Heartland Bank Limited v Internet Business Systems Australia Pty Ltd

[2024] NZHC 234

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-001815

[2024] NZHC 234

BETWEEN

HEARTLAND BANK LIMITED

Plaintiff

AND

INTERNET BUSINESS SYSTEMS AUSTRALIA PTY LTD

Defendant

Hearing:	4 December 2023
Appearances:	R J Hollyman KC and A W McDonald for Plaintiff L C Sizer and C R Tataru for Defendant
Judgment:	20 February 2024

JUDGMENT OF ANDREW J

This judgment was delivered by Justice Andrew on 20 February 2024 at 4.00 pm

pursuant to r 11.5 of the High Court Rules 2016 Registrar / Deputy Registrar

Date …………………………….

HEARTLAND BANK LTD v INTERNET BUSINESS SYSTEMS AUSTRALIA PTY LTD [2024] NZHC 234

[20 February 2024]

Introduction

[1]    The plaintiff, Heartland Bank Ltd,1 is a New Zealand-registered bank. The defendant, Internet Business Systems Australia Pty Ltd (trading as BRYK),2 is an Australian proprietary company with its registered office in Victoria. BRYK specialises in business transformation and IT services.

[2]    In its substantive claim Heartland seeks a declaration of non-liability regarding invoices issued by BRYK to Heartland. The invoices are said to relate to contractual services performed by BRYK to create a new online platform for Heartland’s retail consumer lending business. Heartland also seeks a declaration that the contracts alleged by BRYK as founding those invoices were never entered into by the parties.

[3]    There are parallel proceedings before the Supreme Court of Victoria. Those proceedings were filed after BRYK had issued a letter of demand against Heartland and threatened proceedings in Victoria. In response, and prior to the filing of the Victoria proceedings, Heartland filed these proceedings. In the Victoria proceedings BRYK seeks recovery under contract, estoppel, restitution, misleading or deceptive conduct,3 and unconscionable conduct.4

[4] In the present interlocutory proceedings, BRYK applies under ss 24 and 25 of the Trans-Tasman Proceedings Act 2010,5 to stay Heartland’s substantive proceedings.

[5]    In support of its application for a stay, BRYK says that there is an exclusive jurisdiction clause under the 4 May 2021 agreement entered into between the parties or alternatively, the Supreme Court of Victoria is the more appropriate court to determine the matters in issue between the parties.

[6]The issues I must determine are as follows:

1      Heartland.

2      BRYK.

3      Australian Consumer Law, s 18 (Competition and Consumer Act 2010 (Cth), sch 2).

4      Section 21.

5      TTPA.

(a)Whether the exclusive Victorian jurisdiction clause, under the services agreement dated 4 May 2021 (4 May 2021 agreement), applies to the matters in issue between the parties (requiring a mandatory stay under s 25(1)(a) of the TTPA);

(b)Whether the exclusive New Zealand jurisdiction clause, under Heartland’s request for a proposal for the project dated 17 February 2021 (RFP), applies to the matters in issue between the parties (prohibiting a mandatory stay under s 25(1)(b) of the TTPA);

(c)If neither jurisdiction clause applies, whether the Supreme Court of Victoria has jurisdiction to determine the matters in issue between the parties and is the more appropriate court to determine them (under s 24 of the TTPA).

Factual background

[7]    Heartland engaged BRYK to supply software solutions in New Zealand. In 2019, BRYK provided a wholesale lending software product for managing security in relation to inventory in car dealerships (wholesale project). The wholesale project was successfully delivered to Heartland and remains in use.

[8]    The wholesale project came to be governed by the 4 May 2021 agreement. This service agreement was only executed very shortly before the project’s delivery and implementation. Under that agreement:

(a)The parties recorded their intention to enter into an “enduring relationship” (recital A);

(b)BRYK agreed to “supply Services to [Heartland] as set out in one or more Work Order Requests and as otherwise set out in this Agreement” (cl 3.1);

(i)“Services” was defined “without limitation” to include the Initial Implementation Plan for the wholesale project in sch 2

(which  formed  Work  Order   Request   1,   effective   from  31 October 2020);

(ii)“Work Order Requests” was not defined, nor did the agreement provide any form for them;

(c)The agreement was to be governed by Victorian law (cl 19.1);

(d)The parties “irrevocably submit[ted] to the exclusive jurisdiction of the courts of Victoria and the Commonwealth of Australia and any courts hearing appeals from such Courts” (cl 19.2).

