Ivanovski & Anor v Perdacher [2006] NSWSC 978

New South Wales Supreme Court

CITATION : Ivanovski & Anor v Perdacher [2006] NSWSC 978

HEARING DATE(S) : 15 September 2006

JUDGMENT DATE : 15 September 2006

JURISDICTION : Equity Division Commercial List

JUDGMENT OF : Palmer J

EX TEMPORE JUDGMENT DATE : 09/15/2006

DECISION : Application for stay dismissed.

CATCHWORDS : PROCEDURE – STAY OF PROCEEDINGS – whether on facts of case the Defendant had demonstrated that New South Wales Court was clearly inappropriate forum for trial.

LEGISLATION CITED : Evidence Act 1995 (NSW) – s.102

CASES CITED : Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538

Sergei Ivanovski – First Plaintiff PARTIES : Galina Ivanovsky – Second Plaintiff Walter Perdacher – Defendant

FILE NUMBER(S) : SC 50091/06

COUNSEL : J. McLeod – Plaintiffs G. Egan – Defendant

SOLICITORS : Aitken McLachlan Thorpe – Plaintiffs Bolster & Co – Defendant

1 The Plaintiffs have commenced proceedings in this Court by summons filed on 12 July 2006 claiming judgment for a debt said to arise on a contract for loan between the Plaintiffs and the Defendant. The contract is evidenced in writing, at least so the Plaintiffs contend, this writing being a loan agreement dated 18 August 2005. The loan agreement was said to have been executed in Mt Hagan in Papua New Guinea. The Defendant is a resident of Papua New Guinea. The Plaintiffs are New South Wales residents. 2 The Plaintiffs claim that the Defendant has breached the loan agreement in that the Defendant has not repaid the capital of the loan at the stipulated time and by the stipulated means, namely by payment into a bank account of the Plaintiffs in New South Wales. 3 The Defendant does not dispute that a New South Wales Court has jurisdiction to entertain the claim brought by the Plaintiffs against him. However, he says that proceedings in this Court should be stayed permanently because this Court is a clearly inappropriate Court for the trial of the proceedings – the appropriate Court clearly being a Papua New Guinean Court. 4 The parties have debated only one issue before me and that is whether or not, according to the law as stated in cases such as Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 and the multitude of cases which follow or discuss that decision, it has been demonstrated by the Defendant/Applicant that this Court is a clearly inappropriate forum for the trial of the proceedings. 5 The Defendant/Applicant points to the following factors as demonstrating that this Court is a clearly inappropriate forum: