Austrian Lloyd Steamship Co v Gresham Life Assurance Society Ltd

REASONS FOR JUDGMENT HIS HONOUR: The respondent applies for an order that this proceeding, which has been commenced in the Victoria District Registry of the Court, be transferred to the South Australia District Registry. The power of the court to make such an order is to be found in s 48 Federal Court of Australia Act 1976 (Cth) which provides: "The Court or a judge may, at any stage of the proceeding in the Court, direct that the proceeding or 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." See also O 10 r 1(2)(f) of the Federal Court Rules, pursuant to which the Court may direct that a proceeding be transferred from one registry to another, and O 36 r 6, where the Court is given power to direct at what particular place the trial of a proceeding is to take place. The proceeding is concerned with a lease of the Cosmopolitan carpark which is located at 128 Hindley Street, Adelaide. The first applicant, a Victorian company, was granted the lease by the respondent, a company incorporated in New South Wales. Contemporaneously with the grant of the lease, the second applicant and the third applicant, each a director of the first applicant, executed a deed pursuant to which they jointly guaranteed the observance and performance of the terms and conditions to be observed and performed by the first applicant under the lease. In the proceeding the applicants seek orders that the lease and the guarantee be set aside. They also seek other relief, including damages. The allegations that are made to found the relief that is claimed fall into two categories. First it is said that in order to induce the first applicant to take the lease, and the second and third applicants to give the guarantee, certain false representations were made concerning the revenue to be derived from the carpark and concerning the ability to reduce the costs of operating the carpark. The representations are set out in the statement of claim. It is said that those representations were written, oral and to be implied. To the extent that the representations are said to be in writing the particulars that are provided describe the documents where it is said the representations are to be found. To the extent that the representations are said to have been made orally, the allegation is that they were made by Mr John Barrett, a manager of the respondent, in conversations with Mr R Turner and Mr R Belteky who were representing the applicants in the negotiations for the lease and the guarantee. The representations are also said to arise by way of implication as a result of certain conduct of Mr Barrett. It is not necessary to describe that conduct. The second basis upon which the claim is put is that before the lease was taken and the guarantee given the respondent was planning to construct a building on a property that is adjacent to the carpark site which, when constructed, would have the effect of obstructing the visual attractiveness of the access to the carpark and therefore the respondent was under a duty to disclose that plan to the applicants. In the particulars it is alleged that the applicants were aware that the respondent was proposing to develop the adjoining land and that they were shown plans of the proposed development. The complaint is that those plans were changed in a way that would affect the visual attractiveness of the access to the carpark and the respondent did not advise the applicants of the change. The alleged facts are said to give rise to claims under s 52(1) of the Trade Practices Act 1974 (Cth) for misleading and deceptive conduct and claims for the common law tort of negligence. The matters upon which the respondent relies to obtain an order that the proceeding be transferred to the South Australian Registry of the Court may conveniently be summarised as follows: