Saggers Investments Pty Ltd v Blackwatch Boats Australia Pty Ltd
[2007] QDC 32
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- Unreported Judgment
- Saggers Investments Pty Ltd v Blackwatch Boats Australia Pty Ltd[2007] QDC 32
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Saggers Investments Pty Ltd v Blackwatch Boats Australia Pty Ltd[2007] QDC 32
Saggers Investments Pty Ltd v Blackwatch Boats Australia Pty Ltd[2007] QDC 32
DISTRICT COURT OF QUEENSLAND
CITATION: | Saggers Investments Pty Ltd v Blackwatch Boats Australia Pty Ltd; Blackwatch Boats Australia Pty Ltd v Saggers Investments Pty Ltd trading as New Keywest & Anor [2007] QDC 032 |
PARTIES: | 51/07 SAGGERS INVESTMENTS PTY LTD (Applicant) v BLACKWATCH BOATS AUSTRALIA PTY LTD (Respondent) ______________________________________ 646/06 BLACKWATCH BOATS AUSTRALIA PTY LTD (Plaintiff) v SAGGERS INVESTMENTS PTY LTD TRADING AS NEW KEYWEST (Defendant) and BRETT SAGGERS (second Defendant) |
FILE NO/S: | File No. 51/07 and 646/06 |
DIVISION: | Civil – Applications |
PROCEEDING: | Application for stay; Alternatively application for security for costs. Application for injunction. |
ORIGINATING COURT: | Southport District Court |
DELIVERED ON: | 16 February 2007 |
DELIVERED AT: | Southport |
HEARING DATE: | 12 February 2007 |
JUDGE: | McLauchlan QC DCJ |
ORDER: | Proceedings stayed pursuant to r. 16, UCPR. Application for injunction dismissed. |
CATCHWORDS: | PRACTICE – stay of proceedings – conditional notice of intention to defend – importance of exclusive jurisdiction clause – whether objection to jurisdiction waived – injunction Uniform Civil Procedure Rules 1999 (Qld) r. 16, r. 123, r. 144 |
COUNSEL: | Mr B McMillan for the Defendant/Applicant Mr G Radcliffe for the Plaintiff/Respondent |
SOLICITORS: | Thynne & Macartney for the Defendant/Applicant CBD Lawyers & Corporate Advisors for Plaintiff/Respondent |
- [1]The Claim in this matter was filed on 22 December, 2006. Damages are claimed for breach of a contract for the sale and purchase of a business, then owned by the First Defendant, in the design and manufacture of boats from moulds, including the assets of the business. The claim extends to other matters related to the contract, in particular a claim for damages for trespass to goods. The plaintiff alleges that on 14 November, 2006, it was in lawful possession of the moulds and other items, having duly paid for them in terms of the contract, and that the First Defendant, by the Second Defendant, removed some of those items and other items from the plaintiff’s premises in New South Wales, by loading them on to trucks and driving them away. The defendants on the other hand, contend that the property in the items in question had not passed to the plaintiff, since they had not been fully paid for in terms of the contract. This dispute depends upon, or involves, the proper construction of the contract, in relation to the events which have happened.
- [2]A Conditional Notice of Intention to Defend was filed on 24 January, 2007, pursuant to the provisions of r. 144 of the Uniform Civil Procedure Rules 1999 (Qld). In that document the reasons for disputing the jurisdiction of the Court were stated as follows:-
- The First Defendant is a company duly incorporated, with its registered office situated at Cannington in the State of Western Australia.
- The Second Defendant, who is the sole director of the First Defendant, resides in Canning Vale in the State of Western Australia.
- Neither the First nor Second Defendants have any connection with the State of Queensland.
- On 4 January 2007, the First and Second Defendants were served personally in Western Australia with the Plaintiff’s Claim and Statement of Claim filed in this Honourable Court (“the proceedings).
- The proceedings relate, in part, to an agreement entered into between the First Defendant and the Plaintiff in or about January, 2005, for the purchase by the plaintiff of the business and assets of the First defendant (“the agreement”).
- The assets described in Clause 1(d) of the agreement, which are the subject of dispute in these proceedings, are situated at lot 1, 9293 Pacific Highway, Chinderah in the State of New South Wales.
- Clause 30 of the agreement contains an exclusive jurisdiction clause in the following terms:
“30This Agreement shall be subject to the laws of Western Australia and the Courts and Tribunals of the State of Western Australia shall have sole jurisdiction in relation to this agreement.”
- The Plaintiff submitted itself to the sole jurisdiction of the Courts and Tribunals of the State of Western Australia when entering into the agreement.
- The District Court at Southport is not the most convenient forum to determine the proceedings.
- The District Court of Western Australia is the more appropriate jurisdiction to determine the matters in dispute between the parties.
- The balance of convenience favours the First and second Defendants.
- The First and Second Defendants should not be forced to bear the financial burden of defending proceedings in Queensland.
- [3]The Defendants applied for a stay under r. 16 UCPR on 2 February, 2007, and applied, in the alternative, for an order for security for costs.
- [4]On the same date, but by a separate originating application, the defendants applied for orders restraining the plaintiff from dealing with or disposing of the business assets, and requiring the Plaintiff to keep the assets under cover and “otherwise safe” at all times until trial.
- [5]R. 123 UCPR provides that service of an originating process outside Queensland but within Australia, must be served in accordance with the Service and Execution of Process Act 1992 (Cth). Section 20 of that Act does not apply in relation to a proceeding issued by the Supreme Court of a State, but otherwise provides that the person served may apply to the court of issue for an order staying the proceeding, and such an order may be made if the court is satisfied that a court of another State that has jurisdiction to determine all the matters in issue between the parties is the appropriate court to determine those matters.
