| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : INNOVATIS ASSET MANAGEMENT SA -v- D'SILVA [2011] WADC 171 CORAM : DEPUTY REGISTRAR HARMAN HEARD : 14 SEPTEMBER 2011 DELIVERED : 20 OCTOBER 2011 FILE NO/S : CIV 1409 of 2011 BETWEEN : INNOVATIS ASSET MANAGEMENT SA Plaintiff
AND
CYRIL UDHAYAN D'SILVA
Defendant
Catchwords: Practice - Application for stay - Turns on its own facts Legislation: Nil Result: Application successful
(Page 2)
Representation: Counsel:
Plaintiff : Mr N Billington
Defendant : Mr N Dillon
Solicitors:
Plaintiff : Cahill Billington
Defendant : McDonald Pynt
Case(s) referred to in judgment(s):
Nil
(Page 3)
1 DEPUTY REGISTRAR HARMAN: The plaintiff's claim is for damages of US$143,334.34 for breach of a contract of guarantee signed by the defendant on 29 September 2008.
2 Upon filing a conditional appearance the defendant has applied for an order that the action be permanently stayed on the basis that the District Court at Perth has no jurisdiction to hear and adjudicate upon the writ alternatively it is the forum non-conveniens. He carries the onus of persuasion that it is appropriate to grant the order to stay the action. 3 My understanding of the contention that the District Court at Perth has no jurisdiction to hear and adjudicate upon the writ rests on the proposition that the court would give effect to the last paragraph of the guarantee, the terms of which are as follows: This agreement shall be governed and construed in accordance with the laws of Switzerland and both parties agree to the courts located in Zurich for any dispute arising out of the agreement. 4 The defendant's case was that the nomination of forum ought to be given effect. The plaintiff submitted that the provision does not operate to confer exclusive jurisdiction, it simply records that if one party acts in accordance with its terms the other party would not contest jurisdiction. 5 The plaintiff contends that the relationship the subject of its claim is contractual. Although unlike the plaintiff's agreement with the principal debtor, the nomination of forum is not qualified by the word 'exclusive', in my opinion, upon the emergence of a dispute, the words 'for any dispute arising out of the agreement' so provide. Although in commencing the action the plaintiff may have considered that the defendant had simply failed to honour the terms of the guarantee, upon hearing the application I have no doubt that the issue for determination in the action will be whether it is enforceable. It follows that the nomination of forum should have effect with the consequence that the action be stayed. 6 The alternative basis upon which the defendant applies depends upon an exercise of discretion however once the court is satisfied that the parties have agreed to a forum for resolution of disputes between them it is for the respondent to establish a sufficient case for the exercise of discretion in its favour. 7 The first feature of the plaintiff's submissions was its contention that the guarantee had been signed by the defendant in Australia. (Page 4)
The evidence that it cites in support is of Erwin Lasshofer the chief executive officer of the plaintiff who deposes that: 8 In my opinion the evidence could not establish the submission. 9 The plaintiff also submitted that the receipt supported the proposition that the documents had been sent from Australia. I take it that the plaintiff would have me infer that the printed form of receipt was issued to the defendant for completion at the point of his engagement of a postal or courier service by one or more of the entities represented by the names specified on the printed form: Australia Post, Express Courier International and EMS International Courier. Judging by what is printed on the document it appears to be a copy of the copy that a client of the service provider could retain. Had the deponent provided evidence as to how he came by that copy of the receipt he may have provided some useful connection between it and the documents to which he refers. Absent any such explanation not only is there nothing to connect him with any feature of the process to which the receipt relates, but also brings me to the point of concluding that the first sentence of par 15 is no more than what he has chosen to draw from a reading of the receipt. Ultimately there is nothing to connect the receipt to the documents. I also note that the date of the declaration on the receipt is given as 02/09/08. I understand that it is common cause that the defendant had executed the documents on 29 September 2008. If the date on the receipt which I take to be 2 September 2008 is accurate, it was a day approximately four weeks prior to the date that the guarantee was signed by the defendant. 10 If I am wrong in that assessment of par 15, by the second sentence and attaching the receipt the plaintiff implicitly seeks to have the court draw a conclusion as to the truth of the content of the receipt. The scope for introducing hearsay is narrow. It is for the deponent not the court to found its introduction. In the absence of any evidentiary support for the first sentence of the paragraph I conclude that it is not given on the basis of knowledge. 11 Accordingly the submission is not supported. (Page 5)
12 The plaintiff next made submissions as to the connections between the defendant and Western Australia. I have no difficulty with the proposition that over the relevant period, at least from time to time, the defendant has resided in Western Australia and has owned real estate in Western Australia. In my opinion neither point would be sufficient to justify exercising discretion in favour of the plaintiff. 13 The plaintiff also relied upon connections between arrangements put in place by and under its agreements with the principal debtor and Australia. I have no trouble with the proposition that there are such connections however none of them are with the State of Western Australia. In my opinion the connections would not be sufficient to justify exercising discretion in favour of the plaintiff. 14 The plaintiff's third submission is that the provision was inserted into the guarantee at the behest of the plaintiff. In my opinion the identity of the party that instigated the inclusion of the particular provision is of no significance. As much as each party may now be motivated by different considerations, so too at the point at which the provision was incorporated into the guarantee. The significant consideration is that the defendant committed to the guarantee after it was incorporated. There is nothing to be gained by embarking on the process of investigating the motivation of each party. I would add that in the case before me, even if I were otherwise inclined, the absence of evidence would found such an exercise on speculation. The related submission was that by commencing the action in this court the plaintiff has chosen not to take the benefit of any advantage accorded by the provision. In my opinion neither point would be sufficient to justify exercising discretion in favour of the plaintiff. 15 The plaintiff next submitted that the defendant had provided no evidence of oppression or vexation by the continuation of the proceedings in this court. Although he carries the onus in the application, once the applicant has established a choice of law provision it is for the respondent to persuade the court otherwise. That the defendant has given no such evidence is not to the point. In my opinion there is no merit in the submission. 16 It also submitted that the law of Switzerland could be applied in the action and that the case under that law would be straightforward. The plaintiff also relied on the fact that if it was successful in an action determined elsewhere then to be enforced in Western Australia, any judgment would need to be registered in Western Australia. In my opinion neither submission has any substance. (Page 6)
17 Ultimately the result of the application rests on the exercise of discretion. None of the submissions that have support are sufficient to persuade me that I ought to override the choice of forum made by the defendant at the point that he signed the guarantee. In combination they amount to no better case. |