TTAH Limited v Koninklijke Ten Cate NV
[2016] NZHC 237
•23 February 2016
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2011-404-008250 [2016] NZHC 237
BETWEEN TTAH LIMITED
First Plaintiff
TT INVESTORS LIMITED Second Plaintiff
AND
KONINKLIJKE TEN CATE N.V. First Defendant
ROYAL TEN CATE USA, INC Second Defendant
TEN CATE UK LIMITED Third Defendant
TIGERTURN NZ LIMITED Fourth Defendant
Hearing: 19 November 2015 Counsel:
D M Salmon and E D Nilsson for the Plaintiffs
R B Lange and G K Holm-Hansen for the DefendantsJudgment:
23 February 2016
JUDGMENT OF EDWARDS J
This judgment was delivered by Justice Edwards on 23 February 2016 at 10.30 am, pursuant to
r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:
Solicitors: Lee Salmon Long, Auckland
Simpson Grierson, Auckland
TTAH LTD v KONINKLIJKE TEN CATE NV [2016] NZHC 237 [23 February 2016]
Introduction
[1] The applicants (the first to third defendants, referred to as “Ten Cate”) and respondents (the first and second plaintiffs referred to as “Tiger”) are parties to an acquisition agreement dated 4 February 2009 (Agreement).
[2] Under the terms of that Agreement, Ten Cate companies purchased shares in Tiger’s four operating subsidiaries. The purchase included shares in TigerSports Americas Inc (TSA), which was headquartered in Texas at the time of the purchase.
[3] Ten Cate sues Tiger in Texas for breach of warranties in the Agreement. The claim relates to the supply of allegedly defective artificial turf by TSA between August 2006 and October 2008. The turf was supplied to 53 different end-users located in the United States, Mexico and Canada.
[4] Tiger sues Ten Cate in New Zealand. Three causes of action are pleaded. The relief sought in respect of the third cause of action includes a declaration that it is not liable to Ten Cate on its warranty claim.
[5] Ten Cate applies to strike out Tiger’s third cause of action on the grounds that
New Zealand is forum non conveniens.
[6] The issue is whether Texas is clearly or distinctly more appropriate than
New Zealand for determination of the warranty claim.
Background
[7] Tiger was in the business of manufacturing and distributing artificial turf used mainly as sports ground surfaces. It was originally founded in New Zealand, but by 2008, the business was being conducted through operating subsidiaries located in Australia, United Kingdom and United States.
[8] TSA, Tiger’s United States operating subsidiary, was based in Austin, Texas. Between August 2006 and October 2008 TSA supplied artificial turf to a number of dealers who in turn supplied it to 53 end-users located throughout North America.
The turf supplied at this time was manufactured by third party sub-contractors located in Georgia, United States.
[9] TSA’s supply was made pursuant to contracts which included agreed specifications for the “tuft bind” (the vertical force that the turf can withstand without pulling free from the backing). In some cases TSA provided a warranty in respect of the turf (end-user warranty) which provided that if the turf was proved to be defective within eight years of the date of manufacture, then TSA would either repair or replace the affected area without charge to the buyer.
Agreement
[10] Negotiations for the sale and purchase of the Tiger business to Ten Cate began in July 2008 and culminated in the signing of the Agreement in February 2009. Under the terms of the Agreement companies in the Ten Cate group purchased Tiger’s shares in its four operating subsidiaries. Royal Ten Cate USA Inc was the Ten Cate company which purchased the shares in TSA.
[11] Under cl 27.1 of the Agreement, Tiger represented and warranted to Ten Cate that as at 31 March 2009 (the Initial Settlement Date) the warranties under the Agreement were true and correct. Those warranties included warranties relating to the accuracy and completeness of the information provided to Ten Cate as contained in warranties 3.1, 4.3, 4.4 and 6.6 of the Agreement (referred to in this judgment as the “disclosure warranties”). Those warranties provide:
3.1All information provided is accurate: The Due Diligence Information, advice, answers to questions, information, books and papers given or shown to the Purchaser and given by or on behalf of the TigerTurf Group and the Vendor to the Purchaser or to any director, agent or advisor of the Purchaser with respect to the TigerTurf Group, is complete and accurate in all material respects and none of that information is misleading, whether by inclusion of misleading information or omission of material information or both (having regard to the totality of those materials).
4.3True and fair view: The group accounts present a true and fair view of the assets, liabilities and state of affairs of (each of) the TigerTurf Group (companies) as at the date of such accounts based on the Company’s historical accounting practices.
