Egis Consulting Australia Pty Ltd v First Dynasty Mines Ltd (A company incorporated in Canada)
[2001] WASC 22
EGIS CONSULTING AUSTRALIA PTY LTD & ANOR -v- FIRST DYNASTY MINES LTD (A company incorporated in Canada) [2001] WASC 22
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASC 22 | |
| Case No: | CIV:2105/2000 | 19 DECEMBER 2000 | |
| Coram: | MASTER BREDMEYER | 2/02/01 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| PDF Version |
| Parties: | EGIS CONSULTING AUSTRALIA PTY LTD (ACN 000 912 630) KILBORN ENGINEERING PACIFIC PTY LTD (ACN 000 864 353) FIRST DYNASTY MINES LTD (A company incorporated in Canada) |
Catchwords: | Practice Order obtained to serve defendant out of the jurisdiction Application to set aside that order Contract said to be governed by Canadian or Armenian law Forum non conveniens Appropriate forum |
Legislation: | Rules of the Supreme Court, O 10 r 1(e)(i)(iii) and r 1(f) |
Case References: | Brinkibon Ltd v Stahag Stahl [1982] 1 All ER 293 Entores Ltd v Miles Far Eastern Corporation [1958] 2 QB 327 International Corp Ltd v Besser Manufacturing Co [1950] 1 All ER 355 Koranna Nominees Pty Ltd v Roberts, unreported; SCt of WA; Library No 4289; 15 October 1981 Leach Nominees Pty Ltd v Walter Wright Pty Ltd [1986] WAR 244 Reece Brothers Plastics Ltd v Hamon-Sobelco Australia Pty Ltd (1988) 5 BPR 11,1106 Tallangalook Pty Ltd v Duketon Goldfields NL, unreported; SCt of Victoria; No BC 9700223; 3 February 1997 Voth v Manildra Flour Mills Pty Ltd & Anor (1990) 171 CLR 538 Akai Pty Ltd v The People's Insurance Co Ltd (1996) 188 CLR 418 Baulkham Hills Private Hospital Pty Ltd v GR Securities Pty Ltd (1986) ANZ Conv Rep 681 CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 Earth Works & Quarries Ltd v FT Eastment & Sons Pty Ltd [1966] VR 24 Gosper v Sawyer (1985) 160 CLR 548 Love & Stewart v S Instone & Co Ltd (1917) 33 Tas LR 475 Matthews v Kuwait Bechtel Corp [1959] 2 QB 57 Reese Bros Plastics Ltd v Hamon-Sobelco Australia Pty Ltd (1988) 5 BPR 11,106 Seaconsar Far East Ltd v Bank Markazi Jomhouri Islami Iran [1994] 1 AC 438 Sheldon Pallet Manufacturing Co Pty Ltd v New Zealand Forest Products Limited [1975] 1 NSWLR 141 Sinclair Scott & Co Ltd v Naughton (1929) 43 CLR 310 Tern Minerals NL v Kalbara Mining NL (1990) 3 WAR 486 Vitkovice Horni a Hutni Tezirstvo v Korner [1951] AC 869 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
First Plaintiff
KILBORN ENGINEERING PACIFIC PTY LTD (ACN 000 864 353)
Second Plaintiff
AND
FIRST DYNASTY MINES LTD (A company incorporated in Canada)
- Defendant
Catchwords:
Practice - Order obtained to serve defendant out of the jurisdiction - Application to set aside that order - Contract said to be governed by Canadian or Armenian law - Forum non conveniens - Appropriate forum
Legislation:
Rules of the Supreme Court, O 10 r 1(e)(i)(iii) and r 1(f)
(Page 2)
Result:
Application dismissed
Representation:
Counsel:
First Plaintiff : Mr D K J Skender
Second Plaintiff : Mr D K J Skender
Defendant : Mr T Darbyshire
Solicitors:
First Plaintiff : Corrs Chambers Westgarth
Second Plaintiff : Corrs Chambers Westgarth
Defendant : Kott Gunning
Case(s) referred to in judgment(s):
Brinkibon Ltd v Stahag Stahl [1982] 1 All ER 293
Entores Ltd v Miles Far Eastern Corporation [1958] 2 QB 327
