Dennis & Manteit v King & Anor [1994] QSC 29

( \. TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION BYRNE J No 1726 of 1993 RICHARD JOHN DENNIS AND M T MANTEIT and EUSTACE WALTER KING and DIANA MARY KING BRISBANE .. DATE 04/02/94 ORDER REVISED COPIES ISSUED State Reporting Bureau Date cJ, ,£ I 9V. I Plaintiffs Defendants 4th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 227 4360. Facsimile: (07) 227 5532 -- 1 of 5 -- 04029_4 HIS HONOUR: This is an application pursuant to section 5(1) of the Jurisdiction of Courts (Cross-Vestinq) Act 1987 for the transfer to the Sydney Registry of the Federal Court of Australia of proceedings commenced in this Court by R J Dennis and M T Manteit. Those plaintiffs are receivers appointed by two corporations pursuant to securities granted by the 10 applicants in respect of rural land in Queensland. The present applicants are the defendants in the action which the receivers commenced on 10 November last year by the issue of a specially endorsed writ seeking to recover possession of 20 the applicants' land. The applicants entered an appearance on 6 January. Before the appearance was entered, however, on 31 December 1993, the applicants themselves instituted proceedings out of the Sydney Registry of the Federal Court of Australia. These proceedings relate to the same land. A 30 company with which the applicants presumably are associated is also an applicant in those Federal Court proceedings; but it C' was not suggested that its involvement has any bearing on the (~) application before me. The respondents to those Federal Court proceedings are the two corporations which appointed the receivers in respect of the applicants' land. The receivers are not parties to the Federal Court proceedings. Again, however, it was not suggested that their absence from that litigation matters to the outcome of this application. In the Sydney proceedings the applicants, among other things, seek orders pursuant to section 87 of the Trade Practices Act 1974 setting aside the mortgages pursuant to which the receivers have been appointed and associated loan agreements. 2 ORDER 40 50 60 -- 2 of 5 -- 040224 The relief is sought on the footing that there have been misrepresentations and unconscionable conduct for which Crowley QC, for the the two mortgagees are responsible. Mr applicants, was disposed to concede that the claims made by the applicants in the Federal Court proceedings might have been maintained by counter-claim in the litigation in this Court. This concession is correct if, as I suppose must be the case, the receivers would have been joined as parties to such a counter-claim. Mr Crowley submits that the issues that arise on both This proceedings should be determined in the one Court. proposition is clearly correct. Indeed, it is not in contest. The appropriate tribunal, Mr Crowley submits, is the Federal Court of Australia in Brisbane. Mr Jackson QC, for the respondents today, venue. accepts that Brisbane is the appropriate The applicants envisage will be transferred to Court of Australia for that the proceedings in the Sydney Registry of the Court there then this Court the Federal to hear an application by the applicants to transfer both sets of proceedings to the Brisbane Registry of the Federal Court. The applicants undertake to make such an application if they succeed on this application. The receivers would not oppose such an application if the application before me today succeeds but resist the application today on the footing that it does not appear that the Federal Court of Australia is a more appropriate forum. 3 ORDER 10 20 30 40 50 60 -- 3 of 5 -- 0402~4 It is not, I think, presumptuous to assume that, if the application before me today succeeds, both proceedings will be transferred to. the Federal Court of Australia at Brisbane. In these circumstances the question seems to be whether it appears that the Brisbane Registry of the Federal Court of Australia is the more appropriate forum for the resolution of 10 all the issues now raised in both proceedings. Mr Crowley contends that the Federal Court is the more appropriate forum because the major issues to be resolved concern alleged contraventions of section 51AA and section 52 of the Trade Practices Act and the claim for relief under section 87 of that Act. law in which the These, Federal it was said, Court of are areas of the Australia has "traditionally" exercised jurisdiction. Perhaps motivated by tact, Mr Crowley refrained from suggesting that any other consideration made the Federal Court of Australia a more appropriate venue for the resolution of the contests. For many years Judges of this Court have been determining claims of a kind (misrepresentations and unconscionable conduct) now often founded on alleged contraventions of section 51 AA and section 52 of the Trade Practices Act; and Judges of the Court have for some years dealt with claims based on those sections and with claims for relief under section 87. In these circumstances, appeals to tradition can hardly be persuasive. Quite apart from any significance the deed made between the applicants and the receivers on 16 November 1993 may have, it 4 ORDER 20 30 40 50 60 -- 4 of 5 -- ( 040224 has not been made to appear that the Federal Court of Australia is the more appropriate forum. Were it necessary to consider the deed its contents would, I am inclined to think, afford other reason for thinking that this Court, rather than the Federal Court, is the appropriate venue. That is because under its terms the applicants have, in effect, conceded the receivers' right to possession of the property. But, in the view I take, it is not necessary to decide the ramifications of the deed for present purposes. In applications of this sort, it is often not desirable for elaborate reasons to be given: cf Voth v. Manildra Flour Mills Pty Ltd ( 1990) 171 CLR 538, at page 565. I do not propose to say more. The application is dismissed. HIS HONOUR: There will be a further order that the applicants pay the respondents' costs of and incidental to the application to be taxed. 5 ORDER 10 20 30 40 50 60 -- 5 of 5 --