Sapphire Suite Pty Ltd v Bellini Lounge Pty Ltd

Judgment

1. HIS HONOUR: By summons filed on 22 May 2018, the plaintiff seeks an order pursuant to s 140 of the Civil Procedure Act 2005 that certain District Court proceedings be transferred to this Court, upon the basis that there is a serious question as to whether the District Court has jurisdiction to hear and determine the action. Although I have not been provided with a copy of the originating process in the District Court, I am informed by Mr Maconachie of counsel for the plaintiff in this Court and in the District Court that the plaintiff sues the second and third defendants as guarantors of the obligations of the first defendant as the lessee of certain premises from the plaintiff.
2. The proceedings were commenced in the District Court by statement of claim filed in the District Court on 22 March 2016. An amended statement of claim was filed on 9 May 2017. The lease which is the subject of the claim took effect from 1 February 2015.
3. The plaintiff obtained judgment against the first defendant for $190,703.36. That judgment remains wholly unsatisfied by the first defendant. The proceedings have resolved as between the plaintiff and the third defendant. The plaintiff's claim against the second defendant is the only remaining issue for determination.
4. The proceedings were originally called on in the District Court for hearing on 1 May 2018. The second defendant did not appear and the trial judge proceeded ex parte. However, his Honour questioned the jurisdiction of the District Court to determine the action having regard to the terms of s 44(1)(a) of the District Court Act 1973, which relevantly provides as follows: "44 Actions (1) Subject to this Act, the Court has jurisdiction to hear and dispose of the following actions: (a) any action of a kind: (i) which, if brought in the Supreme Court, would be assigned to the Common Law Division of that Court, and (ii) in which the amount (if any) claimed does not exceed the Court's jurisdictional limit, whether on a balance of account or after an admitted set-off or otherwise, other than an action referred to in paragraph (d) or (e),…"