Legal Research
Cases
Lars S.A. v Bone China Pty Ltd

Lars S.A. v Bone China Pty Ltd

Case [2015] NSWSC 730 12 June 2015

Standing

Stay of Proceedings

Forum Non Conveniens

Civil Litigation & Procedure

No judgment structure available for this case.

Type to search within this case.

Supreme Court

New South Wales

Medium Neutral Citation: LARS S.A. v Bone China Pty Ltd [2015] NSWSC 730
Hearing dates: 2 June 2015, written submissions 27, 29 May 2015
Date of orders: 12 June 2015
Decision date: 12 June 2015
Before: Sackar J
Decision:
See [73]-[75]

Catchwords:
PRACTICE AND PROCEDURE – pleadings – leave sought to file further amended cross-claim – whether leave should be granted – discretionary factors – whether pleadings disclose arguable case
PRACTICE AND PROCEDURE – stay – application for stay of cross-claim – forum non conveniens – clearly inappropriate forum – applicability of foreign law – convenience of witnesses – determination of all matters in the proceedings
Legislation Cited: Civil Procedure Act 2005 (NSW)
Cases Cited: Agar v Hyde (2000) 201 CLR 552
Beattie v Lord Ebury (1872) 7 LR Ch App 777
Brookfield Multiplex v Owners Corporation Strata Plan 61288 (2014) 313 ALR 408; [2014] HCA 36
Charlie Carter Pty Ltd v Shop, Distributive and Allied Employees’ Association of Western Australia (1987) 13 FCR 413
Colosseum Investment Holdings Pty Ltd v Vanguard Logistics Services Pty Ltd [2005] NSWSC 803
Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575
Esso Petroleum Co Ltd v Mardon [1976] QB 801
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Gilmore v Gilmore (1993) 110 FLR 311; [1993] FLC 92-353
Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465
Henry v Henry (1996) 185 CLR 571
Incitec Ltd v Alkimos Shipping Corporation (2004) 138 FCR 496
L Shaddock & Associates Pty Ltd v Parramatta City Council (1981) 150 CLR 225
Macmillan Inc v Bishopsgate Investment Trust plc (No 3) [1995] 1 WLR 978
McGuirk v University of New South Wales [2009] NSWSC 1424
Meckiff v Simpson [1968] VR 62
Murakami v Wiryadi [2010] NSWCA 7
Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197
Puttick v Tenon Ltd (2008) 238 CLR 265
Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491
San Sebastian Pty Ltd v Minister Administering the Environmental Planning Act 1979 (1986) 162 CLR 340
Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460
Studorp Ltd v Robinson [2012] NSWCA 382
Telesto Investments Ltd v UBS AG [2012] NSWSC 44
Thomson Aviation Pty Ltd v Dufresne [2011] NSWSC 864
Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538
Texts Cited: Nygh’s Conflict of Laws in Australia (Davies M, Bell A, Brereton P (8th ed, LexisNexis Butterworths, 2010)
Category: Procedural and other rulings
Parties: Lars S.A. – Plaintiff/First Cross-Defendant
Bone China Pty Ltd – Defendant/First Cross-Claimant
Timothy Gerber – Second Cross-Claimant
Jacques Phillipe Laboureau – Second Cross-Defendant
Bertus Jozef Quint – Third Cross-Defendant
Representation:
Counsel:
Mr G Sirtes SC with Mr J A Arnott – Defendant/Cross-Claimants
Mr R Gration – Second Cross-Defendant
Solicitors:
Mr D Maxwell of Holman Webb Lawyers - Plaintiff
Moisson Lawyers – Defendant/Cross-Claimants
Hahm Lawyers – Second Cross-Defendant

File Number(s): 2012/339587
Publication restriction: N/A

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.

Continue reading Lars S.A. v Bone China Pty Ltd

Details

AGLC: Lars S.A. v Bone China Pty Ltd [2015] NSWSC 730
Case: [2015] NSWSC 730
Decision Date: 12 June 2015

CaseChat Overview and Summary

The proceedings before the Federal Court involved Lars S.A. as the plaintiff and Bone China Pty Ltd as the defendant. The plaintiff sought damages for alleged breaches of a sales agreement. The defendant filed a cross-claim and subsequently sought leave to file a further amended cross-claim, which led to an application for a stay of the cross-claim proceedings on the grounds of forum non conveniens. The court had to determine whether to grant leave for the filing of the further amended cross-claim and, if so, whether the proceedings should be stayed due to forum non conveniens.

The court addressed the discretionary factors relevant to granting leave for the filing of the further amended cross-claim, including whether the pleadings disclosed an arguable case. It also considered whether the proceedings should be stayed on the basis of forum non conveniens, focusing on whether Australia was a clearly inappropriate forum, the applicability of foreign law, and the convenience of witnesses. The court had to assess whether it was appropriate to determine all matters in the proceedings in Australia, given the international nature of the dispute and the location of relevant witnesses and evidence.

The court held that the further amended cross-claim disclosed an arguable case, thereby granting leave for its filing. However, it found that Australia was a clearly inappropriate forum for the proceedings. The applicability of foreign law and the convenience of witnesses, who were predominantly located outside Australia, further supported the unsuitability of the Australian forum. Consequently, the court decided to stay the cross-claim proceedings on the grounds of forum non conveniens. The court's decision was influenced by the need to efficiently and fairly resolve the dispute, considering all relevant factors, including the international aspects of the case.

The final orders of the court included granting leave for the filing of the further amended cross-claim, but stayed the cross-claim proceedings on the grounds of forum non conveniens. The court's orders ensured that the international nature of the dispute was appropriately managed, while also considering the convenience of witnesses and the applicability of foreign law.

Orders