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[2012] NSWSC 1371
procedural. Proceeding cross-vested to the Supreme Court of Queensland under s 5(2) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW). The plaintiffs were ordered to pay Watpac’s costs of the...
The NSW Supreme Court moved the case to Queensland. The dispute concerned a slab located there, a related case about the same slab was already pending in Queensland, and the contracts pointed towards Queensland law and courts. Those contract clauses were not exclusive, but they mattered. Other considerations were broadly balanced, and the court considered that the practical concerns about changing the plaintiffs’ legal team did not outweigh the reasons favouring Queensland. The court decided only where the case should proceed, not who was responsible for the alleged defects.
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1,926 words · generated 01/10/2026
In Nalos v Watpac Construction [2012] NSWSC 1371, McDougall J considered whether a proceeding in the NSW Supreme Court should be cross-vested to the Supreme Court of Queensland. The application was made under s 5(2) of the (NSW) ([1]).
1 cited instrument linked from this judgment.
Nalos Pty Ltd and Woolworths Limited alleged breach of contract and negligence concerning the design and construction of a concrete slab. The slab formed part of a Woolworths Group regional distribution centre at Larapinta, Queensland ([2]). Robert Bird Group Pty Ltd was sued in connection with design, and Watpac Construction Pty Ltd in connection with construction. The judgment records the claims as allegations, not findings about fault.
Watpac had already commenced proceedings in the Supreme Court of Queensland concerning the same slab. That proceeding named Holcim, said to have supplied the concrete, and Shepherd, said to have poured it ([3]). Although commenced about a year earlier, the Queensland proceeding had apparently been started to avoid a feared limitation expiry. The judge described its statement of claim as lacking specificity and particularity. If it had been served, service had occurred only recently, and no defences had been filed ([4]).
The NSW cross-vesting application was brought early. No list responses had been filed in NSW, and the issues had not yet been defined in either proceeding ([6]). McDougall J nevertheless identified likely issues: whether design, construction, supply or pouring work was negligent or in breach of contract; whether defects caused the slab’s problems; the parties’ relative responsibilities; and the amount of any damage ([6]). These were anticipated issues, not determinations on the merits.
The Court ordered that the proceeding be cross-vested to the Supreme Court of Queensland ([21]). The plaintiffs were ordered to pay Watpac’s costs of the notice of motion. The Court made no other costs order ([22]).
The Court’s central question was “what the interests of justice require” and which court was “the more appropriate forum” ([10]). It had already concluded that the proceedings were related for the purpose of s 5(2)(b)(i) of the Cross-vesting Act ([5]).
Several practical considerations did not distinguish strongly between the two courts. The parties did not argue that witness location or convenience dictated the result, or that one court had a marked procedural advantage ([7]). The judge considered that either jurisdiction could manage the case effectively ([12]).
The plaintiffs relied on their existing legal representation in NSW. A Clayton Utz partner had worked on the slab problems for some time, and the firm’s policy meant that the Sydney partner would not have direct responsibility if the proceeding moved to Queensland ([8]-[9]). McDougall J accepted that transferring carriage could involve cost and that the partner could not continue as the responsible solicitor. However, the judge was not persuaded that the partner could not provide input, or that Brisbane partners and staff could not conduct the case ([8]-[9]). This concern was relevant, but it did not determine the application.
The location of the slab favoured Queensland. The judge explained that this was not a dispute about title to land. Rather, if a view of the slab were required, it would be much easier to conduct it from Queensland than from Sydney. McDougall J did not know whether a view would be needed, but noted that in many similar cases a view was suggested and helpful ([11]).
The contracts were also important. In the contract between Nalos and Watpac, Queensland law was selected as the governing law and the parties submitted to the non-exclusive jurisdiction of Queensland courts. Watpac, but not Nalos, also irrevocably waived objections to that jurisdiction ([13]). The contract between Nalos and Bird contained similar provisions, with a waiver binding both parties ([14]).
The judge did not treat those provisions as exclusive jurisdiction clauses. The express reference to non-exclusive jurisdiction prevented that reading ([15]). But the clauses still indicated a party preference about where and under what law disputes should be tried. McDougall J referred to Palmer J’s reasoning in Asciano Services Pty Ltd v Australian Rail Track Corporation Ltd [2008] NSWSC 652, which described such clauses as a “strong indication” of the parties’ preference ([15]). McDougall J did not adopt Asciano’s description of that preference as “critical and decisive” in the absence of other factors. Instead, the contractual preference was the factor that tipped the balance when considered together with the other circumstances ([17]).
