Bomac Laboratories Limited v Life Medicals (MSDN BHD) HC Auckland CIV 2010-404-004654

[2011] NZHC 849

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2010-404-004654

BETWEEN  BOMAC LABORATORIES LIMITED Plaintiff/Respondent

ANDLIFE MEDICALS (MSDN BHD) Defendant/Applicant

Hearing:         14 March 2011

Counsel:         C R Langstone for plaintiff/respondent

A J Sherlock for defendant/applicant

Judgment:      5 August 2011 at 9:30 AM

JUDGMENT OF ASSOCIATE JUDGE ABBOTT

This judgment was delivered by me on 5 August 2011 at 9:30am,

pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Jones Fee, PO Box 1801, Auckland 1140 for plaintiff/respondent
Hesketh Henry, Private Bag 92093, Auckland 1142 for defendant/applicant

Case Officer:      [email protected]

BOMAC LABORATORIES LIMITED V LIFE MEDICALS (MSDN BHD) HC AK CIV 2010-404-004654 5

August 2011

TABLE OF CONTENTS

Paragraph

Background  [1] Principles for forum non conveniens  [11] Is a Malaysian court the appropriate forum?  [15]

Ability of Malaysian court to grant relief  [16] Connection generally  [18] Relative cost and convenience  [22] Location and availability of documents and witnesses  [24] Governing law  [30] Strength of plaintiff ‟s case  [33] Enforcement of any judgment  [34] Is the application to gain tactical advantage?  [36] Procedural advantages in either jurisdiction  [38] Costs already incurred  [39]

Conclusion  [41]

Decision  [45]

[1]      This proceeding concerns a dispute over PVC bags and tubes supplied by the defendant (Life Medicals) to the plaintiff (Bomac).  Bomac is a manufacturer of farm products, including medical solutions which it markets in plastic bags.  It alleges that the bags and tubes supplied by Life Medicals were not made from material specified in the contract and were faulty.  It alleges that Life Medicals is in breach of terms implied under the Sale of Goods Act 1908.  It sues to recover losses it has suffered as a consequence of its customers rejecting its products due to the faulty bags.

[2]      Life Medicals is a Malaysian company.  It manufactured the bags and tubes in Malaysia.  It has applied under r 15.1 of the High Court Rules, and the principles relating to forum non conveniens, for a stay of this proceeding.  It contends that it is more appropriate, and achieves better overall justice for both parties, for the dispute to be tried in Malaysia.

[3]      Bomac opposes the application.  It contends that the factors which the Court must weigh on this application favour New Zealand as the forum conveniens, and says that Life Medicals has failed to make out a sufficient case for stay.

Background

[4]      Life Medicals is both an original equipment and a contract manufacturer and supplier of products for medical and pharmaceutical companies.   It operates from offices and a factory in Malaysia.   One of its products is a medical grade PVC collapsible bag with administration tubes attached.  It has supplied Bomac with these bags and tubes since 1997.

[5]      Bomac is a New Zealand based company which carries on business as a manufacturer  of  animal  health  products,  which  it  markets  to  veterinarians  and farmers.   Since 1997, it has used the PVC bags and tubes supplied to it by Life Medicals to package and administer some of its own products (medical solutions). As well as supplying to customers in New Zealand, it supplies its products to independent distributors in approximately 60 countries around the world.

[6]      There was no formal contract between the parties.   Sample documentation produced by the parties evidences the following trading pattern:

(a)      The type of plastic to be used in the bags was established at the time of the first purchase in 1997 (this appears to have been negotiated by fax correspondence between Life Medicals’ managing director at that time, Mr Shee, and Bomac’s director, Mr McLaren).

(b)After the first purchase, Bomac periodically sent purchase orders to Life Medicals.  Bomac would state in its purchase order the product and quantity required, and specify its labelling or tube insert requirements.  The purchase order would either stipulate a price for supply (by reference to prior orders or a preceding discussion) or request confirmation of price.

(c)      Life Medicals would confirm the price and advise any further terms of supply in a return fax.

(d)Bomac  would  advise,  either  at  the  time  of the  purchase  order  or subsequently, whether the goods were to be shipped by air or by sea (depending on the urgency with which they were needed).   If they were by sea,  Life Medicals  delivered  the goods  to Port  Klang in Malaysia, where they were shipped in accordance with Bomac’s instructions.  In most cases the goods were shipped to New Zealand but, on a few occasions, Bomac gave instructions to ship them to a destination in the United States.

