Traderight Pty Ltd v Bank of Queensland Ltd; Bank of Queensland Ltd v... [2010] NSWSC 1502 | Case summary

Traderight Pty Ltd v Bank of Queensland Ltd; Bank of Queensland Ltd v... [2010] NSWSC 1502 | Case summary | Zoe

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Bank of Queensland v Jones [2001] QSC 322 Bankinvest AG v Seabrook (1988) 14 NSWLR 711 Bell Wholesale Co Pty Ltd v Gates Export Corporation (1984) 2 FCR 1 BHP Billiton Ltd v Schultz [2004] HCA 61; 221 CLR 400; 211 ALR 523; 79 ALJR 348 Bond Holdings Ltd (1990) 1 WAR 465 Bryan E Fencott & Associates Pty Ltd v Eretta Pty Ltd (1987) 16 FCR 497 Brocklebank & Co v The King Lynn Steamship (1878) 3 CPD 365 Brunner v Greenslade [1971] Ch 993 Buckley v Bennell Design & Construction Pty Ltd (1974) 1 ACLR 301 Chartspike Pty Ltd v Lahoud [2001] NSWSC 585 Commonwealth v Cockatoo Dockyard Pty Ltd [2003] NSWCA 192 Corbett Court Pty Limited v Quasar Constructions (NSW) Pty Limited [2008] NSWSC 1423 Elite Protective Personnel Pty Limited v Salmon (No 2) [2007] NSWCA 322 DJZ Construction v C Prichard Group [2009] NSWSC 359 Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (No 3) (1998) 30 ACSR 20 Fiduciary v Morningstar Research Pty Ltd (2002) 55 NSWLR 1 Flower & Hart (a firm) v White Industries (Qld) Pty Ltd (1999) 87 FCR134 Guardian Group Australia Pty Ltd v Alice Lu [2005] NSWSC 1299 Green (as liquidator of Arim Co Mining Pty Ltd) v CGU Insurance Ltd [2008] NSWSC 148 Harrison v Schipp [2001] NSWCA 13; NMSM Property Pty Ltd v Citibank Ltd (No 11) (2001) 109 FCR 77; 187 ALR 654 Henry v Henry (1995-1996) 185 CLR 571 Hessian v Century 21 South Pacific Ltd (1992) 28 NSWLR 120 Idoport Pty Ltd v National Australia Bank [2001] NSWSC 744 Jazabas v Haddad [2006] NSWSC 880 KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189; 13 ALC 437 Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534; (1990) 97 ALR 45 Lavender View v North Sydney Council (No 2) [1999] NSWSC 775 CASES CITED : Leallee v the Commissioner of the NSW Department of Corrective Services [2009] NSWSC 518 Mala Pty Ltd v Johnston (1995) 13 ACLC 100 McHenry v Lewis (1881) Ch D 397 Memetu v Lissenden (1983) 8 ACLR 364 Moore v Inglis (1976) 50 ALJR 589; (1976) 9 ALR 509 Nestle Australia Ltd v Commissioner of Taxation (1987) 16 FCR 167 NMSM Property Pty Ltd v Citibank Ltd (No 11) (2001) 109 FCR 77; 187 ALR 654 Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 Ohn v Walton (1995) 36 NSWLR 77 Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72; (1998) 152 ALR 83 Owners Strata Plan No 64970 v Austruc Constructions Ltd (in liq) (No 5) [2010] NSWSC 568 Portfolio Projects Pty Ltd v Oakes Building Co (1987) 5 ACLC 904 Rajski v Bainton [1991] NSWCA 231 Roache v News Group Newspapers [1992} TLR 551 Roy Morgan Research Centre Pty Ltd v Wilson Market Research Pty Ltd (1996) 39 NSWLR 311 Sahab Holdings Pty Ltd v Registrar-General and Anor [No 3] [2010] NSWSC 403 Sent v Jet Corporation (1984) 2 FCR 201 Slough Estates Ltd v Slough Borough Council [1968] Ch 299 Spiliada Martime Corp v Cansulex Ltd [1987] AC 460 Southern Cross Exploration NL v Fire & All Risks Insurance Co Ltd (1985) 1 NSWLR 114 Timms v Clift [1998] 2 Qd R 100 Thames Launches Ltd v Trinity House Corporation of Deptford Strond [1961] Ch 197 Uniline Australia Ltd (ACN 010 752 057) v Sbriggs Pty Ltd (ACN 007 415 518) and Another (No 2) [2009] FCA 920; (2009) 82 IPR 56 United Pacific Finance Pty Ltd v Tarrant [2009] NSWSC 630 Union Shipping New Zealand Limited v Morgan (2002) 54 NSWLR 690 Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55; (1990) 171 CLR 538 Wentworth v Wentworth (NSWCA 21 February 1996, unreported) Windsurfing International Incorporated v Petit (1987) AIPC 90-441

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Traderight Pty Ltd (First Plaintiff in 06/258216 and First Defendant in 06/258225) Bronwyn Smith (Second Plaintiff in 06/258216 and Second Defendant in 06/258225) Geoffrey Versace (Third Plaintiff in 06/258216 and Third Defendant in 06/258225) Smith Partners Development (Fourth Plaintiff in 06/258216) Verich Holdings (Fifth Plaintiff in 06/258216) Bank of Queensland Ltd (Defendant in 06/258216; Plaintiff in 06/258225; First Defendant in 09/287824; First Defendant in 09/282126; First Plaintiff in 08/279848 and Defendant in 08/281332, 10/305568, 10/304306, 10/306022, 10/367117, 10/367086) Jude Financial Services Pty Ltd (First Plaintiff in 09/287824) Russell Jude Edward Gardner (Second Plaintiff in 09/287824) Penelope Ann Gardner (Third Plaintiff in 09/287824) David Liddy (Second Defendant in 09/287824; Second Defendant in 08/282126 and Second Plaintiff in 08/279848) Rossmick No 1 Pty Ltd (First Plaintiff in 09/282126) Rossmick No 2 Pty Ltd (Second Plaintiff in 09/282126) Michael Bradley (Third Plaintiff in 08/282126) Ross Chapman (Fourth Plaintiff in 08/282126) Luke Nolan (Fifth Plaintiff in 08/282126) SME Business Assist Pty Ltd (First Defendant in 08/279848) Scott Rolfe McCoy (Second Defendant in 08/279848) Geraghty & Palmer Pty Ltd (First Plaintiff in 08/281332) PARTIES : Shauna Geraghty (Second Plaintiff in 08/281332) Barry Palmer (Third Plaintiff in 08/281332) Donna Quinn (Third Defendant in 09/287824) Gary Allsop (Fourth Defendant in 09/287824) Best Deal Pty Ltd (First Plaintiff in 10/305568) Jeffrey Bruce Jones (Second Plaintiff in 10/305568) Southpole Financial Services Pty Ltd (First Plaintiff in 10/304306) Harunur Rashid Chowdhury (Second Plaintiff in 10/304306) Iftekhar Tarek Hassan (Third Plaintiff in 10/304306) Ikthedar Hassan Murad (Fourth Plaintiff in 10/304306) LJH Group Pty Ltd (First Plaintiff in 10/306022) Leslie Xu (Second Plaintiff in 10/306022) Jin Yu Yang (Third Plaintiff in 10/306022) Shamarbre Pty Ltd (First Plaintiff in 10/367117) Ronald George Johnson (Second Plaintiff in 10/367117) Leokate Pty Ltd (First Plaintiff in 10/367086) Stephen John Sargent (Second Plaintiff in 10/367086)

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08/279848 BANK OF QUEENSLAND LTD v SME BUSINESS ASSIST PTY LTD 06/258216 TRADERIGHT (NSW) PTY LTD v BANK OF QUEENSLAND LTD 08/281332 GERAGHTY & PALMER (NSW) PTY LTD v BANK OF QUEENSLAND LTD 06/258225 BANK OF QUEENSLAND LTD v TRADERIGHT (NSW) PTY LTD 08/282304 JUDE FINANCIAL SERVICES PTY LTD v BANK OF QUEENSLAND LTD 09/287360 BANK OF QUEENSLAND LTD v INDUSTRIAL COURT OF NEW SOUTH WALES 09/287362 ROSSMICK NO 1 PTY LTD v BANK OF QUEENSLAND LTD 09/287824 JUDE FINANCIAL SERVICES PTY LTD v BANK OF QUEENSLAND LTD 09/287814 SME BUSINESS ASSIST PTY LTD v BANK OF QUEENSLAND LTD 08/282916 ROSSMICK NO 1 PTY LTD v DAVID LIDDY 08/282126 ROSSMICK NO.1 PTY LTD v BANK OF QUEENSLAND LTD 10/305568 BEST DEAL PTY LTD v BANK OF QUEENSLAND LTD 10/304306 SOUTHPOLE FINANCIAL SERVICES PTY LTD v BANK OF QUEENSLAND LTD 10/306022 LJH GROUP PTY LTD v BANK OF QUEENSLAND LTD 10/367117 SHAMARBRE PTY LTD V BANK OF QUEENSLAND LTD 10/367086 LEOKATE PTY LTD V BANK OF QUEENSLAND JUDGMENT 1 HER HONOUR: Before me on 7 December 2010 were a number of applications brought in relation to a series of matters which have been under case management by me since late 2008, together with applications in relation to five additional matters which have been commenced in this Court in recent months. 2 The matters which have been under case management by me (the Traderight, Rossmick, JFS, SME and Geraghty matters), a number of which had been commenced in other tribunals and jurisdictions and later cross-vested to this Court, broadly comprise disputes in relation to five separate Bank of Queensland franchises. I will refer to these as the "Existing BOQ matters". The disputes in those proceedings are between the Bank of Queensland and parties associated with it (the BOQ parties) and various Bank of Queensland franchisees (to whom I have previously referred as the OMB parties, and to whom I will in these reasons, where there is a need to distinguish them from the franchisees who have commenced the new proceedings, refer as the "Existing OMB parties"). I will refer to the five sets of proceedings that have recently been commenced in this Court as the "New BOQ matters" (and I will refer to the franchisees and individual guarantors who are the plaintiffs in those proceedings, where necessary to distinguish them from the Existing OMB parties, as the "New OMB parties"). 3 The New BOQ matters generally involve similar disputes in relation to other Bank of Queensland franchises (although in one case in relation to the same franchise as an earlier claim in one of the Existing BOQ matters). Of the five New BOQ matters, three (which may briefly be described as the Southpole, LJH Group and Best Deal proceedings) involve disputes between the individual (though not the corporate) OMB plaintiffs and the BOQ parties that are already the subject of proceedings brought by the Bank of Queensland in the Supreme Court of Queensland. I refer to these three matters in this Court as the "Guarantor proceedings" and the corresponding proceedings in the Queensland Supreme Court as the "Qld proceedings". 4 It seems fair to say that the history of the disputes between the BOQ parties and the Existing OMB parties to date is one that has been marked by the commencement of proceedings in various courts and tribunals and by the attempt by the Existing OMB parties have attempted (largely successfully but generally over the opposition of the BOQ parties) to collect and have heard together in the one forum all of those cases in which representations are alleged to have been made by the BOQ parties to prospective or existing franchisees as to the BOQ franchises. In principle, insofar as there are common issues of fact or law arising in the various BOQ matters then the statutory mandate to have regard to the objective of the just quick and cheap resolution of the real issues in dispute in this Court is likely to be met by the common aspects of those matters being heard at the same time (to the extent possible consistent with that statutory objective). In that regard, the OMB parties have been at pains to emphasise that the witnesses to be called for the Bank of Queensland in relation to the Existing BOQ matters comprise former or current bank officers who it might be expected would also give evidence in the New OMB matters and that the number of BOQ witnesses 'unique' to particular proceedings is small. 5 For some time, the Existing OMB parties had sought a hearing date for the Existing BOQ proceedings and, following the service of the BOQ parties' evidence, I recently listed the matter for hearing next year before Ball J commencing on 1 August 2011 over a 15 week period. I did so in advance of the service by the Existing OMB parties of their remaining evidence in reply because, from a logistical point of view, it was necessary to make sure that a sufficient block of court time could be set aside for that purpose and so that there would not be difficulties in obtaining suitable dates next year. Other than in relation to the filing of the evidence due from the Existing OMB parties (and provision of particulars of damage that had been ordered to be provided by now), the Existing BOQ matters are thus at an advanced stage of preparation for trial. (I also note that in March next year 2 days have been set aside for the hearing of a foreshadowed application in relation to the treatment of tendency evidence.) 6 It is with this background in mind that the applications brought in relation to the Guarantor proceedings must be considered. Before turning to them, however, there are two other applications to be considered. 7 The following applications are now before me:

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(iv) an application by the New OMB parties for orders to be made in relation to the conduct of the New BOQ matters in this Court. Background 8 Broadly speaking, in the various sets of proceedings (both new and old), the OMB parties have made allegations against the Bank of Queensland of (inter alia) misleading and deceptive conduct in breach of both the Trade Practices Act 1974 (Cth) and the Fair Trading Act 1987 (NSW) and have brought claims against various of its officers for accessorial liability under both Acts. The OMB parties have invoked s 51A of the Trade Practices Act and s 41 of the Fair Trading Act in relation to those of the alleged representations which they allege are in respect of future matters. For its part, the Bank of Queensland, in separate proceedings which are to be heard at the same time as the Existing OMB matters, has brought claims (including claims for the recovery of amounts allegedly owing by various of the Existing OMB parties under the facility arrangements entered into in connection with their bank franchises) against various of the Existing OMB parties. They include claims under guarantees given by various persons in connection with the respective BOQ franchises. 9 As noted earlier, there are also presently on foot in Queensland further proceedings (commenced by the Bank of Queensland some time before the commencement of the New BOQ matters on dates ranging from November 2009 to February 2010) against individual guarantors (Mr Xu and Mr Yang, Mr Chowdhury and Mr Jones, respectively) in respect of BOQ franchises held by the three corporate plaintiffs in the Guarantor proceedings in this Court (LJH Group Pty Ltd, Southpole Financial Services Pty Ltd and Best Deal Pty Ltd, respectively). The corporate franchisees have not been joined to the Qld proceedings. 10 The solicitors acting for the OMB parties received instructions to act in the Qld proceedings by dates no later than 9 March 2010, 24 February 2010 and 8 April 2010 respectively (those being the dates on which correspondence in those proceedings was first issued by them to the solicitors for the Bank of Queensland indicating an intention to defend the proceedings). Defences were filed in the Queensland proceedings on dates ranging from 19 May 2010 (in the case of Mr Jones), 15 June 2010 (in the case of Messrs Xu and Yang) and 10 August 2010 (in the case of Mr Chowdhury.) 11 The Bank of Queensland applied to strike out each of those defences as defective. In each case, as I understand it, the central contention raised in the defence was that the agreements and securities upon which the claims were based were unenforceable (or voidable) or liable to be set aside because of (unidentified) representations and warranties said to constitute breaches of the Trade Practices Act the Fair Trading Act or the Australian Securities & Investments Commission Act 2001 (Cth). 12 Each of the defendants in the Qld proceedings opposed the striking out of the defence and applied for an order to cross vest the three proceedings to this Court. Those cross vesting applications were dismissed on 26 August 2010 by de Jersey CJ. On that occasion, his Honour struck out a large part of the defences and ordered that each defendant file and serve an amended defence within 14 days (ie by 14 September 2010). 13 Amended Defences were filed on 15 September 2010. Meanwhile, on 14 September 2010, the three Guarantor proceedings were commenced in this Court. As noted above, the plaintiffs in the Guarantor proceedings include not only the defendants in the Qld proceedings but also the corporate entities which hold the respective franchises (who were not joined to the Qld proceedings). 14 Senior Counsel for the BOQ parties (Mr Couper QC) submits (and it was not disputed) that at the heart of each of the amended defences were allegations of unenforceability and voidability in reliance upon the Trade Practices Act and the Fair Trading Act those said to be "by reference to the facts and matters pleaded in the statement of claim filed [the previous day] in the Supreme Court of New South Wales". 15 The Bank of Queensland then applied in Queensland to strike out each of the amended defences. On 24 September 2010, orders were made by consent that a further amended defence be filed in each case by 22 October 2010. It is said that the further amended defences and counterclaims filed in October 2010 in the Qld proceedings raise essentially the same matters as are raised in the statements of claim in the Guarantor proceedings and this does not seem to be disputed by the New OMB parties. 16 Of the five New BOQ matters, Statements of Claim have been served but no defences have yet been served, though the New OMB parties have in each case served (or in one case, I was told, were due shortly to serve) their affidavit evidence in support of their applications. 17 I turn then to the various applications before me. (i) Costs orders of 2007 cross-vesting applications before Hamilton J 18 On 2 November 2007, Hamilton J heard applications brought by way of summons for three sets of proceedings to be cross-vested from the Industrial Relations Commission into this Court, those being the Rossmick, SME and JFS proceedings. In each of those proceedings orders had been sought under s 106 of the Industrial Relations Commission Act 1996 (NSW). Claims of misleading and deceptive conduct under one or both of the Trade Practices Act/Fair Trading Act.

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19 At the time of hearing of the cross-vesting applications, there were also proceedings in the Federal Court in which the Bank of Queensland was seeking declaratory relief to the effect that each of the Rossmick, SME and JFS proceedings in the Industrial Relations Commission could not be maintained because of a s 109 inconsistency having regard to the Independent Contractors Act 2006 (Cth), s 7 of which was said to have had the effect of precluding the applications made by the applicants in the Industrial Relations Commission proceedings. The OMB parties to those proceedings had applied for an order cross-vesting the Federal Court proceedings to this Court (that application came before Greenwood J after the hearing of the cross-vesting application by Hamilton J). 20 The BOQ parties submitted to Hamilton J that the cross-vesting application before him was premature and should be stayed pending the outcome of their application for declaratory relief in the Federal Court. 21 Hamilton J came to the view that the cross-vesting application was not premature and made orders for the removal of the three proceedings to this Court. However, his Honour stayed the operation of those orders pending the making or orders in the other courts and tribunals in which the various proceedings then were and, relevantly, until after completion of the mandatory conciliation process provided for under the Industrial Relations Commission Act in respect of those proceedings in which a conciliation had not by then taken place. (The parties consented to orders in the form in which they were made by his Honour.) 22 Hamilton J, who had expressed the view that the claims were "a tangle" (as to which, having regard to the current scenario in respect of the Qld proceedings and Guarantor proceedings, I am tempted to observe that plus ca change plus c'est la meme chose), reserved the question of the costs of the cross-vesting applications. 23 The significance of the stay ordered by his Honour on the relief he had granted, for present purposes, is that Mr Couper submits (as is the case) that the cross-vesting orders were made only on a conditional basis. It is said that, but for the satisfaction of those conditions, the matters would not have been cross-vested to this Court. 24 In December 2008, the matters came before me on an (unsuccessful) application by the Existing OMB parties for variation of the orders made by Hamilton J. They had sought to remove the condition relating to the completion of conciliation in the Commission prior to the cross-vesting of the matters (all other conditions on which the stay had been made subject having been satisfied by then). Issue was taken by the Existing OMB parties with the stance that had been adopted by the BOQ parties in the Commission, the Existing OMB parties submitting that by contending there that conciliation was premature prior to the determination of the issues raised in the Federal Court proceedings the BOQ parties were seeking to re-agitate the issues that had been determined by his Honour in the cross-vesting proceedings some 12 months or so before. 25 That is the background to the present costs application. Both parties accept the general principles on which costs orders are made in this Court, namely that the general rule, as set out in rule 42.1, is that costs "follow the event". Rule 42.1 of the Uniform Civil Procedure Rules 2005 (NSW) in that regard provides that, subject to Part 42, if the court makes any order as to the costs it is to order that costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs. 26 An order for costs in favour of the successful party is compensatory in nature in order to reflect the vindication of its successful claim, rather than punitive (Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534; (1990) 97 ALR 45; Ohn v Walton (1995) 36 NSWLR 77). The court's power to award costs pursuant to s 98(1) of the Civil Procedure Act 2005 (NSW) is discretionary, subject to the rules of court and to statute, and it has been recognised that the discretion is a very wide one (Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72; (1998) 152 ALR 83; Elite Protective Personnel Pty Limited v Salmon (No 2) [2007] NSWCA 322). 27 The question here is as to what (for the purposes of that general rule) is the "event". The need to determine the relevant "event", for the purposes of the ordinary rule, was recognised in Owners Strata Plan No 64970 v Austruc Constructions Ltd (in liq) (No 5) [2010] NSWSC 568, by Bergin CJ in Eq, her Honour there considering the question in a case where there were multiple issues. 28 As to what is the 'event' it is clear that this is not limited to consideration of the event in a technical pleading sense. In Windsurfing International Incorporated v Petit (1987) AIPC 90-441, Waddell J (as his Honour then was) (referring with general approval to decisions to the effect that in recent years the approach has been that a successful party should have the whole costs of the proceeding, including the costs of an issue on which it has failed, unless in respect of that issue the successful party has "unfairly, improperly, or unnecessarily increased the costs" (at p37,861-37,862)) said:

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It is, I think, probably generally accepted that the words 'follow the event' refer to the event of the claim or counter claim. However, it may be noted that in other contexts similar words have been held to refer to the event of distinct issues with the result that the general costs went to the party who on the whole succeeded in the action but that the other party got the costs of separate issues on which he succeeded. 29 His Honour's decision in Windsurfing has been taken (see for example Lavender View v North Sydney Council (No 2) [1999] NSWSC 775, per Rolfe J; Uniline Australia Ltd (ACN 010 752 057) v Sbriggs Pty Ltd (ACN 007 415 518) and Another (No 2) [2009] FCA 920; (2009) 82 IPR 56, per Greenwood J; Leallee v the Commissioner of the NSW Department of Corrective Services [2009] NSWSC 518, per Price J; Sahab Holdings Pty Ltd v Registrar-General and Anor [No 3] [2010] NSWSC 403, per Slattery J, at [36]) to be that in an appropriate case a costs order may be moulded to reflect the degree of success on distinct issues. Here, the question is not whether an apportionment should be made in respect of the costs on separate issues; rather, what is being urged upon me is to address the question of costs by reference to whether the OMB parties had obtained an unconditional order rather than (as they did) obtaining the relief they had sought only on a conditional basis. 30 However, the general principle in the above cases that one looks to the substance of who has succeeded on what in the proceedings is applicable in the exercise of my discretion as to costs in the current scenario. 31 In Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (No 3) (1998) 30 ACSR 20, at 22, Young J, as his Honour then was, noted in the context of a costs application that "one does not look at issues as if they were pleader's issues, but approaches the matter with a broad brush". 32 The English Court of Appeal in Roache v News Group Newspapers [1992} TLR 551, as cited by the Queensland Court of Appeal in Timms v Clift [1998] 2 Qd R 100 posed the question as to who is to be seen as the successful party "in the event" as being a question as to "[w]ho, as a matter of substance and reality, had won? Had the plaintiff won anything of value or anything he could not have won without fighting the action through to a finish? Had the defendant substantially denied the plaintiff the prize which the plaintiff fought the action to win?". 33 When that question is posed in relation to the cross-vesting applications before Hamilton J, the answer it seems to me is clear - the OMB parties obtained the relief they sought and there is no suggestion that had they not pursued that application the relief the matters would have been cross-vested to this Court to be heard with the Traderight proceedings already before this Court at that time. 34 In Corbett Court Pty Limited v Quasar Constructions (NSW) Pty Limited [2008] NSWSC 1423 Hammerschlag J gave examples of instances where the general costs rule may be displaced (see [30]-[31]). It does not seem to me that the present case falls within any of those instances. 35 The suggestion that the OMB parties were not successful on the relevant event because there was a stay on the operation of the cross-vesting orders made by his Honour seems to me to fail to give adequate weight to the fact that the BOQ parties had opposed the making of the cross-vesting orders and had (unsuccessfully) contended that they were premature. 36 It is submitted by Mr Cotman that the exercise of the court's broad discretion as to costs cannot operate only to award applicants their costs if they can foresee the exact costs orders that the court will ultimately grant. Mr Cotman submits that the OMB parties were required to approach the court having regard to the overall position of the BOQ on the cross vesting they should have their costs given that no compromise or substantively similar outcome to the orders ultimately made was made available outside of court. 37 The fact that the BOQ parties were successful in persuading his Honour that the orders should be stayed (and if it be the case, as was submitted, that in so doing had acted not only reasonably in so doing by drawing to the court's attention the necessity for the conciliation process to be completed before any cross-vesting of the proceedings but also in the public interest in preventing a cross-vesting order wrongly to be made) is not in my view sufficient to displace the general rule that costs should follow the event - that event being that the cross-vesting orders that the BOQ parties had opposed were made (albeit that they did not operate until certain other events had occurred). 38 It is said for the BOQ parties that the OMB parties had not been put to any unreasonable expense as the matters at that stage had not been cross-vested from the Federal Court (a submission that, as I apprehend it, is to the effect that had the OMB parties waited for the matter to be dealt with in the Federal Court no contest as to the application for cross-vesting might have arisen or, perhaps, that there might have been no need for such an application before Hamilton J). That seems to me to be no more than reflective of the fact that the parties (as they are today on a different issue) were in dispute as to the particular forum in which the various disputes between them should be heard. The fact remains that the OMB parties brought their cross-vesting applications in this Court and Hamilton J found that it was not premature for them to do so and made orders in substance granting them the relief sought. 39 I consider that the BOQ parties should pay the OMB parties' costs of the cross-vesting applications before Hamilton J and I will so order. 40 The question then is as to the basis on which costs should be ordered and whether they should be assessed and payable forthwith. For the OMB parties, Mr Cotman's principal costs submission was that the OMB parties should have their costs of the cross vesting motion 8 August 2007 on indemnity basis as agreed or assessed and that the costs should be paid forthwith. Reference was made to Oshlack; Harrison v Schipp [2001] NSWCA 13; NMSM Property Pty Ltd v Citibank Ltd (No 11) (2001) 109 FCR 77; 187 ALR 654 for the proposition that an award of indemnity costs is permissible under the court's incidental power to control its proceedings, though noting that this presupposes either a party's special entitlement or some relevant unreasonable action in connection with the conduct of the proceedings by the party against whom the order is sought. 41 It is submitted by Mr Cotman that the BOQ parties have acted unreasonably and have put the OMB parties to unreasonable expense by opposing the orders for transfer of the Industrial Relations Commission proceedings. Mr Cotman submitted that the BOQ parties' only (and continued) resistance was premised on the cross-vesting application being premature - a submission rejected by his Honour. In that regard, I do not see the fact that his Honour rejected the BOQ parties' argument as warranting an order for indemnity costs. There is nothing to suggest that it was an argument put without any foundation. Furthermore, the BOQ parties' conduct thereafter (in refusing to participate in a conciliation conference), which is also relied upon by the OMB parties in support of the indemnity costs application, is not a matter which goes to the question of its conduct in resisting the cross-vesting applications before his Honour. Mr Cotman submits that the matter ought to have been dealt with by the consent of the parties, given the history of the proceedings at the time and particularly since the Traderight proceedings which involved similar circumstances had been cross vested to the Supreme Court of New South Wales by the consent of the parties. (That, however, appears to be no more than an argument that the BOQ parties should in some way be penalised for their temerity in taking a different view as to the cross-vesting applications and it is by no means apparent to me that, even having adopted a particular course in relation to the Traderight proceedings, they should have maintained such a course in other and separate proceedings.) 42 I do not consider that those costs should be ordered on an indemnity basis. (There was no reliance, for example, on any compromise unreasonably rejected by the BOQ parties in this regard - simply that the BOQ parties had not acceded to the OMB parties' suggestion as to the cross-vesting of the proceedings and had maintained the stance that it was premature.) 43 As to whether the costs should be assessed or agreed and payable forthwith, Mr Cotman relies on what was said in Fiduciary v Morningstar Research Pty Ltd (2002) 55 NSWLR 1. It is submitted that this is a case in which it is appropriate to make such an order as the costs of the proceedings will be significant and the time for payment long postponed (having regard to the fact that even though the matters have now been listed for hearing that hearing will not take place until the latter half of next year and will be for a lengthy period). It is further said, and I accept that this is the case, that these orders will be related to a separate and discrete aspect of the overall proceedings. (Reference was made to Wentworth v Wentworth (NSWCA 21 February 1996, unreported) and Jazabas v Haddad [2006] NSWSC 880 as instances where costs orders were made in relation to interlocutory applications in advance of the determination of the substantive proceedings.) 44 Although Mr Cotman notes that at the time the motion was heard the substantive proceedings were in their infancy (and hence there was a likelihood that there would be a considerable time to hearing), it seems to me that I should consider the question of costs as at today's date and not as his Honour might have determined them had he not reserved the question back in 2007. 45 It is said that the OMB parties have sued the BOQ parties in connection with alleged 'failed' businesses and have, in connection with operating that failed business, suffered serious and significant financial loss and damage in circumstances where the BOQ parties "are in a unique position of being fully aware of the financial hardship and difficulty faced by the OMB parties as they were required to disclose their full financial history and affairs in the context of operating the business". While the financial position of the parties is a factor to take into account, there is no direct evidence before me. Further, insofar as that seems to require an assessment to be made of the allegations made in the substantive proceedings, that is not a matter I can properly take into account, even if there were material before me on which I could form a view. The fact is that various allegations have been made in the substantive proceedings and they may or may not ultimately be sustained. The financial position of the OMB parties was not directly put before me and it is not a matter on which I can come to any view beyond the inference I might draw from the fact that litigation funding is now in place that there may have been a question as to the financial resources of the OMB parties. 46 Mr Cotman also submits that, absent a costs order payable forthwith, there is no incentive for the BOQ parties to refrain from opposing other interlocutory applications with the purpose of extending the limited financial resources of the OMB parties and delaying the progress of the substantive hearing. I do not see that it is appropriate for me to draw any inference as to the purpose of the BOQ parties in resisting the cross-vesting application before his Honour, nor do I consider that the making of a costs order of this kind will necessarily have any deterrent effect if that were to be the BOQ parties' purpose. 47 That said, I accept that the issues on the cross vesting application before Hamilton J were discrete issues and have now been determined for some time. There are still some 8 months before the hearing of the trial will commence and if it runs for the estimated time it would not be until late next year that the Existing BOQ matters could first be expected to be determined on their merits. I consider that it is appropriate that the costs as ordered to be paid by the BOQ parties should be assessed or agreed and payable forthwith. 48 (For completeness, I note that insofar as the BOQ parties relied upon extracts of selected passages from the transcripts [paras 6, 7, 10 and 11 on 2 November 2007, para 13 on 25 November 2008 and paras 11, 13 and 14 on the application before me on 19 December 2008] the OMB parties took issue with the fact that the BOQ parties had not filed any evidence in that regard within the terms of the directions made namely that evidence be filed by 4 August 2010 and submitted that if the BOQ parties intended to rely upon the transcripts, they should have been filed by way of affidavit in the court or a copy ought to have them made available to the OMB parties prior to the OMB parties filing reply submissions. In that regard, the transcript of the very proceedings on which the present costs application is brought is a matter of court record and I do not accept that there was a need for further costs to be incurred in appending it to an affidavit before reliance could be placed on what had been said when the matter was before his Honour.) 49 It is my view that the appropriate decision is that the BOQ parties pay the costs of the OMB parties of the application before Hamilton J and that those costs be assessed and payable forthwith. I do not consider that an order for indemnity costs should be made. (ii) Security for costs 50 By notice of motion dated 12 December 2010, the BOQ parties seek orders:

