Cadbury Schweppes Pty Ltd, Re [1993] QSC 246

0 0 () '- u ! SE?VISED COt'!t.::i 1!::>:::-L!!.::u I Cour1 Reporting Bureau State Reporting B'tifCail3 - Se.. ~3/«.'7'"b 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 CULLINANE J No OS 65 of 1993 < /l ./// /. / / I / / I ~ i )!/' IN THE MATTER OF THE DISTRICT COURTS ACT 1967 IN THE MATTER OF AN APPLICATION UNDER SECTION 86 OF THE DISTRICT COURTS ACT 1967 BY CADBURY SCHWEPPES PTY LTD TOWNSVILLE .. DATE 27/07/93 JUDGMENT 1 .... --·- ,.... - ----~- r-~~~n C:N-ool- Rr;dumP. n. 4000 Telen1mnl': fn7l ??7 4~!)n Fnrdwr17o• /(17\ ??7 ~~':l'l -- 1 of 4 -- 'I· 270793 10 20 50 60 HIS H6NOUR: In this matter the a~plicant/defendant se~ks an ordei transferririg'the action to the~supreme Court. The grounds of the application are that its counterclaim is one . . in respect of which the District Court has no jurisdiction. ~he' respon~ent accepts that. the counterclaim is one which has to b~ tra~sferred.·to the S~~re~e-Court but opposes the transfer of the action seeking to have its claim against the applicant proceed in the District Court. The respondent se~ks to have a mortgage set aside and also ".,, claims amongst other relief~ damages. The respondent claims in relation to the mortgage· the subject of the proceedings: .. (a) A total failure of· consideration, (b) Misle~ding and d~ceptiie conduct under se6tion 52 of the Trade Practic~s Act 1974 as amended, (c) Breaches of section 47 of the Trade Practices Act, (a) Unconsriionable conduct. . The applicant has counterclaimed against the respondent, ·-·' Murray only, claiming damages in the sum of $143,024.70 under section 592 of the Corporation Law. A speedy trial has been ordered in the District Court. The grounds on which the application is opposed are summarised in Exhibit ALK15 to the affidavit of Anthony John - Govt. Printer, Qld. . 2 JUDGMENT 10 20 0 0 30 40 0 50 60 -- 2 of 4 -- . ·.: ; 210793 '1 Knox. It is clear and was conceded that there is a good deal of overlapping in the evidence to be considered in the claim and counterclaim with much evidence focusing on the financial position of North Queensland Beverages Proprietary Limited 10 and the cause thereof. It is true that there may be emphasis on the financial position at somewhat different periods but much evidence will, I am satisfied, be common to the claim and the counterclaim. The second respondent is, I was informed, the de facto wife of the first respondent and both are represented by the same solic~tor and counsel. There are undoubt~dly factors c=) referred to in the exhibit already mentioned which militate against the orders sought. But these, _in my view, are 0 0 30 outweighed by the desirability of having the matters in dispute resolved in the same proceedings with the savings in i cost and time which will result . . In my view, the balance I I II I 40 1 I 50 60 substantially favours avoiding duplication of litigation between the parties. I therefore propose to make the orders sought. I am prepared to make an order that the action be tried speedily but this will require a further app~oach from the parties. The application will be allowed. I order that action number 142 of.1993 District Court, Townsville be transferred to the Supreme Court, Townsville . · -Govt. Printer, Old. 3 JUDGMENT -.-.- 10 20 30 40 50 60 -- 3 of 4 -- -, ~ 270793 HIS HONOUR: I order the costs of the plaint and counterclaim and of this application be costs in the cause. 10 10 20 20 0 0 30 ·30 0 40 40 0 50 50 60 60 . -Govt. Printer, Old. 4 JUDGMENT -- 4 of 4 --