BANK OF AMERICA and ANOR v BANK OF NEW YORK and ANOR [1994] NSWCA 17

BANK OF AMERICA v BANK OF NEW YORK

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, MEAGHER and POWELL JJA 9 December 1994, 23 December 1994 [1994] NSWCA 17

PRACTICE AND PROCEDURE — forum non conveniens — concurrent proceedings in NY and NSW — NSW proceedings stayed — summons for leave to appeal — alleged misunderstanding of SCR Ptl0 RIA, R2 — deprivation of legitimate forensic advantage Trade Practices Act claim

TRADE PRACTICES — US proceedings — whether stay of NSW proceedings deprives party of legitimate forensic advantage — held: It does not.

PRACTICE AND PROCEDURE — forum non conveniens — dispute between United States banks and their Australian subsidiaries — series of letters written in New York said to document agreement — purchase of loans owing by third party to Australian subsidiary of one bank — offer to purchase loans subject to time limits and other terms later renewed and extended — one bank commences proceedings in Supreme Court of New York for negative declarations — other banks commence proceedings in Supreme Court of New South Wales — motion to stay proceedings in New South Wales as a "clearly inappropriate forum" succeeds before Rolfe J — on summons for leave to appeal

Held: No error - leave refused.

Held (refusing leave):

(1) No error had been shown in the reasons of Rolfe J to authorise the disturbance of his order staying the proceedings in New South Wales.

Ocean Sunline Special Shipping Co Inc v Fay (1988) 165 CLR 197; Voth v Manildra Flour Mills Pty Ltd and Anor (1990) 171 CLR 538, applied;

(2) Submissions made concerning the meaning and application of Ptl10 R2 SCR could not be allowed to succeed because of the different case presented at trial.

Coulton and Ors v Holcombe and Ors (1986) 162 CLR 1, applied;

(3) Semble (per Meagher JA, Powell JA concurring): Notwithstanding the amendment of the Supreme Court Rules, the Supreme Court is not authorised to allow actions to proceed against foreign residents who do not submit to the jurisdiction unless there is an arguable case within PtlO RIA SCR.