Adama New Zealand Limited v Raam Chem Pte Limited
[2020] NZHC 1163
•29 May 2020
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2018-485-961
[2020] NZHC 1163
BETWEEN ADAMA NEW ZEALAND LIMITED
Plaintiff
AND
RAAM CHEM PTE LIMITED
Defendant
AND
FALCON INTERNATIONAL
BIOSCIENCES PRIVATE LIMITED
First third partyARISTO BIO-TECH AND LIFESCIENCE PRIVATE LIMITED
Second third partyJAY LAXMI INDUSTRIES
Third partyORCHID AGRO SYSTEMS
Fourth third partyUPL LIMITED
Fifth third party
Hearing: 18 May 2020 Appearances:
W A Holden and N Cannon for defendant A W Johnson for fifth third party
Z Caughey in attendance in an observational capacity for plaintiff No appearances for first, second, third or fourth third parties
Judgment:
29 May 2020
JUDGMENT OF ASSOCIATE JUDGE JOHNSTON
ADAMA NEW ZEALAND LIMITED v RAAM CHEM PTE LIMITED [2020] NZHC 1163 [29 May 2020]
Introduction
[1] The defendant, Raam Chem Pte Ltd (“Raam”), applies for an order setting aside an appearance under protest to jurisdiction by the fifth third party, UPL Ltd (“UPL”).
[2] The question to be determined is whether Raam’s claim against UPL should be litigated in New Zealand or India. There is much to be said for both jurisdictions. In the end, the issue comes down to an assessment of whether New Zealand is the appropriate forum (forum conveniens).
Background
[3] The plaintiff, Adama New Zealand Ltd (“Adama”), is a New Zealand company. Raam is a Singaporean company. In late 2016 Adama and Raam entered into a contract pursuant to which Adama ordered 50,000 kg of Mancozeb, a fungicide used by horticulturalists to protect against a range of diseases in crops, and commonly used by apple growers.
[4] In early 2017 the Mancozeb was delivered to Adama in New Zealand in four consignments.
[5] During the course of 2017 Adama sold a substantial quantity of the Mancozeb to Horticentre Ltd (Horticentre), another New Zealand company. Horticentre sold the product to various apple growers, who applied it in their orchards.
[6] In its claim, Adama alleges that the Mancozeb was contaminated with a chemical known as Azoxytrobin with the result that it damaged the trees.
[7] The apple growers claimed compensation from Horticentre. Horicentre in turn looked to Adama.
[8] Adama took responsibility for settling the claims and paid out compensation totalling more than $13 m.
[9] In late 2018 Adama commenced this proceeding against Raam alleging breach of contract and related causes of action. Raam is defending the claim.
[10] It turns out, that, quite possibly unbeknown to Adama, behind Raam there was a prodigiously long manufacturing and supply chain.
[11] Raam, which, it will be recalled, is a Singaporean company, ordered the Mancozeb from an Indian company known as Falcon International Biosciences Pte Ltd (“Falcon”). Falcon in turn ordered it from another Indian company known as Aristo Bio-Tec and Lifescience Pte Ltd (“Aristo”). Aristo engaged another Indian concern, Jay Laxmi Industries (“Laxmi”) to manufacture the Mancozeb by blending the necessary ingredients. Aristo supplied the primary chemical component, Mancozeb TC 85%, to Laxmi from its own stock and from additional stock acquired from two other Indian concerns, Orchid Agro Systems (“Orchid”) and UPL. As if this were not complicated enough, it would seem that all or a proportion of the Mancozeb TC 85% that Aristo acquired from Orchid had originally been acquired by Orchid from UPL.
[12] One of the deponents who has sworn an affidavit in opposition to Raam’s application is Mr Amitesh Mishra who is a principal of UPL’s New Delhi solicitors. Mr Mishra exhibits to his affidavit an opinion from Justice V N Khare who is a former Chief Justice of India (one of two former Chief Justices whose opinions on aspects of this matter are in evidence, or, rather, are exhibited to affidavits sworn by others). Justice Khare’s opinion includes a diagram of the manufacturing and supply chain involved which is reproduced below:
[13] In early 2019 Raam commenced third party proceedings citing Falcon, Aristo, Laxmi, Orchid and UPL as first to fifth third parties.
