HER HONOUR: Before me for hearing on 20 February 2019 was an application by the defendant (the City of Greater Geelong), by notice of motion filed on 15 November 2018, for an order that these proceedings be transferred to the Supreme Court of Victoria pursuant to s 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) (Cross-Vesting Act). The plaintiff, Ant & Ballast Pty Ltd, a company registered in Victoria but with its principal place of business in New South Wales, opposes that application.
The underlying dispute in these proceedings relates to the calling by the defendant on one or more bank guarantees provided by the plaintiff to secure certain works to be carried out by another entity (now in liquidation) on land situated in Highton, Victoria. The plaintiff seeks, among other relief, a declaration that the defendant wrongfully called upon the bank guarantee(s) and an order that the funds obtained by the call on the bank guarantee(s) be returned.
[2]
Background
The background to the present application has been set out in the affidavit sworn on 21 December 2018 by Mr Peter Aston (the plaintiff's director) (at [4]-[18]) and an affidavit affirmed 15 November 2018 by Mr Izac John Griffiths (the defendant's solicitor) ((at [7]-[20]). Briefly, it may be summarised as follows.
The defendant is a local council and body corporate within the meaning of s 4 of the Local Government Act 1989 (Vic), being a body corporate constituted as a City Council for the City of Greater Geelong under that Act and the City of Greater Geelong Act 1993 (Vic).
In December 2012, the defendant entered into an agreement with Lilibuck Pty Ltd (Lilibuck) (now in liquidation), under s 173 of the Planning and Environment Act 1987 (Vic) (Planning and Environment Act) (the s 173 Agreement). That agreement imposed certain landscaping and maintenance obligations on Lilibuck in relation to land in Highton, Victoria.
I interpose here to note that s 173(1) of the Planning and Environment Act provides that a responsible authority (here, the defendant) may enter into an agreement with an owner of land in the area covered by a planning scheme for which it is the responsible authority. Such an agreement may provide for various matters (see s 174(2)) including: the prohibition, restriction or regulation of the use or development of land; the conditions subject to which the land may be used or developed for specified purposes; and any matter intended to achieve or advance: the objectives of planning in Victoria; or the objectives of the planning scheme or any amendment to the planning scheme of which notice has been given under s 19 of the Planning and Environment Act; and any matter incidental to any one or more of the above matters.
Under the terms of the s 173 Agreement entered into between the defendant and Lilibuck, the defendant agreed to approve a subdivision of certain land owned by Lilibuck by issuing a Statement of Compliance under the Subdivision Act 1988 (Vic), in return for which Lilibuck agreed to carry out certain rehabilitation and other works on the land (the Works) (see Mr Griffiths' affidavit at [14]). The defendant's agreement to issue the Statement of Compliance for the subdivision prior to Lilibuck carrying out the Works was conditional on Lilibuck providing to the defendant certain Bonds to secure the performance of the relevant works (see Mr Griffiths' affidavit at [14(f)]; cll 3 and 6 of the s 173 Agreement).
Relevantly, for present purposes (not least because of the emphasis placed by the defendant on it), the s 173 Agreement contained a jurisdiction clause (cl 9.3), characterised by the defendant as an exclusive jurisdiction clause, in the following terms:
For the purposes of this Agreement, the parties acknowledge that they are subject to the jurisdiction of the Act [the Planning and Environment Act] and the Victorian Courts for the enforcement of this Agreement.
As it transpired, in lieu of Lilibuck providing the Bonds required under cl 3 of the s 173 Agreement, the defendant accepted unconditional undertakings or bank guarantees from an entity related to Lilibuck (Sunland Group Ltd) (Sunland) (see Mr Griffiths' affidavit at [15]) in the sum of $1,243,000.
In March 2015, over two years from the execution of the s 173 Agreement by Lilibuck, the plaintiff acquired Lilibuck from Sunland (see Mr Aston's affidavit at [7]).
