Drip World Pty Ltd v Dardy Touring Corp [2020] NSWSC 1772

Drip World Pty Ltd v Dardy Touring Corp [2020] NSWSC 1772

Although s 64 was apt to allow the proposed amendment and the Court would otherwise have been inclined to permit it, the amendment would be futile. The alleged Stakeholder Agreement was not to be performed in Australia and was not shown even to the required prima facie standard to be governed by Australian law; it was integral to a proposed contract governed by California law, the deposit was to be paid and held in California, WME's obligations were to be performed in California, and the agreement was made in California when acceptance was received there. The proposed amended proceedings therefore would not fall within Schedule 6 and service outside Australia would not be authorised. The...

Jurisdiction
Australia
Judgment Date
09 December 2020
Procedural Posture
Equity Commercial List / Plaintiff's Amended Notice of Motion for Leave to Amend and Substitute Plaintiff, Considered With Issues Raised by the Second Defendant's Application Concerning Service Outside Australia
Outcome
Leave to amend refused; proceedings dismissed as against the second defendant; costs reserved for further hearing.
Legal Topics
['service Outside Australia' 'application to Set Aside Service' 'leave to Amend Originating Process' 'substitution of Plaintiff' 'ucpr Schedule 6 Service Gateways' 'proper Law of Contract' 'stakeholder Agreement']
['civil Procedure' 'private International Law' 'contract Law'] ['service Outside Australia' 'application to Set Aside Service' 'leave to Amend Originating Process' 'substitution of Plaintiff' 'ucpr Schedule 6 Service Gateways' 'proper Law of Contract' 'stakeholder Agreement']

Case Brief

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Procedural Posture

Equity Commercial List / Plaintiff's Amended Notice of Motion for Leave to Amend and Substitute Plaintiff, Considered With Issues Raised by the Second Defendant's Application Concerning Service Outside Australia

Legal Issues

  1. 1 ['Whether the Court had power under s 64 of the Civil Procedure Act 2005 (NSW) to permit amendments substituting Yellow Presents Pty Ltd as plaintiff and reformulating the claims.' 'Whether leave to amend should be refused as futile because service of the proposed amended process on WME and Dardy in the United States would not be authorised by the Uniform Civil Procedure Rules 2005 (NSW).' 'Whether the alleged Stakeholder Agreement was by its terms or implication governed by Australian law so as to enliven cl (b)(iv) of Schedule 6 to the UCPR.' 'Whether leave should be granted under UCPR r 11.5 to serve the proposed amended process outside Australia.']

Ratio Decidendi

Although s 64 was apt to allow the proposed amendment and the Court would otherwise have been inclined to permit it, the amendment would be futile. The alleged Stakeholder Agreement was not to be performed in Australia and was not shown even to the required prima facie standard to be governed by Australian law; it was integral to a proposed contract governed by California law, the deposit was to be paid and held in California, WME's obligations were to be performed in California, and the agreement was made in California when acceptance was received there. The proposed amended proceedings therefore would not fall within Schedule 6 and service outside Australia would not be authorised. The...

Court Disposition

Leave to amend refused; proceedings dismissed as against the second defendant; costs reserved for further hearing.

Orders

  • ["The plaintiff's notice of motion of 3 December 2020 is dismissed." 'The proceedings are to be dismissed as against the second defendant.' 'The Court will hear the parties as to costs.']