[14] Understandably, given the relatively straight forward nature of its claim against Raam, and that the resolution of this claim would unquestionably be delayed by
Raam’s third party claims, Adama applied for an order striking out or severing those claims.
[15] I heard that application on 14 October 2019. Having explored various options with counsel, in the end, I was able to make an order by consent severing Adama’s claim against Raam from Raam’s third party claims. This approach had advantages for both parties. From Adama’s perspective it could proceed with its claim against Raam unimpeded by Raam’s third party proceedings (Adama’s claim has since been allocated a fixture and is to be heard over two weeks commencing on 3 August 2020). From Raam’s perspective, the approach avoided the necessity of commencing new proceedings.
[16] In his submissions on Raam’s behalf Mr Holden described that company as a “fixer”. By this I understood him to mean that Raam merely facilitated Adama’s acquisition of the Mancozeb. It is common ground that Raam did not handle the product at all. As already said, Aristo was responsible for its preparation, which it engaged Laxmi to undertake. It was also responsible for its packaging and labelling. Falcon arranged shipment.
[17] In its third party claims, Raam says that in those circumstances it could not have been responsible for any contamination, which must therefore have occurred further down the manufacturing and supply chain. At this stage, it does not claim to be able to pinpoint exactly where. Accordingly, it sues all of the entities involved.
[18] Having filed its third party notices and statements of claim, Raam proceeded on the basis that it was entitled to serve these outside the jurisdiction without leave pursuant to r 6.27 of the High Court Rules 2016.
[19] Raam first communicated with the third parties asking whether they were prepared to accept and acknowledge service of the originating documentation in the third party claims against them. These enquiries appear to have been ignored by Falcon, Aristo, Laxmi and Orchid. But UPL accepted service. Raam therefore arranged for service on the other third parties through diplomatic channels. My understanding is that as at the date of the hearing before me the originating
documentation had been served on Laxmi and Orchid (though those entities had not taken any steps in the proceeding), but was still to be served on Falcon and Aristo.
[20] For its part, having accepted service, UPL filed and served the appearance under protest to jurisdiction pursuant to r 5.49 of the High Court Rules that Raam now applies to have set aside.
[21] The Court has the benefit of a considerable amount of affidavit evidence before it. For a start, there is the evidence filed and served by Adama and Raam in connection with the former’s application to set aside or sever the third party proceedings to which I have already referred. In relation to this application, Raam relies also on affidavit evidence sworn by Mr Saurabh Gupta, the company’s General Manager, Ms Caitlin Barclay, a solicitor employed by the firm representing the company in this proceeding and Mr Gautam Khazanchi, a New Delhi advocate. For its part, UPL relies also on affidavits sworn by Mr Suman Dutta, the company’s Vice President, Mr Rohit Kumar, its Global General Counsel, and Mr Amitesh Mishra whose evidence has already been mentioned.
[22] The sole purpose of the affidavits sworn by Messrs Khazanchi for Raam and Mishra for UPL was to exhibit the opinions obtained for those parties by, respectively, Justices Dipak Misra and V N Khare, the two former Chief Justices.
Principles governing Raam’s interlocutory application
[23] Both Mr Holden for Raam and Mr Johnson for UPL took as their starting points r 6.29 of the High Court Rules which provides:
6.29 Court’s discretion whether to assume jurisdiction
(1)If service of process has been effected out of New Zealand without leave, and the court’s jurisdiction is protested under rule 5.49, the court must dismiss the proceeding unless the party effecting service establishes—
(a)that there is—
(i)a good arguable case that the claim falls wholly within 1 or more of the paragraphs of rule 6.27; and
(ii)the court should assume jurisdiction by reason of the matters set out in rule 6.28(5)(b) to (d); or
(b)that, had the party applied for leave under rule 6.28,—
(i)leave would have been granted; and
(ii)it is in the interests of justice that the failure to apply for leave should be excused.
[24] Mr Holden emphasised that in terms of r 6.29(a)(i) all Raam had to establish was a good arguable case that the claim falls within one or more of the paragraphs r 6.27, as opposed to a good arguable case against UPL on the merits. In Wing Hung Printing Co Ltd v Saito Offshore Pty Ltd1 the Court of Appeal explained that for the purposes of taking advantage of r 6.27 and serving proceedings abroad without leave, it is sufficient if at least one cause of action falls within the rule, but that if there is a challenge to New Zealand as the forum for the proceeding, because r 6.29(1)(a)(i) requires that the proceeding fall wholly within r 6.27, any cause of action that does not fall within r 6.27 will be dismissed unless the plaintiff — defendant in the case of third party proceedings — can rely on r 6.29(1)(b) and establish that leave would have been granted pursuant to r 6.28.
