14 The mechanism proposed by the share buy-back agreement was that Eclectic should make an offer which Group should accept. That was done, and I infer that the offer and acceptance (in each case dated 19 October 2007) was performed at the same time as the execution of the share buy-back agreement.
15 That, I think, is the evidence as to where it was the agreement was made. If it is thought that the act of Mr Sproule in sending the draft contract to Mr Carroll was an offer, then it could be said Mr Carroll's signing it on behalf of Eclectic and sending it back was an acceptance of that offer. Alternatively, it could be said that Mr Carroll's sending back the executed documents was an offer which was accepted by Group in the manner that I have indicated. On that basis, the contract would be made when and where Group communicated its acceptance to Eclectic; and, as I have said, there is no evidence of when or how this occurred.
16 For these somewhat long-winded reasons, I do not think that the evidence enables a conclusion to be drawn with any degree of certainty as to where the agreement was made.
17 The share buy-back agreement specifies a "governing law" in clause 4.1. By that clause, the agreement is "to be construed in accordance with the laws in force in Queensland and the parties submit to the jurisdiction of the Courts of Queensland". As Mr A P Cheshire of counsel for Eclectic pointed out, the choice of law is not a matter of enormous significance in this case because, to the extent that the questions fall to be resolved according to the general law, it is the general law of Australia; and to the extent that considerations of statutory law are relevant, the statute which requires consideration is the Corporations Act 2001 (Cth).
18 Turning to the question of the place of breach, the breach asserted is that, on the proper construction of the contract either as it stands (including by that reference to terms that Eclectic says should be implied) or as it is reformed, Group failed to make all payments due under it to Eclectic.
19 On that basis, since Eclectic is incorporated and has its place of business in this State, the breach took place in this State. That is because, the contract being silent on that point, the obligation of Group to make payments (assuming that it has not discharged all its obligations) is to make them where Eclectic is to be found. Thus, to the extent that that somewhat formal consideration is relevant, it suggests a connection with this State.
20 Other matters that require consideration relate to the convenience of conducting the proceedings in one jurisdiction or the other. For example, if the proceedings are conducted here, it may be that witnesses will have to come from Queensland to Sydney to give evidence; and if proceedings are conducted in Queensland, it is certain that a witness will have to travel from Sydney to Queensland to give evidence.
21 The evidence that is likely to be given will relate both to the factual matrix (if I may call it that) - considerations relevant both to construction and implication - and to corresponding contractual intention - in relation to rectification. It seems to be fairly plain that the agreement (perhaps I should say the consensus) was negotiated between Mr Carroll for Eclectic and Mr Sproule for Group. Mr Carroll lives and works in Sydney (although he travels around Australia in the course of his duties) and obviously enough would prefer to give evidence in Sydney.
22 Mr Sproule lives in a place called Meerschaum Vale in northern New South Wales and works there and in Brisbane. It appears that he too travels around Australia in the course of his duties. Meerschaum Vale is about 20 kilometres distant from Ballina and about 210 kilometres distant from Brisbane. Thus, if Mr Sproule is to give evidence, he has to proceed either by driving to Brisbane (there being no direct flight from Ballina to Brisbane) or by driving to Ballina and catching a plane to Sydney (there are direct flights from Ballina to Sydney).
23 Group has its office in Samford, a suburb of Brisbane. Those offices are located about 21 kilometres distant from the Supreme Court of Queensland. No doubt, if Mr Sproule were working at Samford, it would be convenient for him to travel those 21 kilometres to the Supreme Court of Queensland rather than the substantially greater distance to this Court. As I have said, the evidence is that Mr Sproule works both from home and at Sanford; and that, in addition, he travels around Australia.
24 If matters went no further, it would not be possible to conclude that the Supreme Court of Queensland is the more appropriate forum for the conduct of these proceedings. However, Mr Walsh pointed to other matters which he submitted showed that it was. There was evidence from a Ms Neesha Pierce, a solicitor employed by CGW, as to the witnesses who may be called in Group's case. Ms Pierce asserted that those witnesses could well include a Mr Brent Ducker, and a Mr Cameron Bradley. Mr Ducker is or was an accountant in the firm of Ernst & Young who gave tax and other advice to Group in connection with the transaction. He is resident, and I assume works, in Brisbane.
