ADAMA NEW ZEALAND LIMITED v RAAM CHEM PTE LIMITED [2020] NZHC 1163

ADAMA NEW ZEALAND LIMITED v RAAM CHEM PTE LIMITED [2020] NZHC 1163 [29 May 2020]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2018-485-961[2020] NZHC 1163BETWEEN ADAMA NEW ZEALAND LIMITEDPlaintiffAND RAAM CHEM PTE LIMITEDDefendantAND FALCON INTERNATIONALBIOSCIENCES PRIVATE LIMITEDFirst third partyARISTO BIO-TECH AND LIFESCIENCEPRIVATE LIMITEDSecond third partyJAY LAXMI INDUSTRIESThird partyORCHID AGRO SYSTEMSFourth third partyUPL LIMITEDFifth third partyHearing: 18 May 2020Appearances: W A Holden and N Cannon for defendantA W Johnson for fifth third partyZ Caughey in attendance in an observational capacity for plaintiffNo appearances for first, second, third or fourth third partiesJudgment: 29 May 2020JUDGMENT OF ASSOCIATE JUDGE JOHNSTONIntroduction[1] The defendant, Raam Chem Pte Ltd ("Raam"), applies for an order settingaside an appearance under protest to jurisdiction by the fifth third party, UPL Ltd("UPL").[2] The question to be determined is whether Raam's claim against UPL should belitigated in New Zealand or India. There is much to be said for both jurisdictions. Inthe end, the issue comes down to an assessment of whether New Zealand is theappropriate forum (forum conveniens).Background[3] The plaintiff, Adama New Zealand Ltd ("Adama"), is a New Zealand company.Raam is a Singaporean company. In late 2016 Adama and Raam entered into acontract pursuant to which Adama ordered 50,000 kg of Mancozeb, a fungicide usedby horticulturalists to protect against a range of diseases in crops, and commonly usedby apple growers.[4] In early 2017 the Mancozeb was delivered to Adama in New Zealand in fourconsignments.[5] During the course of 2017 Adama sold a substantial quantity of the Mancozebto Horticentre Ltd (Horticentre), another New Zealand company. Horticentre sold theproduct to various apple growers, who applied it in their orchards.[6] In its claim, Adama alleges that the Mancozeb was contaminated with achemical known as Azoxytrobin with the result that it damaged the trees.[7] The apple growers claimed compensation from Horticentre. Horicentre in turnlooked to Adama.[8] Adama took responsibility for settling the claims and paid out compensationtotalling more than $13 m.[9] In late 2018 Adama commenced this proceeding against Raam alleging breachof contract and related causes of action. Raam is defending the claim.[10] It turns out, that, quite possibly unbeknown to Adama, behind Raam there wasa prodigiously long manufacturing and supply chain.[11] Raam, which, it will be recalled, is a Singaporean company, ordered theMancozeb from an Indian company known as Falcon International Biosciences PteLtd ("Falcon"). Falcon in turn ordered it from another Indian company known asAristo Bio-Tec and Lifescience Pte Ltd ("Aristo"). Aristo engaged another Indianconcern, Jay Laxmi Industries ("Laxmi") to manufacture the Mancozeb by blendingthe necessary ingredients. Aristo supplied the primary chemical component,Mancozeb TC 85%, to Laxmi from its own stock and from additional stock acquiredfrom two other Indian concerns, Orchid Agro Systems ("Orchid") and UPL. As if thiswere not complicated enough, it would seem that all or a proportion of the MancozebTC 85% that Aristo acquired from Orchid had originally been acquired by Orchid fromUPL.[12] One of the deponents who has sworn an affidavit in opposition to Raam'sapplication is Mr Amitesh Mishra who is a principal of UPL's New Delhi solicitors.Mr Mishra exhibits to his affidavit an opinion from Justice V N Khare who is a formerChief Justice of India (one of two former Chief Justices whose opinions on aspects ofthis matter are in evidence, or, rather, are exhibited to affidavits sworn by others).Justice Khare's opinion includes a diagram of the manufacturing and supply chaininvolved which is reproduced below:[13] In early 2019 Raam commenced third party proceedings citing Falcon, Aristo,Laxmi, Orchid and UPL as first to fifth third parties.[14] Understandably, given the relatively straight forward nature of its claim againstRaam, and that the resolution of this claim would unquestionably be delayed byJay LaxmiAdamaRaam ChemFalconAristoUPLSupplied UPL Marcozeb TC 85%for formulationSupplied Formulated Adama MancozebSale of Mancozeb TC 85%Sale of Mancozeb TC 85%Onsold Mancozeb TC 85% from UPLSold Adama MancozebSold Adama MancozebSold Adama MancozebOrchid(Affiliate ofAristo)Raam's third party claims, Adama applied for an order striking out or severing thoseclaims.[15] I heard that application on 14 October 2019. Having explored various optionswith counsel, in the end, I was able to make an order by consent severing Adama'sclaim against Raam from Raam's third party claims. This approach had advantagesfor both parties. From Adama's perspective it could proceed with its claim againstRaam unimpeded by Raam's third party proceedings (Adama's claim has since beenallocated a fixture and is to be heard over two weeks commencing on 3 August 2020).From Raam's perspective, the approach avoided the necessity of commencing newproceedings.