Jurisdiction of Courts (Cross-Vesting) Act 1987
48Section 5(1) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW), provides for the transfer of proceedings from the Supreme Court of a State or Territory to, relevantly, the Federal Court if it appears to the court being asked to transfer the proceedings that:
(b)
(i) the relevant proceeding arises out of, or is related to, another proceeding pending in the Federal Court or the Family Court and it is more appropriate that the relevant proceeding be determined by the Federal Court or the Family Court,
(ii) having regard to:
(A) whether, in the opinion of the first court, apart from this Act and any law of a State relating to cross-vesting of jurisdiction and apart from any accrued jurisdiction of the Federal Court or the Family Court, the relevant proceeding or a substantial part of the relevant proceeding would have been incapable of being instituted in the first court and capable of being instituted in the Federal Court or the Family Court,
(B) the extent to which, in the opinion of the first court, the matters for determination in the relevant proceeding are matters arising under or involving questions as to the application, interpretation or validity of a law of the Commonwealth and not within the jurisdiction of the first court apart from this Act and any law of a State relating to cross-vesting of jurisdiction and
(C) the interests of justice,
it is more appropriate that the relevant proceeding be determined by Federal Court or the Family Court as the case may be; or
(iii) it is otherwise in the interests of justice that the relevant proceeding be determined by the Federal Court or the Family Court,
the first court shall transfer the relevant proceeding to Federal Court or the Family Court as the case may be.
49Mr Cotman submits that before a 'relevant proceeding' can be transferred pursuant to this section there must be another proceeding pending in the Federal Court or Family Court that the relevant proceeding either arises out of or to which it is related and that, as at the date of the application before me, there are no such pending proceedings.
50In response, Mr Lucarelli submits that s 5(1)(b)(iii) of the Act is an independent head of power to cross-vest a matter in the interests of justice, regardless of whether there are other proceedings in the Federal Court ( Bankinvest AG v Seabrook ( 1988) 14 NSWLR 711 at [730]; BHP Billiton Ltd v Schultz [2004] HCA 61; (2004) 221 CLR 400 at [14]). I agree.
Inherent jurisdiction
51Efax acknowledges that the Court has an inherent jurisdiction to transfer proceedings to another court, existing outside the national scheme of legislation of which the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) is a part. However, Mr Cotman places emphasis on the existence of a duty of the court to exercise its jurisdiction, referred to in Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197, where Deane J said that "it is a basic tenet of our jurisprudence that where jurisdiction exists, access to the courts is a right. It is not a privilege, which can be withdrawn otherwise than in clearly defined circumstances" (at 252) and referring also to the BHP Billiton case . Mr Lucarelli submits that such notion should be rejected having regard to the import of the introduction of cross-vesting laws (citing BHP Billiton at [25] and Bankinvest at [727B]).
52It seems to me that the duty to exercise the jurisdiction of the Court must be considered in the context of the jurisdiction to cross-vest matters where that is in the interests of justice. In any event, as noted above I consider that the jurisdiction under the cross-vesting legislation has been properly invoked and on balance that there is also jurisdiction under the Corporations Act to transfer the proceedings.
Application of legal principles
53The test applicable under s 1337H(2), is whether the interests of justice make it more appropriate for the proceeding to be determined in the Federal Court in Victoria. Notwithstanding what has been said as to the 'roadmap' for the determination of issues arising in the conduct of the liquidation there being formulated or case managed, for the reasons that I set out below I am not persuaded that the interests of justice make this particular case more appropriate to be dealt with elsewhere.
54The test for determining when proceedings should be transferred to another jurisdiction under s 5(1) of the Jurisdiction of Courts Cross Vesting Act focuses on whether the proceeding would have been incapable of being instituted in the first court, and what is the more appropriate forum for the dispute, so that if the court is satisfied that there is another jurisdiction which is simply "more appropriate" or it is in the "interests of justice" for the transfer to occur, then proceedings shall be transferred.
