HIS HONOUR: On a motion, notice of which was filed 30 September 2014, the defendant, Alternate Lending Ltd, applies to the Court pursuant to the terms of s 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) for these proceedings to be transferred to the Supreme Court of Victoria. It has been made clear in the course of the submissions by the defendant that their ultimate desire is for the matter to be transferred to the Supreme Court of Victoria, whereupon the matter will be transferred to the County Court of Victoria to be heard in or around Mildura.
The parties have cooperated in the submissions to be put to the Court, for which I am grateful, and there is little or no difference between the parties as to the principles to be applied in determining the issues that the Court is required to address. The Court, on a transfer under the Jurisdiction of Courts (Cross-Vesting) Act, is not concerned with the old common law of determining whether this Court is a forum non conveniens and whether it cannot adequately deal with the matters before it. Plainly, the Court is capable of dealing with the matters that are before it in this case.
Rather, the issue is one that is determined by the interests of justice. The principles relevant to this matter have been the subject of adumbration by the High Court and I refer in particular to the judgment of the High Court in BHP Billiton Ltd v Schultz [2004] HCA 6; (2004) 221 CLR 400.
"[13] In Bankinvest, Street CJ said:
The cross-vesting legislation passed by the Commonwealth, the States and the Territories both conferred on each of the ten courts Australia-wide jurisdiction and set up the mechanism regulating the transferring of proceedings from one of these ten courts to another. In relation to transfer, the common policy reflected in each of the individual enactments is that there must be a judicial determination by the court in which proceedings are commenced either to transfer or not to transfer the proceedings to one of the other nine based, broadly speaking, upon consideration of the interests of justice … It calls for what I might describe as a 'nuts and bolts' management decision as to which court, in the pursuit of the interests of justice, is the more appropriate to hear and determine the substantive dispute.
[14] In the context of the Cross-vesting Act, one 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. An application for transfer under s 5 of the Cross-vesting Act is brought upon the hypothesis that the jurisdiction of the court to which the application is made has been regularly invoked. If it appears to that court that it is in the interests of justice that the proceedings be determined by another designated court, then the first court 'shall transfer' the proceedings to that other court. There is a statutory requirement to exercise the power of transfer whenever it appears that it is in the interests of justice that it should be exercised. It is not necessary that it should appear that the first court is a 'clearly inappropriate' forum. It is both necessary and sufficient that, in the interests of justice, the second court is more appropriate.
[18] There is nothing unusual, either in the State or the federal judicature, about actions between residents of different Australian law areas. Federal diversity jurisdiction is an obvious example. Actions in New South Wales courts are commonly brought by residents of other States, especially when the residence or principal place of business of the defendant is New South Wales. Reference is sometimes made to one forum or another being the 'natural forum'. Such a description is usually based upon a consideration of 'connecting factors', described by Lord Goff in Spiliada as including matters of convenience and expense, such as availability of witnesses, the places where the parties respectively reside or carry on business, and the law governing the relevant transaction. Lord Templeman described such factors as "legion", and said that it was difficult to find clear guidance as to how they are to be weighed in a particular case. Thus, New South Wales might well be the "natural forum" for an action for damages brought by a passenger in a motor vehicle against the driver if they were both residents of New South Wales, even though the injury resulted from a collision that occurred on the other side of the Queensland or Victorian border.
[19] In many cases, there will be such a preponderance of connecting factors with one forum that it can readily be identified as the most appropriate, or natural, forum. In other cases, there might be significant connecting factors with each of two different forums. Some of the factors might cancel each other out. If the action is between two individuals, and the plaintiff resides in one law area and the defendant in another, there may be no reason to treat the residence of either party as determinative, although, as already noted, it will ordinarily be the residence of the defendant that is important to establish jurisdiction. Weighing considerations of cost, expense, and convenience, even when they conflict, is a familiar aspect of the kind of case management involved in many cross-vesting applications."
I have also been referred to the judgment of Brereton J in Valkeski v Valkeski [2007] NSWSC 440; (2007) 70 NSWLR 36 and the judgment of Robb J in Perpetual Trustee Co Ltd as Custodian for Balmain Aqua Construction Debt Pool and Balmain Aqua Mezzanine Debt Pool v Batt [2014] NSWSC 1211. The principles are, as I said, not in issue. The question is whether the defendant has shown that it is in the interests of justice for the matter to be transferred from this Court, where it has been commenced, to Victoria.
