Zurich Australian Insurance Limited v XL Insurance Company SE [2023] NSWSC 29

Supreme Court New South Wales

Medium Neutral Citation: Zurich Australian Insurance Limited v XL Insurance Company SE [2023] NSWSC 29 Hearing dates: 31 January 2023 Date of orders: 31 January 2023 Decision date: 31 January 2023 Jurisdiction: Equity Before: Hammerschlag CJ in Eq Decision: Notice of Motion dismissed with costs Catchwords: PRIVATE INTERNATIONAL LAW — forum non conveniens — application for a stay — insurance — claim by plaintiff insurer against defendant insurer for equitable contribution on the basis of coordinate liability for the same risk — where the defendant insurer's liability said to arise for one or both of two policies, one in English and governed by the laws of this State and another in French, arguably governed by the law of France — defendant contends that whilst this Court is an appropriate forum to determine issues pertinent to the English policy, it is clearly an inappropriate forum to determine issues pertinent to the French policy and that the Court should stay the proceedings so far as the issues relating to the French policy are concerned — defendant contends that it is oppressive to require it to deal with issues concerning the French policy in this Court — whether this court is a clearly inappropriate jurisdiction to determine the issues arising under the French policy — HELD — it is undesirable for components of the same overall dispute to be separated out and decided by separate courts — that it is not oppressive to require the defendant to deal with the French component in this Court, but if it were, it would be equally oppressive to require the plaintiff to deal with the French component separately from the local component in a foreign court — this Court is the more appropriate forum for the determination of the whole of the dispute — the Court does not anticipate any significant difficulty in dealing with any factual or legal issues to be determined in accordance with the law of France to the extent that it applies — seen as a whole, this jurisdiction is the one to which the dispute has the closest connection — application dismissed with costs Cases Cited: Voth v Manildra Flower Mills Pty Ltd (1990) 171 CLR 538; [1990] HCA 55 Category: Principal judgment Parties: Zurich Australian Insurance Limited (ABN 13 000 296 640) (Plaintiff / Respondent on the Motion) XL Insurance Company SE (ABN 36 083 570 441) (Defendant / Applicant on the Motion) Representation: Counsel: D L Williams SC with N D Riordan (Plaintiff / Respondent on the Motion) S Donaldson SC with C Coventry (Defendant / Applicant on the Motion)