Callinan, Kerr & Deeb v De Kantzow & Ors [1990] QSC 243

IN THE SUPREME COURT OF QUEENSLAND No. 975 of 1990 Before Mr. Justice Mackenzie BETWEEN: AND: AND: AND: CATCHWORDS: Counsel: IAN DAVID FRANCIS CALLINAN, RONALD VIVIAN KERR and GEORGE WILLIAM DEEB as TRUSTEES AND EXECUTORS OF AND FOR AND ON BEHALF OF THE ESTATE OF LADY TROUT SERGE DE KANTZOW DAVID BLAIR LIDDY and CHRISTINE MARGARET LIDDY GRACE BROS. PTY. LTD. MARGRET MEAGHER JUDGMENT - MACKENZIE J. Plaintiffs First Defendant Second Defendants Third Defendant Fourth Defendant Delivered the 2nd day of August, 1990. P. Lyons Q.C. and D. O'Reilly for applicants D. Andrews for first respondent T. Matthews for second respondent Solicitor for third respondent Solicitor for fourth respondent Solicitors: Henderson Trout for applicantsFeez Ruthning for first respondent Nicol Robinson & Kidd for second respondentByrne Nosworthy & Doyle for third respondentCrowley & Greenhalgh for fourth respondent Hearing date: 25th July, 1990. 3 -- 1 of 7 -- IN THE SUPREME COURT OF QUEENSLAND BETWEEN: AND: AND: IAN DAVID FRANCIS CALLINAN, RONALD VIVIAN KERR and GEORGE WILLIAM DEEB as TRUSTEES AND EXECUTORS OF AND FOR AND ON BEHALF OF THE ESTATE OF LADY TROUT SERGE DE KANTZOW DAVID BLAIR LIDDY and CHRISTINE MARGARET LIDDY GRACE BROS. PTY. LTD. MARGRET MEAGHER JUDGMENT - MACKENZIE J. No. 975 of 1990 Plaintiffs First Defendant Second Defendants Third Defendant Fourth Defendant Delivered the 2nd day of August, 1990. In this action relief is sought in respect of an alleged failure to perform an agreement made between the plaintiffs and the first or second defendants through their agent, the third defendant. The writ alleges that the agreement was made in Queensland or, alternatively, in New South Wales. -- 2 of 7 -- 2 Resolution of this issue depends on the effect of meetings and other contacts between the agent of the plaintiffs and certain of the defendants. There is also a claim against the third defendant for damages for breach of warranty of authority represented to the plaintiffs in Queensland and for damages pursuant to s. 82(1) of the Trade Practices Act 1974 for a breach of s. 52 thereof. A similar Trade Practices Act claim is made against the fourth defendant. Appearances have been entered by the second, third and fourth defendants. A conditional appearance has been entered by the first defendant._ The writ is endorsed: "To the extent necessary, the plaintiffs invoke and rely on the cross-vesting laws as conferring jurisdiction on the Supreme Court of Queensland in respect of each claim herein." The cross-vesting laws are a legislative scheme comprising complementary legislation of the Commonwealth Parliament, the Parliaments of each of the States and of the Northern Territory, a major purpose of which is to eliminate, as far as possible, sterile jurisdictional arguments which might otherwise result in identical or related matters being the subject of proceedings in more than one court. The Supreme Court of Queensland has jurisdiction, irrespective of the cross-vesting legislation, over the claims in the writ to the extent that relevant transactions and events are alleged to have occurred in Queensland. Bys. 86 of the Trade Practices Act 1974 the Supreme Court of Queensland has -- 3 of 7 -- 3 jurisdiction in respect of the claims under the Trade Practices Act. Bys. 4(3) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (N. S. W.) the Supreme Court of another State has jurisdiction conferred on it to hear matters in which the Supreme Court of New South Wales has jurisdiction otherwise than by reason of a law of the Commonwealth or of another State. Section 9 of the corresponding Queensland Act empowers the Supreme Court of Queensland to exercise the jurisdiction thus conferred. Therefore, to the extent that action may lie in the Supreme Court of New South Wales in respect of relief sought by the writ; the Supreme Court of Queensland has been conferred with jurisdiction to determine it by virtue of those provisions. The Supreme Court of Queensland therefore has authority to deal with all the matters in dispute in the writ. The summons for directions now before me arises from 0. 