Plaintiff v First Defendant

PRACTICE AND PROCEDURE - Corporations Act 2001 (Cth) ss 1337H, 1337H(2), 1337L, 1337M, 1337G - Transfer of civil matters arising under the corporations legislation - General principles regarding transfer - Bogan v Estate of Smedley [2025] HCA 7; (2025) 422 ALR 94 - Court's power to transfer a proceeding on its own motion - Section 5(2) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic) not applicable - Interests of justice - Court's discretion under s 1337H(2) of the Corporations Act 2001 (Cth) - Requirement to take into account factors referred to in s 1337L of the Corporations Act 2001 (Cth) - Relevant factors to take into account - Common issues in proceedings - Risk of inconsistent findings between courts - Absence of any prejudice - Efficiency considerations - Court resourcing considerations - Urgency required given pending application in the Federal Court of Australia - Transfers under the Corporations Act 2001 (Cth) are different to transfers under the cross-vesting legislation.

1 The question for determination is whether this proceeding should be transferred to the Federal Court of Australia on the Court's own motion pursuant to s 1337H(2) of the Corporations Act 2001 (Cth) (Act). The answer to that question is: 'Yes'.

2 The material before the Court upon which the parties relied for present purposes, and which I read and considered, was as follows:

1. The originating process, filed 19 November 2025.

2. Two affidavits of Mr Chiodo, the sole director of the plaintiff (plaintiff), sworn 19 November 2024 and 28 January 2026.

3. Two affidavits of one of the liquidators of Keystone Asset Management Ltd (in liquidation) (Keystone), sworn 17 December 2025 and 3 February 2026.

4. The plaintiff's outline of written submissions filed 2 February 2026, which was supplemented by oral submissions from counsel for the plaintiff.

5. The defendants' outline of written submissions filed 3 February 2026, which was supplemented by oral submissions from counsel for the defendants.

3 On 4 September 2025, the plaintiff lodged a proof of debt in the liquidation of Keystone in respect of a debt said to be owed to the plaintiff by Keystone (Alleged Debt). On 6 November the defendants (defendants or liquidators) issued a formal notice of rejection of the proof of debt disallowing the proof of debt in full.

4 This proceeding was commenced by originating process filed 19 November 2025 pursuant to which the plaintiff seeks to appeal the liquidators' decision to reject the proof of debt (Rejection Decision), set aside the Rejection Decision, and obtain an order allowing the proof of debt in full or such other amount as the Court sees fit. The originating process records that the application is made under reg 5.6.54 of the Corporations Regulations 2001 (Cth) (Corporations Regulations), r 14.1 of the Supreme Court (Corporations) Rules 2023 (Vic) (Corporations Rules), s 90-15 of the Insolvency Practice Schedule (Corporations) 2016 (Cth) (Insolvency Schedule), and the inherent jurisdiction of the Court.

5 At the first directions hearing in this proceeding on 18 December 2025, the matters raised with the parties by the Court included the question of whether this proceeding ought to be transferred to the Federal Court given, among other things, the existence of other proceedings relating to Keystone, the plaintiff, Mr Chiodo, and other people and entities that are pending in that court (Related Proceedings). The Court also made directions as follows:

1. By 4:00pm on 27 January 2026 the plaintiff file and serve any further affidavit material upon which they wish to rely.
2. By 4:00pm on 27 January 2026 the plaintiff inform the defendants in writing, copying his Honour Justice Connock's chambers, how it contends clause 3(b) of the Accession Deed dated 17 June 2024 is to be properly construed and/or rectified, and in each case, the basis upon which it is so contended.
3. By 4:00pm on 3 February 2026 the defendants inform the plaintiff in writing, copying his Honour Justice Connock's chambers, of the following:

(a) whether in this proceeding the defendants rely upon the ground for rejection of the proof of debt referred to at bullet point number 6 of paragraph 2 of the Form 537 Notice of Rejection of Formal Proof of Debt or Claim dated 6 November 2025 (Rejection Ground 6); and

(b) if the defendants rely upon Rejection Ground 6:

(i) which agreements are contended to be unenforceable; and

(ii) the grounds upon which each agreement is said to be unenforceable.

1. By 4:00pm on 4 February 2026 the defendants file and serve any further affidavit material upon which they wish to rely.
2. The proceeding is listed for further directions at 10:00am on 4 February 2026 before Justice Connock.
3. By 4:00pm on 10 February the plaintiff file and serve any affidavit material in response together with an outline of submissions not exceeding 10 pages.
4. By 4:00pm on 12 February the defendants file and serve an outline of submissions not exceeding 10 pages.
5. Costs are reserved.
6. There is liberty to apply.