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65 As to the first, Mr Couper points out that a court can make provision that protects a successful defendant by being able to recover the part costs (citing Brocklebank & Co v The King Lynn Steamship (1878) 3 CPD 365; Southern Cross Exploration NL v Fire & All Risks Insurance Co Ltd (1985) 1 NSWLR 114, at 122 - 123 and cases there cited; Bryan E Fencott & Associates Pty Ltd v Eretta Pty Ltd (1987) 16 FCR 497). In this regard, it is said that the costs undertaking that has been provided is inadequate. 66 That inadequacy is put on the basis that the proceedings have now been listed for 15 weeks; that the BOQ parties' evidence has been served and that the only further evidence to be relied upon is the OMB parties' evidence in reply (and any expert evidence they may be permitted to serve) and the filing of any amended pleadings. Apart from potential interlocutory applications such as the foreshadowed application in relation to tendency evidence, it is said that there is nothing further to be done for the formal preparation of the matter for hearing. 67 Insofar as the IMF deeds poll are limited to the term of the litigation funding agreement and make no provision for past costs, the BOQ parties submit that if IMF stands to gain from all of the litigation, and to benefit for the work done to date (and it is not possible to determine the extent that this will be the case since the documentation provided to the BOQ parties had been redacted), IMF should be required to take on liability for those past costs. (It was noted that the copies of the funding documentation provided to the BOQ parties had been redacted in a number of places.) 68 In essence, the BOQ parties' submission in this regard seems to be that IMF should, as the price for the potential contracted future benefit, be required to provide an indemnity for all costs whether incurred prior to the Litigation Funding Agreement or afterwards. It is submitted that the presence of IMF in the litigation from this point onwards means that the litigation will continue at a large cost to BOQ and in circumstances where those standing behind the OMB parties can avoid being held accountable for costs that may be awarded against the OMB parties in the event that BOQ is successful. 69 It is noted that IMF is able to terminate its obligations by giving 14 days' notice and that clause 15.4 caps the exposure of IMF in relation to adverse costs orders. 70 Reference is made what was said in Hodson JA in Green at 122:

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73 What the BOQ parties seek is that IMF undertake expressly to the court (as opposed to undertaking contractually to the OMB parties) that it will meet any costs order made in favour of the BOQ parties against the OMB parties in this litigation and should be required to undertake to meet any costs order referrable to costs incurred before it recommenced its funding obligations. 74 In anticipation of a complaint as to the delay in the application for security for costs, it was accepted by Mr Couper that no such application had been made earlier and that it was the advent of a litigation funder that had precipitated this application but it was said that the distinction in this case was that very change and that, as there was no suggestion that an order for security for past costs would stymie the litigation, such an order should be made. 75 Mr Cotman submits that what has been already been put forward by way of security is a perfectly sensible regime whereby the balance sheet of IMF is exposed to an order for costs obtained by the BOQ parties; and the BOQ parties are protected in that the IMF parties have agreed to submit to the jurisdiction of the court as to any order the court might wish to make that it would make enforceable against IMF. Insofar as the complaint is that, while IMF is bound to meet any costs order that might ultimately be made in favour of the BOQ parties against the OMB parties, this would not preclude IMF (if joined as a party) from making submissions prior to the costs orders being made (say, submissions to the effect that costs should not be made), Mr Cotman submits that this is no more than the right that an insurer would have in such circumstances and that there would be nothing to prevent a party in the OMB parties' position making such submissions as the instance of a third party funder such as IMF). In this regard it seems to me that the undertakings contained in paragraphs (a) and (b) of the deeds poll are likely to operate in the BOQ parties' interests, not against them. 76 As to the suggestion that the indemnity should be retrospective, Mr Cotman submits that where what has now been funded are the prospective costs (ie those incurred during the time of the IMF agreement) there is no basis on which IMF should be required to provide security for an earlier time (and beyond that for which it is said they have contracted). It was intimated, although there was no evidence before me, that the imposition of an additional condition of this kind might put the existing funding arrangements at risk. 77 As an administrative matter, Mr Cotman also raised an issue as to the form of the orders that had been sought (noting that some of the cross vested proceedings had been mentioned twice by their new and old file numbers) and that the application for security in its terms included security for proceedings where the Bank of Queensland was itself a plaintiff. (Mr Couper, as I understand it, disavowed any attempt to seek security for proceedings in which the BOQ party interests were the plaintiffs; and did not seek double security, assuming that logically there could be such a thing.) 78 Mr Cotman did raise the question of delay (and as noted above it was conceded that no application for security for costs had previously been made or foreshadowed in the proceedings, Mr Couper candidly confirming that the precipitating factor was the emergence of the litigation funder.) It was said by Mr Cotman that I can infer that large amounts of money have already been incurred in the proceedings and that this should militate against an order for security for costs. Reference was made to delay in Southern Cross, at 28, where an application for security for costs was made during the hearing and the court considered the impact of the delay in the making of such an application. Reference was also made to DJZ Construction v C Prichard Group [2009] NSWSC 359. 79 It was submitted (though without evidence that this was the case) that to try and extend to past costs would have the effect of throwing the OMB parties back on their own resources to give security for costs that the BOQ parties have incurred up to this time without any such security. 80 The OMB parties' position in summary is that the security proffered is more than adequate to protect the BOQ parties' interests; that any security should be confined to matters in which the BOQ parties are in substance the defendant (this is conceded by Mr Couper); should be in relation to future costs only (this is not conceded); and should be in the terms proffered by IMF (again, this is not conceded). It is said by Mr Cotman that if IMF seeks to withdraw from the funding agreement, it has agreed to give notice and the matter can then be revisited, at which time any question of security for costs arising from such withdrawal would arise. 81 As to the construction of the deeds poll, Mr Couper submits that there is a tension between paragraphs (a) and (b) of the deeds poll (on the one hand) (which deal with the submission of IMF to the jurisdiction of the court) and paragraph (c) on the other hand of the deeds poll (in which IMF undertakes to be responsible for any adverse costs orders referable to costs incurred during the term of the litigation funding agreement). It is said that, insofar as the joinder of IMF carries with it the inherent notion that IMF might oppose the costs order being made (and that this is difficult to reconcile with paragraph (c)), to put the matter beyond doubt there should simply be an undertaking given by IMF to the court to meet any costs order made in favour of the BOQ parties against the OMB parties. 82 As noted above, the factors relevant to take into consideration in the exercise of the discretion to order security for costs are set out conveniently in KP Cable. There, Beazley J (as her Honour then was) noted that there were a number of well-established guidelines which the court typically takes into account in deciding whether to exercise discretion in favour of the order of security. 83 The very first such guideline raises the question of delay. Her Honour noted that applications of this kind should be brought promptly. Relevantly, in relation to the question of delay, the promptness with which a party acts to seek security is relevant because it is said that a plaintiff is entitled to know its position in relation to the security at the outset and before it embarks to any real extent to its litigation (and certainly before it is allowed to or commit substantial sums of money towards litigating its claim). In this regard, I refer to what was said by Moffitt P in Buckley v Bennell Design & Construction Pty Ltd (1974) 1 ACLR 301 and I also note what was said by French J (as his Honour then was) in Bryan E Fencott to the effect that the further a plaintiff has proceeded in an action, and the greater the costs it has been allowed to incur without steps being taken to apply for an order for security for costs, the more difficult it will be to persuade the court that such an order is not, in the circumstances, unfair or oppressive. 84 Insofar as the question of delay is concerned, Mr Couper accepted that consideration would ordinarily have much force. However, here it is said that it is not simply a case of a defendant asking belatedly for security for costs from an impecunious plaintiff. Rather, this is a situation in which an independent party, a litigation funder, has appeared and has sought to take the benefit of any judgment at the end of the proceedings (as the price for which it ought be required to provide security from the outset). 85 Secondly, it is said in KP Cable that consideration must be given to the strength and bona fides of the case but that, as a general rule, where a claim is prima facie regular on its face and discloses a cause of action, in the absence of evidence to the contrary the court should proceed on the basis that the claim is bona fide with a reasonable prospect of success (KP Cable; Bryan E Fencott). That seems to me to be the position here. It cannot be (and was not) suggested on the material before me that I could find that the claim which is brought by the OMB parties is one which has no reasonable prospects of success or otherwise not brought on a bona fide basis (or, conversely, that the defence which appears to be asserted to the matters raised by the OMB parties is assured of success). The remaining factors considered by her Honour, other than the presence of a party standing behind the litigation and who will take part of the benefit of any success from the litigation, were not suggested to be of relevance on the present application.

