Supreme Court New South Wales

• Medium Neutral Citation: Perpetual Trustee Company Ltd as custodian for the Balmain Aqua Construction Debt Pool and the Balmain AQUA Mezzanine Debt Pool v Keith Laurence Batt [2014] NSWSC 1211
• Hearing dates: 29 August 2014
• Decision date: 02 September 2014
• Jurisdiction: Equity Division
• Before: Robb J

Decision

Order that the defendant's notice of motion filed on 30 May 2014 be dismissed.

• Catchwords: PROCEDURE - jurisdiction of the courts - application to transfer proceedings to Supreme Court of Queensland - whether it is in the interests of justice - what is the most appropriate forum
• Legislation Cited: Australian Securities and Investments Commission Act 2001 (Cth) ss 12GD, 12GF, 12GM; Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) s 5(2)(b)(iii); Trade Practices Act 1974 (Cth) ss 80, 82, 87
• Cases Cited: Bankinvest AG v Seabrook (1988) 14 NSWLR 711; BHP Billiton Ltd v Schultz [2004] HCA 61; (2004) 21 CLR 400; James Hardie & Coy Pty Ltd v Barry (2000) 50 NSWLR 357; Valceski v Valceski [2007] NSWSC 440
• Category: Interlocutory applications
• Parties: Perpetual Trustee Company Ltd as custodian for the Balmain Aqua Construction Debt Pool and the Balmain AQUA Mezzanine Debt Pool (plaintiff); Keith Laurence Batt (defendant)
• Representation: Counsel: I C Giles (plaintiff); C N Bova/N Lim (defendant); Solicitors: K & L Gates (plaintiff); Dowd and Company (defendant)
• File Number(s): 2014/110434

Judgment

1 By notice of motion filed on 30 May 2014 the defendant, Mr Keith Laurence Batt, seeks an order that these proceedings be transferred to the Supreme Court of Queensland, Brisbane Registry.

2 The defendant relies upon s 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW), which provides:

(2) Where:

(b) it appears to the [Supreme Court] that:

...

(iii) it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of another State or of a Territory, the [Supreme Court] shall transfer the relevant proceeding to that other Supreme Court.

3 The question is whether it is in the interests of justice that these proceedings be transferred to the Supreme Court of Queensland.

4 The plaintiff, Perpetual Trustee Company Ltd sues in the capacity as custodian for the Balmain Aqua Construction Debt Pool and the Balmain AQUA Mezzanine Debt Pool. It commenced these proceedings by statement of claim filed on 11 April 2014. It claims judgment against the defendant for $7,132,982.07, plus interest and costs. The basis of the claim as pleaded is that the defendant is liable to the plaintiff under a guarantee entered into on 21 December 2007 in respect of the debts owed by a company called Queensland Property Partners Pty Ltd (QPP), in its own right and as trustee for the Keith Batt Family Trust.

5 On 21 May 2014 the defendant's solicitors foreshadowed in a letter to the plaintiff's solicitors that the defendant would make the present application.

6 On 30 May 2014 the defendant filed a defence and cross claim. The plaintiff is the only cross defendant.

7 The evidence establishes that QPP was registered in Queensland on 19 May 1998. Receivers and managers of QPP, who are resident in Sydney, were appointed on 17 January 2012. A winding up order in respect of QPP was made on 8 August 2012.

8 The letter of offer made to QPP for the facility agreement was signed by the defendant on behalf of QPP in Brisbane. The guarantee was also signed by the defendant in Brisbane. The address of the plaintiff given in the guarantee was an address in Sydney. The addresses of the guarantors, including the defendant, were all in Queensland. By clause 9.4 and Item 4 of the guarantee the proper law was the law of Queensland. A solicitor with an office in Brisbane witnessed the defendant's signature to the guarantee.

9 The letter of offer shows that the plaintiff made the advance to QPP for the purpose of refinancing loans, and financing the construction of dwellings, on land situated in Brisbane.

