Plantation Maintenance Corporation Pty Limited v Clauss
[2001] QDC 125
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Plantation Maintenance Corporation Pty Limited v Clauss[2001] QDC 125
Plantation Maintenance Corporation Pty Limited v Clauss[2001] QDC 125
DISTRICT COURT | No D2830 of 2001 |
CIVIL JURISDICTION
SENIOR JUDGE TRAFFORD-WALKER
PLANTATION MAINTENANCE CORPORATION PTY LIMITED | Plaintiff |
and
JURGEN CLAUSS | First Defendant |
and
DIANE CLAUSS | Second Defendant |
BRISBANE
DATE 27/08/2001
JUDGMENT
HIS HONOUR: This is an application to stay proceedings in this Court on the basis that the Court does not have jurisdiction. The facts of the matter can be briefly stated. On 9 April this year the proposed defendants served a statutory demand for money upon the plaintiff.
On 14 May a sum of money was paid to the proposed defendants from funds which allegedly belonged to the plaintiff. On 17 May the proposed defendants agreed to their statutory demands being set aside on the basis that each party would bear their own costs.
On 31 May the proposed male defendant resigned as a director of the plaintiff. On 8 June the plaintiff became aware of the payments to the proposed defendants. On 13 June the plaintiffs commenced proceedings in this Court. The plaintiff is a company with a place of business in Brisbane.
At the same time the plaintiff brought an application that the proposed defendants pay the sum received by them into a trust account. I am informed that these documents were properly served on the proposed defendants in New South Wales under The Service and Execution of Process Act of 1992.
On 13 June Judge Robin of this Court made an order requiring the proposed defendants pay the sums demanded into a trust account.
I am also informed that that order has been complied with and that the sum has been paid into the Registry of this Court.
On 10 July a conditional Notice of Intention to Defend was filed. On behalf of the proposed defendants it is argued that the jurisdiction of the Court is limited by Rule 35. Rule 35 does not define the limit or extent of the jurisdiction of the Court. The rules are made under the authority of The District Court Act. The Act provides in section 8A as follows, “The District Court has jurisdiction throughout Queensland.”
Within the State section 68 of the same Act gives the Court jurisdiction to hear and determine various causes of action up to a monetary limit. For administrative purposes the State is divided into various districts.
Rule 35 provides for bringing actions in a district with provision for objection if an action is commenced in the wrong district. (See Tuckerman v. Neville 1992 2 QR p 657.) The claim being properly served, this Court, in my view, has jurisdiction. (See Laurie v. Carroll 1958 98 CLR p 310 at p323.)
The provisions of section 20(iv) then are to be considered to see whether or not the Courts of New South Wales are appropriate to determine this matter. The Court of New South Wales would have jurisdiction.
However on all the matters mentioned in subsection (iv) (a) to (e) there does not seem to be any balance of convenience in bringing the matter in New South Wales. The parties reside in Queensland and New South Wales. So also do the relevant witnesses. It does not seem to matter where the subject of the proceedings is located.
The financial circumstances of the proposed defendants would not seem to be a problem. They live in country New South Wales and the law of New South Wales on the topic would appear to be the same as Queensland. However the proceedings have been commenced here and to commence fresh proceedings in New South Wales will unnecessarily incur additional cost.
That being the situation I have come to the view that the request for a stay of the proceedings should be refused.
...
HIS HONOUR: Yes, in the circumstances the plaintiff is to have their costs of this application to be taxed.