Union v Whatmore
[2005] VSC 381
•2 May 2005
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
PRACTICE COURT
No. 6979 of 2004
| HELIX FIDEL UNION | Plaintiff |
| v | |
| BENJAMIN WHATMORE AND ANOR | Defendant |
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JUDGE: | DODDS-STREETON J. | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 May 2005 | |
DATE OF JUDGMENT: | 2 May 2005 | |
CASE MAY BE CITED AS: | Union v Whatmore and anor | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 381 | |
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Practice and Procedure – Application to transfer proceeding to Supreme Court of New South Wales – Jurisdiction of Courts (Cross-Vesting) Act s5(2) - whether in the “interests of justice” that the proceeding be heard and determined by that Court – Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A.R. Kirby | Brand Partners |
| For the Defendant | Mr G.A. Hubble | Anderson Rice |
HER HONOUR:
This is an application by summons dated 19 April 2005 by the first defendant, Benjamin Whatmore, seeking an order that the proceeding be transferred to the Supreme Court of New South Wales pursuant to s.5(2) of the Jurisdiction of Courts (Cross-Vesting) Act. The application is supported by the affidavit of Benjamin Whatmore sworn 18 April 2005 and by the affidavit of John Lancefield sworn 2 May 2005. There is an affidavit in opposition sworn by Joel Ruffles on 29 April 2005.
The proceeding was commenced by the plaintiff, Mr Helix Fidel Union, by writ dated 12 July 2004. By the amended statement of claim dated 22 March 2005, the plaintiff claims from the first defendant, Mr Whatmore, and the second defendant, Mr Nathan Dale, the sum of $125,515 by way of damages, together with interest and compensation for GST.
The amended statement of claim alleges an agreement made in February or March 2003, whereby the plaintiff agreed to sell the defendants a second-hand audio console and attachments for $250,600. The agreement was alleged to be partly oral, partly written and partly to be implied. By the terms alleged the defendants were to pay a non-refundable deposit and a part-payment. It is pleaded that the terms of the agreement included that the transactions were deemed to have taken place in Victoria and were subject to its laws, that the defendants would pay the balance of the purchase price on or before 7 March 2003 and that the plaintiff would supply the console by air freight from Tokyo’s Narita Airport.
The defendants paid $20,000 on 18 February 2003 and gave the plaintiff a cheque for $30,000 on 4 March 2003 which, it is alleged, was dishonoured. It is alleged that the plaintiff nevertheless made the arrangements for the supply of the console, thus incurring obligations to a wholesaler, and arranged for the delivery to Narita Airport; and that the defendants made no further payments. The plaintiff claims the difference between the price the plaintiff had to pay at wholesale rates and the value of the contract, together with the sum of approximately $17,000, which is due to the wholesaler.
The first defendant, by an amended defence and counter claim dated 18 March 2005, denies that there was a concluded agreement but says that if there were, there was a condition precedent that the defendants’ liability was to be subject to obtaining suitable finance, which did not occur. The amended defence denies that the payments made were pursuant to the alleged agreement and the counter-claim seeks the refund of the $20,000.
By his affidavit sworn 18 April 2005 the first defendant, Mr Whatmore, deposes that he will defend the proceeding and in particular, that he may call evidence on the defendants’ inability to obtain finance despite reasonable attempts, and that there will be three proposed witnesses associated with finance providers, two of whom are based in New South Wales. I am informed today by Ms Hubble, counsel for the first defendant, that the third witness is based in Queensland.
The defence contends that all of the conversations between the plaintiff and the defendants were by telephone and that the first defendant has never met the plaintiff. There was correspondence passing between Sydney and Melbourne and the console was to be directly delivered to Sydney. Mr Whatmore deposes to the financial hardship he will suffer if he has to pay travel and accommodation expenses for himself and witnesses should the trial take place in Melbourne. He estimates that it will be a one-day trial. He also refers to the possibility of having the proceeding referred to arbitration in the New South Wales District Court, to which Ms Hubble has also adverted today.
The affidavit of Joel Ruffles, a solicitor for the plaintiff, sworn 29 April 2005, deposes as to the plaintiff’s business and, on information and belief, as to the negotiations leading to the agreement, including the telephone discussions between the plaintiff and Mr Whatmore and correspondence in early 2003, which is exhibited. Mr Ruffles deposes that all telephone calls were made, letters sent and steps taken by the plaintiff, in Victoria, and that, other than for the plaintiff himself, the plaintiff does not know what witnesses he will call although he may call a witness from Japan.
Further, Mr Ruffles deposes that, in relation to the issues arising from the counter-claim and the parties likely to be called as witnesses in relation to them, who are based in other states, the plaintiff would consent to their giving evidence by witness statement.
The plaintiff also complains of delay by the defendants in relation to the bringing of this application. There is a responsive affidavit by Mr Lancefield of the first defendant’s solicitor, sworn 2 May 2005, which answers the contentions of delay, by pointing out that the first defendant foreshadowed in the directions hearing in September 2003 that it may bring such application.
