Triple Take Pty Ltd v Clark Rubber Franchising Pty Ltd

[2004] NSWSC 485

CITATION:	Triple Take Pty Ltd v Clark Rubber Franchising Pty Ltd [2004] NSWSC 485
HEARING DATE(S):	23/04/04
JUDGMENT DATE:	23 April 2004
JURISDICTION:	Equity Division Commercial List
JUDGMENT OF:	Einstein J
DECISION:	Motion dismissed.
CATCHWORDS:	Practice and Procedure - Cross Vesting - Motion to Cross Vest
LEGISLATION CITED:	Jurisdiction of Courts (Cross Vesting) Act 1987 (NSW)
CASES CITED:	Bankinvest AG v Seabrook (1988) 14 NSWLR 711 Bourke v State Bank of New South Wales (1988) 22 FCR 378 Chapman v Jansen (1990) 100 FLR 66 Dawson v Baker (1994) 120 ACTR 11 Hoddell v Hoddell Pty Ltd [1999] WASC 156 James Hardie & Coy Pty Ltd v Barry (2000) 50 NSWLR 357 Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460
PARTIES :	Triple Take Pty Ltd (Plaintiff) Clark Rubber Franchising Pty Ltd (Defendant)
FILE NUMBER(S):	SC 50020/04
COUNSEL:	Mr D Hammerschlag SC, Mr R Bellamy (Plaintiff) Mr P Walsh (Defendant)
SOLICITORS:	Slater & Gordon (Plaintiff) Mason Sier Turnbull (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
COMMERCIAL LIST

Einstein J

Friday 23 April 2004 ex tempore
Revised 3 June 2004

50020/04 Triple Take Pty Ltd v Clark Rubber Franchising Pty Ltd

JUDGMENT

1 There is before the Court in proceedings No. 50020/04 a notice of motion by which the defendant Clark Rubber Franchising Pty Limited seeks an order pursuant to section 5(2) of the Jurisdiction of Courts (Cross Vesting) Act 1987 (NSW) that the proceedings be transferred to the Supreme Court of Victoria.

2 Although the notice of motion in terms seeks an alternative order staying the proceedings, it has been made plain to the Court by Mr Walsh of counsel who appears for the defendant/applicant that the stay order is not pursued otherwise than as tangential to the transfer orders sought in paragraph 1 of the motion. The motion is contested.

3 The short position is that the proceedings commenced by summons filed on 17 March 2004. The plaintiff, Triple Take Pty Limited, has pleaded that it entered into an agreement with the defendant in March 1995 whereunder the defendant appointed the plaintiff as the defendant’s master co-ordinator in New South Wales.

4 The plaintiff’s case concerns an alleged entitlement under the agreement to exercise an option to renew the agreement, it having been, it is pleaded, a term of the agreement that at the conclusion of the initial nine year period of the agreement the plaintiff had an option to renew the agreement on two separate occasions for nine year periods respectively.

5 The plaintiff’s stance in the pleading is that it exercised that option to renew on 28 October 2003; that on several occasions the defendant has alleged that the plaintiff has breached the agreement and has refused to acknowledge or take any steps to effect renewal of the agreement; that the defendant has refused to specify the alleged breaches of the agreement; that on 20 February 2004 the defendant advised the plaintiff that the agreement would not be extended and that the agreement has been extended and is on foot.

6 The stage which the proceedings have reached in formal terms is simply that, namely the filing of the summons, followed shortly by the filing of the motion the subject of this judgment.

7 Albeit that the principled approach to determining an application such as that presently before the Court appears to be that there is high significance in the swift bringing of an application for a matter to be cross vested, the circumstance that the applicant/defendant on such a motion has not been in a position even from the bar table [or by tendering a draft], to identify the precise issues which are to be raised and litigated, makes the task of the Court by no means simple when weighing the balance of convenience and treating with the general parameters with which the Court requires to deal in hearing such an application.

8 It is common ground that the application is pursued pursuant to section 5(2)(b)(iii) of the Jurisdiction of Courts (Cross Vesting) Act 1987 (NSW). In short the defendant bears a relevant onus to satisfy the Court that it is otherwise in the interests of justice that the relevant proceedings be remitted by the Supreme Court of New South Wales here to the Supreme Court of Victoria.