[25] Mr Holden submitted that all four causes of action pleaded by Raam against UPL fell within one or more of the categories of cases caught by r 6.27. He made detailed submissions in relation to all causes of action and at least nine paragraphs of the rule. Mr Johnson contended that Raam could not bring all four of its causes of action within the rule.
[26] For reasons that will become obvious, I do not propose to address this issue in any detail.
[27] On the basis of Dobson J’s analysis in Eight Mile Style LLC & Others v The New Zealand National Party & Others,2 I am inclined to the view that Raam may be able to rely on r 6.27(h)(ii). However, in the end, I do not see that there is a significant difference between the analysis called for under sub-paragraphs (a) and (b) of
1 Wing Hung Printing Co Ltd v Saito Offshore Pty Ltd [2011] 1 NZLR 754 at [33].
2 Eight Mile Style LLC and Others v The New Zealand National Party and Others [2015] NZHC 2409 at [23]–[24].
r 6.29(1). The only material difference is that under the latter Raam must establish that its claim has a real and substantial connection with New Zealand (something that would already be determined if the claim fell wholly within r 6.27).
[28]Accordingly, I propose to focus on r 6.28, which provides:
6.28 When allowed with leave
…
(5)The court may grant an application for leave [to serve proceedings outside the jurisdiction] if the applicant establishes that—
(a)the claim has a real and substantial connection with New Zealand, and
(b)there is a serious issue to be tried on the merits; and
(c)New Zealand is the appropriate forum for the trial; and
(d)any other relevant circumstances support an assumption of jurisdiction.
Does the claim have a real and substantial connection with New Zealand?
[29] Adama’s claim against Raam is being litigated here, and the damage which is said to have given rise to, and is the subject of, both Adama’s claim against Raam and Raam’s claim against UPL occurred here.
[30] On the basis of those considerations alone, I am satisfied that Raam’s claim has a real and substantial connection with New Zealand.
Is there a serious issue to be tried?
[31]Obviously, this requires a serious issue as between Raam and UPL.
[32] On Raam’s behalf Mr Holden submitted that such an issue exists. His starting point was that the affidavit evidence relied on by Adama and Raam in connection with the former’s application for an order dismissing or severing the third party claims established a strong prima facie case that the Mancozeb shipped to Adama was contaminated. Mr Johnson did not contend otherwise. He then submitted that as a fixer that had had no “physical contact with the product”, Raam could not have been
responsible for any contamination. He submitted that it followed that one or more of Falcon, Aristo, Laxmi, Orchid or UPL must have been responsible. He took the argument a stage further by suggesting that the most likely points of contamination were either at the start of the manufacturing and supply chain when UPL supplied the Mancozeb TC 85%, or at the blending stage for which Aristo and Laxmi were responsible. On that straightforward basis he contended that a serious issue arose as between Raam and UPL.
[33] On UPL’s behalf, Mr Johnson contended that Raam’s claim against UPL was based on little more than a theory. He pointed to the evidence offered by Mr Dutta relating to UPL’s processing operation directed at demonstrating that the opportunity for contamination was minimal or non-existent and submitted — no doubt correctly
— that there were possibilities other than default on the part of any of the third parties, such as UPL having been supplied with raw materials that were already contaminated.
[34] At this stage the Court is certainly not in a position to embark on any sort of assessment of fault. It is faced with the allegation by Raam that UPL was responsible
— either alone or with others — for any contamination and UPL’s denial of this. It is hard to see how the Court can go beyond that. However, that, it seems to me, is sufficient to raise a serious issue as between Raam and UPL. In short, I am satisfied that the requirements of r 6.28(5)(b) are met.
Is New Zealand the appropriate forum for the trial?
