Ivanovski & Anor v Perdacher [2006] NSWSC 978

Ivanovski & Anor v Perdacher [2006] NSWSC 978

The Defendant did not demonstrate that the Supreme Court of New South Wales was a clearly inappropriate forum. Although the agreement was made in Papua New Guinea and the Defendant and some proposed witnesses resided there, the Plaintiffs were New South Wales residents, performance was said to require payment into New South Wales bank accounts, the contract was in English and no material difference in contract law was shown. The proposed evidence of the two policemen would not be admissible if tendered only on credit, and the need for the Defendant and two other witnesses to travel to New South Wales did not alone make the forum clearly inappropriate.

Jurisdiction
Australia
Judgment Date
15 September 2006
Procedural Posture
Proceedings for Judgment for a Debt Said to Arise on a Loan Agreement; Defendant's Stay Application / Application for Permanent Stay of Proceedings on the Ground That the New South Wales Court Was a Clearly Inappropriate Forum
Outcome
Application for stay dismissed.
Legal Topics
['stay of Proceedings' 'clearly Inappropriate Forum' 'forum Non Conveniens' 'loan Agreement' 'credit Evidence']
['procedure' 'conflict of Laws' 'contract' 'evidence'] ['stay of Proceedings' 'clearly Inappropriate Forum' 'forum Non Conveniens' 'loan Agreement' 'credit Evidence']

Case Brief

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Procedural Posture

Proceedings for Judgment for a Debt Said to Arise on a Loan Agreement; Defendant's Stay Application / Application for Permanent Stay of Proceedings on the Ground That the New South Wales Court Was a Clearly Inappropriate Forum

Legal Issues

  1. 1 ['Whether the Defendant demonstrated that the New South Wales Supreme Court was a clearly inappropriate forum for the trial of the proceedings.' 'Whether the need to call witnesses resident in Papua New Guinea made continuation of the New South Wales proceedings seriously and unfairly burdensome.' "Whether evidence from two Papua New Guinea policemen proposed to be called only to attack the Plaintiffs' credit would be admissible."]

Ratio Decidendi

The Defendant did not demonstrate that the Supreme Court of New South Wales was a clearly inappropriate forum. Although the agreement was made in Papua New Guinea and the Defendant and some proposed witnesses resided there, the Plaintiffs were New South Wales residents, performance was said to require payment into New South Wales bank accounts, the contract was in English and no material difference in contract law was shown. The proposed evidence of the two policemen would not be admissible if tendered only on credit, and the need for the Defendant and two other witnesses to travel to New South Wales did not alone make the forum clearly inappropriate.

Court Disposition

Application for stay dismissed.

Orders

  • ['The application will be dismissed.' "The Defendant will pay the Plaintiffs' costs of this application."]