International Corp Ltd v Besser Manufacturing Co [1950] 1 All ER 355
Koranna Nominees Pty Ltd v Roberts, unreported; SCt of WA; Library No 4289; 15 October 1981
Leach Nominees Pty Ltd v Walter Wright Pty Ltd [1986] WAR 244
Reece Brothers Plastics Ltd v Hamon-Sobelco Australia Pty Ltd (1988) 5 BPR 11,1106
Tallangalook Pty Ltd v Duketon Goldfields NL, unreported; SCt of Victoria; No BC 9700223; 3 February 1997
Voth v Manildra Flour Mills Pty Ltd & Anor (1990) 171 CLR 538
Case(s) also cited:
Akai Pty Ltd v The People's Insurance Co Ltd (1996) 188 CLR 418
Baulkham Hills Private Hospital Pty Ltd v GR Securities Pty Ltd (1986) ANZ Conv Rep 681
CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345
Earth Works & Quarries Ltd v FT Eastment & Sons Pty Ltd [1966] VR 24
(Page 3)
Gosper v Sawyer (1985) 160 CLR 548
Love & Stewart v S Instone & Co Ltd (1917) 33 Tas LR 475
Matthews v Kuwait Bechtel Corp [1959] 2 QB 57
Reese Bros Plastics Ltd v Hamon-Sobelco Australia Pty Ltd (1988) 5 BPR 11,106
Seaconsar Far East Ltd v Bank Markazi Jomhouri Islami Iran [1994] 1 AC 438
Sheldon Pallet Manufacturing Co Pty Ltd v New Zealand Forest Products Limited [1975] 1 NSWLR 141
Sinclair Scott & Co Ltd v Naughton (1929) 43 CLR 310
Tern Minerals NL v Kalbara Mining NL (1990) 3 WAR 486
Vitkovice Horni a Hutni Tezirstvo v Korner [1951] AC 869
(Page 4)
1 MASTER BREDMEYER: This is an application by the defendant to set aside an ex parte order granted by Acting Master Chapman on 14 August 2000, in CIV 2024 of 2000, alternatively, for an order that these proceedings be permanently stayed on the ground that Western Australia is a clearly inappropriate forum for such proceedings. The order made by Acting Master Chapman under Rules of the Supreme Court O 10 gave the plaintiffs leave to serve the defendant with the writ of summons herein out of the jurisdiction. The defendant is a Canadian company with mining interests in Armenia. The order was made under one or more of the following headings:
(a) the action was brought to enforce a contract made within the jurisdiction (O 10 r 1(e)(i));
(b) the action was one to enforce a contract or obtain relief in respect of a breach of contract which by its terms or by implication is governed by the law of Western Australia (O 10 r 1(e)(iii); or
(c) brought in respect of a breach committed within the jurisdiction of a contract wherever made (O 10 r 1(f)).
2 On the first basis, the defendant says the contract was not made in Western Australia but was made in Canada. The contract is contained in four documents said to constitute the offer and a faxed letter said to constitute the acceptance. The first document in the offer is a proposal dated 23 June 1997 from the plaintiffs to the defendant for feasibility studies on Zod and Meghradzor Mines which are located in Armenia. That is a long document of several hundred pages. The second document in the offer is a revised proposal from the plaintiffs to the defendants for the Zod and Meghradzor feasibility studies of 23 July 1997. That also is a long document. The third document is a fax from the plaintiffs to the defendant of 30 July 1997 dealing with airfares. The fourth document is a fax from the plaintiffs to the defendant of 1 August 1997.
