Bi Rite Electrical Pty Ltd v Choice Electrical Pty Ltd & Ors [2009] QSC 303

SUPREME COURT OF QUEENSLAND CITATION: Bi Rite Electrical Pty Ltd v Choice Electrical Pty Ltd & Ors [2009] QSC 303 PARTIES: BI RITE ELECTRICAL PTY LTD ACN: 011 039 571 (plaintiff / respondent) v CHOICE ELECTRICAL PTY LTD (first defendant / first applicant) JOE BAINI (second defendant / second applicant) RICHARD PRELORENZO (third defendant / third applicant) FILE NO/S: BS 6883 of 2009 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 23 September 2009 DELIVERED AT: Brisbane HEARING DATE: 21 September 2009 JUDGE: Chief Justice ORDERS: 1. That the application be dismissed. 2. That the applicants pay the respondent’s costs of and incidental to the application, those costs to be assessed on the standard basis. 3. That liberty be reserved to the parties to apply for a different costs order, in writing within seven days. CATCHWORDS: PROCEDURES – COURTS AND JUDGES GENERALLY – COURTS – CONCURRENT JURISDICTION OF DIFFERENT COURTS – TRANSFER OF PROCEEDINGS UNDER CROSS-VESTING LEGISLATION – WHERE APPROPRIATE AND IN INTERESTS OF JUSTICE – application for transfer of proceeding under cross-vesting legislation – interests of justice Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) s 5(2)(b)(iii) BHP Billiton Ltd v Schultz (2004) 221 CLR 400, cited -- 1 of 5 -- 2 COUNSEL: P D Hay for the plaintiff D Aghion for the defendants SOLICITORS: McMillan Boylson Lawyers for the plaintiff Lillas & Loel Lawyers Pty Ltd for the defendants [1] CHIEF JUSTICE: The defendants seek an order, under s 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-vesting) Act 1987, transferring the proceeding to the Supreme Court of Victoria. The defendants do not contend that the Supreme Court of Queensland lacks jurisdiction, but that it would be in the interest of justice that the matter proceed in the Supreme Court of Victoria. See BHP Billiton Ltd v Schultz (2004) 221 CLR 400. [2] The plaintiff claims approximately $1.3 million as the unpaid price of goods delivered to the first defendant in Melbourne between July 2006 and March 2009. The plaintiff is based in Brisbane. The claim is brought under a licence agreement which the plaintiff alleges the defendants (the second and third defendants as guarantors) executed and returned on or about 1 July 2006. The defendants allege it was executed somewhat earlier. The governing law under that licence agreement was Queensland law. [3] The first defendant defends and counter-claims on the basis of alleged misrepresentation as to the prices to be charged for the goods, and invokes the Victorian Fair Trading Act, for the relevant provisions of which there is no Queensland equivalent; and relies on a “heads of agreement” document separately from the licence agreement. The governing law under that “heads of agreement” document would be Victorian law. The plaintiff denies being bound by any such agreement, and contends that it would in any event have been superseded by the licence agreement – as with any precedent representation. -- 2 of 5 -- 3 [4] The submissions going to the appropriateness of the Supreme Court of Queensland as the forum dwelt principally on the location of witnesses likely to be called on various issues, and the respective financial capacities of the parties. [5] Mention was also made of issues of cost and delay, but there is no ground for concluding that their impact would vary from jurisdiction to jurisdiction in any significant way. Likewise, I would not see any disproportion between the financial capacities of the plaintiff and the first defendant as significant: even were there sufficient evidence of it, the position is that each party is demonstrating the financial capacity to pursue and defend the respective claim and counter claim. The application of other factors, such as the home bases of the companies, is neutral. [6] The claims was properly brought in Queensland, under a licence agreement concluded here, in respect of the unpaid price of goods where the monies were payable here. The licence agreement contemplated that the claim would be brought in the relevant Queensland court. [7] Mr Hay for the plaintiff disputed the relevance of the negotiations in Victoria, in light of the licence agreement which the plaintiff would contend was subsequently executed. But I accept that proof of those negotiations may be relevant. [8] As to witnesses, Mr Aghion, for the defendants, submitted that of five critical witnesses in relation to what transpired, only one, Mr Sacur, lives in Brisbane, whereas the others (Messrs Baini, Prelorenzo, Eid and Brown) live in Victoria. Two of those witnesses are professionals whose practices would be disrupted were the case to be proceed in Brisbane. Also, the first defendant has already retained an expert witness on loss, who is stationed in Victoria. -- 3 of 5 -- 4 [9] On the other hand, while disputing the relevance of the evidence of the negotiations in light of the licence agreement, Mr Hay submitted that each of the plaintiff’s four directors would need to give evidence, and all of them live in Queensland. (Mr Aghion disputed the need for evidence from all of those directors.) In addition, a witness in a managerial position within the plaintiff’s organization would need to give evidence of the non-receipt of the heads of agreement. Further, the plaintiff would wish to call its own expert forensic accounting evidence, presumably from a witness based in Queensland. [10] The present difficulty is deciding the scope of the evidence to be adduced at trial, and thereby identifying necessary witnesses. It is very early in the piece. [11] It is not possible at this stage to conclude with confidence which issues will survive the interlocutory progress of the proceeding to the point where it will be necessary that oral evidence be called at the trial. Some obviously will. Others may very well disappear through the process of disclosure of documents, or because of responses to notices to admit and the like. The disagreement between Counsel is indicative of that. It was not just adversarially explained, but also by the reality that one could at this stage to a not insubstantial degree only speculate as to how the proceeding will progress. [12] It fell to the applicants to establish that the interests of justice warrant transferring the proceeding to Victoria. Their Counsel relied substantially on the location of the likely witnesses. In the context of the preceding discussion, I am not satisfied that consideration warrants transferring the matter to the Supreme Court of Victoria, and in addition, I am not satisfied that the aggregation of all of the circumstances to -- 4 of 5 -- 5 which reference was made in the course of the submissions warrants taking that course. [13] The application is accordingly refused, with an order that the applicants pay the respondent’s costs of and incidental to the application, those costs to be assessed on the standard basis. [14] I reserve liberty to the parties to apply for a different costs order, in writing within seven days. -- 5 of 5 --