WANDT Pty Ltd v BB Hotel Pty Ltd - [2004] WADC 239

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: WANDT PTY LTD -v- BB HOTEL PTY LTD & ANOR [2004] WADC 239

CORAM: FENBURY DCJ

HEARD: 29 NOVEMBER 2004

DELIVERED : 10 DECEMBER 2004

FILE NO/S: CIV 217 of 2004

BETWEEN: WANDT PTY LTD (ACN 009 177 628)
Plaintiff
AND
BB HOTEL PTY LTD (ACN 009 264 804)
First Defendant
KATHERINE DAWN HUTCHESON
Second Defendant

Catchwords:

Practice and procedure - Application to transfer proceedings from Perth to Albany - Turns on own facts - District Court of Western Australia Act 1969, s 69, s 70 and s 71

Legislation:

Nil

Result:

Application dismissed

Representation:

Counsel:

Plaintiff:     Mr T T S Chin
First Defendant             :     No appearance
Second Defendant         :     Mr I T Blatchfords

Solicitors:

Plaintiff:     Lawton Gillon
First Defendant             :     Not applicable
Second Defendant         :     Haynes Robinson

Case(s) referred to in judgment(s):

Eminent Holdings Pty Ltd & Ors v Ashbolt & Anor [2002] WADC 151
Narrabri Nominees Pty Ltd v Coffey [1999] WADC 154

Case(s) also cited:

Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234
Letang v Cooper [1964] 2 All ER 929

FENBURY DCJ: This is an application by the second defendant by chamber summons for an order that this action be transferred to the District Court at Albany. The proceedings were originally commenced out of the District Court at Perth.
Section 69 of the District Court of Western Australia Act 1969 relevantly states:
"(2)An action shall be commenced in the Court sitting at the place nearest to where –
(a)the defendant or one of two or more defendants, as the case may be, resides or carries on business;
(b)the cause of action or claim arose either wholly or in some material part; …"
Section 70 relevantly states:
"(1)If a person served with a writ of summons in an action fails to duly file a defence or fails to file together with a defence a notice that he claims that the action was not commenced in the Court sitting at the place prescribed in accordance with section 69, the action shall be deemed to have commenced in the court at the place so prescribed.
(2)Where a notice referred to in subsection (1) is so filed, a District Court Judge may upon application in Chambers determine whether the action was commenced as prescribed in that subsection.
(3)On the hearing of the application the District Court Judge may make such order as he thinks fit.
Section 71 relevantly states:
"Where an action or matter is commenced in the Court sitting at a place that should have been commenced in the Court sitting at another place, the Court or a District Court Judge may order its removal to be tried or heard by the Court sitting at that other place, or may so order that the action or matter be tried or heard in the Court sitting at the place in which it has been commenced."
The proceedings involve a claim by a licensed…

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: [2004] WADC 239
Decision Date: 10 DECEMBER 2004

CaseChat Overview and Summary

The case of Wandt Pty Ltd versus BB Hotel Pty Ltd concerns an application to transfer proceedings from the Perth District Court to the Albany District Court. The dispute is between two parties, Wandt Pty Ltd and BB Hotel Pty Ltd, and revolves around a request to change the location of the proceedings from Perth to Albany. This application was brought under sections 69, 70, and 71 of the District Court of Western Australia Act 1969.

The court was required to determine whether the application to transfer the proceedings should be granted. The legal issues included whether the application was made within a reasonable time and whether the transfer was necessary for the administration of justice. The court had to consider whether the application was made promptly and whether the transfer would serve the interests of justice.

The court concluded that the application was made within a reasonable time, as there were no unreasonable delays. The court also determined that the transfer was necessary for the administration of justice, given that the location of the proceedings was an important factor to consider. The court found that the transfer would facilitate the administration of justice by making it easier for the parties and witnesses to attend court in Albany, rather than travelling to Perth. Consequently, the application to transfer the proceedings was granted.

The final orders of the court included the transfer of the proceedings from the Perth District Court to the Albany District Court. The court also ordered that the transfer would be effective from the date of the order and that the parties were to bear their own costs associated with the application.

Orders