Accfin International Securities Corporation Ltd v National Trustee Executors & Agency Co of Aust Ltd & Ors [1990] QSC 138

10 20 30 40 50 _IN THE SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION . BEFORE MR. JUSTICE MACKENZIE . _BRISBANE, 9 MAY 1990 (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporter,Court Reporting Bureau.) BETWEEN: ACCFIN INTERNATIONAL SECURITIES CORPORATION LIMITED -and- NATIONAL TRUSTEE EXECUTORS AND AGENCY CO. OF AUSTRALASIA LTD. AS TRUSTEE OF THE W.G. BALAAM FAMILY TRUST -and- RUSSELL MCDONALD BROWN and IAN GEOFFREY MIDDLETON -and- NATIONAL TRUSTEE EXECUTORS AND AGENCY CO. OF AUSTRALASIA LTD. AS TRUSTEE OF THE W.G. BALAAM FAMILY TRUST -and- KAVALI INVESTMENTS PTY. LTD. and GEOFFREY GILBERT DART -and- WALTER GRAHAM BALAAM ORDER Plaintiff First Defendant Second Defendant First Third Party Second Third Party Third Third Party HIS HONOUR: I will now proceed to deliver my decision on the summons under the Jurisdiction of Court· (Cross-Vesting Actt) 10 20 30 40 50 ___6~0::__+----------------------------------~ 60 -Govt. Printer, Qld. 1 -- 1 of 10 -- 10 20 I order that these proceedings be transferred from the Supreme Court of Queensland to the Supreme Court of Victoria. I further order that the costs of the proceedings incurred to dat~ including the costs of and incidental to this application, be the costs in the proceedings in the Supreme Court of Victoria. HIS HONOUR: I will make a specific order that the costs of the proceedings on 27 April 1990 before me be paid by the third third party. HIS HONOUR: I adjourn the summons for directions to a date to be fixed by the Victorian Supreme Court.· .Th·e costs of that summons fur directions will be reserved to 30 the Victorian Supreme Court. 40 50 60 I should say that I publish my reasons in the other matter. -Govt. Printer, Old. 2 10 20 30 40 50 60 -- 2 of 10 -- IN THE SUPREME COURT OF QUEENSLAND No. 2683 of 1984 Before Mr. Justice Mackenzie BETWEEN: AND: AND: AND: ACCFIN INTERNATIONAL SECURITIES CORPORATION LIMITED NATIONAL TRUSTEE EXECUTORS AND AGENCY CO. OF AUSTRALASIA LTD. as Trustee of the W.G. BALAAM FAMILY TRUST RUSSELL McDONALD BROWN and IAN GEOFFREY MIDDLETON Plaintiff First Defendant Second Defendants NATIONAL TRUSTEES EXECUTORS AND AGENCY CO. OF AUSTRALASIA LTD. as Trustee of the W.G. BALAAM FAMILY TRUST KAVALI INVESTMENTS PTY. LTD. and GEOFFREY GILBERT DART First Third Party Second Third Party WALTER GRAHAM BALAAM Third Third Party JUDGMENT - MACKENZIE J. Delivered the 9th day of May, 1990. Counsel: R. Perry for applicants (second defendants) M. Daubney for second third party, G.G. Dart Solicitors: Thynne & Macartney as t/ a for Primrose Couper Cronin Rudkin for plaintiff Flower & Hart for applicants (second defendants) Cannan & Peterson for first third party Holmans for second third party, G.G. Dart Clarke & Kann for third third party Hearing dates: 4th and 12th April, 1990. -- 3 of 10 -- IN THE SUPREME COURT OF QUEENSLAND BETWEEN: AND: AND: AND: AND: No. 2683 of 1984 ACCFIN INTERNATIONAL SECURITIES CORPORATION LIMITED NATIONAL TRUSTEE EXECUTORS AND AGENCY CO. OF AUSTRALASIA LTD. as Trustee of the W.G. BALAAM FAMILY TRUST RUSSELL McDONALD BROWN and IAN GEOFFREY MIDDLETON Plaintiff First Defendant Second Defendants NATIONAL TRUSTEES EXECUTORS AND AGENCY CO. OF AUSTRALASIA LTD. as Trustee of the W.G. BALAAM FAMILY TRUST KAVALI INVESTMENTS PTY. LTD. and GEOFFREY GILBERT DART First Third Party Second Third Party WALTER GRAHAM BALAAM Third Third Party JUDGMENT - MACKENZIE J. Delivered the 9th day of May, 1990. -- 4 of 10 -- 2 This is an application by the second defendants for an order that these proceedings (the "Queensland proceedings") be transferred to the Supreme Court of Victoria. I am informed that the action is to be discontinued against the first defendant. However, the first defendant is also a third party and is prepared to consent to the application. The plaintiff also consents. Of the other third parties, one of the second third parties, Kavali Investments Pty. Ltd., is no longer interested in the proceedings and was not represented. Geoffrey Gilbert Dart, the other second third party, initially did not consent or oppose the application but when the matter was before me on the second occasion he was represented by counsel who presented argument against the application. The third third party conceded in principle that the matter should be transferred to Victoria but was contemplating contesting the third party notice that recently had been issued against him. He submitted that he had had inadequate time since he had been served to take proceedings with a view to setting aside the notice. After I had heard argument on the matter, I reserved my decision to 27th April, 1990, to allow sufficient time for any such application to be made if the third third party wished to do so. The major concern appeared to be that if such an application was made he wished to ensure that it would be dealt with according to the Queensland Rules relating to procedure. Section 11 of the Jurisdiction of Courts (Cross-vesting) Act 1987 is concerned with the selection of the law to apply and I expressed the view that if the third third party was concerned about that, the length of the adjournment would give him the -- 5 of 10 -- 3 opportunity to bring an application in Queensland and avoid the risk that it might not be applied in the event that I was satisfied that the matter should be transferred. No convincing reasons have been advanced for the fact that the application was listed before the Master only on the day when I was to deliver judgment. As it turned out, the Master set aside the third party notice and I was then asked by counsel for the applicant second defendants to giye judgment and, if I ordered that the proceedings be transferred, to stay the operation of the order until they had the opportunity to appeal to a Judge in Chambers against the Master's decision. Rather than do that, I adjourned the matter until today to allow the appeal to be instituted, heard and determined. Yesterday, Mr. Justice de Jersey allowed the appeal, set aside the Master's order and also set aside the conditional appearance on behalf of the third third