6 On 27 January 2026, the solicitors for the plaintiff advised the parties and the Court in writing that the plaintiff no longer seeks to have the Rejection Decision set aside on the basis of the proper construction or rectification of an agreement between the plaintiff, Keystone and others known as the Accession Deed (Accession Deed), which deed the liquidators (relevantly) allege operated to transfer liability for the Alleged Debt from Keystone to other entities defined in the Accession Deed as the 'Landowners'. Rather, the plaintiff stated that it seeks to set aside the Accession Deed on the basis that it was not executed by one of the purported parties to the Accession Deed, namely, 417 Bellmere Road Pty Ltd, and therefore clause 3(b) of the Accession Deed did not operate to transfer liability to the Landowners for the Alleged Debt.

7 By email from the defendants' solicitors dated 29 January 2026 the Court was informed that, because of the change of position of the plaintiff regarding the basis upon which the Rejection Decision is sought to be set aside, the liquidators are now required to interrogate a significantly large database of documents in order to file their own evidence in response to the plaintiff's new position. The Court was also informed that the liquidators seek an extension of time to file further affidavit material to a date to be determined.

8 By email dated 28 January 2026 from the Court to the parties, the parties were directed to each file and serve a brief outline of submissions addressing the question of whether the proceeding should be transferred to the Federal Court on the Court's own motion pursuant to s 1337H(2) of the Act.

9 Pursuant to paragraph 3 of the directions referred to above, by email dated 3 February 2026 the defendants' solicitors informed the plaintiff and the Court that the defendants did not intend to rely upon Rejection Ground 6 (as defined in the said orders) in this proceeding.[1]

10 The parties filed the further affidavit material and written submissions referred to in paragraph 2 above.

1. Section 1337H of the Act applies.

2. It appears to the Court that, having regard to the interests of justice, it is more appropriate for this proceeding to be determined by the Federal Court, being another court that has jurisdiction in the matters the subject of this proceeding for determination.

3. It is appropriate to exercise the Court's discretion under s 1337H(2) of the Act by making an order transferring this proceeding to the Federal Court.

4. It is not necessary to address any alternative position under the Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic) (Cross-vesting Act (Vic)) or the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) (Cross-vesting Act (Cth)) because neither Act relevantly applies.

Transfer of proceedings under s 1337H of the Act

12 I addressed relevant principles and observations in relation to transfers of proceedings under s 1337H of the Act in Re Quirky Mama Productions Pty Ltd (Re Quirky Mama)[2] and it is efficient and convenient to repeat in similar (but not identical) terms much of what I set out in that case, which I do in paragraphs 16 to 20 below.

13 Sections 1337H (1) and (2) of the Act provide as follows:

(1) 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; or

(ii) a subsection 1337B(3) proceeding; and

(b) the transferor court is:

(i) the Federal court; or

(ii) a State or Territory Supreme Court.

(2) 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.

...

14 When deciding whether to transfer a proceeding to another court pursuant to s 1337H of the Act, s 1337L of the Act mandates that the Court have regard to:

1. the principal place of business of any body corporate concerned in the proceeding or application;

2. the place or places where the events that are the subject of the proceeding or application took place; and

3. the other courts that have jurisdiction to deal with the proceeding or application.

All courts having jurisdiction in:

(a) civil matters arising under the Corporations legislation; or

(b) matters referred to in subsection 1337B(3);

and the officers of, or under the control of, those courts must severally act in aid of, and be auxiliary to, each other in all those matters.

16 Principles regarding the determination of transfer applications made pursuant to s 1337H of the Act have been addressed in various authorities and were not relevantly controversial. Two cases in this court where the principles relating to s 1337H of the Act were addressed are Kadac Pty Ltd v Complete Health Products Pty Ltd (Kadac)[3] and Webster (as trustee for the Elcar Pty Ltd Super Fund Trust) v Murray Goulburn Co-Operative Co Ltd (Webster).[4]

17 As observed by Croft J in Webster, the overarching question to be answered in an application for transfer under either s 1337H(2) of the Act or s 5(2)(b)(iii) of the Cross‑vesting Act (Cth), is whether the transfer is more appropriate having regard to the interests of justice. The issues arising under each section are broadly similar, as was addressed by Debelle J in Re Dstore Ltd; Dwyer v Hindal Corporate Pty Ltd (Dwyer).[5] It was also there observed that where the interests of justice threshold criterion is satisfied, s 1337H(2) of the Act provides the court with a discretion whether to transfer the proceeding, whereas s 5(2) of the Cross-vesting Act (Cth) requires the court to transfer the proceeding. That said, and as others have observed, it is not easy to conceive of cases in the abstract where the discretion under s 1337H(2) might be exercised against the transfer of a proceeding when, in order to enliven the exercise of the discretion, it has first been determined that the interests of justice favour the transfer.