[16] In his submissions on Raam's behalf Mr Holden described that company as a"fixer". By this I understood him to mean that Raam merely facilitated Adama'sacquisition of the Mancozeb. It is common ground that Raam did not handle theproduct at all. As already said, Aristo was responsible for its preparation, which itengaged Laxmi to undertake. It was also responsible for its packaging and labelling.Falcon arranged shipment.[17] In its third party claims, Raam says that in those circumstances it could nothave been responsible for any contamination, which must therefore have occurredfurther down the manufacturing and supply chain. At this stage, it does not claim tobe able to pinpoint exactly where. Accordingly, it sues all of the entities involved.[18] Having filed its third party notices and statements of claim, Raam proceededon the basis that it was entitled to serve these outside the jurisdiction without leavepursuant to r 6.27 of the High Court Rules 2016.[19] Raam first communicated with the third parties asking whether they wereprepared to accept and acknowledge service of the originating documentation in thethird party claims against them. These enquiries appear to have been ignored byFalcon, Aristo, Laxmi and Orchid. But UPL accepted service. Raam thereforearranged for service on the other third parties through diplomatic channels. Myunderstanding is that as at the date of the hearing before me the originatingdocumentation had been served on Laxmi and Orchid (though those entities had nottaken any steps in the proceeding), but was still to be served on Falcon and Aristo.[20] For its part, having accepted service, UPL filed and served the appearanceunder protest to jurisdiction pursuant to r 5.49 of the High Court Rules that Raam nowapplies to have set aside.[21] The Court has the benefit of a considerable amount of affidavit evidence beforeit. For a start, there is the evidence filed and served by Adama and Raam in connectionwith the former's application to set aside or sever the third party proceedings to whichI have already referred. In relation to this application, Raam relies also on affidavitevidence sworn by Mr Saurabh Gupta, the company's General Manager, Ms CaitlinBarclay, a solicitor employed by the firm representing the company in this proceedingand Mr Gautam Khazanchi, a New Delhi advocate. For its part, UPL relies also onaffidavits sworn by Mr Suman Dutta, the company's Vice President, Mr Rohit Kumar,its Global General Counsel, and Mr Amitesh Mishra whose evidence has already beenmentioned.[22] The sole purpose of the affidavits sworn by Messrs Khazanchi for Raam andMishra for UPL was to exhibit the opinions obtained for those parties by, respectively,Justices Dipak Misra and V N Khare, the two former Chief Justices.Principles governing Raam's interlocutory application[23] Both Mr Holden for Raam and Mr Johnson for UPL took as their starting pointsr 6.29 of the High Court Rules which provides:6.29 Court's discretion whether to assume jurisdiction(1) If service of process has been effected out of New Zealand withoutleave, and the court's jurisdiction is protested under rule 5.49, thecourt must dismiss the proceeding unless the party effecting serviceestablishes—(a) that there is—(i) a good arguable case that the claim falls whollywithin 1 or more of the paragraphs of rule 6.27; and(ii) the court should assume jurisdiction by reason of thematters set out in rule 6.28(5)(b) to (d); or(b) that, had the party applied for leave under rule 6.28,—(i) leave would have been granted; and(ii) it is in the interests of justice that the failure to applyfor leave should be excused.[24] Mr Holden emphasised that in terms of r 6.29(a)(i) all Raam had to establishwas a good arguable case that the claim falls within one or more of the paragraphsr 6.27, as opposed to a good arguable case against UPL on the merits. In Wing HungPrinting Co Ltd v Saito Offshore Pty Ltd1 the Court of Appeal explained that for thepurposes of taking advantage of r 6.27 and serving proceedings abroad without leave,it is sufficient if at least one cause of action falls within the rule, but that if there is achallenge to New Zealand as the forum for the proceeding, because r 6.29(1)(a)(i)requires that the proceeding fall wholly within r 6.27, any cause of action that does notfall within r 6.27 will be dismissed unless the plaintiff — defendant in the case of thirdparty proceedings — can rely on r 6.29(1)(b) and establish that leave would have beengranted pursuant to r 6.28.[25] Mr Holden submitted that all four causes of action pleaded by Raam againstUPL fell within one or more of the categories of cases caught by r 6.27. He madedetailed submissions in relation to all causes of action and at least nine paragraphs ofthe rule. Mr Johnson contended that Raam could not bring all four of its causes ofaction within the rule.