Supreme Court New South Wales Medium Neutral Citation: Telesto Investments Ltd & ors v UBS AG [2012] NSWSC 44 Hearing dates: 21 November 2011 Decision date: 07 February 2012 Jurisdiction: Equity Division - Commercial List Before: Ward J Decision: Temporary stay to be granted of the proceedings in this Court, pending the outcome of matters in other proceedings in Singapore in relation to the same controversy. Form of orders to be determined after further submissions. Catchwords: CONFLICT OF LAWS - stay of proceedings - anti-suit injunction granted in Singapore - whether New South Wales is forum non conveniens - whether duplication of proceedings is vexatious or oppressive - whether commencing or continuing proceedings in New South Wales amounts to an abuse of process - whether enforceability of foreign judgment where non-monetary relief sought relevant to granting a stay CONFLICT OF LAWS - stay of proceedings - principles of comity - where New South Wales proceedings commenced in breach of anti-suit injunction granted in Singapore - foreign anti-suit injunction a factor to be taken into account when exercising discretion to grant stay but not determinative CONFLICT OF LAWS - choice of law - tort - misrepresentation - cross-border communications over telephone - law of jurisdiction where communication reasonably expected to be received is proper law of the misrepresentation PROCEDURE - issue estoppel - foreign judgment as basis of estoppel - estoppel said to arise from finding in Singapore regarding question of forum non conveniens - different legal test for forum non conveniens in Singapore and Australia - precise identification of the legal issue - no issue estoppel in relation to forum non conveniens question - issue estoppel in relation to finding by Singapore court whether New South Wales proceedings vexatious and oppressive Legislation Cited: Australian Securities and Investments Commission Act 2001 (Cth) Fair Trading Act 1987 (NSW) Trade Practices Act 1974 (Cth) Cases Cited: Adam P Brown Male Fashions Proprietary Limited v Philip Morris Incorporated (1981) 148 CLR 170 Air Bus Industries GIE v Patel (1999) 1 AC 119 Allstate Life Insurance Co v Australia and New Zealand Banking Group Limited [1995] FCA 1563 Armacel Pty Ltd v Smurfit Stone Container Corp (2008) 248 ALR 573 Aussie Home Security Pty Ltd v Sales Systems Australia Pty Ltd (2000) 172 ALR 14 Barclays Bank plc v Homan [1993] BCLC 680 Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256 Blair v Perpetual Trustee Co Ltd v Curran (Adam's Will) (1939) 62 CLR 464 British Airways Board v Laker Airways Limited [1985] 1 AC 58 (HL) Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] AC 853 Castillon v P&O Ports Ltd [2007] QCA 364 Champerslife Pty Ltd v Manojlovski & Anor [2010] NSWCA 33 Christie v Baker (1996) 2 VR 582 Commonwealth v Cockatoo Dockyard Pty Ltd [2003] NSWCA 192 Commonwealth Bank of Australia v White [1999] 2 VR 681 Commonwealth Bank of Australia v White [No 3] [2000] VSC 259 Commonwealth Bank of Australia v White [No 4] [2001] VSC 511 CSR Ltd v Cigna Insurance Australia Limited [1997] HCA 33; (1996-7) 189 CLR 345 DA Technology Australia Pty Limited v Discreet Logic Inc [1994] FCA 958 Delco Australia Pty Ltd v Equipment Enterprises Incorporated and Ors (2000) 100 FCR 385 Diamond v Bank of London and Montreal (1979) QB 333 Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575 Ellerman Lines Limited v Read [1928] 2 KB 144 Fidelitas Shipping Co Ltd v V/O Exportchleb [1966] 1 QB 630 Garsec v Sultan of Brunei [2008] NSWCA 211; (2008) 250 ALR 682 Guardian Group Australia Pty Ltd v Alice Lu [2005] NSWSC 1299 Habib v 2UE Pty Ltd [2009] NSWCA 231 Henry v Henry (1996) 185 CLR 571 Hilton v Guyot (1895) 159 US 113 Hunter Grain Pty Ltd v Hyundai Merchant Marine Co Ltd (1993) 117 ALR 507 John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 Kolden Holdings Ltd v Rodette Commerce Ltd [2008] 3 All ER 612 Kuligowski v Metrobus [2004] HCA 34; (2004) 220 CLR 363 Laker Airways Limited v Pan American World Airways (1983) 559 F Supp 1124 Laker Airways Limited v Sabena (1984) 731 F 2d 909 Laker Airways Limited v Pan American (1983) 577 F Supp 348 Ling v The Commonwealth (1996) 68 FCR 180 Maritime Insurance Co Ltd v Geelong Harbour Trust Commissioners (1908) 6 CLR 194 Newmont Yandal Operations Pty Ltd v J Aron Corporation [2007] NSWCA 195; (2007) 70 NSWLR 411 News Corporation v Lenfest Communications Inc [1996] NSWSC 474 Mala Pty Ltd v Johnston (1995) 13 ACLC 100 Moore v Inglis (1976) 9 ALR 509 Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; 147 CLR 589 Puttick v Tenon Ltd [2008] HCA 54; (2008) 238 CLR 265 Ramsey v Vogler [2000] NSWCA 260 Regie Nationale des Usines Renault SA v Zhang [2002] HCA 10; (2002) 210 CLR 491 Reichel v Magrath (1989) 14 App Cas 665 Ridgeway v The Queen (1995) 184 CLR 19 Rippon v Chilcotin Pty Ltd [2001] NSWCA 142 Rocklea Spinning Mills Pty Limited v Consolidated Trading Corporation [1995] VSC 15; [1995] 2 VR 181 Rogers v The Queen (1994) 181 CLR 251 Roy Morgan Research Centre Pty Ltd v Wilson Market Research Pty Ltd (1996) 39 NSWLR 311 Sadler v Robins (1808) 170 ER 948 Slough Estates Ltd v Slough Borough Council [1968] Ch 299 Society of Lloyd's v White [2004] VSCA 101 Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460 State Bank of NSW Ltd v Stenhouse Ltd (1997) Aust Torts Rep 81-423 Sterling Pharmaceuticals Pty Ltd v The Boots Company (Aust) Pty Ltd (1992) 34 FCR 287 Tiufino v Warland (2000) 50 NSWLR 104 Thames Launches Ltd v Trinity House Corporation of Deptford Strond [1961] Ch 197 The Daeyang Honey [1993] FCA 584 The Sennar (No 2) [1985] 1 WLR 490 (HL) Thoday v Thoday [1964] P 181; [1964] 1 All ER 341; [1964] 2 WLR 371 Turner v Grovit [2002] 1 WLR 107 (HL) UBS AG v Telesto Investments Pty Ltd [2011] SGHC 170 United Pacific Finance Pty Ltd v Tarrant [2009] NSWSC 630 Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55; (1990) 171 CLR 538 Williams v Society of Lloyd's (1994) 1 VR 274 Zavodnyik v Alex Constructions Pty Ltd (2005) 67 NSWLR 457 Texts Cited: Collins, Dicey, Morris and Collins on The Conflict of Laws (14th ed, 2006) Davies, Bell and Brereton, Nygh's Conflict of Laws in Australia (8th ed, 2010) Handley, Res Judicata: General Principles and Recent Developments (1999) Mortensen, Private International Law in Australia (2006) Spencer Bower, Turner and Handley, The Doctrine of Res Judicata (3rd ed, 1996) Category: Interlocutory applications Parties: Telesto Investments Ltd (First Plaintiff) Scott Francis Tyne (Second Plaintiff) ACN 074 921 109 Pty Ltd as trustee of the Argot Unit Trust (Third Plaintiff) UBS AG (Defendant) Representation: Counsel R Stitt QC (Plaintiffs) J Stoljar SC with L Livingston (Defendant) Solicitors Eakin McCaffery Cox (Plaintiffs) Mallesons Stephen Jaques (Defendant) File Number(s): 10/363808 Judgment 1HER HONOUR: Before me for hearing on 21 November 2011 was an application by the defendant (UBS AG), by notice of motion filed on 24 October 2011, for a permanent stay of proceedings commenced in this Court on 2 November 2010 by the respondents to the motion (to whom I will refer collectively as the Telesto parties). These proceedings have not yet progressed to the stage where a Commercial List Response has been filed, there having been a temporary stay in place pending the outcome of the present application. 