[35] This is the key issue. It is the issue upon which counsel ultimately focussed their attention. It is also this issue which prompted my observation earlier in this judgment that there is much to be said on both sides of the argument. The authorities are clear that New Zealand courts will not lightly subject a foreign national to our jurisdiction,3 and that the ultimate issue is “whether the court is satisfied that there are sufficient grounds for it properly to assume jurisdiction.”4
3 Societé Générale de Paris v Drefus Brothers (1885) 29 Ch D 239.
4 Kuwait Asia Bank EC v National Mutual Life Nominees Ltd (No. 2) [1989] 2 NZLR 50 (CA) at 54; Kuwait Asia Bank EC v National Mutual Life Nominees Ltd [1990] 3 NZCR 513 (PC) at 525.
[36] As Mr Holden began by submitting, under r 6.28(5)(c) it is not necessary for Raam as the party with the onus to establish that New Zealand is “clearly or distinctly” the most appropriate forum.5 Nevertheless the rule requires that the party with the onus must satisfy the Court that New Zealand is the appropriate forum for the trial. That appears to me to introduce a comparative component to the analysis — New Zealand must be demonstrated to be the appropriate forum having regard to any other possible forum or fora.
[37]Mr Holden then focussed on five principal points.
[38] First, he submitted that New Zealand is “the natural forum”. Expanding on this, he emphasised that Adama’s claim against Raam was to be litigated here, and that there was a significant degree of commonality between the factual (though perhaps not so much the legal) issues that would arise in that claim and those that will arise in Raam’s claim against UPL. There is considerable force in this point. I do not regard it as materially diluted by the fact that the trial of Adama’s claim against Raam and the trial of Raam’s claim against UPL have been severed. It is true that whilst Adama’s claim against Raam is primarily focussed on their contractual arrangements, Raam’s claim against UPL is primarily a tortious claim. However, the facts giving rise to Adama’s claim against Raam are also central to Raam’s claims. Any court dealing with either will have to make factual findings as to the background and, that being so, the same jurisdictional forum for both claims would be preferable.
[39] Second, Mr Holden’s emphasised that the triggering events — the application of the Mancozeb and the alleged consequential damage — occurred in New Zealand. This of course was the cause of the loss which is the subject of both Adama’s claim against Raam and Raam’s claim against UPL. In relation to these core matters, the litigation of Adama’s claim against Raam and Raam’s claim against UPL in different jurisdictions raises the prospect of different conclusions.
[40] Third, Mr Holden emphasised that Raam’s primary causes of action are based on New Zealand law. As he submitted, if they were to be litigated in any other
5 Haines v Herd [2015] NZHC 3365 at [76] per Associate Judge Bell.
jurisdiction, the court would have to take evidence as to New Zealand law adding one further layer of complexity.
[41] Fourth, Mr Holden went on to submit that there was no evidence to support the suggestion at paragraph 3.1.2 of UPL’s notice of opposition that negligence and claims for contribution are causes of action in India. Even if that is correct, I don’t regard it as a strong point as it would surprise me if New Zealand and Indian law were materially dissimilar in this area. Certainly neither Justice Misra nor Justice Khare suggested that this was so.
[42] Fifth and finally, Mr Holden submitted that in the event of Adama’s claim proceeding in New Zealand and Raam’s third party claims proceeding in India, Raam would be faced with the practical difficulty of having to re-establish the facts that entitled the apple growers and Horticentre to recover damages through witnesses over whom it has next to no control and who may well be hostile. This, as Mr Holden submitted, was a factor which appears to have weighed heavily with Colman J in Citi-March Ltd and Another v Neptune Orient Lines Ltd and Others.6
[43] On UPL’s behalf Mr Johnson submitted that New Zealand was not the appropriate forum for Raam’s claim against UPL, which has no connection with this country.
[44] Mr Johnson referred me to the commentary in Laws of New Zealand,7 which helpfully identifies a series of considerations to which the courts have had regard in determining this issue, and marshalled his argument under those headings.
Convenience and cost
[45] As between Raam and UPL, one party is going to have to litigate in a foreign jurisdiction, and that party will no doubt be inconvenienced. That is inevitable. It is also the case in every cross-border dispute.
