Edwin Borg Enterprises Pty Ltd v Twin Creek Consulting Pty Ltd

Catchwords: CIVIL PROCEDURE — Jurisdiction — Transfers to and from other courts — District and Local Courts — transfer of proceedings from Local Court to Supreme Court — where cross claim sought equitable relief

Category: Principal judgment

Parties: Edwin Borg Enterprises Pty Ltd t/a United Acreage Marketing (plaintiff)
Twin Creek Consulting Pty Ltd (first defendant)
Youssif Safi (second defendant)

Representation: Counsel:
J Emmett SC, R Hudson (plaintiff)
D Sulan SC, CJM Palmer (defendants)
Solicitors:
Johnson Law Group (plaintiff)
Dentons (defendants)

File Number(s): 2024/377417

Publication restriction: None

JUDGMENT

1. PAYNE JA: Today, 25 June 2025, the present matter came before me in the Common Law Division. The plaintiff on the summons Edwin Borg Enterprises Pty Ltd (“Edwin Borg”) sought orders transferring proceedings which had been commenced by the defendant Twin Creek Consulting Pty Ltd (“Twin Creek”) in the Local Court of New South Wales to the Supreme Court.

2. There is a lengthy procedural history between these parties. It may shortly be summarised as follows:

3. Mr Youssif Safi and a company of which he director, Twin Creek, were in commercial arrangement with Edwin Borg to provide services pursuant to an agreement wherein Edwin Borg agreed to pay a commission on certain sales.

4. After the end of the relationship between Mr Safi and Twin Creek on the one hand, and Edwin Borg on the other, Twin Creek commenced proceedings in the Local Court against Edwin Borg seeking payment of what it said was unpaid commission. Edwin Borg, in its defence, claimed a set off and denied any liability to pay Twin Creek.

5. A cross claim was filed by Edwin Borg, initially against Twin Creek only, seeking relief which, at least in part, was alleged could not be granted by the Local Court. In circumstances which are not presently relevant, Mr Safi was added to the cross claim and, prior to today’s hearing, Edwin Borg notified Twin Creek and Mr Safi of substantial proposed amendments to the cross claim.

6. There is a lengthy history of disputation between the parties, the details of which I will not seek to record here. The parties this morning agreed that the matter should be transferred to the Supreme Court and, following a short adjournment, agreed that it was appropriate that the matter be adjourned to the Expedition List.

7. Twin Creek and Mr Safi also consented to leave being granted to file the amended cross claim in the proceedings as transferred and to their filing a defence to that cross claim within a short period.

8. Finally, the parties agreed that it was appropriate that, given the relatively small amount of money involved on both sides, that directions be made to facilitate a mediation between the parties.

9. Accordingly, I made the following orders:

10. Local Court of New South Wales proceeding 2024/00159266 is transferred to the Supreme Court of New South Wales, Equity Division.

11. The pleadings in Local Court of New South Wales proceeding 2024/00159266 stand as pleadings in the Supreme Court of New South Wales.

12. The Plaintiff has leave to file and serve a First Cross-Claim Amended Statement of Cross Claim in the form of MFI-1 handed to the Court on 25 June 2025 by 4pm on 26 June 2025.

13. The Defendants to file and serve defence to the First Cross-Claim Amended Statement of Cross Claim, filed and served in accordance with Order 3 above, by 4pm on 3 July 2025.

14. The Defendants’ Notice of Motion filed 17 October 2024 in Local Court of New South Wales proceeding 2024/00159266 is dismissed.

15. Order that the parties’ costs in these proceedings and in the Local Court to date be costs in the cause, save that the Plaintiff is to pay the Defendants’ costs thrown away by reason of the amendment to the cross-claim the subject of Order 3, such costs to be confined to costs of:

(a) considering and corresponding in relation to the form of the original cross claim (excluding for the avoidance of doubt the costs of the notice of motion in the Local Court in relation to the cross claim); (b) seeking and considering further particulars; and (c) considering drafts of the amended cross claim the subject of Order 3.

7. The matter be listed on Friday 4 July 2025 before the Expedition Judge, McGrath J, in the Expedition List.

8. Direct the parties to attend a private mediation no later than 8 August 2025.

9. Reasons reserved.

10. Having read the voluminous papers, none of which were ultimately tendered before me today, I expressed the tentative view that this was a case where it was in the interests of all parties that the claim and cross claim be determined as soon as possible. The costs incurred to date seemed to me to be entirely disproportionate to the issues at stake. Following a short adjournment and after consulting with McGrath J, the Expedition Judge, I adjourned the proceedings to the Expedition List and explained to the parties that they should be ready on 4 July 2025 to persuade his Honour that this was a matter warranting expedition.

11. The foregoing are my reasons for making the orders earlier today.

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