55This is unlike the test for determining when local proceedings should be stayed in favour of another international forum, which gives greater precedence to the plaintiff's choice of forum (being the "clearly inappropriate forum" test as adopted in Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55; (1990) 171 CLR 538, preferring the view of Deane J in Oceanic Sun ). The Court of Appeal in Bankinvest indicated that the test to be applied was not that espoused by the High Court in Voth and Oceanic Sun in relation to forum nonconveniens (at [727]) .
56In Bankinvest, Rogers AJA (with whom Street CJ and Kirby P agreed) found, by the legislature's use of the words "more appropriate", as well as by reference to the Preamble to the Act, an intention that a test akin to that stated by the House of Lords in Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460 be utilised in this context (namely, a test focusing on what is the more "natural forum" for the case to be tried, and this will require the court to look at numerous factors going to the interests of the parties and the interests of justice).
57Rogers AJA, after reviewing the terms of the Act and explanatory memoranda, referred to the policy underlying the forum non conveniens principles and indicated that under the new legislative regime it is n o longer appropriate to regard the court of another State as a "foreign" court, going on to state (at [726] - [728]):
One consequence is that the principles of forum non conveniens, applied in circumstances where the competition is between an Australian and a non- Australian court, have no role to play in the resolution of applications made under the legislation or in its interpretation. Legislation prescribes the criteria whereby such applications are to be determined. The criteria are rather more specific in some respects but in referring to the "interests of justice", call for considerations of a more general kind than the judicially established rules of forum non conveniens ...
Here, the legislation works in terms to displace that "traditional approach" [referring to Oceanic Sun ]. The very test in s 5(2)(b)(i) is the proscribed "more appropriate". Even if, ultimately, the accepted test for forum non conveniens, in relation to non-Australian venues, should remain the "traditional approach", described by Deane J, the Australian Parliaments have prescribed different criteria for determining a place for hearing within Australia.
Although, in my view, the traditional principles of forum non conveniens have little to say to the problems of exercise of jurisdiction under the crossvesting legislation, it is possible to obtain assistance from the more recent English decisions which are driven by the same principles as the Australian legislation. In Oceanic , the majority of the High Court declined to accept the decision of the House of Lords in Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460 as the law of Australia on forum conveniens. Nonetheless, the criteria laid down by Lord Goff of Chieveley, with the approval of the other members of the House, for the application of principles of forum non conveniens, broadly correspond to the criteria designated by the Act. The questions posed by Spiliada and the legislation are the same. What court is more appropriate and what court is pointed to by the interests of justice. (my emphasis)
58In Bankinvest , Street CJ said (at [713] - [714]):
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.
59In BHP Billiton, the High Court had occasion to consider when proceedings should be transferred under s 5(2), and after referring to Voth, Oceanic Sun, Spiliada and Bankinvest, Gleeson CJ, McHugh and Heydon JJ said (at [12], [14] - [16]):
The national scheme of legislation, of which the Cross-vesting Act is a part, was intended to operate, and to be applied, in a different juridical context. This was clearly stated in the first case to come before the Court of Appeal of New South Wales under the Cross-vesting Act, Bankinvest AG v Seabrook . It has been recognised by the Court of Appeal in later cases in which jurisdiction of one kind or the other has been invoked.
...
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.
60Davies and Nygh, in Conflicts of Laws in Australia ( 7 th edn) at [6.13], conclude that the approach indicated by the Court of Appeal in Bankinvest will mean that:
Other than in exceptional circumstances, courts will transfer proceedings to the court to which that proceeding normally belongs, especially where all the matters raised in that proceeding are within the proper jurisdiction of the other court. If the proceedings in the forum fall partly within the proper jurisdiction of the forum and partly within the proper jurisdiction of another superior court, the proceeding will be retained or transferred depending on which court has the most substantial connection with the proceedings as a whole.
61In relation to s 5(1)(b)(iii), the "interests of justice" ground for transfer (i.e. where the proceedings are not otherwise related to proceedings in another court and do not involve the determination of other state or federal law (thus subclauses (i) and (ii) are not satisfied)), Rogers AJA in Bankinvest stated (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 D 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.