4.4No undisclosed liabilities: The assets and liabilities of the TigerTurf Group are as set out in the group accounts. There are no undisclosed assets or liabilities (whether actual, contingent or disputed) which are not shown in or reasonably provided for in the statement of financial position forming part of the group accounts except for contingent liabilities which the directors in their opinion have determined are unlikely to occur or if they were to occur, are likely to be offset by a corresponding claim.
6.6Information provided: The facts set out in the introduction and the schedules to this agreement are accurate and all information contained in the due diligence questionnaires sent by the Purchaser’s advisors to the Vendors’ advisors was at the time it was so given and is accurate and complete.
[12] Warranty 6.1 has assumed central importance in Ten Cate’s warranty claim.
That warranty provides:
No default: The TigerTurf Group is not in breach of any material contract or agreement to which the Vendor or any Operating Subsidiary is a party.
[13] The Agreement included other clauses limiting the scope of liability for warranty claims. Pursuant to cl 28.2 of the Agreement, Tiger could only be liable for breach in relation to claims by third parties if Ten Cate had afforded Tiger the option of conducting the defence and any related settlement negotiations, provided all information, assistance and authority to do that and had not made any payment or admission of liability without Tiger’s prior written consent. Tiger relies on this clause in its defence of the warranty claim.
Set-off
[14] The share purchase was to be transacted in three tranches. An initial tranche of 49 per cent of the shareholding was transferred to Ten Cate on 31 March 2009 for the price of NZD 27,225,000. The second tranche of shares (31 per cent of the shareholding) was transferred for the sum of NZD 13,746,716 in April 2010.
[15] On 31 March 2011, Tiger exercised its put option under the Agreement requiring Ten Cate to purchase the third and final tranche of shares for a purchase price of NZD 7,715,000.
[16] The following day, Ten Cate made a request under the terms of the Agreement to set off 50 per cent of a warranty claim against the purchase price for the third tranche of shares. The warranty claim concerned the alleged non-disclosure of contingent liabilities faced by TSA which arose out of actual and potential end- user claims for the supply of defective turf. It was claimed that Tiger’s directors knew about those contingent liabilities but failed to disclose them during due diligence. The warranty claim as currently formulated includes an allegation that TSA was in breach of material contracts of supply as at 31 March 2009, rendering the representation in warranty 6.1 untrue.
[17] At the time of making its set-off request, Ten Cate estimated its warranty claim to be at least USD 12,118,441, and it sought to set off NZD 7,965,750.77 (being 50 per cent of the warranty claim converted into New Zealand dollars) against the purchase price.
[18] The request to set-off was declined by Tiger and the set-off dispute was referred to Mr Robert Fisher QC for determination in accordance with the Agreement. Mr Fisher ruled that Ten Cate had warranty claims amounting to NZD 1,023,409 which were bona fide and had a reasonable chance of success. Half of that sum ($511,704) was accordingly deducted from the purchase price for the final tranche of shares and paid into a New Zealand stakeholders’ trust account. Those funds remain there pending resolution of Ten Cate’s warranty claim.
[19] Ten Cate transferred the balance of the payment for the final tranche of shares on 1 March 2013.
Forum disputes
[20] On 9 December 2011, Ten Cate commenced proceedings against Tiger in the United States District Court for the Western District of Texas (Austin division) in respect of its warranty claim.
[21] Tiger filed applications in the Texas proceeding challenging the jurisdiction of the Texas Court and contending that it was not the natural forum for determination
of the dispute. In February 2013, the Texas District Court agreed with Tiger finding that New Zealand, not Texas, was the more convenient and appropriate forum for the determination of the warranty claim.
[22] However, that decision was subsequently set aside by the United States Court of Appeals for the Fifth Circuit. It was remitted back to the District Court for further consideration. It did so on the basis that the availability of key witnesses (Messrs Salomons and Fleishmann) who resided in Texas had a potentially significant impact on the balance of convenience factors in the forum analysis. The remitted forum application was argued before the District Court in September 2014. A decision is awaited.
[23] Tiger commenced the current proceeding in New Zealand on 22 December
2011, although the third cause of action the subject of the strike-out application was added by way of amended statement of claim dated 16 April 2013 (after Ten Cate’s claim was struck out in the District Court).
