ACN 168 479 614 Pty Ltd (formerly known as Steller Developments Pty Ltd) (in liq) (Receivers & Managers appointed) v Smedley, in the matter of ACN 168 479 614 Pty Ltd

Federal Court of Australia|2024-12-10|Before: Mr J, Goodman J

Counsel for the Applicant: Ms A Smith

Solicitor for the Applicant: Hogan Lovells

Counsel for the First Respondent: Ms N Papaleo

Counsel for the Second Respondent: No appearance for the second respondent

Solicitor for the Third Respondent: Mr J Kerr of Kerr and Kerr Partners

Counsel for the Fourth Respondent: No appearance for the fourth respondent

Solicitor for the Fifth Respondent: No appearance for the fifth respondent

First Cross-Claim: Counsel for the Cross-Claimant: No appearance for the cross-claimant

Counsel for the First Cross-Respondent: Ms N Papaleo

Solicitor for the First Cross-Respondent: Lander & Rogers

Solicitor for the Second Cross-Respondent: Mr J Kerr of Kerr and Kerr Partners

Counsel for the Third Cross-Respondent: No appearance for the third cross-respondent

Second Cross-Claim: Counsel for the Cross-Claimant: Ms N Papaleo

Solicitor for the Cross-Claimant: Lander & Rogers

Counsel for the First Cross-Respondent: Ms A Smith

Solicitor for the First Cross-Respondent: Hogan Lovells

Counsel for the Second Cross-Respondent: Ms A Smith

Solicitor for the Second Cross-Respondent: Hogan Lovells

Solicitor for the Third and Fourth Cross-Respondents: Mr C Taylor of Holding Redlich

ORDERS NSD 1300 of 2021

IN THE MATTER OF ACN 168 479 614 PTY LTD (FORMERLY KNOWN AS STELLAR DEVELOPMENTS PTY LTD) (IN LIQUIDATION) (RECEIVERS AND MANAGERS APPOINTED)

BETWEEN: A.C.N. 168 479 614 PTY LTD (FORMERLY KNOWN AS STELLER DEVELOPMENTS PTY LTD) (IN LIQ) (RECEIVERS AND MANAGERS APPOINTED) Applicant

AND: NICHOLAS SMEDLEY First Respondent

SIMON PITARD Second Respondent

JAMES CIRELLI (and others named in the Schedule) Third Respondent

BETWEEN: THOMAS VINES Cross-Claimant

AND: NICHOLAS SMEDLEY (and others named in the Schedule) First Cross-Respondent

BETWEEN: NICHOLAS SMEDLEY Cross-Claimant

AND: ACN 168 479 614 PTY LTD (FORMERLY KNOWN AS STELLER DEVELOPMENTS PTY LTD (IN LIQ) (RECEIVERS AND MANAGES APPOINTED) (and others named in the Schedule) First Cross-Respondent

order made by: GOODMAN J DATE OF ORDER: 10 December 2024

The first respondent's interlocutory application filed on 12 November 2024 be dismissed.
The first respondent pay the applicant's costs of that application as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