In late 2015 (said by the plaintiff in its statement of claim at [11] to be on 24 November 2015 and by the defendant in its submissions at [12] to be "in about December 2015", though nothing here turns on any discrepancy in the dates) the plaintiff provided to the defendant unconditional bank guarantees in the sums of $958,000 and $15,015 in replacement for the guarantees provided by Sunland (see statement of claim at [11]). The bank guarantee for the larger amount, issued by St.George Bank (the St.George Bank Guarantee) included the following terms:
1. Sum Guaranteed. This Guarantee is given for the amount of $958,000 ("sum guaranteed").
2. Guarantee. St.George now holds, and will continue to hold, the sum guaranteed at the disposal of the Favouree until St.George receives written notice or confirmation from the Favouree that:
a) the Favouree no longer requires the sum guaranteed (nor any part of it) to be held at the disposal of the Favouree; or
b) the Favouree requires the sum guaranteed (or part of it) to be paid to the Favouree.
3. Demand under Guarantee. If the Favouree notifies St.George that payment is required of the whole or any part of the sum guaranteed, St.George will pay the Favouree as demanded without reference to the Customer even if the Customer instructs St.George not to make any such payment.
On the present application, the defendant emphasises that under the terms of the St.George Bank Guarantee the bank was obliged, on notification by the Favouree, to pay the whole or part of the sum guaranteed without reference to the Customer and even if instructed by the Customer not to make any such payment.
Lilibuck was wound up in insolvency on 1 February 2016 (see Mr Aston's affidavit at [10]).
The defendant maintains that, at that time, certain Works that Lilibuck was required to perform under the terms of the s 173 Agreement had not been performed (see Mr Griffiths' affidavit at [17]). That is a matter in dispute in the proceedings.
The plaintiff maintains that, during 2016 and since, the plaintiff has offered to perform the Works but says that that offer has not been taken up by the defendant. The plaintiff also maintains that the Works cannot be performed because of outstanding civil works on the land which are not the obligation of Lilibuck (or itself) (see the statement of claim at [18]).
By a letter dated 27 September 2016, the defendant's solicitor wrote to Lilibuck's liquidator, serving a written notice pursuant to cl 6.4.1 of the s 173 Agreement, stating that Lilibuck had breached its obligations under the s 173 Agreement to carry out all of the stages of the Works in accordance with the agreement. The letter proposed that, given that the obligations remained outstanding, the parties should agree by consent to vary the s 173 Agreement to allow for a transfer to the defendant of these obligations and provision by the plaintiff of the reserve for the uncompleted stages to the plaintiff at no cost.
On about 15 May 2017 (without, the plaintiff says, any notice to or consultation with Lilibuck or itself) the defendant made a demand on the St.George Bank Guarantee and obtained the sum of $958,000 (see Mr Griffiths' affidavit at [19]).
As already noted, the plaintiff is not a party to the s 173 Agreement and in any event, as I understand it, the defendant disputes the proposition that notice was required to be served on the plaintiff before calling on the St.George Bank Guarantee. It does appear, however, that the plaintiff was on notice of the terms of the s 173 Agreement when it provided the St.George Bank Guarantee to the defendant (by reference to correspondence to which I was taken on the present application); and the plaintiff's statement of claim invokes various provisions of the s 173 Agreement.
[3]
Commencement of proceedings
On about 4 October 2018, the plaintiff commenced these proceedings by way of a statement of claim in which it alleges, inter alia, that: the reasonable cost of the landscaping and maintenance works that Lilibuck was required to perform under the s 173 Agreement but had not performed at the time it was wound up (the Remaining Works) was estimated to be $550,000 ([13]); in 2016, it offered to perform or fund the Remaining Works in exchange for the return of the bank guarantees ([14]) and the defendant did not accept that offer ([15]); the defendant made a demand on the sum of $958,000 secured by the guarantees, "without justification, notice or consultation with Lilibuck or the plaintiff" ([16]); at the time the defendant called on the bank guarantees there was no default in the performance of the Remaining Works; the s 173 Agreement did not give the defendant the right to call on the guarantees merely on the basis of Lilibuck's winding up; the Remaining Works could not be performed in any event as the defendant was still in the process of reviewing the audit and outstanding civil works and preparing landscape plans, which were all required before the Remaining Works could be undertaken; and the plaintiff stood ready, willing and able to perform or fund the Remaining Works ([18]). The plaintiff also noted that it was earning interest on the cash deposit securing the bank guarantees at a rate of 2.8% per annum resulting in an annual interest of $26,824 ([18]).