2The stay of proceedings is sought pursuant to s 67 of the Civil Procedure Act 2005 (NSW) or the Court's inherent or implied power to control its own processes and procedure, having regard to the existence of separate proceedings in Singapore between the same parties in which an anti-suit injunction was granted against the Telesto parties restraining ( inter alia ) the continuation of proceedings such as the present proceedings and in which at the same time an application by the Telesto parties for a stay of the Singapore proceedings was dismissed. 3UBS AG seeks the stay on four grounds, which it concedes are to a certain extent overlapping: (i) as a matter of comity (on the basis that the continued prosecution of these proceedings is in defiance of the subsisting anti-suit injunction granted in Singapore); (ii) on the basis of an issue estoppel following the dismissal by the High Court of Singapore of the application by the Telesto parties for a stay of the Singapore proceedings (which issue estoppel is said to preclude the Telesto parties from contending in the present proceedings that Singapore is not the appropriate forum for this dispute or that it is not vexatious or oppressive for them to continue to prosecute the present proceedings); (iii) if (contrary to UBS AG's contention) there is not an issue estoppel in the strict sense, then on the basis that it is an abuse of process for the Telesto parties to seek to re-litigate in this Court the forum non conveniens issues which have already been determined in Singapore; and (iv) that (if it is open to the Telesto parties to re-litigate the forum non conveniens issues) the continuation of these proceedings would be vexatious and oppressive having regard to the controversy as a whole. Summary 4For the reasons set out below, I am of the view that: (i) the principles of comity do not require the grant of a permanent stay of the proceedings in this Court, although the principles of comity warrant due recognition being given (in determining whether a stay should be granted) to the exercise of judicial power in Singapore in granting the subsisting anti-suit injunction; (ii) while I consider that there is an issue estoppel which precludes the Telesto parties from contending in the present proceedings that it is not vexatious or oppressive for them to continue to prosecute the present proceedings, in the sense in which those terms were used in Voth v Manildra Flour Mills Pty Limited [1990] HCA 55, I do not consider that this is determinative of the issue as to whether a stay should be granted; (iii) it would be an abuse of process for the Telesto parties to seek to re-litigate in this Court the forum non conveniens issues which have already been determined in Singapore, subject to the qualification that where matters have subsequently come to light which may affect the conclusions that would be reached in relation to that issue then there is no such abuse of process; further, where there is at this stage only the prospect that the same issues will be required to be determined in the substantive proceedings in each jurisdiction I am not satisfied that there is an abuse of process in the maintenance of the present proceedings (in contrast with the position that would apply if the present proceedings were seeking in substance to re-litigate issues already decided in the Singapore proceedings); and (iv) having considered the factors to be taken into account on a forum non conveniens application in this jurisdiction, if the Singapore proceedings will involve the determination of the issues raised in these proceedings in relation to the alleged misleading and deceptive conduct or misrepresentation in relation to the acquisition of investments for the Telesto account (and related issues) then the continuation of these proceedings would be vexatious and oppressive having regard to the controversy as a whole; however, I am not satisfied that there will necessarily be such an overlap any longer in circumstances where the Singapore proceedings are now confined to the claims for declaratory relief and indemnity costs (and whether there is such an overlap will largely be dependent on the course that the Telesto parties now take in relation to their defence of the Singapore proceedings). 5In those circumstances, in the exercise of my discretion I consider it would be appropriate to grant a temporary stay of the present proceedings pending the outcome of the claim by UBS AG in the Singapore proceedings for declaratory relief and indemnity costs. 6If the claim for declaratory relief is determined in favour of UBS AG then that may (as UBS AG contends) dispose of all the issues in the present proceedings by virtue of a res judicata issue estoppel or an Anshun estoppel (though it is not appropriate for me at this stage to express any view on this). If the claim for declaratory relief is unsuccessful, then whether the maintenance of the present proceedings is vexatious or oppressive at that point will depend in my view on the scope of the matters litigated in the Singapore proceedings in its defence (and the overlap between those and the matters sought to be litigated in the present proceedings), subject to any argument that UBS AG might then raise as to the consequence of what has or has not been pleaded or put in issue by way of defence in those proceedings (and the prospect of an Anshun estoppel claim there springs to mind). 