In my view, no distinction ought to be drawn between whether it should be transferred for the ultimate hearing in the Victorian Supreme Court or by the County Court in Victoria if each of them has, and I assume they do, jurisdiction to hear the matter. Ultimately, it is a question of convenience, although some preference should be given to the County Court in Victoria because in that case the matter can be heard in Mildura where some, at least, of the witnesses are located.
There are, it seems, four fundamental issues in the case. The first is the validity or otherwise of the guarantee upon which the plaintiff sues. The applicable law to the guarantee is the law of Victoria, but I have heard nothing to suggest that the applicable law in the State of Victoria is different or substantially different from that which applies in the State of New South Wales. It is admitted on the pleadings that the guarantee was signed.
The second aspect is the issue of fact associated with the indebtedness of the original customer to the plaintiff. The guarantee relates to an indebtedness that arises from the provision of twenty five vehicles and a finance arrangement between Toyota Finance Ltd, the plaintiff, and the customer.
As I understand the defendant's case and on the material that I have available, it is said that three of the twenty five vehicles were not delivered, as a consequence of which the indebtedness did not arise in relation to those there vehicles and, therefore, the guarantee does not go to those three vehicles.
The third issue is whether the vehicles were subsequently sold at market value, which is, in essence, an accounting exercise and based, as it must be, on expert evidence.
The fourth issue is unconscionability, both at common law and under Commonwealth legislation. There is one aspect of the defence to the amended statement of claim which ought to be explained. In [6H] of the defence to the Amended Statement of Claim, the defendant relies on s 126 of the Instruments Act 1958 (Vic). That is the only Victorian legislation upon which either the plaintiff or the defendant relies. That particular arises only in circumstances where the disputed further guarantee purports to incorporate the annexed guarantee and the plaintiff has made it clear in the proceedings before me that it is not suggested that the annexed guarantee is a document upon which the plaintiff sues. As a consequence, there is no special legislation promulgated by the Victorian legislature affecting liability or damages relevant to the proceedings.
The question, therefore, ultimately relies upon the location of witnesses, or potential witnesses, some of whom are in Mildura and others, some of whom are elsewhere in the State of Victoria.
As I said earlier, there were three vehicles for which, at the moment, there is some cause to suggest, on the defendant's part, that delivery did not occur. There are twenty five vehicles which have given rise to the debt, which is said to be guaranteed.
All of the plaintiff's witnesses are in Sydney. The plaintiff commenced in Sydney, although I do not believe, and I do not take the view, that commencement is a particularly relevant consideration in determining the matters under the Jurisdiction of Courts (Cross Vesting) Act.
While I accept that the location of witnesses in Victoria in relation to the allegedly undelivered vehicles is a matter that I am required to take into account, and I do take it into account, I consider that there is a degree of exaggeration as to the number of those witnesses that would be required. Otherwise the matter is essentially a documentary case.
The matter is worth over a million dollars. It relates to finance that was provided for the purchase of trucks and, it seems to me, it is a matter that requires the Court to deal with expeditiously. By that I do not suggest that the Victorian courts would not, likewise, deal with the matter expeditiously. However, the matter has already been delayed by the very nature of the application for transfer.
In the scheme of things, the issues seem to relate almost entirely to the location of witnesses who in this day and age can as readily, or almost as readily, appear in Sydney, or any other state for that matter as they can anywhere else. We know how difficult it is in any proceedings to arrange for witnesses to be at court and often it requires a whole day, whether or not the matter is heard locally or interstate.
There is nothing put by the defendant, on evidence or otherwise, to suggest that if the matter were held in Sydney the witnesses would be unavailable or even inconvenienced.
In those circumstances, I do not consider that the defendant has established that it is in the interests of justice to transfer the proceedings. It also seems to me that the matter ought to be expedited and directions issue that will bring the matter back before the Court to enable the matter to be heard as quickly as possible.
In those circumstances, the Court makes the following orders:
1. The motion filed 30 September 2014 is dismissed;
2. The plaintiff shall file and serve a defence to the cross-claim and any reply to the defence to the amended statement of claim within 14 day of the date thereof 4pm 28 August 2015;
3. Evidence shall proceed by way of affidavit;
4. The plaintiff shall file and serve its affidavits by 4pm 4 September 2015;
5. The defendant shall file and serve its affidavits by 4pm 25 September 2015;
6. The plaintiff shall file and serve any affidavits in reply by 4pm 9 October 2015;
7. The matter will be relisted before the Registrar for directions and/or obtaining of hearing dates on 16 October 2015.
8. The parties have liberty to apply on 3 working days' notice;
9. The defendant shall pay the plaintiff's costs of and incidental to the motion.
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Decision last updated: 24 September 2015