Agri-Best Aust P/L v Lodhias Ltd & Ors - [2005] SADC 139

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Appeal Against a Master's Decision)
AGRI-BEST AUST P/L v LODHIAS LTD & ORS
Judgment of His Honour Judge Millsteed
11 October 2005
GUARANTEE AND INDEMNITY - THE CONTRACT OF GUARANTEE
Appeal against a decision by a Master to stay proceedings in the District Court of South Australia on the ground of forum non conveniens - whether the District Court is a clearly inappropriate forum - whether the subject matter of the action should be litigated in Fiji - appeal dismissed.
Voth v Manildra Flour Mills (1990) 171 CLR 538; Oceanic Sun Line Special Shipping Co Ltd v Fay (1988) 165 CLR 197; Regie National des Usines Renault SA v Zhang (2002) 210 CLR 490; Henry v Henry (1966) 185 CLR 571; Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460; Contractors Limited v MTE Control Gear [1964] SASR 47; Continental Bank NA v Aekos Corporation Naviera SA [1994] 1 WLR 588; Green v Australian Industrial Investment Ltd (1989) 90 ALR 500, considered.

AGRI-BEST AUST P/L v LODHIAS LTD & ORS
[2005] SADC 139
Introduction

Agri-Best Australia Pty Ltd (the “appellant/plaintiff”) commenced an action in the District Court of South Austalia against Lodhias Limited (the “first respondent/first defendant”), Chandu Lodhias (the “second respondent/second defendant”) and Mahendra Lodhias (the “third respondent/third defendant”). On 28 April 2005, Master Rice stayed the action on the ground that the Court is forum non-conveniens. The Master considered that the issues raised in the action should be litigated in Fiji. This is an appeal by the plaintiff against that decision.
Factual Background
In order to understand the issues raised on this appeal it is necessary to canvass the factual background.
The plaintiff conducts a business located in Western Australia. The first defendant conducts business in Fiji importing, packing and distributing milk powder under the brand “Red Cow”. The second defendant is a director and shareholder of the first defendant and lives in Fiji. The third defendant is also a shareholder of the first defendant. He resides in Fiji and in Sydney, New South Wales.
In April 2003, the first defendant agreed to purchase instant full cream milk powder from the plaintiff. The agreement resulted from discussions that took place over the telephone and in person in Western Australia. The first defendant subsequently placed orders with the plaintiff for the supply of instant full cream milk powder.
On 4 June 2003, 21 June 2003 and 10 July 2003, the first defendant received consignments of milk powder shipped from Melbourne to Fiji. The third shipment had been consigned to Lami Investments Co Limited as agent on behalf of the first defendant. Under the terms of the shipment invoices delivery of each consignment occurred when it was placed either on board or alongside the ship in Melbourne. Accordingly, the relevant contracts were entered into in Western Australia and delivery was made in Melbourne. The defendants do not dispute that in respect of each consignment, delivery occurred in Melbourne but maintain that acceptance of the consignment did not occur until after the goods were inspected in Fiji. Nothing turns on this issue.
Prior to the shipments the first defendant presented to the plaintiff two cheques (in respect of the first two shipments) post dated 26 June 2003 and 10 July 2003. Each cheque was drawn and payable in Fiji for US$44,720.00. The plaintiff presented the cheques after the third shipment but the cheques were not honoured. The defendant also failed to pay the plaintiff for the third shipment.
On about 5 November 2003, Mr Cameron McMurtrie, the plaintiff’s managing director, flew to Fiji and met the defendants in relation to the dishonoured cheques. On 7 November 2003, the defendants entered into a Deed of Guarantee and Indemnity (the “Deed”). The Deed was signed by the second and third defendants and executed by the first defendant on the authority of the third defendant as its director. Under the terms of the Deed the first defendant, second defendant and third defendant as guarantors acknowledged the indebtedness of the first defendant in respect of the shipments of milk powder; and the second and third defendants each agreed to pay the plaintiff the sum of US$126,520.00 in amounts and on dates specified in a schedule to the Deed.
Clause10 of the Deed states:
This Guarantee is governed by the laws of South Australia and the Guarantor submits to the non-exclusive jurisdiction of its courts.
In accordance with the schedule the defendants paid the plaintiff the sum of US$16,450.79 on 7 November 2003 but later refused to pay the balance of US$110,669.21.