(e)      The initial order was negotiated in Malaysian ringgit, exclusive of freight from the Malaysian port (FOB).  Later orders were priced in New Zealand dollars, inclusive of freight and insurance (CIF).

(f)       Bomac paid for the bags by direct credit (electronic transfer) into Life

Medicals’ bank account in Malaysia.

[7]      These arrangements generally worked satisfactorily until the delivery in 2007 which has given rise to this dispute.  Bomac says that in about July 2007, it started receiving complaints from customers that the bags were leaking.  It investigated the problem, and  found that the bags  were made  from different plastic than it had stipulated at the start of the trading arrangement.  It says that the plastic used in this last order was inferior, leading to less elasticity and distortion of attached tubes, pinhole leaks in the bags and a loss of sterility.   It says that a large number of its products were returned from dissatisfied customers and, as a consequence of the defective bags, it was forced to dispose of its stock of bags (some of them filled with its own product) and a stock of manufactured solutions that could not be transferred into the defective bags.

[8]      Bomac issued this proceeding against Life Medicals in July 2010 and served Life Medicals in Malaysia.  It pleads three causes of action.  First, it alleges that it was an express term of the contract that the bags and tubes were to be manufactured from specific raw material (referred to as Solmed MP#3250 and Solmed MT#3260) and that Life Medicals breached the agreement by manufacturing from an inferior, re-used material.   Secondly, and thirdly, Bomac alleges that Life Medicals is in

breach of terms implied under ss 15 and 16 of the Sale of Goods Act 1908 (respectively), namely that the goods correspond with their description, and be reasonably fit for their purpose and of merchantable quality.  Bomac seeks damages for breach under each cause of action (the amount has still to be quantified but it is estimated at NZD$525,000), together with interest and costs.

[9]      Life Medicals responded by filing the application for stay that is now before the Court, contending that the dispute would be more suitably tried in Malaysia and relying on the doctrine of forum non conveniens.

[10]     Life Medicals accepts that this Court has jurisdiction and that Bomac did not require leave to serve it in Malaysia.

Principles for forum non conveniens

[11]     It is common ground that the Court has power under its inherent jurisdiction to grant a stay of a proceeding where New Zealand is not the forum conveniens.1

The principles applying to the doctrine of forum non conveniens were stated authoritatively by the House of Lords in Spiliada Maritime Corp v Cansulex Ltd.2   It has been adopted and followed in New Zealand.3    The House of Lords stated the basic principle:4

The basic principle is that a stay will only be granted on the ground of forum non conveniens where the court is satisfied that there is some other available forum, having competent jurisdiction, which is the appropriate forum for the trial of the action, i.e. in which the case may be tried more suitably for the interests of all the parties and the ends of justice.

[12]     The following additional principles were also stated (and were summarised by this Court in Oilseed)5:

1      Crane Accessories Ltd v Lim Swee Hee [1989] 1 NZLR 221 (HC).

2      Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460 (HL).

3      See particularly Oilseed Products (NZ) Ltd v H E Burton Ltd (1987) 1 PRNZ 313 (HC); McConnell Dowell Constructors Ltd v Lloyd‟s Syndicate 396 [1988] 2 NZLR 257 (CA); and recently in Wing Hung Printing Co Ltd v Saito Offshore Pty Ltd [2010] NZCA 502, [2011]

1 NZLR 754.

4      Spiliada, above n 2, at 476.

5      Oilseed, above n 3, at 316-317.

(a)      The defendant seeking the stay has the onus of persuading the Court to exercise its discretion.

(b)This requires the defendant to show not just that the country in which the proceedings have been issued is not the natural or appropriate forum, but also that there is another available forum which is clearly or distinctly more appropriate.

(c)      The natural or appropriate forum is that with which the action has the most real and substantial connection.  In assessing this, the Court will have regard to connecting factors such as relative convenience and expense (particularly in relation to witnesses), the governing law, and the places where the parties reside and carry on business.  In this case the intended destination of the bags (New Zealand) is a factor which supports New Zealand as the governing law.

(d)The Court will ordinarily refuse a stay if it concludes that there is no other available forum that is clearly more appropriate for the trial.

(e)      The Court will ordinarily grant a stay if it concludes that there is another available forum which prima facie is clearly more appropriate for the trial, but still has a discretion not to grant the stay in the interests of justice.  In this event, it will be for the plaintiff to persuade the Court that the stay should not be granted, and the Court can take into account all the circumstances of the case.