The defendant has not yet filed a defence to the statement of claim. However, its solicitor has deposed (see Mr Griffiths' affidavit at [22]) that the defendant intends to defend the proceedings on the bases, inter alia, that: the defendant was entitled to call upon the St.George Bank Guarantee under the terms of the Guarantee and the s 173 Agreement; and the cost of the Remaining Works will exceed $550,000.
[4]
Relevant legal principles
Section 5(2)(b)(iii) of the Cross-Vesting Act, which relates to the transfer of proceedings, relevantly provides that:
Where a proceeding (in this subsection referred to as the relevant proceeding) is pending in the Supreme Court (in this subsection referred to as the first court), and it appears to the first court that... it is otherwise in the interest of justice that the relevant proceeding be determined by the Supreme Court of another State or of a Territory, the first court shall transfer the relevant proceeding to that other Supreme Court.
The principles applicable on an application under s 5(2)(b)(iii) of the Cross-Vesting Act were summarised by Johnson J in Ha Ha Jing Pty Ltd v My Queen Pty Ltd [2017] NSWSC 594 (at [8]-[14]); and see Harrison J in Fuji Xerox Australia Pty Ltd v Documents on Call Pty Ltd [2018] NSWSC 1862 (at [5]), his Honour there citing BHP Billiton Ltd v Schultz (2004) 221 CLR 400; [2004] HCA 61 (at [14] and [19]) (BHP Billiton) and James Hardie & Coy Pty Ltd v Barry (2000) 50 NSWLR 357; [2000] NSWCA 353 (at [95]) (James Hardie v Barry)).
In relation to s 5(1)(b)(iii), the "interests of justice" ground for transfer, in Bankinvest AG v Seabrook (1988) 14 NSWLR 711 (Bankinvest), Rogers AJA said (at 730):
Self-evidently, this subclause was designed to provide a basis for a transfer in circumstances where the requirements of subcl (i) and subcl (ii) are not satisfied. Thus, where there are no related proceedings pending in the other Supreme Courts, the dispute does not involve matters of inter-State law, in relation to which jurisdiction is acquired only by reason of the cross-vesting legislation, nonetheless, the court may effect a transfer. What then are the "interests of justice" which the legislature considers should be taken into account in this process? To my mind, the relevant matters and considerations are essentially the same as were specified by the House of Lords in the Spiliada. These considerations were criticised and held to be inapplicable, at least by Brennan J, in Oceanic on the basis that they are too uncertain. Yet, in my opinion, they have already, in effect, been made applicable in Australian courts in relation to transfers between Supreme Courts by the various Australian Parliaments. As this jurisdiction comes to be exercised more frequently and the courts better acquainted with the discretion conferred (if not before), it may be that the perception in Oceanic that the criteria are uncertain in content will undergo review.
In Bankinvest (at 713-714), Street CJ said:
The cross-vesting legislation passed by the Commonwealth, the States and the Territories both conferred on each of the ten courts Australia-wide jurisdiction and set up the mechanism regulating the transferring of proceedings from one of these ten courts to another. In relation to transfer, the common policy reflected in each of the individual enactments is that there must be a judicial determination by the court in which proceedings are commenced either to transfer or not to transfer the proceedings to one of the other nine based, broadly speaking, upon consideration of the interests of justice ... It calls for what I might describe as a 'nuts and bolts' management decision as to which court, in the pursuit of the interests of justice, is the more appropriate to hear and determine the substantive dispute. [my emphasis]
The factors that have been identified as relevant to determine where the interests of justice may lie, are cited in James Hardie v Barry as follows:
1. application of substantive law;
2. forensic advantage or detriment conferred by procedural law;
3. the choice made by a plaintiff or [sic; scil of] a forum and the reasons for that choice;
4. substantive connections with the forum;
5. balance of convenience to the parties and witnesses; and
6. convenience to the court system.