A. Introduction 1 The final hearing in this proceeding is scheduled to commence on 10 February 2025 in Sydney. 2 By an interlocutory application filed on 12 November 2024 Mr Smedley - who is the first respondent to the principal claim, the first cross-respondent to the first cross-claim and the cross-claimant on the second cross-claim - seeks an order pursuant to s 48(1) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) or r 2.02 of the Federal Court Rules 2011 (Cth) that the hearing be conducted in Melbourne. That application is supported by an affidavit of Ms Lily Nguyen, Mr Smedley's solicitor, sworn on 12 November 2024 and paragraphs 19 to 21 of an affidavit of Ms Nguyen sworn on 4 December 2024. 3 The application is opposed by A.C.N. 168 479 614 Pty Ltd (formerly known as Steller Developments Pty Ltd (in liquidation) (receivers and managers appointed)) and by LMIZ8 Investments Holdings Pty Ltd (formerly known as Atlas Advisors Australia Pty Limited). Steller Developments is the applicant on the principal claim and the first cross-respondent to the second cross-claim. Atlas is the second cross-respondent to the second cross-claim. Atlas and Steller Developments rely upon an affidavit of their solicitor, Mr Scott Harris, affirmed 22 November 2024. 4 None of the other active parties, being: (1) Mr James Cirelli, the third respondent to the principal claim and the second cross-respondent to the first cross-claim; (2) Mr Thomas Vines, the fourth respondent to the principal claim and the cross-claimant on the first cross-claim; (3) Mr Alastair Williams, the third cross-respondent to the first cross-claim; (4) Mr Michael Burstin, the third cross-respondent to the second cross-claim; and (5) MB Commercial Pty Ltd, the fourth cross-respondent to the second cross-claim, filed evidence or written submissions concerning the present application. However: (1) Mr Cirelli's solicitor indicated at the hearing of the application that Mr Cirelli supported the application; (2) the solicitor for Mr Burstin and MB Commercial indicated at the hearing of the application that his clients neither supported nor opposed the application; and (3) Mr Williams, who is unrepresented, indicated by email that he supported the application.