The factual background summarised above is not in dispute. However, the defendants assert the following matters. Following receipt of each shipment of milk powder, the first defendant repacked the product and sold it to retailers throughout Fiji as “Red Cow” instant full cream powder milk. Following the third shipment, the defendants received complaints from retailers and customers that the powder failed to readily dissolve in water and arranged for the product to be analysed. The analysis indicated that the tested samples comprised regular rather than instant milk powder - the former being cheaper and inferior in quality.
By its actions in selling regular milk powder as instant milk powder, the first defendant breached Fiji’s Fair Trading Act. In the result the first defendant withdrew all of its “Red Cow” instant milk products from shops in Fiji. The defendants contend that as a result they suffered significant financial loss and damage to their reputations.
The defendants further contend that they were contemplating taking legal action against the plaintiff when Mr H Lodhias, the father of the second and third defendants, died on 21 October 2003. Following his death, and in accordance with their religion (Hindu), the defendants and their respective families went into mourning for a period of 30 days and attended to various religious rites. It was during this period of mourning that Mr McMurtrie arrived in Fiji to discuss the defendants’ failure to pay for the shipments of milk powder. At the time the defendants were also involved in litigation in the High Court of Fiji initiated against them by the licensor of the brand name “Red Cow”.
The second and third defendants assert that they signed the Deed on 7 November 2003 due to threats made and pressure applied by Mr McMurtrie. In short, it is said that he threatened to attend the home of the third defendant and to discuss the financial dispute with his mother and other members of his family and friends who had gathered at his house to attend to religious rites in relation to his father’s death. It is said that Mr McMurtrie also threatened to submit to credit reporting agencies reports adverse to the defendants and to institute additional legal proceedings in relation to their failure to pay for the shipments. It is further asserted that Mr Mc Murtrie stated that he would not leave Fiji until all of the defendants had executed the Deed. To avoid embarrassment and pressure at such a sensitive and emotional time the second and third defendants signed the Deed.
Action commenced in District Court
By summons dated 17 December 2003 the plaintiff commenced an action against the defendants in this Court. There is no evidence explaining why the plaintiff chose to commence proceedings in this Court rather than in, say, Western Australia where the initial agreement was entered into or Melbourne where delivery of the shipments of powder took place.
The proceedings were served on the first and second defendants in Nadi, Fiji on 20 July 2004. The third defendant was served separately on a date uncertain. The proceedings against the third defendant were subsequently stayed pursuant to the provisions of the Bankruptcy Act 1966 by reason of his bankruptcy in New South Wales on 30 July 2004.
Under the Statement of Claim the plaintiff sued in contract for the monies owed in respect of the shipments of milk powder plus interest. The claim, however, did not make it clear whether the plaintiff was suing for breach of the original contract or on the Deed.
Action commenced in Fiji
By writ of summons filed in the High Court of Fiji on 19 April 2004 the defendants instituted an action against the plaintiff seeking damages of $500,000.00 for breach of contract arising from the plaintiff’s alleged failure to supply instant milk powder and a declaration that the deed was void for undue influence and duress.
Defence filed in District Court
On 24 May 2004, the defendants filed a defence in this Court. . The issues raised by the defendants were identical to those raised in the Fiji proceedings. The defendants counterclaimed for damages in the sum of $500,000.00 in consequence of the alleged failure of the plaintiff to provide instant milk powder. They also sought a declaration that the first defendant was not liable to the plaintiff pursuant to the Deed by reason of the plaintiff’s supply of faulty goods. In the alternative they sought a declaration that the Deed was void based on grounds of duress and undue influence. The defendants pleaded that they did not submit to the jurisdiction of the Court and that the matter should be litigated in Fiji.
The stay application
On 15 June 2004, the defendants applied for a permanent stay on the ground of forum non conveniens. The matter eventually came on for argument before Master Rice on 25 October 2004. Both parties filed affidavits in support of their respective arguments.
The hearing of the defendants’ application for a stay proceeded on the basis that the plaintiff would amend its Statement of Claim. The proposed amended Claim (attached to the affidavit of Cameron Mc Murtrie) made it plain that the plaintiff was suing the defendants for monies owed under the terms of the Deed rather than on the original contract or contracts. Furthermore, the parties agreed that the issues raised in the proposed amended Claim and in the Defence and counterclaim would be resolved at the same trial whether held in South Australia or in Fiji. This was confirmed by counsel on the hearing of this appeal.