In BHP Billiton, where the High Court considered when proceedings should be transferred under s 5(2) of the Cross-Vesting Act, after referring to Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538, Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197, Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460 and Bankinvest, Gleeson CJ, McHugh and Heydon JJ said (at [14]-[16]):
In the context of the Cross-vesting Act, one is not concerned with the problem of a court, with a prima facie duty to exercise a jurisdiction that has been regularly invoked, asking whether it is justified in refusing to perform that duty. Rather, the court is required by statute to ensure that cases are heard in the forum dictated by the interests of justice. An application for transfer under s 5 of the Cross-vesting Act is brought upon the hypothesis that the jurisdiction of the court to which the application is made has been regularly invoked. If it appears to that court that it is in the interests of justice that the proceedings be determined by another designated court, then the first court "shall transfer" the proceedings to that other court. There is a statutory requirement to exercise the power of transfer whenever it appears that it is in the interests of justice that it should be exercised. It is not necessary that it should appear that the first court is a "clearly inappropriate" forum. It is both necessary and sufficient that, in the interests of justice, the second court is more appropriate.
The reason why a plaintiff has commenced proceedings in a particular court might, or might not, concern a matter related to the interests of justice. It might simply be that the plaintiff's lawyers have their offices in a particular locality. It is almost invariably the case that a decision as to the court in which an action is commenced is made by the plaintiff's lawyers, and their reasons for making that choice may be various. To take an example at the other extreme, it might be because a plaintiff is near death, and has a much stronger prospect of an early hearing in one court than in another. The interests of justice are not the same as the interests of one party, and there may be interests wider than those of either party to be considered. Even so, the interests of the respective parties, which might in some respects be common (as, for example, cost and efficiency), and in other respects conflicting, will arise for consideration. The justice referred to in s 5 is not disembodied, or divorced from practical reality. If a plaintiff in the Tribunal were near to death, and, in an application such as the present, it appeared that the Supreme Court to which transfer was sought could not deal with the case expeditiously, that would be a consideration relevant to the interests of justice. Justice would ordinarily dictate that the interest of the plaintiff in having a hearing would prevail over the interest of the defendant in such benefit as it might obtain from the plaintiff's early death. The capacity of the Tribunal to deal expeditiously with cases has always, and rightly, been regarded as relevant to the interests of justice, bearing in mind the condition of many sufferers from dust diseases.
On the other hand, there may be conflicting interests of such a kind that justice would not attribute greater weight to one rather than the other. The advantage which a plaintiff might obtain from proceeding in one court might be matched by a corresponding and commensurate disadvantage to a defendant. The reason why a plaintiff commenced proceedings in one court might be the same as the reason why the defendant seeks to have them transferred to another court. In such a case, justice may not dictate a preference for the interests of either party.
Thus: no weight is to be given to the fact that the plaintiff regularly invoked the jurisdiction of the first court when the proceedings were commenced (BHP Billiton at [14], [25], [72]-[77], [258]); it is not necessary that it should appear that the first court (here, this Court) is a "clearly inappropriate" forum - rather, it is necessary (and sufficient) that, in the interests of justice, the other court (the transferee court, here, the Supreme Court of Victoria) is the "more appropriate" forum (BHP Billiton at [14]); and there is no judicial discretion involved - therefore if it is determined that a transfer of the proceedings is in the interests of justice, then the proceedings must be transferred (BHP Billiton at [14], [62]-[63]; [222]).
What the Court is required to do on such an application is to endeavour to predict, on the available material, which court appears to be the more appropriate forum, having regard to the interests of justice; and the applicant (here, the defendant) bears the persuasive onus of showing that the transfer to the other Supreme Court is appropriate in all the circumstances (see James Hardie v Barry at [100]).