- [6]It has not been submitted that the District Court of Western Australia does not have jurisdiction to determine all the matters in issue.
- [7]Sub-section (4) of the section provides that the matters that the court is to take into account in determining whether that court of another State is the appropriate court for the proceeding include:
- (a)the places of residence of the parties and of the witnesses likely to be called in the proceeding; and
- (b)the place where the subject matter of the proceeding is situated; and
- (c)the financial circumstances of the parties, so far as the court is aware of them; and
- (d)any agreement between the parties about the court or place in which the proceeding should be instituted; and
- (e)the law that would be most appropriate to apply in the proceeding; and
- (f)whether a related or similar proceeding has been commenced against the person served or another person;
but do not include the fact that the proceeding was commenced in the place of issue.
- [8]The Second Defendant states, in an affidavit sworn on 1 February, 2007, that he is a director and shareholder of the First Defendant, and that he entered into an agreement on behalf of the First Defendant in or about January, 2005, for the purchase by the Plaintiff of the business and assets of the First Defendant for $245,000, with final settlement date due on 1 December 2005. He states that the agreement was formed over the telephone while he was in Canning Vale, Western Australia, and the Plaintiff was in Chinderah, New South Wales. The agreement was drawn by his solicitor in Perth, executed by the Plaintiff in New South Wales and by the First Defendant in Western Australia.
- [9]A further affidavit, sworn by a solicitor in Brisbane, on 2 February 2007, deposes that the First Defendant is a company incorporated in Western Australia, with a registered office in that State, and that neither that company, nor Mr Saggers has any connection with or owns any assets in the State of Queensland.
- [10]An affidavit sworn by Mr. Andrew Johnson deposes that he is the majority shareholder and sole director of the plaintiff company. The company is registered in Queensland, but carries on business in New South Wales. The chattels acquired in the purchase from the First Defendant are stored at the company’s premises in New South Wales, and the removal of some of them, allegedly by the First Defendant, was from those premises.
- [11]Witnesses anticipated to be required on the hearing of the plaintiff’s claim are said to include the following –
- Andrew Johnson
- Security Guards in Queensland
- Various employees of the Plaintiff resident in South East Queensland and Northern New South Wales
- Police from the Tweed Heads and Kingscliffe Police Stations
- Employees of ReadiTow, 76 Yarraman Place, Virginia in the State of Queensland engaged by the First Defendant, its servants or agents
- Employees of Gold Coast Cranes engaged by the First Defendant or its servants or agents.
- [12]The Claim includes not only a claim for breach of contract, but also a claim for misleading and deceptive conduct under the Trade Practices Act 1974 (Cth) and a claim for trespass to goods. In my view these claims arise within the context of the agreement between the parties and are bound up with the construction of that agreement. They should naturally be heard in the same court. The claim for misleading and deceptive conduct arises out of negotiations leading to the formation of the contract, conducted between the plaintiff, in New South Wales, and the First Defendant in Western Australia. The claim for trespass to goods depends upon events which occurred in New South Wales. Jurisdiction in relation to the alleged trespass to goods has been invoked in Queensland, by way of an injunction issued out of the Supreme Court of Queensland upon the application of the plantiff, but that forms no basis for a conclusion that Queensland is the appropriate forum for the hearing of the action.
- [13]The places of residence of the parties and witnesses are New South Wales, Queensland and Western Australia. The subject matter of the proceeding is situated in New South Wales, to the extent that it consists of physical assets. The court is not fully appraised of the financial circumstances of the parties.
- [14]There is an agreement, already referred to, between the parties, about the court in which the proceeding should be instituted, insofar as it relates to the agreement for sale and purchase which is pleaded. This is, in my view, a significant matter, in determining the appropriate forum. It is further significant that, wherever the forum, issues arising out of the agreement are to be determined under the laws of Western Australia. The Service and Execution of Process Act refers to the “law that would be most appropriate to apply in the proceeding”. In my opinion, it is a strong indication of appropriateness, that the parties have agreed in writing that the appropriate law is the law of Western Australia.
- [15]It is to be noted that the fact that the proceeding was commenced in Queensland, is not a matter to be taken into account. There is virtually no indication that the appropriate forum is Queensland, except for the residence of some witnesses.
- [16]Looking at the matter overall, and paying particular regard to the jurisdiction clause in the agreement, I consider that the District Court of Western Australia is the appropriate court to determine the matters arising in the action. Were that not the case, in my opinion the appropriate court would be the District Court of New South Wales.
- [17]It has been submitted that the defendants have waived objection to the jurisdiction by making an application for a mareva injunction in this jurisdiction. It is to be noted that this was done after the objection to the jurisdiction was made by the Conditional Notice of Intention to Defend. The application was made because of apprehended damage to the moulds the subject of the sale and purchase between the parties, and does not, in my opinion, amount to a submission to the jurisdiction of this court, which might have been the case if it were an application for interlocutory relief, which was only consistent with an intention to contest the merits of the case in this jurisdiction: see White v Hardwick (1922) 23 SR (NSW) 6; AFS Freight Management Pty Ltd v Zeigler Nederland BV [2000] QSC 489.
- [18]The application to stay the proceeding in this State consequently succeeds. It follows that the alternative claim for security for costs is not pursued, and that the jurisdiction of this court should not be invoked to obtain the interlocutory relief sought by the defendants in the form of a mareva injunction.