[9]    Subsequent to the wholesale project, Heartland engaged BRYK a second time. In early 2021, Heartland initiated a project to develop a consumer lending platform for its consumer vehicle financing business (retail project).

[10]   On 17 February 2021, Heartland issued the RFP to the market. The RFP provided for a process whereby Heartland could invite a supplier to enter into negotiations with a view to contract. The RFP included an exclusive jurisdiction clause at cl 22(a) providing for the exclusive jurisdiction of the New Zealand courts, and that New Zealand law would apply in respect of any dispute concerning the RFP.

[11]   BRYK responded to the RFP on or about 3 March 2021. Clause 1(a) of the RFP process, terms and conditions states that “[b]y submitting a Proposal, the supplier accepts that it is bound by [the RFP’s terms]”.

[12]   In March 2021 the parties began negotiating with a view to contracting for the delivery of the retail project. They agreed to carve out the scoping of the retail project, treating this so-called “discovery phase” as a separate element. They agreed that the “discovery phase” would be undertaken under the contractual framework of the earlier wholesale project. It was carried out under a document called “Work Order Request 2” (effective from 7 June 2021), in accordance with the 4 May 2021 agreement.

[13]   The discovery phase had a fixed price of NZD 100,000 which was duly paid by Heartland.

[14]   The parties accepted they would need to negotiate and enter into a new suite of contractual arrangements for the retail project. Between October 2021 and April 2022, they negotiated draft contracts to govern the project (which were never concluded, but which contained choice of law and non-exclusive jurisdiction clauses in favour of Victoria). Ultimately, the parties did not conclude a fully executed written principal contract to govern the retail project.

[15]   Initial development of the software underpinning the retail project was carried out contemporaneously with the parties’ negotiations.

[16]   BRYK acknowledges that no principal contract was concluded. However, it contends that the parties concluded an agreement on 20 July 2021 regarding an iterative build phase and an agreement on 23 February 2022 regarding a minimum viable product phase (disputed agreements). BRYK alleges that while these agreements were not formalised as written contracts, they are documented in emails, were discussed on calls and BRYK allocated staff to complete work on the retail project under them. The disputed agreements are said to either form third and fourth “work order requests” under the 4 May 2021 agreement (with its exclusive choice of court clause) or form separate contracts implicitly incorporating the terms of the 4 May 2021 agreement (including the exclusive choice of court clause). Whether or not the disputed agreements exist and gave rise to liability for the invoices, is at the heart of the current dispute.

[17]   Heartland says that it became increasingly concerned about whether BRYK would be able to deliver the retail project. Heartland says that it ultimately lost confidence in BRYK’s ability to deliver in time or at all.

[18]   On 28 June 2022, Heartland notified BRYK that, effective immediately, all activity in relation to the project should be halted.

[19]   On 15 July 2022, BRYK sent Heartland an invoice for NZD 1,957,688. Heartland denied it was liable.

[20]   On 12 June 2023, BRYK sent another invoice, in substitution for the first, in the sum of NZD 2,777,301.15. The invoice referred to “1,887 days” over the period August 2021–June 2022. Heartland again denied it was liable.

[21]   On 28 June 2023, BRYK’s solicitors made demand for the sum of the 12 June 2023 invoice claiming that the disputed agreements for the retail project had been entered into.

[22]   The letter of demand of 28 June 2023 was accompanied by a draft statement of claim to be filed with the Supreme Court of Victoria “in the event that the matter cannot be resolved in the short term”.

[23]   Heartland  filed these proceedings seeking  declarations of non-liability on    3 July 2023. BRYK filed the parallel proceedings in Victoria on 25 August 2023.

[24]   On 27 November 2023, the Victorian Supreme Court made an order that the Victorian proceedings be subject to a temporary stay pending the determination of the present application.