[26] For reasons that will become obvious, I do not propose to address this issue inany detail.[27] On the basis of Dobson J's analysis in Eight Mile Style LLC & Others v TheNew Zealand National Party & Others,2 I am inclined to the view that Raam may beable to rely on r 6.27(h)(ii). However, in the end, I do not see that there is a significantdifference between the analysis called for under sub-paragraphs (a) and (b) of1 Wing Hung Printing Co Ltd v Saito Offshore Pty Ltd [2011] 1 NZLR 754 at [33].2 Eight Mile Style LLC and Others v The New Zealand National Party and Others [2015]NZHC 2409 at [23]–[24].r 6.29(1). The only material difference is that under the latter Raam must establishthat its claim has a real and substantial connection with New Zealand (something thatwould already be determined if the claim fell wholly within r 6.27).[28] Accordingly, I propose to focus on r 6.28, which provides:6.28 When allowed with leave(5) The court may grant an application for leave [to serve proceedingsoutside the jurisdiction] if the applicant establishes that—(a) the claim has a real and substantial connection withNew Zealand, and(b) there is a serious issue to be tried on the merits; and(c) New Zealand is the appropriate forum for the trial; and(d) any other relevant circumstances support an assumption ofjurisdiction.Does the claim have a real and substantial connection with New Zealand?[29] Adama's claim against Raam is being litigated here, and the damage which issaid to have given rise to, and is the subject of, both Adama's claim against Raam andRaam's claim against UPL occurred here.[30] On the basis of those considerations alone, I am satisfied that Raam's claimhas a real and substantial connection with New Zealand.Is there a serious issue to be tried?[31] Obviously, this requires a serious issue as between Raam and UPL.[32] On Raam's behalf Mr Holden submitted that such an issue exists. His startingpoint was that the affidavit evidence relied on by Adama and Raam in connection withthe former's application for an order dismissing or severing the third party claimsestablished a strong prima facie case that the Mancozeb shipped to Adama wascontaminated. Mr Johnson did not contend otherwise. He then submitted that as afixer that had had no "physical contact with the product", Raam could not have beenresponsible for any contamination. He submitted that it followed that one or more ofFalcon, Aristo, Laxmi, Orchid or UPL must have been responsible. He took theargument a stage further by suggesting that the most likely points of contaminationwere either at the start of the manufacturing and supply chain when UPL supplied theMancozeb TC 85%, or at the blending stage for which Aristo and Laxmi wereresponsible. On that straightforward basis he contended that a serious issue arose asbetween Raam and UPL.[33] On UPL's behalf, Mr Johnson contended that Raam's claim against UPL wasbased on little more than a theory. He pointed to the evidence offered by Mr Duttarelating to UPL's processing operation directed at demonstrating that the opportunityfor contamination was minimal or non-existent and submitted — no doubt correctly— that there were possibilities other than default on the part of any of the third parties,such as UPL having been supplied with raw materials that were already contaminated.[34] At this stage the Court is certainly not in a position to embark on any sort ofassessment of fault. It is faced with the allegation by Raam that UPL was responsible— either alone or with others — for any contamination and UPL's denial of this. It ishard to see how the Court can go beyond that. However, that, it seems to me, issufficient to raise a serious issue as between Raam and UPL. In short, I am satisfiedthat the requirements of r 6.28(5)(b) are met.Is New Zealand the appropriate forum for the trial?[35] This is the key issue. It is the issue upon which counsel ultimately focussedtheir attention. It is also this issue which prompted my observation earlier in thisjudgment that there is much to be said on both sides of the argument. The authoritiesare clear that New Zealand courts will not lightly subject a foreign national to ourjurisdiction,3 and that the ultimate issue is "whether the court is satisfied that there aresufficient grounds for it properly to assume jurisdiction."43 Societé Générale de Paris v Drefus Brothers (1885) 29 Ch D 239.4 Kuwait Asia Bank EC v National Mutual Life Nominees Ltd (No. 2) [1989] 2 NZLR 50 (CA) at54; Kuwait Asia Bank EC v National Mutual Life Nominees Ltd [1990] 3 NZCR 513 (PC) at 525.