Vamot Pty Ltd v Tempacoe Pty Ltd

[2000] VSC 251

SUPREME COURT OF VICTORIA
PRACTICE COURT	Not Restricted

No. 5339 of 2000

VAMOT PTY. LTD.	Plaintiff
v.
TEMPACOE PTY. LTD. AND ANOTHER	Defendants

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JUDGE:	BEACH, J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 JUNE 2000
DATE OF JUDGMENT:	7 JUNE 2000
CASE MAY BE CITED AS:	VAMOT v. TEMPACOE
MEDIUM NEUTRAL CITATION:	[2000] VSC 251

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CATCHWORDS:      Practice and Procedure – Application to transfer proceeding from Victorian Civil and Administrative Tribunal to this Court and then the Federal Court of Australia – Jurisdiction of Courts (Cross Vesting) Act 1987 ss.5 and 8.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	M. Phipps Q.C.	Minter Ellison
For the Defendants	M. Heaton Q.C. with E. Riegler	Wainwright Ryan

HIS HONOUR:

1. This proceeding involves a dispute between a building owner and a builder concerning the construction of six townhouses at 368-370 Mont Albert Road, Mont Albert.  The builder is a company called Tempacoe Pty. Ltd.  Its Director and General Manager is Tony Marraffa.  The building owner is Vamot Pty. Ltd., a company controlled by Edward John Zagame.

1. On 21 February 2000, Tempacoe filed an application against Vamot in the Domestic Building List of the Victorian Civil & Administrative Tribunal (VCAT) by which it seeks to recover the sum of $152,383.44 which it claims is owed to it by Vamot in respect of work done in connection with the construction of the townhouses.

1. On 30 March 2000, a directions hearing was held by VCAT in relation to the application.  That day a number of orders were made in relation to the application.  In the in the first place, the application was fixed for hearing on 31 July next and a period of ten days was set aside for the hearing; Vamot was required to file and serve points of defence and points of counterclaim, if any, by 20 April; both parties were required to file lists of documents in their possession or control relevant to the application by 19 May; both parties were to exchange reports of any expert retained by them by 2 June; by 7 July they were required to file and serve statements of the evidence that it was proposed to call at the hearing; and by 12 May either party could serve on the other a notice to admit facts.

1. Of perhaps more significance for present purposes was a further order that VCAT made giving leave to Vamot to make an application to it by 14 April pursuant to s.77 of the Victorian Civil & Administrative Tribunal Act 1998 for an order striking out the VCAT application on the basis that the subject matter of the application would be more appropriately dealt with by a court.

1. Vamot made no application to VCAT as contemplated by that last direction, but instead, on 10 May filed a separate proceeding against Tempacoe and Marraffa in the Federal Court of Australia alleging that Tempacoe and Marraffa had engaged in misleading and deceptive conduct pursuant to s.52 of the Trade Practices Act 1974 (Commonwealth), s.11 of the Fair Trading Act 1985 (Victoria), and s.9 of the Fair Trading Act.  It also alleged that they had been guilty of unconscionable conduct in contravention of various sections of both the Fair Trading Act and the Trade Practices Act.  Finally, it alleged negligence on the part of both Vamot and Marraffa and breach of the building contract between the parties.

1. On 11 May, Vamot filed an originating motion in this Court naming Tempacoe and Marraffa as defendants and by which it seeks, firstly under s.8 of the Jurisdiction of Courts Cross-Vesting Act 1987, an order transferring Tempacoe's application from VCAT into this Court and, secondly, an order under s.5 of that Act cross-vesting the proceeding, which of course would then be in this Court, to the Federal Court.

1. In my opinion, in light of the decision of the High Court in Re Wakim 1999, 73 A.L.J.R. 839, it is somewhat doubtful whether this Court now has jurisdiction to transfer an action pending in it to the Federal Court even though it may be associated with an action already on foot in that Court.

1. However, the parties are agreed that that is not the case and in that situation I do not refuse the plaintiff's application on that ground.

1. In my opinion, there is another compelling reason for refusing it.  The fact is that Tempacoe's proceeding is now fixed for hearing before VCAT on 31 July.  Vamot was given the opportunity to apply to VCAT to have that application transferred to this Court, being required to do so by 14 April, and declined to pursue the application.  Instead, almost one month after that deadline had expired, it chose to institute its own proceeding in the Federal Court.

1. To bring what is in reality nothing more than a building dispute within the jurisdiction of the Federal Court, it was necessary for Vamot to come up with a cause of action which would fall within that Court's jurisdiction.  As one has seen in so many cases over recent years, it resolved the problem by alleging breaches of the Commonwealth Trade Practices Act.

1. I have a suspicion that Vamot's action in that regard was designed to wrest the initiative in relation to this dispute from the control of Tempacoe and place control of it in its own hands.

1. The fact of the matter is that, having regard to the provisions of the Fair Trading Act 1999 as they now stand, in particular the provisions of s.108, which provision I consider to be retrospective and which would apply therefore to the present dispute between the parties, VCAT now has the power to give to Vamot virtually all of the relief it is seeking in the Federal Court proceeding.

1. The conclusion I have come to in relation to the matter is that, assuming I do have jurisdiction to cross-vest such a proceeding from this Court to the Federal Court, something which I think is doubtful, in my opinion it is not in the interests of justice that such a transfer should take place.

1. The application is dismissed.  I order that the plaintiff pay the defendant's costs of the application, including any reserved costs. 

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