7I will, however, hear submissions as to the event upon which the termination of the temporary stay should be conditioned as it may be that the stay need not remain in place beyond some different point in the conduct of the Singapore proceedings. Background Facts 8The background to the present dispute is canvassed in the reasons for judgment handed down by Chong J in the High Court of Singapore ([2011] SGHC 170) on 14 July 2011 dismissing the Telesto parties' appeals against the grant of the anti-suit injunction and the dismissal of their stay application. Senior Counsel for UBS AG, Mr Stoljar SC, appearing with Mr Livingston of Counsel, notes that the factual findings made by his Honour have not been challenged by the Telesto parties (an appeal from his Honour's judgment having been dismissed for want of appearance by the Telesto parties). 9The first plaintiff (Telesto), described by Chong J at para [5] of his reasons as an underlying company of the Dog Star Trust (a purpose trust registered in Jersey in the Channel Islands), is incorporated in Jersey. 10Mr Tyne (the second plaintiff in the present proceedings and a defendant in the Singapore proceedings) is a director (said at [6] of his Honour's reasons to be the controlling mind) of Pole Star Funds Management Pty Ltd, an Australian company through which Mr Tyne controlled the investments of Telesto. (Pole Star was described by Chong J in the Singapore proceedings as being, at all material times, in charge of Telesto's discretionary investment and the sole beneficial owner of the assets in Telesto's account with UBS AG). 11An ASIC search in respect of Pole Star records Mr Tyne's address as director of the company as an address in the United Kingdom, that also being the address disclosed to UBS AG as Mr Tyne's address in the Guarantee. At least having regard to what seems to have transpired when attempts were made to serve Court documents in the Singapore proceedings on Mr Tyne at a Queensland address in late 2010, it appears that Mr Tyne is not infrequently overseas. However, Senior Counsel for the Telesto parties, Mr Stitt QC, has noted that Mr Tyne is currently resident in Australia. 12Mr Tyne was described by Chong J (at [8]) as the common denominator of Telesto, Pole Star and the entity which is the third plaintiff in the present proceedings (to which I will refer, consistently with the terminology adopted by Chong J, as "Argot"). Argot is a company incorporated in Australia and the corporate trustee of the Argot Unit Trust. At [8] of his Honour's reasons, Chong J notes that Mr Tyne was at all material times the director of Argot and the sole beneficial owner of the assets held in Argot's (separate) account with the Singapore branch of UBS AG (opened in 2010). 13UBS AG is a financial institution which carries on business in Singapore (and elsewhere) as a banker. Telesto opened an investment account with the Singapore branch of UBS AG on 3 December 2007. 14From December 2007, Telesto entered into various facility arrangements with UBS AG, pursuant to which UBS AG made funds available to Telesto for the purpose of the purchase of various investments through Telesto's account with UBS AG (those facilities being a short term overdraft facility with a limit, as increased, of USD60 million; an Exchange Traded Derivative Trading Facility with a limit of USD100,000 and an OTC Foreign Exchange and Precious Metal Derivatives Trading Facility with a similar limit as the Exchange Traded Derivatives Facility). The respective facilities were put in place by the acceptance by Telesto of an initial Credit Services Notification Letter (CSNL) dated 12 December 2007 and subsequent CSNLs dated 13 February 2008, 1 June 2008 and 1 August 2008, respectively. Those facilities were to operate in accordance with UBS AG's Account Terms and Conditions (the respective CSNLs, together with the Account Terms and Conditions, being referred to as the Account Agreement). 15Pursuant to the Account Terms and Conditions, Telesto's account and the facilities are "governed by and construed in accordance with the law of the country in which the relevant Account is booked" (that being, in the present case, Singapore) and Telesto, as the account holder, has submitted irrevocably and unconditionally to the non-exclusive jurisdiction of the courts of that country (clause 19.1). 16The funds made available to Telesto under the UBS AG facilities were used to purchase various investments on or to Telesto's account, those investments relevantly including bonds issued by a number of financial institutions in Kazakhstan. Chong J noted that the investments were purchased under the Account Agreement with UBS AG and were secured by way of a Charge Over Asset, that charge described at [14] of his Honour's judgment as also securing all other assets in the account. 17The UBS AG Terms and Conditions, under which the Telesto account operated, permit statements or confirmations issued in relation to investment transactions carried out under the Account Agreement to be retained in a Retained Mail account if (as was the case with Telesto's account) this had been the subject of an instruction under the relevant Account Mandate. The information contained in such a Retained Mail account is accessible electronically by the account holder. The Terms and Conditions also contain provisions under which there is a deemed approval and acceptance by the account holder of investment transaction statements and confirmations in the absence of notification within a specified time of any errors or inaccuracies in the account. These provisions were relied upon by UBS AG in the Singapore proceedings for the submission that Telesto was deemed to have agreed to the investments in question. 18In the present proceedings it was noted that it had been open to Telesto (during the period in which UBS AG later sold the collateral and extinguished the debt owing under the facilities, which was prior to delivery of Chong J's judgment in 2011) to have ascertained the status of the investments in the account by electronically accessing the retained mail account or 'e-banking portal'. The evidence indicates that Telesto did not do so (and that it had not accessed the e-banking portal since June 2010), although there is no suggestion that UBS AG was aware at the relevant time that Telesto had not electronically accessed its retained mail account during the period in which the collateral was sold by UBS AG in reduction of the debt owing to it. 19In September 2008, the value of the collateral provided by Telesto in respect of the borrowings under its facilities with UBS AG decreased, leading to a margin shortfall in its account and, over the period from September 2008 to late 2009, there were discussions between Mr Tyne and UBS AG (at least some of which took place in Singapore) as to the basis on which UBS AG might be prepared not to exercise its right under the terms of the facilities to sell the collateral or to make further margin calls in relation to amounts owing under the facilities. 