9 The Court has received affidavit evidence both in support of the notice of motion and in answer to the notice of motion. The parties have also taken the convenient step of producing short overview written submissions in each case.

10 There has been no serious issue at the bar table as to the general approach proper to be taken by the Court in hearing proceedings such as the present. Clearly enough the relevant sub-section, as counsel for the defendant has submitted, requires the Court to decide which is the more appropriate Court to determine the proceedings brought by the plaintiff; Bankinvest AG v Seabrook (1988) 14 NSWLR 711 at 714(e), 727(b). Clearly also, one Court will be more appropriate than another if, in that Court, the case may be “tried more suitably for the interests of all the parties and the ends of justice”: Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460 at 476 applied in James Hardie & Coy Pty Ltd v Barry (2000) 50 NSWLR 357 at 378.

11 I accept also as of substance the submission by Mr Walsh that one can take from James Hardie at 379 what is described as “a useful check list of factors” relevant to the decision to order a transfer of category (iii) cases, namely:

· Application of substantive law;

· Forensic advantage or detriment conferred by procedural law;

· The choice made by a plaintiff of a forum and the reasons for that choice;

· Substantive connections with the forum;

· Balance of convenience to the parties and witnesses;

· Convenience to the Court system.

12 This case [as do some others], raises the question of whether or not it is apt to speak of an onus resting upon the applicant for transfer. Most recently in James Hardie v Barry, Mason P referred to comments made by Rogers AJA with which Street CJ agreed [and Kirby P probably agreed] in Bankinvest that it was inapt to speak of any onus resting upon the applicant for transfer. Mason P put the matter as follows:

“Such a sentiment may be understandable where transfer is ordered on the Court’s own motion. However, like others I find it illusive in the context of contested proceedings inter partes. If one views the exercise as one of judicial discretion according to proper principle then it is natural to regard the applicant for particular relief as carrying at least a persuasive onus: see Bourke (at 395-396); Chapman v Jansen (1990) 100 FLR 66 at 74; Dawson (at 18); Hoddell v Hoddell Pty Ltd [1999] WASC 156 at [18]; Nygh (op cit at 92). Fortunately, "onus" will seldom if ever be determinative at the end of the day.”

13 To my mind as will appear from what follows, this is a case in which it is tolerably clear that the defendant has not made good an entitlement under the Act to have the cross vesting orders made.

14 It is correct, as it seems to me, to say as the plaintiff has, that the matters arising for determination in these proceedings, to the extent they are comprehended from the summons now filed, are not matters involving the application or interpretation of the law of the State of Victoria. It is further correct, as the plaintiff has submitted, that to the extent that one can comprehend them from the summons, the subject of the proceedings is whether the plaintiff is entitled to have the agreement renewed. The defendant asserts that the plaintiff is not entitled to have that renewal because on several occasions it has breached the agreement. It is true to say that the defendant has not pointed to any differences between the laws of Victoria and New South Wales relevant to the breaches.

15 In a reasonably frank concession in the course of submission, Mr Walsh in dealing with the James Hardie useful check list, accepted as I understood him, that each of the items in that check list could be said here to be neutral, save the item as to the choice made by the plaintiff of a forum and the reasons for that choice. In that regard the proposition from Mr Walsh was that particular significance should be attached to the terms of clause 6.16 of the agreement which provides

“ Governing Law

This agreement shall be construed in accordance with and governed by, the laws of the State of Victoria and the parties irrevocably consent to the non-exclusive jurisdiction of the Courts of Victoria.”

16 The submission is that although of course the clause does not attempt to confer exclusive jurisdiction and is not decisive, it should be given some weight in determining the appropriate forum. The submission is that it is a term of the bargain between the parties that the Supreme Court of Victoria is not an inappropriate forum and that the clause is also relevant in considering balance of convenience to the parties and to the witnesses.