B. Legal framework 5 As noted above, Mr Smedley relies upon s 48(1) of the FCA Act and r 2.02, which provide: 48 Change of venue (1) The Court or a Judge may, at any stage of a proceeding in the Court, direct that the proceeding or a part of the proceeding be conducted or continued at a place specified in the order, subject to such conditions (if any) as the Court or Judge imposes. ... 2.02 Transfer of proceeding to another place A party may apply at the proper place for an order that the proceeding be transferred to another place. ("Proper place" is defined in Schedule 1 to the Rules as meaning: (a) the place where the proceeding is started; or (b) if the proceeding is transferred to another place - the other place, from the date of transfer.) 6 Section 48(1) of the FCA Act is apt, in view of the order sought by Mr Smedley. However, it is doubtful that r 2.02 is the most appropriate rule as the relief sought is for the hearing to be conducted in Melbourne, rather than for the transfer of the proceeding. A more apt rule is r 5.04(1) which provides for the Court to make directions for the management, conduct and hearing of a proceeding, including as to the place, time and mode of hearing (item 33). In any event, it was common ground that the Court has a discretion to direct that the final hearing take place in Melbourne. 7 In National Mutual Holdings Pty Ltd v Sentry Corporation [1988] FCA 133; (1988) 19 FCR 155 at 162, the Full Court of this Court (Bowen CJ, Woodward and Lockhart JJ) discussed the power conferred by s 48(1) in the following terms: The power conferred on the Court or a judge by s 48 is in terms wholly unfettered. It should be exercised flexibly having regard to the circumstances of the particular case. It would be regrettable and unwise if the Court were to circumscribe the general power conferred by s 48 with inflexible rules or impose inelastic constraints upon its exercise. As the power may be exercised subject to conditions, the Court or a judge is in a position to mould orders under the section to take account of the many and varied circumstances that arise in particular cases. The power conferred by s 48 recognises the national character of this Court. The factors which the Court is entitled to take into account in considering whether one city is more appropriate than another for interlocutory hearings or for the trial itself are numerous. The Court must weigh those factors in each case. Residence of parties and of witnesses, expense to parties, the place where the cause of action arose and the convenience of the Court itself are some of the factors that may be relevant in particular circumstances. The balance of convenience will generally be a relevant consideration, but not necessarily determinative of each case. A party commences a proceeding by filing an application in a particular registry of the Court. If that party or another party wishes to have the proceeding conducted or continued in another place he may apply to the Court for an order under s 48 or O 10, r 1 (2)(f) or O 30, r 6 as the case may be. There is no onus of proof in the strict sense to be discharged by the party seeking to conduct or continue the proceedings elsewhere. It should be noted that the Court may exercise its powers under O 30, r 6 either on the application of a party or of its own motion. The Court must, however, be satisfied, after considering all relevant matters, that there is sound reason to direct that the proceeding be conducted or continued elsewhere. Its starting point is that the proceeding has been commenced at a particular place. Why should it be changed? On the one hand, if the party who commenced the proceeding chose that place capriciously the Court would be justified in giving no weight to the choice of place. At the other end of the scale, a proceeding may have continued for some time at the place of commencement with many steps having been taken there, for example, filing of pleadings and affidavits, discovery and inspection. Due weight would be given by the Court to such matters before directing that the proceeding should continue at a different place. The balance of convenience is important, but its weight must vary from case to case. Ultimately the test is: where can the case be conducted or continued most suitably bearing in mind the interests of all the parties, the ends of justice in the determination of the issues between them, and the most efficient administration of the Court. It cannot and should not, in our opinion, be defined more closely or precisely. (emphasis added) 8 The discretion conferred by s 48(1) of the FCA Act is no longer wholly unfettered. The exercise of that discretion involves a matter of practice and procedure: Auskay International Manufacturing & Trade Pty Ltd v Qantas Airways Ltd [2010] FCAFC 96; (2010) 188 FCR 351 at 370 [54] and 371 [59] (Jessup J; Dodds-Streeton and Moore JJ agreeing), and as such is informed by s 37M of the FCA Act which requires that s 48(1) of the FCA Act (and rr 2.02 and 5.04(1)) be interpreted, applied and exercised in a manner that best promotes the overarching purpose of facilitating the just resolution of disputes (relevantly) as quickly, inexpensively and efficiently as possible. 9 In Australian Competition and Consumer Commission v Australian Egg Corporation Ltd [2014] FCA 1010, after citing the above passage from Sentry, White J noted at [6] that: Some matters can be taken to be settled. These include: (a) there is no onus of proof in the strict sense to be discharged by the party seeking to have the proceedings continued elsewhere: Sentry at 162; (b) the national character of the Court, including its capacity to put in place flexible arrangements for the taking of evidence and the receipt of submissions, is pertinent: Australian Competition and Consumer Commission v Virgin Mobile Australia Pty Ltd [2002] FCA 1239 at [16], [20]; Mortimer v Opes Prime Stockbroking Ltd (Administrators Appointed) (in liq) [2009] FCA 227 at [15]. As French J observed in Lamb v Hogs Breath Company Pty Ltd (No 1) [2007] FCA 49 at [9]: So far as the interlocutory processes are concerned, unless some unusual circumstance occurs, it matters little whether the proceeding is in the Perth or Brisbane Registry because in either event the party not in the home Registry will be able to participate by way of video-link or even teleconference. The Court also has the facility for the electronic filing of submissions and the like and the conduct of litigation, in part, through that. (c) The place of residence of the parties and their witnesses, the expense to the parties, the place where the events giving rise to the applicant's cause of action, and the convenience of the Court itself are relevant matters: Sentry at 162; (d) The balance of convenience is a very relevant, but not decisive, consideration: Sentry at 162. (e) Any difference in the rights of the parties under the relevant law of different States or Territories, to the extent that these can be identified and assessed at the time the Court considers the application, may be material: Sentry at 163; (f) Ultimately, the discretion is to be exercised "having regard to considerations of sound case management, the national character of the court and practical considerations including the convenience of the parties": Virgin Mobile at [16].

C. Consideration 10 The schedule to these reasons for judgment provides a summary of the parties, the locations of the parties' legal representatives in so far as is presently apparent from the Court's file; the location of the various witnesses to be called; and the preference of the parties as to the venue for the hearing.