10 The defendant resides in Brisbane and conducts his business affairs from an office in Brisbane. The ASIC Current & Historical Extract for QPP shows that from 7 May 2011 the company's principal place of business was an address in Bothwell, Tasmania. In his evidence the defendant said that the company's principal place of business was changed, from the Queensland address that it previously had, following the defendant's location to Tasmania, where he had moved for "an indeterminate period". The defendant did not give evidence as to when he relocated his residence to Brisbane.

11 The office of the defendant's solicitors is in Brisbane, and they have retained agents in Sydney for the purpose of conducting the proceedings on behalf of the defendant to date.

12 The plaintiff has an office in Brisbane, but the office with the conduct of the plaintiff's claim against the defendant is in Sydney. As I have said, the office of the receivers and managers of QPP is in Sydney, and that is likely to be where the books and records of the company are presently held.

13 The office of the plaintiff's solicitors is in Sydney, but they also have an office in Brisbane.

14 The defendant claims that, if the proceedings continue to be conducted in Sydney and not Brisbane, he will have to take time off from running his business to travel to Sydney to provide instructions to his solicitors; he will incur costs associated with conducting the proceedings in Sydney, additional to those that he would ordinarily incur if the proceedings were commenced and conducted in Brisbane; and he will incur costs associated with transporting to Sydney witnesses to give evidence in the trial of the matter, who would otherwise not be required to travel to Sydney to give evidence in the matter.

15 An assessment of the identity and location of the witnesses who are likely to be called at the hearing requires a consideration of the pleadings.

16 In its statement of claim the plaintiff makes a number of allegations concerning its title to sue, to which the defendant has reasonably responded in his defence that he cannot admit the allegations after having made reasonable enquiries. The relevant allegations are that at all material times the plaintiff has been custodian of loans made by the two debt pools (par 2); the plaintiff was appointed as custodian of loans made from the debt pools (par 3); a certain company was appointed to be the investment manager of the debt pools (par 4); certain companies were at different times the Responsible Entities in relation to the debt pools (par 5); the last-appointed Responsible Entity subsequently became the trustee of the debt pools (par 6); and one of the original debt pools was deregistered and the facility agreement with QPP was transferred to another debt pool.

17 Realistically, all of these matters are likely to be provable by documents. Those documents are likely to be in the possession of the plaintiff in Sydney. The location of documents may be significant, even though in the modern age, when relevant documents are identified, they can be sent anywhere in a twinkling. Relevant documents must first be identified, before they can be analysed and used, and it may be necessary for searches to be carried out of hard copy files to identify and collate relevant documents. When the necessary documents are provided to the defendant, he may admit the allegations, but it is not yet known whether he will do so. Given the amount at stake, if the matters are in issue at the hearing, it would ordinarily be considered prudent for the plaintiff to prove the documents through witnesses who are qualified to do so. That may require evidence from one or more witnesses. Those witnesses are likely to be ordinarily resident in Sydney.

18 The defendant has not yet admitted that QPP entered into the facility agreement on 16 May 2008, and progressively drew down the facility to $8,818,897 (par 7). The defendant has given evidence that, "subject to confirmation that the sum of money pleaded in par 7 of the Statement of Claim was advanced to QPP" he has given instructions to his solicitors to admit the allegation. It may be that the plaintiff will be able to deploy documents from records situated in Sydney that will satisfy the defendant, so that he will amend his defence to admit the facility agreement. If he does not, then the plaintiff would ordinarily put the necessary documents into evidence from the plaintiff's perspective through a witness likely to be resident in Sydney, and it may also be necessary to put into evidence QPP's documents, which are presently held by the receivers and managers in Sydney. One of the receivers and managers, or one of their staff, may be necessary to prove the documents.

19 The defendant has admitted that he signed the guarantee (par 10), but not that the plaintiff made advances to QPP. It will not be necessary for the witness to the defendant's signature on the guarantee to be called. In the manner that I have considered above, it is still open that the plaintiff will have to prove strictly the making of the advances to QPP.

20 Additionally, the defendant has not admitted that QPP is in default (par 15), or that the plaintiff served a notice of demand on QPP (par 16). As long as this circumstance continues, the plaintiff will probably have to call one or more witnesses, who are resident in Sydney, from the plaintiff and possibly the office of the receivers and managers.

21 The defendant has not admitted a number allegations made by the plaintiff concerning the terms and of the facility agreement and the guarantee. Proof of those allegations will depend upon the wording of the documents.

22 It may be that only a small number of witnesses are needed to prove strictly the allegations in the statement of claim that the defendant has not admitted

23 The defendant's cross claim ultimately depends upon an allegation that a person called David Jones, who the defendant understood was an employee of a company known as "Balmain", advised the defendant in a meeting before he signed the guarantee that "the guarantee was a formality and [the lender] would never enforce it" (par 7(b)(ii)). The defendant pleads in par 8 of his cross claim that David Jones represented to the defendant that he was the agent of the lender for the purpose of arranging loans to entities such as QPP, and that David Jones warranted to the defendant that he was authorised by the lender to make the representations that he made to the defendant. The cross claim does not appear to contain an allegation that in fact David Jones was the agent of the plaintiff, or any entity for which the plaintiff is responsible, and does not allege that David Jones was authorised to make the representations. For the purposes of the present application, that omission may be ignored.

24 The only relief that the defendant seeks in his cross claim is relief under ss 80, 82 and 87 of the Trade Practices Act 1974 (Cth), or alternatively under ss 12GD, 12GF and 12GM of the Australian Securities and Investments Commission Act 2001 (Cth), which if granted would have the effect of discharging the defendant's liability under the guarantee, or compensating him for the amount of that liability.

25 The cross claim will raise issues as to David Jones' knowledge of the business of QPP and the defendant, whether David Jones made the representations alleged, and if he did, whether he acted as agent for, or otherwise with the authority of, the plaintiff, so that the plaintiff, or some other entity for which it is responsible, is bound by the representations.

26 Neither the cross claim, nor the evidence, clearly establishes "Balmain's" role in the transaction, or the nature of its business, or its relationship with the plaintiff, or any entity for which the plaintiff is responsible. (I note that "Balmain" appears in the name of the debt pools on behalf of whom the plaintiff sues, but that is inconclusive). It is not clear whether Balmain acted as an independent finance broker, or as an agent of the lender (although the defendant described David Jones as "a finance broker"). There is evidence that David Jones was a director of Balmain.

27 The defendant said in his first affidavit that "all of the witnesses I would seek to call to defend the proceeding, ordinarily reside in Brisbane". Apart from himself, the witnesses have not been identified. The defendant implies that he may call David Jones, who is a resident of Brisbane. The defendant did not positively assert that a decision has been made to called David Jones in his own case. He did not say that a proof had been obtained from that gentleman. It would ordinarily be considered imprudent for a party, who alleges (in substance) that he has been defrauded by a particular person, to call that person as a witness in the party's own case. I would not decide this application on the assumption that the defendant will call David Jones on the strength of the evidence that the defendant has given.

28 The plaintiff's evidence was, without showing the relationship, if any, between the plaintiff and Balmain, that the plaintiff was likely to call David Jones in its case, and for that purpose would bring him to Sydney to be proofed, and would be content to pay his travel and accommodation costs for the purposes of giving evidence. That is the more likely outcome.

29 It is likely that evidence will be given concerning the relationship between the plaintiff, or any other entity for which it is responsible, and Balmain; Balmain's business practices; and, most importantly, the authority of David Jones, or Balmain, to bind the plaintiff, or any entity for which it is responsible, by any representations that he made to the defendant. Balmain's head office is in Sydney, although it has an office in Brisbane from which David Jones worked. It is most likely that the necessary witnesses will ordinarily be located in Sydney, although it is possible that evidence from somebody who works in the Brisbane office of Balmain will be necessary.

