Fuji Xerox Australia Pty Ltd v Documents on Call Pty Ltd [2018] NSWSC 1862

Fuji Xerox Australia Pty Ltd v Documents on Call Pty Ltd [2018] NSWSC 1862

The application was dismissed because the agreements and guarantees contained New South Wales governing law and non-exclusive jurisdiction clauses, entered into at arm's length without any suggested vitiating unfairness, and those clauses were sufficient to dispose of the transfer application. In any event, transfer was not in the interests of justice because the defendants' claims of witness inconvenience, hearing length and business disruption were speculative at the early pleading stage, evidence could potentially be taken by audio visual link, the occurrence of events in Victoria was neutral or insignificant, and no relevant procedural disadvantage in New South Wales was shown.

Jurisdiction
Australia
Judgment Date
05 December 2018
Procedural Posture
Civil Procedure; Cross Vesting Transfer Application / Defendants' Notice of Motion Filed on 6 September 2018 Seeking Transfer of the Proceedings to the Supreme Court of Victoria Under S 5(2) of the Jurisdiction of Courts (cross Vesting) Act 1987
Outcome
Notice of motion dismissed with costs
Legal Topics
['cross Vesting' 'transfer to Another Supreme Court' 'non Exclusive Jurisdiction Clause' 'choice of Law Clause' 'interests of Justice']
['civil Procedure'] ['cross Vesting' 'transfer to Another Supreme Court' 'non Exclusive Jurisdiction Clause' 'choice of Law Clause' 'interests of Justice']

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Procedural Posture

Civil Procedure; Cross Vesting Transfer Application / Defendants' Notice of Motion Filed on 6 September 2018 Seeking Transfer of the Proceedings to the Supreme Court of Victoria Under S 5(2) of the Jurisdiction of Courts (cross Vesting) Act 1987

Legal Issues

  1. 1 ['Whether the proceedings should be transferred to the Supreme Court of Victoria under s 5(2) of the Jurisdiction of Courts (Cross-Vesting) Act 1987.' 'What weight should be given to contractual clauses providing that the agreements and guarantees are governed by New South Wales law and that the parties submit to the non-exclusive jurisdiction of the courts of New South Wales.' "Whether the defendants' asserted Victorian connections, witness convenience and business disruption made transfer to Victoria in the interests of justice."]

Ratio Decidendi

The application was dismissed because the agreements and guarantees contained New South Wales governing law and non-exclusive jurisdiction clauses, entered into at arm's length without any suggested vitiating unfairness, and those clauses were sufficient to dispose of the transfer application. In any event, transfer was not in the interests of justice because the defendants' claims of witness inconvenience, hearing length and business disruption were speculative at the early pleading stage, evidence could potentially be taken by audio visual link, the occurrence of events in Victoria was neutral or insignificant, and no relevant procedural disadvantage in New South Wales was shown.

Court Disposition

Notice of motion dismissed with costs

Orders

  • ["The defendants' notice of motion for transfer to the Supreme Court of Victoria was dismissed with costs."]