C.1 The nature of the hearing, including the likely witnesses 11 At the risk of oversimplification, the central issues appear likely to be: (1) on the principal claim - pursuant to which Steller Developments seeks payment of an amount in excess of $120 million pursuant to a deed of guarantee executed by Mr Smedley, Mr Cirelli, Mr Vines and others on 7 March 2017 which, it is contended, supported a borrowing by Steller Developments from Atlas under a Master Facility Deed - the proper construction of particular terms of the deed of guarantee; and whether an order for rectification of the deed of guarantee ought be made; (2) on the first cross-claim - pursuant to which Mr Vines seeks an order for an indemnity from Mr Smedley, Mr Cirelli, and Mr Williams in the event that he is liable under the deed of guarantee - whether Mr Vines is liable under the deed of guarantee and, if so, whether the cross-respondents are liable to indemnify him for such liability, by dint of an agreement titled Retirement Agreement dated 29 April 2018; and (3) on the second cross-claim - pursuant to which Mr Smedley seeks compensation or an indemnity from Steller Developments, Atlas, Mr Burstin and MB Commercial for alleged misleading and deceptive conduct and in particular: (1) failing to disclose that the relevant borrowings would be required to be secured by any personal guarantees from the directors of Steller Developments; or (2) by impliedly representing to Mr Smedley that such guarantees would not be required - whether such conduct was engaged in and if so, whether Mr Smedley suffered loss by reason of such conduct (including whether such conduct caused Mr Smedley to sign the deed of guarantee). 12 The main area of factual controversy appears to be between Mr Smedley and Mr Burstin. 13 Steller Developments proposes to adduce evidence from: (1) the liquidator of Steller Developments, who is based in Sydney. Counsel for Mr Smedley does not propose to cross-examine the liquidator; (2) Mr Guy Hedley of Atlas, who is based in Sydney. Ms Nguyen estimates that the cross-examination of Mr Hedley on behalf of Mr Smedley will take one hour; (3) Mr Burstin, who is based in Melbourne. Mr Burstin has made two affidavits, which traverse events leading up to the execution of the deed of guarantee and his dealings with Mr Smedley. Ms Nguyen estimates that the cross-examination of Mr Burstin on behalf of Mr Smedley will take one day; and (4) Mr Andrew Le, a forensic information technology expert, based in Melbourne. There has been no indication that he will be required for cross-examination. 14 Mr Smedley, who is based in Melbourne, has made three affidavits, which address various topics including the events leading up to the execution of the deed of guarantee and his dealings with Mr Burstin. Counsel for Steller Developments has indicated that Mr Smedley will be required for cross-examination with an estimate of one day. It may be that counsel for Mr Burstin will also seek to cross-examine Mr Smedley, given the dispute between Mr Smedley and Mr Burstin evident in their affidavit evidence. 15 Also relevant is Ms Nguyen's evidence that Mr Smedley is the Chairman of two ASX listed companies (Findi Ltd and Respiri Ltd) and that in his roles with those entities, Mr Smedley is required to travel extensively. In the 2024 calendar year, Mr Smedley has been overseas and interstate more than he has been in Melbourne. Ms Nguyen has also deposed that Mr Smedley is "required" to attend business meetings in India and in Denver in February 2025 and that he proposes to: fly from Melbourne to Delhi on Saturday 8 February 2025; return to Melbourne on Friday 14 February 2025; and fly from Melbourne to Denver on 20 February 2025, returning to Melbourne on 9 March 2025. 16 Mr Cirelli, who is based in Melbourne, has made one affidavit. Counsel for Steller Developments has indicated that Mr Cirelli will be required for cross-examination with an estimate of no more than two hours. Ms Nguyen estimates that the cross-examination of Mr Cirelli on behalf of Mr Smedley will take 30 minutes to one hour. 17 Mr Vines, who is based in Queensland, has made one affidavit. Counsel for Steller Developments has indicated that Mr Vines will be required for cross-examination with an estimate of no more than two hours. Ms Nguyen estimates that the cross-examination of Mr Vines on behalf of Mr Smedley will take 30 minutes. 18 Mr Williams, who is based in Melbourne, has made one affidavit. Counsel for Steller Developments has indicated that Mr Williams will likely not be required for cross-examination. Ms Nguyen estimates that the cross-examination of Mr Williams on behalf of Mr Smedley will take 30 minutes to one hour. 19 Thus, of the six witnesses likely to be cross-examined, four are based in Melbourne (Mr Smedley, Mr Cirelli, Mr Williams and Mr Burstin), one is based in Sydney (Mr Hedley), and one is based in Queensland (Mr Vines). However, the exercise is not simply quantitative, and some qualitative analysis is necessary. In circumstances where: (1) the evidence suggests that Mr Smedley does not propose to attend the first four or five days of the hearing from 10 to 13 or 14 February 2025 and that Mr Smedley is generally absent from Melbourne more often than he is present; (2) neither Mr Cirelli nor Mr Williams has provided any evidence suggesting any prejudice in attending a hearing in Sydney, or as to the extent to which they propose to attend the hearing, and have merely indicated their support of the application. In circumstances where they are parties and have had the opportunity to adduce such evidence (and to make their own applications), I am not prepared to infer prejudice: cf Lifeplan Australia Friendly Society Ltd v Woff [2015] FCA 290 at [8] (Besanko J). Further, the estimated total time for cross-examination of Mr Cirelli is two and a half to three hours, and for Mr Williams it is 30 minutes to one hour; and (3) Mr Burstin, who is being called by Steller Developments, is neutral as to the venue and has instructed legal representatives in Sydney, I am not satisfied that a hearing in Sydney is particularly prejudicial to any of the Melbourne-based witnesses. 20 The position of Mr Vines is of little moment as he is based in Queensland and will be required to travel in any event. He has also not sought to be heard on this application, from which I infer that he does not have a preference as to whether the hearing occurs in Sydney or in Melbourne. 21 Further, as earlier noted, it appears that the main evidentiary contest will be between Mr Smedley and Mr Burstin. As also noted above, Mr Smedley does not propose to attend the first four to five days of the hearing; and Mr Burstin - who is being called by Steller Developments and has instructed his own Sydney based legal representatives - has taken a neutral stance. 22 Thus, the evidence concerning the location of the various parties and their witnesses does not provide a basis for moving the hearing from Sydney to Melbourne.