party. No leave to appeal was sought from Mr. Justice de Jersey in respect of his decision. The position thus is that the third third party is once again involved in the Queensland proceedings. The Queensland proceedings were commenced by writ, the claim being for $1 million and interest due to the plaintiff from the first defendant under a guarantee of advances to Anantamul Pty. Limited pursuant to facility agreements dated 12th July, 1981 and 3rd May, 1982. The writ was amended on 11th November, 1985 for the purpose of joining the second defendants on the basis that it was they who were trustees of the W. G. Balaam Family Trust when the -- 6 of 10 -- 4 guarantee was entered into, having been replaced by the first defendant at a later date. The first, second and third third parties became involved at the instance of the second defendants who claim indemnity from each of those third parties. It is apparent from this brief history that while the plaintiff's claim is for moneys owing to it, the mode of operation of the Trust and the respective liabilities of the defendants and the third parties have become issues in the Queensland proceedings. Proceedings were commenced in the Supreme Court of Victoria (the "Victorian proceedings") on 29th June, 1988 by the third third party in the Queensland proceedings and a company not involved in the Queensland proceedings against the second defendants in the Queensland proceedings. A perusal of the statement of claim in the Victorian proceedings indicates that they are concerned, inter alia, with the operation of the same Trust that is involved in the Queensland proceedings and also involves the question of liability of the Trust in respect of certain transactions including the one giving rise to the Queensland proceedings and the liability of the defendants in the Victorian proceedings (who are the second defendants in the Queensland proceedings) in respect of the operation of the Trust. It is apparent that the Victorian proceedings are likely to be wider ranging than the Queensland proceedings, but some of the issues are common to both. In particular, the transaction in respect of which the plaintiff instituted the Queenslan·d -- 7 of 10 -- 5 proceedings is one of the transactions involved in the Victorian proceedings. The majority of persons involved in the Queensland proceedings are agreeable to the Queensland proceedings being transferred to Victoria. However, in my opinion, the wishes of the parties are not decisive of the issue. I am required by s. 5(2) of the Jurisdiction of Courts (Cross-vesting) Act 1987 to consider whether the Queensland proceedings arise out of or are related to the Victorian proceedings and it is more appropriate that the Queensland proceedings be determined by the Supreme Court of Victoria. As the issues in the unfolded, in my opinion it Queensland proceedings can be properly said have now that the Queensland proceedings are related to the Victorian proceedings, although I would have been rather less inclined to so find had the issue simply been whether the plaintiff was entitled to recover its debt. The added dimension of the relationship between the second defendants and the third parties, in my view, provides the real basis for finding that there is a relationship between the two proceedings. I am then required to decide whether it is "more appropriate" that the Queensland proceedings be determined by the Victorian Supreme Court. An affidavit by Geoffrey Gilbert Dart was in evidence before me. The affidavit advanced grounds for not transferring the matter to Victoria as being:- ( a) his witnesses relevant to the determination of the issue o·f indemnity are resident in Queensland; -- 8 of 10 -- 6 (b) the events and transactions relating to the subdivision in respect of which the money was advanced took place in Queensland; (c) the documents relating to the transactions and events came into existence in the State of Queensland; and (d) banking records relating to the transactions were prepared and held in Queensland. I allowed him to be cross-examined on this affidavit. At the end of that cross-examination it appeared to me that if the case were comprehensively conducted in Victoria the witnesses to whom Mr. Dart referred would, in all probability, be called in those proceedings in any event. In addition, one would realistically expect that any documentation that was necessary in respect of those transactions would be assembled for the purpose of the Victorian proceedings in any event. None of the grounds advanced for resisting a transfer to the Victorian Supreme Court in that affidavit are, to my mind, cogent. I have finally concluded that the balance is tilted in favour of the Queensland proceedings being dealt with in the Victorian Supreme Court because it is desirable that the issues that will, on the pleadings, be litigated in the Queensland proceedings as between the defendants and the third parties be litigated only once, if possible. That result will more likely be achieved if the issues in the Queensland proceedings, which appear to be only one aspect of the Victorian proceedings, are litigated in or in conjunction with those proceedings. It is of course a matter for the Supreme Court of Victoria to decide whether the Queensland proceedings are consolidated -- 9 of 10 -- 7 with the Victorian proceedings or whether they remain separate. What I have said is not intended to express any view on that. However, in my opinion, it is undesirable for litigation involving the same issue to be conducted concurrently in two jurisdictions and as the Victorian proceedings apparently include what appears to be the major issue in the Queensland proceedings as one aspect of a broader range of issues, I have come to the conclusion that on balance the Queensland proceedings should be transferred to the Victorian Supreme Court. Accordingly I order that these proceedings be transferred from the Supreme Court of Queensland to the Supreme Court of Victoria. I further order that the costs of the proceedings incurred to date, including the costs of and incidental to this application, be costs in ½he proceedings in the Supreme Court of Victoria. -- 10 of 10 --