Plaintiff v First Defendant

1. By summons filed 3 April 2025 (Transfer Summons), the defendants seek orders transferring this proceeding to the Sydney Registry of the Federal Court of Australia.
2. In support of the Transfer Application, the defendants rely on:

(a) the affidavit of their solicitor, Robert Anthony Silberstein of S&A Law, affirmed 3 April 2025 (First Silberstein Transfer Affidavit);

(b) a further affidavit of Mr Silberstein affirmed 7 April 2025 (Second Silberstein Transfer Affidavit); and

(c) a written outline of submissions from their counsel, filed 7 April 2025.

1. In opposition to the Transfer Summons, the plaintiff relies on:

(a) the affidavit of John Paton Mitchell sworn 7 February 2025 in support of the originating process (First Mitchell Affidavit). Mr Mitchell is the sole director of the plaintiff;

(b) the affidavit of its solicitor, Robert Thomas Hinton of Gadens Lawyers, affirmed 6 April 2025 (Hinton Affidavit); and

(c) a written outline of submissions from its counsel, filed 7 April 2025.

1. At the conclusion of the hearing of the Transfer Summons on 8 April 2025, I made orders dismissing the Transfer Summons and that the defendants pay the plaintiff's costs of and incidental to that application. I indicated that I would publish my reasons as soon as practicable thereafter.
2. These are my reasons for refusing the application to transfer this proceeding to the Sydney Registry of the Federal Court.

1. The plaintiff is in the business of arranging debt and equity finance for businesses. It is also trustee for the Mitchell Asset Management Go-Innovation Finance Fund (Fund), which lends money to various start-up businesses.
2. On 10 November 2022, the plaintiff entered into an agreement with ISU Solutions Pty Ltd (ISU) pursuant to which ISU agreed to pay the plaintiff a facilitation fee in consideration of the plaintiff providing to ISU debt funding services and equity funding services (Mitchell Mandate). The plaintiff contends that it entered into the Mitchell Mandate in its own capacity and not as trustee of the Fund.
3. On 15 November 2022, the plaintiff as trustee of the Fund provided a facility to ISU pursuant to an agreement whereby the Fund lent $3.5 million to ISU (the Facility Agreement), with that amount being advanced on that date. Security for the Facility Agreement included:

(a) a general security deed over all present and after acquired property of ISU;

(b) a guarantee from Imprenditore Pty Ltd (Imprenditore);

(c) a general security deed over all present and after acquired property of Imprenditore;

(d) guarantees from four individuals; and

(e) mortgages over real property.

1. Between then and June 2023, the plaintiff did not arrange any further funding in accordance with the Mitchell Mandate.
2. Based on alleged failures by ISU to make payments due under the Facility Agreement, the plaintiff issued demands on ISU and Imprenditore on 12 March 2024. Those demands were not satisfied and the plaintiff appointed Ross Andrew Blakeley and Paul Stuart Harlond (together, the Receivers) as receivers and managers of ISU on 3 September 2024 and of Imprenditore on 25 October 2024.
3. According to the First Mitchell Affidavit, ISU and Imprenditore have alleged that the appointment of the Receivers was invalid. Mr Mitchell deposes that from on or around 7 November 2024, S&A Law on behalf of the defendants have made allegations regarding the validity of the Receivers' appointment, including by a 20 page letter sent on 7 January 2025.
4. The plaintiff has also commenced proceedings in:

(a) the Supreme Court of New South Wales to enforce a real property mortgage given by Patrick Jeremy Rice over a property located in that state. Mr Rice is the sole director of each of the defendants who provided a guarantee regarding the Facility Agreement to the plaintiff; and

(b) the Supreme Court of Queensland to enforce a real property mortgage given by Rosario Pernicano and Meghan Pernicano over a property located in that state. As I understand it, Mr and Ms Pernicano are shareholders in ISU who provided a guarantee regarding the Facility Agreement to the plaintiff.

1. This proceeding was commenced by the plaintiff on 7 February 2025, seeking a declaration pursuant to s 418A of the Corporations Act that the plaintiff as trustee for the Fund validly appointed the Receivers as receivers and managers of ISU on 3 September 2024 and of Imprenditore on 25 October 2024. Alternatively, the plaintiff seeks orders pursuant to s 37 of the Supreme Court Act 1986 (Vic) and/or r 39.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Rules) that the Court appoint the Receivers as receivers and managers of ISU and Imprenditore. A supplementary affidavit sworn 11 February 2025 by Mr Mitchell was filed.
2. The originating process was listed for hearing on 14 February 2025 before Gobbo AsJ. Prior to the hearing, Connock J made orders on the Court's own motion referring the originating process to Gobbo AsJ for hearing and determination pursuant to r 77.05 of the Rules and, if required, also pursuant to r 16.1(3) of the Supreme Court (Corporations) Rules 2023 (Vic) (Corporations Rules).
3. At that first hearing on 14 February 2025, Gobbo AsJ made orders that:

(a) by 14 February 2025, the plaintiff file and serve any amended originating process and any further affidavit on which it intends to rely; and

(b) the proceeding be listed before her Honour for 21 February 2025 for further directions.

1. The plaintiff filed an amended originating process on 14 February 2025 which, relevantly, named Mr Blakeley and Mr Harlond as the receivers and managers in the declarations sought. The plaintiff also filed a third affidavit from Mr Mitchell, sworn 14 February 2025.
2. On 21 February 2025, Gobbo AsJ made orders that (21 February Orders):

(a) by 14 March 2025, the defendants file and serve any affidavits on which they intend to rely;

(b) by 21 March 2025, the plaintiff file and serve any affidavits in reply;

(c) by 28 March 2025, the parties file and serve an outline of submissions and a list of authorities identifying pinpoint references, and provide via email to her Honour's associate a bundle of authorities that each party relies upon;

(d) the proceeding be listed for 10 April 2025; and

(e) in advance of any anticipated non-compliance with the timetable, the parties are to confer with respect to amendments to the timetable and email her Honour's chambers to explain the reason that further time may be required and provide consent or competing draft minutes of order addressing a revised timetable.

1. At the hearing on 21 February 2025, the Receivers gave an undertaking to the Court and to the defendants that until further order or agreement between the parties, they will not realise, sell or otherwise dispose of the property, undertaking and assets of the defendants (Receivers' Undertaking).
2. On 14 March 2025 at 6.09pm, S&A Law sent an email to the Associate to Gobbo AsJ, copied to Gadens, stating that counsel briefed for the defendants was no longer able to appear on 10 April 2025, that new counsel was being engaged, and that S&A Law itself had overlooked a prior listing for another client for that date and so was not available for the hearing. The email also stated that the defendants had experienced difficulty finalising their evidence and needed more time to do so, and they anticipated that the plaintiff would need more than seven days to respond to it, once filed. S&A Law stated that they were attempting to confer with Gadens regarding an amended timetable.
3. After several emails between the practitioners and her Honour's associate, the parties had not reached agreement as to an amended timetable and the proceeding was listed for mention on 21 March 2025. Messrs Hinton and Silberstein each filed affidavits prior to that mention.
4. On 21 March 2025, Gobbo AsJ made orders (21 March Orders):

(a) extending to 2 April 2025 the date by which the defendants were to file any affidavits upon which they wished to rely;

(b) extending to 11 April 2025 the date by which the plaintiff was to file any affidavits in reply;

(c) extending to 16 April 2025 the date by which submissions and lists of authorities were to be filed and the bundle of authorities sent by email; and

(d) listing the proceeding for 23 April 2025;

(e) in the same terms as set out at paragraph 17(e) above; and

(f) that the defendants pay the plaintiff's costs of and incidental to the hearing that day on an indemnity basis.