Where an agreement contains a choice of law clause or an exclusive jurisdiction clause, this has been said to carry "great weight in determining the appropriate forum in a cross vesting application because it records a term of the bargain between the parties that litigation arising from their agreement will be resolved in accordance with the substantive law of a specified forum and by the courts of that forum"; and that that this is "[p]articularly persuasive" where such a clause appears in a contract between commercial parties well able to protect their respective interests (see Asciano Services Pty Ltd v Australian Rail Track Co Ltd [2008] NSWSC 652 at [18]; Taurus Funds Management Pty Ltd v Aurox Resources Ltd [2010] NSWSC 1223 at [38]).
[5]
The relevant factors drawn from James Hardie v Barry in the present case
I turn then to the parties' submissions as to the relevant factors in the present case. In essence, the position of the plaintiff is that (while it acknowledges that the background of this dispute concerns a Victorian land development and planning agreement) the s 173 Agreement is "essentially irrelevant" to the plaintiff's claims in these proceedings, which it says will mostly turn on questions of common law, and it submits that the other venue considerations are mixed but weigh in its favour so that its choice of venue "should not be overridden". The defendant, on the other hand, identifies as the primary reason for the transfer of the proceedings the fact that "the parties" agreed (by cl 9.3 of the s 173 Agreement) that they are subject to the jurisdiction of the Planning and Environment Act and it is submitted that these proceedings relate to "enforcement of the Agreement" within the meaning of cl 9.3 of the s 173 Agreement.
[6]
(i) Application of the substantive law
It is submitted by the defendant that this factor points to the Supreme Court of Victoria being the more appropriate forum; the defendant noting (as is not and could not be disputed) that the s 173 Agreement is made under, and given force and effect by, a Victorian statute (namely ss 173 and 174 of the Planning and Environment Act. Thus it submits that the applicable substantive law in resolving the dispute "is or may be Victorian statute law". So much may be accepted. However, it was not suggested in written or oral submissions that there is any relevant difference in the substantive law of Victoria that applies to the underlying dispute; nor that this Court would have any difficulty in applying the substantive law of Victoria in the determination of the dispute.
[7]
(ii) Forensic advantage or detriment conferred by procedural law
It was not suggested that this factor was applicable in the present case.
[8]
(iii) Choice of forum
The principal reason for the plaintiff's choice of forum appears to relate to the convenience of the forum to the plaintiff, particularly by reference to Mr Aston's current state of health - which I consider in (v) below (see Mr Aston's affidavit at [30]-[32]).
[9]
(iv) Any substantive connections with the forum
The plaintiff emphasis that the cause of action arose as a result of the (allegedly wrongful) call on the bank guarantee and the taking of funds thereby from a branch (the St.George Bank) in Kogarah, NSW. (Although there was some dispute as to whether the evidence on this application disclosed the location of the relevant St.George Bank branch from which funds were drawn down when the call on the bank guarantee was made, it does not appear to be disputed that the St.George Bank Guarantee was provided through the Kogarah branch of the bank.) The plaintiff says that the dispute does not arise out of the s 173 Agreement; that the plaintiff was not a party to that agreement; and that it does not claim under the s 173 Agreement. Rather, the plaintiff says, the plaintiff's claims concern whether, in the circumstances the bank guarantees were given, the defendant was entitled to call on them in the way that it did. Similarly, the plaintiff says that its claims do not (in any meaningful sense) concern the land in question.
The defendant cavils with those propositions. The defendant says that it is clear from the plaintiff's pleaded case that the plaintiff makes claims against it "through or on behalf of Lilibuck" as a party to the s 173 Agreement (referring to Coulls v Bagot's Executor and Trustee Co Ltd (1967) 119 CLR 460 at 478-479 in this regard).