30 On the issues raised by the pleadings, a number of factors that at first appear to connect the proceedings with Brisbane are unlikely to be relevant to the determination of the dispute. It should be immaterial that the facility agreement and the guarantee were signed in Brisbane. The defendant did not submit that Queensland law, as the proper law of the guarantee, would govern any issue. Nor was it suggested that, if any rule of Queensland law applies, it is in any way different from the equivalent law of contract in New South Wales. For example, it was not suggested that any Queensland statute is applicable. The fact that the loan was made in order to finance the construction of dwellings in Queensland is also immaterial. If any relevant representations were made by David Jones to the defendant, they were made in Queensland, but the defendant has not suggested that the location of the making of the representations is material.

31 The statutes that are the source of the rights claimed by the defendant are Commonwealth statutes, and in that respect are indifferent to whether events occurred in one State or another.

32 Legal questions are likely to arise concerning the authority of David Jones to make representations binding upon the plaintiff, or any entity for which it is responsible. It may be that the Commonwealth statutes themselves will be the source of the resolution of that issue. If questions of agency or authority arise under the general law, it is not clear whether and to what extent the law of Queensland or New South Wales, or both, might apply. The defendant did not suggest that there would be any relevant differences between the laws of the two States.

33 In essence, the defendant's submission on the application was that the court must determine which forum is "more appropriate". If the court concludes that Queensland is the more appropriate forum, then it must make the order sought to transfer the proceedings to the Supreme Court of Queensland. The defendant submitted that there were two primary factors engaged in the present case, which must lead to the conclusion that Queensland is the more appropriate forum. The first factor, which the defendant described as "substantive connection", justified the submission that the substantive controversy is overwhelmingly connected to Queensland. The defendant relied on the connecting factors that I have set out above. The second primary factor, which the defendant described as "balance of convenience to parties and witnesses", supported the submission that the balance of convenience favours a Queensland forum because that is where the defendant resides, and that is where the most important witnesses reside.

34 Both parties in their submissions properly relied upon the decision of the High Court in BHP Billiton Ltd v Schultz [2004] HCA 61; (2004) 21 CLR 400. It is appropriate to set out the principal passages from the decision upon which the parties relied.

35 The parties agreed that the following statements, which are taken from the judgment of Gleeson CJ and McHugh and Heydon JJ, accurately state the principles to be applied. That is so notwithstanding that these three Justices dissented in the specific result of the appeal. The treatment of the relevant principles by the Justices in the majority is substantially consistent. Their Honours said:

[13] In Bankinvest, Street CJ said (omitting footnotes):

The cross-vesting legislation passed by the Commonwealth, the States and the Territories both conferred on each of the ten courts Australia-wide jurisdiction and set up the mechanism regulating the transferring of proceedings from one of these ten courts to another. In relation to transfer, the common policy reflected in each of the individual enactments is that there must be a judicial determination by the court in which proceedings are commenced either to transfer or not to transfer the proceedings to one of the other nine based, broadly speaking, upon consideration of the interests of justice ... It calls for what I might describe as a 'nuts and bolts' management decision as to which court, in the pursuit of the interests of justice, is the more appropriate to hear and determine the substantive dispute.

[14] In the context of the Cross-vesting Act, one is not concerned with the problem of a court, with a prima facie duty to exercise a jurisdiction that has been regularly invoked, asking whether it is justified in refusing to perform that duty. Rather, the court is required by statute to ensure that cases are heard in the forum dictated by the interests of justice. An application for transfer under s 5 of the Cross-vesting Act is brought upon the hypothesis that the jurisdiction of the court to which the application is made has been regularly invoked. If it appears to that court that it is in the interests of justice that the proceedings be determined by another designated court, then the first court "shall transfer" the proceedings to that other court. There is a statutory requirement to exercise the power of transfer whenever it appears that it is in the interests of justice that it should be exercised. It is not necessary that it should appear that the first court is a "clearly inappropriate" forum. It is both necessary and sufficient that, in the interests of justice, the second court is more appropriate.

