Australian Liquor Marketers Pty Ltd v Benchmark Hotels Pty Ltd & Anor [2013] QDC 225

1 [2013] QDC 225 DISTRICT COURT OF QUEENSLAND CIVIL JURISDICTION JUDGE ROBIN QC No 884 of 2013 AUSTRALIAN LIQUOR MARKETERS PTY LIMITED Plaintiff and BENCHMARK HOTELS PTY LTD and ANOTHER Respondents BRISBANE 11.55 AM, WEDNESDAY, 22 MAY 2013 ORDER CATCHWORDS Service and Execution of Process Act 1992 (Cth) s20 Acts Interpretation Act s38(2) Uniform Civil Procedure Rules 16, 22, 144 Defendant’s application objecting to jurisdiction of court, contending that the “appropriate court” is one in New South Wales- claim against customer and guarantor for price of goods delivered in New South Wales - demands for payment came from plaintiff’s Queensland premises - application refused as defendants raised no issue (with the possible exception of whether the agreements sued on had been signed) - impossible for the Courts to say what witnesses may be relevant -- 1 of 5 -- __________________________________________________________________________________ 2 ORDER HIS HONOUR: This is an application by the defendant under rule 16 in support of its conditional notice of intention to defend, filed at 3.15 pm on the 11th of April 2013. By rule 144(5) such a conditional notice of intention to defend becomes an unconditional one “if the defendant does not apply for an order under rule 16 within the 14 days”. In rule 144, the 14 days referred to is first mentioned in subrule (4) 5 which states that “the defendant must apply for an order under rule 16 within 14 days after filing” its notice. Today’s application was filed on the 26th of April 2013 and appears to be a day out of time. That’s not necessarily fatal to the application; see Vantage Holdings Pty Ltd v JHC Development Group Pty Ltd [2011] QCS 155 at paragraph 30 where reference is made to Sail Isle v Body Corporate for Surfers 10 Aquarius [2006] QDC 109 (q.v at paragraph 3). Another aspect requiring consideration in this regard is section 38(2) of the Acts Interpretation Act which or an equivalent provision if applied, would extend any time for taking a step which ended on Anzac Day to the following day. Mr Callanan for 15 the plaintiff was understandably cautious in mounting the technical argument that the application is too late. At one point during the hearing today, I observed that it might well be his best point, for, at first blush, it is surprising to find this proceeding begun in Queensland court. The drafter of the statement of claim was conscious of the potential difficulty in referring to order 22(2) paragraph (c) of which requires that a 20 pleading for a claim filed in the District Court show the court has jurisdiction to decide for the claim. The particulars given of the allegation, which is in paragraph 15 of the statement of claim, are that “(a) all demands made by the plaintiff to the defendants were made 25 from this jurisdiction, (b) the cause of action arose in this jurisdiction, (c) Brisbane is the central registry”. That last particular may have more relevance in a context where there’s argument that some other registry of the District Court of Queensland should be approached. The defendants’ deponent is Mr Sanchez who happens to be the second defendant and sued as guarantor in respect of the price of products 30 allegedly supplied by the plaintiff to the defendant at the Quest Hotel, which is described in the statement of claim as the name or style under which the first defendant trades. It is not the well-known Crest Hotel in Brisbane, but one in Sydney. 35 Mr Sanchez lives at Vaucluse in Sydney. He disposes that the first defendant’s principal place of business is there at Bondi Junction, and its registered office at an address in the central city. He may be describing the current situation because in paragraph 4 he says that the first defendant’s business premises were, at the relevant time, located at the Crest Hotel Kings Cross. He exhibits a count and search 40 indicating that the plaintiff’s registered office and principal place of business are located in New South Wales; he says that the billing address of the plaintiff on tax invoices sent out by it is at Silverwater in New South Wales which he asserts is the plaintiff’s principal place of business. Somewhat cagily, he deposes, “I’ve become aware that deliveries were made by the plaintiff to the defendant that are the subject 45 of the proceedings and that they were made to the business premises in New South Wales”. -- 2 of 5 -- __________________________________________________________________________________ 3 ORDER He exhibits documents which he says corroborate that. Also cagily in reference to the agreement upon which the plaintiff relies to establish liability in both defendants, he says “while I do not admit to a completed agreement or that it a valid agreement”. I note that clause 22 of the “trading terms” provides that the jurisdiction of the agreement shall be nominated by the plaintiff in schedule 1 of the agreement. No 5 state is nominated…and there is no agreement between the parties as to the jurisdiction in which to commence proceedings. Mr Sanchez, in the final paragraph of this affidavit, to which objection was taken by Mr Callanan on the ground that it swears to the issue, deposes that all witnesses likely to be called for the defendants reside in New South Wales. The Queensland connection relied upon by the plaintiff 10 is that its Brisbane office is the one from which it conducts its business for Queensland and New South Wales, being an office at Crestmead. Ms Eldridge deposes that the relevant application for credit account form dated 11 August 2009 in relation to the Crest Hotel was submitted to the plaintiff and received 15 in its Queensland office. She deposes that that’s where the credit application was accepted. She further deposes that the first defendant’s orders were received in its Queensland office from where arrangements were made for deliveries to occur as required by the first defendant. She deposes that all of the invoices were sent from the Queensland office, which also provides “all customer support”. 