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89 I do not consider that there is an unfair exposure in the prospect that IMF might argue against an adverse order arising from the terms of its submission to the jurisdiction of the court. It is always be open to a party to make such arguments and if IMF were to joined as a party for the purpose of being bound by any costs orders made I see no reason why it should not be permitted to make such submissions. The advantage of its joinder is that there could be no doubt as to it being bound by any costs orders ultimately made. 90 As to the tension between the respective paragraphs of the deeds poll, it seems to me that this is more apparent than real. I see no reason why paragraph (c) would not be given the ordinary meaning that it bears on its face. That said, I cannot assume what stance IMF would take if this issue arose and, given the litigious history between the OMB and BOQ parties to date, if there be any doubt as to the construction of the deeds poll I see no reason why that should not be clarified. It can hardly be suggested that if IMF was prepared to enter into the deeds poll and to bind itself to meet adverse costs orders then it would not proffer such an undertaking to the court. 91 The effect of the deeds poll, in Mr Cotman's submission (and I agree) is that IMF submits to the prospect of a judgment debt in whatever form the court wishes to make and that it binds itself to meet any adverse costs order. However, insofar as (c) is suggested to be for more abundant caution, I would have been inclined to see it as a standalone obligation, providing the very assurance now sought by the BOQ parties in respect of security for their costs. 92 (I should note that it was not suggested that there was any attempt by IMF to resile from the agreement to pay to the BOQ parties the final quantified amount of any adverse costs order or taxed order or taxed costs, as a debt due owing and payable by IMF to the BOQ parties, for the period covered by the litigation funding agreement. Mr Cotman notes that the BOQ parties would be able to apply to vary the undertaking arrangements if that were to be necessary in due course.) 93 The only advantage that I can see would be gained by requiring an undertaking directly to the court would be to remove the doubt the BOQ parties have as to how the deeds poll might be construed in due course and to preserve the ability for a contempt of costs order if IMF fails to comply with the order. I am not satisfied that the latter would be necessary but I think there is some merit in the context of this litigation in putting the issue as to the construction of the deeds poll to rest and as IMF is not before the court that can only be effectively done by an order that security be provided in the form of an undertaking to the court. I intend to make an order that should have that effect. 94 As to past costs, I do not accept that the undertaking should so be extended. While I accept that courts may be readier to make security for costs orders to non-parties who are funding litigation for their own commercial benefit, the fact is that the BOQ parties have made no application for security for costs to date. They have borne (for understandable reasons to which Mr Couper adverted) the risk that the OMB parties would ultimately be unable to meet any costs order against them. Nothing has changed in that regard by the advent of the litigation under other than that it provides an opportunity for the BOQ parties in effect to improve their position. I am not satisfied that this is a sufficient reason to make such an order. Nor am I satisfied that there is a public policy reason for requiring a litigation funder whose agreement to fund costs is for a limited period to assume the responsibility for all costs incurred up to the point of its involvement simply because (if successful) that would confer on it a benefit in respect of a result produced by reference to the whole of the work involved in the litigation. 95 Therefore, I propose to order that, subject to the provision to the court within a specified time (as to which I consider an appropriate time would be the day before the next court directions hearing) of a written undertaking by IMF, in the form of the commitment entered into by it in clause (c) of the deeds poll - ie that it will be liable to the BOQ parties for any adverse costs order that may be made in their favour (in the proceedings in which the BOQ parties are defendants) in respect of costs incurred during the term of the litigation funding agreement, the BOQ parties' motion for security for costs will be dismissed. I will give liberty to apply on 3 days' notice if the undertaking is not given to the court, for the making of orders for the provision of security for costs in lieu of such an undertaking.

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(iii) & (iv) BOQ's strike out/cross-vesting applications and OMB parties application for new proceedings to be heard with existing proceedings 96 By notices of motion dated 11 October 2010 in each of the Guarantor proceedings, the Bank of Queensland seeks an order that the statement of claim filed in those proceedings be set aside pursuant to rule 12.11 of the Uniform Civil Procedure Rules, or be dismissed as an abuse of process pursuant to rule 13.4 of the Uniform Civil Procedure Rules or struck out as an abuse of process pursuant to rule 14.28 of the Uniform Civil Procedure Rules. In the alternative, an order is sought that the proceedings be transferred to the Supreme Court of Queensland pursuant to s 5 (2) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW). Consequential costs orders are sought including an order on an indemnity basis payable forthwith. 97 The corresponding motion filed by the New OMB parties on 19 November 2010 seeks an order that the five New BOQ matters be tried at the same time as the Existing BOQ matters. That order is sought pursuant to rule 28.5 of the Uniform Civil Procedure Rules and/or sections 56 to 62 of the Civil Procedure Act. An order is also sought pursuant to rule 31.9 of the Civil Procedure Act that evidence in each of the New BOQ matters be received as evidence in each of the Existing BOQ matters. Consequential costs orders are also sought. 98 As noted earlier, at the time that these applications have been brought the status of the Existing BOQ matters is that they have been listed for hearing commencing on 1 August next year for 15 weeks. Of the 5 New BOQ matters, only 3 are the subject of the current strike out/cross vesting application by the BOQ parties. Therefore, whatever happens on the BOQ parties' strike-out/stay application there will remain in this Court two New BOQ matters raising similar issues to those in the proceedings to be heard by Ball J next year. The three proceedings common to both the BOQ strike out/stay application and what I might refer to as the OMB parties' consolidation application (though it should be noted that it is not formally put as a consolidation as such), are the Guarantor proceedings which involve the corporate franchisees Southpole, LJH and Best Deal and the individuals who had guaranteed the obligations of those corporate franchisees. 99 The three franchises the subject of the BOQ parties' strike-out/cross vesting application are those located in Toronto, Hurstville and Bankstown. (The remaining franchises the subject of the New OMB proceedings are located in Hornsby and Miranda and there is no application to cross vest those proceedings to Queensland.) There is a further overlap insofar as the franchise the subject of one of those proceedings is that of the Hurstville branch (an earlier franchisee of which is the complainant in the existing Rossmick proceedings). 100 On these applications Mr Cotman read an affidavit of 29 November 2010 of Mr Andrew Lacey, the solicitor with the conduct of the various OMB/BOQ proceedings (old and new) at this time. That affidavit dealt with the history of the consolidation of the various proceedings in New South Wales and Queensland and the relationship between the New BOQ matters and the Existing BOQ matters. Mr Lacey was cross-examined briefly on various aspects of the conduct of the proceedings to date. 101 Mr Lacey deposes to the belief that if the New BOQ proceedings were to be added to the individual cases already being dealt with in this Court and listed for hearing before Ball J next year, then there would be an additional two to three weeks in hearing time required to accommodate the new matters. By contrast, the BOQ parties submit that an estimated additional six weeks would be required. In cross-examination Mr Lacey acknowledged that the time estimate given did not take into account time for the BOQ parties' witnesses. 102 Mr Cotman submits that the choices before me at the moment are that there be a joint hearing of the Existing (five) BOQ matters, together with the two New BOQ proceedings that are not the subject of the Bank of Queensland's strike-out/cross-vesting application (with the three remaining New BOQ matters to be heard in Queensland), or that there be a hearing of the Existing 5 BOQ matters in this Court and a separate hearing of 2 of the New BOQ matters in this Court (again, with the three remaining New BOQ matters heard in Queensland), or that all 5 New BOQ matters be heard in New South Wales (whether together with the Existing 5 BOQ matters or otherwise). 103 I have set out earlier a brief summary of the history of three Queensland proceedings presently on foot against Mr Jones, Messrs Xu and Yang, and Mr Chowdhury, respectively. The Bank of Queensland's position, in essence, is that there has already been a failed attempt by the OMB parties to cross vest from Queensland the proceedings brought against the guarantors in the Guarantor proceedings and that, in the face of that decision, the commencement of proceedings in this Court raising the same or substantially the same matters as those already on foot in Queensland amounts to an abuse of process by the creation of a duplicity of proceedings which should not be permitted. 104 Reference was made to what was said in Henry v Henry (1995-1996) 185 CLR 571, at 591, per Dawson, Gaudron, McHugh and Gummow JJ:

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109 Section 5(2) of the Jurisdiction of Courts (Cross Vesting) Act provides: (2) Where: (a) a proceeding (in this subsection referred to as the "relevant proceeding") is pending in the Supreme Court (in this subsection referred to as the "first court"), and (b) it appears to the first court that: (i) the relevant proceeding arises out of, or is related to, another proceeding pending in the Supreme Court of another State or of a Territory and it is more appropriate that the relevant proceeding be determined by that other Supreme Court, (ii) having regard to: (A) whether, in the opinion of the first court, apart from this Act and any law of the Commonwealth or another State relating to cross-vesting of jurisdiction, the relevant proceeding or a substantial part of the relevant proceeding would have been incapable of being instituted in the first court and capable of being instituted in the Supreme Court of another State or Territory, (B) the extent to which, in the opinion of the first court, the matters for determination in the relevant proceeding are matters arising under or involving questions as to the application, interpretation or validity of a law of the State or Territory referred to in sub-subparagraph (A) and not within the jurisdiction of the first court apart from this Act and any law of the Commonwealth or another State relating to cross-vesting of jurisdiction, and (C) the interests of justice, it is more appropriate that the relevant proceeding be determined by that other Supreme Court, or (iii) it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of another State or of a Territory, the first court shall transfer the relevant proceeding to that other Supreme Court. 110 The test for determining when proceedings should be transferred to another jurisdiction under s 5(2) of the Jurisdiction of Courts Cross Vesting Act focuses on whether, and what is the more appropriate forum for the dispute, so that if the court is satisfied that there is another jurisdiction which is simply "more appropriate" or in the interests of justice, then proceedings shall be transferred. 111 This is unlike the test for determining when local proceedings should be stayed in favour of another international forum, which gives greater precedence to the plaintiff's choice of forum (being the "clearly inappropriate forum" test as adopted in Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55; (1990) 171 CLR 538, preferring the view of Deane J in Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197). The NSWCA in Bankinvest AG v Seabrook (1988) 14 NSWLR 711 indicated that the test to be applied was not that espoused by the High Court in Voth v Manildra Flour Mills and Oceanic Sun in relation to forum nonconveniens (at 727). 112 In Bankinvest, Rogers AJA (with whom Street CJ and Kirby P agreed) found that by the legislature's use of the words "more appropriate" as well as by reference to the Preamble to the Act, an intention that a test akin to that stated by the hours of Lords in Spiliada Martime Corp v Cansulex Ltd [1987] AC 460, being one focusing on what is the more appropriate forum in which the case may be tried in the interests of the parties and that generally of justice (at 476). 113 Rogers AJA after reviewing the terms of the Act and explanatory memoranda referred to the policy underlying the forum non conveniens principles and indicated that under the new legislative regime it is no longer is it appropriate to regard the court of another State as a "foreign" court, going on to state;