[24] Strike-out applications were filed in the New Zealand proceeding by Ten Cate. It was successful in the High Court on its application to strike out both the first and third causes of action in Tiger’s amended statement of claim dated 16 April
2013.1 The third cause of action was struck out on the grounds that Texas, not
New Zealand, was the appropriate forum for determination of the dispute.2
[25] However, an appeal from that decision was allowed and both the first and third causes of action were reinstated.3 The Court of Appeal found that there was no plea or argument concerning forum non conveniens grounds and it would be premature to strike out the claim ahead of any detailed forum non conveniens assessment.4
[26] This application to strike out or stay the third cause of action followed.
1 TTAH Ltd v TT Investors Ltd [2014] NZHC 2032.
2 At [48].
3 TTAH Ltd v Koninklijke Ten Cate NV [2015] NZCA 348.
4 At [64] and [65].
Tiger’s statement of claim
[27] Tiger’s current amended statement of claim comprises three causes of action.
[28] The first cause of action seeks payment of default interest on the share purchase price for the third tranche of shares at the default interest rate specified in the Agreement.
[29] The second cause of action concerns a claim for consultancy fees which Tiger claims are due under a consultancy agreement which was allegedly wrongly terminated by Ten Cate. Tiger seeks damages in the sum of $560,000 plus GST in this cause of action.
[30] The third cause of action is the subject of the strike out application. Tiger seeks a declaration that it is not liable under the warranty claim. In addition to the declaration, Tiger seeks damages in the sum of $511,704, interest at the contractual rate, and indemnity costs.
[31] Ten Cate submits that the third cause of action is anomalous and a tactical stunt designed to deprive Ten Cate from bringing its claim in its preferred forum. I agree that the third cause of action is unusual. The natural plaintiff in the warranty claim is Ten Cate, not Tiger. I also agree that the sole purpose of the third cause of action appears to be to force resolution of Ten Cate’s warranty claim in this forum, rather than Texas. However, in the context of a United States District Court ruling that New Zealand, not Texas, was the natural forum for determination of the dispute, I do not consider the third cause of action can be dismissed as a “tactical stunt”.
Ten Cate’s warranty claim
[32] Ten Cate’s warranty claim is pleaded in the amended complaint filed on
18 April 2012 in the Texas Court, and in its statement of claim dated 16 September
2011 filed in the expert adjudication.
[33] There is a dispute between the parties as to whether the Texas complaint encompasses an allegation of breach of warranty 6.1, and whether an amendment
expressly referring to that warranty would be time-barred. It is not for this Court to determine that dispute. For the purposes of assessing forum issues, I consider the broadest formulation of the warranty claim should be taken into account. I have therefore referred to the claim as pleaded in the expert adjudication and as presented in Ten Cate’s submissions. I have therefore taken into account an allegation that warranty 6.1 was breached.
[34] The warranty claim as pleaded originally included a claim of breach in relation to the supply of inaccurate EBITDA information. At the hearing, Mr Lange advised that he had instructions not to pursue that claim.
[35] In respect of the disclosure warranties, Ten Cate claims that warranties 3.1 and 6.6 were breached because answers given during the due diligence process were not complete, nor accurate because they did not disclose knowledge of the problems with the TSA supplied turf, nor did they make reference to the reasonable possibility of warranty claims in respect of the 53 end-user contracts.
[36] Ten Cate also alleges breach of warranties 4.3 and 4.4 on the basis that the group accounts did not present a true and fair view of the assets, liabilities, the state of affairs of TSA and the Tiger group and failed to provide for contingent liabilities or possible end-user claims.
[37] The claim in relation to warranty 6.1 is that as at 31 March 2009, TSA was in breach of material contracts, being those affecting the 53 end-users identified. Ten Cate also refer to the 10 (since updated to 11) claims received from those 53 end-users. It pleads compliance with cl 28.2 in relation to those third party claims.
[38] As a result of the warranty breaches, Ten Cate pleads that it faced undisclosed contingent liabilities of at least USD 12,055,290.34 (NZD 22,711,549.25) and that the value of the shares purchased from Tiger was at least NZD 26,659,549.25 less than the value of the shares as warranted under the Agreement. Ten Cate’s counsel acknowledges that the final quantum of damages sought at trial is likely to be less than this sum.
[39] In its statement of defence filed for the expert adjudication, Tiger denies breach of the Agreement in relation to all the warranties pleaded. In submissions before me, counsel for Tiger argued that the warranty claim was limited to the 11 claims actually received rather than consideration of all 53 claims. In respect of those 11 claims it pleads non-compliance with cl 28.2, thereby reducing or eliminating any liability for such claims. Tiger argues that it is exceedingly unlikely that any of the other end-users identified will make a claim as such a claim is likely to be outside the eight year timeframe under the TSA end-user warranties, or barred by statutory limitation periods.