1. The 21 March Orders noted that any further application to vacate the hearing date was required to be made by formal application.
2. The defendants did not file their affidavit material by the extended date of 2 April 2025. Nor did they follow the procedure set out in sub-paragraph (e) at paragraphs 17 and 21 above. As I understand it, on 3 April 2025, Gobbo AsJ listed the proceeding for mention before her on 4 April 2025.
3. In an affidavit sworn 4 April 2025, Mr Hinton deposes to an email sent by Gadens at 4.18pm on 2 April and his three unsuccessful attempts to reach the defendants' solicitors by telephone on 3 April, the purpose of which was to seek an indication as to when Gadens might receive the defendants' evidence.
4. In that same affidavit, Mr Hinton deposes that at 8.37pm on 3 April 2025, he received an email from S&A Law stating that the defendants sought that this proceeding be transferred to the Federal Court and provided the First Silberstein Transfer Affidavit.
5. At 8.51pm on 3 April 2025, the defendants' solicitors sent an email to her Honour's chambers stating that they intended to file a summons for the transfer of the proceeding and attaching unsealed copies of the Transfer Summons and the First Silberstein Transfer Affidavit. The latter exhibited unsealed copies of an originating motion and statement of claim both dated 3 April 2025 and filed on that date at 7.36pm in the Sydney Registry of the Federal Court (Federal Court Proceeding).
6. At the hearing on 4 April 2025, Gobbo AsJ made orders that (4 April Orders):

(a) the Transfer Summons be listed hearing before me at 10.30am on 8 April 2025;

(b) by 12pm on 7 April 2025, the plaintiff file and serve any affidavit on which it intends to rely in opposition to the Transfer Summons and an outline of submissions and a list of authorities with pinpoint references, and that the plaintiff provide by email to my Chambers a bundle of authorities relied upon;

(c) by 4pm on 7 April 2025, the defendants file and serve an outline of submissions in respect of the Transfer Summons and a list of authorities with pinpoint references, and that the plaintiff provide by email to my Chambers a bundle of authorities relied upon; and

(d) the defendants pay the plaintiff's costs of and incidental to the hearing that day on an indemnity basis.

1. The applicants in the Federal Court Proceeding are ISU, Imprenditore, Mr Rice, Mr Pernicano, Ms Pernicano and Stephen Walter Healey (together, the Applicants); the respondents in that proceeding are the plaintiff in this proceeding and Mr Mitchell (together, the Respondents). As I understand it, Mr Healey gave an unsecured guarantee to the plaintiff in respect of the Facility Agreement. The allegations in the Federal Court Proceeding include allegations regarding breach of contract, misleading and deceptive conduct, unconscionable conduct, and breaches of fiduciary duty. The relief sought in the Federal Court Proceeding includes:

(a) declarations pursuant to s 418A of the Corporations Act that the First Respondent's appointment of the Receivers to ISU and Imprenditore is invalid;

(b) orders restraining the First Respondent from taking any further enforcement action against any or all of the Applicants or their assets pursuant to the Facility, the general security deeds, the real property mortgages, and the notices of default and demand;

(c) orders that the First Respondent discontinue this proceeding on terms that it pay the other parties' costs of the proceeding, and similar orders in respect of a proceeding in the Supreme Court of NSW and in the Supreme Court of Queensland concerning the real property mortgages; and

(d) further or alternatively:

(i) declarations that the First Respondent has engaged in misleading and deceptive conduct, and in unconscionable conduct;

(ii) orders declaring the security documents to be unfair and void; and

(iii) orders for damages, statutory compensation and equitable compensation.

1. The Transfer Summons states that the transfer of this proceeding to the Sydney Registry of the Federal Court is sought pursuant to s 5(1) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) (the Cross-vesting Act). In correspondence with the plaintiff's solicitors, the defendants stated that they rely on s 5(1)(b)(i) and (iii) of the Cross-vesting Act, alternatively s 1337H(2) of the Corporations Act 2001 (Cth) (the Corporations Act). The defendants' outline refers to both sets of provisions. I will address both provisions.
2. Section 5(1) of the Cross-vesting Act 1987 relevantly provides as follows:

Transfer of proceedings

(1) Where:

(a) a proceeding (in this subsection referred to as the relevant proceeding) is pending in the Supreme Court of a State or Territory (in this subsection referred to as the first court); and

(i) the relevant proceeding arises out of, or is related to, another proceeding pending in the Federal Court or the Federal Circuit and Family Court of Australia (Division 1) and it is more appropriate that the relevant proceeding be determined by the Federal Court or the Federal Circuit and Family Court of Australia (Division 1);

(iii) it is otherwise in the interests of justice that the relevant proceeding be determined by the Federal Court or the Federal Circuit and Family Court of Australia (Division 1);

the first court shall transfer the relevant proceeding to the Federal Court or the Federal Circuit and Family Court of Australia (Division 1), as the case may be.

1. In Irwin v State of Queensland,[1] Robson J noted that the High Court of Australia considered the application of the Cross-vesting Act in BHP Billiton Limited v Shultz,[2] and that subsequently, several decisions of this Court have considered the relevant principles that should be applied, including Ewins v BHP Billiton Limited.[3] Robson J then summarised the relevant principles as follows:[4]

(a) The [Cross-vesting] Act requires that the [first] court should exercise the power of transfer whenever "it appears" that it is in the interests of justice that it should be exercised.

(b) It is not necessary that it should appear that the first court is a "clearly inappropriate" forum. It is both necessary and sufficient that it appears that, in the interests of justice, the second court is more appropriate than the first court.

(c) The Court is not concerned with the problem of a court, with a prima facie duty to exercise a jurisdiction that has been regularly invoked, asking whether it is justified in refusing to perform that duty. Rather, the Court is required by statute to ensure that cases are heard in the forum dictated by the interests of justice.

(d) The interests of justice are not the same as the interests of one party, and there may be interests wider than those of either party to be considered. Even so the interests of the respective parties, which might in some respects be common (as for example cost and efficiency) and in other respects conflicting, arise for consideration.

(e) The power to exercise the jurisdiction is not a discretionary power but a mandatory obligation. No question of discretion arises.

(f) It is inapt to speak of an applicant for an order for transfer as bearing a burden of persuasion analogous to an onus of proof. Rather the jurisdiction must be exercised when "it appears" to the court that "it is in the interests of justice" that the proceeding be determined in the Supreme Court of another State or Territory rather than the court of where the proceeding has been issued. Unless it so appears, the court does not have power under the Act to transfer the proceedings. To that extent it may be said that an applicant assumes some onus of persuasion.

(g) The court should adopt what has been described as a "nuts and bolts" management decision as to which court, in the pursuit of the interests of justice, is more appropriate to hear and determine the substantive dispute.

(h) The appropriate court is the natural forum as determined by connecting factors to that forum.

(i) Relevant connecting factors include matters of convenience and expense such as availability of witnesses, the places where the parties respectively reside or carry on business, and the law covering the relevant transaction.