3 The acceptance is a faxed letter from the defendant's John Lewins to the plaintiffs dated 7 August 1997. The fax was sent on a fax machine from the Hotel Marronnier, Yukon, Canada, to the plaintiffs in Perth. The relevant part of the fax reads:
"Zod and Meghradzor's Feasibility Studies
On behalf of FDM I am happy to advise that you have been successful in your tender for the above project. The award is made on the basis of the following:
(Page 5)
- • Your original submission dated 23 June 1997.
• Your revised proposal dated 23 July 1997.
• Your fax of 30 July 1997, confirmation of airfares.
• Your fax of 1 August Document No OMW2963.
Subject to the following exceptions: ... "
- The exceptions are not relevant at the present time.
4 The defendant says that the contract was concluded when the fax was sent from the Hotel Marronnier in Canada. The defendant relies on Koranna Nominees Pty Ltd v Roberts, unreported; SCt of WA; Library No 4289; 15 October 1981. In that case a contract was made in Port Hedland for the sale of a block of land in Queensland. It was signed by the vendor's agent (a real estate agent) and the purchaser. The contract was made expressly subject to confirmation by the vendor. That confirmation by the vendor was given in Queensland. He signed the contract. It was held by the Full Court that confirmation by the vendor was the last act necessary to create a binding obligation and because that was done in Queensland the contract was made in Queensland. Kennedy J at 4 accepted the principle that a contract is made in the place where the last act necessary to create a binding obligation between the parties takes place. He, and the other Judges on appeal, held that the last act occurred in Queensland when the confirmation, to which the sale was expressed to be subject, was given by the vendor signing the contract.
5 The defendant also relies on Leach Nominees Pty Ltd v Walter Wright Pty Ltd [1986] WAR 244. That case concerned a contract of carriage to transport certain goods from Victoria to Western Australia. The Victorian carrier gave the plaintiff's agent a quote for the job. That was contained in a telex message sent to the plaintiff's agent in Perth. The plaintiff's agent did not have its own telex machine at the time but shortly after receiving the quotation he dictated to the Chief Telegraph Office at Perth a reply to be sent by telex accepting the quote. A photocopy of the telex was subsequently left in his Post Office box. Master Seaman held that the contract was made in Western Australia because the acceptance by public telex took effect when the telex was dictated, following the postal communications rule. Master Seaman acknowledged the postal rule that where a contract is made by post the acceptance is complete when the letter of acceptance is put in the post. He also acknowledged that the instantaneous communications rule differs from the postal rule.
(Page 6)
- Under that rule, the contract is complete when the acceptance is received by the offeror and the contract is made at the place where the acceptance is received. For these rules Master Seaman relied on Lord Denning's statement in Entores Ltd v Miles Far Eastern Corporation [1958] 2 QB 327.
6 Master Seaman also relied on Brinkibon Ltd v Stahag Stahl [1982] 1 All ER 293. In that case Lord Wilberforce, at 296, said:
"Since 1955 the use of telex communication has been greatly expanded, and there are many variants on it. The senders and recipients may not be the principals to the contemplated contract. They may be servants or agents with limited authority. The message may not reach, or be intended to reach, the designated recipient immediately: messages may be sent out of office hours, or at night, with the intention, or on the assumption, that they will be read at a later time. There may be some error or default at the recipient's end which prevents receipt at the time contemplated and believed in by the sender. The message may have been sent and/or received through machines operated by third persons. And many other variations may occur. No universal rule can cover all such cases; they must be resolved by reference to the intentions of the parties, by sound business practice and in some cases by a judgment where the risks should lie ... "
- Master Seaman, at 251, said:
"Expressed in the language of the older cases, in my view the plaintiff makes out a strong arguable case that the defendant impliedly indicated a public telex response as the mode of acceptance.
In any event if it is still a material consideration after the Brinkibon case, it is to be observed that once the plaintiff's agent committed the message to the public telex operator, and it was keyed in, the plaintiff's agent would not necessarily know whether it was communicated to the defendant or not.
In my opinion there is also a strong arguable case on these factors that the intention of the parties was that communication would take place by telex, and I see nothing unsound in business practice in finding that the contract was made when the
(Page 7)
- plaintiff's agent committed the message of acceptance to a public telex operator."