In cases such as Rogan v Rushton,[1] Ross Mollison v The Really Useful Company,[2] Bankinvest AG v Seabrook[3] and, most recently, the High Court’s decision in BHP Billiton v Schultz (“Schultz”),[4] it has been consistently recognised that in determining whether to order a transfer under this legislation in the interests of justice, the court must be satisfied as to which court is the more appropriate forum, in the sense that it has the most real and substantial connection with the subject matter of the proceeding. It is well recognised that the connecting factors are multitudinous, but typical relevant factors which are constantly advanced are three: that is, the governing law of any agreement in dispute; secondly, the connection between the alleged conduct and the jurisdiction; thirdly, issues of cost and convenience for the parties as to the forum selected, which might include considerations of the place where the witnesses and the parties reside and carry on business.
[1][2002] VSC 375.
[2][2000] VSC 256.
[3](1988) 14 NSWLR 711.
[4][2004] HCA 61.
In that context, it is no longer accepted that independent weight is to be attributed to the plaintiff’s choice of forum.[5] Some members of the High Court in Schultz indicated that no onus or presumption operates in determining where the balance of the interests of justice may come down. That was not, in terms, a majority statement, although Hayne J agreed with Gummow J’s observation to that effect.[6] More recently, in Ewins v BHP,[7] Gillard J has tended to adhere to the view that the applicant may bear some burden, but I am of the view that the observations of Gummow J in Schultz were persuasive. However, I do not think that determinative of the present dispute.
[5]Ibid at [25], [77], [168], [177], [258].
[6]Ibid at [71], [177].
[7][2005] VSC 4 at [23].
In Schultz, in their joint judgment, the Gleeson CJ and McHugh and Heydon JJ stated that the residence of the defendant would normally be the basis of jurisdiction of common law courts in personal actions, and that the presence of the defendant in the court’s territory is what is important to establish jurisdiction.[8] They went on to say, however, that those matters may be no reason to treat the residence of either party as being determinative.[9]
[8]Ibid at [17].
[9]Ibid at [19].
In the present case, Ms Hubble, for the applicant, has pointed to the prospective witnesses and where they reside. Further, she did not accept that it was established that the agreement, if any, would be governed by the law of Victoria. Ms Hubble also pointed out, among other things, that the District Court of New South Wales has an arbitration facility which would dispose of this case in a cost effective way. She also noted that it had been foreshadowed at the September directions hearing that an application of this kind would be made, and argued that it was necessary first to resolve issues in relation to particulars.
Mr Kirby, counsel for the plaintiff, opposed the application. He submitted that the contract and the breach occurred in Victoria. In that context, he relied on the letter of Mr Whatmore dated 7 February 2003, and a letter of the plaintiff dated 27 February 2003 offering to sell, but stating that all transactions would be deemed to take place in Victoria and subject to the laws of Victoria. That quotation, signed by the defendants, was also exhibited. Mr Kirby also referred to the defendants’ letter dated 13 March 2003. He argued that the reference to an intention to purchase in circumstances where the parties were in the midst of finalising their financial agreements was but a weak factor in favour of the first defendant’s “subject to finance” contention. Nevertheless, it was not contended that there would be any material difference in the laws of New South Wales and Victoria governing the issue.
Mr Kirby pointed particularly to the plaintiff’s delay in making the application, which, he said, was not properly explained and would entail duplication, including the retaining of new solicitors and representatives by the plaintiff and further expense, should the matter be transferred.
I consider, on the evidence before me, that the parties accepted that the transactions would be deemed to occur in Victoria, which (although the law of New South Wales may not be different) is a relevant connecting factor to Victoria. Further, I accept that the proceeding has been permitted to reach quite an advanced stage in Victoria. I am not persuaded that merely foreshadowing this application at the directions hearing in September 2004 suffices to explain or address that, or that the extent of the amendments made to the statement of claim justifies the delay in making this application. New solicitors would have to be engaged by the plaintiff if the matter were to be transferred and it would seem that duplication would be involved.
As to the parties, two (the defendants) are in New South Wales, but, as the High Court has noted, that is not determinative. One, the plaintiff, is in Victoria. There are two more prospective witnesses resident in New South Wales, and the plaintiff, in the first instance, would accept evidence by witness statement. One prospective witness is in Queensland and one is in Japan. Further, as Mr Kirby pointed out, where parties reside is not always such a significant issue in modern times. While in some cases it may be a significant consideration, in this case there is only a one-day estimate for the hearing.
Ms Hubble has put the case for transfer very ably, but in all the circumstances, I am not persuaded that New South Wales would be a more appropriate forum, or that it would be in the interests of justice to order it to be transferred. Rather, by a fine but clear margin, I consider Victoria to be the more appropriate forum and that which best serves the interests of justice. Accordingly, I will dismiss the first defendant’s application.
I think it just that costs follow the event in this case and that the first defendant pay the plaintiff’s costs of the application.
The orders will be -
1.That the application be dismissed.
2.That the first defendant pay the plaintiff’s costs of the application.
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