Aqua Max Water Filtration Solutions Pty Ltd v Hurtado

Aqua Max Water Filtration Solutions Pty Ltd brought an appeal against the decision of a Magistrate to dismiss its application for a stay of proceedings under section 20 of the Service and Execution of Process Act 1992 (Cth) (the Act). Aqua Max argued that the South Australian proceedings should be stayed in favour of a proceeding brought in the New South Wales District Court. The parties had entered into discussions during the Royal Adelaide Show in 2016, and a non-disclosure agreement was signed by Mr Hurtado. The amount of $55,990 was transferred into Aqua Max’s bank account, and a dispute arose over the purpose of the payment. The parties had differing views on whether the payment was a refundable deposit conditional on the parties entering into a distribution agreement or for the purchase of stock. Aqua Max also claimed that Mr Hurtado had taken possession of the remaining stock that Aqua Max had brought to Adelaide for the Royal Adelaide Show, with differing views on whether the purpose of Mr Hurtado taking possession was to store the stock for Aqua Max until the next exhibition in Adelaide to be attended by the Dogras or was delivered to Mr Hurtado by way of sale of the stock.

The legal issue before the court was whether Aqua Max's application for a stay of proceedings should be granted under section 20 of the Service and Execution of Process Act 1992 (Cth) (the Act). The court had to consider the factors relevant to determining the appropriate forum for the proceedings. The court also had to consider the existence of the proceeding recently commenced in the District Court of New South Wales and its effect on the exercise of the discretion. The court found that the factors identified that point in favour of South Australia as the more appropriate forum applied equally whether Aqua Max prosecutes a claim against Mr Hurtado or whether Mr Hurtado is the only one prosecuting a claim against Aqua Max. The court also found that there were several factors that favoured South Australia as the more appropriate forum. The court found that it would be untenable for two separate proceedings raising common issues to proceed in two different courts with the possibility of inconsistent results.

The appeal was dismissed. The court will hear the parties as to consequential or other orders. Subject to determining Aqua Max’s notional fresh application for a stay based on the new evidence of the proceeding recently commenced in the District Court of New South Wales, the appeal should be dismissed. Fresh consideration on new material should be given to the existence of the proceeding in the District Court of New South Wales and its effect on the exercise of the discretion. The factors identified that point in favour of South Australia as the more appropriate forum apply equally whether Aqua Max prosecutes a claim against Mr Hurtado or whether Mr Hurtado is the only one prosecuting a claim against Aqua Max. The court found that it would be untenable for two separate proceedings raising common issues to proceed in two different courts with the possibility of inconsistent results.