The statutory scheme — the TTPA

[25]   The effect of ss 13 and 14 of the TTPA is to allow for service of New Zealand proceedings in Australia as of right (and vice versa). This displaces the ordinary position under pt 6 of the High Court Rules 2016. The stay of proceedings based on forum grounds connected with Australia may only be made in accordance with pt 2, subpt 2 of the TTPA.6 Any decision on a stay application should endeavour to give effect to the purpose of the TTPA.7

[26]Under s 22(1):

A defendant in a civil proceeding commenced in a New Zealand court may apply to the court for an order staying the proceeding on the grounds that an Australian court is the more appropriate court for the proceedings.

6      High Court Rules 2016, r 5.49(7A).

7      Drink Tank Ltd v Morrows Pty Ltd [2020] NZHC 1391, [2020] 3 NZLR 443 at [18], citing Skelton v Z487 Ltd [2014] NZHC 707 at [19].

[27] Under s 24(1), a New Zealand court may stay a proceeding “if it is satisfied that an Australian court”:

(a)    has jurisdiction to determine the matters in issue between the parties to the proceeding; and

(b)    is the more appropriate court to determine those matters.

[28] Section 24(2) sets out a range of factors which the New Zealand court must consider in determining whether an Australian court is the more appropriate court. Under that section, the New Zealand court cannot consider the fact that the proceedings were commenced in New Zealand.8

[29] Under s 25(1)(a), the New Zealand court must stay the proceeding “if satisfied that an exclusive choice of court agreement designates an Australian court as the court to determine the matters in issue between the parties to the proceeding”.

[30] Under s 25(1)(b), the court must not stay the proceeding “if satisfied that an exclusive choice of court agreement designates a New Zealand court as the court to determine those matters.”

Analysis and decision

[31] This case does not concern whether a New Zealand court has jurisdiction to determine Heartland’s claim; neither party disputes that. Rather, it concerns whether the court must decline to exercise that jurisdiction either because of an exclusive choice of court agreement that engages s 25 or, due to discretionary, more appropriate forum factors that engage s 24.9

8      There is “no presumption in favour of the proceeding continuing in a New Zealand court”: Drink Tank Ltd v Morrows Pty Ltd, above n 7, at [29], citing Fraser v Fraser [2017] NZHC 1055 at [23(d)].

9      Kea Investments Ltd v Wikeley Family Trustee Ltd [2023] NZHC 466 at [31] noting “[a] challenge to jurisdiction on the basis that the subject-matter is covered by a contractual choice of jurisdiction may similarly involve the Court declining to assume jurisdiction rather than not having it.” See also for choice of jurisdiction agreements being relevant to the more appropriate forum: Wing Hung Printing Co Ltd v Satio Offshore Pty Ltd [2010] NZCA 502, [2011] 1 NZLR 754 at [46]; Baxter v RMC Group Plc [2003] 1 NZLR 304 (HC) at [248]–[252]; Nelson Honey & Marketing (NZ) Ltd v William Jacks & Company (Singapore) Private Ltd [2015] NZHC 1215 at [37]–[43].

[32]   BRYK relies on cl 19.2 of the 4 May 2021 agreement in support of its contention that it is the Victorian Court that has jurisdiction. Heartland denies that the 4 May 2021 agreement applies to the services at issue. Heartland also asserts that the exclusive jurisdiction clause nominating New Zealand, in cl 22(a) of the RFP, applies. The overarching issue is whether I am “satisfied” that either of the competing exclusive jurisdiction clauses designate an Australian or New Zealand court to determine the matters in issue between the parties to the proceedings.

[33] The parties made submissions on the meaning of the word “satisfied” in s 25 of the TTPA. As the Court of Appeal held in R v Leitch, the term “satisfied” calls for “the exercise of judgment”, a matter to be determined in its statutory context.10 As the Court further noted, “[t]here is no need or justification for adding any adverbial qualification”.11

[34]   I adopt the approach of the Supreme Court in Z v Dental Complaints Assessment Committee, where it held:12

Being “satisfied” in this context simply means that the Tribunal has made up its mind that is the case. The term “satisfied” does not require that the Tribunal should reach its judgment having been satisfied that the underlying facts have been proved to any particular standard. Nor does the Act or any applicable procedural rule stipulate a standard of proof which the Tribunal must apply. That question must accordingly be decided upon general principles having regard to the statutory context.

