Nalos v Watpac Construction

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.