Bidfood Australia Limited t/as Classic Meats Sydney v Something Nice Foods Pty Ltd

This is an application by Bidfood Australia Limited to transfer proceedings from the District Court to this Court pursuant to s 140(1) of the Civil Procedure Act 2005 (NSW). Bidfood is the defendant in proceedings commenced by a company Something Nice Foods Pty Limited in the District Court on 30 June 2017.

A defence has been filed in the District Court by Bidfood, and also a cross-claim which names not only Something Nice Foods as a cross-defendant, but three other persons being Paul Greshnahan, Matthew Walden, and Lavulavu Aberahama. Neither of Mr Walden nor Mr Aberahama has been served with the cross-claim in the District Court.

Mr Campbell appears on the present application on behalf of Something Nice Foods and Mr Greshnahan, and Mr Flecknoe-Brown appears for Bidfood. He does not oppose the removal of the proceedings to this Court.

Whilst the proceedings commenced in the District Court claimed a debt of only $207,000, the claims made in the cross-claim are far more extensive. The evidence is that there is a liquidated debt claim against the third cross-defendant Mr Walden for more than $888,000. In addition, there are damages claims and claims for loss of profit and equitable compensation which are all unliquidated but which at the present time are estimated to amount to perhaps more than $2 million. Quite obviously, the quantum of the claims in the cross-claim exceed the jurisdictional limit of the District Court, and it is appropriate for that reason to transfer the proceedings to this Court.

Although there is no appearance in this Court of Mr Walden and Mr Aberahama, I do not consider that there is any problem about making the order for transfer without their having knowledge of the application. They have not, as I have indicated, been served with the District Court proceedings. They suffer no disadvantage from ascertaining for the first time that there are proceedings against them by being served with process in this Court.

Bidfood seeks also that the proceedings should, when they are transferred to this Court, be assigned to the equity division and entered into the commercial list. That arises principally because of the claims which are made in the cross-claim that involve account of profits and equitable compensation. It is also apparent that the dispute between the various parties arises out of commercial transactions. Mr Campbell consents to the proceedings being assigned to the equity division, but has no instructions in relation to entry in the commercial list.

I am not aware of the requirements of the commercial list for proceedings to be transferred to that list. In the circumstances, I think the better course is that I should order that the proceedings, when transferred to this Court, should simply be transferred to the equity division and listed before the equity registrar. If Bidfood thereafter wishes to make an application for those proceedings to be entered into the commercial list, that application can be made at that time.

The orders that I make therefore are these:

I will grant the parties liberty to apply to me if there are any problems arising out of the orders.