18 In Kadac, Sifris J addressed the principles relevant to s 1337H of the Act in part as follows, whilst also drawing upon the observations of Martin CJ in Resource Equities Ltd (Subject to Deed of Company Management) v Carr:[6]

1. The principles to be applied in determining an application under s 1337H(2), which were not in dispute, are the same as those that apply to s 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic), subject to one difference. Under s 5(2)(b)(iii), the transferor court must transfer the proceedings if it is satisfied that another court is the more appropriate court whereas under s 1337H(2) even if another court is the more appropriate venue, the transferor court retains a discretion whether to transfer the proceedings.[7]

...

1. The threshold question posed by s 1337H(2) is whether the Queensland Supreme Court is more appropriate than this Court for the determination of the proceeding, having regard to the interests of justice.[8]
2. In considering that question, the following principles are to be applied:

(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';[9]

(b) Which court is more appropriate to hear and determine the substantive dispute is a 'nuts and bolts' management decision;[10]

(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;[11]

(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;[12]

1. Section 1337L requires the Court, in deciding whether to transfer the proceeding, to have regard to (i) the principal place of business of any body corporate concerned in the proceeding or application; (ii) the place or places where the events that are the subject of the proceeding or application took place; and (iii) the other courts that have jurisdiction to deal with the proceeding or application.
2. The phrase, 'interests of justice' is to be read widely,[13] and includes the availability of procedures with the capacity to assist both parties in the efficient and economical resolution of disputes and therefore serve the public interest.[14]
3. In Resource Equities Ltd (Subject to Deed of Company Management) v Carr,[15] Martin CJ regarded as critical the fact that much of the evidence was to come from the defendants and that the plaintiff's evidence would probably be restricted to the tender of documents. The Chief Justice transferred the case to the Supreme Court of New South Wales, the jurisdiction in which the defendants resided. His Honour said -

The point made by the applicants for transfer in this case, which I accept, is that it will be a rare case in which the difference between the mandatory and the discretionary language will have any practical application, because it is difficult to conceive of a circumstance in which having concluded that it is in the interest of justice to transfer a case it would be appropriate to nevertheless exercise a discretion to decline transfer.

...

The principles that govern applications of this kind have recently been enunciated conveniently by the High Court in the case of BHP Billiton Ltd v Schultz [2004] HCA 61; (2004) 211 ALR 523; (2004) 221 CLR 400. I will adopt without restating the principles enunciated in that case as a guide to me in the determination of these transfer applications. Succinctly put, that case establishes that the decision to be taken under transfer application is a 'nuts and bolts' management decision as to which court in the pursuit of the interests of justice is the more appropriate forum to hear and determine the substantive dispute.

That decision is to be made as much as a matter of impression rather than, as in the words of Street CJ in Bankinvest AG v Seabrook (1988) 14 NSWLR 711 at 714, to be overly 'encumbered by an encrustation of judge-made pronouncements of principles'.

...

The authorities also establish that applications for transfer of this kind are not to be approached on the basis that the forum in which the proceedings are commenced has any significance in terms of creating an onus on the other party to show that some other forum is manifestly more convenient. Rather, the application to transfer is to be approached without a presumption that the forum in which the proceedings are commenced is presumptively the more appropriate and that therefore there is some onus to be overcome in order to sustain the applications for transfer. [16]

19 When making a transfer order pursuant to s 1337H(2) of the Act in Webster, Croft J also observed that the relevant principles under the cross-vesting legislation were considered by the High Court in BHP Billiton v Schultz[17] and, on the basis of that decision and subsequent decisions in this court,[18] Robson J had provided a comprehensive summary of these principles in Irwin v State of Queensland (Irwin)[19] - which were later addressed again in Smartscaff Pty Ltd v Capital Scaffolding Pty Ltd (No 1).[20] It is convenient to draw upon parts of Robson J's helpful summary in Irwin:[21]

14. The relevant principles may be summarised as:

(a) The 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.[22]

(b) It is not necessary that it should appear that the first court is a "clearly inappropriate" forum.[23] 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.[24]

(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.[25]

(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.[26]

(e) The power to exercise the jurisdiction is not a discretionary power but a mandatory obligation. No question of discretion arises.[27]

(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.[28] 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.[29] 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.[30]

(h) The appropriate court is the natural forum as determined by connecting factors to that forum.[31]

(i) Relevant connecting factors include matters of convenience and expense[32] such as availability of witnesses, the places where the parties respectively reside or carry on business, and the law covering the relevant transaction.[33]

(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.[34]

(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.[35]

(l) Factors which may be relevant to a tortious action are:[36]

(i) The place where the wrong occurred.

