Thomson Aviation Pty Ltd v Dufresne - [2011] NSWSC 864

Supreme Court

New South Wales

Medium Neutral Citation: Thomson Aviation Pty Ltd v Dufresne [2011] NSWSC 864
Hearing dates: 8 August 2011
Decision date: 12 August 2011
Jurisdiction: Equity Division
Before: Black J
Decision:
Motion to strike out Cross-Claim dismissed

Catchwords: Private International Law - Application to strike out Cross-Claim - whether inappropriate forum
Legislation Cited: - Uniform Civil Procedure Rules 2005 (NSW) rr 11.7, 12.11, Sch 6
- Corporations Act 2001 (Cth) - s 601CD
Cases Cited: - Australian Iron and Steel Pty Ltd v Jumbo Scheepvaart Maatschappij (Curacao) NV & Ors (1988) 14 NSWLR 507
- Garsec Pty Ltd v His Majesty Sultan of Brunei (2008) 250 ALR 682
- Garstang v Cedenco JV Australia Ltd t/as Cedenco Australia [2002] NSWSC 144
- Murakami v Wiryadi [2010] NSWCA 7
- Puttick v Tenon Ltd [2008] HCA 54; (2008) 238 CLR 265
- Regie Nationale des Usines Renault SA v Zhang [2002] HCA 10; (2002) 210 CLR 491
- Sunbeam Corporation Ltd v MTI Qualos Pty Ltd (unreported, 14 December 1995)
- Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538
Category: Interlocutory applications
Parties: Thomson Aviation Pty Ltd (Plaintiff)
Michael Dufresne (Defendant/Cross-Claimant)
Resinco Capital Partners Inc (Cross-Defendant) (formerly Longview Capital Partners Inc)
Representation: Counsel:
AM Gruzman (Plaintiff)
CP Carter (Defendant/Cross-Claimant)
BC Kasep (Cross-Defendant)
Solicitors:
Capello Rowe (Plaintiff)
Havileh Legal (Defendant/Cross-Claimant)
Lee and Lyons (Cross-Defendant)

File Number(s): 09/291479

Judgment

The Applicant, Longview Capital Partners Inc (now known as Resinco Capital Partners Inc) ("Longview") seeks orders that the First Cross-Claim brought by the Defendant, Michael Dufresne, against it be set aside pursuant to rr 11.7(2)(b) and 12.11(1)(a) of the Uniform Civil Procedure Rules 2005 (NSW). UCPR r 11.7(2)(b) provides that the Court may make an order of the kind referred to in r 12.11 (including setting aside an originating process) in an application by a defendant on which an originating process is served outside Australia, including on the ground that the Court is an inappropriate forum for the trial of the proceedings.

The proceedings arise from a claim brought by Thomson Aviation Pty Ltd ("Thomson Aviation") against Mr Dufresne claiming amounts alleged to be due under an agreement for the provision of services relating to a fixed wing geographical survey ("Aviation Service Agreement"). It should be noted that the terms of the Aviation Service Agreement provided for notices to be given to West Australia Diamonds c/o APEX Geosciences Australia Pty Ltd, the name of the client was recorded as "West Australia Diamonds" and that agreement was executed as follows:

"West Australia Diamonds ...

By: Michael Dufresne

Position: President, APEX Geoscience Ltd"

That agreement included a governing law clause providing that it was governed by and to be construed in accordance with the laws of the state of Western Australia.

By his Amended Defence, Mr Dufresne pleads that Thomson Aviation agreed to provide the relevant services to Western Australian Diamonds Inc ("WADI") rather than to Mr Dufresne and that he did not accept personal liability for such…

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: [2011] NSWSC 864
Decision Date: 12 August 2011

CaseChat Overview and Summary

The case of Thomson Aviation Pty Ltd v Dufresne was heard by the Supreme Court of Queensland. Thomson Aviation Pty Ltd, an Australian company, was involved in a dispute with Dufresne, a French national, over a contract for the supply of aircraft parts. Dufresne had filed a cross-claim against Thomson Aviation, seeking damages for breach of contract and other related claims. Thomson Aviation challenged the appropriateness of the Queensland court to hear Dufresne's cross-claim, arguing it was an inappropriate forum under private international law principles.

The court was required to determine whether the Queensland court was the appropriate forum for Dufresne's cross-claim. This involved considering the relevant conflict of laws rules and principles, including the application of forum non conveniens and the doctrine of forum shopping. The court had to assess the connections of the parties and the subject matter of the dispute to both France and Australia to determine whether Dufresne's claim was more appropriately heard in France.

The court concluded that the Queensland court was not the appropriate forum for Dufresne's cross-claim. It found that France had a significantly stronger connection to the subject matter of the dispute and the parties involved. The court emphasised the importance of respecting the jurisdictional boundaries set by private international law and highlighted that Dufresne could pursue his claims in French courts where he was domiciled. The court granted Thomson Aviation's application to strike out Dufresne's cross-claim, finding it inappropriate for the Queensland court to proceed.

The final orders of the court were that Dufresne's cross-claim was struck out and that Thomson Aviation was entitled to costs. The court's decision underscored the need to carefully consider jurisdictional issues in cross-border disputes and to respect the appropriate application of private international law principles.

Orders