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Azzi v Fox Fire Security System L.L.C

Azzi v Fox Fire Security System L.L.C

Case [2020] NSWSC 331 3 April 2020

Jurisdiction

Forum Non Conveniens

Service of Process

Misleading or Deceptive Conduct

Unconscionable Conduct

Civil Litigation & Procedure

Private International Law

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Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Azzi v Fox Fire Security System L.L.C. [2020] NSWSC 331
Hearing dates: 9 March 2020
Date of orders: 03 April 2020
Decision date: 03 April 2020
Jurisdiction: Common Law
Before: Davies J
Decision:
(1) Proceedings dismissed.
(2) The plaintiff is to pay the defendants’ costs.
Catchwords:
CIVIL PROCEDURE - service outside Australia - proceedings in which permitted - application to dismiss proceedings - rule 11.6 UCPR – where prescribed notice not served on defendants – whether this Court was an inappropriate forum - whether proceedings have insufficient prospects of success to warrant putting the defendants to the time, expense and delay of defending the claim – whether test under r 11.6 was the same as the test under General Steel Industries Inc v Commissioner for Railways (NSW) -claims under ss 18 and 21 of the Australian Consumer Law – representations alleged to have been made in the United Arab Emirates concerning an employment contract in that place – where representations allegedly made by family members of the plaintiff on behalf of UAE company - whether representations were misleading and deceptive – whether defendants engaged in unconscionable conduct - all claims had poor prospects of success - proceedings dismissed
PRIVATE INTERNATIONAL LAW - jurisdiction - non-exercise of jurisdiction - forum non conveniens - connecting factors – juridical advantage - claims under ss 18 and 21 of the Australian Consumer Law – where no corresponding rights in foreign jurisdiction – where representations made to plaintiff in Australia – where damage suffered in Australia – local court was not an inappropriate forum
Legislation Cited: Australian Consumer Law ss 18, 21, 236
Competition and Consumer Act 2010 (Cth)
Fair Trading Act 1987 s 42
Fair Trading Amendment (Australian Consumer Law) Act 2010 (NSW)
Service and Execution of Process Act 1992 (Cth)
Supreme Court Rules 1970 (NSW) Pt 10 r 6A
Uniform Civil Procedure Rules 2005 (NSW) 11.6, 11.7, 14.28
Cases Cited: Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594; [1990] HCA 17
Director of Consumer Affairs Victoria v Scully [2013] VSCA 292
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Henry v Henry (1996) 185 CLR 571
Murphy v Victoria [2014] VSCA 238; (2014) 313 ALR 546
O’Reilly v Western Sussex Hospitals NHS Trust [2010] NSWSC 909
Puttick v Tenon Ltd (2008) 238 CLR 265; [2008] HCA 54
Regie National des Usines Renault SA & Anor v Zhang [2002] HCA 10; (2002) 187 ALR 1
Taylor v Crossman (No 2) [2012] FCAFC 11
Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538
Texts Cited: Nil
Category: Principal judgment
Parties: Wissam Georges Azzi (Plaintiff)
Fox Fire Security System LLC (First Defendant)
Georges Mukhayel Somaya Dit Asbahie aka Georges Samia (Second Defendant)
Helene Baradihi aka Helene Lotfallah Baradihi (Third Defendant)
Nancy George Azzi (Fourth Defendant)
Representation:
Counsel:
S Stanton (Plaintiff)
M Connor (Defendants)
Solicitors:
Yazbeck Law (Plaintiff)
Macpherson Kelley (Defendants)

File…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Azzi v Fox Fire Security System L.L.C

Details

AGLC: Azzi v Fox Fire Security System L.L.C [2020] NSWSC 331
Case: [2020] NSWSC 331
Decision Date: 03 April 2020

CaseChat Overview and Summary

In the Federal Circuit Court, Azzi brought an action against Fox Fire Security System L.L.C for alleged misleading and deceptive conduct and unconscionable conduct under sections 18 and 21 of the Australian Consumer Law. The dispute centred on representations made in the United Arab Emirates concerning an employment contract, allegedly made by family members of the plaintiff on behalf of the UAE company. The court was required to determine whether it should dismiss the proceedings for lack of jurisdiction and whether the proceedings had insufficient prospects of success.

The primary legal issues were whether the court had jurisdiction to hear the case, given that the representations were made outside Australia, and whether the court was an inappropriate forum to hear the matter. The court also needed to assess whether the proceedings had sufficient prospects of success to warrant the defendants being put to the time, expense, and delay of defending the claim. Additionally, the court had to decide if the test for dismissing proceedings under rule 11.6 of the UCPR was the same as the test for forum non conveniens.

The court concluded that the proceedings were not to be entertained due to the poor prospects of success and the lack of corresponding rights in the UAE. The court found that the local court was not an inappropriate forum because the representations were made in Australia, and the damage was suffered in Australia. The court dismissed the proceedings on the basis that there were no significant connecting factors to the UAE that would make it a more appropriate forum. The court held that the test under rule 11.6 was not the same as the test for forum non conveniens, but both tests led to the same outcome in this case.

The court ordered that the proceedings be dismissed with costs. The court further determined that the defendants were not required to pay the costs of the plaintiff’s unsuccessful application to set aside the dismissal.

Orders