Stylianou v Toyoshima

Stylianou v Toyoshima

Consequential financial losses suffered by the Claimant in England constitute damage sustained within the jurisdiction for the purposes of CPR 6.36 and 6 BPD 3.1(9)(a). The applicable law is Western Australian law under Rome II Article 4(1), and the case does not fall within the exceptional circumstances of Article 4(3). England is the proper place to bring the claim due to the Claimant's residence, inability to travel, and the location of evidence and witnesses. The English proceedings are not an abuse of process despite the advanced state of the Australian proceedings.

Parties
Claimant: Flora Stylianou; First Defendant: Masatomo Toyoshima; Second Defendant: Suncorp Metway Insurance Limited
Jurisdiction
England and Wales
Judgment Date
24 July 2013
Procedural Posture
Personal Injury/tort / Interlocutory Application to Set Aside Permission for Service Out of Jurisdiction and to Strike Out Claim for Abuse of Process
Outcome
Defendant's application to stay English proceedings and set aside service out of jurisdiction dismissed.
Legal Topics
Jurisdiction, Applicable Law, Forum Non Conveniens, Service Out of Jurisdiction, Rome II Regulation, Brussels I Regulation, Assessment of Damages
Private International Law Civil Procedure Personal Injury Jurisdiction Applicable Law Forum Non Conveniens Service Out of Jurisdiction Rome II Regulation +2 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 19 Party arguments 2 Amounts and remedies 4
Sign in to unlock

Parties

Flora Stylianou

Claimant

Masatomo Toyoshima

First Defendant

Suncorp Metway Insurance Limited

Second Defendant

Procedural Posture

Personal Injury/tort / Interlocutory Application to Set Aside Permission for Service Out of Jurisdiction and to Strike Out Claim for Abuse of Process

Legal Issues

  1. 1 Whether consequential financial losses suffered in England constitute 'damage sustained within the jurisdiction' under CPR 6.36 and 6 BPD 3.1(9)(a)
  2. 2 What is the applicable law under Rome II Regulation—Western Australian or English law
  3. 3 Whether England is the proper place to bring the claim (forum conveniens)

Ratio Decidendi

Consequential financial losses suffered by the Claimant in England constitute damage sustained within the jurisdiction for the purposes of CPR 6.36 and 6 BPD 3.1(9)(a). The applicable law is Western Australian law under Rome II Article 4(1), and the case does not fall within the exceptional circumstances of Article 4(3). England is the proper place to bring the claim due to the Claimant's residence, inability to travel, and the location of evidence and witnesses. The English proceedings are not an abuse of process despite the advanced state of the Australian proceedings.

Court Disposition

Defendant's application to stay English proceedings and set aside service out of jurisdiction dismissed.

Orders

  • English proceedings to continue.
  • Court to hear submissions on costs and consequential orders after judgment.