[36] As Mr Holden began by submitting, under r 6.28(5)(c) it is not necessary forRaam as the party with the onus to establish that New Zealand is "clearly or distinctly"the most appropriate forum.5 Nevertheless the rule requires that the party with theonus must satisfy the Court that New Zealand is the appropriate forum for the trial.That appears to me to introduce a comparative component to the analysis —New Zealand must be demonstrated to be the appropriate forum having regard to anyother possible forum or fora.[37] Mr Holden then focussed on five principal points.[38] First, he submitted that New Zealand is "the natural forum". Expanding onthis, he emphasised that Adama's claim against Raam was to be litigated here, and thatthere was a significant degree of commonality between the factual (though perhapsnot so much the legal) issues that would arise in that claim and those that will arise inRaam's claim against UPL. There is considerable force in this point. I do not regardit as materially diluted by the fact that the trial of Adama's claim against Raam and thetrial of Raam's claim against UPL have been severed. It is true that whilst Adama'sclaim against Raam is primarily focussed on their contractual arrangements, Raam'sclaim against UPL is primarily a tortious claim. However, the facts giving rise toAdama's claim against Raam are also central to Raam's claims. Any court dealingwith either will have to make factual findings as to the background and, that being so,the same jurisdictional forum for both claims would be preferable.[39] Second, Mr Holden's emphasised that the triggering events — the applicationof the Mancozeb and the alleged consequential damage — occurred in New Zealand.This of course was the cause of the loss which is the subject of both Adama's claimagainst Raam and Raam's claim against UPL. In relation to these core matters, thelitigation of Adama's claim against Raam and Raam's claim against UPL in differentjurisdictions raises the prospect of different conclusions.[40] Third, Mr Holden emphasised that Raam's primary causes of action are basedon New Zealand law. As he submitted, if they were to be litigated in any other5 Haines v Herd [2015] NZHC 3365 at [76] per Associate Judge Bell.jurisdiction, the court would have to take evidence as to New Zealand law adding onefurther layer of complexity.[41] Fourth, Mr Holden went on to submit that there was no evidence to support thesuggestion at paragraph 3.1.2 of UPL's notice of opposition that negligence and claimsfor contribution are causes of action in India. Even if that is correct, I don't regard itas a strong point as it would surprise me if New Zealand and Indian law werematerially dissimilar in this area. Certainly neither Justice Misra nor Justice Kharesuggested that this was so.[42] Fifth and finally, Mr Holden submitted that in the event of Adama's claimproceeding in New Zealand and Raam's third party claims proceeding in India, Raamwould be faced with the practical difficulty of having to re-establish the facts thatentitled the apple growers and Horticentre to recover damages through witnesses overwhom it has next to no control and who may well be hostile. This, as Mr Holdensubmitted, was a factor which appears to have weighed heavily with Colman J inCiti-March Ltd and Another v Neptune Orient Lines Ltd and Others.6[43] On UPL's behalf Mr Johnson submitted that New Zealand was not theappropriate forum for Raam's claim against UPL, which has no connection with thiscountry.[44] Mr Johnson referred me to the commentary in Laws of New Zealand,7 whichhelpfully identifies a series of considerations to which the courts have had regard indetermining this issue, and marshalled his argument under those headings.Convenience and cost[45] As between Raam and UPL, one party is going to have to litigate in a foreignjurisdiction, and that party will no doubt be inconvenienced. That is inevitable. It isalso the case in every cross-border dispute.6 Citi-March Ltd and Another v Neptune Orient Lines Ltd and Others [1996] WLR 1367 (QB) at 78and 79.7 The Laws of New Zealand Conflict of Laws (online ed, LexisNexis) at 30.[46] As to cost, Mr Johnson drew my attention to the opinion of Justice Khare whohas estimated that the cost to UPL of defending the claim against it in New Zealandwould be between $2 m and $3.5 m, whereas the cost in India would be between$0.5 m and $1 m. It is clear from his Honour's narrative that the New Zealand figureswere supplied to him. What is not clear is how these were arrived at in the first place.The estimate of the cost of defending this claim in New Zealand is surprising to saythe very least. Focussing exclusively on Raam's claim against UPL, and presumingthat UPL has described the essential components of its case in its affidavit evidencefor the purposes of responding to the current application, I would not expect the issuesas between Raam and UPL to occupy more than three days, and I find it impossible toimagine that the costs of either party would approach even the lower end of thisestimate ($2 m).