7 The plaintiffs argue to the contrary that the contract was made when the fax of 7 August 1997 sent from Canada was received by the plaintiffs in Perth. The plaintiff relies on Entores Ltd v Miles Far East Corporation (supra), Brinkibon Ltd v Stahag Stahl (supra), Reece Brothers Plastics Ltd v Hamon-Sobelco Australia Pty Ltd (1988) 5 BPR 11,1106 and Tallangalook Pty Ltd v Duketon Goldfields NL, unreported; SCt of Victoria; No BC9700223; 3 February 1997.
8 The first two cases support the plaintiffs' contention. In Brinkibon, Austrian sellers of steel offered to sell steel to a buyer which was an English company. The buyer accepted that offer by a telex sent to the sellers in Vienna. It was held that, where there was instantaneous communication between the offerer and the offeree, the formation of the contract between the parties was governed by the general law that a contract was concluded where and when acceptance of the offer was received by the offerer. Since the telex communication from the buyers in London to the sellers in Austria was instantaneous, the contract was made in Austria.
9 Reece Brothers was a decision of the New South Wales Court of Appeal comprising Gleeson CJ, Kirby P and McHugh JA. That case concerned a contract for the manufacture and supply of steel. The purchaser was a Sydney company and the supplier and manufacturer, an Auckland company. The offer was made by the Sydney company by a fax to New Zealand placing an order for the steel. That was accepted by a fax sent by the New Zealand company to Sydney confirming the order. The Court of Appeal accepted the finding of the trial Judge, which was not challenged before the Court of Appeal, that the contract between the parties was made in New South Wales where the acceptance was received. The Full Court referred to Entores and Brinkibon, above. The headnote reads:
"Where a contract is made by telex or facsimile, the instantaneous communication rule applies and the contract is made where the acceptance is received."
- That decision was followed by Hanson J of the Supreme Court of Victoria in Tallangalook, above.
10 I consider that I should follow the Court of Appeal authority of Reece Brothers, supported as it is by those other cases, and conclude that
(Page 8)
- this contract was made in Perth where the faxed acceptance was received. A fax cannot be sent if the receiver's machine is turned off. Thus, if it is sent the sender knows it is received. The facts of this case require a straightforward application of the instantaneous communications rule.
11 The defendant's second challenge is based on the finding or implied finding by Acting Master Chapman that the contract was governed by the law of Western Australia (O 10 r 1(e)(iii)). The defendant says this contract is governed by the law of Canada and relies on cl 16 of a Services Agreement found at 392 of Mr Bramwell's affidavit of 8 February 2000. That clause reads:
"16.0 Applicable Law/Language
This Agreement shall be interpreted in accordance with, and governed in all respects by the laws of the province where KILBORN'S place of business, indicated above is located. Any and all reports, notices or communications given in connection with this Agreement as well as any arbitration held in connection therewith, shall be in the English language."
12 The reference there to "Kilborn's place of business, indicated above" is a reference to par 14 which provides in summary that all notices under this agreement shall be sent to KILBORN INC, 2200 Lakeshore Boulevard, West Toronto, ON M8V1A4.
13 While quoting from this document I will also quote cl 15:
"15.0 Arbitration
Disagreements between the Parties relative to this Agreement shall finally be resolved by way of arbitration held in accordance with the provincial legislation governing arbitral proceedings in the province where KILBORN'S place of business, indicated above, is located."
14 The defendant says that that Services Agreement is part of the first document which I said made up the offer, namely the plaintiffs' proposal to the defendant for the feasibility studies of 23 June 1997. It is appendix C to that document and is called "Draft Services Agreement". The defendant further argues that that offer was accepted by the fax sent from the Hotel Marronnier in Canada of 7 August 1997, already mentioned, and hence this choice of law clause is an agreed term of the contract.