20On 26 September 2008, Mr Tyne executed a guarantee and indemnity in favour of UBS AG, under which he guaranteed all the obligations and liabilities of Telesto owing to UBS AG under the respective facilities. The guarantee was expressly said to be governed by "and construed in all respects in accordance with" the laws of Singapore. Mr Tyne has, under the Guarantee, submitted to the non-exclusive jurisdiction of the Singapore courts and such other jurisdictions as UBS AG might deem fit (clauses 27.1 and 27.2). 21On 29 October 2008, UBS AG issued a Notice of Margin Call to Telesto, noting that the collateral provided by Telesto was no longer sufficient to meet the required margin in respect of Telesto's obligations and that, as at 28 October 2008, the shortfall was USD28,159,607. The Notice required Telesto immediately to deposit additional collateral (or, if applicable, to terminate or deal with transactions booked in its account) so as to restore the required margin. 22The October 2008 margin call was not met and on 22 December 2008 UBS AG notified Mr Tyne that a Default Event had occurred and that the full amount of the "Total Liabilities" (as defined in the Account Agreement) was immediately due and payable. However, that letter went on to advise that "In recognition of your full cooperation to date", and subject to certain stated provisos, UBS AG would "suspend enforcement of its rights under the Account Agreement for the time being". The letter contained an express reservation of UBS AG's rights and, further, stated that nothing therein was to prejudice any right of UBS AG. 23A proposed "Standstill Agreement" dated 23 April 2009 was forwarded to Telesto in April 2009 but that document was not signed by Telesto and there is no suggestion that a binding agreement on the terms contained in that document ever came into existence. Nevertheless, it appears that during this period no steps were taken by UBS AG either to enforce its rights in relation to the collateral or to make any further margin call. 24The arrangements by which a standstill or suspension of enforcement by UBS AG of its rights in relation to the facilities was ultimately put in place were not finalised until December 2009 (after the default in May 2009 of some of the Kazakhstan investments which comprised part of the collateral and after further (unsatisfied) demands had been made, again in May 2009, on both Telesto and Mr Tyne). 25By letter dated 14 December 2009, countersigned by Telesto by way of acceptance of those terms on 31 December 2009, (the Standstill Agreement) UBS AG set out the terms on which it agreed (without prejudice to its rights under the Account Agreement) not to liquidate the collateral or to make further margin calls or call for further collateral until 31 March 2011 or the occurrence of an earlier event of default. In consideration for that agreement of UBS AG, Telesto agreed, inter alia , to procure a letter of undertaking from Argot (as trustee of the Argot Unit Trust) in favour of UBS AG. (Also as part of the arrangements contemplated by the Standstill Agreement, Telesto and Argot assigned to UBS AG the proceeds of certain litigation brought against a third party in Victoria.) 26On 28 January 2010, Argot executed the Letter of Undertaking. The Letter of Undertaking expressly stated that it was to be " exclusively governed by and construed in accordance with the laws of Singapore" and that the " exclusive place of jurisdiction for any disputes arising out of and in connection [therewith]" was to be Singapore (my emphasis). Under the Letter of Undertaking, Argot undertook to open an account with UBS AG and to charge all and any assets held within that account as a continuing security in favour of UBS AG to secure Telesto's liabilities to it. Argot also agreed to apply the proceeds of the Victorian litigation (the subject of the assignment referred to in [21] above) directly to the Argot account towards repayment of Telesto's liabilities to UBS AG. (The Argot account was opened on or about 14 May 2010. Chong J noted in his judgment that the Argot account is governed by Singapore law and subject to the exclusive jurisdiction of the Singapore courts.) 27The Standstill Agreement (which contained no express choice of jurisdiction or choice of law clause) made provision for its termination on the occurrence of certain events of default, those including the failure of Telesto or Argot to comply with any of the conditions of the Letter of Undertaking; the failure of Telesto to comply with any of the conditions under the Standstill Agreement; and the occurrence (in the reasonable opinion of UBS AG) of a material adverse change in Telesto's financial condition or operating environment or of any event or circumstances causing UBS AG to believe that Telesto may not be able to comply with or perform any one or more of its obligations. 28UBS AG has alleged (and Mr Stoljar submits, by reference to [32]-[34] of his Honour's judgment, that Chong J has found) that three events of default occurred under the Standstill Agreement in the period between 31 December 2009 and October 2010, including the making by Telesto's solicitors in Australia of claims against UBS AG in relation to what have been referred to as the "Kazakh Bonds", by reason of which UBS AG formed the opinion that Telesto might not, or might be unable to, perform or comply with any one or more of its obligations. It is contended that the effect of the occurrence of the Events of Default was that the Standstill Agreement was terminated and the amounts owed by Telesto under the facilities (and guaranteed by Mr Tyne) then became due. 29It appears (having regard to the email communications referred to in the Telesto parties' submissions on the present application) that during that period there were communications between the parties on a without prejudice basis in relation to the account. The admissibility of those without prejudice communications must be doubtful but in any event there is other correspondence which indicates that by 8 October 2010 UBS AG was on notice of an intention or stated intention (on the part of at least Telesto) to commence proceedings in Australia in respect of matters in dispute between the parties in relation to the account. 