Dial A Dump v Extec Screen & Crushers [2001] NSWSC 569

New South Wales Supreme Court

CITATION : Dial A Dump v Extec Screen & Crushers [2001] NSWSC 569 revised - 10/07/2001 CURRENT JURISDICTION: Equity Division Commercial List FILE NUMBER(S) : SC 50015/01 HEARING DATE(S) : 29 June 2001 JUDGMENT DATE : 29 June 2001

PARTIES : Dial A Dump Pty Ltd v Extec Screen & Crushers Limited JUDGMENT OF : Hunter J

COUNSEL : Applicant/ defendant: J Van Aalst Respondent / plaintiff: P Braham SOLICITORS : Applicant/ defendant: Hardings Respondent / plaintiff: Deacons CATCHWORDS : Practice & Procedure - forum non conveniens - application to stay or strike out - 'clearly inappropriate forum' test applied. DECISION : Application refused with costs.

THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION COMMERCIAL LIST

HUNTER J

FRIDAY 29 JUNE

50015/01 - DIAL A DUMP PTY LTD v EXTEC SCREENS & CRUSHERS LIMITED

EX TEMPORE JUDGMENT

1 This is an application by amended notice of motion filed 29 June 2001 in which the defendant seeks the following orders: "1. An order pursuant to Part 10 rule 1A(1)(b) that the originating process being founded on a breach of contract in the United Kingdom and not in the State of New South Wales, be struck out .

2. In the alternative, an order that the proceedings herein be stayed by reason that this Court is clearly not the appropriate forum, pending the determination of the issues between the parties in a Court of appropriate jurisdiction in the United Kingdom."

2 The proceedings arise out of a claim for commission arising out of the alleged breaches of an agreement between the plaintiff and the defendant said to have been entered into about March of 1998 (the agreement). 3 The defendant is a company incorporated in the United Kingdom and is the manufacturer of certain crushing equipment. The plaintiff, a corporation resident in this State, alleges that under the agreement it became entitled to payment of commission upon specified machinery of the defendant manufactured by it and supplied to customers in Australia. 4 The plaintiff alleges breach of the following terms of the agreement: "Dial A Dump shall be paid its said commission by bank transfer in Sterling to its account maintained for that purpose in the United Kingdom. Commission shall be due not later than 30 days following payment clearance for the product into the territory. Extec shall inform Dial A Dump of every potential sale in the territory as soon as possible."