Shinetec (Australia) Pty Ltd v The Gosford Pty Ltd; The Gosford Pty Ltd v Bank of China Ltd [2022] NSWSC 59

Supreme Court New South Wales

Medium Neutral Citation: Shinetec (Australia) Pty Ltd v The Gosford Pty Ltd; The Gosford Pty Ltd v Bank of China Ltd [2022] NSWSC 59 Hearing dates: 1 February 2022 Decision date: 04 February 2022 Jurisdiction: Equity - Commercial List Before: Stevenson J Decision: The Cross-Defendant's Notice of Motion filed 10 October 2021 is dismissed with costs Catchwords: PRIVATE INTERNATIONAL LAW – stay of proceedings – whether the Court a plainly inappropriate forum – where proceedings brought by plaintiff against defendant/cross-claimant seeking to restrain it from calling on $37 million standby letter of credit issued by cross-defendant in Peoples' Republic of China in relation to plaintiff's obligations under development contract made in New South Wales –where defendant/cross-claimant seeks orders that cross-defendant make payment under the letter of credit or pay damages or compensation for non-payment – where plaintiff's ultimate holding company had simultaneously commenced proceedings in the Taiyuan Intermediate People's Court of Shanxi Province against issuing bank PRACTICE AND PROCEDURE – application to strike out or have dismissed certain claims in cross-claim list statement CONSUMER LAW – whether obligations undertaken under a standby letter of credit capable of amounting to representations that the obligations will be performed – whether this will depend on all the circumstances of the case – whether such a question apt for summary resolution Legislation Cited: Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law Corporations Act 2001 (Cth) Corporations Regulations 2001 (Cth) Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, opened for signature 18 March 1970, 847 UNTS 231 (entered into force 7 October 1972) International Standby Practices ISP98 Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Accounting Systems 2000 (Developments) Pty Ltd v CCH Australia Ltd (1993) 42 FCR 470 Bowden Bros & Co v Imperial Marine & Transport Insurance Co (1905) 5 SR (NSW) 614 Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304; [2009] HCA 25 Dey v Victorian Railways Commissioners (1949) 78 CLR 62; [1949] HCA 1 Futuretronics International Pty Ltd v Gadzhis [1992] 2 VR 217 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 129; [1964] HCA 69 Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197; [1988] HCA 32 RCR Energy Pty Ltd v WTE Co-Generation Pty Ltd [2017] VSCA 50 Regie Nationale des Usines Renault SA v Zhang (2002) 201 CLR 491; [2002] HCA 10 Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28 United States Trust Co of New York v Australia and New Zealand Banking Group Ltd (1995) 37 NSWLR 131 Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; [1990] HCA 55 Wright, Heaton & Co Ltd v Barrett (1892) 13 LR (NSW) 206 Texts Cited: Practice Note SC Eq 3 Category: Procedural rulings Parties: Shinetec (Australia) Pty Ltd (Plaintiff) The Gosford Pty Ltd (First Defendant/Cross-Claimant/ Respondent) David Anthony Hurst (Second Defendant) David Anthony Sampson (Third Defendant) Bank of China Limited (Fourth Defendant/ Cross-Defendant/ Applicant) Macquarie Bank Limited (Fifth Defendant) Representation: Counsel: J Kay Hoyle (Fourth Defendant/Cross-Defendant/ Applicant) I M Jackman SC with M R Tyson (First Defendant/Cross-Claimant/ Respondent, Second and Third Defendants)