(Page 9)
15 I do not consider that this argument is correct. The proposal for the Zod and Meghradzor Mine's feasibility study of 23 June 1997 is a very lengthy document as previously stated. Large parts of it do not set out legal terms. For example, many pages are taken up with the CV's of the various persons who, it is proposed, will work on the project. There is a table of contents to the document and the last part of that is headed "7.0 Commercial Offer" and there follows six sub-headings, the last of which is "7.6 Validity Date" and after that is "Appendix A - Resumes of Key Personnel, Appendix B - Project Management System (PM+), and Appendix C - Draft Services Agreement". I quote cl 7.6:
"7.6 Validity Date
This proposal is valid for your acceptance for sixty (60) days, until August 23, 1997. It is subject to entering into a mutually acceptable contract between all involved parties. Our standard Form of Contract is attached in Appendix C.
The Services Agreement is by and between .......................... and KILBORN INC, a corporation having a place of business at 2200 Lakeshore Boulevard, West Toronto, ON M8V1A4 Canada."
16 I note the blank in the quote. As stated, this is a pro forma agreement. It is not signed by anyone and it is not between the right parties. "KILBORN INC" refers to the Canadian company of that name. If the parties named in the Western Australian action were to enter a formal written agreement, it would be between the two plaintiffs and the defendant. The second plaintiff, Kilborn Engineering Pacific Pty Ltd, is an Australian-owned subsidiary of Kilborn Inc, the Canadian company. On a proper construction of cl 7.6 of the plaintiffs' proposal, it is that, if the proposal is accepted by the defendant, then it is accepted subject to a condition that all the involved parties (meaning the three parties to this action) enter into a mutually acceptable contract and Kilborn Inc's standard form of contract is attached as a basis for discussion and agreement on mutually acceptable terms. I consider that cl 16 of the Services Agreement is not a term of the contract entered into by the parties. The contract entered into by the exchange of documents already mentioned is subject to the parties entering into a mutual acceptable contract between them, perhaps along the lines of the Services Agreement. But the parties never entered into any such contract. The work was commenced and done without the parties ever getting around to signing a more formal contract. I consider therefore that the choice of law
(Page 10)
- clause, and the arbitration clause, cl 15 of the Services Agreement, already quoted, are not terms of the contract.
17 The second of the offer documents was the revised proposal for the Zod and Meghradzor feasibility studies of 23 July 1997. That document also has a table of contents like the first one, and includes the same seven broad headings as the earlier proposal but with slightly different sub-headings. The last major heading in that document is "Commercial Offer" and it sets out sub-headings dealing with "general, cost estimate, reimbursable charges, hourly charges rates, schedule of specific charge rates for expenses, and in cl 7.6 "Validity Date", and there follows: "Appendix A - Resumés" and "Appendix B - Standard Contract for Feasibility Studies". Note - it does not have Appendix C - Services Agreement.
18 Clauses 7.6 of that proposal reads as follows:
"7.6 Validity Date
This proposal is valid for your acceptance for sixty (60) days, until August 23, 1997, it is subject to entering into a mutually acceptable contract between all involved parties. Our standard Form of Contract is attached in Appendix C."
- Appendix C is not attached. Indeed, Appendix B is not attached either.
19 That revised proposal does not add anything to the defendant's argument that the law of Canada was chosen by the parties to decide any disputes.
20 The third and fourth documents comprising the offer are a fax from the plaintiffs of 30 July 1997 and a further fax from the plaintiffs of 1 August 1997 which are not material to this discussion. I repeat my view that I consider the choice of law clause in cl 16 of the pro-forma Services Agreement does not form part of the terms of the agreement between the parties.
21 It was also argued by the defendant that the proper law of the contract was Armenia. This was an alternative argument to the main one that the proper law of the contract was Canadian. In a fax dated 24 June 1999 from the defendant's John Lewins to Nicholas Dillon of the plaintiffs' solicitors, Mr Lewins said:
"A number of areas were in contention with regard to the contract. The major ones included the following:
(Page 11)
- • Country of legal jurisdiction of the contract. The requirement of FDM/AGRC was Armenia.