[35]   The statutory context here is similar; the Act does not stipulate any particular standard of proof the Court should apply. In making that observation, I acknowledge that the civil standard of proof generally applies in civil proceedings.13

[36]   I also note that this is an interlocutory application to be determined on the affidavit evidence and without being tested by way of cross-examination. The court must decide whether there is jurisdiction (or in this case whether to exercise it) prior to the trial proceeding. However, it cannot hold a preliminary trial on jurisdiction that

10     R v Leitch [1998] 1 NZLR 420 (CA) at 428.

11     At 428.

12     Z v Dental Complaints Assessment Committee [2008] NZSC 55, [2009] 1 NZLR 1 at [96] (footnotes omitted).

13     At [26] and [97].

essentially predetermines the substantive claim’s merits. In response to such a scenario, and with a view to balancing these factors, the common law has developed the “good arguable case” evidential standard.

[37]   Traditionally, the “good arguable case” standard applied to assessing jurisdictional facts — facts forming the basis of a jurisdictional gateway (the threshold to assume jurisdiction) when proceedings are served on parties outside that jurisdiction.14 However, in Kea Investments Ltd v Wikeley Family Trustee Ltd the Court applied the standard by analogy when “the dispute is about the very existence of [a choice of court agreement], and therefore of the jurisdiction clause”.15 Thus, in determining whether I am “satisfied” under s 25, the court is to have regard to the “good arguable case” standard, as a general principle at common law not excluded by the statutory context of the TTPA.

[38]   The “good arguable case” standard to apply is that analogous to the approach of Lord Sumption in Four Seasons Holding Inc v Brownlie where he opined:16

What is meant is (i) that the claimant must supply a plausible evidential basis for the application of a relevant jurisdictional gateway; (ii) that if there is an issue of fact about it, or some other reason for doubting whether it applies, the Court must take a view on the material available if it can reliably do so; but

(iii) the nature of the issue and the limitations of the material available at the interlocutory stage may be such that no reliable assessment can be made, in which case there is a good arguable case for the application of the gateway if there is a plausible (albeit contested) evidential basis for it.

[39]   As the evidential standard makes clear, there is still an inevitable and required assessment of the strength of the merits of the respective claims.17 It is only when limitations inherent at the interlocutory stage mean that no reliable assessment can be made, that a plausible (albeit contested) evidential basis that New Zealand is the more

14 High Court Rules 2016, r 6.29(1)(a)(i).

15 Kea Investments Ltd v Wikeley Family Trustee Ltd, above n 9, at [44]. I note this was not in the TTPA context, but I see no reason in the Act to depart from the common law principle.

16 Kea Investments Ltd v Wikeley Family Trustee Ltd, above n 9, at [36] quoting Four Seasons Holdings Inc v Brownlie [2017] UKSC 80, [2018] 1 WLR 192 at [7]; adopted unanimously by the United Kingdom Supreme Court in Goldman Sachs International v Novo Banco SA [2018] UKSC 34, [2018] 1 WLR 3683 at [9]; and further explained in Kaefer Aislamientos SA de CV v AMS Drilling Mexico SA de CV [2019] EWCA Civ 10, [2019] 1 WLR 3514.

17   The standard is relative not absolute see: Kaefer Aislamientos SA de CV v AMS Drilling Mexico  SA de CV, above n 16, at [73].

appropriate forum under the exclusive choice of court agreements becomes the test to be applied.

[40]   I accept the onus is on the plaintiff to prove the jurisdictional gateway or that a New Zealand court should/must18 exercise jurisdiction in accordance with any exclusive choice of court agreement. Gault J confirmed this in Kea stating:19

the test is whether there is a plausible (albeit contested) evidential basis for the claimant’s case in relation to the jurisdiction clause (by analogy with the application of the relevant jurisdictional gateway). It is not whether the defendants have a plausible (albeit contested) evidential basis for their position that the [choice of court agreement] was executed by [the claimant].

