WANDT Pty Ltd v BB Hotel Pty Ltd

[2004] WADC 239

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   WANDT PTY LTD -v- BB HOTEL PTY LTD & ANOR [2004] WADC 239

CORAM:   FENBURY DCJ

HEARD:   29 NOVEMBER 2004

DELIVERED          :   10 DECEMBER 2004

FILE NO/S:   CIV 217 of 2004

BETWEEN:   WANDT PTY LTD (ACN 009 177 628)

Plaintiff

AND

BB HOTEL PTY LTD (ACN 009 264 804)
First Defendant

KATHERINE DAWN HUTCHESON
Second Defendant

Catchwords:

Practice and procedure - Application to transfer proceedings from Perth to Albany - Turns on own facts - District Court of Western Australia Act 1969, s 69, s 70 and s 71

Legislation:

Nil

Result:

Application dismissed

Representation:

Counsel:

Plaintiff:     Mr T T S Chin

First Defendant             :     No appearance

Second Defendant         :     Mr I T Blatchfords

Solicitors:

Plaintiff:     Lawton Gillon

First Defendant             :     Not applicable

Second Defendant         :     Haynes Robinson

Case(s) referred to in judgment(s):

Eminent Holdings Pty Ltd & Ors v Ashbolt & Anor [2002] WADC 151

Narrabri Nominees Pty Ltd v Coffey [1999] WADC 154

Case(s) also cited:

Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234

Letang v Cooper [1964] 2 All ER 929

1. FENBURY DCJ:  This is an application by the second defendant by chamber summons for an order that this action be transferred to the District Court at Albany.  The proceedings were originally commenced out of the District Court at Perth.

2. Section 69 of the District Court of Western Australia Act 1969 relevantly states:

   "(2)An action shall be commenced in the Court sitting at the place nearest to where –

   (a)the defendant or one of two or more defendants, as the case may be, resides or carries on business;

   (b)the cause of action or claim arose either wholly or in some material part; …"

3. Section 70 relevantly states:

   "(1)If a person served with a writ of summons in an action fails to duly file a defence or fails to file together with a defence a notice that he claims that the action was not commenced in the Court sitting at the place prescribed in accordance with section 69, the action shall be deemed to have commenced in the court at the place so prescribed.

   (2)Where a notice referred to in subsection (1) is so filed, a District Court Judge may upon application in Chambers determine whether the action was commenced as prescribed in that subsection.

   (3)On the hearing of the application the District Court Judge may make such order as he thinks fit.

4. Section 71 relevantly states:

   "Where an action or matter is commenced in the Court sitting at a place that should have been commenced in the Court sitting at another place, the Court or a District Court Judge may order its removal to be tried or heard by the Court sitting at that other place, or may so order that the action or matter be tried or heard in the Court sitting at the place in which it has been commenced."

5. The proceedings involve a claim by a licensed real estate and business agent for non‑payment of commission on sale of a hotel, such payment being due pursuant to an alleged agreement between the plaintiff and the first or second defendant.

6. Initially the plaintiff sued the first defendant alone, but the second defendant was joined when questions as to the identity and authority of the person with whom the plaintiff contracted arose.

7. The plaintiff commenced the proceedings out of the District Court in Perth. 

8. The second defendant brings this application seeking the transfer of the matter to Albany relying on the provisions of s 69. She asserts that she was a resident of Bremer Bay at all material times and continues to reside there. Further, the second defendant asserts that the cause of action arose either wholly or in some material part in Bremer Bay because the agreement was executed in Bremer Bay. Further, the hotel the subject of the sale was located at Bremer Bay.

9. The plaintiff, in response, argues that its registered office is located in Perth.  Its place of business is in Perth.  The three directors of the plaintiff reside in Perth and it is they who are likely to be called on behalf of the plaintiff at a trial.  Further, the plaintiff alleges that a key witness, a gentleman named Michael Arthur, also resides in Perth.  In summary the plaintiff asserts that all its witnesses live and work and Perth.

10. Further, the plaintiff asserts with some vigour that, having regard to the contents of the defence filed by the second defendant, no positive case appears to be contemplated and it is very unlikely that any witnesses will be called, other than the second defendant.

11. In passing it should be noted that the first defendant, which had its registered office and legal representation located in Kalgoorlie, has indicated disinterest in the application.

12. My attention has been drawn to two decisions of this Court, namely Narrabri Nominees Pty Ltd v Coffey [1999] WADC 154 reported in 23 SR (WA) at 162 and Eminent Holdings Pty Ltd & Ors v Ashbolt & Anor [2002] WADC 151 reported in 28 SR (WA) 368 where, although observations were made that the provisions of s 69 had not been complied with nevertheless, the Court made orders which gave weight, in the exercise of discretion, to convenience. That is convenience of witnesses as distinct from counsel or solicitors. The Court in each case made reference to the centre to which "the dispute is more closely aligned" and judged this by reference not only to the cause of action but also to the personnel involved.

13. In this case, recognising that I have a discretion in the matter, on the materials before me, there are likely to be four witnesses called by the plaintiff, all of whom reside in Perth. Although s 69 has not been complied with, in the exercise of my discretion, looked at overall, the matter is more closely aligned to Perth than to Albany.

14. I therefore decline the application and direct that the second defendant pay the plaintiff's costs to be taxed if not agreed.