Aaron Range Pty Ltd v Wilquay Pty Ltd & Ors [1994] QSC 75

( IN THE SUPREME COURT OF QUEENSLAND TOWNSVILLE w. No. 161 of 1993 BETWEEN: AARON RANGE PTY. LTD. A.C.N. 054 524 908 Plaintiff AND: AND: AND: !!Q: WILQUAY PTY. LTD. A.C.N. 052 271 726 ROBERT KENNEDY VENNARD CHERYL ANNB VENNARD GLEN MALCOLM FINLAYSON First Defendant Second Defendant Third Defendant Fourth Defendant REASONS FOR JUDGMENT - CULLINANE J. DELIVERED THE TWENTY-FOURTH DAY OF MARCH, 1994. An application has been made in this matter and in action Nos. 162 of 1993 and 13 of 1994 for an order under section 5 sub- sections (2) and (6) of the Jurisdiction of Courts (Cross- Vesting) Act 1987 that these proceedings (the Queensland proceedings) be transferred to the Supreme Court of Victoria. Section 5(2) and (6) provide respectively as follows:- (2) Where - (a) a proceeding (in this subsection referred to as the "relevant proceedings") 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 -- 1 of 10 -- (~ 2 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 proceedings 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 -- 2 of 10 -- ( 3 Territory, the first court shall transfer the relevant proceedings to that other Supreme Court. (6) Where - (a) a court (in this subsection referred to as the "first court") transfers a proceeding to another court under a law or laws relating to cross-vesting of jurisdiction; and (b) it appears to the first court that - (i) there is another proceeding pending in the first court that arises out of, or is related to, the first-mentioned proceeding; and (ii) it is in the interests of justice that the other proceeding be determined by the other court, the first court shall transfer the other proceeding to the other court. The Applicant seeks an order pursuant to section 5(2)(b)(i) and/or ( iii). The proceedings in Victoria were instituted in the latter part of 1993. The pleadings have been placed before me. They involve a claim by two companies, Horticultural Strategic Investments Limited and Aaron Range Pty. Ltd. (the latter being one of the Respondents here) against the Applicant before me the National Australia Bank Limited. The plaintiffs in the Victorian litigation allege that the bank agreed to assign certain securities and debts to a company Unicorn Ltd. -- 3 of 10 -- ( 4 or its nominee on certain terms. It is alleged that Unicorn Ltd. assigned all of its right title and interest in that agreement to Horticultural Strategic Investments Limited and that the latter company nominated and appointed Aaron Range Pty. Ltd. to act on its behalf with respect to the purchase of the securities and debts from the bank. The bank admits the agreement but alleges that the assignee repudiated the agreement and that the bank accepted such repudiation. Included in the securities and debts alleged to have been assigned was a mortgage over the land the subject of the three Queensland actions and the monies thereby secured. No pleadings have at this time been delivered in the ( Queensland proceedings but the issues said to arise are"'- .. _ / outlined in an affidavit filed by the Applicant in support of each application. The Respondents did not contest the statements in the affidavits as to the issues. In interlocutory proceedings last year, orders were made as to the possession of the land until the question of ownership is resolved. In action No. 161 of 1993, Aaron Range Pty. Ltd. has instituted proceedings against four Defendants. It in summary alleges that it has purchased the land from the registered proprietor Queensland Mango Producers Pty. Ltd. The contract is subject to certain special conditions which are set out in -- 4 of 10 -- ( 5 the affidavit filed in support of the applications. Again in summary it is the case for the plaintiff in No. 161 of 1993 that the debt secured by the mortgage and the mortgage have been assigned pursuant to the assignment the subject of the Victorian litigation and that upon completion of the contract the debt owing by Queensland Mango Producers Pty. Ltd. will be discharged. An injunction restraining the Defendants from entering upon the lands is sought. For the special conditions to which the contract is subject to be satisfied a valid assignment from the bank of the security and debt have to be established. That is of course the issue in the Victorian proceedings. In action No. 162 of 1993 the plaintiff alleges that he purchased the land from the Applicant bank as mortgagee. The bank is the Defendant in those proceedings. The date of the agreement sued upon postdates by a significant period the date of the alleged assignment the subject of the Victorian proceedings. The plaintiff in No. 162 of 1993 is in possession of and has apparently expended substantial sums upon the land to maintain a mango plantation and to produce a crop of mangoes. An amendment to the writ of summons to claim damages has been foreshadowed. The agreement has not proceeded to completion and the plaintiff seeks a declaration that there is a valid and -- 5 of 10 -- ~- 6 binding agreement for the sale of the land. I have used the term plaintiff in the singular but there are in fact two plaintiffs and the action is brought upon the basis that the bank agreed to sell the land to one or other of the plaintiffs. zt is said on behalf of the Applicant that this action depends for its success upon a resolution of the issue the subject of the Victorian proceedings in favour of the bank. In view of the notice of the plaintiffs in this action of the alleged assignment this may well be so so far as the claim for the declaration is concerned although this may not be the only issue which arises on this claim. In action No. 13 of 1994 the plaintiff is the registered proprietor of the land, Queensland Mango Producers Pty. Ltd. zt seeks a declaration against the Applicant bank and four Defendants who are the Defendants also in action No. 161 of 1993 that the plaintiff