6 Citi-March Ltd and Another v Neptune Orient Lines Ltd and Others [1996] WLR 1367 (QB) at 78 and 79.
7 The Laws of New Zealand Conflict of Laws (online ed, LexisNexis) at 30.
[46] As to cost, Mr Johnson drew my attention to the opinion of Justice Khare who has estimated that the cost to UPL of defending the claim against it in New Zealand would be between $2 m and $3.5 m, whereas the cost in India would be between
$0.5 m and $1 m. It is clear from his Honour’s narrative that the New Zealand figures were supplied to him. What is not clear is how these were arrived at in the first place. The estimate of the cost of defending this claim in New Zealand is surprising to say the very least. Focussing exclusively on Raam’s claim against UPL, and presuming that UPL has described the essential components of its case in its affidavit evidence for the purposes of responding to the current application, I would not expect the issues as between Raam and UPL to occupy more than three days, and I find it impossible to imagine that the costs of either party would approach even the lower end of this estimate ($2 m).
[47] In relation to this issue, Mr Johnson invited the Court to have regard to the interests of Falcon, Aristo, Laxmi and Orchid as well as UPL. I am not persuaded that it would be appropriate to do so. At this stage, the Court has no indication of the position that will be taken by any of those parties. It seems at least conceivable that one or more of them, and perhaps all of them, may choose not to enter a defence, in which case their interests are irrelevant to the determination of the issue before the Court today.
[48] In the end, I regard issues of convenience and cost as between Raam and UPL as neutral.
Location of witnesses and documentation
[49] Given the nature of Raam’s claim against UPL, I expect that many of the witnesses who will be able to give relevant evidence and the important documentation are likely to be in India.
[50] However, in this day and age, it appears to me that the worst consequences of this may well be able to be avoided by a proper level of cooperation between the parties and their advisers and the judicious use of technology. It is an everyday occurrence in New Zealand courts that witnesses based abroad give their evidence by AVL, and the New Zealand courts are comparatively well set up to accommodate this. There is no
evidence as to whether the same is the case in India. Documentation is invariably exchanged electronically so that distance is not an issue. Again, I regard this issue as a comparatively neutral one.
Raam’s Indian proceedings
[51] Raam has already commenced proceedings against the third parties in India so as to protect its position against the expiry of any limitation periods. Mr Johnson identified this as significant and said that it was UPL’s understanding that in those proceedings comparable causes of action were pleaded. For present purposes, I make the same assumption.
[52] I accept that this goes to reinforce the fact that, all other things being equal, Raam’s claim against UPL could be litigated either in New Zealand or in India.
[53] But, in the end, that adds little to the analysis. It is for that very reason that the Court is obliged to make an assessment of whether this country is the convenient forum for the litigation.
[54]I regard this as a neutral factor.
Whether all relevant parties are subject to New Zealand jurisdiction
[55] Adama and Raam are most certainly subject to New Zealand jurisdiction. Adama is a local company. Raam might be said to have been carrying on business here, and has, in any event, submitted to New Zealand jurisdiction.
[56] In relation to this issue too, Mr Johnson invited the Court to consider the positions of all of the third parties. For the reasons already explained, I decline to do so.
[57] There is a sense in which this issue simply begs the question. If this Court asserts jurisdiction on the basis that New Zealand is the appropriate forum for Raam’s claim against UPL, then UPL will be subject to the jurisdiction. The commentary in Laws of New Zealand certainly identifies this as a proper matter to which the Court
should have regard. But it appears to me that it can only be relevant in cases where the party who is resisting New Zealand as the most appropriate forum is already subject to New Zealand jurisdiction, for example because it carries on business here.
[58] In the end, my conclusion is that this is not a factor that can influence the outcome of Raam’s application.
The governing law
[59] In relation to this issue Mr Johnson’s submission was essentially that both New Zealand and Indian law provided broadly comparable bases for Raam’s claim against UPL. On the strength of the opinions offered by the two former Chief Justices, I accept that.
[60] But once again, all that means is that in terms of the legal bases for Raam’s claim there is a neutrality as between New Zealand and India as venues.
The parties’ agreement
[61] The court will always have regard to any agreement between the parties as to jurisdiction — both as to venue and as to the applicable law.
[62]However, this is not a relevant consideration in the present case.
The strength of Raam’s case
[63] Under this heading, Mr Johnson repeated his earlier submission to the effect that Raam’s case is based on the proposition that it cannot be responsible for any contamination of the product and therefore that it must have occurred further down the manufacturing and supply chain, and that its claim, as against any one of the members of that chain cannot be regarded as strong.
[64] There is something in this. However, the same issue would arise irrespective of whether New Zealand or India was the forum.
