Drip World Pty Ltd v Dardy Touring Corp - [2020] NSWSC 1772

Supreme Court

New South Wales

Medium Neutral Citation: Drip World Pty Ltd v Dardy Touring Corp [2020] NSWSC 1772
Hearing dates: 03 December 2020
Date of orders: 09 December 2020
Decision date: 09 December 2020
Jurisdiction: Equity - Commercial List
Before: Stevenson J
Decision:
Leave to amend refused; proceedings to be dismissed

Catchwords:
CIVIL PROCEDURE – service outside Australia – service in United States of America – application to set aside service
CIVIL PROCEDURE – intervening application to amend process to substitute different plaintiff – whether proposed amendment futile because service of amended process would not be authorised by UCPR

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41
Australian Competition and Consumer Commission v Yellow Page Marketing BV [2010] FCA 1218
McInnes v Wingecarribee Shire Council (1987) 10 NSWLR 660
News Corporation Ltd v Lenfest Communications Inc (1996) 21 ACSR 553

Texts Cited:
M Davies, A Bell, P Brereton, M Douglas, Nygh’s Conflicts of Laws in Australia (10th ed, 2020), LexisNexis Butterworths

Category: Procedural and other rulings
Parties: Drip World Pty Ltd (Plaintiff)
Dardy Touring Corp (First Defendant)
William Morris Endeavour Entertainment, LLC (Second Defendant)
Representation:
Counsel:
D F Elliott (Plaintiff)
D Sulan (Second Defendant)
Solicitors:
Piper Alderman (Plaintiff)
Baker McKenzie (Second Defendant)

File Number(s): 2020/149917

Judgment

Background

The plaintiff, Drip World Pty Ltd, commenced these proceedings on 18 May 2020 against the first defendant, Dardy Touring Corp (“Dardy”), a company incorporated in New York, and the second defendant, William Morris Endeavour Entertainment, LLC (“WME”), a company incorporated in Delaware.
The proceedings arise out of a proposed hip hop festival to be known as “Ra!se Tha Roof” (“the Festival”) in Australia during 2019 and, in particular, with the proposed involvement in the Festival of the hip hop artist French Montana (“the Artist”).
Dardy is a touring company that acts on behalf of the Artist. WME is a talent agency which represents musicians and other artists, including the Artist.
Drip World has not yet served Dardy. It served WME by delivery to its agent in the United States.

The claim as originally formulated

In its List Statement, Drip World alleges that:

in May 2019 it entered a contract with Dardy under which Dardy agreed to “furnish the services of the Artist for the performance of four shows during the Festival”;

it was a term of the contract that Dardy would provide “all legally required documents for the Artist’s and the touring party’s visa applications without delay”;

the Festival was scheduled for 31 August 2019 but had to be postponed “due to difficulties in obtaining visas for the Artist and his touring party”;

documentation for the Artist’s visa application was ultimately provided by WME on 24 August 2019;

Drip World tried unsuccessfully to reschedule the Festival which was cancelled on 19 December 2019;

Drip World has suffered loss and damage “in excess of $1,000,000” by reason of Dardy’s failure to provide “all legally required…

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: [2020] NSWSC 1772
Decision Date: 09 December 2020

CaseChat Overview and Summary

In this case, the plaintiff, Drip World Pty Ltd, sought to enforce a contract for services against the defendant, Dardy Touring Corp. The contract was made in Australia, but the defendant was a United States-based corporation. Drip World served the defendant with process in the United States, under the Hague Service Convention, and the defendant subsequently applied to set aside service. The court considered the application and the procedural issues that arose, including whether it was appropriate to amend the plaintiff's originating application to substitute a different plaintiff.

The court was required to decide whether the service of process on the defendant was valid and, if not, whether the application to set aside service should be granted. The court also had to consider whether it was appropriate to allow the plaintiff to amend the originating application to substitute a different plaintiff, given that service of the amended process would not be authorised by the UCPR.

The court found that the service of process on the defendant was valid, and that the application to set aside service should be dismissed. The court also found that the proposed amendment to substitute a different plaintiff was futile because service of the amended process would not be authorised by the UCPR. The court held that the application to amend the originating application should be dismissed. The orders of the court were that the defendant's application to set aside service was dismissed, and that the plaintiff's application to amend the originating application was dismissed. The parties were to bear their own costs of the respective applications.

Orders