[41]   BRYK claims this is inconsistent with the position, summarised in Dicey, Morris and Collins on The Conflict of Laws,20 taken by the England and Wales Court of Appeal in Kaefer Aislamientos SA de CV v AMS Drilling Mexico SA de CV.21 To the extent Dicey could be read to reformulate the onus, rather than merely demonstrate its more common application, the English case law cited remains clear. The Court of Appeal adopts the same position as Gault J stating “[t]he burden of proof remains upon the claimant” and cites a United Kingdom Supreme Court decision confirming:22

The mere fact that the defendant is challenging jurisdiction does not somehow impose a duty on him to specify his case. The onus is on the claimant to satisfy the court that there is a serious issue to be tried on the merits of the claim, and not on the defendant to satisfy the court that he has a real prospect of successfully defending it.

[42]Finally, BRYK points to the Supreme Court of Queensland’s 2014 decision in

Z487 Ltd v Skelton in which Atkinson J states:23

The onus of showing that an exclusive choice of court agreement exists is on the party seeking to rely upon it and the onus of showing that any such agreement is null and void [under the relevant TTPA statutory exception] must

18 At common law there is discretion in exceptional circumstances to depart from an exclusive jurisdictional clause, see Advanced Cardiovascular Systems Inc v Universal Specialties Ltd [1997] 1 NZLR 186 (CA) at 190; whereas s 25(1) of the TTPA makes the court’s compliance with a jurisdiction clause mandatory, unless exceptions under subs (2) or (3) apply.

19 At [60], see also [42].

20 Lord Collins (ed) Dicey, Morris and Collins on The Conflict of Laws (16th ed, Sweet and Maxwell, London, 2022) at [12-083].

21 Kaefer Aislamientos SA de CV v AMS Drilling Mexico SA de CV, above n 16.

22    At [75], citing VTB Capital plc v Nutritek International Corpn [2013] UKSC 5, [2013] 2 AC 337 at [90]–[91].

23 Z487 Ltd v Skelton [2014] QSC 309 at [43].

be on the party seeking to oust the jurisdiction of the court which has otherwise been regularly invoked.

[43]   It is possible Atkinson J’s reference to onus here merely highlights that whether parties are seeking to rely on or disprove an exclusive choice of court agreement, they are best placed to produce evidence for their position. That is consistent with a plaintiff having to “supply a plausible evidential basis” for their position and a prudent defendant likely raising “an issue of fact about it, or some other reason for doubting whether it applies”. In that way the plaintiff maintains the onus while “if [a defendant] is wholly reticent about his case, he can have no complaint if the court does not take into account what points he may make”.24

[44]   However, further reliance on that case for any onus argument is of limited assistance as the good arguable case standard was not discussed. That is understandable, not least because it predates the New Zealand and English precedent adopted here, but also because the “nature of the issue” and “limitations of material available at the interlocutory stage” were not such that the standard was required. The substantive proceeding there was to determine whether an agreement, which all accepted contained an exclusive jurisdiction clause, was validly terminated. At the jurisdictional stage there could be no argument as to the existence of the clause in the agreement, but only whether the jurisdictional clause (as separate from the broader agreement) was subject to a statutory exception as null and void due to fraud, misrepresentation, or mistake. In finally determining that jurisdictional issue, Atkinson J had the benefit of cross-examination and was able to reliably determine that no exception to the jurisdiction clause applied. In any event, whether Atkinson J intended to shift any onus to the defendant or not, the good arguable case evidential standard adopted here would have yielded no difference in that case’s outcome.

Issue (a) — Does the exclusive Victorian jurisdiction clause under the 4 May 2021 agreement apply?

[45]   There is no dispute that the 4 May 2021 agreement applied to the discovery phase of the retail project. Likewise, there is no dispute that the parties never executed

24     VTB Capital plc v Nutritek International Corpn, above n 22, at [91].

a new principal contract, but they did negotiate draft contracts to govern the project (which contained choice of law and non-exclusive jurisdiction clauses).