Finally, Queensland legislation might be relevant. The plaintiffs submitted that there was one common law of Australia and that no relevant Queensland statute had been pleaded ([18]). The judge accepted the common law submission, but noted that Queensland had a proportionate liability regime and that issues might arise under Queensland limitation legislation, given the timing of events and evidence suggesting earlier awareness ([19]). The judge did not say that a NSW court could not decide Queensland statutory questions. Rather, those issues were “more naturally determined” in the Supreme Court of Queensland ([20]).
The judgment does not purport to change or comprehensively state the law of cross-vesting. It applies s 5(2) of the NSW Cross-vesting Act to the facts before the Court. The decision’s expressed framework is practical and evaluative: identify the interests of justice and determine which court is more appropriate ([10]).
Before the order, the dispute between Nalos, Woolworths, Bird and Watpac was proceeding in NSW, while Watpac’s related proceeding against Holcim and Shepherd was pending in Queensland ([3]-[6]). After the order, the NSW proceeding was to be heard in the Supreme Court of Queensland ([21]). The judgment does not set out the further procedural steps or explain how the cases would ultimately be managed together.
The decision also clarifies how the Court treated contractual forum provisions in this particular application. The clauses were not exclusive, so they did not require the NSW proceeding to be heard only in Queensland. Nevertheless, they were relevant and significant evidence of the parties’ preference. Their weight depended on the other circumstances: here, McDougall J said they tipped the scales “in conjunction with” those matters ([15]-[17]).
The judgment does not establish that a Queensland governing-law clause will always lead to cross-vesting, or that a related proceeding automatically requires transfer. Nor does it supply a general ranking of forum factors. Its reasoning is tied to the location of this slab, the related proceeding, the contractual provisions, possible Queensland statutory issues, and the practical considerations identified in the evidence.
At [5], the judge concluded that the proceedings were related for the purpose of s 5(2)(b)(i) of the Act. In plain English, the NSW claim and the Queensland proceeding concerned the same slab and connected questions, which made their relationship relevant to the statutory application.
At [10], McDougall J said the question was what the interests of justice required and which court was more appropriate. This was not treated as a mechanical result based on a single consideration. The Court weighed the practical and contractual matters together.
At [11], the judge explained that the Queensland location mattered because a possible view of the slab would be easier from Queensland. This was a conditional consideration: the judge did not find that a view would definitely be required.
At [15], the judge accepted that non-exclusive clauses still had “some significance”. In plain English, a clause need not give one court exclusive authority to be relevant evidence of the parties’ chosen forum and governing law.
At [17], McDougall J said the contractual preference tipped the scales when considered with the other matters. This is important because it avoids reading the clause as a stand-alone rule requiring transfer. The reasoning was cumulative, not automatic.
At [20], the judge acknowledged that the NSW Court could decide questions of Queensland law, but considered those questions more naturally determined in Queensland. This was a forum assessment, not a finding that the NSW Court lacked competence or jurisdiction to consider Queensland legislation.
The decision is most directly relevant to a cross-vesting application where connected proceedings concern the same physical subject matter in another State, and where the relevant contracts point towards that State’s law and courts. Here, the physical subject was a slab located in Queensland, and another proceeding concerning it was already pending there ([2]-[5]).
It may also be relevant where the jurisdiction clause is non-exclusive. Nalos shows that the Court did not disregard the clause merely because it was non-exclusive. It considered the clause alongside the governing-law term and other forum factors ([13]-[17]).
The case also illustrates the possible significance of a site view and State-specific legislation. A view was only a possibility, and the judge did not treat it as certain ([11]). Likewise, the possible application of Queensland proportionate liability and limitation legislation was a consideration, not a final ruling about their application ([19]-[20]).
The precedent should be read within its limits. The judgment does not say that any connected proceeding must be transferred, that the place where property is located is always decisive, or that a party’s chosen solicitors are immaterial. It records that the factors were broadly balanced here, and that the combined Queensland connections made Queensland the more appropriate forum ([10], [17]).