...

[18] There is nothing unusual, either in the State or the federal judicature, about actions between residents of different Australian law areas. Federal diversity jurisdiction is an obvious example. Actions in New South Wales courts are commonly brought by residents of other States, especially when the residence or principal place of business of the defendant is New South Wales. Reference is sometimes made to one forum or another being the "natural forum". Such a description is usually based upon a consideration of "connecting factors", described by Lord Goff in Spiliada as including matters of convenience and expense, such as availability of witnesses, the places where the parties respectively reside or carry on business, and the law governing the relevant transaction. Lord Templeman described such factors as "legion", and said that it was difficult to find clear guidance as to how they are to be weighed in a particular case. Thus, New South Wales might well be the "natural forum" for an action for damages brought by a passenger in a motor vehicle against the driver if they were both residents of New South Wales, even though the injury resulted from a collision that occurred on the other side of the Queensland or Victorian border.

[19] In many cases, there will be such a preponderance of connecting factors with one forum that it can readily be identified as the most appropriate, or natural, forum. In other cases, there might be significant connecting factors with each of two different forums. Some of the factors might cancel each other out. If the action is between two individuals, and the plaintiff resides in one law area and the defendant in another, there may be no reason to treat the residence of either party as determinative, although, as already noted, it will ordinarily be the residence of the defendant that is important to establish jurisdiction. Weighing considerations of cost, expense, and convenience, even when they conflict, is a familiar aspect of the kind of case management involved in many cross-vesting applications.

36 The defendant emphasised that the more appropriate forum must be determined using the approach found in Bankinvest AG v Seabrook (1988) 14 NSWLR 711 at 730; and James Hardie & Coy Pty Ltd v Barry (2000) 50 NSWLR 357 at 377 [87].

37 The defendant, in particular, also relied upon the following extracts from the judgment of Brereton J in Valceski v Valceski [2007] NSWSC 440:

[69] That leaves to the third factor, the interests of justice. The question is simply whether, assuming that the jurisdiction of the transferor court has been regularly invoked, it is in the interests of justice that the proceedings be heard and determined in the transferee court, there being a statutory obligation to transfer the proceedings to that court whenever it appears to be in the interests of justice to do so - for which purpose it is both necessary and sufficient that the transferee court be the "more appropriate" forum [BHP Billiton Ltd v Schultz (2004) 221 CLR 400 at 421 [14], 434-5 [63]]. In identifying the "more appropriate forum", relevant considerations include the cost and efficiency of proceedings in the respective jurisdictions, and the "connecting factors" described by Lord Goff in Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460 at 478 - including matters of convenience and expense such as availability of witnesses, the places where the parties respectively reside or carry on business, and the law governing the relevant transaction [BHP v Schultz, 422 [18]]. Consideration of relevant connecting factors may identify a "natural forum" [BHP v Schultz, 423 [19]; cf British American Tobacco Australia Ltd v Gordon [2007] NSWSC 230, [44]]. As Schultz makes clear, the interests of justice concern those of both parties, and rather than the selection of the most advantageous, or least disadvantageous, forum for one of them, the "interests of justice" are to be judged by more objective factors, such as facilitate identification of the "natural forum", in which objectively judged it might be expected that the dispute would fall to be resolved, with its concomitant juridical advantages and disadvantages for each party, whatever they may be [cf British American Tobacco v Gordon, [47]].

