WILLIAMS v LIPS-HEERLEN BV [1994] NSWCA 349

WILLIAMS v LIPS-HEERLEN BV

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, HANDLEY and SHELLER JJA 5 August 1994, 16 August 1994

[1994] NSWCA 349

PRACTICE AND PROCEDURE: refusal to exercise jurisdiction under Pt10, r1, r2 and r4, r6A and Pt11, r8(1) Supreme Court Rules - change of pleadings — removal of stay of proceedings.

The appellants commenced proceedings in 1990 against the respondent alleging, inter alia, that a water turbine designed and manufactured by the respondent and sold to the appellants by Antelope Engineering Pty Ltd contained defects and was unsuitable for the required purpose. The appellants alleged that they had entered into the contract in reliance upon misleading and deceptive representations made by the respondent and sought relief under s52 of the Trade Practices Act and s42 of the Fair Trading Act and damages for negligent misstatement, breach of collateral contract and unconscionable conduct. The respondent was a company incorporated in the Netherlands and not registered as a foreign company in Australia. The appellants effected service on the respondent in the Netherlands. The respondent applied by notice of motion for a permanent stay of the proceedings. Pt10, rl, 2 and 6A (1) and (2) and Pt11, r8 (1) of the Supreme Court Rules.

In the particulars accompanying the Plaintiffs' Contentions in the summons and before Giles J the appellants relied upon representations claimed to have been made by Antelope on behalf of the respondent. The respondent denied that Antelope was its agent and submitted that the appellants had failed to establish to the necessary degree that they had a cause of action, because in the absence of agency the representations could not be attributed to the respondent. Giles J commented that the appellants' claims faced great difficulties. Furthermore there was but the flimsiest evidence of agency. Giles J held that the Court should decline in its discretion to exercise its jurisdiction in the proceedings.