[40] Tiger also submits that diminution in share value is not the proper measure of loss for breach of the Agreement in this case. It says damages are limited to the actual loss suffered as a result of third party claims which, although currently not quantified, will be significantly less than the sum sought by Ten Cate in its statement of claim.
Legal principles
[41] The application is made pursuant to r 6.29(3) and r 15.1. Rule 6.29(3)
provides:
When service of process has been validly effected within New Zealand, but New Zealand is not the appropriate forum for trial of the action, the defendant may apply for a stay, or for a dismissal of the proceeding under rule 15.1.
[42] Rule 15.1 provides that a Court may strike out, or alternatively stay, all or part of a pleading in specified circumstances.
[43] The principles arising out of Spiliada Maratime Corp v Cansulex Ltd5 remain authoritative on forum non conveniens arguments. Application of those principles in a New Zealand context were summarised by the Court of Appeal in Schumacher v
Summergrove Estates Ltd as follows:6
5 Spiliada Maritime Corp v Cansulex Ltd (“The Spiliada”) [1987] AC 460.
6 Schumacher v Summergrove Estates Ltd [2014] NZCA 412, [2014] 3 NZLR 599.
[29] New Zealand courts apply this principle in the following manner:
“(a) in general the burden of proof to persuade the court to exercise its discretion to grant a stay rests on the defendant not just to show that New Zealand is not the natural or appropriate forum for the trial but also to establish that there is another available forum which is clearly or distinctly more appropriate;
(b) if the court is satisfied that there is another available forum which is prima facie the appropriate forum for the trial, the burden will shift to the plaintiff to show that there are special circumstances by reason of which justice requires that the trial of the action should nevertheless take place in New Zealand;
(c) the natural forum will be the one with which the action has the most real and substantial connection, including factors affecting convenience or expense (such as availability of witnesses), the law governing the relevant transaction and the places where the parties respectively reside or carry on business; and
(d) special circumstances by reason of which justice may require a stay not to be granted will include consideration of factors such as the inability of the plaintiff to obtain justice in the foreign jurisdiction, advantages which the plaintiff may derive from involving the New Zealand jurisdiction and the application of any relevant limitation periods.”
The decision is a discretionary one for the trial Judge; …
(footnotes omitted).
Is Texas an available forum?
[44] Tiger submits that Ten Cate’s application must fail at the first hurdle. It says Ten Cate is unable to discharge its burden by showing that Texas is another available forum in which the warranty claim may be determined. That is because the United States District Court has already ruled that New Zealand, not Texas, is the appropriate forum once, and it is likely to do so again.
[45] Even if the United States District Court reverses its previous finding on the forum issues, Tiger submits that it is nevertheless unlikely to accept personal or subject matter jurisdiction in the dispute. Tiger’s applications challenging jurisdiction on these grounds have not yet been determined by the United States District Court as there was no need to do so given the decision on forum. Tiger points to statements in the Report and Recommendation of the United States Magistrate Judge dated 3 January 2013 which it says indicate that the Court is
unlikely to accept personal jurisdiction over Tiger in the dispute should it be necessary to re-visit that application.
[46] As the position currently stands in the United States, there is no decision declining to hear the proceeding on forum grounds. Texas therefore remains an available forum pending the United States District Court’s decision to the contrary. I do not consider it appropriate for this Court to guess at the likely result of that decision, nor any other decision on applications that are before that Court.
[47] I therefore proceed on the basis that Texas is an available forum for the determination of the dispute.
Governing law and jurisdiction clauses
[48] Several clauses of the Agreement point towards New Zealand as the parties’
preferred forum for the resolution of the warranty claim.
[49] The Agreement is governed and construed according to the laws of New Zealand. The High Court of New Zealand has non-exclusive jurisdiction over the dispute. The expert appointed to determine whether a warranty claim is bona fide and reasonably arguable must be an experienced barrister or solicitor based in Auckland. If agreement cannot be reached on an expert, then appointment is to be
made by the President of the New Zealand Law Society.7 The nominated
stakeholder under the Agreement must also be “a reputable firm of solicitors practising in Auckland”.8
[50] In the context of an Agreement which involves companies located all over the world and conducting business on an international stage, I consider it significant that the parties chose New Zealand law to govern the Agreement, and indicated a preference for a New Zealand court to determine any disputes. The choice of a New Zealand expert to make a preliminary assessment of a warranty claim for set-
off purposes and the fact that any disputed sums are to be held in a New Zealand
7 Clause 30.3.2, Acquisition Agreement.
8 Clause 30.5, Acquisition Agreement.
bank account suggests that the parties contemplated that a warranty claim would be determined in New Zealand.