98 of the Rules of the Supreme Court. Order 98 r. 5 provides:- "Service 5 (1) Notwithstanding Order 11 any originating proceeding or notice of an originating proceeding that contains a claim in which the cross-vesting laws are relied on may be served outside the jurisdiction. ( 2) Where a defendant is served outside the jurisdiction under sub-rule (1) and the defendant does not enter an unconditional appearance no further step shall be taken by the plaintiff unless the Court gives leave to proceed. (3) The Court shall not give leave to proceed unless it is satisfied - (a) that jurisdiction under the cross-vesting laws is being invoked; and (b) that the Court is a convenient Court in which to determine the matter. -- 4 of 7 -- 4 (4) ( 5) An order under sub-rule ( 2) giving leave to proceed does not prevent the court from subsequently transferring the proceeding to another Court." Order 98 r. 6 provides:- 11Directions 6 (1) The first party to invoke the cross-vesting laws shall take out a summons for directions and serve it on all other parties. (5) On the hearing of the summons for directions the Court shall give any direction or make any decision as to the conduct of the proceeding that the Court thinks proper. II The summons as amended asks for such directions as to the conduct of this action as the court considers proper. It also seeks leave to proceed against the first defendant pursuant to O. 98 r. 5. Mr. Lyons Q.C. for the applicants submitted that this was a case where the Supreme Court of Queensland was a "convenient Court". He pointed out that the relevant events occurred substantially in Queensland, that the action arises out of the assets of a testator domiciled in Queensland, that the executors and trustees were appointed pursuant to a Queensland grant, that the plaintiffs' agent is a Queensland resident and that there was evidence that a hearing could be expected more quickly in Queensland than in New South Wales. I pointed out in argument that the lastmentioned matter would not, in my view, be a critical matter having regard to the philosophy of the cross-vesting scheme. Mr. Lyons submitted that it was an appropriate case for leave to proceed. -- 5 of 7 -- 5 Mr. Andrews for the first defendant argued that leave should not be granted on the basis that the Supreme Court of Queensland is not a "convenient Court". He asked me to infer that the defendants were all in New South Wales and that therefore the Supreme Court of Queensland was not a "convenient Court", especially as there was no evidence about the location of witnesses whom the plaintiffs would be calling. He referred to 0. 11 r. 1 and submitted, as I understand it, that as the case against his client was not clearly one within the categories in 0. 11 r. 1 because it was alleged in the alternative that the agreement was made in Queensland or New South Wales, I should not grant leave. Mr. Matthews for the second defendant and the solicitor for the fourth defendant supported these arguments. The solicitor for the third defendant neither consented to nor objected to the orders sought. The question whether a court is a "convenient Court" is posed with a view to preventing, at the outset, abuse of the cross-vesting scheme, an example (without being exhaustive) being a case where there is no nexus with the jurisdiction in which the action was begun. It is a quite distinct question from the question whether it is "more appropriate" that the matter be determined by one court rather than another under s. 5 of the respective Acts. The nature of proceedings under 0. 98 and the terms of 0. 98 r. 5(5) are indicative of this. It is plain that there is, in this case, a substantial nexus with Queensland, although on one aspect of the matter, it may ultimately prove that a relevant agreement was made in New South Wales rather than Queensland. However, at this stage of -- 6 of 7 -- 6 proceedings, there is a clear justification for commencing the action, as framed, in Queensland. The kind of jurisdictional problem referred to by Mr. Andrews is a kind which the cross-vesting legislation is designed to avoid. In my opinion there is no substance in either of the points. I am satisfied that - (a) jurisdiction under the cross-vesting laws is being invoked in respect of the plaintiffs' allegations to the extent that the arrangement relied on may have been entered into in New South Wales; and (b) the Supreme Court of Queensland is a convenient Court in which to determine the matter. I give the plaintiffs leave pursuant to O. 98 r. 5 to proceed in the action against the first defendant. Mr. Lyons Q.C. did not ask for any particular directions as to the conduct of the action and I see no reason why the matter should not proceed in the normal way. Accordingly, I do not consider it necessary to give any directions. The orders that I make are the following:- 1. I give leave to proceed against the first defendant pursuant to 0. 98 r. 5. 2. I order that the costs of and incidental to this application be costs in the cause. -- 7 of 7 --