Ace Insurance Ltd v Moose Enterprise Pty Ltd [2009] NSWSC 724

New South Wales Supreme Court

CITATION : Ace Insurance Ltd v Moose Enterprise Pty Ltd [2009] NSWSC 724

HEARING DATE(S) : 9 April 2009

JUDGMENT DATE : 31 July 2009

JURISDICTION : Equity Division

JUDGMENT OF : Brereton J

DECISION : Defendant permanently restrained from taking further steps in Californian proceedings, save for discontinuing them.

CATCHWORDS : PRIVATE INTERNATIONAL LAW– Inappropriate forum – Application for anti-suit injunction – where insurance policy contains express choice of law clause providing that disputes be determined in accordance with the laws of Australia – where policy contains submission to jurisdiction of Australian courts - where both parties resident in Australia – where insurance contract formed in Australia – where defendant commences action in California in order to gain forensic advantage not available in Australia – Whether jurisdiction clause exclusive or non-exclusive – relevant considerations - where Australian courts are natural forum– where Australian courts would have jurisdiction in any event – held: jurisdiction clause was exclusive – where Australian courts not an inappropriate forum – held: anti-suit injunction should be granted – Whether express choice of Australian law founds implied negative stipulation not to sue in a jurisdiction that would not apply Australian law – nature of choice of law clause – whether promissory or declaratory – held to be declaratory – institution of proceedings in California would be breach of implied negative stipulation arising from choice of Australian law – Whether institution of proceedings in California vexatious or oppressive – whether Californian action gives defendant forensic advantage not available under Australian law – whether Californian courts would have given effect to choice of law provision – whether Californian court would have regarded Australian law as being contrary to fundamental policy of California – held: Californian court would give effect to choice of law clause - moreover even under Californian law defendant would not gain advantage not available in Australia – where California clearly inappropriate forum – held: Californian proceedings unconscionable, vexatious and oppressive