25 Mr Bradley is also an accountant. At the relevant time he was either a principal or an employee of a firm known as Pitcher Partners. He provided audit and related services, in particular relevant to the accounts upon the basis of which, it appears, the transaction was structured. He too lives, and I assume works, in Brisbane.
26 Ms Pierce says that she thought it was likely that Mr Ducker and Mr Bradley would be important witnesses to be called by Group. Although Ms Pierce was not cross-examined, I have some difficulty in accepting this aspect of her evidence. To the extent that there are questions of factual matrix, those questions are likely to be dealt with either by Messrs Carroll and Sproule or by the tender of relevant documents. To the extent that there are questions of intention, the relevant intention is not some uncommunicated and private intention but, rather, a corresponding intention "met and satisfied" on each side so as to show "objectively a consensual relationship" (see Street CJ in Eq in Australasian Performing Right Association Ltd v Austarama Television Pty Ltd [1971] 2 NSWLR 467, 473, approved by Menzies J in Hooker Town Developments Pty Ltd v Director of War Service Homes (1973) 47 ALJR 320).
27 It may be that Mr Bradley or Mr Ducker could give evidence of what was said to them by (for example) Mr Sproule; but as I have said, evidence of uncommunicated or private intentions is unlikely to be of any real assistance.
28 I have some doubt that Mr Ducker or Mr Bradley are likely to do more to prove the various documents that they created. Certainly, Ms Pierce said she has spoken to both of them and it is to be noted she has given no indication of either the subjects or the general nature of the evidence that either of these gentlemen might give.
29 Likewise, Ms Pierce says that a Mr Christopher Clarke, the former financial controller of Group, would be a relevant witness. She says that he could give evidence of the preparation of valuations and the financial documentation and of "facts relevant to conversations and negotiations" between Messrs Carroll and Sproule.
30 Mr Clarke is employed in Brisbane, and would prefer to give evidence there, understandably enough. The evidence for Eclectic suggests that he has said that he would be prepared to travel to Sydney to give evidence. The evidence for Group suggests that he did not say this. I cannot resolve the controversy because there has been no cross-examination. On the other hand, the evidence for Group does not go so far as to say that he would be unwilling to travel to this State to give evidence.
31 Again, I think, the likelihood that Mr Clarke will give evidence of any significance may be doubted. To the extent that he may be able to give evidence of conversations and negotiations, the general nature of that has not been suggested by Ms Pierce in her affidavits.
32 The other suggested witness is Mr Andrew Lawry. He is the chief executive officer of Group, and lives and works in Brisbane. It is suggested that he too can give evidence as to conversations and negotiations with Mr Carroll. The substance of that, or the general nature of it, has not been disclosed.
33 It is very difficult to make an evaluation of the strength or the likelihood of the relevance of these gentlemen when no detail has been given which would enable any evaluation to be carried out. In the circumstances, whilst I acknowledge the possibility that they may be called, I have difficulty in seeing that they are likely to be witnesses of such significance that they should be regarded as tipping the balance in favour of the Supreme Court of Queensland.
34 I acknowledge that if they are to be called, and if the proceedings continue in this State, there will be additional expense in bringing them here and putting them up (if necessary) whilst they give evidence. But it does not follow from that that the Supreme Court of Queensland is the more appropriate forum.
35 To the extent that the business records of the parties are relevant, then that seems to me to be relevantly a neutral factor. Eclectic has its records in Sydney. Group has its records in Brisbane. There should be little difficulty in the records being discovered (presumably electronically) and produced.
36 In connection with Eclectic's application in relation to Mr Grace and CGW, Mr Cheshire submitted that Mr Grace would be an important witness on the rectification claim. Likewise, he submitted, the person who did a lot of work - a Ms Carly Fradgely, then known as Carly Mann - would be relevant. Ms Mann, as I shall call her for convenience, since that is how she is referred to in the documents, was a graduate who worked under the supervision of Mr Grace.
