Mallon & Co Lawyers Pty Ltd v Gam

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MALLON & CO LAWYERS PTY LTD -v- GAM [2012] WASC 376



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2012] WASC 376
Case No:CIV:1274/20124 SEPTEMBER 2012
Coram:MASTER SANDERSON10/10/12
9Judgment Part:1 of 1
Result: First defendant's application dismissed
A
PDF Version
Parties:MALLON & CO LAWYERS PTY LTD
GARY ARLEN GAM
HOG'S BREATH CO PTY LTD
HOG'S BREACH CAFE (AUSTRALIA) PTY LTD
HB INVESTMENTS PTY LTD
GINGER LYNN WHITE
DONALD RICHARD ALGIE
ALFRED BRETT DRYLAND
ROSS MURRAY WORTH
TUCKER & COWAN (a firm)

Catchwords:

Practice and procedure
Leave granted to issue writ and serve notice out of jurisdiction
Writ included claims under the Trade Practices Act 1974 (Cth) and the Fair Trading Act 2005 (WA)
Whether leave would be given under O 10
Whether action should be stayed based on forum non conveniens

Legislation:

Nil

Case References:

Borch v Answer Products Inc [2000] QSC 379
Commonwealth Bank of Australia v White [1999] 2 VR 681
Fleming v Marshall [2011] NSWCA 86
Glendalough Holdings Pty Ltd v Summit Chemicals Pty Ltd [2003] WASC 183
Henry v Henry [1996] 185 CLR 571
Jonstan Pty Ltd v Nicholson (2003) 58 NSWLR 223
Kent v Lechmere Financial Corporation [2002] WASC 75
Mallon & Co Lawyers Pty Ltd v Hog's Breath Company Pty Ltd [2011] WASC 236
Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197
Philip Morris Ltd v Ainley & Incorporated Nominal Defendant [1975] VR 345
Raveh v The Official Receiver of the State of Israel [2002] WASCA 27
Singh v Singh [2009] WASCA 53
Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460
Williams v The Society of Lloyd's [1994] 1 VR 274


JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
    IN CHAMBERS
CITATION : MALLON & CO LAWYERS PTY LTD -v- GAM [2012] WASC 376 CORAM : MASTER SANDERSON HEARD : 4 SEPTEMBER 2012 DELIVERED : 10 OCTOBER 2012 FILE NO/S : CIV 1274 of 2012 BETWEEN : MALLON & CO LAWYERS PTY LTD
    Plaintiff

    AND

    GARY ARLEN GAM
    First Defendant

    HOG'S BREATH CO PTY LTD
    HOG'S BREACH CAFE (AUSTRALIA) PTY LTD
    HB INVESTMENTS PTY LTD
    GINGER LYNN WHITE
    DONALD RICHARD ALGIE
    ALFRED BRETT DRYLAND
    ROSS MURRAY WORTH
    Second Defendants

    TUCKER & COWAN (a firm)
    Third Defendant

Catchwords:

Practice and procedure - Leave granted to issue writ and serve notice out of jurisdiction - Writ included claims under the Trade Practices Act 1974 (Cth) and the Fair Trading Act 2005 (WA) - Whether leave would be given under O 10 - Whether action should be stayed based on forum non conveniens


(Page 2)



Legislation:

Nil

Result:

First defendant's application dismissed

Category: A


Representation:

Counsel:


    Plaintiff : Mr J D MacLaurin
    First Defendant : Mr T M Retallack
    Second Defendants : No appearance
    Third Defendant : No appearance

Solicitors:

    Plaintiff : Griffith Hack Lawyers Pty Ltd
    First Defendant : Culshaw Miller Lawyers
    Second Defendants : No appearance
    Third Defendant : No appearance

Case(s) referred to in judgment(s):

Borch…
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Details
Case
[2012] WASC 376
Decision Date

CaseChat Overview and Summary

The court was asked to decide whether to grant leave for Mallon & Co Lawyers Pty Ltd to issue a writ and serve notice out of jurisdiction, with the writ containing claims under the Trade Practices Act 1974 (Cth) and the Fair Trading Act 2005 (WA). The application was made by the first defendant in the proceedings. The legal issues before the court included whether leave should be granted under Order 10 and whether the action should be stayed on the basis of forum non conveniens. The primary consideration for granting leave under Order 10 was whether the court had jurisdiction to hear the case, considering the claims made under federal and state legislation. Additionally, the court had to weigh the convenience of the parties and the witnesses, and the interests of justice in determining whether to stay the proceedings on the basis of forum non conveniens.

The court found that there were compelling reasons to grant leave to serve the writ out of jurisdiction. It noted the significant connections between the parties and the subject matter of the dispute to the forum state. The court also determined that the interests of justice did not favour staying the proceedings on the basis of forum non conveniens, given the strong ties of the case to the jurisdiction and the convenience of the parties and witnesses. The court concluded that the case should proceed in the jurisdiction where the writ was to be served, and thus dismissed the application by the first defendant to stay the proceedings.

Orders

Orders of the court

First defendant's application dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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