is entitled to possession of the land. Zn addition it seeks an injunction restraining the various Defendants from entering upon the land and also claims damages for trespass and conversion. It is this action to which section 5(6) is said to apply. The plaintiffs in action No. 13 of 1994 and No. 161 of 1993 are related and have the same directors. It was made clear that action No. 13 of 1994 was instituted to cover the eventuality that the plaintiff in action No. 161 of 1993 did not succeed in establishing its title. The primary aim is to establish the assignment and the right of Aaron Range Pty. -- 6 of 10 -- ( ( 7 Ltd. thereunder and the discharge of the indebtedness secured by the land. If Aaron Range Pty. Ltd. is not able to do this whilst Queensland Mango Producers Pty. Ltd. may establish a right to possession it will remain indebted for a very substantial sum to the Applicant bank. The various Respondents to this application oppose the making of an order. There is affidavit material filed on behalf of the Respondents Wilquay Pty. Ltd, Robert Kennedy Vennard, Cheryl Anne Vennard and Glen Malcolm Finlayson. The affidavit material is directed towards what is said to be the increased costs associated with the litigation of these matters in Victoria as compared with Queensland because of the need to take witnesses to Melbourne in the event of the transfer. Counsel for these Respondents emphasised the costs associated with establishing the damages claimed against the bank which damages primarily relate to expenditure upon the plantation. It was said that in the event these applications failed it was likely an application would be made to transfer the Victorian proceedings to Queensland. For the Respondents Aaron Range Pty. Ltd. and Queensland Mango Producers Pty. Ltd. it was suggested that on the state of the material before the Court it was not possible to conclude that there would be any more expeditious resolution of matters in Victoria than in Queensland and that in fact the reverse was probably correct. I think that it is correct to assume that the Respondents, Wilquay Pty. Ltd., Robert Kennedy Vennard, Cheryl Anne Vennard -- 7 of 10 -- ( '--- / 8 and Glen Malcolm Finlayson will or may be exposed to additional costs in the event that the proceedings are transferred to Victoria. As to the Respondent, Aaron Range Pty. Ltd., it is one of the plaintiffs in the Victorian proceedings and has instituted proceedings there seeking to have resolved the issue upon which its prospects of success in action No. 161 of 1993 depends. The dealings between the bank and the plaintiffs in the Victorian action all occurred in Victoria. The contract upon which Aaron Range Pty. Ltd. in action No. 161 of 1993 sues was entered into in Victoria. The land the subject of the Queensland proceedings is situated near Bowen. The Respondents, Robert Kennedy Vennard and Cheryl Anne Vennard, live at Bowen as presumably does the Respondent Finlayson. The Court of Appeal in New South Wales in Bankinvest A.G. -v- Seabrook & Ors. 1988 90 A.L.R. 407 examined the legislation under consideration here and its nature and purpose. As Street C.J. said at p. 409, an application of this kind requires the Court to determine which court is the most appropriate, in pursuit of the interests of justice, to hear and determine the substantive dispute. It is clear that if both the Victorian and the Queensland -- 8 of 10 -- ( 9 litigation proceeds the same issue or issues will have to be resolved by the Courts in each state. The Queensland proceedings will of necessity focus upon the dealings between the first plaintiff and the assignor to the first plaintiff in the Victorian proceeding and the bank which are the subject of those proceedings. That action is concerned with a number of securities and debts of which the security and debt relating to the relevant land form part. The Victorian proceedings have reached the position where pleadings have been delivered whereas no pleadings have yet been delivered in the Queensland proceedings. zt was accepted at least by counsel for the Respondents, Wilquay Pty. Ltd., Robert Kennedy Vennard, Cheryl Anne Vennard and Glen Malcolm Finlayson, that it was inevitable that either the Queensland proceedings would be transferred to Victoria or the Victorian proceedings transferred to Queensland. There is of course no application to transfer the Victorian proceedings to Queensland at this time. The Victorian proceedings raise issues which will be largely determinative of the claims raised in the Queensland proceedings. zt is true, that the Queensland proceedings involve additional issues and parties not involved in the Victorian litigation. A similar situation existed in Bankinvest A.G. -v- Seabrook (supra). Notwithstanding the fact that there are additional issues and parties and that \ -- 9 of 10 -- 10 some extra expense may be incurred by the Respondents who are residents of Queensland, I think the only realistic way of avoiding duplication of litigation, as the circumstances presently stand, is to transfer these proceedings to Victoria. If one considered a notional application to transfer the Victorian proceedings to Queensland the case for such a transfer would be far outweighed by the case for the transfer of the Queensland proceedings to Victoria. I am persuaded on the material that it is the proper course to take to order the transfer of the Queensland proceedings to the Supreme Court of Victoria. In this matter there is an application for an order that National Australian Bank Limited be added as a Defendant to the proceedings. It is the Defendant in the other Queensland proceedings and I think it appropriate to make such an order in this action also. I order that National Australia Bank Limited be added as a Defendant in action no. 161 of 1993. I order that these proceedings (No. 161 of 1993) be transferred to the Supreme Court of Victoria. -- 10 of 10 --