37 Mr Walsh did not accept that either Mr Grace or Ms Mann would be significant witnesses on the rectification case. Further, he submitted, if they were relevant witnesses then this was a favour that tended to strongly to suggest that the appropriate forum was the Supreme Court of Queensland. On that basis, he submitted, it would not merely be Mr Sproule on one side and Mr Carroll on the other, with the nebulous prospects (my words, not his), of the other witnesses to whom I have referred, but also the need to take evidence from Mr Grace and Ms Mann. He submitted that if this were to be done, it would indicate very strongly factors of convenience suggesting that Queensland is the more appropriate forum.
38 I shall deal with the significance of Mr Grace and his evidence (and likewise Ms Mann) a little later on. However, for reasons that will become apparent, I am at present not persuaded that it is likely that they will be witnesses of significance in the case, even on the issue of rectification. Thus, I do not think that their convenience is a factor to be taken into consideration in considering whether the Supreme Court of Queensland is the more appropriate forum.
39 The question which is to be addressed is, having regard to the factors outlined in the cases, and the evidence to which I have referred (and the other evidence which, although before the Court and addressed in submissions, I have not summarised), what is the "natural forum" for the resolution of the present dispute.
40 In my view, the factors go each way. The consideration that there is some balance of convenience in favour of Queensland is important. However, the consideration that the breach on which reliance is placed occurred in this State is also important. Likewise, although Mr Sproule works in Queensland (and elsewhere throughout Australia) he has chosen to make his residence in this State.
41 That leaves one other matter which I regard as being of significance. The proceedings are in the Commercial List and, if they stay in this Court, they will be case managed by a List Judge from time to time and will be given as early a hearing date as appropriate having regard to the degree of urgency that they possess. Having been entered in this list, they are here in effect as of right, and will remain here unless something happens to justify removing them. If, however, the proceedings are sent to the Supreme Court of Queensland, an application would have to be made to enter them into the Commercial List of that Court.
42 The practice direction relating to the Commercial List (Practice Direction 3/02 dated 26 March 2002) suggests that proceedings may be listed in the Commercial List when the issues are or are likely to be of a general commercial character or arise out of trade and commerce in general, and where they have an estimated trial time of five days or less. Proceedings which fall within the first of these categories include proceedings involving the construction of a business contract or the commercial document. It is clear that the first requirement is likely to be satisfied. However, Ms Pierce says that it is likely the proceedings will take more than five days; she estimates six days. If that is so, then the proceedings would be perhaps unlikely to be entered in the Commercial List, although alternative arrangements could be made, as indicated in the Practice Note, to have the case managed as if it were in the List.
43 Clearly, the proceedings are ones which (leaving aside the cross-vesting application) are appropriate to be heard and managed in the Commercial List of this Court. It is advantageous to the parties to have that done, because the directions to be given by the Court will seek to ensure, so far as possible, that the real issues in dispute are identified and prepared for hearing as quickly and as cheaply as possible. Whilst I do not for a moment suggest that anything different would happen if the proceedings remained in some general list in the Supreme Court of Queensland, nonetheless, I think, the certainty that the proceedings will stay in the Commercial List in this Court as opposed to the possibility that they may not be entered into the Commercial List of the Supreme Court of Queensland is an important factor to be taken into account in considering where lies the outcome of the balancing consideration called for under s 5 (2) (b) (iii).
44 As I have indicated already, the evidence canvassed many other matters and the parties referred to those in their submissions. I do not propose to take further time in going through those matters. It is sufficient to say that, balancing all the matters to which I have referred, including those other matters on which reliance is placed, I am not satisfied that the Supreme Court of Queensland is the appropriate forum.
45 It follows that, in the language of s 5 (2) (b) (iii), that the interests of justice do not require that the proceedings be transferred.
46 I turn to Eclectic's notice of motion.
47 Mr Cheshire suggested that this was a case where the conduct of Mr Grace in particular, and CGW in general, might be called into question so as to raise the possibility that an independent observer would think that the interests of justice might not be served if he, or his firm, continued to act for the defendants in the proceedings. He referred to the decisions of Brereton J in Kallinicos v Hunt (2005) 64 NSWLR 561; and Mitchell v Burrell [2008] NSWSC 772. As his Honour said in the latter case at [20]:
I do not accept that the mere circumstance that a solicitor will be a material witness, even on a controversial matter, of itself justifies restraining the solicitor from continuing to act.