[13]     The  Courts  have  further  recognised  a  number  of  factors  which  can  be relevant to determining the appropriate forum.  These include (as applicable to the present case):6

(a)       The foreign court must be able to grant the relief sought.

(b)      The relative cost and convenience of proceeding in each jurisdiction.

6      Laws of New Zealand Conflict of Laws: Jurisdiction and Foreign Judgments (online ed) at

[29]-[30].

(c)       The location and availability of documents and witnesses.

(d)The  governing  law  (although  this  carries  less  weight  where  the relevant laws are similar in each jurisdiction).

(e)       The strength of the plaintiff’s case.

(f)       Where any judgment will be enforced.

(g)Whether  the  application  for  stay  is  brought  to  gain  a  tactical advantage  and  not  because  trial  in  the  other  forum  is  genuinely desired.

(h)Whether   there   are   any   procedural   advantages   in   one   of   the jurisdictions.

[14]     No one factor is determinative.  The Court will take all relevant factors into account in the exercise of its discretion.7

Is a Malaysian court the appropriate forum?

[15]     As already mentioned, Life Medicals does not dispute the fact that this Court has jurisdiction to determine this dispute and was entitled to serve it in Malaysia without seeking leave of the Court.  Having regard to the Spiliada principles, Life Medicals must therefore persuade this Court that there are connecting factors which make  a  Malaysian  court  clearly  more  appropriate  for  the  determination  of  the dispute.   This must take into account the interests of both parties and the ends of justice.  Only if it finds that a Malaysian court is the more appropriate forum does the Court need to decide whether there are any circumstances which would make it unjust to grant the stay.  I turn now to consider the various factors advanced in this

case.

7      Primesite Outdoor Advertising Ltd v City Clock (Australia) Ltd (1991) 4 PRNZ 472 (HC).

Ability of Malaysian court to grant relief sought

[16]     There does not appear to be any question that a Malaysian court would be able to award damages for breach of contract.  The solicitor acting for Life Medicals has given an affidavit that Malaysia is a Commonwealth country with a common law jurisdiction.  He has produced a copy of s 74 of the Malaysian Contracts Act 1950 which gives a party to a contract an entitlement to compensation for any loss or damage arising directly from a breach of the contract.  He has also produced copies of ss 15 and 16 of Malaysia’s Sale of Goods Act 1957, which are identical to ss 15 and 16 of New Zealand Sale of Goods Act 1908 (on which Bomac’s second and third causes of action are based).

[17]     Counsel for Bomac conceded that the laws were similar, and that the right to damages appeared to be available, but submitted that Life Medicals had not put any evidence before the Court as to a Malaysian court’s entitlement to award interest or costs.  Whilst I accept that, there is no evidence to that effect, I anticipate that that relief would be available in Malaysia as a common law jurisdiction.  I do not regard this as a reason to dismiss Life Medicals’ application.

Connection generally

[18]     Counsel for Life Medicals sought to portray his client as a relatively small domestic manufacturer that would be at a disadvantage in defending the claim in New Zealand compared to Bomac, which he painted as a large organisation with an international presence.  He argued that it would be far easier for Bomac to cope with a trial in Malaysia than for Life Medicals to cope with a trial in New Zealand.  He relied on comments in English cases,8 to the effect that it was generally undesirable to subject a foreigner who owes no allegiance to England, to the jurisdiction of the English courts.  He submitted that Life Medicals had no allegiance nor connection to

New Zealand (other than the contract with Bomac which no longer exists).

8      Société Générale de Paris v Dreyfus Bros (1885) 29 Ch D 239 (Ch) at 242; Tyne Improvement

Commissioners v Armement Anversois SA (“The Brabo”) [1949] AC 326 (HL).

[19]     The comments made by the English courts do not assist in this case.  They were made in cases where leave is required to serve outside the jurisdiction.9    Life Medicals accept that the New Zealand court has jurisdiction.   This factor was identified in Spiliada10as the underlying rationale for placing the onus of showing a clearly more appropriate forum on a defendant seeking stay.

[20]     Furthermore,  I do not accept counsel’s “David  and Goliath” comparison. Whilst I accept that Life Medicals may have had no business in New Zealand other than the arrangement with Bomac, it nevertheless had that trading arrangement for some 10 years and it acknowledges that it also has off-shore trading arrangements with  customers  in Taiwan.    On  the  other  side,  Bomac  has  given  evidence  that although  it  sends  products  to  some  60  countries  worldwide, it  does  so  through independent distributors, rather than having a presence itself in those  countries. More significantly, there is no evidence that Bomac has any presence in Malaysia.