The Master found:
The above facts point to a contract in Australia for the supply of goods to Fiji of a particular quality. The plaintiff says that the orders were complied with. The defendant says the orders are not complied with and the loss is substantial. The facts suggest that a contract was entered into in Fiji wherein the defendants assert that they were forced effectively to sign the Deed in circumstances where they say the Deed should be set aside. Clearly all of the evidence relating to the disputed events took place in Fiji involving witnesses from Fiji but adopting the laws of South Australia.
In the result the Master made an order staying the proceedings on the ground of forum non conveniens. He directed that no further step be taken in respect of the proceedings without further order of the court. The order was made “on the basis that the parties properly pursue the existing proceedings in Fiji.” The order contemplates that a failure on the part of the defendants to properly pursue those proceedings would result in a lifting of the stay.
The issues on appeal
The plaintiff complains that the Master erred in fact and law in finding that the District Court of South Australia was forum non conveniens. In essence, the appellant asserts that the Master applied the wrong test in determining the issue and, further, that even if he did apply the correct test he ought to have rejected the application for a stay.
The law
Before I elaborate on the plaintiff’s complaint it is necessary to state the relevant principles governing the doctrine of forum non conveniens. Those principles are well established. They are as follows:
1.     A stay of proceedings will be granted if having regard to the particular facts of the case, the local court is a “clearly inappropriate forum” for the determination of the dispute: Voth v Manildra Flour Mills (1990) 171 CLR 538 at 539, 564-565 per Mason CJ, Deane, Davison and Gaudron JJ, at 572 per Brennan J; Oceanic Sun Line Special Shipping Co Ltd v Fay (1988) 165 CLR 197 at 247 per Deane J; Regie National des Usines Renault SA v Zhang (2002) 210 CLR 490 at 503-504 [25] per the Court. A court is not an inappropriate forum merely because another is more appropriate: Henry v Henry (1996) 185 CLR 571 per Dawson, Gaudron, McHugh, Gummow JJ at ; Zhang at 503.
2.     The plaintiff has, prima facie, the right to have the forum exercise the   jurisdiction regularly invoked by the plaintiff. But not too much weight should be placed on this right: Voth at 565-567.There may be cases in which the notion of prima facie right has some role in determining whether or not a stay should be granted. For example, it may well be significant in what is otherwise a finely balanced contest. But there are also cases in which that notion can do little more than indicate that the onus lies on the party seeking a stay to establish that the chosen forum is clearly inappropriate. Indeed, there may be cases where the forum is so clearly inappropriate that the notion of prima facie right can have no real bearing on the matter, as, for example, if the cause of action arose in a country in which the parties reside or carry on business and their controversy can conveniently be litigated in that country: Henry at 589.
3.     The local court is a clearly inappropriate forum if continuation of the proceedings in that court would be “oppressive” or “vexatious”. The adjectives “oppressive” and “vexatious” are not to be narrowly or rigidly construed and are to be applied in relation to the effect of the continuation of the proceedings rather than the conduct of the plaintiff in continuing them: Oceanic Sun at 248 per Deane J. The continuation of proceedings will be oppressive if they are ‘seriously and unfairly burdensome, prejudicial or damaging’ and will be vexatious if they are ‘productive of serious and unjustified trouble and harassment”: Regie Nationale at 504 [25]; Oceanic Sun at 504; Voth at 555, 564-565; Henry at 571.
4.     In determining whether the local court is a clearly inappropriate forum it is necessary to have regard to the factors connecting the local jurisdiction to the plaintiff’s action and to any legitimate personal or juridical advantage to the plaintiff: Voth at 564-565; Regie Nationale at 504 [25]; Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460 at 477-478, 482-484 per Lord Goff.
Nygh and Davies, Conflict of Laws in Australia (7^th ed, 2002), conveniently summarise a number of relevant connecting factors and legitimate personal or juridical advantages to the plaintiff.
They state at [7.18]:
The following factors are relevant in considering whether the forum is clearly inappropriate. They are to be balanced against each other and none is conclusive by itself.
(a)     Any significant connection between the forum selected and the subject matter of the action and/or the parties, such as: the domiciles of the parties, their places of business and the place where the relevant transaction occurred or the subject matter of the suit is situated: Oceanic Sun at 245 per Deane J.
(b)     Any legitimate and substantial juridical advantage to the plaintiff, such as: greater recovery, more favourable limitation period, better ancillary procedures, or assets within the jurisdiction against which any judgment can be enforced: Spiliada at 482-487.