(ii) Residence of the parties and where it is an individual, the place where he or she resides, and in the case of a corporation where it carries on business. The latter is not necessarily its place of registration, although of course the latter is important to ensure jurisdiction.

(iii) The convenience of the parties and witnesses. However in this day and age this factor may not carry substantial weight because of the ability to move witnesses around Australia at small expense and little inconvenience, and also because the provision of evidence by audio visual link.

(iv) The law governing the proceeding.

(v) The experience of a particular court and its ability to provide an efficient and speedy trial, for example a court with a particular evidentiary and procedural rules hearing particular types of cases.

(vi) The condition of a party, for example, in a personal injury case where life expectancy of the plaintiff is limited requiring a speedy outcome.[37]

(m) As a general rule significant weight is to be attached to the place of the tortious wrong and the residence of the parties in a personal injury claim arising out of a claim in tort.[38] Where the place of the tort and the residence of the parties coincides, this will generally be determinative of the issue of the appropriate court although other factors may need to be assessed in the process of determining where the interests of justice lie.[39]

(n) A relevant factor is whether the coincidence of the lex fori[40] and the lex loci delicti[41] will avoid debates concerning substantive and procedural law.[42]

(o) The plaintiff's choice of forum by itself is not a relevant connecting factor.[43]

(p) Each case depends on its own particular facts.[44]

(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.[45]

20 I refer also to the observations of Debelle J in Dwyer[46] regarding the meaning of the expression 'interests of justice', including the need to interpret the expression broadly.[47]

21 Although I have drawn upon much of what I set out in Re Quirky Mama in the observations above, unsurprisingly the issue of the transfer of proceedings under s 1337H of the Act has been addressed in many cases since my decision in Re Quirky Mama, including for example: Shepard v Bonfante;[48] Kukulovski (as trustee for the Kukulovski Family Trust) v Arnautovic & Ors;[49] Re Farley Bay Pty Ltd (in liq);[50] Re Rock S Pty Ltd & Rock P Pty Ltd; Flood v Serra;[51] Xia Yunfen v One Funds Management Limited and Jianqiang Shao;[52] Habchi v Jayhab Developments Pty Ltd;[53] Keystone Training Group Pty Ltd v Brodrick Pty Ltd as trustee for Matousek Family Trust;[54] Ford Kinter & Associates Pty Ltd v Reliance Franchise Partners Pty Ltd (in liq);[55] and Re ISU Solutions Pty Ltd and Imprenditore Pty Ltd.[56]

22 Of particular note in this context are the recent observations of the High Court in Bogan v Estate of Smedley (Bogan)[57] regarding the contrast between the transfer regime under the Act, and the transfer regime under the cross-vesting legislation. These observations were made in the context of a transfer application regarding a class action where a group costs order had been made by the Supreme Court of Victoria. Relevantly, the observations made by the plurality regarding the different transfer regimes under the Act and the cross-vesting legislation included the following:[58]

The interests of justice for the purpose of s 1337H(2) of the Corporations Act

[67] The argument of KPMG and the director defendants that the Arrium class action GCO is irrelevant to an evaluation of the interests of justice started with an attempt to equate the operation of s 1337H(2) of the Corporations Act with the operation of s 5(2)(b)(iii) of the Cross-vesting Act considered by this Court in BHP Billiton Ltd v Schultz.[59] From there, the argument developed by attempting to extract from the reasoning in Schultz propositions said to confine the decision to transfer under s 1337H(2) to a determination of whether transfer is more appropriate having regard to the interests of justice and which would confine the interests of justice to a preponderance of "connecting factors". Excluded from consideration by a transferor court determining the interests of justice, so the argument went, are differences in the texts of State laws picked up and applied by s 79 of the Judiciary Act in the transferor court and in the transferee court, at least where those differences can be characterised as the product of different "policy choices" by different State Parliaments or can be seen to advantage one party to the corresponding disadvantage of another. Both of those exclusions were argued to be applicable.

[68] Without needing to descend into a detailed examination of Schultz, the argument is to be rejected on the basis that its starting point is misconceived. The operation of s 1337H(2) of the Corporations Act cannot be equated to the operation of s 5(2)(b)(iii) of the Cross-vesting Act.