C.2 Additional costs for Mr Smedley of a hearing in Sydney 23 Counsel for Mr Smedley also made submissions concerning the additional costs of airfares and accommodation for Mr Smedley and his legal representatives that would be incurred in conducting the hearing in Sydney rather than Melbourne. 24 This is a matter of little moment. As to the costs of airfares and accommodation for Mr Smedley, as noted above, Mr Smedley does not propose to attend the first four to five days of the hearing (which is presently estimated to be between five and seven days). As to the costs of airfares and accommodation for Mr Smedley's legal representatives, it is to be expected that practitioners who are briefed in a proceeding in this Court (which is a national Court) which has been commenced in another State or Territory have accepted the brief on the basis that the hearing will typically occur in the State or Territory in which it has been commenced. Counsel for Mr Smedley, who are both based in Melbourne, have been retained on behalf of Mr Smedley since 2022; and Mr Smedley's solicitors for a similar period. It is also to be expected that the decision to brief practitioners in a proceeding which has been commenced in another State or Territory has been made taking into account the costs of the practitioners briefed attending the hearing in the State or Territory in which the proceeding has been commenced.

C.3 Delay 25 Another factor telling against the making of the order sought by Mr Smedley is his delay in seeking that order. 26 Applications under s 48(1) of the FCA Act should be made promptly: see, e.g. Australian Competition and Consumer Commission (ACCC) v Terania Pty Ltd [2007] FCA 1074; (2007) ATPR 42-173 at 47,733 to 47,734 [6] (Mansfield J); First National Group of Independent Real Estate Agents Ltd v Elyod Investments Pty Ltd [2008] FCA 1260 at [9] to [12] (Jessup J); Essential Beauty Franchising Pty Ltd v Essential Beauty (Qld) Pty Ltd [2012] FCA 12 at [28] (Mansfield J); and British American Tobacco Australasia Ltd v Taleb (No 2) [2013] FCA 34 at [24] to [25] (Dodds-Streeton J). 27 The reasons for requiring such promptness include the obligation on parties to conduct the proceeding in a way that is consistent with the overarching purpose facilitating the just resolution of disputes as quickly, inexpensively and efficiently as possible (s 37M and s 37N of the FCA Act); and the practical effect that late applications have in adding to the disruption to other parties and to the Court that follows from a successful s 48(1) application. 28 This proceeding was commenced in December 2021. On 10 February 2022, Mr Smedley was directed to file any defence to the principal claim, and any cross-claim, by 22 February 2022. Mr Smedley filed his defence to the principal claim on 9 March 2022. He did not file a cross-claim. 29 On 1 March 2024, orders were made setting down the proceeding for final hearing commencing 10 February 2025 (provisionally in Sydney). On that day, counsel for Mr Smedley foreshadowed the present application and an application to file a cross-claim; and an order was made requiring any application for the hearing to be held in Melbourne and for leave to file a cross-claim to be filed by 15 March 2024. Mr Smedley did not comply with that order. 30 On 18 March 2024, Mr Smedley lodged an application for leave to file a cross-claim. 31 On 22 March 2024, orders were made by consent: (1) extending the deadline for the filing of the application for the hearing to be held in Melbourne to 5 April 2024; and (2) granting leave to Mr Smedley to file a cross-claim. 32 On 25 March 2024, Mr Smedley's cross-claim (i.e. the second cross-claim) was filed. 33 No application to change the venue for the hearing was filed by 5 April 2024. Instead, on that date, the solicitors for Mr Smedley sent a letter (5 April 2024 letter) to the solicitors for the other parties: … 2. Having considered the authorities relevant to such application we have formed the view that: (a) it would be premature to make this application now; (b) it would be more appropriate for such application to be made closer to trial when there is certainty about the conduct of the trial including who will be called to give evidence and the location of those witnesses (particularly in the circumstances that our client's cross-claim has only recently been filed and served). 3. Accordingly, we confirm that we will not currently be making an application for the trial of this proceeding to be conducted in Melbourne but reserve our client's rights to do so at a later time. 34 The solicitors for Steller Developments immediately notified their disagreement. 35 On 5 June 2024, orders were made with the consent of all active parties to the proceeding, including Mr Smedley. Those orders included a notation that the provisional setting down of the hearing on 10 February 2025 was confirmed. 