Tan v Lim - [2024] WASC 323

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   TAN -v- LIM & ORS [2024] WASC 323
CORAM:   MASTER RUSSELL
HEARD:   4 SEPTEMBER 2024
DELIVERED          :   4 SEPTEMBER 2024
PUBLISHED           :   10 SEPTEMBER 2024
FILE NO/S:   CIV 1626 of 2024
BETWEEN:   LEE LEE TAN
Plaintiff
AND
TIONG SOON LIM
First Defendant
CRISTO DEVELOPMENT PTY LTD (ACN 641 624 231)
Second Defendant
BERESHEET PTY LTD (ACN 643 668 008)
Third Defendant
EDPKB AUSTRALIA PTY LTD (ACN 167 395 486)
Fourth Defendant
LAMBDA (A) PTY LTD (ACN 167 402 691)
Fifth Defendant
CARINE & CARMEN PTY LTD (ACN 600 757 186)
Sixth Defendant

Catchwords:

Practice and procedure - Application to stay proceedings on grounds of forum non conveniens - Whether Supreme Court of Western Australia a clearly inappropriate forum - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA) O 12 r 6

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff	:	Mr J Ling
First Defendant	:	Mr C Ko
Second Defendant	:	Mr C Ko
Third Defendant	:	Mr C Ko
Fourth Defendant	:	Mr C Ko
Fifth Defendant	:	Mr C Ko
Sixth Defendant	:	Mr C Ko

Solicitors:

Plaintiff	:	Spyker Legal
First Defendant	:	Trinix Lawyers
Second Defendant	:	Trinix Lawyers
Third Defendant	:	Trinix Lawyers
Fourth Defendant	:	Trinix Lawyers
Fifth Defendant	:	Trinix Lawyers
Sixth Defendant	:	Trinix Lawyers

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

Henry v Henry [1996] HCA 51; (1996) 185 CLR 571
Mallon & Co Lawyers Pty Ltd v GAM [2012] WASC 376
Oceanic Sun Line Special Shipping Co Inc v Fay [1988] HCA 32; (1988) 165 CLR 197
Purvis v Sakari Resources Ltd [2015] WASC 63
Regie Nationale des Usines Renault SA v Zhang [2002] HCA 10; (2002) 210 CLR 491
Singh v Singh [2009] WASCA 53
Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55; (1990) 171 CLR 538

MASTER RUSSELL:

(This judgment was delivered extemporaneously and has been edited from the transcript to correct matters of grammar, infelicity of expression and to add headings, full citations, references and footnotes.)

Introduction

The plaintiff, Lee Lee Tan, is a citizen of Singapore and a permanent resident of Australia. She commenced these proceedings against the defendants by writ of summons indorsed with a statement of claim on 27 May 2024.
The first defendant, Tiong Soon Lim, is a citizen and resident of Singapore. He is a director of three of the other five defendants:
(a)Cristo Development Pty Ltd, the second defendant;
(b)EDPKB Australia Pty Ltd, the fourth defendant; and
(c)LAMBDA (A) Pty Ltd, the fifth defendant.
The remaining defendants are:
(a)Beresheet Pty Ltd, the third defendant; and
(b)Carine & Carmen Pty Ltd, the sixth defendant.
Each of the second to sixth defendants are companies incorporated under the Corporations Act 2001 (Cth) and registered in Western Australia except for the third defendant, Beresheet Pty Ltd, which is registered in Victoria.
On 14 June 2024, a conditional appearance was entered on behalf of each of…

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 Tan v Lim

Details

AGLC: Tan v Lim [2024] WASC 323
Case: [2024] WASC 323
Decision Date: 10 SEPTEMBER 2024

CaseChat Overview and Summary

The case of Tan v Lim involved a dispute between two individuals, Tan and Lim, before the Supreme Court of Western Australia. The nature of the dispute was such that Tan sought an application to stay the proceedings on the grounds of forum non conveniens, arguing that the Supreme Court was a clearly inappropriate forum for the resolution of the matter. The central issue for the court to determine was whether the Supreme Court was indeed a clearly inappropriate forum to hear the case, a decision that would depend on the unique facts of the matter.

The court was tasked with evaluating the appropriateness of the forum in light of the specific circumstances presented. This involved a detailed consideration of factors such as the convenience of the parties, the location of relevant witnesses and evidence, and the place where the events in question occurred. The court had to weigh these factors against the principle that the plaintiff generally has the right to choose the forum, balanced by the need to ensure that the proceedings are not an abuse of the process of the court.

In reaching its decision, the court examined the particular circumstances of the case, including the location of the parties, the availability of witnesses and evidence, and the potential inconvenience to the parties if the proceedings were to continue in Western Australia. The court concluded that, given the specific facts of the case, the Supreme Court of Western Australia was not a clearly inappropriate forum for the resolution of the dispute. The application to stay the proceedings was therefore dismissed.

The final orders of the court reflected its decision, confirming that the proceedings would continue in the Supreme Court of Western Australia. The court did not find the forum to be clearly inappropriate, and thus the application to stay the proceedings was unsuccessful.

Orders