The judgment itself cites Asciano Services Pty Ltd v Australian Rail Track Corporation Ltd [2008] NSWSC 652. McDougall J relied on its discussion of the significance of non-exclusive jurisdiction and governing-law provisions ([15]). The judgment also expressly qualified the force of the proposition: whereas Asciano described the contractual preference as “critical and decisive” in the absence of other relevant factors, McDougall J said he would not put it so strongly in this case ([17]).
The supplied judgment contains no citations to later decisions and no account of subsequent treatment of Nalos. On the material provided, it is therefore not possible to describe how later courts have treated the decision. That question would require checking subsequent judgments and any later appellate consideration, rather than inferring a history from this judgment alone.
The judgment left the underlying construction dispute unresolved. It made no finding about whether any party breached a contract, acted negligently, caused the slab’s alleged problems, or was responsible for any loss. Those were among the issues anticipated for later determination ([6]).
It also did not decide whether a view of the slab would actually be required, whether Queensland proportionate liability legislation would apply, or whether a limitation issue would arise. The judge identified these as possible considerations based on the circumstances described, not final determinations ([11], [19]-[20]).
The decision does not explain whether the Queensland proceeding would be amended, how its pleadings would develop, or whether the NSW claims and the claims against Holcim and Shepherd would eventually be heard together. At the time of the application, the Queensland pleading was described as lacking specificity, and no defences had been filed ([4]). The order addressed the forum for the NSW proceeding, not the ultimate procedural relationship between all parties.
Finally, the judgment does not prescribe a formula for weighing solicitor disruption against location, contractual provisions, related proceedings and applicable law. It identifies the factors relevant to this application and explains why, taken together, they favoured Queensland. Applying that reasoning to a different dispute would depend on its evidence, contracts, procedural status and applicable legislation.
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Judgment (EX TEMPORE - revised 2 november 2012) 1HIS HONOUR: This is an application to transfer proceedings to the Supreme Court of Queensland pursuant to s 5(2) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW). 2The plaintiffs sue the defendants for alleged breach of contract and negligence in connection with, respectively, the design and the construction of a concrete slab. The slab is part of a "regional distribution centre" constructed by the second defendant, Watpac, for the Woolworths Group. That regional distribution centre is located in Larapinta in the State of Queensland. It appears that Larapinta is located approximately 30 minutes' travel south of Brisbane. 3The evidence establishes that proceedings have been commenced by Watpac in the Supreme Court of Queensland in relation to the very same slab. The first defendant in those proceedings, Holcim, is said to have supplied the concrete that was poured into the allegedly defective slab. The second defendant in those proceedings, Shepherd, is said to have poured the concrete. 4Although the proceedings in Queensland were commenced a year before the current proceedings, it is apparent that they were commenced purely to prevent the feared expiry of a limitation period. The statement of claim is notable for its want of specificity and particularity. If the proceedings have been served, they were only served recently. There have been no pleadings by way of defences. 5Nonetheless, it is apparent, in terms of s 5(2)(b)(i) of the Cross-vesting Act, that the proceedings in this Court are related to the proceedings pending in the Supreme Court of Queensland. 6The application for cross-vesting has been brought at an early point. Thus, there have been no list responses filed in this Court. It follows from this that the issues in dispute have not been defined either in the proceedings in Queensland or in the proceedings in this Court. Nonetheless, I think, it is apparent that there will be issues as to whether the relevant works (under the design contract, the construction contract, the supply contract or the pouring subcontract) were carried out either negligently or in breach of contract; to what extent any defects in those works resulted in the problems that the slab is alleged to have suffered; the relative responsibilities of the various parties to those consequences; and quantification of damage. That is not necessarily an exhaustive list of the likely issues. 7It is not suggested, in this case, that factors such as the location and convenience of witnesses will dictate the outcome of the cross-vesting application. Nor is it suggested that one court, rather than the other, has such a marked procedural or other superiority as to make it the more appropriate forum. 8The plaintiffs, who oppose the application for cross-vesting, point to the fact that they have retained solicitors in this State and that a partner of the firm Clayton Utz has been acting for them, in connection with the problems in the slab, for some time. It appears that there is some firm policy under which that partner would not continue to act if the proceedings were cross-vested. Nonetheless, the firm in question is a national firm and there are partners in the Brisbane office who will be entirely capable of conducting the proceedings on behalf of the plaintiffs if the proceedings were to be cross-vested to the Supreme Court of Queensland. 