[69] Section 5(2)(b)(iii) of the Cross-vesting Act and its cognate provisions in State cross-vesting legislation[60] are elements of "a system of cross-vesting of jurisdiction" between courts designed in relevant part to guarantee that "if a proceeding is instituted in a court that is not the appropriate court ... the proceeding will be transferred to the appropriate court".[61] To that end, s 5(2)(b)(iii) provides that "[w]here ... it appears" to the Supreme Court of a State in which any proceeding is pending that "it is ... in the interests of justice that the ... proceeding be determined by the Supreme Court of another State", the Supreme Court in which the proceeding is pending "shall transfer the ... proceeding to that other Supreme Court". Hence, the operation of 5(2)(b)(iii) is to require the Supreme Court in which a proceeding is pending "to ensure" that the proceeding is "heard in the forum dictated by the interests of justice".[62]

[70] The design of s 1337H(2) of the Corporations Act, in contrast, is both more narrowly focused and more flexible. The design is to facilitate the transfer of a proceeding, or of an application in a proceeding, with respect to a civil matter arising under the Corporations legislation between designated courts all of which have the same federal jurisdiction with respect to the matter under s 1337B(1) or (2) of the Corporations Act and each of which is bound in the exercise of that jurisdiction by the text of a law of the State in which the exercise of jurisdiction occurs as picked up and applied as a Commonwealth law by s 79 of the Judiciary Act except as otherwise provided by the Constitution or a Commonwealth law. To that markedly different end, s 1337H(2) provides that "if it appears" to one such court in which a proceeding with respect to such a matter is pending "that, having regard to the interests of justice, it is more appropriate for ... the relevant proceeding ... or ... application ... to be determined by another [such] court" then "the transferor court may transfer the relevant proceeding or application to that other court".

[71] Far from requiring the Supreme Court of one State to ensure that the relevant proceeding or application is heard in the Supreme Court of another State if but only if the interests of justice "dictate" that it be heard in the Supreme Court of that other State, s 1337H(2) of the Corporations Act confers on the Supreme Court a discretion. The discretion is connoted by use of the expression "may transfer"[63] in contradistinction to the expression "shall transfer" in s 5(2)(b)(iii) of the Cross‑vesting Act. The discretion is to transfer the proceeding or application to such other court, being the Federal Court or another Supreme Court, as might appear to the Supreme Court as the transferor court to be "more appropriate" to determine the proceeding or application "having regard" to the interests of justice and "having regard" as well to the mandatory considerations set out in s 1337L.

[72] The requirement of s 1337H(2) of the Corporations Act that the transferor court "have regard" to the interests of justice in exercising the discretion to transfer the proceeding or application to another court requires the transferor court to consider the interests of justice and to treat the interests of justice as "a fundamental element"[64] in exercising the discretion. The requirement does not confine the considerations able to be taken into account by the transferor court to the interests of justice.

[73] Unquestionably, the discretion to transfer the proceeding or application conferred by s 1337H(2) of the Corporations Act would not properly be exercised contrary to the transferor court's evaluation of the interests of justice. Where the interests of justice are evaluated as neutral or equivocal, however, the discretion is open to be exercised by reference to more pragmatic considerations bearing on the appropriateness of transfer which can include convenience of the parties or the court.

23 As mentioned, the plaintiff relied upon its written outline of submissions as supplemented by oral submissions from counsel, to which I refer, although I will not set out in detail. Briefly and in substance, the plaintiff's submissions and observations included the following:

1. There was a basis upon which the Court could exercise its discretion to transfer the proceeding of its own motion.

2. Having considered the evidence and submissions of the defendants, the plaintiff was 'agnostic' with respect to the transfer and did not oppose it.

3. It was accepted that in one of the Related Proceedings the plaintiff admitted the validity or enforceability of the Accession Deed, which is inconsistent with the plaintiff's position in this proceeding, and that it will be necessary (and is proposed) to seek leave to withdraw that admission in the relevant Related Proceeding.

4. It was accepted that, as things stand, the central issue in this proceeding is the validity/enforceability (or otherwise) of the Accession Deed (Accession Deed Issue) and that this will be in issue in the Related Proceedings in which the plaintiff and others are parties.

5. It was accepted that if the Accession Deed Issue is addressed between the parties in this proceeding in the Supreme Court of Victoria, and remained to be addressed in the Related Proceedings in respect of other parties, there is a risk of inconsistent findings.

24 The defendants relied upon their written submissions, as supplemented orally by counsel, again to which I refer but will not set out in detail. Briefly and in substance the defendants' submissions and observations included the following:

1. There were related proceedings in the Federal Court as referred to in Mr Tracy's second affidavit.

2. It was a clear case where the interests of justice required the transfer of this proceeding to the Federal Court, and that a failure to transfer will bring with it a material risk of inconsistent findings given that the Accession Deed Issue will need to be considered in the Related Proceedings.

