Gordon v KD Wood Valuations Pty Ltd [2002] FCA 699 (30 May 2002)

Last Updated: 3 June 2002

FEDERAL COURT OF AUSTRALIA

Gordon v KD Wood Valuations Pty Ltd

[2002] FCA 699

PETER GORDON v KD WOOD VALUATIONS PTY LIMITED and ANDREW AITKEN, PETER McLACHLAN AND ANDREW THORPE

N 1336 OF 2001

GYLES J

SYDNEY

30 MAY 2002

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1336 OF 2000

BETWEEN:	PETER GORDON APPLICANT
AND:	KD WOOD VALUATIONS PTY LTD FIRST RESPONDENT ANDREW AITKEN, PETER McLACHLAN AND ANDREW THORPE SECOND RESPONDENT
JUDGE:	GYLES J
DATE OF ORDER:	30 MAY 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The motion of the first respondent of 14 May 2002 is dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1336 OF 2000

BETWEEN:	PETER GORDON APPLICANT
AND:	KD WOOD VALUATIONS PTY LTD FIRST RESPONDENT ANDREW AITKEN, PETER McLACHLAN AND ANDREW THORPE SECOND RESPONDENT

JUDGE:	GYLES J
DATE:	30 MAY 2002
PLACE:	SYDNEY

REASONS FOR ORDER

1 On 30 May 2002 I dismissed an application by the first respondent in the proceeding, KD Wood Valuations Pty Ltd ("KD Wood"), to transfer the proceeding to the Supreme Court of New South Wales pursuant to the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) ("the Act") s 5(4). These are the reasons for that order. The application was filed by notice of motion on 14 May 2002. The motion was consented to by the second respondent in the proceeding but opposed by the applicant in the proceeding, Peter Gordon ("Gordon"). The following orders are sought:

"1. That, pursuant to the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), section 5(4), these proceedings be transferred to the Supreme Court of New South Wales (Equity Division).

2. The costs of the motion be costs of the transferred proceedings.

3. In the alternative to orders 1 and 2:

(a) that the proceedings be stayed pending the completion of Proceedings No. 2501 of 2000 in the Supreme Court of New South Wales (Equity Division); and

(b) the costs of the motion be costs in the cause.

4. Such further or other orders as the court thinks fit."

2 This motion is in identical terms to one filed by the same party in this proceeding on 8 July 2001. In an ex tempore judgment of 12 July 2001 (Gordon v KD Wood Valuations Pty Ltd [2001] FCA 737), I dismissed that motion. This judgment should be read with that judgment, which explains the relevant background.

Jurisdiction of Courts (Cross-Vesting) Act s 5(4)

3 Section 5(4) of the Act provides,

"Where:

(a) a proceeding (in this subsection referred to as the "relevant proceeding") is pending in the Federal Court or the Family Court (in this subsection referred to as the "first court"); and

(b) it appears to the first court that:

(i) the relevant proceeding arises out of, or is related to, another proceeding pending in the Supreme Court of a State or Territory and it is more appropriate that the relevant proceeding be determined by that Supreme Court;

(ii) having regard to:

(A) whether, in the opinion of the first court, the relevant proceeding or a substantial part of it would have been incapable of being instituted in that court, apart from this Act and any law of the Australian Capital Territory or the Northern Territory relating to cross-vesting of jurisdiction; and

(B) whether, in the opinion of the first court, the relevant proceeding or a substantial part of it would have been capable of being instituted in the Supreme Court of a State or Territory, apart from this Act and any law of a State or Territory relating to cross-vesting of jurisdiction; and

(C) the extent to which, in the opinion of the first court, the matters for determination in the relevant proceeding are matters arising under or involving questions as to the application, interpretation or validity of a law of the State or Territory referred to in sub-subparagraph (B) and not within the jurisdiction of the first court apart from this Act and any law of the Australian Capital Territory or the Northern Territory relating to cross- vesting of jurisdiction; and

(D) the interests of justice;

it is more appropriate that the relevant proceeding be determined by that Supreme Court; or

(iii) it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of a State or Territory;

the first court shall transfer the relevant proceeding to that Supreme Court."

4 It is common ground that s 5(4)(b) contains three alternative bases for justifying transferring the proceeding. It is therefore sufficient for the party seeking transfer to satisfy s 5(4)(a) and one of the alternative subsections contained in s 5(4)(b). As it is agreed that s 5(4)(a) is satisfied in this case, this application would be successful if it could satisfy either s 5(4)(b)(i) or s 5(4)(b)(iii).

Submissions for KD Wood

5 The primary submission advanced is that material changes in the parties to and the issues in the Supreme Court proceeding and this proceeding are sufficient to warrant re-examination of the question of transfer. Counsel relied on the joinder of first and second mortgagee's solicitors to the proceedings in both courts, and to the withdrawal, through bankruptcy or otherwise, of most of the extraneous parties in the Supreme Court proceeding. These changes, it was submitted bring the two proceedings into substantial overlap. It was argued that in these circumstances, the Supreme Court proceedings can, and this proceeding cannot, determine all issues between all parties. It is suggested that this provides a sound basis for transfer to enable all controversies to be determined at the one time, in order to avoid duplication of costs and effort by the parties, to avoid the chance of varying results and to avoid the costs to the public of two courts examining similar issues.

Submissions for Gordon

6 Counsel for Gordon argued that the changes highlighted by KD Wood do not constitute any material basis upon which I should review the decision I made in July 2001. Counsel pointed out that his client is still not a party in the Supreme Court proceedings. He contended that there is not sufficient identity of parties or issues to warrant a transfer. He submitted that the only issue to be ventilated in the Supreme Court proceedings which would directly affect his client's interests concerns the quantum of damages he may receive, and I dealt with that previously. He relied in particular upon the fact that this proceeding can be heard in this Court this year, but that there can be no prediction as to when the Supreme Court proceedings might be heard.

Decision

7 The changes to the parties and issues in both proceedings since July 2001 are sufficient to warrant re-examination of the question of cross vesting, and the application is now stronger than it was. The arguments for transfer have substance. However, the fact remains that the controversies do not arise out of the same facts, and the applicant has a separate case which he wishes to pursue as expeditiously as possible. A hearing can be afforded this year. Transfer to the Supreme Court will involve indefinite delay in obtaining a hearing, and the hearing will involve issues in which he has no concern. As far as duplication of public resources is concerned, it may be that a decision in this case will have the effect of shortening or obviating the Supreme Court proceedings in whole or part. I would judge the chance of different findings on the similar material as being more apparent than real. Even if this proceeding is related to the Supreme Court proceeding (which I doubt), it is not more appropriate that this proceeding be determined by the Supreme Court. It is not otherwise in the interests of justice that this proceeding be determined in the Supreme Court.

8 For those reasons, I rejected the application. Subject to argument to the contrary, I propose to order that the costs of the motion be the costs of Gordon in the proceeding when the proceeding is next before the Court.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Associate:

Dated: 31 May 2002

Counsel for the Applicant:	P Whitford
Solicitor for the Applicant:	Clayton Utz
Counsel for the First Respondent:	CE Adamson
Solicitor for the First Respondent:	Phillips Fox
Counsel for the Second Respondent:	A Kingsford-Smith
Solicitor for the Second Respondent:	Henry Davis York
Date of Hearing:	21 May 2002
Date of Judgment:	30 May 2002