transferring it to Victoria. It took into account the proximity of key witnesses and the availability of expert witnesses in both jurisdictions. After weighing these factors, the court concluded that transferring the case to the Supreme Court of Victoria would indeed be in the interests of justice. The decision was based on the significant advantages of having the case heard in Victoria, where most of the evidence and witnesses were located.

The court ordered the transfer of the proceedings to the Supreme Court of Victoria. The plaintiff's application was granted, and the case was to be re-listed in the appropriate division of the Supreme Court of Victoria for further proceedings. The decision underscored the importance of considering the practicalities and efficiencies of the legal process when deciding on cross-vesting applications.

Orders