3. Cost savings and other efficiencies, including in respect of the use of judicial resources, will follow if this proceeding is transferred to the Federal Court.

4. The transfer to the Federal Court should occur swiftly so that this proceeding is before the Federal Court in advance of a hearing in the Federal Court on 18 February 2026 of an approval application by the liquidators in respect of an interim distribution (Interim Distribution Application).

25 Section 1337H of the Act applies because, as required by s 1337H(1), this Court is a State Supreme Court and the proceeding is a proceeding regarding a civil matter arising under the 'Corporations legislation'. This is because in this proceeding the plaintiff seeks relief pursuant to the Corporations Regulations, the Corporations Rules, and the Insolvency Schedule as earlier referred to. This was common ground between the parties.

26 I add for completeness that, by reason of the terms and operation of s 3A of the Cross‑vesting Act (Vic), that Act does not apply. This is because s 3A provides that the Cross-vesting Act (Vic) does not apply to matters to which div 1 of pt 9.6A of the Act 'deals'. Section 1337H is part of div 1 of pt 9.6A of the Act and because it applies in this case, s 3A of the Cross-vesting Act (Vic) operates to make the Cross‑vesting Act (Vic) inapplicable. Similarly, by reason of the terms and operation of s 1337A(2) of the Act, div 1 of pt 9.6A of the Act operates to the exclusion of the Cross-vesting Act (Cth).

27 The Court's discretion under s 1337H(2) of the Act to transfer the proceeding to the Federal Court is enlivened where it appears to the Court that, having regard to the interests of justice, it is more appropriate for the proceeding to be determined by the Federal Court, noting also that the Federal Court has the jurisdiction to determine the issues in the proceeding. Consequently, it is to this issue that I turn first. In so doing, I am mindful of the principles and observations earlier referred to, including the recent observations of the plurality of the High Court in Bogan.[65]

28 It was agreed between the parties that the principal place of business of each of the plaintiff and Keystone is Victoria, and that Victoria is the place where the events the subject of this proceeding took place. As required by s 1337L of the Act, I take these matters into account, noting further that counsel for each of the parties regarded these matters to be 'neutral' factors to the interests of justice and the transfer question in this case. I agree.

29 As also required by s 1337L of the Act, I take into account that the Federal Court has jurisdiction to deal with the issues in this proceeding, which was not in issue between the parties.

30 With respect to other relevant factors, and again taking into account the principles and observations earlier referred to, but being cognisant that each case very much depends upon its own facts, I have concluded that in the circumstances, it does appear that, having regard to the interests of justice, it is more appropriate for this proceeding to be determined by the Federal Court. With respect to relevant factors or circumstances additional to those mentioned above, I make the following observations.

31 First, I note that counsel for the plaintiff responsibly acknowledged in the plaintiff's written and oral submissions that there was a basis upon which the proceeding can be transferred to the Federal Court. Counsel for the defendants agreed and submitted that this was not only possible, but necessary. That said, although it is legitimate and appropriate to take into account as a relevant consideration the position of each of the parties, it remains for the Court to consider and determine the position as required by s 1337H(2) of the Act.

32 Second, the evidence and submissions revealed, and it was common ground, that the Accession Deed Issue is the key issue in this proceeding and that it will also arise in the Related Proceedings in the Federal Court.

33 Third, if the Accession Deed Issue is decided in this proceeding it will be decided only between the plaintiff and the defendants in this proceeding, which will not bind the other parties in the Related Proceedings, of which there are many. Further, the determination of the Accession Deed Issue in this proceeding would not result in the removal of the issue from the Related Proceedings in the Federal Court.

34 Fourth, and as the defendants persuasively submitted, if the Accession Deed Issue is determined in this Court in this proceeding then, as things stand, a material risk of inconsistent findings in relation to the Accession Deed Issue arises. In the present circumstances this risk is real and not remote.

35 Fifth, and as was common ground to some extent, I accept that if the proceeding is transferred to the Federal Court there will likely be efficiencies, including in connection with court resources. I also accept that if the proceeding is transferred there is some potential for future cost savings for each of the parties, although I am not confident that any cost savings that may ultimately emerge will be material.

36 Sixth, the Related Proceedings are being conducted out of the Victorian registry of the Federal Court and there was no suggestion of any prejudice being suffered by any party if the proceeding was to be transferred to the Federal Court. It was also not suggested by any party that there will or may be difficulties with witnesses or legal representation, or other aspects of inconvenience, if the proceeding is transferred to the Federal Court rather than remaining in this Court.

37 Seventh, no issue arises regarding the law governing the subject matter of this proceeding, whether in terms of one court or the other having a lesser or greater expertise or experience, or on any other basis.