[65] Again, I do not propose to attempt to assess the evidence in order to attribute fault.
[66] This point does not appear to me to be an especially telling one for a determination as to the appropriate forum.
Enforcement
[67] As Mr Johnson submitted, given that UPL is not registered and has no presence in this country, if Raam were to secure a judgment against the company, Raam would be obliged to go to India to enforce that judgment. Justices Misra and Khare express different views as to the enforceability of any judgment. Justice Misra suggests that any New Zealand judgment would be enforceable, though his Honour does not go into detail in explaining the basis for his conclusion. Justice Khare on the other hand suggests that a judgment would only be enforceable if it complied with the requirements of s 13 of India’s Code of Civil Procedure 1908. These include that the judgment is on the merits with the result that a default judgment would not be enforceable. For no other reason than that Justice Khare’s opinion accords with my understanding of New Zealand law, which I expect is similar to Indian law in this regard, I am inclined to prefer his Honour’s view. Of course it is only if UPL does not submit to the jurisdiction that the enforceability of a New Zealand judgment will become questionable. Furthermore, there is a sense in which it is for Raam to determine whether to assume this risk.
[68] This point probably counts against the New Zealand courts asserting jurisdiction, but by a fine margin.
Whether the protest is a tactical one
[69] There is a sense in which the decisions parties take in relation to the conduct of litigation are necessarily tactical. I suspect that the real point here is that if a defendant or third party is seen to be objecting to jurisdiction, not because there is any proper grounds for such a protest, but because that is the most effective way that it can de-rail or delay the claim, then the courts will give less weight to their protest.
[70] I accept that the appearance under protest to jurisdiction filed in response to Raam’s claim by UPL in this proceeding is a genuine one, and made for appropriate reasons.
The procedural advantages of one jurisdiction over another
[71] A starting point here may be to recognise there is likely to be a degree of home advantage for one party or the other in any event.
[72] Although I would not pretend to any familiarity with the Indian Code of Civil Procedure, I have compared relevant aspects of it with the High Court Rules. The two share core characteristics (as they well might, both having their roots in English civil procedure). In the end, both are directed at achieving the expeditious and fair disposal of litigation, and I am not prepared to accept that either regime will provide one party with major procedural advantages. This point in neutral.
Longbeach Holdings Ltd
[73] In the course of his submissions Mr Holden referred me to the Court of Appeal’s judgment in Longbeach Holdings Ltd v Bhanabhai and Co Ltd.8 That case involved a contractual claim between Longbeach, a New Zealand company, and Bhanabhai, a Fiji company. The contract was for the manufacture of clothing, and was held to have been entered into in New Zealand. But the alleged breach or breaches were said to have taken place in Fiji. A question arose as to the appropriate forum for the disposal of the litigation. Here is how the Court of Appeal dealt with that issue:
The Judge emphasised the Fijian context in which the contract was made (as he had held) and carried out. Our conclusion that it was made in New Zealand does not significantly affect the balance. On the other hand, the fact of performance of the contract in Fiji is of no particular relevance to Longbeach’s claim. The breaches, if there were any, occurred there, but their consequences were felt entirely in New Zealand. It was here that the defects are said to have been discovered, and it was here that Longbeach says it suffered its damage in sales to retailers and in loss of goodwill. It is really a New Zealand centred case. As the Judge himself said, in the passage we have already quoted, the case has a link or connection with New Zealand just as much as if it were to be part performed, or was breached here. Indeed we would go further, and say that New Zealand is the natural forum, in the sense used in The Spiliada at p 856 of that with which it has the most real and substantial connection.
8 Longbeach Holdings Ltd v Bhanabhai and Co Ltd [1994] 2 NZLR 28 at 36 and 37.
And certainly it cannot be said that there is a more real and substantial connection with Fiji.
The practical implications of this are important. To prove its damages Longbeach will need the evidence of retailers and others in various parts of this country, all people over whom it has no control. It will be dependent on their goodwill — which it claims in part to have lost — to bring them to Fiji. Bhanabhai on the other hand will doubtless be looking to its quality control staff to provide the evidence it wishes to adduce.
