Showtime Touring Group v Mosely Touring Inc - [2010] NSWSC 974

NEW SOUTH WALES SUPREME COURT

CITATION:
Showtime Touring Group v Mosely Touring Inc [2010] NSWSC 974

JURISDICTION:
Common Law Division

FILE NUMBER(S):
2009/297756

HEARING DATE(S):
18 May 2010

JUDGMENT DATE:
3 September 2010

PARTIES:
Showtime Touring Group Pty Limited (Plaintiff)
Mosely Touring Inc. (1st Defendant)
Timothy Mosely (2nd Defendant)

JUDGMENT OF:
Hislop J

LOWER COURT JURISDICTION:
Not Applicable

LOWER COURT FILE NUMBER(S):
Not Applicable

LOWER COURT JUDICIAL OFFICER:
Not Applicable

COUNSEL:
D.E. Baran (Plaintiff)
R. Lancaster SC/C. Arnott (Defendants)

SOLICITORS:
Stephen Smart & Associates (Plaintiff)
Simpsons (Defendants)

CATCHWORDS:

LEGISLATION CITED:
Uniform Civil Procedure Act 2005

CASES CITED:
Castagna v Conceria Pell Mec Spa (unreported, NSWCA, 15 March 1996)
Howship Holdings Pty Limited v Leslie (1996) 41 NSWLR 542
Australian Securities and Investments Commission v Sweeney [2001] NSWSC 114
Building Insurers' Guarantee Corporation v Eddie [2008] NSWSC 195
Voth v Manildra Flour Mills Pty Limited [1990] HCA 55; (1990) 171 CLR 538
Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552
Oivaylle Pty Limited v Flottweg GMBH & Co KGAA (No 4) (2009) 255 ALR 632
Reese Bros Plastics Limited v Hamon-Sobelco Australia Pty Limited (1988) 5 BPR 11,106
Egis Consulting Australia Pty Limited v First Dynasty Mines Limited [2001] WASC 22
Stanley Kerr Holdings Pty Limited v Gibor Textile Enterprises Limited (1978) 2 NSWLR 372
Liftronic Pty Limited v Montgomery Elevator Company (1996) ATPR 41-458
Bank of Amercia v Bank of New York [1994] NSWCA 17

TEXTS CITED:

DECISION:
1. Set aside the service of the statement of claim on the first and second defendants.
2. The plaintiff pay the defendants' costs of the application.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
HISLOP J
Friday 3 September 2010
2009/297756 SHOWTIME TOURING GROUP PTY LIMITED v MOSELY TOURING INC & ANOR

JUDGMENT
Introduction

The plaintiff, a company registered in Queensland, Australia, by statement of claim filed in this court on 30 July 2009 brought proceedings against the first and second defendants for damages for breach of contract.
The statement of claim alleged, inter alia:
(a)The first defendant was incorporated in Florida, USA. The second defendant was a performance artist. The first defendant hired out the second defendant’s services to promoters throughout the world.
(b)In or about May 2008 the plaintiff entered into an agreement, partly oral and partly in writing (including a written agreement dated 12 May 2008 executed by the plaintiff on 23 May 2008), with the first and second defendants to procure the second defendant’s services to perform at live concerts throughout Australia and New Zealand in July 2008. The second defendant’s performance fee, being $US1 million, was to be paid in instalments of $200,000 on 27 May 2008, $300,000 on 9 June 2008 and $500,000 by no later than 25 June 2008. Payments pursuant to that agreement were made as follows: $100,000 on 5 June 2008, $100,000 on 10 June 2008, $80,000 on 11 June 2008, $120,000 on 12 June 2008.
(c)It was an implied term of the…

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: [2010] NSWSC 974
Decision Date: 3 September 2010

CaseChat Overview and Summary

In Showtime Touring Group v Mosely Touring Inc, the plaintiff, Showtime Touring Group, sought to enforce a contract against the defendants, Mosely Touring Inc and its director, through service of a statement of claim outside Australia. The dispute centred on the validity of the service of the statement of claim and the jurisdiction of the court to hear the case. The case was heard in the Supreme Court of New South Wales. The primary legal issue before the court was whether the plaintiff was entitled to serve the statement of claim outside Australia under the provisions of Schedule 6 of the Uniform Civil Procedure Rules 2005 (NSW). Additionally, the court had to determine whether the court should exercise its jurisdiction and whether the plaintiff’s claim was reasonably arguable.

The court found that the cause of action in contract arose upon breach of the contract, which did not occur in New South Wales. Therefore, the provisions of Schedule 6(a), (b), and (c) did not apply, and the plaintiff was not entitled to serve the statement of claim outside Australia on the defendants. The court also concluded that it was unnecessary to determine the alternative bases relied upon by the defendants, as the primary issue had been resolved. The court expressed its view that the proceedings should not be stayed on forum non conveniens grounds and noted that triable issues existed between the parties. Consequently, the court set aside the service of the statement of claim on the defendants and ordered the plaintiff to pay the defendants’ costs of the application.

The final orders of the court were to set aside the service of the statement of claim on the first and second defendants and for the plaintiff to pay the defendants' costs of the application. These orders effectively dismissed the plaintiff's attempt to enforce the contract outside the jurisdiction of New South Wales and highlighted the importance of adhering to local service rules in cross-border litigation.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The cause of action in contract arises upon breach of the contract. As previously observed, that breach (and the resultant cause of action) did not arise in New South Wales. Schedule 6 cl (a) has no application.Conclusions The provisions of Sch 6(a), (b) and (c) have no application. UCPR 11.2 does not entitle the plaintiff to serve the statement of claim outside Australia on either defendant. This conclusion renders it unnecessary to determine the alternative bases relied upon by the defendants, namely that this Court should decline to exercise jurisdiction on the grounds it is an inappropriate forum or that the plaintiff’s claim was not reasonably arguable, matters upon which the defendants bore the onus of proof. In the event the matter should go further, I record my impression (Bank of America v Bank of New York [1994] NSWCA 17) that, having examined the material in evidence and having taken account of the competing written and oral submissions, I am of the view that the proceedings should not be stayed on forum non conveniens (ie, “clearly inappropriate forum”) grounds – Voth at 565. I also note that, in my opinion, triable issues exist between the parties such as would make it inappropriate to dismiss the proceedings summarily.Orders I make the following orders:1.Set aside the service of the statement of claim on the first and second defendants.2. The plaintiff pay the defendants’ costs of the application.**********

Ratio Decidendi

Legal Principle Established

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