Fraser v Gorilla Rush Pty Ltd (No 2) [2026] NSWSC 627 | Case summary

Fraser v Gorilla Rush Pty Ltd (No 2) [2026] NSWSC 627 | Case summary | Zoe

These proceedings are currently in the District Court. They were commenced with the filing of a statement of claim on 24 July 2024.
The plaintiff now wishes to transfer the proceedings to this court and then, in turn, to the Federal Court. A summons seeking orders to achieve this purpose was filed by the plaintiff on 8 October 2025.
The process of moving the proceedings from the District Court to this court is sanctioned by s 8(1) of the Jurisdiction o**f Courts (Cross-vesting) Act 1987 (NSW). The subsequent movement of the matter to the Federal Court is permitted by s 5(1) of the same Act.
The first defendant is a corporation. The second defendant is the sole director and shareholder of the first defendant. The second defendant is self-represented. He has been given leave to also appear on behalf of the first defendant.
In addition to the summons, there is also before me a notice of motion filed by the defendants on 5 December 2025 seeking various orders concerning the destination of the transfer and conditions which might be attached to the transfer.
The defendants have filed a number of written submissions, the last of which is dated 20 May 2026, and is said to state the defendants’ “revised position”.
The revised position was further revised in discussion today, culminating in this way:
The defendants do not oppose the transfer of the District Court proceedings to this court and then on to the Federal Court.
The consent to the transfer is subject to the imposition of various conditions.
The plaintiff should pay an additional amount for security for costs, the plaintiff having already been ordered to pay (which he has done) an amount of $53,300 into court. The extra amount sought is to bring the total security to $300,000.
The plaintiff should not be allowed to enforce a Court of Appeal costs order made payable forthwith by Ball JA on 13 May 2026.
The conditions that the defendants request be attached to any transfer orders include the costs, and extended security I have mentioned above, and also orders in respect of the amendment of the statement of claim.
Dealing now with the transfer, first to this court and then on to the Federal Court, I have set out above the relevant legislative provisions. Notwithstanding the consent of the defendants, it is still necessary for this court to be satisfied of the appropriateness of the orders. The consent, however, is an important factor in considering the Interests of Justice which is one of the considerations that s 5 of the Jurisdiction of Courts (Cross-vesting) Act requires.
I think it worth commenting that the commencement of the proceedings in the NSW District Court was never the right forum. I asked learned counsel for the plaintiff why this had occurred. Speaking frankly, he told me that the only reason he could contemplate was that the plaintiff’s solicitors, who were based in New South Wales, thought the local jurisdiction was appropriate.
Starting with s 8(1) of the Jurisdiction of Courts (Cross-vesting) Act*,* the only point requiring comment is that it is necessary for the matter to be transferred to the Supreme Court in order to give consideration to the transfer to the Federal Court (as per s 8(1)(b)(ii)) of the Act.
Moving then to s 5 of the Jurisdiction of Courts (Cross-vesting) Act, regard must be had to the matters set out in s 5(1)(b)(ii) of the Act. I think it is now necessary to look at the background to the proceedings.
The plaintiff resides in the United Kingdom. He is “a product executive specialising in online gambling products.” He asserts that in August 2022, the second defendant approached him to take part in the setting up of an “e-casino” business. After some discussion as to conditions of employment of the plaintiff by the first defendant, agreement was reached and acceptance of the conditions by the plaintiff was conveyed by email to the defendants in Queensland.
By operation of the Electronic Transactions (Queensland) Act 2001 (Qld), the place of the contract is Queensland. Pursuant to the contract, the plaintiff worked for the first defendant from October 2022 until December 2023.
The plaintiff alleges that he is owed outstanding wages of £171,625 (the equivalent of about $322,326). In addition, the plaintiff alleges that the second defendant made misleading and deceptive statements to him about the funding of the proposed business.
The current statement of claim does not encompass all of the plaintiff’s allegations. An amended statement of claim is proposed which will seek damages in relation to the funding representations under the Australian Consumer Law (ACL), damages in relation to a collateral contract, and also compensation and penalties against the first defendant for breaches of the Fair Work Act 2009 (Cth), in particular pursuant to s 323. The claims under the ACL are said to arise from s 18 of sch 2 of the Competition and Consumer Act 2010 (Cth).
According to the plaintiff, the salary claim, the collateral contract claim, and the ACL Queensland claim could not be determined in a New South Wales court. While I am not sure I agree entirely with the submission, I do think it is plain that all of these claims could be made in the Federal Court. In addition, the general ACL claim, the ACL accessory claim, the Fair Work Act s 323 claim and the s 323 accessory claim are justiciable in both New South Wales and also in the Federal Court.
When looking at the considerations required by s 5 of the Jurisdiction of Courts (Cross-vesting) Act, the capability consideration obviously favours the Federal Court, the Commonwealth Law consideration is probably neutral and the Interest of Justice consideration clearly favours the transfer.
In relation to the Interest of Justice consideration, I have already mentioned the consent of the defendants. I also note that the plaintiff lives in England and the second defendant is based in Queensland. The second defendant has health issues which would make a local venue more suitable for him, noting that the Federal Court also sits in Queensland.
I am satisfied that the matter should be transferred to the Federal Court which is, in my opinion, the more appropriate court.
One matter which has concerned me is the way in which the money already paid into the District Court by way of security should be dealt with. At the suggestion of the plaintiff, I will simply make an order that the security be transferred to the Federal Court. If this is not possible for technical reasons, I will give the parties liberty to restore, so as to make alternative orders.
In relation to the conditions that the defendants sought, I think the application for extension of the security should be made in the Federal Court, perhaps appropriately at the same time as the plaintiff’s application to amend his pleadings.
There have been a number of costs orders already made. I will order that all other costs associated with the proceedings so far be costs in the cause. The parties agreed that the costs of the hearing before me should be borne by each party.
The orders I will make will also dispose of any remaining parts of the defendants’ motion. I will dismiss the motion with no order as to costs.
I make the following orders and notations:
Pursuant to s 8(1) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) proceedings 2024/00272199 commenced in the District Court of New South Wales are transferred to the Supreme Court of New South Wales.
Pursuant to s 5(1) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) the proceedings referred to in Order 1 above are transferred to the Federal Court of Australia.
Each party is to pay its own costs of the hearing on 2 June 2026.
Other than costs orders that have already been made, the costs of the proceedings to date are to be costs in the cause.
The sum of $53,300 paid into court by order of the District Court is to be paid to the Federal Court.
The parties have liberty to apply in respect of any matter arising from Order 5 above.
The notice of motion filed by the defendants on 5 December 2025 is dismissed with no order as to costs.
The court notes the following:

Fraser v Gorilla Rush Pty Ltd (No 2)

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