The defendant points out that the plaintiff provided the bank guarantees in satisfaction of Lilibuck's obligations under cl 3 of the s 173 Agreement and that the St.George Bank Guarantee was an unconditional guarantee (and according to its terms, the defendant was entitled to the guaranteed sum merely if it notified St.George Bank that it required payment of the guaranteed sum). It says that where the plaintiff pleads that the defendant made a demand on the guarantee "without justification" the plaintiff must be alleging that the defendant had no entitlement under the terms of the s 173 Agreement to make a demand on the guarantee (because, according to the terms of the St.George Bank Guarantee, the defendant did not require any "justification" at all to make a demand on the guarantee). Further, it is noted that the plaintiff expressly pleads (at [18] of the statement of claim) that the s 173 Agreement did not give the defendant the right to call on the guarantee in the circumstances (the defendant also here referring to the plea at [6] of the statement of claim).
It is submitted by the defendant that the substantive connection of the dispute to Victoria is manifest, in that: the plaintiff is a corporation registered in Victoria, and its sole shareholder is also a corporation registered in Victoria; the defendant is a City Council constituted under the Victorian Local Government Act and the City of Greater Geelong Act; the land the subject of the dispute is in Victoria; and the defendant's officers, staff and lawyers are all located in Victoria.
[10]
(v) balance of convenience to parties and witnesses
[11]
(vi) convenience to the Court system
I consider these factors together.
The plaintiff notes that the residence of the parties and their respective legal representatives is "split"; that the liquidator of Lilibuck is located in New South Wales; and that the plaintiff has identified two likely witnesses (Peter Aston and Andrew Pursell) both of whom reside in New South Wales. Mr Aston has deposed to issues with his health which it is said favour the venue remaining in the state of his residence. In his affidavit at [30]-[32], Mr Aston deposes that: during the period from 2015 to 2016 he was hospitalised and recovering from kidney cancer (stage 2/3) at Wollongong Hospital and SAN Hospital (which I understand to be the Sydney Adventist Hospital); he has monthly blood pressure checks at his local general practitioner in Lindfield in connection with the removal of his right kidney as a result of the kidney cancer; and he has weekly physio and/or physical training appointments from recovery of a bike/car accident which occurred in 2016.
The defendant says that in the present case a consideration of these factors points to the Supreme Court of Victoria being the appropriate forum because: all of the defendant's likely witnesses are located in Victoria; the defendant intends to engage expert witnesses to inspect the land, and such inspections must necessarily take place in Victoria; and the Court will likely have to carry out a view of the land during the proceedings, and this can more conveniently occur if the proceedings are heard and determined by the Victorian Supreme Court.
The defendant notes that the pleaded dispute concerns, inter alia, whether it was entitled to make a demand on the St.George Bank Guarantee in the sum of $958,000 in circumstances where the plaintiff alleges that the "reasonable cost" of the Remaining Works to be performed was only $550,000 (referring to [13] of the statement of claim) and that the Works were required to be performed on land situated in Victoria.
Mr Griffiths deposes in his affidavit at [23] that this allegation raises matters in relation to: the scope and cost of the Remaining Works to be performed on the land as at the date that Lilibuck entered liquidation (a factual question on which the defendant would seek to call expert evidence).
It is said that the experts will be required to attend and inspect the land in Victoria prior to the hearing for the purposes of preparing their reports; and that at any hearing, the Court will have to undertake a view of the land in Victoria order to understand the expert evidence as to the scope and cost of the Remaining Works to be performed.
The defendant argues that any possible disadvantage to the plaintiff caused by the transfer of the proceedings to the Supreme Court of Victoria can likely be mitigated by appropriate case management orders made by that Court; for example, by the defendant consenting to the plaintiffs' witness (Mr Aston) giving evidence by video-link (see the defendant's submissions at [27]). (I interpose here to say that the same might be said about the giving of any oral evidence by the defendant's witnesses.)
In response, the plaintiff notes that the defendant has only said that its likely witnesses reside in Victoria, without identifying any of those witnesses. The plaintiff says that the only individual known to the plaintiff to have been involved in the relevant events and occurrences (a Mr Marshall Sullivan) has left the defendant's employ and cannot currently be located. It is submitted that it should be inferred, from the fact that the current application is only supported by an affidavit from the defendant's solicitor, that (other than for the "missing" Mr Sullivan) there is no individual with personal knowledge of the underlying events and occurrences to give evidence in the matter. (Pausing here, I would not draw any such inference from the fact that the affidavit relied upon in an interlocutory application such as this is one made by the solicitor with carriage of the matter rather than anyone from the party itself. I do, however, note that there is no detail provided by the defendant as to the identity or number of witnesses it may seek to call to give evidence nor as to the experts it will seek to retain.)