Absent the presence of related proceedings or interstate law, the inquiry directed by consideration of the 'interests of justice' encompass all the matters that determine which is the more appropriate forum that I have already discussed. The two considerations of "more appropriate" and the "ends" or "interests" of justice are used in the same sense by Lord Goff in the passage I have already cited (at 727). I would be going over ground I have already covered if I were to discuss the contents of "interests of justice" further. I should, however, mention that its presence and content call for a rejection of Mr Nicholas' submission that the principle of forum non conveniens continues to exist concurrently with the legislation. The former has been clearly subsumed by s 5(2)(b)(iii).
62In Oceanic Sun Deane J said: (165 CLR 197 at [ 243]):
the traditional process of determining such an application for the dismissal or stay of an action is not a mere balancing of convenience or inconvenience or the resolution of competing claims of different jurisdictions neither of which could be said to be clearly inappropriate (cf per Gibbs J, Cope Allman (Australia) Ltd v Celermajer (1968) 11 FLR488, at p 492) The starting point of the determination of such an application in accordance with traditional principle must be the prima facie right of a plaintiff to insist upon the exercise of competent jurisdiction which he has regularly invoked That prima facie right of a plaintiff is not to be lightly displaced or denied.
and at ([244])
Not only is the jurisdiction one which should be exercised "with great care" or "extreme caution"" It has, as has been indicated, traditionally been seen as a jurisdiction which is only available to be exercised on inappropriate forum grounds where the court whose jurisdiction has been invoked by the plaintiff is so inappropriate for their determination that a continuance of the proceedings in it would be productive of the injustice of oppression and vexation of the defendant
concluding (at [248]):
The power should only be exercised in a clear case and the onus lies upon the defendant to satisfy the local court in which the particular proceedings have been instituted that it is so inappropriate a forum for their determination that their continuation would be oppressive and vexatious to him Ordinarily, a defendant will be unable to discharge that onus unless he can identify some appropriate foreign tribunal to whose jurisdiction the defendant is amenable and which would entertain the particular proceedings at the suit of the plaintiff Otherwise, that onus will ordinarily be discharged by a defendant who applies promptly for a stay or dismissal if he persuades the local court that, having regard to the circumstances of the particular case and the availability of the foreign tribunal, it is a clearly inappropriate forum for the determination of the dispute between the parties.
63Mr Cotman submits that the proceedings were properly commenced in this jurisdiction and that there are factors which connect with New South Wales (the plaintiff and its representatives, as well as the Prime Broker and Custodian being based in this State). Sonray, of course, is based in Victoria and the liquidators are there (and the contract is governed by the law of Victoria). There is an obvious inconvenience to the liquidators in conducting proceedings outside the jurisdiction in which they are based. However, it is by no means apparent that the liquidators would need physically to be present in court during the proceedings (particularly if the matter is, as Mr Cotman says, to be run largely as a documentary case and the real dispute is between Saxo Bank and Efax). As Mr Cotman notes, the transactions in question predate the appointment of the liquidators so that it is difficult to see that there would be any personal knowledge requiring a lengthy attendance by the liquidators (as opposed to their representatives) during the hearing. The location of the parties and their legal representatives therefore seems to me to be a factor evenly balanced as between the respective jurisdictions and the choice of law clause does not add greatly in that balancing exercise.
64Mr Cotman submits that no issue has been identified in the proceedings which is the same or which overlaps or is likely to be informed by any other proceedings which would render it more economical to conduct the proceedings out of New South Wales to the financial detriment of Efax. At present that seems to be the case and is a factor pointing against a transfer (there being no suggestion that the proceedings had not been properly commenced in this jurisdiction).
65Insofar as there was reference by Mr Lucarelli to the potential for other claims involving similar matters, the evidence suggesting that there were some 770 accounts of a similar nature to the Efax transaction was to a large extent speculative. Mr Georges explanation of the similarity focussed not so much on the substantive claim but the fact the money had not actually passed to Saxo Bank to make the relevant acquisitions. Mr Cotman submits that the primary issue for litigation is between Efax and Saxo Bank (or its counterparties in the purchase transaction or warehousing of the shares), since Sonray performed its instructed role and has been paid to do so.