[21]     Counsel for Life Medicals also argued that a factor in favour of Malaysia was that Bomac required delivery to a customer in the United States on one occasion.11   I do not regard that as a significant matter.  The majority of the supply was to New Zealand.  The defective supply was all to New Zealand and, if there had been any supply to the United States, the customer would have had recourse to Bomac in New Zealand.

Relative cost and convenience

[22]     Life Medicals’ solicitor, Mr Yee, has given evidence as to the cost of trial (and enforcement) in Malaysia.  His evidence of 50,000 Malaysian ringgit as the cost of the trial suggests that it would be significantly cheaper to conduct the trial in Malaysia.  However, I accept the submission of counsel for Bomac that Mr Yee has given no evidence as to what would be covered by that cost (what length of trial it assumes, whether it includes expert’s costs, whether it includes all interlocutory procedures etcetera).  I find that the evidence is too general to be helpful.  He has

also given evidence as to costs of enforcement.   I do not consider that to be a

9      See Spiliada, above n2, at 481.

10     Ibid.

11     Relying on Oilseed, above n 3.

relevant consideration as Bomac would have to incur those in any event, whether the trial was conducted in New Zealand or Malaysia.

[23]     There can be no doubt that it will be inconvenient for one or other of the parties to have to attend trial, whether it is in New Zealand or Malaysia.  The critical point, however, is that it is for Life Medicals to establish that Malaysia is clearly more appropriate.  I do not consider that cost and convenience generally are a factor in favour of one forum or the other.

Location and availability of documents and witnesses

[24]     Again, counsel for Life Medicals focused on his own client’s position in having to defend a trial in New Zealand rather than looking at the comparative positions.  The same point arises as with cost and convenience generally, that it will be more difficult for one party rather than the other, whichever is the appropriate forum.  The starting point, again, is that the New Zealand court has jurisdiction, and it is for Life Medicals to show some greater connection to Malaysia as the only alternative forum.

[25]     Counsel for Life Medicals submitted that there would be significant cost and inconvenience to it in having to bring its witnesses and documents to New Zealand. He supported this by referring to all the directors, shareholders and employees of Life Medicals being resident in Malaysia.   However, Life Medicals has not established an evidential basis for contending that there will be such a disparity between the two available venues that Malaysia must be the appropriate one.

[26]     Life Medicals is still to file a statement of defence, and its witnesses have not said what it anticipates its defence will be, nor what witnesses it would expect to call, or the general nature of that evidence.

[27]     Counsel for Bomac submitted that this was likely to be an “expert evidence” case in respect of liability (as to whether the bags were made from the specified materials) but otherwise would focus on the defects and the quantum of Bomac’s loss.  In the absence of any detail from Life Medicals as to its case, that appears to be

an appropriate and reasonable assessment.  In light of that, I take the view that this factor favours New Zealand as the appropriate forum:

(a)      Life Medicals has not given any evidence as to the quantity and nature of the relevant documents that it holds and would want to produce, nor of any difficulties sending those documents to New Zealand.  In the absence of any such evidence I take the view that, with the technology available today, it is possible for documents to be copied electronically and made available relatively easily, in whichever jurisdiction the trial is held.

(b)There may be need for some brief evidence as to the contractual arrangements, but again I do not see that as requiring more than one or two witnesses, and it can be anticipated that they would be officers or employees of Life Medicals and there would be no difficulty giving this evidence in New Zealand.

(c)      It can be assumed that Life Medicals will also have employees give evidence as to the materials that were used in the manufacture of the bag, but that should be a relatively straightforward matter, and within Life Medicals’ control.

(d)There is no evidence to show that the engagement of an expert will be any more difficult or expensive for a trial in New Zealand than it will be for a trial in Malaysia.

(e)      Bomac  will  also  need  to  call  evidence  as  to  the  contractual arrangements but again that is not a significant factor.   However, it will need to give evidence of the defects and of its losses – its counsel refers to evidence possibly from its director, Mr McLaren and from employees (as to sales of product using Life Medicals’ bag and receipt of complaints of defective product), from veterinarians and farmers as to the defective product, and from New Zealand based insurance assessors as well as its expert.  I accept the submission of counsel for

Bomac that it will be a substantial undertaking for Bomac to call all of this evidence at a trial in Malaysia - certainly far more difficult to arrange and more costly than if the trial were to be conducted in New Zealand.