• ... "
22 There is no evidence that this was ever agreed. At best, it was the defendant's wish or choice at that time. That fax was written after the contract had been made and performed and when disputes arose about non-payment of the plaintiffs' invoices. It is contradicted in any event by an earlier fax of Mr Lewin's of 26 September 1997 (WCB17 to Mr Bramwell's affidavit) when, commenting on a proposed contract, he proposed that the applicable law be that of Western Australia. Again, it is only a proposal; not a contractual term.
23 The plaintiffs referred me to a draft contract between the parties - WCB7 to Mr Bramwell's affidavit. In article 16 it said that the "contract shall be construed and all questions arising from it determined according to the laws of the State of Western Australia". Article 17 was an arbitration clause providing for arbitration of disputes in Geneva, Switzerland, according to the rules of conciliation and arbitration of the International Chamber of Commerce. This draft contract was not signed and does not assist me in determining the proper law of the contract.
24 The third basis for Acting Master Chapman's order was that the breach of the contract occurred within the State. The defendant rightly concedes that it cannot challenge that. The main breach referred to in the statement of claim and in Bramwell's affidavit is the failure of the defendant to pay the plaintiffs. If the contract makes no provision for the place of payment and the creditor is within the State, failure to pay is a breach within the State: International Corp Ltd v Besser Manufacturing Co [1950] 1 All ER 355. The plaintiffs operated from Perth. They performed their work on the contract in Perth and got paid in Perth. The defendant argues that the fact that the breach of contract occurred in this State is a factor, but not necessarily a decisive one, when I consider if Perth is an inappropriate forum.
25 I consider that the defendant's challenge to the legal basis for Acting Master Chapman's order fails. The defendant, however, has another series of arguments as to why this proceeding should be stayed in this jurisdiction. That is that the Supreme Court of Western Australia is a forum non conveniens. In Voth v Manildra Flour Mills Pty Ltd & Anor (1990) 171 CLR 538 the High Court held, and here I quote from the headnote:
(Page 12)
- "(1) A defendant will ordinarily be entitled to an order for a stay or the dismissal of an action if he persuades the local court that, having regard to the circumstances of the particular case and the availability of a foreign tribunal to whose jurisdiction the defendant is amenable and which would entertain the matter, it is a clearly inappropriate forum for the determination of the dispute. The question whether the local court is a clearly inappropriate forum requires attention to be directed to the inappropriateness of the local court and not the appropriateness or comparative appropriateness of the suggested foreign forum.
Oceanic Sunline Special Shipping Co Inc v Fay (1988) 165 CLR 197 at 247 - 248 applied.
(2) In the application of the clearly inappropriate forum test the discussion by Lord Goff in Spiliarda Maritime Corp v Cansulex Ltd [1987] AC 460 at 477 - 478 and 482 - 484 of relevant 'connecting factors' and 'a legitimate personal or juridical advantage' provides valuable assistance."
26 The defendant says that the Western Australian Supreme Court is clearly an inappropriate forum for the following reasons:
(1) The contract was made outside the jurisdiction of Western Australia. I have already found that that is not so.
(2) Pursuant to the terms of the pleaded agreement the applicable law is the law of the Province of Ontario, Canada. I have already found that is not so.
(3) The agreement contains an arbitration clause that provides that disagreements between the party shall be finally resolved by way of arbitration held in accordance with the laws of the Province of Ontario. I have already found that the agreement does not contain such a clause.
(4) The defendant is registered in Canada and based in Canada with its senior staff operating out of Armenia.
(5) The second plaintiff's parent company is also based in Canada.
(6) The defendant's witnesses are located in the Northern Hemisphere.