38 Eighth, there was no suggestion that any questions of timing relevantly differ between the courts so as to militate in favour of this Court or the Federal Court. Further, there was evidence and submissions regarding the Interim Distribution Application in the Federal Court on 18 February 2026, and I accept, as was common ground, that it is desirable for the transfer question to be determined expeditiously, with a view to any transfer being made prior to 18 February 2026 if it is determined that the proceeding should be transferred to the Federal Court.

39 Ninth, if the proceeding is transferred it will not operate to hold up the progress of the interlocutory steps required to be undertaken in this proceeding leading up to the hearing of the appeal the subject of this proceeding. This is because directions have previously been made regarding the filing and service of relevant material, including affidavits and submissions, and additional directions can be made in conjunction with any transfer order so as to further progress the steps necessary to prepare the matter for hearing.

40 Having regard to the evidence, the submissions, and the principles and observations earlier referred to, in the circumstances it appears clearly that it is more appropriate for this proceeding to be transferred to the Federal Court rather than to remain in this Court. Consequently, the Court's discretion under s 1337H(2) of the Act to transfer the proceeding to the Federal Court is enlivened.

41 In this case the matters that I have referred to above are also relevant to the exercise of the Court's discretion. I also take into account that neither party submitted that there are factors that weigh against the exercise of the Court's discretion in favour of a transfer. So much was unsurprising, noting also that the evidence did not disclose any matters that, alone or in combination with any other circumstances, weigh against exercising the Court's discretion in favour of a transfer.

42 The end point is that, having regard to the relevant circumstances, it is in my view clear that the Court should transfer this proceeding to the Federal Court and that this transfer should take place in advance of the Interim Distribution Application in the Federal Court.

43 Having regard to the evidence of the history of the Related Proceedings in the Federal Court, including the period over which they have been addressed, I further observe that adopting the course that I propose to take sits comfortably with the Court's obligation under s 1337G of the Act to act in aid of, and be auxiliary to other courts in civil matters arising under the Corporations legislation.[66]

44 This proceeding should be transferred to the Federal Court pursuant to s 1337H(2) of the Act and an order will be made to that effect. I will also reserve the costs of the proceeding.

45 I also propose to address with counsel for the parties the further directions that should be made to advance the interlocutory steps in the proceeding, but noting that after the proceeding has been transferred to the Federal Court, it will be open to the parties to make such applications in the Federal Court regarding the future conduct of the proceeding as they may be advised.

46 After delivering my ruling orally on 4 February 2026 shortly after the conclusion of the hearing, counsel for the parties were invited to confer and provide to the Court agreed proposed orders to facilitate the transfer of the proceeding to the Federal Court and to progress the further interlocutory steps.

[1] But otherwise reserved their position in respect of Rejection Ground 6 for all other purposes, which counsel for the defendants confirmed during the hearing was a cautionary reservation of rights and not directed towards a particular currently known circumstance.

[2] [2021] VSC 514, [5]-[11].

[3] [2015] VSC 613.

[4] [2017] VSC 249 (Webster).

[5] [2005] SASC 24; (2005) 52 ACSR 335, [13]-[14].

[6] [2007] WASC 246 (Resource Equities).

[7] Dwyer v Hindal Corporate Pty Ltd [2005] SASC 24; (2005) 52 ACSR 335, [13]-[14] (Debelle J).

[9] BHP Billiton Limited v Schultz (2004) 221 CLR 400, [7]-[11] (Gleeson CJ, McHugh and Heydon JJ) (Schultz); Irwin v State of Queensland [2011] VSC 291, [14(b)] (Irwin).

[10] Schultz, [13]; Irwin, [14(g)].

[13] Bourke v State Bank of New South Wales (1988) 22 FCR 378, 394 (Wilcox J).

[14] Schultz, [21]; James Hardie & Coy Pty Ltd v Barry [2000] NSWCA 353; (2000) 50 NSWLR 357, [15]-[20] (Spigelman CJ) and [112] (Mason JA) (James Hardie).

[15] [2007] WASC 246.

[18] These cases include: Ewins v BHP Billiton Limited [2005] VSC 4 (Ewins); Hall v Australian Finance Direct Ltd [2005] VSC 306; Slater & Gordon Pty Ltd v Porteus [2005] VSC 398; McLeod v Munro [2005] VSC 375; Simpson v Francke [2006] VSC 200; Holt v Rorehan [2006] VSC 148; Eden v Amaca Pty Ltd [2007] VSC 374 (Eden); Kellow v Irish Murphy's Pty Ltd [2010] VSC 239; Lloyd v Riverland Regional Health Services Inc [2010] VSC 350; and Irwin.