[28]     The likelihood that Bomac may have to call evidence from veterinarians and farmers who purchased its product, as to the defects experienced and the consequences for them, is a particularly significant factor pointing to New Zealand being the more appropriate forum.   They may be willing to  give this evidence voluntarily, but if not they can be required to give that evidence in New Zealand under subpoena.   It will be a far more difficult exercise to give that evidence in Malaysia (whether or not the witnesses are co-operative).   This was a significant factor in the decision of the Court of Appeal to reject a protest to jurisdiction in Club

Mediterranee NZ v Wendell12 (where Club Mediterranee argued that New Caledonia

was the appropriate forum).

[29]     In summary, on the evidence before the Court this factor is reasonably evenly balanced except for the production of witnesses.   It is unlikely that Life Medicals will have the difficulties with its witnesses that Bomac could face in calling veterinarians and farmers whose goodwill may have been lost or who may simply be disinterested.13

Governing law

[30]     The parties have not made an express choice as to the law governing their arrangement.   On the evidence before the Court (which may not be all that could assist on the point) there are arguments both ways as to the governing law:

(a)      It is not clear from the evidence whether the contract was made in Malaysia where Bomac’s orders were received, or in New Zealand upon receipt of Life Medicals’ responding fax (which in some cases

set out the terms of supply for acceptance by Bomac).

12     Club Mediterranee NZ v Wendell [1989] 1 NZLR 216 (CA).

13     This practical factor was accepted as a relevant consideration by the Court of Appeal in Long- beach Holdings Ltd v Bhanabhai & Co Ltd [1994] 2 NZLR 28 (CA) at 36.

(b)The contract appears to have been largely performed in Malaysia: the plastic bags were manufactured there and delivered to a shipper at a Malaysian port (the first order appears to have been on FOB terms whilst later orders were on CIF terms, but either way risk passed to Bomac on loading).  Bomac relies on the fact that payment was made electronically, by instruction given in New Zealand, and for amounts in New Zealand dollars, but accepts that it was to Life Medicals’ bank account in Malaysia.

(c)     It is arguable that breach occurred in Malaysia (where it was manufactured with the defects and the defective goods were delivered to the shipper), but it is also arguable that this breach was latent until Bomac had opportunity to inspect the goods (at the earliest) or when the bags started to leak.

(d)The intended destination of the goods (New Zealand) is a factor which supports New Zealand as the governing law.  Even if breach was held to have occurred on delivery to the port in Malaysia, the consequences were felt entirely in New Zealand.14

(e)      The parties’ residence and place of business can be a factor in determining the proper law.   It is a neutral factor in this case (one counter-balances the other).

[31]     I do not consider it necessary to make a definitive finding as to governing law for the purpose of this application.   The laws of New Zealand and Malaysia are sufficiently similar that there would not be any great expense either in proving Malaysian law in a New Zealand court, or proving New Zealand law for a Malaysian court.  This Court can retain jurisdiction even if a transaction is governed by foreign

law.15

14     This was accepted as a relevant factor in Longbeach Holdings Ltd v Bhanabhai & Co Ltd

15     Udovenko v The Ship: „MV Pelican‟ HC Nelson CIV-2009-442-333514, 8 November 2010, at

[23]-[24].

[32]     Given the similarity between the laws in the two jurisdictions, the claim can be adequately and fairly pursued in this Court by reference to Malaysian law.16   I do not regard governing law as a significant factor one way or the other.

Strength of plaintiff ‟s case

[33]     This proceeding is at a very early stage, and for that reason little weight should be given to this factor.   However, I take into account that Bomac has demonstrated (in the affidavit of its director, Mr McLaren) a clear prima facie case, whereas Life Medicals has given no evidence at all as to the defence it will be advancing (notwithstanding that it has filed three affidavits in support of its application).

Enforcement of any judgment

[34]     Counsel for Life Medicals submitted that the fact that the judgment would have to be enforced in Malaysia (Life Medicals has no assets in this country) was a factor in favour of Malaysia as the more appropriate forum.17  Counsel for Bomac accepted that any judgment would have to be enforced in Malaysia, but submitted that it was not a significant factor as it would have to do so regardless of whether the proceedings were heard in New Zealand or Malaysia.

[35]     I accept that enforcement could be a factor in determining the appropriate forum for a claim, but in this case I adopt the approach taken by this Court in Baxter v RMC Group plc18: it is not a significant matter as Bomac will be the party to take that enforcement action (and incur the risks and costs of doing so).