(j) In many cases there will be a preponderance of connecting factors with one forum so that it can readily be identified as the most appropriate of natural forum. In other cases, there might be significant connecting factors with each of the two different forums. Some of the factors might cancel each other out.

(k) If the action is between two individuals, and the plaintiff resides in one area and the defendant in another, there may be no reason to treat the residence of either party as determinative, although it would ordinarily be the residence of the defendant that is important to establish jurisdiction.

(n) A relevant factor is whether the coincidence of the lex fori and the lex loci delicti will avoid debates concerning substantive and procedural law.

(o) The plaintiff's choice of forum by itself is not a relevant connecting factor.

(p) Each case depends on its own particular facts.

(q) The list of connecting factors is impossible to state exhaustively. Equally the weight to be given to each factor must vary from case to case.

1. Section 1337H(2) of the Corporations Act relevantly provides as follows:

1337H Transfer of proceedings by the Federal Court and State and Territory Supreme Courts

(1) [Application of section]

This section applies to a proceeding (the relevant proceeding) in a court (the transferor court) if:

(a) the relevant proceeding is:

(i) a proceeding with respect to a civil matter arising under the Corporations legislation ... and

(b) the transferor court is:

(i) the Federal court; or

(ii) a State or Territory Supreme Court.

(2) [When matter may be transferred]

Subject to subsections (3), (4) and (5), if it appears to the transferor court that, having regard to the interests of justice, it is more appropriate for:

(a) the relevant proceeding; or

(b) an application in the relevant proceeding;

to be determined by another court that has jurisdiction in the matters for determination in the relevant proceeding or application, the transferor court may transfer the relevant proceeding or application to that other court. ...

(7) [Interests of justice]

The fact that some references in this section to the interests of justice include the desirability of related proceedings being heard in the same jurisdiction does not of itself mean that other references to the interests of justice, in this section or elsewhere in this Act, do not include that matter.

1. Section 1337L of the Corporations Act relevantly provides that:

In deciding whether to transfer under section 1337H, 1337J or 1337K a proceeding or application, a court must have regard to:

(a) the principal place of business of anybody corporate concerned in the proceeding or application; and

(b) the place or places where the events that are the subject of the proceeding or application took place; and

(c) the other courts that have jurisdiction to deal with the proceeding or application.

1. Section 1337A(2)(a) of the Corporations Act further provides that Pt 9.6A of Div 1 (in which s 1337H is found) operates to the exclusion of the Cross-vesting Act. Therefore, if a proceeding meets the criteria specified in s 1337H(1) of the Corporations Act, that proceeding will fall within the regime for transfer under Pt 9.6A Div 1 of that legislation and the Cross-vesting Act will not apply.[5]
2. It is well-established that the principles in respect of an application under s 1337H(2) of the Corporations Act are relevantly similar to those applicable under s 5(1) of the Cross-vesting Act, save for one matter. The difference between the relevant provisions under the Cross-vesting Act and the Corporations Act is that under the former, if the Court is satisfied that the second court is the more appropriate forum, it must transfer the first proceeding to that court, whereas under the latter, if the Court is so satisfied, it retains a discretion as to whether the transfer the first proceeding.[6]
3. In Kadac Pty Ltd v Complete Health Products Pty Ltd,[7] Sifris J (as his Honour then was) summarised the principles applicable to the question of whether the transferee court is more appropriate than the transferor court for the determination of the proceeding, having regard to the interests of justice, where s 1337H applies in very similar terms to those described in Irwin:[8]

(a) It is not necessary that the transferor court be a "clearly inappropriate" forum but only that, in the interests of justice, the transferee court is "more appropriate";

(b) Which court is more appropriate to hear and determine the substantive dispute is a "nuts and bolts" management decision;

(c) The most appropriate court is the natural forum, as determined by factors connecting the proceeding to that forum including matters of convenience and expense, the places where the parties respectively reside or carry on business, and the law covering the relevant transaction;

(d) The list of connecting factors is impossible to state exhaustively and the weight to be given to any particular factor will vary from case to case.

1. In addition to the considerations mandated by s 1337L of the Corporations Act, the transferor court may also consider other factors. The list of factors is not closed, but includes: the stage of the proceeding (or proceedings); any commonality or diversity of the parties between any related proceedings; the risks of any conflicting findings of fact or conflicting orders; the experience of a particular court and its ability to provide an efficient and speedy trial (for example, a court with particular evidentiary and procedural rules hearing particular types of cases); and matters of convenience and expense (such as the availability of witnesses).[9]
2. Apart from the issue of which act applies in this case, the parties were in substantial agreement as to the principles to be applied.

Does the Corporations Act or the Cross-vesting Act apply to the transfer application?

1. In this case, the defendants submit that an applicant for transfer of a proceeding in this Court may rely on s 5(1)(b)(i), (ii) and (iii) of the Cross-vesting Act, save where the proceeding meets the criteria specified in s 1337H(1) of the Corporations Act. They say that there is uncertainty in the present case as to which Act applies, and that much depends on what view is taken of the nature of this proceeding. While the Corporations Act provides one of two alternative alleged sources of power for the making of the declaration sought by the plaintiff, with the other being the statutory power under Victorian legislation, the underlying right over which a declaration is sought is not a right under the Corporations Act but instead an alleged right in contract. It is submitted that in such a case, the Cross-vesting Act applies as the civil matter (the appointment of a receiver) does not itself arise under the Corporations Act. Ultimately, the defendants contend that the Cross-vesting Act applies but that it likely is of little moment as the test is ultimately the same. Under either act, the test is whether it is more appropriate for the proceeding to be determined by the transferee court having regard to the interests of justice. The difference, according to the defendants, is that if the test is met and the Cross-vesting Act applies, the Court must transfer the proceeding. In contrast, if the test is met and the Corporations Act applies, the Court retains a discretion as to whether to order the transfer. The defendants referred me to Keystone Training Group Pty Ltd v Brodrick Pty Ltd as trustee for Matousek Family Trust,[10] where Solomon J identified the question of which of the two Acts apply where some causes of action in the proceeding are civil matters arising under the Corporations Act and others are not, but did not answer it on the basis that the statutory test is essentially the same and counsel in that case agreed that it was not necessary to determine the issue.[11]
2. The plaintiff submits that it is clear that this proceeding concerns a civil matter arising under the Corporations Act, such that s 1337H(1)(a)(i) is satisfied and therefore s 1337A(2)(a) applies, such that the Cross-vesting Act does not apply. The plaintiff submits that its originating process expressly refers to the Corporations Act and the primary relief sought is a declaration pursuant to s 418A of that Act that the Receivers were validly appointed. The plaintiff submits that seeking a declaration, in the alternative to s 418A, pursuant to s 37 of the Supreme Court Act and/or the Rules does not change whether s 1337A(2)(a) applies, since s 1337H(1)(a)(i) does not have the effect that all matters in the proceeding must be civil matters arising under the Corporations Act.
3. In my view, it is plain that the originating process concerns a civil matter (that being defined as a matter other than a criminal matter) arising under the Corporations Act. Section 418A of the Corporations Act permits a receiver, the company or a creditor of the company to apply to the Court for an order declaring whether the appointment of the receiver was valid where there is doubt, on a specific ground, as to whether the appointment is valid. I cannot see how a proceeding in which such a declaration is sought is not a civil matter arising under the Corporations Act.
4. I am satisfied that s 1337H(1) and (2) of the Corporations Act governs this transfer application, rather than s 5(1)(b) of the Cross-vesting Act. However, I accept that the test to be applied is the same, whichever of the two Acts applies: is it more appropriate that the proceeding be determined by the transferee court having regard to the interests of justice? It would only be if that question was answered in the affirmative in this case that the issue of the applicable act would arise, due to the transfer after that point being mandatory if the Cross-vesting Act applies but discretionary if the Corporations Act applies. Even so, it has been recognised that this difference will rarely make any practical difference.[12]