[51] I consider due deference should be paid to the parties’ choice as reflected in the terms of the Agreement. This factor weighs in favour of New Zealand as the natural forum.
Personal and subject matter connections
Where critical events took place
[52] Where the critical events took place depends on how the warranty claim is characterised.
[53] At a broad level, the warranty claim involves representations made by New Zealand entities that the information it was providing in New Zealand was true and correct. Tiger argues that the critical events the subject of the warranty claim took place in New Zealand on that basis.
[54] But the fact that the representations were made in New Zealand by New Zealand entities is of no real significance to the determination of the issues in the warranty claim. Whether there has been breach of cl 27.1 in relation to the disclosure warranties turns on whether or not information relating to TSA’s contingent liabilities was known about, and disclosed. Breach in relation to warranty 6.1 involves establishing that TSA was in breach of material contracts as at
31 March 2009. The contingent liabilities said to be undisclosed, and the material contracts said to be breached, all relate to TSA’s supply of allegedly defective turf to dealers and contractors located in Texas and other places in North America between
2006 and 2008. I therefore consider the critical events underpinning the warranty claim took place in Texas and North America and not New Zealand.
[55] This factor favours Texas as the appropriate forum.
[56] The parties to the proceeding are resident in New Zealand, Netherlands, United States, and United Kingdom. None are resident in Texas. Although TSA was formerly headquartered in that State, it is now based in Georgia.
[57] This factor favours New Zealand as the appropriate forum. However, in the context of proceedings between two multi-nationals, I do not consider much weight should be attributed to this factor in the overall assessment.
Convenience and expense factors
Location of witnesses
[58] Ten Cate says it intends to call witnesses whose evidence concerns the supply of defective turf by TSA. Those witnesses will include Tiger and TSA officers and employees, manufacturers, dealers and contract installers. Evidence regarding the turf samples and quantification of loss will also be called. None of the witnesses Ten Cate intends to call are resident in New Zealand. Three of the witnesses are resident in Texas. Others are located in North America. One is resident in the United Kingdom.
[59] The decision awaited from the United States District Court is primarily concerned with the position of Mr Harry Salomons and Mr Charles Fleishman. Both men held senior management positions with TSA during the relevant period. Both are resident in Texas, although Mr Vivian deposes to his belief that Mr Salomons is in the process of moving out of that jurisdiction, but he does not state where he is moving to. Ten Cate allege that both these men knew about the turf problems but did not disclose them. On that basis, both men are key witnesses.
[60] There is a dispute between the parties as to whether their evidence is compellable or whether they will need to be subpoenaed. That is not a dispute which can be determined in the context of this application and I have insufficient information to be able to do so in any respect. The place of residence for both these
witnesses (to the extent it is known) is simply another factor to be weighed in assessing the relative convenience and cost of each forum.
[61] Tiger has identified nine witnesses it is likely to call; all of whom live and work in New Zealand. Mr Vivian has deposed to his belief that, other than himself, none of the witnesses are contractually bound to give evidence on behalf of Tiger. At least one witness has indicated a reluctance to give evidence, meaning a subpoena may be necessary. Other witnesses identified who are likely to give relevant evidence are based in the United Kingdom, Australia, and Thailand.
[62] The parties’ respective experts are based in Tennessee, Thailand, and New Zealand. It is not clear at this stage whether inspection of the various sports fields will be necessary, or whether inspection of the turf samples already taken (which may be sent to the experts’ place of residence) will be sufficient. Ten Cate says it is likely that independent laboratories in the United States will undertake testing of the turf.
[63] Each party challenges the relevance of the evidence proposed to be called by the other. At this early stage in the proceeding, I am satisfied that all of the witnesses which each party has identified will be relevant to the variety of issues raised by the warranty claim.
[64] Overall, on the basis of the evidence before me, it is not possible to say which forum has the advantage in terms of relative cost and convenience for witnesses. Whatever jurisdiction is chosen as the place for the trial, there will be inconvenience and cost incurred by both parties. That may be mitigated to some extent by witnesses giving evidence by video-link, or by evidence being taken as read, but it is not possible to say how those actions may impact on the convenience and cost issues for a particular party.
