Great Southern Loans v Locator Group - [2005] NSWSC 438

CITATION:
Great Southern Loans & Anor v Locator Group [2005] NSWSC 438

HEARING DATE(S): 29 April 2005

JUDGMENT DATE :

13 May 2005

JURISDICTION:
Equity

JUDGMENT OF:
McDougall J at 1

DECISION:
See paras [83] and [84] of judgment

CATCHWORDS:
PRIVATE INTERNATIONAL LAW - injunctions - where first plaintiff sought to restrain proceedings commenced by defendant in Victorian Magistrates' Court - where second plaintiff sought to restrain proceedings commenced by defendant in Victorian County Court - whether first plaintiff and defendant bound by terms of licence agreement between second plaintiff and defendant - where licence agreement contained arbitration clause and exclusive jurisdiction clause - antisuit injunctions - nature of power to grant antisuit injunction - whether antisuit injunction should be granted in exercise of equitable jurisdiction - whether court clearly inappropriate forum - whether Victorian proceedings vexatious and oppressive - discretionary factors - whether existence of alternative remedy affords basis for refusing relief - whether comity affords basis for refusing relief - whether arbitration and exclusive jurisdiction clauses continue to bind parties after purported termination for breach - whether claims in Victorian proceedings fall outside scope of arbitration and exclusive jurisdiction clauses - whether s 21 of Service and Execution of Process Act prevents grant of antisuit injunction based on exclusive jurisdiction clause

LEGISLATION CITED:
Commercial Arbitration Act 1984 (Vic)
Corporations Act 2001
Jurisdiction of Courts (Cross-vesting) Act 1987
Service and Execution of Process Act 1992 (Cth)

CASES CITED:
Beecham (Australia) Pty Ltd v Roque Pty Ltd (1987) 11 NSWLR 1, 6
British Airways Board v Laker Airways Ltd [1985] AC 58
CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345
Evers v Firth (1986) 10 NSWLR 22
Heyman v Darwins Ltd [1942] AC 356, 359
Ferris v Plaister (1994) 34 NSWLR 474
Greinert v Jarrett [2004] NSWSC 209
McDonald v Dennys Lascelles Ltd (1933) 48 CLR 457, 476-477
Port Jackson Stevedoring Pty Ltd v Salmond & Spraggon (Australia) Pty Ltd (1980) 144 CLR 300
Rick Manietta Pty Ltd v National Mutual Life Association of Australia Ltd (8 September 1995, unreported; BC 9503951)
World Firefighters Games Brisbane 2002 v World Firefighters Games Western Australia Inc (2001) 161 FLR 355, 360 [15]-366 [38].

PARTIES:
Great Southern Loans Pty Ltd (Plaintiff 1)
Zcorp Pty Ltd (Plaintiff 2)
Locator Group Pty Ltd (Defendant)

FILE NUMBER(S):
SC 2482/05

COUNSEL:
J A Levingston (Plaintiffs)
N J Kidd (Defendant)

SOLICITORS:
Christopher Levingston & Associates (Plaintiffs)
Calleas Le Brun & Burke (Defendant)

LOWER COURT JURISDICTION:

INDEX

Great Southern Loans & Anor v Locator Group [2005] NSWSC 438

2482/05

Paragraph

Preliminary issues 2

The real questions in dispute 5

Relevant contractual terms 9

Other relevant facts 13

First issue: the terms of the agency agreement 18

The power to grant antisuit (and for the following) injunctions 23

Locator’s actions justify grant of relief 35

Second issue: clause 27.1 40

Alternative remedy 42

The comity argument 50

Other issues 58

Third and fourth issues: clause 41 69

Fifth issue: discretion 82

Conclusion 83

IN…

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: [2005] NSWSC 438
Decision Date: 13 May 2005

CaseChat Overview and Summary

In the case of Great Southern Loans v Locator Group, the plaintiffs sought to restrain proceedings commenced by the defendant in two different courts in Victoria. The first plaintiff sought to restrain proceedings in the Magistrates' Court, and the second plaintiff sought to restrain proceedings in the County Court. The court was required to decide whether the first plaintiff and the defendant were bound by the terms of the licence agreement between the second plaintiff and the defendant, which contained an arbitration clause and an exclusive jurisdiction clause. The court also needed to determine whether the antisuit injunctions should be granted in the exercise of equitable jurisdiction, whether the court was a clearly inappropriate forum, whether the Victorian proceedings were vexatious and oppressive, and whether the existence of alternative remedies or comity afforded a basis for refusing relief. Additionally, the court had to decide whether the arbitration and exclusive jurisdiction clauses continued to bind the parties after the purported termination for breach, whether the claims in the Victorian proceedings fell outside the scope of the arbitration and exclusive jurisdiction clauses, and whether section 21 of the Service and Execution of Process Act prevented the grant of antisuit injunction based on the exclusive jurisdiction clause.

The court held that the arbitration and exclusive jurisdiction clauses in the licence agreement continued to bind the parties even after the purported termination for breach. It found that the claims in the Victorian proceedings fell outside the scope of those clauses, and therefore, the court was not a clearly inappropriate forum. The court also held that the existence of alternative remedies, such as arbitration, did not afford a basis for refusing relief, and that comity did not prevent the grant of antisuit injunctions. The court ultimately granted the antisuit injunctions, restraining the proceedings in the Magistrates' Court and the County Court, as the Victorian proceedings were vexatious and oppressive. The court exercised its equitable jurisdiction to grant the injunctions in the interest of justice, taking into account the discretionary factors and the nature of the power to grant antisuit injunctions.

Orders