(Page 13)
27 On (4), a search of the website of the defendant, a public company listed on the Toronto Stock Exchange, states that Deb Bandyopadhyay is the President and Chief Executive Officer. He was appointed on 1 March 2000 and was not previously associated with the defendant. He was formerly the President - Copper Division, Sterlite Industries, India - responsible for establishing the Tuticorin copper smelter and achieving full capacity of 100,000 tonnes of copper per year. The Chairman is Anil Agarwal. He is the Chairman and Managing Director of Sterlite Industries (India) Ltd. Another director is John Kolada, a partner in Blake, Cassels & Graydon. Another director is Tarun Jain, director of finance and company secretary of Sterlite Industries (India) Ltd. Mr Bandyopadhyay has sworn an affidavit in this case dated 12 December 2000 and has given an Armenian address. I suspect he is an Indian national. He swore the affidavit in the presence of an attache to the Indian Embassy in Yerevan, Armenia. I am told he lives in Armenia. He was coming to Perth in October 2000 to give instructions to his solicitors with a Mr Venkat Kanada who is not a director of the company, but is an employee looking after the affairs of the mine owned by the defendant in Armenia. The visit was called off because Mr Bandyopadhyay suffered a heart attack, and Mr Kanada, who is second in command, could not at that time leave Armenia to travel to Perth.
28 I expect that a key witness for the defendant will be Mr John Derek Lewins. He was the Senior Vice President, Engineering and Construction, of the defendant between September 1996 and 28 May 1999, and from 29 May 1999 to 29 February 2000, Acting President and Chief Executive Officer of the defendant. He was the man who negotiated the contract for the defendant and signed the acceptance letter of 7 August 1997. He held those high positions during the duration of the contract. He lives at 6 Cowrie Crescent, Mt Pleasant.
29 I should say something about the dispute. The plaintiffs worked for the defendant pursuant to the agreement from September 1997, or thereabouts and thereafter. It was a schedule of rates contract. Up to 20 staff worked on the project and numerous large invoices were rendered which totalled US$1,477,019.77. Between 5 September 1997 and 20 January 1998 all the invoices were paid , amounting to a total of US$490,160.73. Since then no further invoices have been paid and the unpaid invoices total US$986,859.14.
30 No defence has been filed, but the defence has been outlined to me as follows: That the plaintiffs did not perform their obligations under the main contract in that they failed to submit a proper feasibility study. The
(Page 14)
- studies submitted by them included incorrectly digitised maps for bench plans, improper survey of the mine site and failure to consider properly waste dumps at the mine requiring the removal of an extra 6.5 million cubic metres of additional waste, as a result of which the defendant has suffered damage. The defendants have reports from mining consultants based in India and the United Kingdom setting out in detail the damage flowing from the errors in the plaintiffs' report.
31 As to the location of witnesses, the plaintiffs say that most of their witnesses are located in Perth. The defendant says that all documents on which it will rely for its defence are based in Armenia, as are several of the defendant's staff who will be witnesses in any court action. As stated, at least some of the defendant's expert witnesses are based in India and the United Kingdom. The defendant's documents were held in Perth. The defendant had an office in Perth.
32 As previously stated, the defendant would like the action to be heard in Canada, whereas the plaintiffs have brought the action in Perth. It is hard to weigh the convenience to the plaintiffs' witnesses on the one hand with the convenience to the defendant's witnesses on the other hand in this kind of application. Unless a geographical mid point is chosen, the choice of one venue is likely to be advantageous to one party and disadvantageous to the other party. Given, however, that this contract was made in Western Australia, was breached in Western Australia and will be governed by Western Australian law, those are all indicia that Western Australia is the appropriate forum. In addition, Western Australia is most convenient for the plaintiffs' witnesses and is not horrendously inconvenient to the defendant's witnesses. I say that because it would appear that none, or very few, of the defendant's witnesses are based in Canada. I have just related how they are based in Armenia, United Kingdom, India and one key witness in Perth.. So even if the venue was Canada, they would have to fly there. Perth is closer to India and Armenia than Toronto.
33 Weighing up all these factors, I am not persuaded that Perth is a clearly inappropriate forum or indeed an inappropriate forum. This application will be dismissed.
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