[70] I reject the submission, advanced on behalf of Bobby, that the applicant for a transfer bears some onus or has to show some good reason for disturbing the plaintiffs' initial choice of venue, or that the plaintiff's choice of court is to be given weight; despite earlier suggestions to that effect [Global Technology Australasia Ltd v Bank of Queensland [2001] VSC 230; Bourke v State Bank of New South Wales (1988) 22 FCR 378; Kenda v Johnson (1992) 15 Fam LR 369, (1993) FLC 92-331, 79,505; Re Chapman & Jansen (1990) 13 Fam LR 853, FLC 92-139; Bankinvest AG v Seabrook (1988) 14 NSWLR 711], it is now established that an applicant for a transfer bears no burden of persuasion or onus of proof [BHP v Schultz at 437 [71]; Bankinvest AG v Seabrook, 727], and no particular significance attends the plaintiff's original choice of forum [BHP v Schultz, 425-6 [26]-[27], 439 [77]; British American Tobacco v Gordon, [43]]. It is only if both courts are equally appropriate that the initial choice will have significance; if one is more appropriate than the other, however so slightly, a transfer to the more appropriate court is mandatory.

38 It is, of course, necessary for me to apply these principles, but there are features of the present case that justify my making a number of observations on my understanding as to how the principles are to be applied.

39 The ultimate question expressly posed by the statute is whether "the interests of justice" require the proceedings to be transferred to the Supreme Court of another State or Territory.

40 In BHP Billiton, Gleeson CJ and McHugh and Heydon JJ said at [14]: "It is both necessary and sufficient that, in the interests of justice, the second court is more appropriate "(my emphasis). Their Honours did not substitute the concept of the more appropriate court entirely for the requirement that it be in the interests of justice for the proceedings in one court to be transferred to another court that is more appropriate. While it is necessary and sufficient to determine which court is more appropriate, the justice of the outcome must inform the test of appropriateness.

41 The use of terms such as "natural forum", and the analysis of connecting factors, can only be tools that may aid in the identification of the most appropriate forum in a manner that will lead to the proceedings being determined by the forum that is most in the interests of justice.

42 The relevance of these observations is that, in the present case, the defendant, in relying upon what he described as "substantive connection", seems to argue that the most appropriate forum can be selected by identifying the natural forum, which is said to follow from identifying and counting objective connections between the subject matter of the proceedings and the particular forum. In my opinion, connecting factors are only relevant if they matter to the determination of what is the more appropriate forum. Connecting factors will matter if they have a consequence in relation to the rights sought to be enforced, the laws that are applicable, and the conduct of the proceedings, in a way that materially affects, in the particular case, the decision as to what the interests of justice require.

43 It is clear that, in an objective and numerical sense, more features of the present proceedings have an association with Queensland than they do with New South Wales. However, those features should not necessarily be regarded as relevant connecting factors, in the sense of connecting the proceedings with one or other forum in a way that is material to determine the forum in which it will be in the interests of justice for the dispute to be determined. The outcome of the exercise should not depend upon mere counting of connections, but should involve the weighing of the factors that appear to have a bearing, in the particular case, on selecting the appropriate forum consistently with the interests of justice.

44 It is true that, once it is determined that the interests of justice require that the proceedings be determined in a forum other than the State in which the proceedings were commenced, the court must transfer the proceedings to the Supreme Court in the other forum. The court does not have a discretion in the ordinary sense, but it must be recognised that the process is an evaluative one that involves an intuitive weighing of different factors and considerations, which do not necessarily have any direct relationship or connection the one with the other. Sometimes it may be clear which of the competing forums is the more appropriate, but in many other cases it will not be so. The process of evaluation is not a rigorous one that permits fine distinctions or calibrations. It is not realistic, or even rational, to suppose that the court can add featherweights to each of two scales representing the competing forums, and then conclude that, one forum having one more featherweight than the other, the court must transfer the proceedings, or dismiss the application. I respectfully agree with the observation of Brereton J in Valcevski at [70] that "if one is more appropriate than the other, however so slightly, a transfer to the more appropriate court is mandatory". But that is only meaningful if the determination of slight differences does not ignore the practical limits on the ability of the court to discriminate and evaluate advantages and disadvantages.

