Bouffard v CDM Australasia Pty Limited

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District Court


New South Wales

Medium Neutral Citation: Bouffard v CDM Australasia Pty Limited [2021] NSWDC 124
Hearing dates: 25 March 2021
Date of orders: 15 April 2021
Decision date: 15 April 2021
Jurisdiction:Civil
Before: Dicker SC DCJ
Decision:

(1) Judgment for the plaintiff against the defendant.

(2) The parties are to bring in agreed short minutes of order reflecting the reasons of the court within 14 days.

(3) In the event that the parties cannot agree on the appropriate orders, leave is granted to the parties to approach the Associate to Dicker DCJ to relist the matter on two business days’ notice.

Catchwords:

CONTRACT – dispute resolution clause – whether plaintiff unable to sue on agreed contractual debt due to alleged failure to comply with dispute resolution clause procedure – stay not sought

PRIVATE INTERNATIONAL LAW – dispute resolution clause – whether New South Wales a clearly inappropriate forum to determine the proceedings – effect of dispute resolution clause on analysis – proper construction of clause – rights of party in breach of contract to enforce clause

Legislation Cited:

District Court Act 1973 (NSW).

Uniform Civil Procedure Rules 2005 (NSW)

Civil Procedure Act 2005 (NSW)

Cases Cited:

AB v XY [2020] NSWDC 27

Aiton Australia Pty Ltd v Transfield Pty Ltd [1999] NSWSC 996; (1999) 153 FLR 236

Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 261 CLR 544; [2017] HCA 12

ET-China.com International Holdings Ltd v Cheung [2019] NSWSC 1874

Foran v Wright (1989) 168 CLR 385; [1989] HCA 51

Global Partners Fund Limited v Babcock & Brown Ltd (in liquidation) [2010] NSWCA 196

Lavigne v Kumar [2020] NSWSC 1120

Lepcanfin Pty Ltd v Lepfin Pty Ltd [2020] NSWCA 155

Neilson v Overseas Projects Corporation of Victoria Ltd [2005] HCA 54; (2005) 223 CLR 331

Qantas Airways Ltd v Rohrlach [2021] NSWCA 48

Sharjade Pty Ltd v The Commonwealth [2009] NSWCA 373

Category:Principal judgment
Parties: Kirk Bouffard (Plaintiff)
CDM Australasia Pty Limited (Defendant)
Representation:

Counsel:
S Gaussen (Plaintiff)
T Hall (Solicitor, Defendant)

Solicitors:
Hermann Legal (Plaintiff)
Hall Partners (Defendant)
File Number(s): 2020/00207288
Publication restriction: Nil

Judgment

  1. In these proceedings, the plaintiff, Mr Kirk Bouffard, sues the defendant, CDM Australasia Pty Ltd, for moneys loaned by him to the defendant in 2019. The defendant does not dispute that the moneys were lent by Mr Bouffard to it as claimed but asserts that Mr Bouffard is not able to commence proceedings in New South Wales in this court to recover the moneys. No cross-claim or stay application has been filed by the defendant.

  2. In summary, the defendant submits:

  1. That New South Wales is a clearly inappropriate forum to determine the claim; and

  2. That a dispute resolution clause in the loan agreement between the parties prevents the commencement of proceedings in this court in New South Wales before a mediation takes place in the courts of Florida in the United States of America.

  1. The plaintiff submits that the amount claimed is…

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Details
Case
[2021] NSWDC 124
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, Bouffard brought an action against CDM Australasia Pty Limited, seeking to recover an undisputed debt under a contract. The defendant raised a defence claiming that Bouffard had failed to comply with a dispute resolution clause contained in the contract, and as a result, Bouffard was unable to sue on the agreed contractual debt. The defendant did not seek a stay of the proceedings, which was a critical factor in the court's reasoning.

The court was required to determine whether Bouffard's failure to comply with the dispute resolution clause meant that he was unable to enforce the agreed debt. Additionally, the court needed to consider whether New South Wales was an inappropriate forum to determine the proceedings, taking into account the dispute resolution clause. The court had to interpret the clause to ascertain whether it affected the analysis and determine the rights of the party in breach of contract to enforce the clause.

The court found that Bouffard's failure to comply with the dispute resolution clause did not prevent him from enforcing the agreed debt. The court held that the dispute resolution clause did not affect the analysis of the dispute and that the defendant's failure to seek a stay of the proceedings meant that New South Wales was not an inappropriate forum to determine the proceedings. The court concluded that the defendant's rights to enforce the clause were not prejudiced by Bouffard's failure to comply with the clause. As a result, the court found in favour of Bouffard and ordered judgment in his favour against the defendant.

The final orders of the court included judgment for the plaintiff against the defendant, with the parties required to bring in agreed short minutes of order reflecting the reasons of the court within 14 days. If the parties could not agree on the appropriate orders, they were granted leave to approach the Associate to Dicker DCJ to relist the matter on two business days' notice.

Orders

Orders of the court

(1) Judgment for the plaintiff against the defendant.

(2) The parties are to bring in agreed short minutes of order reflecting the reasons of the court within 14 days.

(3) In the event that the parties cannot agree on the appropriate orders, leave is granted to the parties to approach the Associate to Dicker DCJ to relist the matter on two business days’ notice.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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