[46]   Rather, the matters in issue here are whether or not the disputed agreements exist, either as work order requests  under,  or separate contracts  incorporating, the  4 May 2021 agreement (and thereby the Victorian jurisdiction clause).

[47]   In both New Zealand and Australia, even though parties may express an intention to document an arrangement, the arrangement may nonetheless be legally binding as a matter of contract before it is documented and executed if the parties make their intention to be bound clear by words or conduct.25 The critical issue here is whether the parties did make their intention to be bound by the disputed agreements (incorporating the jurisdiction clause) clear by words or conduct.

[48]   The nature of this dispute is such that in order to determine whether the jurisdiction clause exists, I would essentially be preliminarily determining whether or not the disputed agreements exist. That is the whole substantive dispute. It is properly a matter that can only be determined on the weight of evidence and findings of contested credibility at trial. I cannot reliably make such an assessment of intention to be bound by a jurisdictional clause in the disputed agreements on the basis of the interlocutory affidavit-only evidence before me.

[49]   This case is therefore a paradigmatic one in which the good arguable case standard applies, the dispute being about the very existence of agreements containing a jurisdiction clause. Being unable to make a reliable assessment, I am left to consider whether Heartland can raise a plausible (albeit contested) evidential basis that the Victorian jurisdiction clause under the 4 May 2021 agreement does not apply.

[50]   BRYK contends that the 4 May 2021 agreement that governed the wholesale project was an overriding “foundational” agreement governing the disputed agreements. However, this fails to recognise that the wholesale project was an earlier and distinct engagement which appears to have involved delivery of a different

25 Croser v Focus Genetics Ltd Partnership (2548500) [2020] NZCA 367 at [56]–[58]; see also Electricity Corporation of New Zealand Ltd v Fletcher Challenge Energy Ltd [2002] 2 NZLR 433 (CA) at [53]; Masters v Cameron (1954) 91 CLR 353 at 360.

software platform for a different purpose. It was clearly accepted between the parties that a new contract would be required for the retail project. BRYK seeks to characterise various emails as “work order requests” under the 4 May 2023 agreement governing that earlier wholesale project. However, the “work order” term and associated language only appears to have been used for the discovery phase of the retail project via work order request 2, and in a format that differs from that of alleged work order requests 3 and 4.

[51]   I accept that the parties were moving towards the documentation of a concluded contract and that various emails and telephone exchanges occurred to that end. However, I am satisfied that Heartland has at least demonstrated a plausible case that there was no intention, made clear by words or conduct, to be bound by the exclusive Victorian jurisdiction clause of the earlier 4 May 2021 agreement in the disputed agreements in advance of a new overarching contract being concluded.

[52]   I acknowledge that the recitals of the 4 May 2021 agreement note that the parties wish to enter into an enduring relationship with one another. However, at best that precatory language describes their hopes for the relationship between them and takes me no further in determining whether the disputed agreements exist. In those same recitals Heartland engaged BRYK to provide “services” as defined in the agreement, namely as set out in the work order appended to it. That is, of course, labelled “work order”. There is a clear history of the parties agreeing and specifying in binding contractual form the particular nature of the services to be performed. In each case it seems to have been recognised that there would be a need for new contractual arrangements, unless otherwise specifically agreed (as was the case in relation to the “discovery phase”). BRYK of course contends that its emails, phone calls and conduct in assigning its workers to the project were such that there were specific contractual agreements on two further phases, the iterative build phase and a minimum viable product phase.

[53]   BRYK further relies upon email correspondence from Mr Flood of Heartland, including a claim that he would “mahi tika” (do the right thing) and pay BRYK for its work. That may well be a key piece of evidence in relation to any quantum meruit

claim, but does not squarely address the issue of an intention to be bound by the disputed agreements in relation to a jurisdiction clause.

[54]   All of the evidence traversed further demonstrates that I am not in a position to make any meaningful assessment of whether or not the disputed agreements exist at the interlocutory stage. There are, of course, contested credibility issues as between the relevant witnesses. They are obviously trial issues.

