McGuid v Office De Commercialisation et D'Exportation - [1999] NSWSC 931

CITATION: McGuid v Office De Commercialisation et D'Exportation [1999] NSWSC 931

CURRENT JURISDICTION: Equity Division - Commercial List

FILE NUMBER(S): 50121/98

HEARING DATE(S): 20.7.99

JUDGMENT DATE:
20 July 1999

PARTIES :

Sarwat McGuid t/as A.B.S. Gulf (Plaintiff)
Office De Commercialisation et D'Exportation & ors (Defendants)

JUDGMENT OF: Einstein J

COUNSEL : N.A. Cotman SC (Plaintiff)
C.J. Birch (First Defendant)
R.E. Dubler (Second Defendant)

SOLICITORS: Colinard & Co (Plaintiff)
Riley Lawyers (First Defendant)
Minter Ellison (Second Defendant)

CATCHWORDS: Practice and procedure - Application for stay of proceedings - Identifying exclusive jurisdiction clause selecting Courts of Casablanca - Discretion to order stay - Principles applicable - Once clause held to be 'exclusive jurisdiction' clause, forum non conveniens test inapplicable - Parties to be held to their bargain unless strong cause for not doing so is shown by applicant - Contract written in French - Laws of Morocco and civil, commercial and criminal code published in Arabic and French - Proper law of the contract - Presumption that where contracting parties have expressly chosen a foreign court for the determination of disputes under the contract, the proper law of the contract is the law of that foreign court.

CASES CITED: AKAI Pty Limited v Peoples Insurance Co Limited (1996) 188 CLR 418
Amin Rasheed Shipping Corporation v Kuwait Insurance Co (1984) AC 50
Austrian Lloyd Steamship Co v Gresham Life Assurance Society Limited (1903) 1 King's Bench 249
Compagnie des Messageries Maritimes v Wilson (1954) 94 CLR 577
FAI General Insurance v Ocean Marine Mutual (1997) 41 NSWLR 117
Gem Plastics Pty Limited v Satrex Maritime Pty Limited (Unreported, Supreme Court of New South Wales, 9 June 1995)
IBM Australia v National Distribution Services Limited (1991) 22 NSWLR 466
John Kaldor Fabric Maker v Mitchell Cotts Freight (Aust) Pty Ltd (1989) 18 NSWLR 172
United Railways of Havana v Regla Warehouses Ltd (1960) Ch 52

DECISION: Order that proceedings against first defendant be stayed permanently.

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

EINSTEIN J

Tuesday 20 July 1999 - extempore
Revised 15 September 1999
50121/98 - SARWAT McGUID TRADING AS ABS GULF v OFFICE DE COMMERCIALISATION ET D’EXPORTATION & ORS

JUDGMENT 1 HIS HONOUR: There is before the Court a notice of motion filed on 6 April 1999 pursuant to which the first defendant, Office De Commercialisation Et D' Exportation ["OCE"], seeks for the proceedings to be permanently stayed. 2 The parties to the proceedings are Sarwat McGuid trading as ABS Gulf ["Gulf"], OCE, National Australia Bank Limited [“the Bank] as second defendant and Export Finance Insurance Corporation ["EFIC"] as third defendant. 3 The further amended summons was filed on 12 July 1999. 4 The plaintiff is a resident of New South Wales trading from premises at 12 Lily Street, Croydon Park, and is a Cost Accountant and Licensed Meat and Livestock Exporter. The first defendant is an entity formed and existing under the laws of the Kingdom of Morocco. The Bank is an Australian corporation. EFIC is an Australian corporation.…

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 McGuid v Office De Commercialisation et D'Exportation

Details

AGLC: McGuid v Office De Commercialisation et D'Exportation [1999] NSWSC 931
Case: [1999] NSWSC 931
Decision Date: 20 July 1999

CaseChat Overview and Summary

McGuid v Office De Commercialisation et D'Exportation involved a dispute between the applicant, McGuid, and the Office De Commercialisation et D'Exportation, regarding a contract for the sale of goods. The matter was heard in the Federal Court of Australia. The primary issue before the court was whether the contract contained an exclusive jurisdiction clause that specified the Courts of Casablanca as the forum for resolving disputes. If such a clause existed, the court needed to determine whether to grant the application for a stay of proceedings based on the discretion to order a stay, considering the principles applicable to exclusive jurisdiction clauses.

The court examined the language of the contract, which was written in French, and noted that the laws of Morocco, where the contract was to be performed, were published in both Arabic and French. The court concluded that the clause in question was indeed an exclusive jurisdiction clause, selecting the Courts of Casablanca. Consequently, the principles of forum non conveniens did not apply. The court held that the parties must be held to their agreement unless the applicant demonstrated strong cause for not doing so. The court found that the parties had expressly chosen the Courts of Casablanca, and thus, the proper law of the contract was the law of that foreign court.

Given the presence of the exclusive jurisdiction clause and the absence of strong cause demonstrated by the applicant, the court exercised its discretion to grant the application for a stay of proceedings. The Federal Court of Australia directed that the proceedings be stayed, in accordance with the terms of the exclusive jurisdiction clause in the contract. This decision reinforced the principle that parties must adhere to their chosen forum unless compelling reasons are presented to deviate from the agreed terms.

Orders