66Mr Cotman also submits that it is unnecessary and inappropriate to transfer the proceedings where the Sonray parties have no appropriate pending proceedings to which to transfer the matter. I place no weight on this factor given that there are proceedings presently on foot, not wholly unrelated to the present, to which it might be possible to join these proceedings and given the role which seems to have been played by Finkelstein J in the Federal Court in relation to issues in the liquidation which may be of lesser or greater relevance to Efax, depending on the outcome of its proprietary claim.
67Mr Lucarelli submits that Efax' case involves shares that represent a value of some 4% of the overall claims by investors against Sonray. He submits that Sonray itself has a claim to the BHP Shares (or their proceeds of sale or value) and, depending on the application of the Corporations Act and Corporations Regulations , such shares or proceeds are either impressed with a statutory or constructive trust in favour of the other 770 investors said to be in the same position as Efax, or impressed with a statutory or constructive trust in favour of the 4,000 or so overall investors, including Efax. (Insofar as Mr Georges said that there were 770 accounts of a similar nature to the Efax transaction, he explained in re-examination that what he had meant when he said that was that Efax had invested money into Sonray which passed through a deficient segregated account and what they were able to see on the trading platform was the processing of the transaction, but that the money had not physically passed to Saxo Bank to make the relevant acquisitions.) It is by no means apparent that the particular claims that Efax wishes to bring in the current proceedings are or are likely to be mirrored elsewhere.
68The main thrust of Mr Lucarelli's submission that the proceedings should be transferred is that the issues to be addressed in the liquidation overall are complex and require consideration of the respective contractual obligations owed by Sonray, questions of misapplication of investor funds, the consequence of the deficiency in the Client Segregated Account, statutory and constructive trusts, related tracing issues and insolvent transaction issues. Mr Lucarelli submits, in effect, that even if Mr Cotman's submission that this is a discrete property issue as between Efax and Saxo Bank (or the custodian holding the shares currently) is correct, if the outcome of that determination is unfavourable to Efax, then Efax' claim will require an examination of Sonray's internal dealings with investor funds and the financial dealings and securities trading between Sonray and Saxo Bank (matters that are said to be the subject of the case management being undertaken by the Federal Court in Victoria); and that if the submission as to the discrete nature of the issue is wrong in the first place then the same result will follow. However, it does not seem to me to be disputed that the claimed entitlement to a beneficial interest in the BHP Shares is a matter that could be determined in advance of other more general claims to the moneys in the Segregated Accounts or the proceeds of assets acquired out of funds from those accounts.
69Mr Lucarelli submits that it is the Federal Court in Victoria which should more appropriately determine whether, and if so on what terms or in what circumstances, Efax should be allowed to continue to agitate a separate claim "having regard to the road to global resolution that has already been laid down and along which the major parties are already travelling". In particular, it is said that there is the 'liquidation specific desirability' of one court having overall control of what is a large and complex liquidation "a fortiori a complex liquidation now entering a crucial non-litigious process of multi-party mediation and judicial directions aimed at resolving fundamental issues that will determine the future trajectory of the liquidation". I accept that there is considerable merit in having all of the disputes in the liquidation raising similar issues being determined and case-managed in the one court, provided this can be done without undue prejudice to the rights of an individual claimant seeking to pursue its own separate claim in another court (particularly where there is no suggestion that there was any abuse of process involved in the commencement of the proceedings in that other forum).
