Equus Financial Services Ltd v Thornton [1991] QSC 393

'I'llANSCRIPT OF -PROCEEDINGS State Reporting Bureau, 4th F1oor, Tne Law Courts, George Street, BRJSBANE. 0. 4000 ·r el. (07) 227.4360 (Copyright in this transcript is veSied . 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 CHAMBERS MASTER WHITE No 1690 of 1991 EQUUS FINANCIAL SERVICES LTD and BARRY THORNTON BRISBANE .. DATE 3/12/91 JUDGMENT r;~"0, 7ir:O~~::~: i.::~~ -~:; :: ... -~~. : ··1 J Cot•r' ;._,,.,:,rtj,·. .-1 ;:·,., .·,:; [ l , .... J./". ' ' J --4.- ~ _...,,__,. .. _< ___ ,~--~ . Plaintiff Defendant 1 -- 1 of 4 -- 10 20 031291 JUDGMENT MASTER: These are my brief reasons for the decision to which I have come. This is an application for the stay of Queensland proceedings on the basis that there are presently on foot proceedings in the Australian Capital Territory in which the applicants seek relief on an originating summons or summonses for declarations with respect to obligations to the present respondent/plaintiffs. The pending proceedings here in a specially endorsed writ are for the recovery of money said to be owing under an assignment~ The original agreement has, as its law in Clause .25, the law of the ACT. It is not an exclusive ;/ l i 10 20 30 30 :50 jurisdiction clause. The respondent/plaintiff in these proceedings carries on business in Queensland and is incorporated in Victoria. The natural parties, Mr Harrison's clients, reside in and have land around Brisbane. The test which I should apply has been agreed, in essence, between both Mr Harrison and Mrs Wolfe, who appears for the respondent, to be found in Voth v. Manildra Flour Mills Pty Ltd ( 1990) 171 CLR 538, which, in_short, ·is whether it can be said that the present Court is or is not a clearly inappropriate forum for the ,hearing of the_ action sought to be stayed. It has been suggested_ in an affidavit of Kenneth Rose that there are similar or related matters on foot in the District Court 50 __E_,O___, ______________________________________,i 6G Govt. Prmter. Old 2 -- 2 of 4 -- 0 ,031291 JUDGMENT in Queensland, but I really need to disregard that because no further information is revealed in the affidavit material about those actions. :o ! It is said that an eatlier disposition of the OS can be had in the ACT than might be had of the writ action in Queensland. The affidavit of Mr Hogg sworn on information - and belief is that the contested list in the ACT is quite short and a hearing might'be had in March 1992. My concern is that the relief sought by the respondent/plaintiff here cannot be obtained on the present proceedings in the ACT or, indeed, truly litigated there. ,0 0 ' The ACT proceedings are not before me and therefore it is speculative as to what form they actually take, but it does seem plain that· pleadings- are not currently envisaged in , that action; not that that is necessarily determinative of the matter, but it certainly would appear that the seeking of declarations in an originating summons would not encompass the present-relief sought by the respondent/plaintiff in this action. It has been raised by Mr Harrison that his clients will be disadvantaged by the necessary delays· in having the matter heard in this Court because the interest charged on the debt- pursuant - to, - the agreement is• - 20 per cent. Because there is not ah application before me for cross-vesting this action to the ACT - and, indeed, there could not·be as Masters do not have that Jurisdiction - ana although it is foreshadowed by Mrs Wolfe that there will be I I 10 20 30 50 ' 60 '--4---------------------------------------J Govt Printer. Old. 3 -- 3 of 4 -- 10 20 30 50 60 031291 JUDGMENT an application to cross-vest the ACT proceedings to the Supreme court of Queensland, they do not seem to me to be matters that I can take into account in this application. That being so, I am concerned only with the matters that I should consider for the stay of the writ proceedings here in Queensland. Having considered those matters and, particularly, my concerns about the nature of the proceedings in the ACT, I have formed the conclusion that the Supreme Court of Queensland is not an inappropriate forum for the continuation of the proceedings brought by the respondent/plaintiff and, accordingly, I would dismiss the application for a stay. However, I should observe that it seems quite inappropriate that two sets of proceedings should remain on foot which have, at their heart, the same subject matter. No doubt the parties will seek to reconcile this fact in some way, if not by agreement then by applications to one or other of the Courts. So, I dismiss the application and dismiss the summons. I set aside the conditional entry of appearance of each applicant and give leave to each applicant to file an unconditional entry of appearance by 10 December 1991 . . __ _,_., Further order that the applicant pay the respondent's costs of and incidental to this application to be taxed. ~- -- / . ---, ----- r ./ C:::: . ) ,,, i .- -~"" L. / , -...... ' ....... '-..,.'.-,-/· '- -------·-.•f -------~------ l ...... ----- ,.--- - ~-·- Gove Printer. Old 4 (.__ c;,- , \ / 10 20 3J 40 50 60 -- 4 of 4 --