[65] I do not consider this factor to favour any particular forum over the other.
[66] The due diligence information and other documentation is stored in New Zealand. I do not accept Ten Cate’s submission that this is completely irrelevant to the warranty claim. It is likely to be relevant to breach of the Agreement in relation to the disclosure warranties.
[67] Ten Cate submits that key documents relating to the manufacture, supply and installation of the relevant turf are held in Texas. Those documents will be clearly relevant to the determination of the warranty claim insofar as it relates to warranty 6.1.
[68] The fact that documents relevant to the warranty claim are held in both jurisdictions means this factor is neutral insofar as forum is concerned.
Other factors
Strength of the claim
[69] I have assessed this factor by considering the merits of Ten Cate’s warranty claim, and the strength of Tiger’s defence to that claim which is the basis for its third cause of action. At this early stage any assessment of merits can only be a matter of impression. It is premature to make any determinations or findings either way.
[70] Both parties agree that the expert adjudication cannot be relied on as an indication of the merits of the warranty claim as it was determined in accordance with set-off provisions of the Agreement which would not apply to the substantive claim.
[71] There was little focus in submissions before me on direct liability issues. I accept for the purposes of this application that Ten Cate has a reasonably arguable case that Tiger has breached the Agreement in relation to both the disclosure warranties and cl 6.1.
[72] The scope of any such liability will depend on a number of factors, such as whether the warranty claim is limited to only those claims received by Ten Cate (11 claims as opposed to 53), whether cl 28.2 applies, and if so, whether it effectively reduces or eliminates any liability otherwise established. The impact of the expiry of the TSA end-user warranties and limitation periods which may apply to end-user claims will also have a bearing on the scope of any liability established. Similarly, the correct measure of loss for any breach will have a bearing on the quantum of damages awarded.
[73] For present purposes, I accept that all these factors establish reasonable grounds to believe that the scope of any liability, and the quantum of any loss, will be significantly less than what is currently sought in the pleaded statement of claim.
[74] I do not consider the merits of Tiger’s third cause of action, or the strength of Ten Cate’s claim, to warrant a strike out order or a stay. The merits do not favour one forum over the other and I consider this factor to be neutral in the overall analysis.
Enforcement
[75] Tiger companies are New Zealand entities which do not have any assets outside the jurisdiction. An award in Ten Cate’s favour on the warranty claim would have to be enforced in New Zealand through proceedings commenced in this Court.
[76] An award in favour of Tiger on its third cause of action would be enforced against the funds held in the solicitor’s trust account in New Zealand, with possible further enforcement against Ten Cate overseas in respect of any contractual interest or costs awarded.
[77] Enforcement is a factor weighing in favour of New Zealand as the natural forum.
[78] The trial of the first and second causes of action will go ahead in New Zealand. Tiger submits that the efficient resolution of all causes of action therefore favour New Zealand as the appropriate forum.
[79] I accept Ten Cate’s submission that the first and second causes of action are distinct from the third. Nevertheless, there is likely to be some overlap in the evidence. For example, Mr Vivian will be required to give evidence relevant to all three causes of action, and evidence regarding the factual matrix will also be relevant
– at least to the first and third causes of action.
[80] It is in the parties’ best interests, and the ends of justice generally, to resolve all outstanding issues between them once and for all. I therefore consider the most efficient resolution of all causes of action to favour New Zealand as the appropriate forum.
Overall assessment
[81] There are factors leaning both ways in this case. The warranty claim is more closely connected with events which occurred in North America, than with New Zealand. In a contest between Texas and New Zealand, this factor favours Texas.
[82] However, other factors, such as enforcement, and the efficient resolution of all causes of action favour New Zealand. The fact that the parties chose New Zealand law to govern disputes under an Agreement between two multi- nationals is significant in my view. Also significant is the appointment of a New Zealand based expert to make a preliminary merits based assessment of any warranty claim.
[83] Overall, I am not persuaded that Texas is clearly or more distinctly appropriate than New Zealand for the trial of the action. It follows that I do not consider the third cause of action should be struck out or stayed on that basis.
Result
[84] The application to stay or strike out the third cause of action is dismissed.
[85] Tiger is entitled to costs on a schedule 2B basis plus disbursements as fixed by the Registrar. If there are any issues affecting quantum or the award of costs of which I am not aware, then counsel are invited to file memoranda as to those issues
within 21 working days of delivery of this judgment.
Edwards J
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