[19] [2011] VSC 291.

[20] [2017] VSC 606.

[21] [2011] VSC 291, [14].

[22] Schultz, [14] per Gleeson CJ, McHugh and Heydon JJ and at [17] per Gummow J (with whom Hayne J agreed); and Ewins, [16].

[23] The reference to a 'clearly inappropriate' forum is the test adopted by the High Court of Australia in Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55; (1990) 171 CLR 538 that should be applied in an application to stay a proceedings on the grounds of forum non conveniens. In Schultz, [7]-[11] Gleeson CJ, McHugh and Heydon JJ distinguish between the test to be applied in such an application and the test that should be applied in an application under the Jurisdiction of Courts (Cross-vesting) Act 1987.

[25] Schultz, [14] per Gleeson CJ, McHugh and Heydon JJ when distinguishing between an application for a stay on the ground of forum non conveniens and an application under the Act.

[26] Schultz, [15] per Gleeson CJ, McHugh and Heydon JJ.

[27] Schultz, [62]-[63] per Gummow J (with whom Hayne J agreed); Ewins, [17].

[28] Schultz, [71] per Gummow J (with whom Hayne J agreed).

[29] Schultz, [71] per Gummow J (with whom Hayne J agreed); Bankinvest AG v Seabrook (1988) 14 NSWLR 711 per Rogers AJA at 727 (Bankinvest). In Ewins, [23] Gillard J held that although persuasive it was not adopted by the majority of the High Court. He said he was not prepared to accept that it represents the law.

[30] Bankinvest at 714 per Street CJ; approved in Schultz, [13] per Gleeson CJ, McHugh and Heydon JJ.

[31] Schultz, [10] per Gleeson CJ, McHugh and Heydon JJ; Spiliada Maritime Corp v Cansulex Ltd [1986] UKHL 10; [1987] AC 460 the House of Lords (Spiliada); Ewins, [31].

[32] Preamble to the Act 'Whereas inconvenience and expense have ...'.

[33] Schultz, [18]-[19] per Gleeson CJ, McHugh and Heydon JJ.

[34] Schultz, [19] per Gleeson CJ, McHugh and Heydon JJ.

[39] James Hardie at 361 per Spigelman CJ.

[42] Schultz, 262 per Gummow J (with whom Hayne J agreed).

[43] Schultz; Ewins, [12]. Gummow J said at [77] in Schultz 'The phrase "otherwise in the interests of justice" in sub para (iii) of s 5(2)(b) of the Cross-vesting Act requires the Supreme Court to determine a transfer application by identifying the more appropriate forum without any specific emphasis in favour of the choice of forum made by the plaintiff.'

[46] [2005] SASC 24; (2005) 52 ACSR 335, [16]-[17].

[47] These observations were also referred to (and set out) by Croft J in Webster.

[48] [2020] FCA 1618.

[49] [2022] VSC 291.

[50] [2022] VSC 604.

[51] [2024] VSC 362.

[52] [2024] VSC 555.

[53] [2024] FCA 926.

[54] [2024] WASC 497.

[55] [2024] FCA 868.

[56] [2025] VSC 191.

[57] [2025] HCA 7; (2025) 422 ALR 94.

[58] Bogan [2025] HCA 7, [67]-[75] (Gageler CJ, Gordon, Gleeson, Jagot and Beech-Jones JJ).

[60] Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW), s 5(2)(b)(iii); Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic), s 5(2)(b)(iii); Jurisdiction of Courts (Cross-vesting) Act 1987 (SA), s 5(2)(b)(iii); Jurisdiction of Courts (Cross-vesting) Act 1987 (Qld), s 5(2)(b)(iii); Jurisdiction of Courts (Cross-vesting) Act 1987 (WA), s 5(2)(b)(iii); Jurisdiction of Courts (Cross-vesting) Act 1987 (Tas), s 5(2)(b)(iii).

[61] Preamble to the Cross-vesting Act.

[62] BHP Billiton Ltd v Schultz (2004) 221 CLR 400, 421 [14].

[63] See s 33(2A) of the Acts Interpretation Act 1901 (Cth), inserted by Sch 1 to the Statute Law (Miscellaneous Provisions) Act 1987 (Cth).

[64] R v Hunt; Ex parte Sean Investments Pty Ltd [1979] HCA 32; (1979) 180 CLR 322 at 329.

[65] [2025] HCA 7; (2025) 422 ALR 94.

[66] Although of course this does not detract from the requirement that the Court be satisfied of the matters referred to in s 1337H(2) of the Act to enliven the Court's discretion, or the obligation and thereafter to exercise that discretion judicially.