1. In short, the plaintiff submits that no transfer order should be made and the Transfer Summons should be dismissed. It says that the matters the subject of the Federal Court Proceeding could have been (and might still be) advanced in this Court. It also says that the Federal Court Proceeding would appear to be a belated attempt to disrupt the conduct of this proceeding.
2. The plaintiff concedes that this proceeding and the Federal Court Proceeding are 'related' for the purposes of s 5(1)(b)(i) of the Cross-vesting Act.
3. The plaintiff submits that the other limb required for s 5(1)(b)(i), that it is more appropriate that the relevant proceeding be determined by the Federal Court, can be considered together with the question of whether it is 'otherwise in the interests of justice' for the transfer to occur as required by s 5(1)(b)(iii), as there is no relevant difference between those two considerations.
4. The plaintiff structures its submissions by reference to the factors summarised in the authorities, particularly those set out in Irwin. At the hearing, the plaintiff argued that the Corporations Act applies rather than the Cross-vesting Act. However, its written submissions focused on the latter. I apprehend that this was likely due to the Transfer Summons referring to the Cross-vesting Act, rather than to the Corporations Act. Below, I set out the plaintiff's submissions.

Substantive law by which the claim is to be determined

1. The governing law of the facility agreement and the general security deeds is Victoria and pursuant to those documents ISU, Imprenditore and the individual guarantors consent to the non-exclusive jurisdiction of the Victorian courts. The situation in respect of the Mitchell Mandate is the same.
2. The plaintiff submits that this weighs heavily in favour of the proceeding remaining in this Court and not being transferred to the Sydney Registry of the Federal Court.

Stage of each proceeding and effect of delay

1. The plaintiff refers to the procedural steps which have already occurred in this proceeding, as outlined earlier in these reasons. It says that the Federal Court Proceeding was commenced late on 3 April 2025, without any prior warning.
2. The plaintiff submits that this proceeding has been on foot for two months, the matter has commercial urgency, the plaintiff has filed its evidence and the matter is listed to proceed on 23 April 2025. ISU and Imprenditore have been given every opportunity to file their evidence. To the extent they still wish to file evidence, they will need to make an application for leave to file such evidence out of time.
3. According to the plaintiff, this proceeding provides a timely, efficient and cost-effective forum for the disposal of the question as to whether the appointment of the Receivers to ISU and Imprenditore was valid.
4. By contrast, no step has been taken in the Federal Court Proceeding other than the filing of an originating application and statement of claim and the service of those documents on the plaintiff. The plaintiff submits that the Federal Court Proceeding is unlikely to be resolved for many months (or, perhaps, more than a year).
5. Further, the plaintiff submits that:

(a) the Federal Court Proceeding has been brought as a vehicle to advance claims which should have been brought in the Supreme Court Proceeding;

(b) ISU and Imprenditore brought the Federal Court Proceeding instead of seeking an order that this proceeding proceed by way of pleadings and bringing a counterclaim as an attempt to circumvent the risk that it may not be granted such leave, given that:

(i) in an email dated 15 November 2025, the defendants' solicitors foreshadowed bringing a claim in respect of the Mitchell Mandate;[13]

(ii) in a 20 page letter dated 7 January 2025, the defendants' solicitors set out the gravamen of the claims they now advance in the Federal Court Proceeding (albeit with some variations); and

(iii) the defendants' then counsel said to the Court on 14 February 2025:[14]

I'm also instructed there's likely to be a counterclaim. And the nature of that is on the basis that the defendants say that the plaintiff ought to have loaned it additional funds and that in breach of what they call the Mitchell mandate, which is the broad agreement for the provision of funding services, the plaintiff was required to provide certain funding and it didn't do so.

(c) The delay which would be occasioned by transferring this proceeding to the Federal Court and the effect of that delay is a material consideration as part of a 'nuts and bolts' analysis of the proceedings, in circumstances where there would be material detriment/prejudice to the plaintiff. As set out in the Hinton Affidavit:[15]

(i) the plaintiff has been paying out moneys to preserve Imprenditore's patents (the plaintiff has spent $180,000, and will need to spend a further $5,300, $7,000 and $38,100 in the next one, four and seven months respectively);

(ii) the sole director of the defendants has not been cooperating with the receivers;

(iii) the plaintiff and the Receivers have undertaken not to realise, dispose of or sell property and assets of the defendants until further order or agreement; and

(iv) the plaintiff has grave concerns as to the recoverability of its debt, in respect of which interest continues to accrue.

1. The plaintiff is located in Melbourne, as are its solicitors, senior counsel and junior counsel. The plaintiff intends to call evidence from at least Mr Mitchell, who also resides in Melbourne.
2. Both ISU and Imprenditore have their registered office at 'RBW Accountants' Suite 501, 83 York Street, Sydney, however, the sole director of ISU and Imprenditore, Mr Rice, resides in regional NSW (Armidale) some six hours from Sydney. The plaintiff's solicitors believe that Mr Rice runs his business, Qord, and the business of ISU and Imprenditore, from Brisbane.[16] Consequently, Mr Rice would need to travel to attend court in either Melbourne or Sydney.
3. As set out in the First Silberstein Transfer Affidavit, ISU, Imprenditore and their related parties intend to call 'a minimum of five lay witnesses who are giving evidence on behalf of the Defendants'.[17] But it is not said who these witnesses are or where they are located. The plaintiff submits that the Court can therefore place little weight on this statement.
4. The defendants' solicitors and senior counsel are located in Sydney, and its junior counsel is located in Melbourne.[18] The defendants' solicitors note that one member of their legal team has a disability which increases the cost of travel and accommodation.[19] The plaintiff submits that little weight should be placed on the location of the defendants' legal team in circumstances where their solicitors were prepared to accept instructions in this proceeding from February 2025 onwards and where they have not made any application for attendance at the 23 April 2025 hearing by video link.
5. In respect of a one-day hearing scheduled for 23 April 2025, the plaintiff submits that the costs of witnesses travelling from NSW are not material, particularly in circumstances where the subject matter of the proceeding is a debt currently exceeding $5.3 million.
6. The plaintiff submits that as a consequence, the location of the parties, witnesses and legal representatives are matters which favour this proceeding not being transferred.

1. The defendants' primary submission is that only the Federal Court Proceeding concerns all of the securities, has all of the relevant parties joined to it, and can and does contain a pleading which serves to set out the underlying claims and causes of action, the determination of which will establish the underlying rights and entitlements of the parties. In this regard, the defendants make the following submissions:

(a) The plaintiff commenced a related proceeding against Mr Rice in the Supreme Court of NSW, seeking possession of Mr Rice's home in NSW.

(b) The plaintiff also commenced a proceeding against Mr and Ms Pernicano in the Supreme Court of Queensland, in relation to their property.

(c) Mr Healey is an Applicant in the Federal Court Proceeding and resides in NSW. No proceedings have been commenced against Mr Healey.

