Case: National Mutual Holdings Pty Ltd v Sentry Corporation (1988) 19 FCR 155
Outcome: applied
The principles involved in a transfer have been well-rehearsed in the authorities, and the submissions have collected a number of those authorities. Principal among them, of course, is that of the Full Court in National Mutual Holdings Pty Ltd v Sentry Corporation (1988) 19 FCR 155. In these matters it is fair to say that the statement of the test is not difficult. Rather, it is the application of the test in view of the particular elements of the case or cases in question. There will undoubtedly be inconvenience to one side or the other, depending upon from which Registry the matter is managed, even bearing in mind the availability of telephone and/or video links where appropriate. 6 Each side says that they have lawyers in their own city which they wish to retain or have retained and wish to keep in the matter, albeit the Adelaide party did initially instruct a Sydney solicitor. In my opinion, the matter is so evenly balanced that I regard as the tipping point the nature of the proceedings, being ultimately the winding up of companies, the registered offices of which are in Adelaide. The books of account are in Adelaide and the persons in control of the companies also reside in Adelaide. I appreciate that that will not always be the governing factor, but in this case it seems to me that where the applicant is seeking to wind up companies, the residence of those companies is, in the end, an important aspect which tips the scales here in favour of Adelaide as a venue. 7 I mention, although it does not have the same significance, the fact that it is said that one of the underlying agreements identifies the laws of South Australia as the governing law. 8 So far as costs are concerned, in my opinion there is no occasion for this to be regarded as anything else but a routine application in case management. It was evenly balanced and there was nothing unreasonable in the attitude of the applicants in wishing to preserve Sydney as a venue. I make no special order as to costs. The consequence is that these costs will be costs in the cause. 9 Mention has been made of the fact that Consolidated Byrnes Holdings Limited and Alpha Asset Group Pty Limited have not yet completed filing of their evidence in relation to service of the statutory demands, which was required to be completed by 23 May 2008. I will extend time for the filing of that evidence, for a short period, to enable the evidence as to service to be finalised so that whoever manages the matter in South Australia can, if he is so minded, split the matter to deal with service. I do not think it is appropriate that I make any order about the balance of the evidence at this stage. I think it should be brought on for an early directions hearing before the managing judge so that these decisions can be made promptly. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles. Associate: Dated: 11 June 2008 Counsel for Consolidated Byrnes Holdings Limited and Alpha Asset Group Pty Limited: Mr T Rickard Solicitor for Consolidated Byrnes Holdings Limited and Alpha Asset Group Pty Limited: Simmons &amp; McCartney Lawyers &amp; Attorneys Counsel for Hardel Investments Pty Ltd and Avpri Pty Limited: Mr RJ Whitington QC Solicitor for Hardel Investments Pty Ltd and Avpri Pty Limited: Johnson Winter &amp; Slattery Date of Hearing: 4 June 2008 Date of Judgment: 4 June 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/873.html