Fraser J does not appear to have given weight to this very significant consideration, instead treating performance in Fiji as the principal factor. That being so, we consider that we are entitled to look at the matter afresh. In doing that, we recognise the desirability of disposing of all disputes in the one hearing. But we are not persuaded that disputes between Bhanabhai and its subcontractors should be used to disadvantage Longbeach. The quality of the goods can doubtless be established by the objective evidence of Longbeach’s customers and by production of the very garments. Mr Bhanabhai has deposed that his company employed quality controllers whose duties included the inspection of garments manufactured by subcontractors. If Longbeach establishes that garments were defective, any attempt by Bhanbhai to pass liability on to its subcontractors will no doubt be met with the contention that they were approved by Bhanabhai’s own responsible staff. That could well become a significant feature of the trial, and yet is of no concern at all to Longbeach. Mr Wylie informed us that Bhanabhai wishes to join the shippers too; but we cannot see the relevance of that, in view of the nature of the C & F contract, under which Bhanabhai’s responsibilities were discharged on delivery to the shipper. Mr Wylie told us too that Bhanabhai has commenced proceedings against Longbeach to recover moneys allegedly owing for garments supplied. Presumably the same issues arise as in the present action.
Mr Wylie submitted that the new proceedings are relevant to venue, but we do not see how that can be so, for they were commenced almost two and a half years later.
As we see the case, convenience to the parties favours a New Zealand venue; the case has a decided New Zealand connection; Longbeach has properly commenced the action here; and Bhanabhai has therefore not satisfied the onus of showing that Fiji is the forum conveniens.
(Footnotes omitted)
[74] It appears to me that a similar analysis applies equally in this case. The only material differences between the cases are first that there is no contractual nexus between Raam and UPL, which tends to weaken the argument for New Zealand as the appropriate forum, and the fact that this is a third party claim in litigation in which the principal claim — as between Adama and Raam — is to be litigated in New Zealand, which tends to strengthen the argument for New Zealand as the appropriate forum.
Are there any other relevant circumstances?
[75]Rule 6.28(5)(d) requires the court to consider any other relevant circumstances.
[76] In my view, there are no relevant matters that have not been covered in the above analysis. Certainly counsel did not raise any such matters in argument.
Discussion
[77] It will be evident from the above that in terms of r 6.28(5)(c) the considerations that arise in relation to the forum conveniens issue are finely balanced.
[78] In the end, I have reached the view that New Zealand is the appropriate forum for the trial of Raam’s claim against UPL. The considerations that have influenced me in reaching that conclusion are these:
(a)The damage in respect of which both Adama and Raam seek recovery occurred in New Zealand.
(b)Adama’s claim against Raam is to be litigated in New Zealand, and Raam’s claim against UPL is a third party claim.
(c)Core factual aspects of Adama’s claim pertain to the damage or loss which is the subject matter of that claim as well as Raam’s claim will have to be determined. Ideally, these would be determined by one court in one trial. This is not to happen here because Adama’s claim has been severed from Raam’s. Nevertheless, consistency remains important, and in my view consistency is more likely to be achieved if the two aspects of the claim are litigated in the same jurisdiction.
(d)Adama’s claim against Raam will be determined in accordance with New Zealand procedural law, and consistency suggests that Raam’s claim against UPL should be determined on the same basis.
(e)If this Court were to order that Raam’s claim against UPL should be determined in India, then the practical difficulty for Raam will be that
it will have to re-establish the core factual considerations already referred to in India. This will necessitate it in calling evidence from New Zealand-based witnesses over whom it has little influence and may in the end mean from a practical perspective that it is deprived of the opportunity to prove its case.
(f)In terms of overall efficiency and expediting the resolution of the entire dispute (by which I mean to refer both to Adama’s claim against Raam and Raam’s claim against UPL), I have been influenced by the opinion of Justice Misra which, without going into great detail, tends to suggest that the matter will be dealt with more expeditiously in New Zealand than in India.
Conclusion
[79] For those reasons, I make the order sought by Raam setting aside UPL’s appearance under protest to jurisdiction. UPL is to file and serve a statement of defence to the claim within 30 working days of the date of this judgment.
[80] I reserve costs, not having heard from counsel in relation to these. If counsel are unable to settle costs, as I would expect them to do, they may come back to me by memorandum in the usual way.
Associate Judge Johnston
Solicitors:
Wotton + Kearney, Wellington for Defendant/Applicant Martelli McKegg, Auckland for Fifth Third Party/Respondent
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