(d) As mentioned at paragraph 56 above, the Applicants assert that most of their witnesses are based in NSW.

(e) The only action taken by the plaintiff in this jurisdiction is this proceeding. Only ISU and Imprenditore are defendants. The only substantive relief sought in this proceeding is by way of summons, in the nature of a bald declaration that the plaintiff has validly appointed receivers over the assets of ISU and Imprenditore under the charges. There is no pleaded claim brought in this proceeding. The summons is accompanied by a short and simple affidavit which does little more than refer to the loan and charge documents, and the summons has been listed for hearing before an associate judge of this Court on 23 April 2025 for one day, on the basis that the plaintiff considers the declaration to follow as a simple matter of course.

(f) The Applicants have sought and received legal advice as to their position and what rights they hold, what claims are available to them in respect of all of the underlying transactions in question, and their position under the full suite of securities and related contracts.

(g) Having received the abovementioned advice, they commenced the Federal Court Proceeding, through which they have brought a series of causes of action that concern not only the charges the subject of this proceeding, but also the mortgages the subject of the proceedings in the Supreme Courts of NSW and Queensland, in addition to the extent to which it is open to the plaintiff to enforce any of the mortgages in the circumstances which have arisen.

(h) Those claims are set out in the statement of claim filed in the Federal Court Proceeding. They are misleading and unconscionable conduct claims brought under the Australian Consumer Law in Schedule 2 of the Competition and Consumer Act 2010 (Cth), the Australian Securities and Investments Commission Act 2001 (Cth), and the Corporations Act, together with claims in contract and equity. The claims are to the effect that it is not open to the plaintiff, in the circumstances, to undertake the enforcement action it presently seeks to undertake in the various different parts of Australia.

(i) Many of the causes of action pleaded in the Federal Court Proceeding concern the parties' rights and entitlements under the Mitchell Mandate, under which it is contended that the plaintiff made a series of express and implied promises to facilitate debt and equity funding for ISU. It is alleged that the plaintiff committed serious breaches of that contract which now prevent it from taking the enforcement action sought through this proceeding. It is also alleged that the plaintiff made representations to the Applicants about its capacity to facilitate that funding for ISU, and that relying on those representations, the Applicants agreed to take some initial and short-term bridging finance from the plaintiff, pending the facilitation of the larger funding, and to execute the documents on which the plaintiff now seeks to rely. The money that the plaintiff says is owed to it, and secured by the various securities it now seeks to enforce, is the money advanced under that initial bridging finance.

1. The defendants say that the Federal Court Proceeding was commenced in the Federal Court because it includes claims under Commonwealth acts and the Federal Court routinely hears and determines claims of this kind. It has been filed in the NSW Registry of the Federal Court because that is the most suitable geographical venue for the management and hearing of the claims in circumstances where, inter alia: (a) ISU and Imprenditore have their registered offices in Sydney; (b) their directors both now and at the relevant times were located in NSW, including in Sydney; (c) one of the two homes the subject of security is in NSW and none are in Victoria; (d) Mr Healey is located in NSW; (e) most of the principal witnesses for the Applicants are located in NSW and it is where their records are kept; (f) it is where the solicitors and senior counsel retained for the Applicants are located; and (g) the solicitor on the record for the Applicants requires assistance with personal needs and travel of the kind identified in the First Silberstein Transfer Affidavit.
2. The defendants contend that there is nothing about these disputes which would make Victoria or the Supreme Court a more appropriate forum for their determination, and indeed, no application has been made by the plaintiff for any order to transfer the Federal Court Proceeding to this Court, or for the transfer of the Federal Court Proceeding to the Victorian Registry.
3. The defendants say that further, the fact some contracts have Victoria as their governing law does not advance the plaintiff's position. The issues dividing the parties concern the application of Commonwealth Acts, common law principles of contract and equitable principles. There is no issue which requires consideration of some bespoke Victorian law, such that this Court is better placed to deal with it.
4. What is more, the plaintiff itself takes the view that the location of lawyers is relatively immaterial, and on the evidence, there will be substantially more witnesses (and thus records) based in NSW than Victoria. As such, the only issue arising is whether this proceeding should be transferred to the Federal Court so that it can be heard and determined together with the Federal Court Proceeding, given the substantial overlap and the interests of justice.
5. The defendants submit that having regard to the interests of justice, the appropriate order to make is one for the transfer of this proceeding to the Federal Court, on the basis that it can and would be heard and determined in that court as an aspect of, and consequent upon the outcome of, the Federal Court Proceeding. This would be conducive of efficiency, as all the evidence in respect of the disputed appointment would be given at one time before the same judge.2[20] Whilst this proceeding is more advanced than the Federal Court Proceeding, as presently constituted it could not and would not result in the determination of all issues in dispute relating to the validity of the appointment.
6. The defendants submit that, because the Federal Court Proceeding is the only proceeding in which the underlying rights of all of the relevant parties, in respect of all of the relevant contracts and circumstances, fall to be determined, it is the natural vehicle through which those claims can be defended, heard and determined.
7. The defendants accept, as they must, that the practical implications of an order for transfer will mean that the trial of this proceeding will not proceed on 23 April 2025. However they say that there is no reasonable basis for a suggestion that there could be a fair and proper hearing on all of the issues that would need to be determined if the hearing was to proceed on that date, including in particular all of those matters identified in the statement of claim in the Federal Court Proceeding. That is said to be due to: (a) the time it would take to prepare for such a contest having regard to the fact that there is a substantial body of affidavit evidence that will need to be prepared by both parties, a likelihood of expert evidence dealing with the quality or otherwise of the services provided by the plaintiff under the Mitchell Mandate and the consequences of that for ISU, and the need for discovery; (b) a hearing of those issues would run for substantially longer than the one day presently allocated, likely requiring a hearing of four to five days; and (c) some of the important arguments and findings for which the defendants would contend are matters that are not within the power of the Associate Judge before whom the hearing has been allocated. The plaintiff has not offered any way for the dispute between the parties to occur other than for the Applicants to be denied the opportunity to have those issues heard.
8. What is contemplated by the defendants as a consequence of the transfer order, if made, is that this proceeding would be case managed and heard with the current Federal Court Proceeding.
9. Further and in any event, the defendants contend that any prejudice which may flow from vacating the trial date is outweighed by the need to ensure that all issues in dispute between the parties are determined by one court at the same time. This will avoid a multiplicity of proceedings and claims, and the risk of inconsistent findings by different courts on the same matters.
10. In this regard, the defendants say that there are two points which weigh heavily in favour of a transfer, taken both separately and together. According to the defendants, the risk of inconsistent findings in this case is acute. The result of this proceeding will not bind any of the persons who are not party to this proceeding, such as Messrs Rice, Hart or Pernicano, or Ms Pernicano. The second point is that if this proceeding is rushed to a final hearing on the limited matter raised by the plaintiff, it may give rise to actual or arguable res judicata and issue estoppel points against the defendants when there cannot be a fair final hearing of the defendants' contentions within the current timeframe. This is in circumstances where the actual dispute between the parties is of much broader compass, and they have not had sufficient time to prepare. I am presented with only one solution to the risk of inconsistent findings, and that is this application; no other application for transfer of other proceedings to this Court has been made.
11. Rather curiously, the defendants say that the present circumstances are, to a large extent, a consequence of the unusual way in which this matter has proceeded. An application for an order under s 418A of the Corporations Act is conventionally made by the person who alleges that the appointment of a receiver was invalid, and that person is required to set out the specific grounds upon which it is alleged that there is doubt whether a purported appointment of a receiver is valid. The burden then shifts. This process ordinarily ensures that all issues in dispute in respect of the validity of the appointment are raised and determined. In the present case, it is the creditor who has made the s 418A application. Whilst the creditor has standing to apply under s 418A, it is unusual for the creditor to do so. The person who challenges the appointment is usually the applicant for a s 418A declaration, as that person is plainly in a better position to set out the specific grounds for the alleged invalidity of the appointment. Where the ground for challenge is simple and straightforward, often there will be no issue if a creditor is the applicant, as the creditor will be in a position to articulate the grounds of challenge that have been raised by the company clearly. This is not such a case, as is evident from the plaintiff's affidavit material, which not only fails to articulate all grounds of challenge clearly, but fails to articulate any grounds at all. The result is that this proceeding is a relatively empty shell, and an unsuitable vehicle for the proper determination of the underlying rights of the parties. This proceedings will not result in the determination of the real issues in dispute between the parties, which is why the defendants have commenced the Federal Court Proceeding and made this transfer application.
12. The defendants reject the plaintiff's submission that the Federal Court Proceeding was issued as a belated attempt to disrupt the conduct of this proceeding. The defendants contend that the plaintiff has chosen a vehicle to promote the making of a quick declaration in its favour by an associate judge, without any determination of the real issues between the parties. In the face of being rushed on in this way, the Applicants had the opportunity to seek and obtain advice as to their underlying rights and legal position in respect of the transactions in question, and seek to rely on their rights. This has resulted in the bringing of an appropriate proceeding in which pleadings are required. The purpose of the Federal Court Proceeding is to vindicate the rights of the Applicants. That it may give rise to some delay and the plaintiff is unable to obtain declaration hurriedly made declaratory relief is not a basis to assert that the Federal Court Proceeding was commenced for some improper purpose, and nor is it a basis for refusing to make an order for transfer.
13. The defendants say that it would appear that the plaintiff takes the position that it would have been open to the defendants to appear on the hearing of a summons on 23 April 2025 and conduct a substantive commercial case, putting all of the propositions and arguments identified in the statement of claim in the Federal Court Proceeding. The defendants postulate that one can imagine the nature and extent of the legitimate complaint that would be made by the plaintiff if this course had been adopted. There would have been allegations of ambush and claims of not being in a position to deal with these matters. Instead, the Applicants have taken what they describe as the fair and responsible course of putting forward their claims in an appropriate form, utilising a formal process in an appropriate jurisdiction. The defendants contend that this demonstrates the ultimate inappropriateness of the plaintiff's course.
14. The defendants accept that they will need to conduct the Federal Court Proceeding with due dispatch, and that not only are they duty bound to do so under the provisions of the Federal Court Act concerning the overriding objectives, but that this would be expected of them by both this Court, the Federal Court and the plaintiff to do so. Senior counsel for the defendants stated at the hearing that he had instructions that the Applicants would make, or support, an application for an expedited trial of the Federal Court Proceeding.
15. The defendants acknowledge that there is no avoiding the fact that there has been delay by the Applicants in getting their house in order, but with the introduction of new counsel action has been taken quickly and decisively to identify, articulate and advance the rights for which they now contend. The Applicants have now retained lawyers with the objective of pursuing their claims with due dispatch. The defendants say that their answer to the claim made in this proceeding is the answer articulated in the Federal Court Proceeding. Counsel conceded at the hearing that, in event, the corporate defendants to this proceeding were looking in the wrong direction. With the retention of new counsel, this has been remedied, albeit late in the day. One 'silver lining' of this delay in articulation of the defendants' case referenced by counsel at the hearing is that a large number of the claims asserted earlier in the year are no longer pursued.