(c)     The availability of an alternative forum and whether it will give the plaintiff adequate relief: Voth at 558 per Mason CJ, Deane , Dawson and Gaudron JJ
(d)     Whether the law of the forum will supply the substantive law to be applied in the resolution of the subject case.               (several footnotes omitted)
In relation to (d) the High Court has made the point that the extent to which the law of the forum is applicable in resolving the rights and liabilities of the parties is a material consideration but the court should not focus upon that factor to the exclusion of all others: Voth at 565-565.
5.     The power to stay should only be exercised in a clear case: Oceanic Sun at 248 per Deane J. The onus lies upon the defendant to satisfy the court that it is a clearly inappropriate forum except where the plaintiff was required to obtain leave to serve the defendant outside the jurisdiction: Voth at 564. Here no such leave was required: see R18.02.
The distinction between the “clearly inappropriate forum test” and “the more appropriate forum test applied in England was explained in Voth by the majority ( Mason CJ, Deane, Dawson and Gaudron JJ) at 558:
The “clearly inappropriate forum” test is similar to and, for that reason, is likely to yield the same result as the “more appropriate forum” test in the majority of cases. The difference between the two tests will be of critical significance only in those cases – probably rare – in which it is held that an available foreign tribunal is the natural or more appropriate forum but in which it cannot be said that the local tribunal is a clearly inappropriate one.
Their Honours went on to say (at558):
The availability of relief in a foreign forum will always be a relevant factor in deciding whether or not the local forum is a clearly inappropriate one. But such a decision neither turns upon an assessment of the comparative procedural or other claims of the foreign forum nor requires the formation of subjective views about either the merits of that forum’s legal system or the standards and impartiality of those who administer it.
Their Honours added (at559):
In a context where the relevant test will fail to be applied in accordance with the individual perception of a primary judge, the courts of this country are better adapted to apply a test which focuses upon the inappropriateness of the local court of which the local judge will have both knowledge and experience than to a test which focuses upon the appropriateness or comparative appropriateness of a particular foreign tribunal of which he or she is likely to have little knowledge and no experience.
Did the Master apply the wrong test?
The plaintiff’s complaint that the Master applied the wrong test is based on the following remarks made by the Master in his reasons for decision:
Everything is Fiji based. This goes to the witnesses relating to the facts and the loss sustained by Lodhias. That in my view is compelling and obvious that the most inappropriate forum is Adelaide. It has effectively no connection with the dispute. (My emphasis)
The plaintiff contends that these remarks suggest that the Master may have made a comparative judgement of whether South Australia or Fiji was the most appropriate or inappropriate forum. Such an approach is wrong for the reasons expressed by the High Court in Voth in the passage quoted above. The relevant test requires the court to focus on whether the forum selected by the plaintiff is clearly inappropriate.
I reject the plaintiff’s complaint. I do not believe that the Master approached the case with the wrong test in mind. Earlier in the Master’s reasons he correctly stated the law on more than one occasion. He said:
The test is whether this Court is the clearly inappropriate forum-see Voth v Manildra Flour Mills (1990) 171 CLR 538 at 564-5, Regie National des Usines Renault SA v Zhang (2002) 210 CLR 490 at 503-4 and Oceanic Sunline Special Shipping v Fahey (1998) 165 CLR 197 at 247 at 248.
A stay will be granted where the local court is the clearly inappropriate forum. That phrase means where continuing proceedings in this Court would be oppressive, that is, seriously or unfairly burdensome, prejudicial or damaging or vexatious, in the sense of productive and serious and unjustified trouble and harassment.
Therefore the question is where the case should be tried taking into account the interest of the parties and the interests of justice.
The onus lies upon the defendant to satisfy me that the District Court in this instance is the clearly inappropriate forum. (My emphasis)

To my mind these correct statements of the law indicate that the Master’s later remarks were no more than a minor slip of the tongue.
Is this court a clearly inappropriate forum?
The plaintiff contends that this court is not a clearly inappropriate forum having regard to a plaintiff’s prima facie right to have the forum exercise jurisdiction regularly invoked by the plaintiff and the presence of connecting factors between the jurisdiction of this court and the subject matter of the dispute.
The first point does not take the plaintiff’s case very far. As the authorities make plain not too much weight should be placed on a plaintiff’s prima facie right unless the matter is a finely balanced contest. For the following reasons I do not believe that the contest is finely balanced.
The parties have agreed that the issues raised in the plaintiff’s claim and the defence and counterclaim will be resolved at the same trial whether held in this Court or Fiji. The factors connecting the subject matter of the plaintiff’s claim to the jurisdiction are quite limited. The original contract was entered into in Western Australia, delivery of each consignment occurred in Melbourne, and acceptance of each consignment happened in either Melbourne or Fiji.
The question of whether the appellant breached the contract by supplying the wrong type of milk powder and the extent of any loss or damage sustained by the defendants focuses on events that took place in Fiji. Furthermore, the Deed was executed in Fiji. Whether it should be declared void for duress and undue influence also turns on events that took place in that country.
The only factors connecting the plaintiff’s claim to this jurisdiction are to be found in clause 10 of the Deed. That clause is divided into two parts. The first part (choice of law) states that the “Guarantee is governed by the laws of South Australia”. The second part (jurisdictional) states that “the Guarantor submits to the non-exclusive jurisdiction of its courts.”
The choice of law would not prevent a Fijian court exercising jurisdiction though it would require the court to apply South Australian law: see Contractors Limited v MTE Control Gear [1964] SASR 47 at 49. The fact that the law of South Australia is applicable in determining the issues joined between the parties under the Deed is a material consideration but as earlier observed a court should not focus upon that factor to the exclusion of all others: Voth at 566.
The second part of the clause must be distinguished from an exclusive jurisdiction clause. The clause cannot be read as putting any higher duty upon the parties than a duty to refrain from objecting to the jurisdiction of this court. In other words it does not require the defendants of necessity to refrain from proceeding in a court other than the District Court of South Australia: Contractors Limited v MTEControl Gear (supra) at 49; Continental Bank NA v AekosCorporation Naviera SA [1994] 1 WLR 588 at 592. As with the choice of law the non-exclusive jurisdiction part of the clause is a relevant factor in determining the forum of the action. However, it must be considered in conjunction with all other relevant factors: see Green v Australian Industrial Investment Ltd (1989) 90 ALR 500 at 511-112 per Lee J.
So as I say the factors connecting the subject matter of the plaintiffs action to the local forum are limited. It must also be observed that there is no significant connection between the plaintiff and this forum. No evidence was put before the Master disclosing any connection between this state and the plaintiff’s business or any association between this state and Mr Mc Murtrie, or any other person involved in running the plaintiff company.
Mr Milazzo, counsel for the defendants, argued that continuation of the proceedings in this Court would result in vexation or oppression of the defendants. He emphasised the following remarks made by the majority in Voth (at 556-7):
`The content of the “clearly inappropriate forum” test is more expansive than the traditional test applied by Brennan J. The former test, unlike the latter, recognises that in some situations the continuation of an action in the selected forum, though not amounting to vexation or oppression or an abuse of process in the strict sense, will amount to an injustice to the defendant when the bringing o the action in some other available and competent forum will not occasion an injustice to the plaintiff. Thus, in order to obtain a legitimate advantage, the plaintiff may commence an action in the selected forum though the subject matter of the action and the parties have little connexion with that forum and the defendant may be put to great expense and inconvenience in contesting the action in that forum. On the application of traditional principles, a stay would be refused in such a case, notwithstanding that the selected forum was a clearly inappropriate forum. Since the traditional test is apt to produce such an extreme result, the “clearly inappropriate forum” test is to be preferred to the traditional test.” (My emphasis)
Mr Milazzo argued that in the present case a continuation of proceedings would be vexatious and oppressive to the defendants because (1) the subject matter of the action and the parties have little connexion with this jurisdiction (2) litigation in Fiji would not occasion an injustice to the appellant and (3) the defendant may be put to great expense and inconvenience if the matter is dealt with here.
In relation to the first point I have already observed that the factors connecting the plaintiff and the subject matter of the plaintiff’s action to the jurisdiction of this court are limited to those raised by clause 10 in the Deed.
As for the second point I agree with Mr Milazzo that litigation in Fiji is unlikely to result in any significant injustice to the plaintiff. This is not a case where witnesses or evidence pertaining to the relevant issues are, from the plaintiff’s perspective, only available or more readily available in this jurisdiction. Indeed, the fact that the original contract was entered into between the parties is not in dispute. Nor is the fact that the second and third defendants signed the Deed. Mr Evans, counsel for the plaintiff, agreed that the plaintiff’s case would be substantially based on the testimony of Mr Mc Murtrie and evidence of a documentary nature. It is fair to say that it might be more convenient for the plaintiff to have the case dealt with in this state. The time and expense involved in Mr McMurtrie travelling from Western Australia will be marginally greater if he is required to travel to Fiji rather than to South Australia. However, there does not appear to be any other material advantage from the plaintiff’s perspective.
Furthermore, there is no suggestion that the plaintiff would gain any significant juridical advantage in having the matter dealt with here. The plaintiff would not be deprived, for example, of greater recovery, better ancillary procedures or security for the plaintiff’s claim if the trial took place in Fiji. Indeed, there is no security for the plaintiffs claim in this jurisdiction. Nor is it suggested that the plaintiff would, for any reason, be unlikely to get a fair trial in that country.
On the other hand the affidavit material put before the Master indicates that the defendants may be put to significant expense and inconvenience in contesting the plaintiff’s action in this jurisdiction. In addition, to the second defendant and the third defendant (though he also resides in Sydney) it would be necessary for multiple witnesses to travel from Fiji to assist the defendants to prove their damages claim and to testify about the circumstances in which the second and third defendants signed the Deed.
In relation to the damages claim the affidavit material discloses that the defendants intend to call the following three additional witnesses. First, Mr Ravin Kumar, the first defendant’s Operations Manager. According to his affidavit he tested samples of milk powder received from the plaintiff and found that they would not readily dissolve in water as they should have. The test he performed was simple. Nonetheless, some evidence of the analysis of the milk powder received by the defendants from the plaintiff is required. Second, Mr Manoj Kumar, operations manager of Food For Less Supermarkets. In his affidavit Mr Kumar deposes to his company’s supermarkets having received complaints from consumers in relation to milk powder supplied by the first defendant. In the result Food For Less withdrew all stocks of milk powder acquired from the first defendant and ceased dealing with the company. He also states that it will not be possible for him to travel to South Australia to give evidence because of business commitments. Third, Mr Bharat Jogia a consumer of milk powder. In his affidavit he claims to have complained to the second defendant about the quality of the milk powder that he had purchased from a supermarket in Fiji. He also asserts that his jewellery business in Fiji would make it difficult for him to attend a trial in Australia. I do not accept that the suggested difficulty in Mr Jogia travelling to South Australia will constitute a real problem from the point of view of the defendants. If there is any substance in the defendants damages claim it should not be difficult for them to find another consumer or other consumers to give evidence about the quality of the milk powder received from the plaintiff.
Though the affidavit material specifically identifies only these three additional witnesses, it must be accepted that it will be necessary for the defendants to call other witnesses from Fiji to establish the extent of the distribution and recall of milk powder supplied by the plaintiff. This is alluded to in the affidavit of Mr Muhammad Shams–Ud Dean Sahu Khan, the defendants’ solicitor in Fiji. I also accept that evidence of the amount of the first defendants loss would be required from an expert or experts with knowledge of relevant economic and legal factors in Fiji. Indeed, as I understood the submissions of Mr Evans the need for the defendants to call witnesses in addition to those specifically identified in the affidavits was not seriously challenged by him.
Furthermore, there is force in Mr Milazzo’s submission that it will probably be necessary for members of the families of the second and third defendants to be called to explain the personal circumstances of the defendant at the time of Mr Mc Murtrie’s visit, including the need for them to attend to various Hindu rituals and ceremonies in relation to their father’s death. In other words it will most likely be necessary for witnesses to be called to confirm the emotional, religious and cultural pressure that the second and third defendants were under at the time they signed the Deed. To my mind it would also be necessary for their solicitor, Mr Sahu Khan to give evidence about the circumstances surrounding the execution of the Deed though I accept Mr Evans’ submission that much of Mr Sahu Khan’s affidavit constitutes inadmissible hearsay.
In my opinion it cannot be said that the Master erred in finding this court forum non conveniens having regard to the limited factors connecting the plaintiffs action to this jurisdiction, the absence of any significant personal or juridical advantage to the plaintiff in having the matter determined here, the fact that the key relevant events all occurred in Fiji and the significant expense and inconvenience that the defendants may experience if there was a continuation of proceedings in this Court. Indeed, in my view this court is a clearly inappropriate forum for a determination of the relevant issues.
The appeal is dismissed. I will hear the parties as to costs.