[47] In relation to this issue, Mr Johnson invited the Court to have regard to theinterests of Falcon, Aristo, Laxmi and Orchid as well as UPL. I am not persuaded thatit would be appropriate to do so. At this stage, the Court has no indication of theposition that will be taken by any of those parties. It seems at least conceivable thatone or more of them, and perhaps all of them, may choose not to enter a defence, inwhich case their interests are irrelevant to the determination of the issue before theCourt today.[48] In the end, I regard issues of convenience and cost as between Raam and UPLas neutral.Location of witnesses and documentation[49] Given the nature of Raam's claim against UPL, I expect that many of thewitnesses who will be able to give relevant evidence and the important documentationare likely to be in India.[50] However, in this day and age, it appears to me that the worst consequences ofthis may well be able to be avoided by a proper level of cooperation between the partiesand their advisers and the judicious use of technology. It is an everyday occurrence inNew Zealand courts that witnesses based abroad give their evidence by AVL, and theNew Zealand courts are comparatively well set up to accommodate this. There is noevidence as to whether the same is the case in India. Documentation is invariablyexchanged electronically so that distance is not an issue. Again, I regard this issue asa comparatively neutral one.Raam's Indian proceedings[51] Raam has already commenced proceedings against the third parties in India soas to protect its position against the expiry of any limitation periods. Mr Johnsonidentified this as significant and said that it was UPL's understanding that in thoseproceedings comparable causes of action were pleaded. For present purposes, I makethe same assumption.[52] I accept that this goes to reinforce the fact that, all other things being equal,Raam's claim against UPL could be litigated either in New Zealand or in India.[53] But, in the end, that adds little to the analysis. It is for that very reason that theCourt is obliged to make an assessment of whether this country is the convenientforum for the litigation.[54] I regard this as a neutral factor.Whether all relevant parties are subject to New Zealand jurisdiction[55] Adama and Raam are most certainly subject to New Zealand jurisdiction.Adama is a local company. Raam might be said to have been carrying on businesshere, and has, in any event, submitted to New Zealand jurisdiction.[56] In relation to this issue too, Mr Johnson invited the Court to consider thepositions of all of the third parties. For the reasons already explained, I decline to doso.[57] There is a sense in which this issue simply begs the question. If this Courtasserts jurisdiction on the basis that New Zealand is the appropriate forum for Raam'sclaim against UPL, then UPL will be subject to the jurisdiction. The commentary inLaws of New Zealand certainly identifies this as a proper matter to which the Courtshould have regard. But it appears to me that it can only be relevant in cases wherethe party who is resisting New Zealand as the most appropriate forum is alreadysubject to New Zealand jurisdiction, for example because it carries on business here.[58] In the end, my conclusion is that this is not a factor that can influence theoutcome of Raam's application.The governing law[59] In relation to this issue Mr Johnson's submission was essentially that bothNew Zealand and Indian law provided broadly comparable bases for Raam's claimagainst UPL. On the strength of the opinions offered by the two former Chief Justices,I accept that.[60] But once again, all that means is that in terms of the legal bases for Raam'sclaim there is a neutrality as between New Zealand and India as venues.The parties' agreement[61] The court will always have regard to any agreement between the parties as tojurisdiction — both as to venue and as to the applicable law.[62] However, this is not a relevant consideration in the present case.The strength of Raam's case[63] Under this heading, Mr Johnson repeated his earlier submission to the effectthat Raam's case is based on the proposition that it cannot be responsible for anycontamination of the product and therefore that it must have occurred further downthe manufacturing and supply chain, and that its claim, as against any one of themembers of that chain cannot be regarded as strong.[64] There is something in this. However, the same issue would arise irrespectiveof whether New Zealand or India was the forum.[65] Again, I do not propose to attempt to assess the evidence in order to attributefault.