1. To the extent that the defendants rely on differences of procedure between this proceeding and the Federal Court Proceeding, I consider these to carry little, if any weight. In particular:

(a) There is no impediment under the Rules or the Corporations Rules, or any other instrument, to this proceeding continuing by way of pleadings. Either party could have made that application - it is not uncommon at all for Corporations List matters to continue in that way.

(b) Similarly, there is nothing to prevent other parties being joined to this proceeding.

(c) As I pointed out at the hearing, the Court is obliged to seek to give effect to the overarching purpose under the Civil Procedure Act 2010 (Vic) when exercising its powers. That purpose is to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute. The Court has power to dispense with any of the Rules and is highly likely to do so where that helps fulfil the overarching purpose.

(d) The defendants continually referred to this proceeding as having been initiated by a summons. This is not technically correct. While little turns on that mistaken position, it is consistent with the defendants' characterisation of this proceeding. They continually referred to this proceeding being a rushed process, or this proceeding being rushed to a final hearing, and the plaintiff seeking a hurried declaration. I do not accept that this is the case. Applications for a declaration pursuant to s 418A of the Corporations Act are routinely made using an originating process under the Corporations Rules and there is nothing rushed or hurried about it. The use of such descriptors implies that there is something lacking in the process, and that is simply not the case. Whether an application is rushed or hurried depends on the circumstances of that application and there is nothing inherently untoward about the process embarked upon by the plaintiff in this case.

(e) The defendants also placed much emphasis on the fact that this proceeding is listed for hearing before an associate judge. Where applications are not within the ordinary jurisdiction of an associate judge under the Rules, the Corporations Rules or the Supreme Court Act, they may be referred by a judge of this Court to an associate judge for hearing. Such referrals are frequently and routinely made. Indeed, as set out earlier, a referral order was made on 14 February 2025 for an associate judge to hear and determine this proceeding. That having been done, there is no reason for the defendants' submissions to emphasise this aspect. It seems to me that it is mentioned by the defendants as a reason to transfer this proceeding, since they also say that the matters the subject of the Federal Court Proceeding would not be suitable for an associate judge to hear, seemingly suggesting that if this proceeding was expanded to deal with the claims made in that proceeding there would be some difficulty with that. Again, to the extent a judge considers it desirable to do so, a further referral order could be made if necessary.