17 I do not see this clause as being the item which tips the balance in favour of the defendant’s application on the cross vesting application. The matter, on a careful reading of the two affidavits which have been deployed, seems to particularly resolve into a contest as to which of the two parties is likely to be more inconvenienced in terms of the witnesses who may have to give evidence. In that regard there is, as Mr Hammerschlag SC has pointed out, particular significance in the fact that, as I accept, the defendant albeit raising very particular detail of the identity of many many witnesses whom the defendant asserts it intends to call, have simply eschewed any attempt to identify what are the matters which each of these witnesses is intended to be called to prove. On the other hand the plaintiff’s affidavit made by Ms Antzoulatos has identified the plaintiff’s witnesses and in each case, has also identified the particular matters with which those witnesses are likely to be called to give evidence.

18 At the end of the day the simple fact is that regardless of where the proceedings are heard, one or other party is likely to be inconvenienced, and to a higher or lesser degree, depending upon the particular witnesses to be called and the issues in relation to which those witnesses will give evidence.

19 It is reasonable to accept from the evidence, that on the one hand the defendant, which I hasten to add is a Victorian company, may have to bring to New South Wales, depending upon the precise issues, quite a number of employees or officers of the defendant [the list of proposed witnesses which the defendant has indicated it proposes to call, cover many aspects no doubt of the significant senior levels of management of the defendant, including the managing director of the defendant, chief financial officer of the defendant, franchise development manager of the defendant and others].

20 On the other hand, the plaintiff has responded in kind by making the point that, whilst as I would understand it the plaintiff has a significantly lesser form of resource in New South Wales, that is relied upon as a strength. That is to say the plaintiff’s business involves the facilitation and development pursuant to the Act of the businesses of 24 Clark Rubber franchisees in New South Wales and the ACT, of which 11 are based in regional New South Wales and the ACT and 13 in metropolitan areas. Ms Antzoulatos’ affidavit includes detail of the assistance given to the plaintiff in fulfilling its obligations by Mr Brooks, by an assistant co-ordinator and by a consultant and bookkeeper and includes detail of the plaintiff’s obligations, including visiting individual stores, liaising with franchisees, trouble shooting, retail and commercial problems, organising training and supplying educational forums and providing advice to franchisees and all matters to do with the running of an individual franchise. There is further evidence that Mr Brooks is the first point of reference for all matters to do with the operation of every New South Wales and ACT Clark Rubber Store and that the combined annual turnover of the New South Wales Clark Rubber Franchise System is in excess of $25 million per annum and evidence of store visits and of the many intra-New South Wales exercises which the plaintiff has to attend to in the course of its ordinary regular carrying on of its business.

21 There is also before the Court evidence of the plaintiff’s hard documentary records being maintained in New South Wales and of the communications between the New South Wales and Victorian companies. Further, apparently there were a number of drafts of the agreement before it was executed and negotiations regarding those drafts took place, it is said by the plaintiff, in New South Wales. Of course the extent to which negotiations or aspects of construction of the agreement may seek to bring in evidence concerning negotiations, remains entirely inchoate.

22 Ultimately, to my mind, the position is that the defendant has simply not satisfied the Court at all that the proper exercise of the discretion shows that it is in the interests of justice that this proceeding be determined by the Supreme Court of Victoria.

23 There is I hasten to add no suggestion as I understand it from either side of the bar table, that the position before the Commercial List of the Supreme Court of New South Wales as a matter of practice and procedure, or ability to expedite appropriate cases where necessary, is not mirrored by the Supreme Court of Victoria. Each commercial list holds itself open to assist the needs as they are of the commercial community and no aspect or parameter of the decision which I have come to is by reason of any suggestion that either State Supreme Court would not be in as good as position as the other to expedite, as necessary, and to provide appropriate procedures as necessary, in relation to these proceedings.

24 For those reasons the notice of motion has been unsuccessful and as I have said the stay order is not independently pursued.

25 The Court’s orders are as follows:

I order that the Notice of Motion filed on 15 April 2004 be dismissed.

I order that the defendant pay the plaintiff’s costs of the motion.

I certify that paragraphs 1 - 25
are a true copy of the reasons
for judgment herein of
the Hon. Justice Einstein
given on 23 April 2004ex tempore
and revised on 3 June 2004

__________________
Susan Piggott
Associate

3 June 2004

Last Modified: 06/10/2004