36 On 18 October 2024, at around the time that the filing of evidence on the cross-claim was completed, the solicitors for Mr Smedley wrote to the solicitors for the other active parties, referring to the 5 April 2024 letter and to the completion of the filing of the affidavit evidence and calling in aid s 37M of the FCA Act in support of their contention that all parties were required to consent to the hearing being conducted in Melbourne. 37 On 7 November 2024, at a case management hearing conducted on that date, counsel for Mr Smedley foreshadowed (once again) the making of an application to change the venue for the hearing. Over the opposition of counsel for Steller Developments, an order was made requiring any such application to be filed by 12 November 2024. 38 On 12 November 2024, the present application was filed. 39 As the above chronology demonstrates, the delay in bringing the present application is significant, extends across several years, and includes repeated failures to comply with orders of the Court. 40 No explanation for the delay or for the non-compliance with the orders of the Court has been proffered, beyond that which is contained in the 5 April 2024 letter (see [33] above). That explanation is that a unilateral decision was made - despite the Court having ordered the application be made by 15 March 2024 and the subsequent extension of that deadline to 5 April 2024 - that the application would have been premature and it would be brought not in accordance with the Court's orders but at a time when Mr Smedley's legal representatives considered it appropriate. This was not raised with the Court and the Court operated on the basis that no such application having been filed within the extended deadline, none would be made; an impression confirmed by the agreed notation to the 5 June 2024 orders (see [35] above). 41 Further, it was not appropriate to await the completion of the evidence. As noted at [26] above, s 48(1) applications should be made promptly. By way of illustration, in Terania, Mansfield J noted at [6] that: At present it is not possible to assess with any degree of confidence which of those witnesses are more likely to give evidence, or to give evidence which is likely to be contested. That is because I have been told very little about what their proposed evidence will be, or the extent to which it is likely to be contested. I am not critical of that fact because, as counsel for the respondents acknowledged, an application for transfer should be brought without delay. I accept that this application has been brought within an appropriate time frame. … 42 Although the 5 April 2024 letter alluded to the existence of authority suggesting that the application was at that time premature and ought "be made closer to trial when there is certainty about the conduct of the trial including who will be called to give evidence and the location of those witnesses", no such authority was referred to on this application and such a proposition would appear to be contrary to the authorities referred to at [26] above. 43 For completeness, I note that had it been appropriate to await the completion of the evidence, a factor to have been weighed in the balance would have been the fact that the evidence filed in 2024 primarily concerns the second cross-claim which cross-claim, as noted at [28] and [32] above, was filed more than two years after the date by which it was originally ordered to be filed. 44 I do not accept the submission made on behalf of Mr Smedley that no prejudice has been caused by the delay. The unchallenged evidence of Mr Harris is that: Since at least 5 April 2024, as no Transfer Application was filed, Steller's and Atlas's legal team (including Hogan Lovells, and Senior and Junior Counsel) have prepared for trial on the basis that it would take place in Sydney. No arrangements have been made to accommodate a ten-day trial in Melbourne (including arrangements in relation to the witnesses and legal team's various personal, family and child-minding commitments in Sydney during this period). Had any Transfer Application been filed by 5 April 2024 (ie over seven months ago), and it was subsequently determined that the trial would be transferred to Melbourne, that would have at least allowed sufficient time (ie seven months) for arrangements to be made. 45 Counsel for Mr Smedley submitted that there is still time for any necessary arrangements to be made. Such a possibility may exist as a matter of strict logic, but the submission overlooks the practical effect of a change in venue ordered near the end of the present term, when the hearing is due to commence early in the next term; and casts the burden onto the other parties within a time-frame abridged solely by dint of the delay on the part of Mr Smedley. The submission made on behalf of Mr Smedley that no prejudice has been caused by the delay also overlooks the fact that prior to 7 November 2024 the Court operated on the basis that an application for the hearing to occur in Melbourne was not to be pursued. 46 In short, the delay is significant; there has been no acceptable explanation provided for the delay or for the disregard of the Court's orders; and there is prejudice consequent upon the delay. This provides another reason why the application should be dismissed.