45 There may be many cases where, in practical reality, the ability to make fine calibrations becomes illusory, and the court should accept that the courts of the competing forums are equally appropriate, in which case, as Brereton J said in Valcevski at [70], the initial choice may have some significance. It would be unfortunate if parties to proceedings in Australian courts were encouraged to pursue cross vesting orders based upon the notion that the making of such orders is compulsory if the court can be persuaded that, on a miniscule balance, another forum is more appropriate than the forum in which the proceedings were commenced.

46 In the present case the reality is that there is one fundamental issue, which is whether David Jones made the representations alleged by the defendant, and whether, if he did, his conduct binds the plaintiff, or any entity for which the plaintiff is responsible.

47 That will require the defendant to give evidence, and presumably David Jones to give evidence. I have accepted that, naturally, David Jones is a witness for the plaintiff. He resides in Queensland, but the plaintiff will deal with the witness in a way that, for present purposes, has the effect that he should be treated as a New South Wales witness. In that way, the place of residence of the two principal witnesses cancels the other out for the purpose of determining which is the more appropriate forum.

48 I acknowledge the general evidence given by the defendant as to the cost and inconvenience that he expects to suffer if the proceedings are not transferred to the Supreme Court of Queensland. The evidence is credible, as the disadvantages to which the defendant refers could be expected in the ordinary course. The defendant did not, however, give specific evidence to suggest that, if the proceedings continue in New South Wales, he will suffer an unusual and inappropriate detriment, which will make it unjust for the proceedings to take their present course.

49 The likelihood is, as the pleadings stand, that more New South Wales witnesses will have to be called to prove formal but essential matters that the defendant has not admitted, then it will be necessary to call Queensland resident witnesses. My assessment is, also, that more witnesses will be called from New South Wales to prove matters relevant to the authority of David Jones, than will be called from Queensland. I acknowledge that the evidence is indefinite on that issue.

50 The probability is that most of the records relevant to the determination of the issues in the proceedings, on balance, are in New South Wales. As I have observed above, that may be relevant in so far as paper records must be searched and analysed, although it is not likely to be significant once relevant evidence has been selected.

51 The determination of the proceedings will depend upon the application of the Commonwealth Statutes upon which the defendant relies. As I have said, those statutes are indifferent to the location of the court that determines the dispute.

52 There is no basis for the court to believe that the general law that may be applicable to determine the authority of David Jones to bind the plaintiff, or any entity for which it is responsible, will differ as between the law of Queensland and New South Wales.

53 For the reasons I have given above, all of the connecting factors upon which the defendant relies, though real, appear to have little significance in the present case in relation to which of the two forums is the most appropriate. As they appear to have little relevance to the determination of the issues, and as the practical considerations lie in favour of the continuation of the proceedings in New South Wales, even if only on balance, the connections of the underlying factual matrix with Queensland do not justify a conclusion that the interests of justice require that the proceedings be transferred to the Supreme Court of Queensland.

54 The evidence is not clear, given the proceedings are at an early stage, but the present proceedings appear in essence to arise out of an interstate transaction whereby a New South Wales lender advanced a substantial sum to a Queensland borrower. The background factual matrix is clearly weighted towards Queensland, but those factors do not seem to have a significant bearing on the proceedings that are before the court.

55 Accordingly, I will dismiss the defendant's notice of motion.

56 As the matter was heard in the Applications List, the parties did not have an opportunity to make any submission on the issue of costs. I am inclined to the view that the motion did not raise case management issues, which might justify an order that the costs of the motion be costs in the cause. The proper order probably is that the costs should follow the event, so that I should order the defendant to pay the plaintiff's costs of the application on the ordinary basis. However, as I have not heard submissions, I will give the parties seven days after these reasons for judgment are published to provide any short written submissions to my Associate that they might wish to make.

57 I order that the defendant's notice of motion filed on 30 May 2014 be dismissed.

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Decision last updated: 25 September 2014