379/2009 Kerr v American Express Australia Limited [2009] FCA 379 (6 March 2009)

Last Updated: 27 April 2009

FEDERAL COURT OF AUSTRALIA

Kerr v American Express Australia Limited [2009] FCA 379

JOYE MAREE KERR v AMERICAN EXPRESS AUSTRALIA LIMITED

NSD 1912 of 2008

EMMETT J
6 MARCH 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1912 of 2008

BETWEEN:

JOYE MAREE KERR Appellant

AND:	AMERICAN EXPRESS AUSTRALIA LIMITED Respondent

JUDGE:	EMMETT J
DATE OF ORDER:	6 MARCH 2009
WHERE MADE:	SYDNEY

THE COURT:

1. Orders that the proceeding be transferred to the Queensland Registry of the Court.
2. Directs the Applicant approach the Queensland District Registry for a date for directions to fix a date for the hearing of the appeal proceeding.
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1912 of 2008

BETWEEN:

JOYE MAREE KERR Appellant

AND:	AMERICAN EXPRESS AUSTRALIA LIMITED Respondent

JUDGE:	EMMETT J
DATE:	6 MARCH 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. I have before me an application to transfer the venue of this proceeding from the New South Wales registry to the Queensland registry. The proceeding is an appeal from orders of the Federal Magistrates Court making a sequestration order against Ms Joye Maree Kerr. The sequestration order was opposed by Ms Kerr but, after argument, the Federal Magistrates Court made the sequestration order from which the appeal is brought.
2. When the matter first came before me, Ms Kerr applied for the transfer of the venue of the proceeding to the Queensland Registry. At that stage, the respondent, American Express Australia Limited (American Express), opposed the transfer. The Trustee in Bankruptcy (the Trustee) was represented by Ms Sally Nash, who did not indicate a view one way or the other so far as the Trustee was concerned, although an indication was given that it may be marginally more convenient for the matter to be dealt with in Sydney. Nevertheless, it was accepted that the Official Receiver’s office is adequately staffed in Brisbane to be able to deal with the matter.
3. Ms Kerr is a pharmacist. She entered into a tripartite arrangement concerning the supply of goods to her pharmacy with Australian Pharmaceutical Industries Queensland Pty Limited (API) and American Express. Under those arrangements, Ms Kerr ordered goods from API and the goods were paid by a debit to a credit card provided to Ms Kerr by American Express. It is said that there is an arrangement between American Express and API such that, if Ms Kerr fails to pay the debt arising from the use of the credit card, API will reimburse American Express. Thus, in a sense, it appears that API acted in the capacity as a surety in respect of debts incurred by Ms Kerr to American Express, in connection with the sale of goods by API to Ms Kerr.
4. American Express obtained judgment in the New South Wales District Court against Ms Kerr, and a bankruptcy notice was issued on the basis of that judgment. Ms Kerr accepts that the bankruptcy notice was not complied with. However, she says that no act of bankruptcy was committed because agreement was reached between her and American Express, for American Express to accept security for the judgment debt. American Express apparently denied such an agreement. At the hearing, the Federal Magistrates Court accepted the contentions of American Express that there was no agreement and that an act of bankruptcy had been committed. One of the grounds of appeal relied upon by Ms Kerr is that the Federal Magistrates Court erred in doing so.
5. Ms Kerr has commenced a proceeding in the Queensland District Court against API for recovery of sums in respect of goods alleged not to have been delivered. The amount of the claim exceeds the amount of the debt pressed by American Express. At the hearing before the Federal Magistrates Court, Ms Kerr sought an adjournment of the hearing of the petition until the final disposition of her claim in the Queensland District Court against API. The Federal Magistrates Court declined to grant an adjournment. That is another ground of the appeal from the sequestration orders.
6. The Federal Magistrates Court gave directions, after the completion of evidence, for the provision of written submissions. Written submissions were provided by American Express, in which assertions were made concerning the financial position of Ms Kerr. Ms Kerr, who was represented at the hearing by her husband, claims that the submissions made by American Express were misleading insofar as they made incorrect assertions concerning her financial position, which were unsupported by the evidence before the Federal Magistrates Court. Ms Kerr’s husband sought to file affidavits purporting to correct the position. However, the Federal Magistrates Court declined to receive evidence after the hearing had finished. That is also a ground of appeal. Whether or not there was any error on

the part of the Federal Magistrates Court in refusing to receive further evidence after the hearing had finished, it may be that there is available a contention that the acceptance by the Federal Magistrates Court of the submissions of American Express was an error insofar as the submissions were not based on the evidence before the Federal Magistrates Court. I express no view about that, because I have not been taken to the detail. That, however, may be a ground of appeal.

7. Since the matter was last before me, American Express has filed a submitting appearance, indicating that it will submit to such order as the Court chooses to make, save for any order as to costs. When the matter was called on today for the further hearing of the motion, American Express did not appear. Further, there was no appearance for the Trustee.
8. The basis upon which the change of venue is sought is that Ms Kerr and her husband, who appears for her, by leave of the Court, reside in Brisbane, where Ms Kerr’s pharmacy is situated. All of the goods were supplied in Brisbane. Mr Kerr has informed the Court that he considers that he has a better prospect of getting some legal assistance in Queensland than in New South Wales. It is also inconvenient for Mr Kerr to travel from Brisbane to Sydney to deal with hearings.
9. The appeal books have not been settled, but there is an appointment for this afternoon for the settling of the index. It appears that neither the Trustee, nor American Express will participate in that process. Once the appeal books have been finalised, there does not appear to be any inconvenience involved for American Express or the Trustee in the matter proceeding in Queensland. On the other hand, there is considerable inconvenience to Ms Kerr and her husband for the matter to continue to be heard in Sydney. In all of the circumstances, I propose to accede to the application to transfer the venue of the proceeding to the Queensland registry.
10. There has been no application for costs and I do not propose to make any order as to the costs of the application.
    

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated: 21 April 2009

I Kerr appeared with leave for the appellant

Date of Hearing:	6 March 2009
Date of Judgment:	6 March 2009