[66] This point does not appear to me to be an especially telling one for adetermination as to the appropriate forum.Enforcement[67] As Mr Johnson submitted, given that UPL is not registered and has no presencein this country, if Raam were to secure a judgment against the company, Raam wouldbe obliged to go to India to enforce that judgment. Justices Misra and Khare expressdifferent views as to the enforceability of any judgment. Justice Misra suggests thatany New Zealand judgment would be enforceable, though his Honour does not go intodetail in explaining the basis for his conclusion. Justice Khare on the other handsuggests that a judgment would only be enforceable if it complied with therequirements of s 13 of India's Code of Civil Procedure 1908. These include that thejudgment is on the merits with the result that a default judgment would not beenforceable. For no other reason than that Justice Khare's opinion accords with myunderstanding of New Zealand law, which I expect is similar to Indian law in thisregard, I am inclined to prefer his Honour's view. Of course it is only if UPL does notsubmit to the jurisdiction that the enforceability of a New Zealand judgment willbecome questionable. Furthermore, there is a sense in which it is for Raam todetermine whether to assume this risk.[68] This point probably counts against the New Zealand courts assertingjurisdiction, but by a fine margin.Whether the protest is a tactical one[69] There is a sense in which the decisions parties take in relation to the conductof litigation are necessarily tactical. I suspect that the real point here is that if adefendant or third party is seen to be objecting to jurisdiction, not because there is anyproper grounds for such a protest, but because that is the most effective way that it cande-rail or delay the claim, then the courts will give less weight to their protest.[70] I accept that the appearance under protest to jurisdiction filed in response toRaam's claim by UPL in this proceeding is a genuine one, and made for appropriatereasons.The procedural advantages of one jurisdiction over another[71] A starting point here may be to recognise there is likely to be a degree of homeadvantage for one party or the other in any event.[72] Although I would not pretend to any familiarity with the Indian Code of CivilProcedure, I have compared relevant aspects of it with the High Court Rules. The twoshare core characteristics (as they well might, both having their roots in English civilprocedure). In the end, both are directed at achieving the expeditious and fair disposalof litigation, and I am not prepared to accept that either regime will provide one partywith major procedural advantages. This point in neutral.Longbeach Holdings Ltd[73] In the course of his submissions Mr Holden referred me to the Court ofAppeal's judgment in Longbeach Holdings Ltd v Bhanabhai and Co Ltd.8 That caseinvolved a contractual claim between Longbeach, a New Zealand company, andBhanabhai, a Fiji company. The contract was for the manufacture of clothing, and washeld to have been entered into in New Zealand. But the alleged breach or breacheswere said to have taken place in Fiji. A question arose as to the appropriate forum forthe disposal of the litigation. Here is how the Court of Appeal dealt with that issue:The Judge emphasised the Fijian context in which the contract was made (ashe had held) and carried out. Our conclusion that it was made in New Zealanddoes not significantly affect the balance. On the other hand, the fact ofperformance of the contract in Fiji is of no particular relevance to Longbeach'sclaim. The breaches, if there were any, occurred there, but their consequenceswere felt entirely in New Zealand. It was here that the defects are said to havebeen discovered, and it was here that Longbeach says it suffered its damagein sales to retailers and in loss of goodwill. It is really a New Zealand centredcase. As the Judge himself said, in the passage we have already quoted, thecase has a link or connection with New Zealand just as much as if it were tobe part performed, or was breached here. Indeed we would go further, andsay that New Zealand is the natural forum, in the sense used in The Spiliadaat p 856 of that with which it has the most real and substantial connection.8 Longbeach Holdings Ltd v Bhanabhai and Co Ltd [1994] 2 NZLR 28 at 36 and 37.And certainly it cannot be said that there is a more real and substantialconnection with Fiji.The practical implications of this are important. To prove its damagesLongbeach will need the evidence of retailers and others in various parts ofthis country, all people over whom it has no control. It will be dependent ontheir goodwill — which it claims in part to have lost — to bring them to Fiji.Bhanabhai on the other hand will doubtless be looking to its quality controlstaff to provide the evidence it wishes to adduce.Fraser J does not appear to have given weight to this very significantconsideration, instead treating performance in Fiji as the principal factor. Thatbeing so, we consider that we are entitled to look at the matter afresh. In doingthat, we recognise the desirability of disposing of all disputes in the onehearing. But we are not persuaded that disputes between Bhanabhai and itssubcontractors should be used to