C.4 Other matters 47 Counsel for Mr Smedley relies upon cl 5.4 of the deed of guarantee which provides that: the deed is governed by the law in Victoria; any proceeding in relation to the deed may be brought in a Victorian court; and the parties to the deed submitted to the non-exclusive jurisdiction of Victorian courts. This clause is a relevant consideration but is not determinative, particularly as the jurisdiction is non-exclusive: see Neville's Bus Service Pty Ltd v Pitcher Partners Consulting Pty Ltd [2016] FCA 859 at [5] to [7] (Gleeson J). In my view it does not outweigh the factors discussed above. 48 Counsel for Mr Smedley also relies upon the fact that the events the subject of the evidence in this proceeding occurred in Victoria. I regard this as a matter of little moment. 49 Counsel for Mr Smedley also contends that there is a lack of any connection of the proceeding to New South Wales, other than the liquidator being based in that State. However there is, quite properly, no suggestion that the decision to commence the proceeding in New South Wales was capricious. As Jessup J noted in Elyod Investments at [7], there is nothing unnatural (or untoward) about an applicant commencing a proceeding in the place of its own administrative operations. Further, the connection of the proceeding to New South Wales has strengthened, commensurate with the delay in bringing the application. As the Full Court stated in Sentry at 162: The Court must, however, be satisfied, after considering all relevant matters, that there is sound reason to direct that the proceeding be conducted or continued elsewhere. Its starting point is that the proceeding has been commenced at a particular place. Why should it be changed? On the one hand, if the party who commenced the proceeding chose that place capriciously the Court would be justified in giving no weight to the choice of place. At the other end of the scale, a proceeding may have continued for some time at the place of commencement with many steps having been taken there, for example, filing of pleadings and affidavits, discovery and inspection. Due weight would be given by the Court to such matters before directing that the proceeding should continue at a different place.

