Dial A Dump v Extec Screen & Crushers [2001] NSWSC 569

Dial A Dump v Extec Screen & Crushers [2001] NSWSC 569

The application failed because the plaintiff satisfied the requirements for service outside Australia under Part 10 rule 10.1A(1)(c)(iii) and (iv): the alleged failure to provide information about potential sales was a breach occurring in New South Wales, and the proper law of the contract was New South Wales law. The defendant also failed to discharge its onus of showing that the Supreme Court of New South Wales was a clearly inappropriate forum, particularly given the plaintiff's evidence as to the agreement's Australian performance and Australian witnesses, and the ability of modern procedures to reduce inconvenience to the defendant.

Jurisdiction
Australia
Judgment Date
29 June 2001
Procedural Posture
Practice and Procedure; Application to Strike Out Originating Process or Stay Proceedings on Forum Non Conveniens Grounds / Defendant's Amended Notice of Motion Filed 29 June 2001
Outcome
Application refused with costs.
Legal Topics
['service Outside Australia' 'forum Non Conveniens' 'clearly Inappropriate Forum' 'proper Law of Contract' 'breach of Contract' 'stay of Proceedings' 'strike Out']
['practice and Procedure' 'private International Law' 'contract Law'] ['service Outside Australia' 'forum Non Conveniens' 'clearly Inappropriate Forum' 'proper Law of Contract' 'breach of Contract' 'stay of Proceedings' 'strike Out']

Case Brief

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Procedural Posture

Practice and Procedure; Application to Strike Out Originating Process or Stay Proceedings on Forum Non Conveniens Grounds / Defendant's Amended Notice of Motion Filed 29 June 2001

Legal Issues

  1. 1 ['Whether the originating process should be struck out because the claim was founded on a breach of contract in the United Kingdom and not in New South Wales.' 'Whether Supreme Court Rules Part 10 rule 10.1A(1)(c) requires all subparagraphs (i) to (iv) to be satisfied, or whether satisfaction of subparagraphs (iii) and/or (iv) is sufficient for service outside Australia.' 'Whether the alleged contract was governed by the law of New South Wales or involved a breach committed in New South Wales.' 'Whether the Supreme Court of New South Wales was a clearly inappropriate forum for the proceedings.']

Ratio Decidendi

The application failed because the plaintiff satisfied the requirements for service outside Australia under Part 10 rule 10.1A(1)(c)(iii) and (iv): the alleged failure to provide information about potential sales was a breach occurring in New South Wales, and the proper law of the contract was New South Wales law. The defendant also failed to discharge its onus of showing that the Supreme Court of New South Wales was a clearly inappropriate forum, particularly given the plaintiff's evidence as to the agreement's Australian performance and Australian witnesses, and the ability of modern procedures to reduce inconvenience to the defendant.

Court Disposition

Application refused with costs.

Orders

  • ['The application is refused.' "The applicant is to pay the respondent's costs of the application."]