1. The defendants' submissions repeatedly state, and seem to take as a given, that a fair and proper hearing on all of the issues could not go ahead on 23 April 2025. I do not accept this. The scope and conduct of the hearing scheduled for 23 April 2025 will be a matter for the presiding judicial officer. To the extent that matters such as the likely duration of the hearing may be affected does not mean that there will not be a fair and proper hearing.
2. Any potential difficulties with the hearing scheduled for 23 April 2025 are largely of the defendants' own making. They have repeatedly failed to comply with the Court's orders as to the delivery of their affidavit material. The notion that the plaintiff would somehow have been ambushed at the hearing if the defendants had not initiated the Federal Court Proceeding and instead relied on all of the matters referred to in their statement of claim cannot be accepted. If the defendants had complied with the Court's orders, the plaintiff would have been on notice of the evidence relied upon well in advance of the hearing. While the evidence may not have revealed, of itself, the causes of action or arguments relied upon, filing and serving submissions in advance (as required by the Court's orders) would presumably have elucidated those matters. The defendants seemed to imply that by taking the approach they have belatedly come to, they have done the plaintiff a favour by not ambushing it at the hearing.
3. In a similar vein, but stated explicitly at the hearing, the defendants referred to previous iterations of their position relayed in correspondence from S&A Law to Gadens in November 2024 and January 2025 having changed a great deal. Counsel for the defendants took me through that correspondence, highlighting several claims made therein which do not form part of the statement of claim in the Federal Court Proceeding. It was explained that current counsel was first briefed on 21 March 2025 and that the defendants had subsequently taken advice from their solicitors and new counsel as to their rights and claims, and that previously the defendants had been 'looking in the wrong direction'. It was said that the delay was regrettable but a happy by-product of it was that a number of matters raised in the correspondence are not being pursued in the Federal Court Proceeding. The defendants say that there has been a substantial alteration in the course taken by them as to their answers to the claims made against them here and in the other proceedings, which now finds expression in a complete way in the statement of claim filed in the Federal Court Proceeding.
4. The defendants relied on this change of approach in a number of ways. I accept that it answers, at least in part, one of the points made against them by the plaintiff, being that the defendants had articulated their claims many months ago. But all that has occurred here is that the defendants have changed their case. That does not explain or justify their delay in putting on their evidence and their defiance of the Court's orders. It is simply insufficient to express regret for the delay but attempt to justify it by reason of a changed position. Further, the impact of the change in the defendants' case must not be overstated: the fundamental proposition that the defendants had, and were likely to bring, a counterclaim was foreshadowed by the defendants' then‑counsel at the first hearing on 14 February 2025. The defendants also mentioned at that hearing that there were two other proceedings on foot such that there may be a risk of inconsistent findings and they criticised the plaintiff's evidence at that stage as sparse.
5. The defendants contend that they acted as quickly as they could once they had engaged new counsel and changed the case they wished to make. While they may have acted quickly to initiate the Federal Court Proceeding, they did not give the plaintiff or this Court any notice of this or any explanation as to why they had not complied with the Court's orders. The only explanation given for not having filed their affidavit material was in Mr Silberstein's affidavit of 21 March 2025, where he explained that there were a number of potential affidavits to prepare from several witnesses and further time was needed to finalise those, and new counsel were still being brought up to speed on the matter. That does not explain why the defendants did not comply with the 21 March Orders requiring them to file their affidavit material by the extended date of 2 April 2025. I find it difficult to accept that they could not have done so in circumstances where detailed instructions must have been taken in order to prepare the statement of claim in the Federal Court Proceeding.
6. The defendants made a forensic choice to change their case and to pursue the Federal Court Proceeding, rather than comply with orders made by this Court. I accept the plaintiff's submission that they should not be able to benefit from their own dereliction. In saying so, I make no criticism of the defendants' current counsel. Responsibility for the failure to comply with the Court's orders lies ultimately at the feet of the defendants themselves. It is one thing for the Applicants to rely on their rights, as submitted by the defendants. It is quite another thing for them to sit on their rights, as the defendants have done in their conduct of this proceeding.
7. I have set out the history of this proceeding in somewhat tedious detail earlier in these reasons, as I consider it an important element of my consideration about the interests of justice in this case. This proceeding has been fixed for hearing since 21 February 2025. The Federal Court Proceeding is in its infancy. There is a fundamental difference in the stage at which each proceeding is at. In the circumstances of this case, it is not in the interests of justice for this proceeding to be delayed for a period of at least several months by transferring it to the Federal Court. I cannot speculate as to how long it may take for the Federal Court Proceeding to reach a final hearing, even if the defendants seek to expedite it.
8. The defendants have challenged the validity of the appointment of the Receivers for many months now. They could have, but did not, sought declaratory relief under s 418A of the Corporations Act themselves. They could have initiated some other proceeding to challenge that appointment and vindicate their rights, but did not do so until after their material in this proceeding was overdue. To the extent that the defendants rely on what they say is the unusual situation of the creditor seeking relief under s 418A rather than the company itself (or its director), I give that no weight. In circumstances where the director alleges that the appointment is invalid but takes no steps to challenge it, it is unsurprising that the receiver or the creditor then seeks declaratory relief so as to clarify the situation.
9. Thus, the stage of the respective proceedings and the delay which would be occasioned by reason of the transfer of one proceeding is an important factor in assessing the interests of justice.
10. I accept, as I must, that there is a risk of inconsistent findings if this proceeding is not transferred and the Federal Court Proceeding later goes to hearing. However, apart from identifying the fact that only the corporate Applicants are parties to this proceeding, such that only they and not the individual Applicants would be bound by any findings made in this proceeding, the defendants' submissions did not descend to any detail as to what this risk was. I sought clarification of precisely what the risk of inconsistent findings was, but the explanation did not traverse beyond this.
11. Despite the lack of clarity, I acknowledge that there is a risk of inconsistent findings. However, due to that lack of clarity, I am not in a position to assess the dimensions and likely consequences of that risk, but I do consider it to be a factor weighing in favour of the transfer.
12. There is a superficial attractiveness to the defendants' submission that this proceeding should be transferred to the Federal Court because that is where a proceeding has been initiated that covers the field, as it were. However, the arguments relied on by the defendants as to why they chose to initiate their proceeding in the Federal Court (leaving aside which Registry, for the moment) such that this proceeding should be the one to be transferred are not persuasive. True it is that the legislation relied on by the Applicants in their statement of claim is Commonwealth legislation, but this Court has jurisdiction in respect of all of those matters. True it is that the Federal Court routinely hears disputes of this type, but so does this Court. These arguments do not weigh in favour of the transfer.
13. That leads me to the question of location, the Federal Court Proceeding having been filed in the Sydney Registry, such that this proceeding if transferred to the Federal Court would also be transferred to Sydney. In this regard:

(a) S&A is a relatively small firm located in Sydney, and one of the solicitors has additional needs when travelling. This is acknowledged, but there is no suggestion that these needs cannot be accommodated or that participation by audio-visual means would not be possible. Gadens has offices in Melbourne and Sydney. However, the practitioners with conduct of this proceeding are located in Melbourne. I do not regard the location of either party's solicitors as weighing heavily in the balance.

(b) Three of the four counsel currently engaged are located in Melbourne and one is in Sydney. It cannot seriously be suggested that this is a factor weighing in favour of the transfer.

(c) In terms of the location of witnesses, the Second Silberstein Affidavit provides information which addresses the plaintiff's submission that the evidence regarding the identity of the defendants witnesses is insufficiently specific. It appears that whether or not the hearing is in Sydney or Melbourne, Mr Rice would need to travel for it (as he resides in rural NSW), as would Mr and Ms Pernicano (who reside in Queensland). In those circumstances, I do not regard the location of witnesses as particularly weighty here, and note that applications can be made for witnesses to give evidence via audio-visual means.

(d) The plaintiff is located in Melbourne. The defendants have their registered office in Sydney. The plaintiff points out that this appears to be the address of the defendants' accountants. Mr Hinton deposes that he is unaware of the defendants' business being conducted from those premises. He also deposes that a business run by Mr Rice, Qord, is run from Brisbane. In answer to this, the Second Silberstein Affidavit states that 'any Queensland office references relate a virtual office address, which is only kept there because that is where the software engineers developing software for ISU have often met'. I do not know what this means. Mr Silberstein also deposes that the Qord companies are not part of any of either proceeding and have their registered offices in NSW. I do not regard the location of the corporate plaintiff and the corporate defendants to carry much weight here and to the extent that they do, they cancel each other out.

