HATHAWAY SHIRT CO PTY LTD v B RAWE GmbH COMPANY [1989] NSWCA 98

HATHAWAY SHIRT CO PTY LTD v B RAWE GmbH COMPANY SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

GLEESON CJ, SAMUELS and CLARKE JJA 25 July 1989, 25 July 1989

[1989] NSWCA 98

Gleeson CJ This is an appeal from a decision of Roden J, who in turn allowed an appeal from a decision of Master Greenwood setting aside the registration of a foreign judgment obtained in West Germany.

It is common ground that the following events occurred. The appellant is an Australian company which entered into a contract to purchase goods from the respondent, a German corporation. The contract was apparently entered into through the agency of the respondent's Australian agent. A dispute arose between the German supplier and its Australian customer in relation to the subject goods but the details of that dispute are not relevant to the resolution of this appeal. It suffices to say that the respondent asserted, and the appellant denied, that the appellant became indebted to the respondent in a relatively modest sum.

On 7 August 1985 the respondent commenced proceedings to recover the alleged debt in a German Court. In this connection it should be noted that the terms and conditions of the sale of goods in question provided that a German Court should have jurisdiction to resolve disputes arising out of the transaction.

Both prior to and following the commencement of the proceedings there was an exchange of correspondence between the parties concerning the alleged debt and on 21 May 1986, the respondent sent a telex to the appellant which contained the following statement. "In order to settle the case we are proposing without prejudice...", and there then followed a certain financial arrangement, which was apparently unacceptable to the appellant.

It is common ground that on 6 June 1986 a copy of the Statement of Claim, which had been file in August 1985 in the German Court, was delivered by a process server in Sydney to one of the Directors of the appellant company, Mr Fabian. The precise identity of the process server is not clear but he may have been a sheriff's officer associated with this Court. However that may be, Mr Fabian does not dispute that he was handed on that occasion a document which, so it is now agreed, was a copy of the relevant Statement of Claim.