disadvantage Longbeach. The quality of thegoods can doubtless be established by the objective evidence of Longbeach'scustomers and by production of the very garments. Mr Bhanabhai hasdeposed that his company employed quality controllers whose duties includedthe inspection of garments manufactured by subcontractors. If Longbeachestablishes that garments were defective, any attempt by Bhanbhai to passliability on to its subcontractors will no doubt be met with the contention thatthey were approved by Bhanabhai's own responsible staff. That could wellbecome a significant feature of the trial, and yet is of no concern at all toLongbeach. Mr Wylie informed us that Bhanabhai wishes to join the shipperstoo; but we cannot see the relevance of that, in view of the nature of theC & F contract, under which Bhanabhai's responsibilities were discharged ondelivery to the shipper. Mr Wylie told us too that Bhanabhai has commencedproceedings against Longbeach to recover moneys allegedly owing forgarments supplied. Presumably the same issues arise as in the present action.Mr Wylie submitted that the new proceedings are relevant to venue, but we donot see how that can be so, for they were commenced almost two and a halfyears later.As we see the case, convenience to the parties favours a New Zealand venue;the case has a decided New Zealand connection; Longbeach has properlycommenced the action here; and Bhanabhai has therefore not satisfied theonus of showing that Fiji is the forum conveniens.(Footnotes omitted)[74] It appears to me that a similar analysis applies equally in this case. The onlymaterial differences between the cases are first that there is no contractual nexusbetween Raam and UPL, which tends to weaken the argument for New Zealand as theappropriate forum, and the fact that this is a third party claim in litigation in which theprincipal claim — as between Adama and Raam — is to be litigated in New Zealand,which tends to strengthen the argument for New Zealand as the appropriate forum.Are there any other relevant circumstances?[75] Rule 6.28(5)(d) requires the court to consider any other relevant circumstances.[76] In my view, there are no relevant matters that have not been covered in theabove analysis. Certainly counsel did not raise any such matters in argument.Discussion[77] It will be evident from the above that in terms of r 6.28(5)(c) the considerationsthat arise in relation to the forum conveniens issue are finely balanced.[78] In the end, I have reached the view that New Zealand is the appropriate forumfor the trial of Raam's claim against UPL. The considerations that have influenced mein reaching that conclusion are these:(a) The damage in respect of which both Adama and Raam seek recoveryoccurred in New Zealand.(b) Adama's claim against Raam is to be litigated in New Zealand, andRaam's claim against UPL is a third party claim.(c) Core factual aspects of Adama's claim pertain to the damage or losswhich is the subject matter of that claim as well as Raam's claim willhave to be determined. Ideally, these would be determined by one courtin one trial. This is not to happen here because Adama's claim has beensevered from Raam's. Nevertheless, consistency remains important,and in my view consistency is more likely to be achieved if the twoaspects of the claim are litigated in the same jurisdiction.(d) Adama's claim against Raam will be determined in accordance withNew Zealand procedural law, and consistency suggests that Raam'sclaim against UPL should be determined on the same basis.(e) If this Court were to order that Raam's claim against UPL should bedetermined in India, then the practical difficulty for Raam will be thatit will have to re-establish the core factual considerations alreadyreferred to in India. This will necessitate it in calling evidence fromNew Zealand-based witnesses over whom it has little influence andmay in the end mean from a practical perspective that it is deprived ofthe opportunity to prove its case.(f) In terms of overall efficiency and expediting the resolution of the entiredispute (by which I mean to refer both to Adama's claim against Raamand Raam's claim against UPL), I have been influenced by the opinionof Justice Misra which, without going into great detail, tends to suggestthat the matter will be dealt with more expeditiously in New Zealandthan in India.Conclusion[79] For those reasons, I make the order sought by Raam setting aside UPL'sappearance under protest to jurisdiction. UPL is to file and serve a statement ofdefence to the claim within 30 working days of the date of this judgment.[80] I reserve costs, not having heard from counsel in relation to these. If counselare unable to settle costs, as I would expect them to do, they may come back to me bymemorandum in the usual way.Associate Judge JohnstonSolicitors:Wotton + Kearney, Wellington for Defendant/ApplicantMartelli McKegg, Auckland for Fifth Third Party/Respondent