(e) I also do not regard the governing law provisions in the relevant contracts as carrying much weight. Either of the courts which may end up with the matter are equally capable of applying the relevant law, and there is no real suggestion that the law in NSW in respect of these contracts differs in any material respect to that of Victoria. All of the legislation referred to is Commonwealth legislation in any event. I do not know what legislation is relied upon in respect of the proceedings taken by the plaintiff to enforce the real property mortgages, but do not see that this is relevant to the question of whether I should transfer this proceeding to the Federal Court.

1. Considering all of these matters regarding location, I do not consider that a court located in Sydney is more appropriate to hear and determine the issues in dispute than a court in Melbourne. I do not regard these matters regarding location as having any real impact on the interests of justice in this case.
2. The defendants submitted, with emphasis, that the plaintiff had not taken any steps to transfer the Federal Court Proceeding to this Court. In the circumstances, I regard that submission as spurious. Where there was already a transfer application on foot, being the Transfer Summons, how would the Court or the parties be assisted by a competing transfer application? Further, the timing of the commencement of the Federal Court Proceeding, the filing of the Transfer Summons, and the hearing date for the Transfer Summons is such as to make the defendants' proposition even more unconvincing.
3. The plaintiff contends that it would be prejudiced by the further delay, which may be for at least some months, associated with enforcing its security if the proceeding is transferred. To that end, the Hinton Affidavit and the plaintiff's submissions make a number of points about this, which both of the Silberstein affidavits seek to address. In this regard:

(a) The Hinton Affidavit states that the plaintiff has already paid out $180,000 at the request of the Receivers to maintain Imprenditore's patents, and there are ongoing costs as set out earlier. The Second Silberstein Affidavit states that as the Receivers have been appointed to Imprenditore, those costs would be costs required to be incurred by them, not the plaintiff. Mr Silberstein also deposes that these payments are bald assertions and there is no evidence that the plaintiff has made those payments, and the amount of $180,000 'grossly exceeds' his understanding of what may have been needed to have been paid by the Receivers to date. I find the defendants' response unconvincing: to say the Receivers would be obliged to make the payment rather than the plaintiff is rather disingenuous if the Receivers do not have funding available from Imprenditore's assets. It also misses the fundamental point that the Receivers are seeking to maintain Imprenditore's assets so as to preserve their value, which requires costs to be incurred.

(b) The Hinton Affidavit states that Mr Rice has failed to provide a report on company activities and properties (ROCAP) and meet his statutory obligations and has not indicated he will meet those obligations in the future. The Second Silberstein Affidavit refers to paragraph 31 of Mr Silberstein's 21 March 2025 affidavit and to the exhibit thereto, which he says 'demonstrate ASIC's position in relation to the alleged non-compliance and non-cooperation of Mr Rice, including that it is placing a temporary hold on any enforcement action against Mr Rice pending the outcome' of this proceeding regarding the validity of the appointment of the Receivers. In my view, the evidence is clear that Mr Rice has not provided a ROCAP for either of the defendants to the Receivers. All that Mr Silberstein's 21 March 2025 affidavit and the relevant exhibit establishes is that on behalf of Mr Rice, S&A Law requested that ASIC put any enforcement action in relation to that failure against Mr Rice on hold while the validity of the appointment of the Receivers was determined, and ASIC has agreed to that. The fact that enforcement action has been put on hold does not alter the fact that the Receivers have likely been impeded in their role by not having access to the information which would be contained in the defendants' ROCAPs and if this proceeding is delayed, that impediment would continue to affect the performance of their role.

(c) The plaintiff says that it has grave concerns as to the recoverability of its debt, which continues to grow, including because the Receivers have been unable to verify the alleged value of Imprenditore's intellectual property rights. The Hinton Affidavit contains a copy of a valuation report.[21] The defendants say that the value of these assets is such that the plaintiff has no cause for concern as to the recoverability of its debt. I am not in a position to adequately assess either party's position in this regard. However, while this proceeding is extant, particularly in light of the Receivers' Undertaking, there is a clear practical impediment to the plaintiff realising its security and that is something that needs to be resolved as soon as possible. I note that the defendants did not address the issue of the Receivers' Undertaking if this proceeding is transferred and delayed in its resolution.

1. The plaintiff submitted that there had been no undertaking by the defendants to pay the amount of the debt into Court while it challenged the appointment of the Receivers, which the plaintiff says is contrary to the usual rule as set out in Inglis v Commonwealth Trading Bank of Australia,[22] that where a mortgagor is seeking to restrain the mortgagee from exercising a power of sale, such an application is not ordinarily granted unless the amount of the debt is paid into Court. On the other hand, the defendants say that there are exceptions to this rule, one of which is where there is a challenge to the validity of the mortgage or a dispute as to whether the power of sale has arisen at all.[23] In the circumstances of this case, I do not consider that the rule in Inglis applies: apart from anything else, it is not clear that the defendants are seeking to restrain the plaintiff or the Receivers.
2. Taking all of these matters into account and weighing the competing considerations, I am not satisfied that, having regard to the interests of justice, the Federal Court is a more appropriate court to determine this proceeding.

1. For all of these reasons, at the conclusion of the hearing I made orders dismissing the Transfer Summons and that the defendants pay the plaintiff's costs of the application.

[1] [2011] VSC 291 (Irwin).

[2] [2004] HCA 61; (2004) 221 CLR 400 (Schultz).

[3] [2005] VSC 4 (Ewins). See the cases cited at footnote 8 of Irwin.

[4] Irwin, [14] (citations omitted).

[5] Xia Yunfen v One Funds Management Limited and Jianqiang Shao [2024] VSC 555, [27] (Hetyey AsJ) (Yunfen).

[6] Bogan v The Estate of Peter John Smedley [2025] HCA 7, [70]-[71] (Gageler CJ, Gordon, Gleeson, Jagot and Beech-Jones JJ).

[7] [2015] VSC 613.

[8] Ibid [11]-[12] (citations omitted).

[9] Yara Pilbara Fertilisers Pty Ltd (formerly known as Burrup Fertilisers Pty Ltd) v Oswal (No 8) [2015] FCA 49, [26] (McKerracher J); Yeo, in the matter of Armstrong and Shaw Pty Ltd (in liq) v Whiteman [2020] FCA 849, [30] (Anderson J); Re Rock S Pty Ltd & Rock P Pty Ltd; Flood v Serra [2024] VSC 362, [47] (Harris J).

[10] [2024] WASC 497.

[12] Resource Equities Ltd (subject to a deed of company management) v Carr [2007] WASC 246, [5] (Martin CJ).

[17] First Silberstein Transfer Affidavit at [16(b)].

[19] First Silberstein Transfer Affidavit at [12].

[20] He Run Pty Ltd v LPY Investments Pty Ltd (2024) 73 VR 243, 254 [41] (Waller J).

[21] I have not set out the alleged figure, as I have already made orders, at the defendants' request (to which the plaintiff consented), to maintain the confidentiality of that report and the references to the alleged value contained in the Hinton Affidavit.

[22] [1972] HCA 74; (1972) 126 CLR 161, 164-165 (Walsh J, with Barwick CJ, Menzies and Gibbs JJ agreeing).

[23] In this regard, the defendants rely on Goater v Commonwealth Bank of Australia [2014] NSWCA 265, [76] (Ward JA).