Thomas v ACP Technical Services Ltd
[2000] WASC 4
•21 JANUARY 2000
THOMAS & ANOR -v- ACP TECHNICAL SERVICES LTD & ANOR [2000] WASC 4
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASC 4 | |
| 21/01/2000 | |||
| Case No: | CIV:1804/1999 | 17 NOVEMBER 1999 | |
| Coram: | MASTER BREDMEYER | 17/11/99 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| PDF Version |
| Parties: | GREGOR WILLIAM THOMAS SUPAPAVE CONTRACTING PTY LTD ACP TECHNICAL SERVICES LTD ACP TECHNICAL SERVICES (AUSTRALIA) PTY LTD (ACN 072 911 874) |
Catchwords: | Leave to issue a writ out of jurisdiction Challenge to jurisdiction of the court |
Legislation: | Trade Practices Act 1974 s 52 |
Case References: | Leigh Mardon Pty Ltd v PRC Inc (1993) 44 FCR 88 Aki Pty Ltd v The People's Insurance Co Ltd (1988) CLR 418 Australian Commercial Research & Development Ltd v ANZ McCaughan Merchant Bank Ltd [19889] 3 All ER 65 Bonython v Commonwealth [1951] AC 201 Contender 1 Ltd v LEP International Pty Ltd (1988) 82 ALR 394 DA Technology Australia Pty Ltd & Anor v Discreet Logig Inc & Anor, unreported; Fed C of A (Gummow J); 10 March 1994 Diamond v Bank of London & Montreal Ltd [1979] QB 333 Distillers Co (Biochemicals) Ltd v Thompson [1971] AC 458 FAI General Insurance Co Ltd v Ocean Marine Mutual Protection and Indemnity Association (1996) 41 NSWLR 117 Freckmann v Pengendar Timur SDN BHD (1989) WAR 62 Gem Plastics v Saltrex Maritime, unreported; SCt of NSW (Rolfe J); 9 June 1995 Green v Australian Industrial Investment Ltd (1989) 90 ALR 500 Hayel Saeed Anam & Co v Eastern Sea Freighters Pty Ltd (1973) 7 SASR 200 Huddart Parker Ltd v The Ship Mill Hill (1950) 81 CLR 502 Lep International Pty Ltd & Anor v Altanttrafic Express Service Inc & Ors (1987) 10 NSWLR 6140 Lewis Construction v Tichauer [1966] VR 341 Lyndsay Edmonds & Associates Pty Ltd v Quest Sales Pty Ltd (1979) 60 FLR 349 Mendelson-Zeller Co Inc v T & C Providores Pty Ltd [1981] 1 NSWLR 366 Oceanic Sun Line Special Shipping Co Incorporated v Fay (1988) 62 ALJR 389 Re United Railways of the Havana & Regla Warehouses [1960] 1 Ch 52 Sheldon Pallet Manufacturing Co Pty Ltd v New Zealand Forrest Products Ltd [1975] 1 NSWLR 141 St Pierre v South American Stores (Gath & Chaves) Ltd [1936] 1 KB 382 Sydbank v Bannerton Holdings (1996) 68 FCR 539 The Eider [1893] P 119 Victorian Broadcasting Network Ltd v Whitlam (1980) 42 FLR 256 Vitrovice Horni A Hunti Tezirstvo v Korner [1951] AC 869 Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : THOMAS & ANOR -v- ACP TECHNICAL SERVICES LTD & ANOR [2000] WASC 4 CORAM : MASTER BREDMEYER HEARD : 17 NOVEMBER 1999 DELIVERED : 17 NOVEMBER 1999 PUBLISHED : 21 JANUARY 2000 FILE NO/S : CIV 1804 of 1999 BETWEEN : GREGOR WILLIAM THOMAS
- First Plaintiff
SUPAPAVE CONTRACTING PTY LTD
Second Plaintiff
AND
ACP TECHNICAL SERVICES LTD
First Defendant
ACP TECHNICAL SERVICES (AUSTRALIA) PTY LTD (ACN 072 911 874)
Second Defendant
Catchwords:
Leave to issue a writ out of jurisdiction - Challenge to jurisdiction of the court
Legislation:
Trade Practices Act 1974 s 52
(Page 2)
Result:
Application dismissed
Representation:
Counsel:
First Plaintiff : Mr M L Bennett
Second Plaintiff : Mr M L Bennett
First Defendant : Mr P D Evans
Second Defendant : Mr P D Evans
Solicitors:
First Plaintiff : Bennett & Co
Second Plaintiff : Bennett & Co
First Defendant : Freehill Hollingdale & Page
Second Defendant : Freehill Hollingdale & Page
Case(s) referred to in judgment(s):
Leigh Mardon Pty Ltd v PRC Inc (1993) 44 FCR 88
Case(s) also cited:
Aki Pty Ltd v The People's Insurance Co Ltd (1988) CLR 418
Australian Commercial Research & Development Ltd v ANZ McCaughan Merchant Bank Ltd [19889] 3 All ER 65
Bonython v Commonwealth [1951] AC 201
Contender 1 Ltd v LEP International Pty Ltd (1988) 82 ALR 394
DA Technology Australia Pty Ltd & Anor v Discreet Logig Inc & Anor, unreported; Fed C of A (Gummow J); 10 March 1994
Diamond v Bank of London & Montreal Ltd [1979] QB 333
Distillers Co (Biochemicals) Ltd v Thompson [1971] AC 458
FAI General Insurance Co Ltd v Ocean Marine Mutual Protection and Indemnity Association (1996) 41 NSWLR 117
Freckmann v Pengendar Timur SDN BHD (1989) WAR 62
Gem Plastics v Saltrex Maritime, unreported; SCt of NSW (Rolfe J); 9 June 1995
(Page 3)
Green v Australian Industrial Investment Ltd (1989) 90 ALR 500
Hayel Saeed Anam & Co v Eastern Sea Freighters Pty Ltd (1973) 7 SASR 200
Huddart Parker Ltd v The Ship Mill Hill (1950) 81 CLR 502
