Consideration
15 First, Jayhab Developments submitted, in relation to the mandatory considerations set out in s 1337L of the Act, Jayhab Developments' principal place of business is in Queensland, and accordingly, the events the subject of the proceedings can be inferred to have occurred in Queensland. As to s 1337L(c), Jayhab Developments noted that the Supreme Court of Queensland is the only court to which a transfer is suggested.
16 As referred to by Jayhab Developments, while the issues will be "thrown into sharper focus" on a contested application for transfer, the Court is nevertheless required to have regard to the considerations in s 1337L of the Act in exercising the discretion pursuant to s 1337H: Webster (as trustee for Elcar Pty Ltd Super Fund Trust) v Murray Goulburn Co-Operative Co Ltd [2017] VSC 249 at [15]. I have had regard to the mandatory considerations set out in s 1337L of the Act and accept the defendant's submissions in that regard. Jayhab Developments' principal place of business is in Queensland and I am satisfied that it may be inferred that the events the subject of the proceedings occurred in Queensland. Further, the Supreme Court of Queensland has jurisdiction to determine the matter and it is the court suggested for transfer for reasons which will be considered further below.
17 In relation to the relative stages of the proceedings, Jayhab Developments noted that the proceedings in the Supreme Court of Queensland are at varying stages, having been commenced at various times. Jayhab Developments also noted that the transfer of the proceeding would not compromise any trial dates as none have yet been listed. Jayhab Developments submitted that the Supreme Court is alive to the possibility of this matter being transferred and has indicated its intention that all relevant proceedings be dealt with together. As well, it was submitted that the Supreme Court proceedings are still at the interlocutory stage and, with respect to the City and Sherwood Road proceeding, further pleadings are still to be filed.
18 As to the commonality of issues between the proceedings, Jayhab Developments referred to the City and Sherwood Road proceeding in which Mr Habib claims that Jayhab Developments effected a transfer of a property to another company for no consideration and did not account to Mr Habib for profits generated by a property owned by Jayhab Developments. To that end, Jayhab Developments submitted that these matters will be relevant to the determination of the issues brought in this Court with respect to oppressive conduct. Jayhab Developments submitted that so much is clear from the fact that the affidavit of Mr Habib refers to the property and development agreement, which is crucial to the City and Sherwood Road proceedings, as can be seen from the plaintiffs' substituted statement of claim filed in that matter in the Supreme Court of Queensland. Jayhab Developments also submitted that the oppression action as it relates to "commercial unfairness", "cannot be assessed in a vacuum or simply from one member's point of view": Lukaszewicz v Polish Club Ltd (2019) 370 ALR 698; [2019] NSWSC 446 at [8] - [9], citing Thomas v HW Thomas Ltd [1984] 1 NZLR 686; (1984) 2 ACLC 610 at 618, and, therefore, the dealings and affairs of the relevant parties in the Supreme Court proceedings would also need to be examined in the matter before this Court.
19 A factor which Jayhab Developments contended weighed strongly in favour of transfer is the substantial commonality of parties between this proceeding and the Supreme Court proceedings. Specifically, all other parties to the Supreme Court proceedings are individuals or entities related to Mr Habib or Jayhab Developments. In that regard, Jayhab Developments referred to Valceski v Valceski (2007) 70 NSWLR 36; [2007] NSWSC 440 wherein Brereton J stated at [85] that "justice can best be done by one court resolving the whole justiciable controversy, in order to avoid both duplication and inconsistency".
20 As previously stated, Mr Habib raised some reservations regarding the transfer application. It appears his primary submission in that regard was the concern that he would be prejudiced if the matter were to be transferred to the Supreme Court of Queensland on the basis that he would no longer be able to argue his claim against Jayhab Developments. He also submitted that the matter is one which is simple enough to be determined by this Court without the need for the transfer.
21 Having regard to the interests of justice generally and the matters outlined above, I consider that this is plainly a case in which the Supreme Court of Queensland is the more appropriate court to determine the application. The circumstances of the matter before this Court and the Supreme Court proceedings mean that there is likely to be an overlap in relation to factual findings and issues. Further, as submitted by Jayhab Developments, the oppression action may necessitate a consideration of the breakdown of the relationship between Mr Habib and Mr Jason, which forms part of the Supreme Court proceedings. For those reasons, there is a risk of a multiplicity of proceedings or conflicting findings: Vaughan v Frost [2010] NSWSC 492 at [11]. I also accept Jayhab Developments' submission that many of the parties to the Supreme Court proceedings are not parties to these proceedings, and accordingly any findings of this Court will not bind them, leading to the risk of unnecessary duplication.
22 As to Mr Habib's concerns regarding the prejudice he may face, I do not consider that there is a real risk of Mr Habib having a reduced opportunity to litigate his claim against Jayhab Developments in the Supreme Court of Queensland. Mr Habib also submitted that the matter before this Court is simple and should be able to be determined independently of the Supreme Court proceedings. However, he did acknowledge that there was commonality of issues between the Supreme Court proceedings and those in this Court when the question was to put to him.
23 On the basis of the above, I do not consider that there is any reason why the proceeding ought not to be transferred to the Supreme Court of Queensland.
24 Further, consistent with the overarching principle of civil practice as set out in s 37M of the Federal Court of Australia Act 1976 (Cth), it is appropriate that the matter be transferred to the Supreme Court of Queensland as this will assist in facilitating the efficient, expeditious and inexpensive resolution of the dispute.