30The letter dated 8 October 2010 (relied upon by UBS AG as giving rise to an event of default under the Standstill Agreement) from Eakin McCaffery Cox (the solicitors acting for Telesto in Australia) was one in which UBS AG was advised that, the lawyers having been engaged "potentially [to] commence legal proceedings against UBS AG in Australia", they were instructed to commence proceedings against UBS AG on 16 October 2010 or as soon as practicable. The letter raised various allegations against UBS AG: the undertaking by UBS AG of a series of trades purportedly on behalf of Telesto without authority; the misrepresentation or omission by UBS AG of material facts in its promotion of debt securities issued by financial institutions in Kazakhstan; false and misleading conduct by UBS AG in relation to the provision of a financial service under Australian law; and the inducement by UBS AG of a financial institution in Kazakhstan to default upon debt securities issued by it in breach of its contract with third parties. (There was no express allegation of any breach of fiduciary duty by UBS AG as is now also made against it, though nothing turns on this.) The letter also adverted to the possibility of "collective legal action" by "purchasers of Kazakh bank debt" and sought details of any agent of UBS AG upon whom service could be effected in Australia on and from 16 October 2010. 31On 11 October 2010, UBS AG issued a certificate of indebtedness (which, under the terms of the Account Agreement, was said to be conclusive) certifying the total liabilities due and owing from Telesto to UBS AG in respect of Telesto's account to be USD12,617,499.56 as at 14 October 2010. 32On 15 October 2010 (ie, the day before the date on which Telesto's Australian lawyers had foreshadowed that service of court documents in Australia would or might occur), a number of steps were taken by UBS AG. It issued to Telesto a notice of termination of the Standstill Agreement, advising that Events of Default set out in the Standstill Agreement had occurred and that pursuant to the terms of that agreement it "has terminated, ceased to be binding on the Bank and is of no further effect". (Mr Stitt suggests that this was done in order to give rise to a liquidated sum able to be claimed by UBS AG and emphasises that, according to its terms, once terminated the Standstill Agreement was thereafter of no further effect.) In that notice of termination, UBS AG demanded payment of the Total Liabilities due as at 14 October 2010 in the amount that had on 11 October 2010 been certified as owing. UBS AG also issued to Mr Tyne, as guarantor, a demand for payment of the said total liabilities. Further, it commenced proceedings against both Telesto and Mr Tyne in the High Court of Singapore. (Argot was not joined as a party to those proceedings.) 33In its Statement of Claim filed in the Singapore proceedings, UBS AG not only sought recovery of the Total Liabilities then owing under the facilities and indemnity costs, it also sought declaratory relief (namely, a declaration that Telesto and Mr Tyne "are estopped from asserting, and/or have compromised, any claims or defences they may have arising out of, or in relation to, the Investments and/or the Total Liabilities, including, but not limited to, the acquisition or management of the Investments and/or the Total Liabilities". The capitalised terms in the declaration so sought were as defined in the Statement of Claim: "Investments" being a reference to the investments, including bonds, purchased for the account by utilization of the facilities; "Total Liabilities" referring to the definition contained in clause 1 of the General Account Terms and Conditions.) By reference to the fact that declaratory relief was sought from the outset, Mr Stoljar submits, and I accept, that it is incorrect for the Telesto parties now to characterise the Singapore proceedings as primarily a monetary claim. 34The declaration claimed in prayer 1 of the Statement of Claim does not in its terms source the estoppel/compromise in the terms of the Standstill Agreement itself. In the body of the pleading, the estoppel (and/or compromise) is pleaded as arising " by reason of the Standstill Agreement, alternatively, the Implied Agreement" ([25]) (my emphasis). The reference to an Implied Agreement is a reference to the implied agreement alleged in [24] of the Statement of Claim, namely an implied agreement by the defendants (Telesto and Mr Tyne) to waive and/or not to raise any claims or defences they may have arising out of, or in relation to, the Investments and/or the Total Liabilities, including, but not limited to, the acquisition or management of the Investments and/or the Total Liabilities. The implied agreement is pleaded as having arisen "[b]y, and in consideration of" the entry by UBS AG into the Standstill Agreement and the conferral on (and receipt by) the defendants of the benefits under the Standstill Agreement. Hence, the fact that the Standstill Agreement expressly provides that it is of no further effect once terminated would not of itself appear to preclude reliance by UBS AG on an estoppel or compromise arising from the fact of entry into the said agreement or the conferral and receipt of benefits thereunder. 35By letter dated 18 October 2010, Eakin McCaffery Cox responded, on behalf of both Telesto and Mr Tyne, to the 15 October 2010 letters in which the demands on termination of the Standstill Agreement were made, advising that they would now commence proceedings against UBS AG and would effect service in Singapore. 36Also on 18 October 2010 (but it is not clear whether this was before or after receipt of the above communication), a request was made on behalf of UBS AG of the solicitors then acting for Telesto and Mr Tyne in Singapore for instructions as to whether those Singapore solicitors were authorised to accept service on behalf of the Telesto defendants of the UBS AG writ in the Singapore proceedings. (The making of such a request thus put the Singapore solicitors on notice of the commencement of proceedings in Singapore at a time before any proceedings in Australia had been commenced.) 37Instructions to accept service not apparently being forthcoming, an application was then made by UBS AG in Singapore for leave to serve the writ out of the jurisdiction and an order for service out of the jurisdiction of the originating process in the Singapore proceedings was made on 19 October 2010. 