[55]   Nevertheless, Heartland need only raise a plausible (albeit contested) evidential basis that the Victorian jurisdiction clause under the 4 May 2021 agreement does not apply. Heartland has provided evidence of the surrounding circumstances and other contractual practice in the relationship which casts doubt upon the existence of the disputed agreements. I am therefore satisfied Heartland has raised a plausible evidential basis for doubting that the disputed agreements, containing the jurisdiction clause, exist at all.

[56] Given that satisfaction, s 25(1)(a) does not require the Court to stay the proceeding on account of the exclusive Victorian jurisdiction clause.

Issue (b) — Does the exclusive New Zealand jurisdiction clause under the RFP apply?

[57]   I agree with the submissions of BRYK that Heartland’s contention that cl 22(a) of the RFP applies, can be readily ruled out. Generally, the RFP, including cl 22(a), was non-binding.26 But in any event the submission to jurisdiction under that clause was “in respect of any dispute concerning the RFP or the RFP process.”

[58]   There is, of course, no such dispute. The matters in issue are whether or not the disputed agreements exist, not over the RFP or its process. The RFP is essentially historical and overtaken by significant steps taken since that time. Services were procured and delivered on the basis of the RFP.

[59]   To be satisfied Heartland had at the very least to have supplied the Court with a plausible evidential basis that the RFP jurisdiction clause applied to these matters in

26     Clause 19(a)–(b) provides the RFP does not create “a process contract” or “any other legal relationship” except in respect of specified matters and clauses (which do not extend to cl 22(a)).

issue. It will be apparent that Heartland has been unable to meet that threshold. In this case, the issue was clear, did not overlap with the substantive dispute and could be reliably assessed from a plain reading of the RFP’s text.

[60] I am not satisfied that the exclusive New Zealand jurisdiction clause under the RFP applies to the matters in issue between the parties. Given that satisfaction, s 25(1)(b) does not prohibit the Court from staying the proceeding on account of the exclusive New Zealand jurisdiction clause.

Issue (c) — Does the Supreme Court of Victoria have jurisdiction to determine the matters in issue and is it the more appropriate court to determine them?

[61] As a preliminary matter, there is no argument between the parties that the Supreme Court of Victoria does not have jurisdiction to determine the matters in issue in the proceeding before them. Rather, the dispute is whether that court is the more appropriate forum. Thus, I am satisfied as to jurisdiction under s 24(1)(a) and move to consider which is the more appropriate court under s 24(1)(b).

[62]   The TTPA sets out a list of mandatory considerations that must be taken into account when determining the more appropriate court.27

[63]   Many of the mandatory factors in that section are in this case relatively neutral as between the parties. The subject matter of the proceeding seems to have taken place both in Australia and New Zealand. Furthermore, both parties are substantial corporate players and could, in my view, both readily adjust to proceedings in either Australia or New Zealand. Furthermore, any witness issues could readily be accommodated by VMR or other remote participation technology. I also note that the law to be applied in both jurisdictions does not appear to be substantially different, although I acknowledge that Australian consumer law is not identical to  that of  New Zealand.

[64]   Heartland’s proceeding in this Court has the hallmarks of a delaying tactic. It was clearly on notice that BRYK intended to file proceedings in Victoria, before it

27 Section 24(2).

filed proceedings here. My assessment (albeit a limited one on the evidence available to me) is that the substantive and principal claim of BRYK is one of quantum meruit, a matter specifically pleaded in the Victorian proceedings.

[65]   BRYK is clearly the plaintiff party in the dispute and the Victorian proceedings will comprehensively deal with all matters in issue between the parties. It extends beyond, of course, the contractual claims which are the focus of the Heartland proceedings here.

[66]   I find that Victoria is the more appropriate jurisdiction and that the proceedings in this Court should be stayed, as BRYK seeks.

Result

[67]   The application by BRYK to stay these proceedings is granted. The proceedings are stayed.

[68]   As to costs, I am of the preliminary view that having succeeded, BRYK is entitled to costs on a 2B basis. If the parties cannot agree on costs, then memoranda (no more than five pages) are to be filed and served within 21 days.

Andrew J