Lep International Pty Ltd & Anor v Altanttrafic Express Service Inc & Ors (1987) 10 NSWLR 6140
Lewis Construction v Tichauer [1966] VR 341
Lyndsay Edmonds & Associates Pty Ltd v Quest Sales Pty Ltd (1979) 60 FLR 349
Mendelson-Zeller Co Inc v T & C Providores Pty Ltd [1981] 1 NSWLR 366
Oceanic Sun Line Special Shipping Co Incorporated v Fay (1988) 62 ALJR 389
Re United Railways of the Havana & Regla Warehouses [1960] 1 Ch 52
Sheldon Pallet Manufacturing Co Pty Ltd v New Zealand Forrest Products Ltd [1975] 1 NSWLR 141
St Pierre v South American Stores (Gath & Chaves) Ltd [1936] 1 KB 382
Sydbank v Bannerton Holdings (1996) 68 FCR 539
The Eider [1893] P 119
Victorian Broadcasting Network Ltd v Whitlam (1980) 42 FLR 256
Vitrovice Horni A Hunti Tezirstvo v Korner [1951] AC 869
Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538
(Page 4)
1 MASTER BREDMEYER: The plaintiffs applied in CIV 1671 of 1999 for leave to serve the writ out of the jurisdiction. The application came on before me ex parte and I granted it on 16 July 1999. The writ was then issued on 22 July 1999 in this action, CIV 1804 of 1999. The present application before me is by the defendants to set aside those previous orders. I heard argument on that and made orders amending par 1(c) of the writ to read "the second defendant" instead of "the defendants", but otherwise dismissed the application. I made an order as to costs and ordered that the action be listed for a status conference. I gave oral reasons at the time and I have now been asked for written reasons. These I now give.
2 I was aware of the exclusive jurisdiction clause in the contract when I made my order on CIV 1671 of 1999. That clause, and the contract of which it forms part, was before me in Thomas' second affidavit. I knew on the authorities that the existence of such a clause is not necessarily fatal to an application for leave to serve a writ out of the jurisdiction.
3 The exclusive jurisdiction clause is found in the standard conditions of sale issued by ACP. Those conditions apply by express reference to the "summary quotation" and here I refer to the offer and acceptance, which was the first contractual document between the parties. It is arguable that those conditions do not apply to the rental agreement.
4 The application for leave to serve the first defendant out of the jurisdiction was justified under O 10 r 1(1)(f) of the Rules of the Supreme Court. The breach of contract occurred in this State. That justifies the first cause of action in the writ. The second cause of action is on a contract made within the jurisdiction between the plaintiff and the second defendant. The third cause of action, as pleaded, is a claim under s 52 of the Trade Practices Act 1974. That is not a claim in tort and, hence, falls outside O 10 r 1(1)(k) re the first defendant.
5 The offer and acceptance and the rental agreement need to be read together as one contract and it is not crystal clear that, in doing that, the standard conditions would apply. That is a matter for the trial Judge. I will assume, for the purposes of this application, that they do apply to both agreements and to both defendants. I accept the law as stated in Leigh Mardon Pty Ltd v PRC Inc (1993) 44 FCR 88 that the parties should be bound by their agreement. Courts should give full weight to the prima facie desirability of holding the plaintiffs to that agreement. The plaintiffs have a heavy onus to satisfy me why it should not be enforced.
(Page 5)
6 The plaintiffs have satisfied me on that heavy onus that this Court has jurisdiction to hear this dispute. Firstly, the second defendant is an Australian company. It is properly sued here. It is desirable that the first and second defendants be sued in the same court. Secondly, one of the representations said to found the s 52 claim was made in Australia, in Perth. It seems only fair not to deprive the plaintiff of this cause of action. Thirdly, the plant is situated here. If independent witnesses need to be called to examine it, they can be found in Perth. Fourthly, the plaintiff has its witnesses here. The defendant has at least one of its witnesses in Australia; namely, Mr Bykiw. Fifthly, this Court is well capable of applying English law.
7 For these reasons, I consider my earlier decision was correct and that it would be unjust to set it aside. This application will be dismissed.
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