Is the application brought to gain any tactical advantage?

[36]     Counsel   for  Bomac  submitted   that   Life  Medicals   was   bringing   this application to try to force Bomac into litigation in a multi-lingual country which

16     See Society of Lloyd‟s & Oxford Members‟ Agency Ltd v Hyslop [1993] 3 NZLR 135 (CA) at 144 where Richardson J noted the reverse position that the overseas court in England was “well used to interpreting New Zealand legislation”.

17     As was found in Crane Accessories Ltd, above n 2.

18 Baxter v RMC Group plc [2003] 1 NZLR 304 (HC) at [255].

would be to Life Medicals’ advantage and its disadvantage.  He argued that it was apparent from Life Medicals’ affidavits, and the documents exhibited to them, that personnel in Life Medicals are proficient in English.

[37]     There is  no  evidence before the Court  as  to  whether the trial  would  be conducted in English or another language.  In the absence of such evidence I do not regard this as a significant factor either way.

Procedural advantages in either jurisdiction

[38]     There is no evidence before the Court to indicate that there would be any procedural advantage to determining the dispute in Malaysia (I have already referred to, and dismissed for lack of evidence, Life Medicals’ contention that it would be cheaper in Malaysia).  In the absence of any such advantage in Malaysia, it would seem that there is a slight procedural advantage in conducting it in New Zealand in that  the  claim  is  already  under  way  (assuming  in  the  absence  of  any  contrary evidence that it would take a similar amount of time to bring the matter to trial in either jurisdiction). However, I do not regard this as a significant factor.

Costs already incurred

[39]     Counsel for Bomac also submitted that the Court should take into account the costs that the parties have already incurred in this proceeding, and the fact that each party had  New Zealand  lawyers who  now have a substantial  knowledge of the factual and legal issues.  He argued that it would be an unnecessary duplication of resources to move the matter to Malaysia.

[40]     There is no evidence as to the extent of the preparation work undertaken by either party to date.  I am not persuaded that this is a material factor in the absence of such evidence.  There is some merit to the point made by counsel for Life Medicals that if this were to be a factor, a party could gain an advantage over another just by issuing its proceeding (but the point will still depend on the facts of the case).

Conclusion

[41]     The Court must determine the forum in which this case is most suitably tried for the interests of all parties and for the ends of justice.  It is not contested that the New Zealand court has  jurisdiction.   It is for Life Medicals to establish that a Malaysian court is clearly the more natural forum having regard to the connections of the parties and subject matter of the dispute.

[42]     Counsel for Life Medicals argued that Malaysia was the more appropriate forum,  having  regard  principally  to  the  governing  law  of  the  contract  and  the absence of any connection between Life Medicals and New Zealand other than its contract with Bomac.

[43]     For  the  reasons  I have  given,  I do  not  see  that  the  governing  law  is  a significant factor.  What is significant, in my view, is that Life Medicals elected to enter into this contract with Bomac, knowing that its product would be used in New Zealand, and that the consequences of any faulty manufacture would be experienced in New Zealand.  This is a very real connection.   In my view, it tips the scales in favour of New Zealand as the appropriate forum, in large part because, whilst issues as to contractual terms and compliance with those terms can be addressed comparatively fairly in either jurisdiction, it will place Bomac under a substantial disadvantage if evidence of breach and particularly the consequences of breach have to be given in a trial in Malaysia.

[44]     I find that Life Medicals has not discharged its onus of showing that New Zealand is not the forum conveniens and that Malaysia is clearly the appropriate forum for this dispute to be tried in the interests of the parties and for the ends of justice.

Decision

[45]     Life Medicals’ application to stay is dismissed.

[46]     As the successful party, Bomac is entitled to costs.  I see no reason to award costs other than on a scale 2B basis.  If either party wishes to argue for any other basis, that party is to file and serve a memorandum within 10 working days, and any response to that memorandum is to be made within a further 5 working days.   A decision will be made on the basis of memoranda unless there is any matter raised which calls for a brief hearing.

[47]     I make the following timetable orders to progress this proceeding:

(a)       Life  Medicals  is  to  file  and  serve  its  statement  of  defence  by

26 August 2011.

(b)The Registrar is to allocate a first case management conference for the proceeding   at   10:10am   on   31   August   2011   (by   telephone). Memoranda for that conference are to be filed and served by both parties by 29 August 2011.  Those memoranda are to address the usual

matters for consideration at a first case management conference.

Associate Judge Abbott