20 Applications like the present typically fall to be resolved under section 20 of the Service and Execution of Process Act 1992 of the Commonwealth. It offers no prospect in respect for a proceeding in this court of any course other than 25 staying the proceeding, or permitting it to go ahead, depending on the appropriateness of it to exercise jurisdiction. By subsection (3), the court may order a stay, “if it is satisfied that a court of another state that has jurisdiction to determine all the matters and issue between the parties, is the appropriate court to determine those matters.” It is perhaps a less than satisfactory notion that it’s always possible 30 to determine “the appropriate court”, and I note that in one of the cases often referred to, Blaxell J, while unable to say whether the appropriate court was one in Queensland or one in New South Wales, was satisfied that it was not one in Western Australia; see Valkama v Jamieson (1994) 11 SR (WA) 246. 35 That was a case of blatant forum shopping by a Queenslander injured in a road accident that occurred in New South Wales through the alleged fault of another Queenslander. She’d selected Western Australia on the basis that its limitations statute would allow her to proceed when she was, or might not be entitled to proceed in either of the appropriate jurisdictions. Section 20 (4) sets out “the matters that the 40 court is to take into account in determining whether it is the appropriate court”, as opposed to an identified court in another state. Here, I suppose, we’re talking about the District Court of New South Wales, although it has not been subject of any particular reference. The factors are: “(a) the places of residence of the parties and of the witnesses likely to be called in the proceeding; (b) the place where the subject 45 matter of the proceeding is situated; (c) the financial circumstances of the parties, so far as the court is aware of them; (d) any agreement between the parties about the -- 3 of 5 -- __________________________________________________________________________________ 4 ORDER court or place in which the proceeding should be instituted; (e) the law that would be most appropriate to apply in the proceeding; and (f) whether a related or similar proceeding has been commenced against the person served or another person; but do not include the fact that the proceeding was commenced in the place of issue.” 5 The court must be careful not to advantage the plaintiff, in other words, by any inclination to preserve the value of the work that it’s done in getting the proceeding underway. Dealing with the six factors, which are not stated to be exclusive, in reverse order: there’s no other proceeding for purposes of (f). There’s no reason to think that (e) has any role to play, or that the law of Queensland would differ from 10 that of New South Wales. Apropos (d), there is no agreement about jurisdiction between the parties, and apropos (c), there is no evidence about the financial circumstances of the parties. Ms Oliver accepted - she, appearing on the application for the defendants – that it would not be particularly onerous for the defendant to send witnesses to Brisbane. As to (b), the place where the subject matter of the 15 proceeding is situated, that would seem to me neither here nor there in the circumstances, since the subject matter really concerns only money and who might owe some to the plaintiff. Turning to (a), the difficulty about Mr Sanchez’ assertion is that the court is given by the defendants/applicants. No idea whatever what the issues are to enable it to reach a view as to what evidence and what witnesses might 20 be relevant. There’s no reason to think that there’s going to be any challenge to the plaintiff’s case in relation to deliveries of goods to the Crest Hotel or elsewhere in New South Wales, or that there might be issues about the fitness of goods delivered for their purpose and the like. 25 The only issue Mr Sanchez in his affidavit appears to raise is whether the agreement relied on by the plaintiff was executed by the first defendant, as the customer, or by him, as guarantor. Ms Oliver says her instructions are that he knows nothing about the identity or 30 residence of the Paul Totman whose name and signature appear in four places for the purpose of attesting what appear to be signatures of “Michael Sanchez” as customer. There is another such signature, unattested, on the following page where provision was made for affixing of the company seal, which seems never to have been availed of. In the end, I think that the defendants’ reticence regarding the issues makes it 35 impossible for the court to make a judgment today about the first of the considerations that the Act requires to be taken into account, and, it seems to me, effectively, the only relevant one; it may be regarded, I suppose, as bound up with factor (b). 40 It is established, by another influential authority in this area, that it’s for the applicant in a matter such as this to satisfy the onus of demonstrating a clear and compelling basis for relief, see Rick Cobby Pty Ltd v Podesta Transport Pty Ltd (1997) 139 FLR 54. Applicant defendants have fallen foul of what seems to be, a requirement to identify issues for the purpose of the court reaching a view about witnesses in cases 45 such as St George Bank v McTaggart (2003) 2 Qd R 568, and Programmed Maintenance Services Limited v The Shell Company of Australia Limited [2000] QDC 249. Another local case with some similarities to the present where it was difficult for the court to identify any balance of convenience for witnesses is -- 4 of 5 -- __________________________________________________________________________________ 5 ORDER Lenard’s Pty Ltd v Kimart Pty Ltd [2009] QDC 150, where it was contended that the only connection to Queensland was that the plaintiff had its place of business there. The circumstances were somewhat confused, given that, although the underlying agreements the parties had may have been negotiated elsewhere, the deed of termination which purported to resolve matters was negotiated in this state, where all 5 the plaintiff’s witnesses resided. I think it’s clear from Ms Eldridge’s affidavit that the plaintiff will have witnesses residing here. Although it’s not the outcome which I had foreseen on reading the filed material overnight, I think Mr Callanan is correct that the defendant’s material is simply too 10 thin and unsatisfactory to persuade this court a the court in New South Wales, which undoubtedly would have jurisdiction to consider all matters in this issue, is the appropriate court in the sense of the most appropriate one, rather than this court. The application is refused. 15 … HIS HONOUR: Yes. The first six or seven words go out, and it starts: The plaintiff’s costs of and incidental to this application to be assessed on the standard basis are its costs in the cause. Order as per initialled draft. 20 ______________________ -- 5 of 5 --