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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. The reason why a plaintiff has commenced proceedings in a particular court might, or might not, concern a matter related to the interests of justice. It might simply be that the plaintiff's lawyers have their offices in a particular locality. It is almost invariably the case that a decision as to the court in which an action is commenced is made by the plaintiff's lawyers, and their reasons for making that choice may be various. To take an example at the other extreme, it might be because a plaintiff is near death, and has a much stronger prospect of an early hearing in one court than in another. 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, will arise for consideration. The justice referred to in s 5 is not disembodied, or divorced from practical reality. If a plaintiff in the Tribunal were near to death, and, in an application such as the present, it appeared that the Supreme Court to which transfer was sought could not deal with the case expeditiously, that would be a consideration relevant to the interests of justice. Justice would ordinarily dictate that the interest of the plaintiff in having a hearing would prevail over the interest of the defendant in such benefit as it might obtain from the plaintiff's early death. The capacity of the Tribunal to deal expeditiously with cases has always, and rightly, been regarded as relevant to the interests of justice, bearing in mind the condition of many sufferers from dust diseases. On the other hand, there may be conflicting interests of such a kind that justice would not attribute greater weight to one rather than the other. The advantage which a plaintiff might obtain from proceeding in one court might be matched by a corresponding and commensurate disadvantage to a defendant. The reason why a plaintiff commenced proceedings in one court might be the same as the reason why the defendant seeks to have them transferred to another court. In such a case, justice may not dictate a preference for the interests of either party. 116 Nygh and Davies in their text book (Conflicts of Laws in Australia, 7th edn, LexisNexis Butterworths, 2002, at [6.13]) state that the approach indicated by the Court of Appeal (in Bankinvest AG) will mean that Other than in exceptional circumstances, courts will transfer proceedings to the court to which that proceeding normally belongs, especially where all the matters raised in that proceeding are within the proper jurisdiction of the other court. If the proceedings in the forum fall partly within the proper jurisdiction of the forum and partly within the proper jurisdiction of another superior court, the proceeding will be retained or transferred depending on which court has the most substantial connection with the proceedings as a whole. 117 In relation to s 5(2)(iii) - the "interests of justice" ground for transfer, that is where the proceedings are not otherwise related to proceedings in another court and do not involve the determination of other state or federal law (thus subclauses (i) and (ii) are not satisfied), Rogers AJA in Bankinvest stated:

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Self-evidently, this subclause was designed to provide a basis for a transfer in circumstances where the requirements of subcl (i) and subcl (ii) are not satisfied. Thus, where there are no related proceedings pending in the other Supreme Courts, the dispute does not involve matters of inter-State law, in D relation to which jurisdiction is acquired only by reason of the cross-vesting legislation, nonetheless, the court may effect a transfer. What then are the "interests of justice" which the legislature considers should be taken into account in this process? To my mind, the relevant matters and considerations are essentially the same as were specified by the House of Lords in the Spiliada . These considerations were criticised and held to be inapplicable, at least by Brennan J, in Oceanic on the basis that they are too uncertain. Yet, in my opinion, they have already, in effect, been made applicable in Australian courts in relation to transfers between Supreme Courts by the various Australian Parliaments. As this jurisdiction comes to be exercised more frequently and the courts better acquainted with the discretion conferred (if not before), it may be that the perception in Oceanic that the criteria are uncertain in content will undergo review. Absent the presence of related proceedings or interstate law, the inquiry directed by consideration of the 'interests of justice' encompass all the matters that determine which is the more appropriate forum that I have already discussed. The two considerations of "more appropriate" and the "ends" or "interests" of justice are used in the same sense by Lord Goff in the passage I have already cited (at 727). I would be going over ground I have already covered if I were to discuss the contents of "interests of justice" further. I should, however, mention that its presence and content call for a rejection of Mr Nicholas' submission that the principle of forum non conveniens continues to exist concurrently with the legislation. The former has been clearly subsumed by s 5(2)(b)(iii). 118 Mr Cotman submits that the New BOQ matters were commenced in a jurisdiction where related proceedings (the Existing BOQ matters) are being conducted and both sets of proceedings were properly commenced in that jurisdiction, NSW, being, or being close to being what is sometimes described as the 'natural jurisdiction' for the resolution of the dispute, by reason of the factual matrix and other NSW connections; a jurisdiction to which the BOQ parties had consented in relation to the Traderight matter; a jurisdiction to which all matters have been cross vested on contest, apart from the decision of de Jersey CJ; and the jurisdiction the Bank itself invoked in the Jones claim in March 2010. 119 It is said that no question of inappropriate selection of jurisdiction can arise in the 'forum shopping' sense, or any other basis and that New South Wales is not a 'manifestly inappropriate forum, as that term is described in Oceanic Sun Line. There, Deane J said: (165 CLR 197 at 243):

[56]

Nonetheless, there are other arguments advanced on behalf of Guardian, the most significant of which is that it is suggested that the winding-up proceedings are an abuse of process because they duplicate the claim foreshadowed in the proposed cross-claim for arrears of rent. Generally speaking, it may be accepted that where a creditor has commenced an action at law to recover a debt and simultaneously commences winding-up proceedings in relation to the same debt, the winding-up proceedings are an abuse of process, but this is not an invariable rule. In Wilson Market Research Pty Ltd and the Corporations Law (1996) 39 NSWLR 311, Santow J [at 317] referred first to the judgment of Needham J in Portfolio Projects Pty Ltd v Oakes Building Co Pty Ltd (1987) 5 ACLC 911 at 913 in which his Honour had said that it seemed an abuse of process to claim a sum of money in a common law claim and then to seek to wind the company up by parallel proceedings in Equity because of the failure to pay the same sum. Santow J then referred to what had been said by Master Adams in Mala Pty Ltd v Johnston (1995) 13 ACLC 100 [at 102], which Santow J thought correctly explained that not every case of parallel proceedings was an abuse of process. In Milano v J D Holdings [2001] NSWSC 899, Master Macready, as his Honour then was, referred to these authorities, noting from the judgment of Master Adams in Mala that it was prima facie an abuse of process for a party to institute two proceedings for the one claim - prima facie, because there can be an explanation why two proceedings are issued, and it is a matter for the Court to determine whether the explanation is sufficient. [59] I am of the view that the general rule is not applicable in the present case or, alternatively, if it is, that there is a sufficient explanation. [60] It is not applicable because, notwithstanding the motion for leave to bring a cross-claim, in fact, that application has not been heard, and no parallel proceedings are on foot. No cross-claim for the debt has been instituted, and the creditor has instead proceeded by serving a creditors' statutory demand and filing winding-up proceedings. It is not impermissible for a creditor to contemplate, and even threaten, and perhaps even bring a claim at law for a sum of money, but then, recognising that there is no bona fide dispute about it, to decide instead to proceed by way of service of a creditors' statutory demand. [61] And in this case, even if the cross-claim, leave to file which is sought had been filed, there is a sufficient explanation for the separate proceedings. While in many cases it may be an abuse of process to bring duplicate proceedings, it is not so here, because, first, the claim for the judgment for the arrears of rent is only subsidiary and incidental to the substance of the proposed cross-claim, which is primarily concerned with the rectification and possession remedies which could not be obtained in winding-up proceedings: the claim for the money sum is incidental to, but severable from those claims. I do not think it is an abuse to maintain the claim for possession, and incidental to it a claim for judgment for a money sum, notwithstanding that a statutory demand has been served and that winding-up proceedings are also brought. [62] Moreover, this is a case in which, as things have turned out, given their repeated offers to perform their obligations as if the option had been validly exercised, the lessors are entitled to be frustrated at the total lack of progress in having the rent put into order. They reasonably conclude that, despite offering to do exactly what Guardian is entitled to have them do upon assumption that Guardian's contentions are correct, Guardian nonetheless refuses to do its part. Rather, Guardian says that it wants to proceed to trial in the specific performance proceedings - which the lessors rightly see as unnecessary. In those circumstances, I do not think it is an abuse of process for them to rely on a creditors' statutory demand and commence winding-up proceedings in respect of a severable part of the dispute.

[57]

125 Mr Cotman also submitted (at T 24.46) that United Pacific Finance Pty Ltd v Tarrant indicates that whether there is an abuse of process does not turn on the same parties commencing the proceedings, it turns on whether the issue arises in the same two proceedings. Austin J there said (from [31]) that it was the creation of the duplicity of proceedings which was the abuse of process (citing Moore v Inglis, at 514 and 516 per Mason J; Commonwealth v Cockatoo Dockyard Pty Ltd [2003] NSWCA 192, at [56]-[63] per McColl JA; and referring also to Slough Estates Ltd v Slough Borough Council [1968] Ch 299, at 314-5 per Ungoed-Thomas J. 126 Mr Cotman made specific reference to the reasons of his Lordship Justice Buckley in Thames Launches Ltd v Trinity House Corporation of Deptford Strond [1961] Ch 197, cited by Austin J (at [33]) in Tarrant, in particular where his Lordship says (at 209): [Counsel for the defendant] says that the principle is that a man should not pursue a remedy in respect of the same matter in more than one court. In my judgment, the principle is rather wider than that. It is that no man should be allowed to institute proceedings in any court if the circumstances are such that to do so would really be vexatious. In my judgment it is vexatious if somebody institutes proceedings to obtain relief in respect of a particular subject-matter where exactly the same issue is raised by his opponent in proceedings already instituted in another court to which he is not the plaintiff but the defendant . (my emphasis) 127 In Tarrant, proceedings were commenced in Western Australia where the defence involved a cross-claim asserting misleading conduct but that cross-claim was made in proceedings in New South Wales in respect of an unrelated action by a different party. Austin J there went on to state (from [34]); Although at the time of the First Cross-Claim there was no defence in equivalent terms to the Western Australian proceedings, it seems to me inevitable that there will be a defence and cross-claim in those proceedings substantially identical to the allegations pleaded in the First Cross-Claim. That conclusion is reinforced by the evidence which shows that notices of demand were served on Mr Tarrant and TFC on 8 April 2009, and they responded on 1 May, saying they were seeking legal advice, but without adverting to claims of the nature subsequently made in the First Cross-Claim. At the time when the First Cross-Claim was filed, the cross-claimants were aware of the Western Australian proceedings and they must have realised that the matters they wished to allege were most appropriately in the nature of defences and perhaps a cross-claim in those proceedings. In my view it was an abuse of process for them to make those allegations in a cross-claim in the New South Wales proceedings in answer to claims to which they will only become relevant if UPF alleges that the misleading conduct upon which it relies relates to the subject matter of the First Cross-Claim. (my emphasis) No good reason has been advanced at the hearing of the s 500(2) application as to why the First Cross-Claim, at least so far as relates to the Palandri companies, should be brought in the New South Wales proceedings instead of as a defence in the Western Australian proceedings. The facts before me (including, in particular, the temporal sequence of notices of demand, UPF proceedings, undertakings and responses to the demands, Western Australian proceedings, and First Cross-Claim) warrant the inference that the dominant purpose of bringing the cross-claim against the Palandri companies in the New South Wales proceedings is to assist the foreshadowed application to cross-vest the Western Australian proceedings to New South Wales. That also points to the conclusion that the First Cross-Claim constitutes an abuse of process: Surfing Hardware International Holdings Pty Ltd v McCausland (2008) 171 FCR 533 at [86] per Foster J. Additionally the principal relief sought in the First Cross-Claim is closely analogous to a negative declaration. In substance the cross-claimants seek an order that they are not liable to the Palandri companies under their loan agreements. In Kolden Holdings Ltd v Rodette Commerce Ltd [2008] 3 All ER 612 at [7], Lawrence Collins LJ made the following observations about such claims: About 20 years ago Kerr LJ said that claims for negative declarations, in particular, "must be viewed with great caution in all situations involving possible conflicts of jurisdictions, since they obviously lend themselves to improper attempts at forum shopping": see Saipem SpA v Dredging VO2 BV and Geosite Surveys Ltd, Volvox Hollandia [1988] 2 Lloyd's Rep 361 at 371. Although that is not always the case (see Messier-Dowty Ltd v Sabena SA (No 2) [2000] 1 All ER (Comm) 833 at 842; [2000] 1 WLR 2040 at 2049 (para 36)), it is hard to resist the conclusion that the present case is one of the use of a claim for negative declarations to wrest jurisdiction from the natural forum.

