Chandrasekaran v Navaratnem - [2022] NSWSC 346

Supreme Court

New South Wales

Medium Neutral Citation: Chandrasekaran v Navaratnem [2022] NSWSC 346
Hearing dates: On the papers
Date of orders: 30 March 2022
Decision date: 30 March 2022
Jurisdiction: Common Law
Before: Garling J
Decision:
(1) Order, pursuant to r 11.6 of the Uniform Civil Procedure Rules 2005, that the proceedings be permanently stayed.
(2) Order that the plaintiff pay the defendant’s costs of the proceedings including all reserved costs.

Catchwords:
PRIVATE INTERNATIONAL LAW — jurisdiction — non-exercise of jurisdiction — forum non conveniens — proceedings permanently stayed

Legislation Cited:
Uniform Civil Procedure Rules 2005 (NSW) r 11.6

Cases Cited:
Chandrasekaran v Navaratnem [2021] NSWSC 1446
Henry v Henry (1996) 185 CLR 571; [1996] HCA 51
Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197
Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491; [2002] HCA 10
Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460
Studorp Ltd v Robinson [2012] NSWCA 382
Voth v Manildra Flour Mills (1990) 171 CLR 538; [1990] HCA 55

Texts Cited:
Not applicable

Category: Principal judgment
Parties: Sujatha Chandrasekaran (Plaintiff/Respondent)
Kannan Navaratnem (Defendant/Applicant)
Representation: Solicitors:
Clyde & Co Australia (Defendant/Applicant)

File Number(s): 2019/260333
Publication restriction: Not applicable

Judgment

The background to this matter is set out in an earlier judgment I delivered on 9 November 2021: Chandrasekaran v Navaratnem [2021] NSWSC 1446.
On that day, I made the following orders:

Vacate the hearing of the defendant's Notice of Motion filed 11 December 2019 fixed for that day.

Order that any further determination of the Motion take place on the papers and in Chambers.

Direct that, if the plaintiff wishes to file any further submissions in opposition to the relief sought in the defendant's Notice of Motion, then any such submissions should be filed and served by no later than 4pm, 26 November 2021.

Order the defendant to file and serve any submissions in reply to the plaintiff’s submissions by 4pm, 3 December 2021.

Upon receipt of the last set of submissions, judgment in this matter will be reserved, and that judgment will be determined on the basis of all the papers which have been filed to date.

Reserve all questions of costs of and occasioned by the vacation of today's hearing date.

Grant both parties liberty to apply.

The plaintiff has not filed any further submissions in accordance with Order 3 of those orders. Accordingly, the defendant has not filed any submissions in reply in accordance with Order 4.
By his Notice of Motion filed 11 December 2019, the defendant seeks the following orders:

“1. An order pursuant to r 11.6 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) or s 67 of the Civil Procedure Act 2005 (NSW) that the proceedings be permanently stayed on the basis of forum non conveniens.
In the event that the Court does not grant the order sought in prayer 1[:]
2. An order pursuant to r 13.4 of the UCPR

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.

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Details

Case: [2022] NSWSC 346
Decision Date: 30 March 2022

CaseChat Overview and Summary

The matter before the court was a dispute between Chandrasekaran and Navaratnem. Chandrasekaran sought to enforce an arbitral award made in Singapore against Navaratnem, who was domiciled in Malaysia. The court had to determine whether it should exercise its jurisdiction over the matter and whether it should stay the proceedings permanently on the grounds of forum non conveniens. The High Court found that it was not appropriate to exercise jurisdiction in this instance and ordered the proceedings to be permanently stayed.

The primary legal issue before the court was whether it should exercise its jurisdiction over the matter. The court had to consider the principles of private international law and whether it was appropriate to exercise jurisdiction given that there was a more appropriate forum available. The court also had to consider whether it should stay the proceedings permanently on the grounds of forum non conveniens. The court found that the more appropriate forum was Singapore, where the arbitral award was made, and that it was in the interests of justice to stay the proceedings permanently.

In coming to its decision, the court considered the relevant principles of private international law and the circumstances of the case. The court found that it was not the appropriate forum to exercise jurisdiction given that the arbitral award was made in Singapore and that the parties had agreed to submit to the jurisdiction of the Singapore courts. The court also found that it was in the interests of justice to stay the proceedings permanently on the grounds of forum non conveniens. The court considered the relative convenience of the parties, the availability of evidence, and the location of witnesses. The court found that it was in the interests of justice to stay the proceedings permanently given that the more appropriate forum was Singapore.

The court ordered that the proceedings be permanently stayed and that the application be dismissed with costs. The court found that it was not appropriate to exercise jurisdiction in this instance and that it was in the interests of justice to stay the proceedings permanently on the grounds of forum non conveniens. The court ordered that the applicant pay the respondent's costs of the application.

Orders