D. conclusion 50 For the reasons set out above, I am unpersuaded that the final hearing should be conducted in Melbourne rather than Sydney. It follows that the application should be dismissed. Costs should follow the event. I will make orders accordingly. 51 Finally, as noted earlier, Ms Nguyen's evidence is that Mr Smedley does not propose to be in Australia for the first four to five days of the hearing; and the present estimate of the length of the hearing - which was set down provisionally on 1 March 2024 and confirmed on 5 June 2024 - is between five and seven days. It appears likely that the case for Mr Smedley will become due to commence within the first half of the time estimated for the hearing. As I mentioned to counsel for Mr Smedley during the hearing of the present application, no assumption should be made that the hearing will proceed otherwise than in the normal course, regardless of whether Mr Smedley attends. I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Goodman.

SCHEDULE Name and role(s) Location of legal representatives Witnesses and their location Preferred Venue Steller Developments Applicant/First Cross-Respondent (2XC) Sydney Richard Stone (Sydney) Guy Hedley (Sydney) Michael Burstin (Melbourne) Andrew Le (Melbourne) Sydney Nicholas Smedley First Respondent/First- Cross Respondent (1XC)/Cross-Claimant (2XC) Melbourne Nicholas Smedley (Melbourne) Melbourne Simon Pitard Second Respondent Has not participated --- --- James Cirelli Third Respondent/Second Cross-Respondent (1XC) Melbourne James Cirelli (Melbourne) Melbourne Thomas Vines Fourth Respondent/ Cross-Claimant (1XC) Melbourne Thomas Vines (Queensland) None expressed Stellar Estates Pty Ltd (in liq) Fifth Respondent Has not participated --- --- Alastair Williams Third-Cross Respondent (1XC) Self-represented Alastair Williams (Melbourne) Melbourne Atlas Second-Cross Respondent (2XC) Sydney --- Sydney Michael Burstin Third Cross-Respondent (2XC) Sydney --- Neutral MB Commercial Pty Ltd Fourth Cross-Respondent (2XC) Sydney --- Neutral

SCHEDULE OF PARTIES NSD 1300 of 2021 Respondents Fourth Respondent: THOMAS VINES Fifth Respondent: STELLER ESTATE PTY LTD (IN LIQUIDATION) (RECEIVERS AND MANAGERS APPOINTED) First Cross-Claim Cross-Respondents Second Cross-Respondent JAMES CIRELLI Third Cross-Respondent ALASTAIR WILLIAMS Second Cross-Claim Cross-Respondents Second Cross-Respondent LMIZ8 INVESTMENT HOLDINGS PTY LTD (FORMERLY KNOWN AS ATLAS ADVISORS AUSTRALIA PTY LIMITED (ACN 164 576 569) Third Cross-Respondent MICHAEL BURSTIN Fourth Cross-Respondent MB COMMERCIAL PTY LTD (ACN 118 055 388)

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Judgment (42 paragraphs)

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