[59]

129 It is said that the guarantor parties genuinely intend to litigate the NSW proceedings to finality and accept that they would be bound by that result in the Qld proceedings by reason of a simple issue estoppel: cf Flower & Hart (a firm) v White Industries (Qld) Pty Ltd (1999) 87 FCR134; and that, the parties to the NSW claims being different to the Queensland proceedings, as to the OMB parties themselves, the BOQ parties will not be subject to "double vexation by the same party with reference to the same matter" (McHenry v Lewis (1881) Ch D 397, at 406: Nestle Australia Ltd v Commissioner of Taxation (1987) 16 FCR 167, at 176). 130 Mr Cotman submitted that insofar as there was an incomplete set of proceedings in Queensland (by reason of the absence of the corporate franchisees) and the individuals do not obtain any tactical advantage by joining in the proceedings in New South Wales (but have, he says, if anything surrendered a tactical advantage but putting themselves forward in New South Wales proceedings where they would be bound by the outcome between the corporate entities and the BOQ parties) then there is no abuse of process. 131 It is submitted by Mr Cotman that, in effect, it is the BOQ parties who are seeking to triplicate the proceedings and, in effect, inviting the vexation of different sets of proceedings in different places at the same time (by not accepting the OMB parties proposal that the new proceedings should be litigated here). 132 Mr Cotman submitted that the abuse of process point fails to the extent that the fate of the two sets of proceedings (if they do cause procedural difficulties) could be dealt with by a stay either in New South Wales or in Queensland in whichever proceedings are thought logically to be subsequent to the other. 133 As to the question whether the institution of the proceedings in New South Wales by the individuals who had been sued by the Bank of Queensland in that state was an abuse of process, I am inclined to think that it was. I consider that the institution of proceedings which would, of necessity, involve a duplicity of proceedings (whether or not the OMB parties considered that New South Wales would be the more appropriate or natural forum for the hearing of their claims) is prima facie an abuse of process and I do not accept that sufficient reason or explanation was proffered for that situation having arisen. I do not think the position is akin to that considered in Mala. Rather, I think it is closer to the position in Tarrant. 134 The fact is that the OMB parties (not unreasonably) consider that it will be more cost efficient to run proceedings in tandem with the existing proceedings. However, it was not (nor cannot) be suggested that there was any abuse of process on the part of the BOQ parties in commencing the proceedings as they did in Queensland. The fact that a number of matters involving BOQ franchises are on foot in New South Wales does not mean that the BOQ parties must prosecute any and all claims in relation to BOQ franchises in this jurisdiction. Nor does the fact that they have been largely unsuccessful in having matters remain in the Queensland jurisdiction preclude them from commencing or prosecuting fresh claims against different parties there. 135 It does not seem to me to be an answer that there will be no duplication as a procedural matter if the Qld proceedings are stayed, particularly when no application for a stay has been pursued. 136 Had the corporate entities alone commenced proceedings in New South Wales and then sought to have the guarantor proceedings transferred to this jurisdiction, then I think it would be difficult to suggest that any abuse of process had occurred (and this I think is relevant in determining how best now to deal with the situation which has arisen). Of course, in one sense this is what happened - proceedings were instituted here by the corporate entities (albeit ones in which the individual guarantors joined as plaintiffs) after the Qld proceedings had been commenced and then an application was made for them to be cross-vested. The difficulty for the OMB parties was that that application was unsuccessful. 137 I have been troubled by the fact that the present application might be seen as an attempt to re-agitate the issues there determined unfavourably to the OMB parties. Nevertheless, his Honour's judgment appears to make clear that his Honour was not making a final determination in the sense that his Honour did not appear to preclude the cross-vesting issue being revisited if the conduct of the parallel proceedings in this jurisdiction could as a matter of logistics accommodate a transfer of the Qld proceedings in due course. 138 That raises the case management issues highlighted by the application now brought by the OMB parties for the new matters to be heard at the same time as the existing matters. Mr Couper, who cross-examined Mr Lacey as to the basis of his estimate that the present hearing dates would need to be extended by only two weeks if the proceedings were to be joined together (and as to why the five new matters were presently so little advanced and as to how it came to be the existing orders of the court had not been complied with in the existing proceedings), submitted that it was fanciful to suggest that the five New BOQ matters could be ready (on either side) by 1 August at all and as to the suggestion that this would result only in a minimal increase in the duration of the trial. 139 Mr Couper submits (and it seems to me that there is much force to this submission) that if the five New BOQ matters cannot be ready to be heard with the existing period proceedings commencing on 1 August 2011 then the entire underpinning of the motion by the OMB parties that the three Guarantor proceedings remain in New South Wales disappears.

[60]

