Evans v HT & LI 6 Pty Limited [2006] FCA 1108 (23 August 2006)

Last Updated: 23 August 2006

FEDERAL COURT OF AUSTRALIA

Evans v HT & LI 6 Pty Limited [2006] FCA 1108

STEPHEN EVANS v HT & LI 6 PTY LIMITED ACN 106 367 766
NSD 1412 OF 2006

COWDROY J
18 AUGUST 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1412 OF 2006

BETWEEN:	STEPHEN EVANS Applicant
AND:	HT & LI 6 PTY LIMITED ACN 106 367 766 Respondent

JUDGE:	COWDROY J
DATE OF ORDER:	18 AUGUST 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. These proceedings be transferred to the Supreme Court of New South Wales.
2. The costs of these proceedings be reserved for determination of the Supreme Court of New South Wales.

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	NSD 1412 OF 2006

BETWEEN:	STEPHEN EVANSApplicant
AND:	HT & LI 6 PTY LIMITED ACN 106 367 766Respondent

JUDGE:	COWDROY J
DATE:	18 AUGUST 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1	Before the Court is a notice of motion filed by the respondent seeking to have these proceedings transferred to the Supreme Court of New South Wales pursuant to s 5(4) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth).
2	On 30 June 2006 the applicant in these proceedings brought proceedings in the Supreme Court of New South Wales seeking, inter alia, a declaration that the defendant in those proceedings, who is the respondent in these proceedings, was not entitled to call for completion of a contract which had been entered into between the parties. Such claim was made upon the basis that the strata title home unit which was the subject of the contract, contained ‘special faults’ as defined in the contract. If special faults existed the respondent had no ground to issue a notice to complete.
3	Orders were made in those proceedings appointing GHD Pty Ltd (‘GHD’), engineers, to determine whether special faults existed. The report by GHD indicated that no special faults existed, subject to certain measures being taken.
4	The GHD report was issued on 25 July 2006. The parties dispute the effect of the report. The applicant in these proceedings claims that the report establishes that special faults exist in the building. The respondent claims that the report establishes there are no special faults. Pursuant to its belief, the respondent relied upon a notice to complete issued on 11 July 2006. The date and time for completion of the contract which was ignored by the applicant. On 14 August 2006 the respondent filed a cross-claim in the Supreme Court proceedings on the basis that the applicant, by failing to complete, has repudiated the contract and that the respondent is entitled to receive the deposit. Damages are also sought. The respondent has also filed a notice of motion in the Supreme Court seeking clarification of the report by GHD. Such motion is returnable before the Supreme Court on 25 August 2006.
5	On 24 July 2006, the day before the GHD report was issued, the applicant commenced these proceedings, which claim that the respondent breached s 52 of the Trade Practices Act 1974 (Cth). The applicant says that at the time these proceedings were filed, he considered that the Supreme Court proceedings had been exhausted, subject to the determination of GHD. After having received its report, the applicant considered that the Supreme Court proceedings could be discontinued, and foreshadowed an intention to do so to the respondent. No discontinuance has yet taken place and the cross-claim has now been filed.
6	I consider that it is more appropriate that these proceedings be heard in the Supreme Court of New South Wales and determined with the proceedings in that Court. It is clear that the matters which arose in the Supreme Court have not been resolved. It is not apparent why these proceedings were filed before the GHD report was provided, but it was a course which ran the risk of creating an unnecessary second proceeding. The parties agree that these matters should be heard together, and that is clearly the more appropriate course, given that the factual matters are inextricably interwoven. The Supreme Court proceedings were commenced earlier than these proceedings. The matter has already come before that Court and those proceedings are current. The issues raised in this Court could be raised in those proceedings and it is more appropriate that it be finalised there. Accordingly, I will make an order transferring the proceedings.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Associate:

Dated: 22 August 2006

Counsel for the Applicant:	Mr M Orlov
Solicitor for the Applicant:	Verekers
Counsel for the Respondent:	Mr A Rogers
Solicitor for the Respondent:	Kemp Strang
Date of Hearing:	17 August 2006
Date of Judgment:	18 August 2006