Cleary v Kremer [2016] NSWSC 1781

Cleary v Kremer [2016] NSWSC 1781

There was no valid service of the statement of claim under English law, so the time for filing the defendant’s motion had not yet commenced; the extension order was set aside due to lack of satisfactory explanation for delay and lack of diligence; the connecting factors conclusively established that England, not NSW, was the appropriate forum; as such, NSW was a clearly inappropriate forum for the proceedings.

Parties
Plaintiff: Shannon Peta Cleary; Defendant: Dr Dirk Kremer
Jurisdiction
Australia
Judgment Date
16 December 2016
Procedural Posture
Civil / Interlocutory Application Regarding Service, Forum, and Extension of Time
Outcome
The Supreme Court of NSW is a clearly inappropriate forum; extension order discharged; matter listed for further directions.
Legal Topics
Service of Process, Forum Non Conveniens, Extension of Validity of Originating Process, Personal Service, Jurisdiction
Practice and Procedure Conflict of Laws Service of Process Forum Non Conveniens Extension of Validity of Originating Process Personal Service Jurisdiction

Case Brief

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Parties

Shannon Peta Cleary

Plaintiff

Dr Dirk Kremer

Defendant

Procedural Posture

Civil / Interlocutory Application Regarding Service, Forum, and Extension of Time

Legal Issues

  1. 1 Whether the motion was filed out of time
  2. 2 Whether the extension order for service should be discharged
  3. 3 Whether the Supreme Court of NSW is the appropriate forum

Ratio Decidendi

There was no valid service of the statement of claim under English law, so the time for filing the defendant’s motion had not yet commenced; the extension order was set aside due to lack of satisfactory explanation for delay and lack of diligence; the connecting factors conclusively established that England, not NSW, was the appropriate forum; as such, NSW was a clearly inappropriate forum for the proceedings.

Court Disposition

The Supreme Court of NSW is a clearly inappropriate forum; extension order discharged; matter listed for further directions.

Orders

  • The matter is listed for directions before the court at 9.45 am on 3 February 2017.
  • The parties are to prepare Short Minutes to give effect to the conclusions reached in the judgment.