38The writ in the Singapore proceedings was served on Telesto in Jersey on 5 November 2010 (and a Memorandum of Appearance was subsequently filed on Telesto's behalf in the Singapore proceedings on 24 November 2010). As far as service on Mr Tyne was concerned, a copy of the writ was sent by first-class registered post to the UK address nominated in the 2008 Guarantee executed by him. (The Guarantee makes express provision for service by such means and deems this to be good and effective service - clause 27.3.) However, the envelope containing the writ was returned unopened (bearing a postal sticker dated 23 October 2010 and recording delivery as having been "refused"), at which point enquiries were again made of the Singapore solicitors as to acceptance of service on Mr Tyne's behalf of the writ (and again those instructions were not forthcoming). Orders were then made in Singapore to permit service of the writ on Mr Tyne by leaving a copy at a Queensland address or care of his Sydney solicitors. Service was duly effected on Mr Tyne in Sydney, by way of service on his solicitor, on 14 December 2010. (At [43] of his Honour's judgment, Chong J comments that the delay in service of the Singapore writ was probably due to the fact that Telesto's previous solicitors in Singapore did not agree to accept service on Telesto's behalf and hence it was necessary for UBS AG to apply for service of the writ out of the jurisdiction.) 39Meanwhile ( after commencement of the Singapore proceedings but before service of the writ on either Telesto or Mr Tyne) the present proceedings were commenced by the Telesto parties (including Argot which, as noted earlier, had agreed that Singapore was the exclusive jurisdiction to which the Argot account was subject). A Summons and a Commercial List Statement were filed in this Court on 2 November 2010 (both having since been amended) and service of those documents was effected on UBS AG in Singapore on 3 November 2010 (two days prior to service of the writ in the Singapore proceedings on Telesto in Jersey). 40In the New South Wales proceedings, the Telesto parties have sought declaratory relief (namely, a declaration that the investment transactions "purportedly" entered into between 14 January and 11 February 2008, referred to as the Kazakh Bonds, were entered into by UBS AG without Telesto's authority) as well as orders for the avoidance ( ab initio or from a later date) of the relevant transaction documents (including the facilities, the guarantee, the Standstill Agreement and the Letter of Undertaking signed by Argot) or, alternatively, orders to restrain UBS AG from taking any action to enforce any right or entitlement arising under any such instrument. By way of consequential relief, damages; statutory damages or compensation pursuant to various Acts; and equitable compensation are sought. 41Having regard to the above chronology of events, it is apparent that, as at the time UBS AG commenced its proceedings in Singapore, it was on notice that at least one of the Telesto parties (Telesto) had expressed an intention, through its lawyers, to commence proceedings against UBS AG in Australia in relation to matters going to the validity or enforceability of the transactions the subject of the monetary claim by UBS AG in its writ in the Singapore proceedings (although UBS AG was not by then aware of the precise way in which the claim was to be pleaded against it, simply of the allegations that had been contained in the 8 October correspondence) - a fact relied upon by Mr Stitt in support of his contention (disputed by UBS AG) that UBS AG has had an agenda to frustrate the New South Wales proceedings. 42However, it is also the case that, as at the time the Telesto parties commenced the present proceedings in this State, their solicitors in Singapore were on notice (and so, Mr Stoljar submits, through them also were the Telesto parties), through the requests made in relation to the service of process in that jurisdiction, that proceedings had already been commenced by UBS AG in Singapore against Telesto and Mr Tyne. (Again, however, neither Telesto nor Mr Tyne was at that stage on notice of the precise claims being made against them in the Singapore proceedings, not yet having received the writ in those proceedings.) 43Pausing there, I do not consider that any adverse inference (of an intention to frustrate proceedings in this Court that had been foreshadowed but were not yet on foot) should be drawn from the commencement by UBS AG of the proceedings in Singapore simply because UBS AG was then on notice of an asserted intention of Telesto to commence proceedings in New South Wales (any more than an inference should be drawn that the Telesto parties, being on notice through their Singapore solicitors of a request to accept service of process, that might suggest that proceedings of some kind had been commenced against one or more of them in Singapore, were seeking to frustrate the Singapore proceedings). What seems to me to have occurred is that both parties were in the throes of commencing proceedings at or about the same time and were seeking to do so, as most if not all plaintiffs do, in the forum of their own choosing. 44In the New South Wales proceedings, the Telesto parties contend that the Kazakhstan investments were not properly authorised; that UBS AG has breached a duty of care owed to each of the Telesto parties and/or has engaged in misleading or deceptive conduct in breach of various statutory prohibitions thereon (in relation to advice given in respect of the investments and an alleged failure to disclose certain matters in relation to the investments); and that UBS AG has breached fiduciary duties owed to them (most of those matters having been the subject of allegations contained in the 8 October correspondence). 45In respect of the lack of authority issue, it is alleged that UBS AG had been advised by Mr Tyne in mid 2008 that Pole Star (the investment manager of Telesto's investment portfolio) had limited authority and that express authority was required for investment in securities other than "investment grade" debt securities. 46As to the claim in tort or for misleading and deceptive conduct, this relates to the alleged giving of oral recommendations and advice to Mr Tyne, in various telephone conversations in late 2007, in relation to the "Kazakh Bonds" and the alleged failure of UBS AG to disclose certain matters in relation thereto. The said recommendations or advice are attributed, inter alia , to what was said in one or more telephone conversations between Mr Tyne, who was apparently in Australia at the time, and an officer or employee then but no longer employed by UBS AG and then resident in Singapore (Mr Betsalel), about whom I will say more later. 