[2021] NSWSC 1497

SSABR Pty Ltd v AMA Group Ltd

Application to transfer proceedings to the Supreme Court of Victoria refused

Catchwords

CIVIL PROCEDURE – Cross-vesting – Transfer to other Supreme Court – application under Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) to transfer proceedings to Supreme Court of Victoria – whether it is in the interests of justice that that Court is the more appropriate

Cases cited

BHP Billiton Ltd v Schultz (2004) 221 CLR 400;[2004] HCA 61
James Hardie & Coy Pty Ltd v Barry (2000) 50 NSWLR 357;[2000] NSWCA 353
Joshan v Pizza Pan Group Pty Ltd[2021] NSWCA 219
Spiliada Maritime Corporation v Cansulex Ltd [1986] 3 All ER 843;[1987] AC 460

Legislation cited

Competition and Consumer Act 2010 (Cth), § 2 – Australian Consumer Law
Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth)

Judgment

[1]
These proceedings were commenced on 8 September 2021.
[2]
The plaintiffs conducted two smash repair businesses in West Gosford. By a Business Sale Agreement dated 3 October 2018, the plaintiffs sold those businesses to the first defendant.
[3]
The Business Sale Agreement provided for an initial cash payment and an "Earn-out amount".
[4]
The proceedings concern:
[5]
By Notice of Motion dated 15 October 2021, the defendants seek an order under s 5 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) that these proceedings be transferred to the Supreme Court of Victoria.
[6]
The relevant principles are succinctly set out in the submissions of Mr Robins QC, who appears with Mr Fitzpatrick for the defendant:
[7]
To that summary I would add the further observations of the plurality in Schultz that "[i]t is both necessary and sufficient that, in the interests of justice, the second court is more appropriate". [2]
[8]
I am not satisfied that the Victorian Supreme Court is a "more appropriate" Court than this Court for the determination of the issues in these proceedings.
[9]
The following factors are at play:
[10]
Further, the Business Sale Agreement is expressed to be governed by the law of Victoria. However, with one exception, there was no suggestion made in the submissions to me that the law in Victoria is relevantly different to that in New South Wales.
[11]
The one exception is that suggested by Mr Robins, that Courts of Appeal in New South Wales and Victoria have expressed differing views about the law concerning the implication of an implied term to act in good faith.
[12]
I think it is fair to say that that submission was not agitated with much enthusiasm by Mr Robins. In any event, a trial judge in this Court is as well-equipped as one in the Supreme Court of Victoria to navigate such shoals as may exist there.
[13]
The Business Sale Agreement also contains a clause in which the parties submit to the non-exclusive jurisdiction of the Victorian courts. Mr Robins accepted that this factor is not of great weight especially in light of the recent decision of the Court of Appeal in Joshan v Pizza Pan Group Pty Ltd [3] in which Bell P noted that non-exclusive jurisdiction clauses are given little or no weight in cross-vesting cases. [4]
[14]
This case concerns a dispute about the sale of a business in New South Wales.
[15]
There are nine witnesses currently identified; two live in New South Wales, three in Victoria, one in South Australia, one in Queensland and one in Western Australia. The whereabouts of the other is not known.
[16]
When all these factors are weighed up, I am not persuaded that the Supreme Court of Victoria is a more appropriate forum for the resolution of this dispute nor that Victoria is the jurisdiction with which the action has "the most real and substantial connection".
[17]
I order that the defendants’ Notice of Motion of 15 October 2021 be dismissed with costs.