[12]
Conclusion
Without any disrespect to that Court, I am not persuaded that the Supreme Court of Victoria is the "more appropriate" forum in the present case.
I accept that agreement between contracting parties to a choice of jurisdiction clause is a significant factor and that, although not expressed as an exclusive jurisdiction clause (since it is limited to claims for enforcement), cl 9.3 might be able to be characterised as such. However, it is relevant to note that the plaintiff is not a party to the s 173 Agreement (which was entered into some two years before the plaintiff proffered the guarantees the subject of the present dispute). Despite the unexplained claim for "damages" in the statement of claim (said to relate to interest foregone on the amount called down under the guarantees, so perhaps some form of claim for restitutionary interest though this is not made clear in the pleading), this is not in terms an application to enforce the s 173 Agreement (to which the plaintiff is clearly not a party), nor is the claim pleaded as a claim to enforce an agreement the benefit of which is held on trust for the plaintiff. True it is that the claim is one that invokes the terms of the s 173 Agreement but I do not regard the choice of jurisdiction clause (even if properly construed as exclusive) as thereby binding on the plaintiff.
The fact that the agreement is one made under the provisions of a Victorian statue does not make the courts of that State the more appropriate form, nor was I taken to any difference in substantive or procedural law applicable to this dispute that might warrant such a conclusion.
No particular witnesses who are to be called in the defendant's case have been identified (the relevant defendant's officer's current whereabouts apparently not being known at this stage). True it is that if any oral evidence is to be adduced from officers of the the defendant then it would be expected that those witnesses would reside or be based in Victoria but the need for oral evidence has not been established (nor has the number of any such witnesses been disclosed) and the facility for audio visual link evidence would equally be an available option in that regard.
I accept that it may well be necessary (or at least desirable) that when the proceedings are heard there be an attendance in Court by someone from the defendant who is in a position to give instructions (though even then that is not a given, since there are many occasions on which officers of insurance companies or the like from whom instructions might need to be sought in the course of a trial are not physically present in Court), but even then that is no greater difficulty that that which faces the plaintiff if the converse applies (and in that regard there is the additional difficulty posed by Mr Aston's ill health).
Although it is true that the plaintiff is incorporated in Victoria, with its registered office there, its principal place of business appears from its letterhead to be in New South Wales and Mr Aston is based in New South Wales.
As to the experts, to the extent that physical inspection of the land by the experts is necessary, clearly any such inspection would have to take place in Victoria but it is not clear whether that will be necessary (as opposed to a consideration of the status of the Works by reference, say, to plans and other documents or photographic evidence). More relevantly, there is no evidence as to where the respective experts (who I do not understand yet to have been retained) will be based.
As to the Court's convenience, it is by no means clear that a Court view will be required. An application would need to be made to the Court in that regard and there is no reason to assume that it would necessarily be granted. There are many cases involving building construction, environmental or other disputes in relation to land where no such view is either called for or carried out.
The factor that I find most compelling is the state of Mr Aston's health. The fact that his evidence could be taken by video-link does not address the fact that he is the principal of the company and would ordinarily be expected to be in attendance to give instructions at the hearing.
Thus I have not concluded that, although the dispute relates to the calling of one or more bank guarantees given to secure the performance of works on land in Victoria (under a contract made under and given effect to by a Victorian statute) by a Council incorporated in Victoria, the Supreme Court of Victoria is the "more appropriate forum" to determine the dispute and thus I have not concluded that it is in the interests of justice for the matter to be cross-vested to the Supreme Court of Victoria.
For those reasons, I dismiss the defendant's notice of motion with costs and I will list the matter for further directions before the Registrar.
[13]
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Decision last updated: 06 March 2019