140 The statements of claim filed in this Court in relation to the Qld proceedings were not filed until September 2010. There seems no doubt from the cross-examination of Mr Lacey that the resources of the OMB parties' solicitors have been stretched over the six month period in which new instructions were received and there were existing court commitments to be met (which suggests that the time frame now proposed in relation to the preparation of the five New BOQ proceedings for trial by August 2011 may well be optimistic). Mr Lacey said that there had been a focus in the past six months on strike out applications by the Bank of Queensland in relation to the Qld proceedings; a number of cross vesting applications; the preparation and filing of defences to cross claims in these proceedings; the progression of evidence and refinement of the existing proceedings; and the preparation of additional discovery in relation to the existing proceedings. He said that the decision to file affidavits in the New BOQ matters before defences had been filed (a somewhat unusual course and one which I might have thought was more likely to be for the purpose of supporting a claim that the matters would be ready to be heard by August next year) was because, for all intents and purposes, the proceedings were very similar and it was anticipated that the Bank of Queensland defences would (as it is said they have been in the other proceedings) be substantially identical. 141 I accept from Mr Lacey's evidence that the OMB parties' legal representatives have sought in this regard to prepare the New BOQ matters for trial in such a way as to achieve where possible savings in time and costs and to avoid potential inconsistency of results. 142 Mr Lacey's estimate of an additional 2 to 3 weeks' hearing time is based on the assumption that there would be cross-examination of 10 witnesses to be called by in the New BOQ matters but made no allowance for any evidence called by the Bank of Queensland in response to that evidence. Mr Lacey said that he expected that the large body of material filed by the BOQ parties in the existing proceedings (which he described as generic) would be common in relation to the new proceedings and that there would be little specific evidence in relation to the new individual franchises. Mr Lacey suggested that any new evidence in response on the part of the BOQ parties would not take an equivalent amount of time because of the commonality of some of the bank officers involved and the suggestion in the existing evidence that the bank parties were following a 'script'. 143 Mr Couper characterises the application for evidence in the New BOQ matters to be evidence in all (and vice versa) as an attempt to introduce by the back door into the Existing BOQ proceedings (after the time for the service of that evidence had expired) new evidence (by reference to the application made for evidence in the new proceedings to be heard as evidence in the existing proceedings). That may well depend on the outcome of the tendency evidence application to be heard next year. 144 Further, Mr Couper submits that the time taken in completion of the evidence in the Existing BOQ matters could give no confidence that the New BOQ matters would be ready for trial in 8 months' time. In particular, it is said that from the BOQ parties' perspective it would not only be necessary to obtain instructions in relation to the new matters from a number of bank officers (not all of whom remain employed by the Bank) but that, given the different time frame over which some of the representations in the New BOQ matters are said to have been made (the BOQ franchises in question having been entered into at a later point) there might need to be additional expert evidence. In that regard, I note that I was provided by Mr Cotman with a timeline of the respective franchises the subject of the existing and new proceedings from which it appears that there is not a precise overlap between the time periods in question. It is said that the BOQ parties will need to give consideration to the effect of that passage of time on the evidence and that it cannot therefore be assumed that there is no more evidence or no different evidence that the BOQ parties might choose to lead on the generic topics in issue. 145 Mr Cotman relies upon the correspondence between the parties in relation to the proposed proceedings to be filed in this Court and the suggestion made by the OMB parties (to which the BOQ parties did not accede) that the matters might more conveniently be dealt with in New South Wales. It is said that the personal defences of the guarantors in Queensland are a subset of what is an issue between the corporate OMB parties and the BOQ parties because, in relation to the corporate OMB's there is the issue of both the pre-opening representations and then the post-opening representation (as to the continuation of business). 146 Mr Cotman submits that there is a temporal link between the individual claims and the corporate claims and that if the corporate claimants succeed in New South Wales in having the arrangements set aside then the Queensland proceedings will to all intents and purposes be academic because there would be no underlying debt to which the guarantees could apply. Alternatively, it is said that if the corporate claims in New South Wales fail then the fact that the individuals are parties to these proceedings means that they would be bound by the result and hence estopped from asserting in Queensland the defences they have raised. 147 Insofar as the submission that this is application by the OMB parties is no more than seeking to re-litigate the cross-vesting application that did not succeed in Queensland, I was taken to the comments of his Honour on that application reported in Bank of Queensland v Jones [2001] QSC 322, from which it was apparent that his Honour was not making a final decision in that regard. His Honour (at [27]) expressed the view that it was not appropriate at that stage that the proceedings be cross-vested, the BOQ parties having indicated that their position was that they would not oppose cross-vesting if the matters could be dealt with in this Court without dislocation of the existing proceedings. In particular, while his Honour accepted that the Queensland proceedings were broadly related to the NSW proceedings, he was not satisfied it was more appropriate, or in the interests of justice that this Court determine these cases (at [21]) referring among other things to the improbability that the Queensland cases could seamlessly be added to those in this Court without dislocating the New South Wales timetable (especially given what he saw as the apparent difficulty of getting the New South Wales cases to their present point, over some years (at [25]) (a difficulty attributed by the OMB parties to the conduct of the BOQ parties I might add) and in the absence of an indication of preparedness on the part of this Court that the matters be added to the cases then being case managed by me. (In this regard, I note that there had not at that time been any new proceedings actually issued in this Court which it could have been suggested should be added to the cases then being case managed in this Court so that the issue was one which had not arisen for consideration in any concrete sense.) 148 Mr Cotman suggests that the time required for the matters to get to this point has been influenced by the interlocutory applications in which the parties have been engaged over the years and that it should not be assumed that it will take any length of time for the matters to be made ready for hearing. Mr Cotman also referred to the views previously expressed by Byrne J to the effect that it would be 'madness', 'perplexing and Dickensian… certainly to be avoided' (T 15.27, 16.51: Ex BD- 2 to Mr Hocking;s first affidavit sworn in relation to the present application at pages 222, 223) made in the context of there then being Queensland proceedings and in two courts in this jurisdiction (the Industrial Relations Commission and this Court), for there to be different proceedings against the Bank of Queensland involving the same or substantially the same issues and facts be heard separately in Queensland (as to the guarantors) and New South Wales (as to the OMB parties). 149 I consider that the transcript reference to which I was referred should (as should many transcript references) be treated with caution, given that it is recognized that weight cannot necessarily be placed in such courtroom utterances. In that regard a distinction is to be drawn between passing remarks (or "passing dicta", to use the terminology considered by Heydon JA (as his Honour then was) when sitting in the Court of Appeal, in Union Shipping New Zealand Limited v Morgan (2002) 54 NSWLR 690, at 734) and statements made in considered judgments. In Brunner v Greenslade [1971] Ch 993, at 1002-1003, Megarry J said: A mere passing remark or a statement or assumption on some matter that has not been argued is one thing , a considered judgment on a point fully argued is another, especially where, had the facts been otherwise, it would have formed part of the ratio. (my emphasis) 150 Justice Heydon writing in "Limits to the Powers of Ultimate Appellate Courts" (2006) 122 LQR 399, at 415 observed that: The attention to be paid to a statement on a point of law by an unquestionably great judge will vary with the circumstances in which it was made - whether it was made in the course of argument in open court while dealing with an example far removed from the case in hand; or made during an application for leave or special leave to appeal; or made in argument to counsel during an application for ex parte relief; or made in an interlocutory unreserved judgment; or made in a judgment in a case in which the loser was not represented, or argued by a litigant in person, or argued by very incompetent counsel; or made in an obiter dictum very far removed from either the core of the case or the arguments of the parties; or made in a case in which no party argued that the proposition was wrong. (Footnotes omitted) (my emphasis) 151 In having regard to transcript of the debate during the course of proceedings, I note that Kirby P (as his Honour then was) in Rajski v Bainton [1991] NSWCA 231 (at p3 line 7) expressed aversion to the attempt to "divine" the intention of the court from transcript (noting that "judges frequently put propositions in order to test them, without necessarily expressing any concluded opinion"). Therefore, I do not think it appropriate to place weight on the previous observations of Byrne J in considering the merits of the cross-vesting application there before his Honour over the comments made by de Jersey CJ on the more recent application in relation to the very same proceedings that are in issue on the application before me now. 152 I raised with Counsel what the position might be if I were to accept Mr Cotman's submission that it was not an abuse of process for these proceedings to have been commenced in New South Wales (or that they should not be struck out as an abuse of process) but was not convinced that it was appropriate to list the matters at this stage for hearing next year. That would seem to leave the undesirable situation where there were on foot three proceedings in this court in which the same issues would arise as those in the Supreme Court in Queensland (there being no application by the OMB parties to have the latter proceedings cross-vested here or for there to be any stay of either proceedings). Mr Couper noted that the OMB parties had not pursued an earlier application to stay the proceedings in Queensland. 153 As to the commonality of the matters is issue, there does not appear to be much dispute - rather the dispute is (as it has been on numerous previous occasions) where that dispute should be ventilated. Mr Cotman confirmed that the primary common complaint by all OMB parties is that the BOA parties expressly and/or impliedly represented to them that the Bank believed on reasonable grounds that there was a viable business of conducting branch operations of BOQ in NSW and the related representations as to its products being effectively competitive with those offered in NSW or that the Bank could or would effectively compete with NSW finance providers, when it is said that it did not and could not. The second common complaint is identified as the alleged representation to the OMB parties by the BOQ parties that the OMB party's lack of success in the conduct of the OMB's business was particular to the OMB concerned and did not reflect the general experience, so the OMB ought to continue to operate to attempt to achieve profitability. That representation is said to be false or misleading, by reason of the actual experience of the OMB's in NSW. 154 Mr Lacey's affidavit outlined the body of the common evidence filed by the BOQ parties in the Existing BOQ matters (as described in paragraphs 36 - 56 of Mr Lacey's affidavit) and the commonality of witnesses in that regard (para 43). It is said that only four of the 27 lay Bank witnesses are unique to a particular Existing BOQ matter.

[62]

156 It is submitted that it is in the interests of the 'just, quick and cheap' resolution of the real issues in dispute that all the OMB parties claims be dealt with at the same time in proceedings in this Court so as, among other things, to avoid the problems of multiple evidence and cross-examination of the same witnesses who are called to give evidence in relation to their own case or the case of a particular OMB (or the Bank) but whose evidence is also necessary for other OMB parties' cases and who will be relied on in all of the proceedings because the proceedings are heard at different times. 157 It seems to me that there is no doubt that it would make sense (from the point of view of the expeditious conduct of proceedings) that where there are proceedings with such commonality of issues and evidence they should be heard together if that can be managed without prejudice to the existing trial dates. There must, however, be a limit to this. It cannot be consistent with the objective of the just quick and cheap resolution of disputes for a plaintiff to continue to add new (though related) proceedings and to expect the defendant necessarily to be in a position to meet those new claims simply because it is convenient to the plaintiff to have them heard at the same time. 158 The crux of the present application it seems to me, as submitted by Mr Couper, is whether the additional matters can be ready for a trial at the same time as those already listed for hearing without prejudicing the trial dates or the defendants' preparation for the trial of both the existing and new matters. If that could be achieved (and the court is in a position to accommodate the extended time required for the hearing of the new matters) then common sense would suggest that the matters should be heard together. 159 That said, there is no application before me for the cross-vesting of the three Queensland matters to this Court. All that is before me is the application to strike-out or stay the claims by the guarantors in the present proceedings and to cross-vest the corporate vestige (if any) of those proceedings. 160 Furthermore, at this stage I am not confident that the additional matters will be ready for a hearing in August, particularly having regard to the fact that the BOQ parties may wish to adduce additional evidence (and perhaps expert evidence) as to the financial circumstances or outlook pertaining at the later times at which BOQ franchisees entered into the arrangements the subject of these proceedings. 161 If the new matters cannot realistically be ready for hearing in August, then there seems to me to be no reason to suggest that the guarantor proceedings should not be dealt with in the forum in which they were first commenced (Queensland). It is an appropriate forum and there can be no reason to suppose that the determination of the Existing BOQ matters by a judge of this Court would mean that it was more appropriate for the remaining matters to be dealt with by this Court. The risk of inconsistent findings would exist whether the additional matters were dealt with in this Court (given that it might then be heard by another judge of this Court) or in Queensland. Moreover, it is by no means clear that there is a risk of inconsistent findings (as opposed to different factual findings in different factual circumstances) where the issues of fact will be what representations were made to particular individuals in the particular circumstances of their case; what reliance was placed as a factual matter thereon; and what damages if any were suffered by those particular individuals. The results will not necessarily be the same in all the BOQ matters. Therefore it seems to me that the guiding factor should be the need for the expeditious conduct of the respective proceedings. 162 Given that I think it is obvious that there would be savings of time and cost if the proceedings were able to be heard at the same time, but am not convinced at this stage that this is an achievable outcome, I think that the appropriate course is to allow the proceedings to remain on foot in this Court for a further short period in order to see whether it is possible for the hearings to be heard together. I think this is consistent with the apparent recognition by the Queensland Supreme Court that at some stage it might be appropriate to amalgamate the sets of proceedings. 163 I note that the Existing BOQ matters will be before Ball J in the new law term for directions (and for consideration of issues in relation to tendency evidence). As his Honour will have the case management going forward of the Existing BOQ proceedings, I think it is appropriate for his Honour ultimately to form a view as to whether it is manageable for the New BOQ matters to be joined with them. Further, I think that allowing additional time for the BOQ parties to consider what evidence they will wish to adduce in response to the affidavits now served by the OMB parties and to prepare their defence to these claims will permit a more accurate view to be formed as to that issue. 164 If the matters cannot feasibly be heard together in August next year without prejudicing the ability of the BOQ parties to prepare for the hearing of those matters and the existing matters, then I am of the view that it would be an abuse of process for the same issues to be the subject of proceedings in both courts at the same time and I would accede to the BOQ parties' application for the matters to be cross-vested to Queensland. 165 I therefore propose conditionally to order that the proceedings in question (the Southpole, LJH and Best Deal proceedings) be transferred to the Supreme Court of Queensland pursuant to section 5(2) of the Jurisdiction of Courts (Cross-Vesting) Act that condition being that the orders should be stayed until, and subject to, a determination by Ball J as to whether the matters should be heard together with the Existing BOQ proceedings and subject to the proceedings in Queensland either being cross-vested to this Court or being stayed or discontinued either by consent or by order of the relevant court. In other words, if the OMB parties wish to have the matters determined at the same time as the existing matters in this Court then it is incumbent on them to satisfy Ball J that they can be ready for hearing by August next year and to make the appropriate application for the Queensland proceedings in that event either to be transferred to this Court or otherwise stayed. 166 So that there is no doubt, if no such determination is made by a particular date (as to which I will hear submissions from the parties) then unless Ball J otherwise varies these orders, then the stay would lapse and the order for the cross-vesting of the proceedings would take effect at that stage. I will grant liberty to the parties to apply to Ball J for a variation of the conditions on which the cross-vesting order is made or more generally to set aside or vary the orders so made. 167 I will hear the parties as to the form of the orders to be made and as to costs in relation to this aspect of the applications. 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