70Mr Lucarelli points to difficulties it is suggested are evident in Efax' pleaded case, including that the Client Segregated Account into which Efax deposited the money was materially deficient as at 18 and 25 January 2010 (being the dates upon which Efax deposited the amounts of $176,000 and $3m respectively), thus casting doubt as to whether the subsequent book entry to the sub-account referable to Efax amounts to any form of 'payment' as between Efax and Sonray; that no funds actually passed from Sonray to Saxo Bank for any of the BHP Shares; as to the effect of the ISDA between Sonray and Saxo Bank on the alleged right of Efax "to direct registration" on CHESS; and the import of the statutory trust imposed on the commencement of Sonray's voluntary administration by reference to Corporations Regulation 7.8.03(4) and (5) over what remained in the Client Segregated Account in favour of all investors and a statutory trust over all assets into which Client Segregated Account funds had been invested. Those seem to be matters which go to whether the claimed beneficial interest can ultimately be established, not to whether it is appropriate that this issue be determined in this Court.
71To the extent that Mr Lucarelli submits that there are other related issues in the liquidation of Sonray which will impact upon the claim by Efax, such as how the deficiencies in the Client Segregated Account maintained by Sonray under s 981B of the Corporations Act affect the various money and financial products held by Sonray and by other trading platform providers to Sonray in positions similar to Saxo Bank; whether the bank accounts maintained by Sonray pursuant to s981B of the Corporations Act (including those in foreign currencies) can be pooled; whether the liquidators need to undertake further investigations into the affairs of Sonray (especially relating to trust property held by Sonray) so that the liquidators are able to explain precisely every defalcation on trust property maintained by Sonray and how each of those defalcations affects the position of each of Sonray's 4,000 clients; and whether other Sonray clients who traded on trading platforms other than that provided by Saxo Bank are in an identical position to those Sonray clients who traded on the platform provided by Saxo Bank (each of those being issues on which the liquidators say that they need to seek judicial advice), at least some of those issues (such as the extent of defalcations on the trust property) do not seem to impact directly on the initial question posed by Efax' claim (which is whether, notwithstanding the fact that its funds were paid into a deficient Client Segregated Account and not on-paid to Saxo Bank, it nevertheless acquired a beneficial interest in the shares acquired on its instructions through its agent Sonray).
72Mr Lucarelli submits (and I accept) that the liquidation of Sonray is a complex and large one, in which investors are presently faced with the prospects of substantial losses. He places weight on the fact that there is a regime in place by which major claims and recoveries open to the liquidators have been submitted to a multi-party mediation, coupled with Court approved funding to enable the liquidators to make an application for directions and judicial guidance for rulings on issues some of which he submits will inevitably arise in the case brought by Efax. It is said that the liquidation is in a real sense already under the overall supervision of the Federal Court of Victoria and that these proceedings ought be placed under the control of that Court as well, conformably with the comments made by Palmer J In the matter of Clivpee Ltd (in administration) [2010] NSWSC 1215 at [9]. There, his Honour noted that in very large corporate insolvency "special arrangements are sometimes made in a court to have one judge case manage a variety of different applications which may be made in that administration so as to produce some sort of cost and time efficiency" and that had those arrangements already been in place for the administration of Clivpee in the other court, then that might well have been a weighty factor in the exercise of discretion in that case. (However, one matter to which his Honour also adverted was whether the similarity of issues in other proceedings would provide any template for management of proceedings in this court.)
73While I accept that there are complex issues on which the liquidators wish to seek judicial advice (in the context of the overall liquidation), such as whether the liquidators should treat the various segregated trust accounts as one separate trust or as several individual trusts, and that there is already in place in Victoria a measure of case management in relation to the mediation of disputes (involving some but not all of those involved in the Sonray transactions - to which reference was made in Re Georges (Liquidator) in the matter of Sonray Capital Markets Pt Ltd (in liq) [2010] FCA 1371), those issues broadly seem to assume that the interest of Efax in the BHP Shares is as an investor with a claim to whatever are the proceeds in the trust accounts (not going to whether the BHP Shares form part of the accounts at all). Mr Cotman emphasises that Efax is not in these proceedings claiming any money out of the Segregated Client Accounts, instead it maintains that it has a beneficial interest in the Shares themselves so as to take the shares out of the proceeds of the accounts available for distribution to investors or creditors of Sonray. Therefore, the separate determination of Efax' claim does not seem to me likely to pre-empt or prejudice the broader steps taken in relation to the liquidation or the giving of judicial advice or directions in the Victorian proceedings (but can instead, be determined separately and expeditiously without prejudicing the overall conduct of the liquidation).
Conclusion
74Ultimately, the factors that have persuaded me against the conclusion that it is in the interests of justice for this matter to be transferred to the Federal Court in Victoria (for the purpose of the test applicable under the cross-vesting legislation) or that it is the natural or more appropriate forum for the determination of the present dispute (for the purposes of the tests applicable in the inherent jurisdiction of under s 1337H(2) of the Corporations Act ), notwithstanding the case management of matters raised in the liquidation to date and the liquidators' intention to seek judicial advice in relation to various matters that may potentially impact on Efax' position generally as an investor, is that the claim as framed by Efax is a discrete claim of a proprietary interest in specific assets; it is said to be largely a documentary claim; and, significantly, that there is a real risk of prejudice to Efax arising out of delay in the determination of its claim by reason of the fact that it has submitted to an undertaking as to damages (well recognised to be an onerous undertaking) as the price for the BHP Shares, which it claims to own beneficially, not being sold. It is thus exposed to the vicissitudes of the stock market for so long as it takes for its claim to an interest in the shares in specie has been determined. It does not seem to me that this complaint can be sufficiently met by the response that the shares could be sold and the funds retained in a controlled account (having regard to the nature of the securities and the desire of Efax to retain them).
75Mr Cotman submits that Efax should not be put in the position where it has to start the process of litigation all over again, particularly where no undertaking was proffered on behalf of the Sonray parties to consent to the grant of leave in Victoria for the proceedings to continue in that court against the company in liquidation. I place less weight on this factor in circumstances where there has not yet been a determination as to whether leave to proceed will be granted. (Further, it may well be that the most expeditious way of proceeding would be for the claim to a beneficial interest in the shares to be determined in advance of any other claim Efax might (i.e. in the absence of a beneficial interest in the shares) have to a share of any proceeds that may be available for distribution either out of the Client Segregated Account(s) or in the course of the liquidation and for that alternative claim to be determined as part of any then ongoing representative proceedings in which those more general issues applicable to various classes or investor will be decided, but that is a matter that would not appropriately be determined until after the hearing of the application for leave to proceed against Sonray in liquidation.)
76However, what I do place weight on is the fact that there are subsisting undertakings as to damages (which neither the Sonray parties nor Saxo Bank was willing to release) which means that there is real risk of prejudice arising if Efax is not permitted to pursue what seems to me to be a separate claim from the more complex issues arising in the liquidation (the determination of the latter being unlikely to be resolved in the near future given that they must await the initial judicial advice proposed to be sought by the liquidators and then the exigencies of the commencement of representative proceedings involving a number of potential respondents and what are frankly conceded to be complex issues). I am not persuaded that a determination of the claim Efax makes to a beneficial interest in the shares in specie necessarily involves any "unravelling" of the statutory regime or the import of the statutory trusts over the Sonray accounts.
77Had there been a willingness by the Sonray parties to consent to a regime whereby the existence of the claimed beneficial interest was to be determined by the court in Victoria expeditiously, as a separate issue from the general investor claims, then I would have been inclined to the view that it was in the interests of maintaining an overview of the overall litigation in which the liquidators were involved to have this matter transferred to the court in Victoria which is already dealing with some aspects of the liquidation. However, no such consent was forthcoming and, in circumstances where there is a discrete issue and it is by no means clear that there are a body of investors making similar claims to Efax, the potential prejudice of delay in the context of the transfer of the existing proceedings is such that I have concluded that it is not in the interests of justice for the matter to be transferred, nor am I satisfied that there is another jurisdiction in which the determination of this claim as a discrete claim would more appropriately take place.
78I therefore dismiss the application to transfer these proceedings to another jurisdiction. I will hear the parties as to costs and I will consider the appropriate directions to be made to list the application for leave to proceed against the company in liquidation to be heard without further delay.