Zhang v Trinity Law Pty Ltd

[2022] ACTSC 264

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Zhang v Trinity Law Pty Ltd

Citation:

[2022] ACTSC 264

Hearing Date:

Determined on the papers

DecisionDate:

29 September 2022

Before:

Elkaim J

Decision:

(1) Order that the application be decided on the papers.

(2) Make Orders 1 and 2 in the application in proceeding filed on 9 September 2022.  

Catchwords:

PRACTICE AND PROCEDURE – CROSS-VESTING LEGISLATION – Application to transfer proceeding to the Supreme Court of New South Wales in accordance with the Jurisdiction of Courts (Cross-vesting) Act 1993 (ACT)

Legislation Cited:

Jurisdiction of Courts (Cross-Vesting) Act 1993 (ACT) s 5

Cases Cited:

EBA v Commonwealth of Australia [2021] ACTSC 186

Parties:

Xuewen Zhang (First Plaintiff)

Huaking Investments Pty Ltd (Second Plaintiff)

Trinity Law Pty Ltd (First Defendant)

Mark Poretti (Second Defendant)

Representation:

Solicitors

Juris Cor Legal (Plaintiffs)

Sparke Helmore Lawyers (Defendants)

File Number:

SC 232 of 2021

Elkaim J

1. The two defendants in this matter filed an application in proceeding on 9 September 2022 seeking an order that, pursuant to the ACT cross-vesting legislation, the proceedings be determined in the Supreme Court of New South Wales.

1. The application is supported by an affidavit of Mr John Coorey sworn on 8 September 2022. The two plaintiffs in the substantive proceedings consent to the application. All parties wish the matter to be determined on the papers.

1. Section 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-Vesting) Act 1993 (ACT) provides that if it is “in the interests of justice that the relevant proceeding be determined by the Supreme Court of another State or Territory…… the first court shall transfer the relevant proceeding to that other Supreme Court”.

1. The only issue for me to decide is if the transfer is in the interests of justice. In EBA v Commonwealth of Australia [2021] ACTSC 186 McWilliam AsJ said, at [13] that

…..in deciding what is more appropriate in the interests of justice, the approach the Court takes is a “nuts and bolts” case management decision: BHP v Schultz at [13] per the plurality, quoting Bankinvest AG v Seabrook (1988) 14 NSWLR 711, 713- 714 per Street CJ. The Court looks to “what would be the best order to make to facilitate the trial of the litigation”: Hayward v Barratt [2000] NSWSC 708 at [2], quoted in Bateman at [70(k)].

1. In his affidavit, at [5] Mr Coorey sets out the basis for the application:

5.Broadly speaking, the application is made on the basis that:

a.  the plaintiffs and the defendants consent to the application;

b.  the substantive law to be applied or the assessment of damages are not likely to vary according to the place of trial;

c.  the plaintiffs have no connection with the ACT: the first plaintiff, Mr Zhang, lives and works in China and the second plaintiff does not trade or have any other business in the ACT or elsewhere;

d.  the plaintiffs’ and defendants’ address for service is c/- Sydney-based solicitors and Sydney-based counsel are likely to be briefed by both parties.

e. the majority of lay and expert witnesses are likely to be based outside the ACT: the only lay witness located in the ACT who is likely to give evidence, is the second defendant;

f.   these Proceedings are at a very early stage, so no prejudice will be caused to any party if the volume is changed to the NSW Supreme Court;

g.  the parties are likely to incur additional costs if the Proceedings are heard and determined by this Court;

h.  the defendants practise law in the ACT. The first defendant is an incorporated legal practice and the second defendant is a director of the first defendant. The defendants are concerned about adverse reputational consequences if these Proceedings are before this Court and otherwise determined in the ACT.

1. Some of the reasons given by Mr Coorey are more relevant than others. For example, the consent of the parties is relevant but not determinative. More important, I think, are the early stage of the proceedings, the likelihood that the legal representatives will be based in Sydney and, most significantly, the “adverse reputational consequences if these Proceedings are before this Court and otherwise determined in the ACT”.

1. Having considered Mr Coorey’s affidavit in its entirety, and noting there is no evidence to suggest a contrary conclusion, I am satisfied that it is in the interests of justice that the proceedings be transferred to the Supreme Court of New South Wales.

1. Accordingly I order that the matter be dealt with on the papers and then make Orders 1 and 2 in the application in proceeding filed on 9 September 2022.

I certify that the preceding eight [8] numbered paragraphs are a true copy of the Reasons for  Judgment of his Honour Justice Elkaim.

Associate:

Date: