Bouffard v CDM Australasia Pty Limited

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.

3. The plaintiff submits that the amount claimed is…