JOHNSON J: By Summons filed on 10 May 2022 the Plaintiff, Bin Li, seeks an ex parte order under s.140 Civil Procedure Act 2005 that District Court proceedings against the First Defendant, Changshun Wang, and the Second Defendant, Jianrong Su, be transferred to the Supreme Court of New South Wales.
The Summons seeks other orders as well by way of substituted service. The sole issue for determination in this judgment is the application for transfer of the proceedings to this Court.
In support of the application, the Plaintiff reads the affidavit of Kit Yan Mak dated 10 May 2022. The proceedings in the District Court seek the recovery of the sum of $626,000.00 (by way of principal and interest) arising from a loan said to have been made by the Plaintiff to the First and Second Defendants in 2016. The Second Defendant is the sister of the Plaintiff's husband. The First Defendant is the husband of the Second Defendant. Zisu Wang is the daughter of the First and Second Defendants.
The loan arrangement appears to have involved the provision of sums of money to the First and Second Defendants for the purpose of the purchase of a property by their daughter, Zisu Wang, being an apartment at Wolli Creek. No more needs to be said than that by way of a description of the subject matter of the litigation.
The evidence indicates that a letter of demand was sent on behalf of the Plaintiff in September 2021. Later in September 2021, a firm of solicitors responded indicating, in letters dated 13 and 17 September 2021 respectively, that they acted for the First Defendant and the Second Defendant. In each letter, there was an indication that, if the Plaintiff commenced proceedings without responding to the solicitor's request for certain information, their clients may seek to rely upon that circumstance in their defence to the proceedings and with respect to the question of costs.
On 19 November 2021, a Statement of Claim was filed in the District Court, in which a claim was made in the form which I have identified. On 17 December 2021, the firm of solicitors who had previously indicated that they acted for the First Defendant and the Second Defendant advised that they did not have instructions to accept service.
On 22 December 2021, the Plaintiff sent a copy of the Statement of Claim to the WeChat account of the First Defendant. The First Defendant responded that he was in the People's Republic of China and could not attend, and that he did not speak English. He also stated "In retrospect, things between us really didn't have to get to this point. After this, things will be difficult'. That message, of course, was sent in Mandarin, but that is the translation of what the First Defendant said.
The Second Defendant is apparently still in Australia. However, the Plaintiff has so far had difficulty in finding the Second Defendant for the purpose of effecting service of the District Court Statement of Claim.
On 27 April 2022, the solicitors for the Plaintiff wrote to the firm of solicitors who had, in September 2021, said that they represented the First and Second Defendants, seeking information as to the whereabouts of the First and Second Defendants. However, no reply has been received.
Against this background, the Plaintiff has made application in the Summons for transfer of the District Court proceedings to the Supreme Court, pursuant to s.140 Civil Procedure Act 2005.
In support of that application, Mr Gauja of counsel, who appears for the Plaintiff, refers to the decision of the Court in Thermasorb Pty Ltd v Rockdale Beef Pty Ltd [2005] 190 FLR 71; [2005] NSWSC 361 ("Thermasorb"). In that case, which preceded the commencement of the Civil Procedure Act 2005, application was made under s.145 District Court Act 1973 for transfer of proceedings from the District Court to the Supreme Court. In the course of considering that application, the Court noted (at [31]) that the relevant provision (which is practically identical to s.140 Civil Procedure Act 2005) is remedial and confers a discretionary power on the Supreme Court.
The Court said in Thermasorb at [46]:
"In the absence of a statutory provision extending to service of District Court process outside Australia, it seems clear that [the defendant] cannot be compelled to submit to the jurisdiction of the District Court and participate in proceedings before that Court."
Accordingly, the Court accepted that an appropriate circumstance that would warrant transfer of civil proceedings from the District Court to the Supreme Court would be where a defendant was outside Australia, so that there were legal difficulties in effecting service upon the Defendant.
The decision in Thermasorb has been referred to in later decisions: Trilogy Corporate Solutions & Anor v Fitzroy Shopfitting and Building Pty Ltd [2006] NSWSC 1026 at [11] (Latham J) and Walker v Newmont Australia Ltd [2010] FCA 298 at [29] (Gordon J). In Credit Corp Services Pty Ltd v Plant [2015] NSWSC 1685, Schmidt J ordered that Local Court proceedings be transferred to the Supreme Court under s.140 Civil Procedure Act 2005 in circumstances where it was sought that the Statement of Claim, filed in the Local Court, could be served outside Australia.
The legislative scheme, as it stood at the time of Thermasorb, does not appear to have been altered materially. The legislative scheme, including the Civil Procedure Act 2005 and Part 11 Uniform Civil Procedure Rules 2005, does not provide for service of District Court process outside Australia.
In those circumstances, there appears to be a proper basis for ordering the transfer of the present proceedings to the Supreme Court.
If this step is taken, the Plaintiff will have an opportunity to seek consequential orders in this case, to effect service upon the First Defendant, who remains in the People's Republic of China and has not indicated any willingness to submit to the jurisdiction of the District Court for the purpose of these proceedings. Indeed, the communication from the First Defendant in December 2021 (at [7] above) rather suggests that there would be no co-operation in his accepting the jurisdiction of the District Court, or renewing the instructions apparently given to his previous legal representatives as at September 2021 to engage in any litigation. In those circumstances, there is a proper basis and utility in ordering transfer of the proceedings from the District Court to this Court.
As would be clear, the quantum of the claim is such that the matter would not ordinarily be heard and determined in the Supreme Court. Whether it may be appropriate at a later time, after any service issues have been dealt with, to transfer the proceedings back to the District Court for hearing and determination is not a matter for the Court today. There may be utility in such a course at a later time, but that will be a matter for another Court to consider at a later time.
After making the order for transfer, I will direct that the matter be listed for directions before the Common Law Registrar, to allow the proceedings to progress in this Court.
I make the following orders:
Pursuant to s.140 Civil Procedure Act 2005, I order the District Court proceedings 2021/00330140 be transferred to the Supreme Court of New South Wales.
The proceedings are to be listed for directions before the Registrar in the Common Law Division at 9.00 am on 30 May 2022.
I note that the Summons seeks an order that costs of the Summons be costs in the cause. It is appropriate to make such an order, which ought be confined to that part of the Summons which has been determined by the Court today.
Accordingly, I order that the costs of the determination of the transfer application, contained in paragraph 1 of the Summons, be costs in the cause.
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Decision last updated: 24 May 2022