9I accept that there might be some cost involved in transferring the conduct of the proceedings from the Sydney to the Brisbane office of Clayton Utz. I accept that the firm's policy would prevent the Sydney partner from having direct responsibility for the further conduct of the proceedings if they were cross-vested. I do not accept (and it is not suggested) that that partner could not continue to have input, so as to ensure that the benefit of his knowledge and experience was fully available to the partner and staff in Queensland who would have the carriage of the matter if it were cross-vested. 10The question becomes one as to what the interests of justice require. That requires identification of which court is the more appropriate forum. To this point, it seems to me, the factors to which I have referred (apart from the location of the site) are fairly evenly balanced. 11It does seem to me to be significant that the claim relates to real estate in Queensland. That is not because there is any question of title - there is no such claim. It is, rather, that if a view were required, that would be conducted far more easily from Queensland than from Sydney. I do not know whether or not a view is likely to be required. I do however know, from my own experience, that in many such cases a view is suggested and is of great help. 12There is no doubt that the proceedings can be case-managed as effectively in one jurisdiction as in the other. All that would be required, in Queensland, is an application for one party or the other to seek the Court's involvement. 13The relevant contracts have been proved, in whole or in part. In the contract between the first plaintiff and Watpac, it is agreed that the governing law of the contract is the law of Queensland (indeed, that is agreed twice; whether that adds force to the strength of this factor or not is a matter on which I have not troubled the parties). Equally, in that contract, there is a non-exclusive submission to the jurisdiction of the courts of Queensland. Further, in that contract, Watpac (but not the first plaintiff) irrevocably waives any objection that it may have to the jurisdiction of the Queensland courts. 14There are similar provisions in the contract between the first plaintiff and Bird, except that the waiver of objection binds both the first plaintiff and Bird. 15To my mind, it is apparent from both contracts that the parties have expressed a preference for their disputes to be governed by the law of Queensland and to be determined by the courts of Queensland. I accept that this is not an exclusive jurisdiction clause and I do not think that it is appropriate or possible to construe either clause in that way. That would require the Court to disregard the express stipulation that the submission is to the non-exclusive jurisdiction of those courts. Nonetheless, as Palmer J considered in Asciano Services Pty Ltd v Australian Rail Track Corporation Ltd [2008] NSWSC 652, those factors are of some significance. His Honour said at [19] that even regarding the clauses as non-exclusive, they nonetheless give "a strong indication ... of where under what law ... disputes should be tried, regardless of ... inconveniences". 16In this case, apart from the issue relating to the plaintiff's solicitor, there is no question of any inconvenience one way rather than the other. 17In Asciano at [20], Palmer J said that in the absence of other relevant factors, the "strong indication of the parties' preference for where and under what law their disputes should be tried" was "critical and decisive". I would not express it so high in this case, but in my view it is the factor that tips the scales to the conclusion that the more appropriate forum, taken in conjunction with the other matters that I have referred to, is the Supreme Court of Queensland. 18I do note that the plaintiffs submitted that, to the extent that there were disputes arising at common law, there is but one common law of Australia. I accept that. I note, further, that the plaintiffs submitted that there was no pleading of any relevant Queensland statute. 19As to the second point, it may be observed first that Queensland has its own proportionate liability regime, and, secondly, that having regard to the time when the relevant events occurred and to some suggestions (sustained but scantly by the evidence) of awareness of the relevant events many years ago, there may well be issues under the Queensland limitation of actions legislation. 20Although I do not for a moment suggest that this Court would be incapable of deciding the proper construction and application of relevant Queensland statutes (to the extent that they may be raised), nonetheless they are factors that, in my view, are more naturally determined in the Supreme Court of Queensland. 21Taking all those matters into account, I conclude that the cross-vesting order that is sought by the notice of motion filed on 19 October 2012 should be made. In those circumstances, I make an order in accordance with prayer 2 of that notice of motion. 22I order the plaintiffs to pay the second defendant's costs of the notice of motion. Otherwise I make no order as to costs.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 December 2012
Nalos
Watpac Construction
Proceeding cross-vested to the Supreme Court of Queensland under s 5(2) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW). The plaintiffs were ordered to pay Watpac’s costs of the notice of motion; otherwise, there was no order as to costs ([21]-[22]).