47As to the alleged breach of fiduciary duties said to have been owed to Telesto in relation to the account, it is alleged that UBS AG acted as advisers to one of the Kazakhstan financial institutions (the institution that had defaulted on payment of coupons owed to bond holders, including Telesto, in May 2009) and that the decision by that Kazakhstan institution to default on coupon payments was on advice given by, or with the concurrence of, UBS AG. 48On 11 November 2010, steps were taken by UBS AG to resolve the question of the forum in which the parties' disputes should be determined. It commenced proceedings in Singapore joining each of the Telesto parties (including Argot who, as noted above, was not a party to the Singapore proceedings commenced the previous month), seeking an anti-suit injunction against them and on 9 December 2010, an application was made by UBS AG (by notice of motion in this Court) for a temporary stay of the New South Wales proceedings pending determination of its application for an anti-suit injunction in Singapore. Consent orders were made (without prejudice to the position of the parties in the anti-suit application) for such a stay. (From March 2011, successive adjournments of these proceedings have been ordered by this Court, with the result that no Commercial List Response has yet been required to be filed by UBS AG in the proceedings in this Court.) 49On 21 December 2010, Telesto applied in Singapore for a stay of the Singapore proceedings on the basis of forum non conveniens (thus itself invoking the jurisdiction of that court to determine the issue as to where the disputes should be heard). Mr Tyne in turn filed a similar stay application in the Singapore proceedings on 10 January 2011. 50The respective anti-suit and stay applications came before Assistant Registrar Tan in the High Court of the Republic of Singapore on 11 February 2011. At that time the total liabilities claimed from Telesto by UBS AG were in excess of USD12m. That was also the case on 21 February 2011, when the Assistant Registrar made orders in chambers dismissing the applications by Telesto and Mr Tyne for a stay of the Singapore proceedings on the ground of forum non conveniens and granting an anti-suit injunction against Telesto, Mr Tyne and Argot from prosecuting or continuing to prosecute the Australian proceedings. 51The orders made in February 2011, relevantly, were in terms that: 1. The Defendants [ie the Telesto parties] are to forthwith withdraw and discontinue, and are hereby restrained from prosecuting, or continuing to prosecute [the New South Wales proceedings]. 2. The Defendants be and are hereby restrained from commencing or continuing any further or other proceedings of any nature in Australia or anywhere else in the world against the Plaintiffs arising from, relating to, and in connection with [any of the matters specified in paras (a) - (n), which relevantly include the UBS AG account; the various transaction documents; the Standstill Agreement; any alleged breach of fiduciary duties by the plaintiffs on account of the engagement of UBS Limited in relation to the crisis in Kazakhstan banks; and "any and all claims or defences the Defendants may have arising out of, or in relation to, the Investments and/or total liabilities ... including, but not limited to, the acquisition or management of the Investments and/or the Total Liabilities"] ... otherwise than in the High Court of the Republic of Singapore. 52The orders made by the Assistant Registrar also noted the agreement of the parties that, notwithstanding orders [1] and [2], in the event that an appeal were to be filed against the Assistant Registrar's decision, no steps were to be taken in the New South Wales proceedings (which were to be suspended pending disposal of the said appeal). 53On 28 February 2011, the Telesto parties lodged notices of appeal from the orders made by Assistant Registrar Tan. 54During March 2011, UBS AG informed Telesto in writing of its intention to take steps to realise the collateral in Telesto's account and to apply the proceeds to reduce the liabilities owing in respect of the account (see letters dated 8 March 2011 and 24 March 2011 exhibited to the affidavit affirmed 7 November 2011 of UBS AG's solicitor, Ms Mills). 55On 16 May 2011, the appeals from the decision of Assistant Registrar Tan were heard by Chong J in the High Court of Singapore. By this time, the Total Liabilities owing by Telesto had been reduced, by way of realisation of part of the collateral held by UBS AG, to a sum of around or in excess of USD5 million. His Honour reserved judgment. The appeals were subsequently dismissed on 14 July 2011 (by which time the Total Liabilities owing under the facilities, recovery of which had been sought in the Singapore proceedings, had been wholly discharged). 56Mr Stitt places weight on the fact that Chong J was not notified by UBS AG, prior to delivery of his reasons for judgment, of the extinguishment of the debt claimed in the proceedings (submitting that UBS AG was obliged to act with equity and good conscience when seeking the anti-suit injunction and should have notified Chong J before judgment that the debt no longer existed; and that had this been made known to his Honour this might have had a determinative effect on the decision whether to grant relief at all and as to costs) as again suggestive of an agenda on the part of UBS AG to frustrate proceedings in this Court. UBS AG does not accept that it had an obligation so to inform his Honour and does not accept that there is any reason to have expected that this was a fact that would have been relevant to his Honour's decision (having regard to the basis on which his Honour determined the application). 57I consider in due course what weight, if any, should be placed on the non-disclosure of this matter to Chong J. Suffice it at this stage to note that the submission that UBS AG did not act with good conscience with respect to the proceedings in Singapore and the obligations owed to the Court in this regard sits somewhat uncomfortably with the fact that the Telesto parties are themselves in apparent breach of orders made against them in Singapore. It does not seem to be disputed that the anti-suit injunction granted in February 2011 (and which as a consequence of Chong J's dismissal of the appeal has not been discharged) remains in place. Nor was it suggested that the injunction was not binding on each of the Telesto parties; rather, it is contended for the Telesto parties that the subsistence of the anti-suit injunction is not determinative of the application now before me. Mr Stoljar notes that in the context of the present application the Telesto parties have taken positive steps in the proceedings (contrary to the terms of the anti-suit injunction) in that they have served a Notice to Produce and have also taken steps to resist the present application for a stay. Needless to say, there has been no compliance with the order that the Telesto parties withdraw or discontinue the New South Wales proceedings. 58On 25 July 2011, the Telesto parties filed an application for leave to appeal from the decision of Chong J but there was no appearance for them at the hearing of that application, which was dismissed on 16 September 2011. The present notice of motion was filed by UBS AG on 24 October 2011. 59UBS AG has confirmed that it will continue to prosecute the Singapore proceedings in order to seek judgment on its claim for declaratory relief and indemnity costs. I was informed that the Singapore proceedings were listed for a pre-trial conference only a few days after the hearing of the present application before me but I am not aware what directions, if any, were made on that occasion for the preparation of the matter for trial. As at the time of the application before me, I understand that no defence had yet been filed by Telesto or Mr Tyne in the Singapore proceedings. (This is relevant when considering the likely ambit of the proceedings in Singapore now that the debt owing to UBS AG has been extinguished.) 60After having reserved my decision on the present application, I was appraised by the solicitors acting for the respective parties of various matters: first, that Mr Betsalel (the ex-employee of UBS AG whose compellability or otherwise to give evidence in New South Wales was a matter that Chong J had considered relevant, though not determinative, when determining the stay application) had relocated from Singapore to Hong Kong, though the Telesto parties' solicitors subsequently advised that Mr Betsalel had since altered his instructions to state that he may not now be moving to Hong Kong; and, secondly, that Argot was deregistered on 8 January 2012 (though the Telesto parties' solicitors have advised that Mr Tyne is taking action to have the company restored to the register and have referred to their client's instructions to the effect that the deregistration occurred in error or by inadvertence). 61As to Mr Betsalel's position, Eakin McCaffery Cox have advised (and this is consistent with the submissions made by Mr Stitt during the hearing) that Mr Betsalel has confirmed he is prepared to give evidence for the Telesto parties and to travel to Australia for cross-examination (a matter the subject of evidence and/or submissions before Chong J); the solicitors for UBS AG, Mallesons Stephen Jaques, have reiterated the submissions made by Mr Stoljar at the hearing of this application as to the views expressed by Chong J in that regard and have indicated that they are not aware of Mr Betsalel's present address (and hence that they have not been able to contact him). Judgment of Chong J 62Before turning to the issues for determination, I summarise below the relevant findings made in the reasons for judgment handed down by Chong J in the High Court of Singapore on 14 July 2011 when dismissing the respective appeals by the Telesto parties. (While UBS AG contends that an issue estoppel arises in respect of many of the findings of fact made by his Honour, I note that in each instance that will depend on whether the factual finding was necessary in the reasoning that led to determination of the relevant issue. That said, on a number of the factual issues there does not seem to have been any serious dispute before his Honour or at least no reference to such in his Honour's reasons for judgment.) 63His Honour observed that both appeals related to the issue as to which of the two jurisdictions (Singapore and Australia) was "the more appropriate forum to hear and decide the dispute between the parties arising from a customer-banker relationship" ([1]). His Honour also noted the concession made by Counsel appearing for the Telesto parties in Singapore (an important concession in Mr Stoljar's submission) that their claim in Australia could essentially be mounted as a defence to the claim by UBS AG in the Singapore proceedings ([2]), his Honour later describing the respective positions of the parties on the ultimate issue in dispute as being two sides of the same coin ([57]) (ie, whether UBS AG is entitled to repayment of the Total Liabilities under the contractual documents or whether the defendants were entitled to rescission or damages in respect of the investment in the Kazakh Bonds). 64Insofar as it was submitted by Mr Stitt on the present application that the New South Wales proceedings are not, as Chong J considered they were (and, relevantly, as Counsel for the Telesto parties in Singapore seems to have conceded), "essentially in the nature of defences to avoid liability to the claims bought by UBS AG in the Singapore proceedings" or "two sides of the same coin" or "in truth the defences against the claim by UBS AG", Mr Stitt stating that the claim for damages under the Trade Practices Act greatly exceeds the amount that was claimed by UBS AG in the Singapore proceedings and persists despite the Telesto debt having been extinguished, Mr Stoljar submits that the concession made in the Singapore proceedings was correct and was properly made but that in any event the Telesto parties should not now be permitted to depart from it. This in my view reinforces the concern expressed by UBS AG as to the re-litigation of issues already determined in those proceedings. The concession made by the Telesto parties' own Counsel in Singapore, which was noted by his Honour and seems to have been relied upon as support for the conclusions that Chong J reached on his own analysis of the pleadings (see [2], [57] and [85]) is one from which the Telesto parties should not now be permitted to resile (at least not without any explanation for the apparent withdrawal from that concession). 65At [37], his Honour noted that to that date neither Telesto nor Mr Tyne had made payment of the sum demanded of them. (This indicates that his Honour was of the belief that the full amount of the Total Liabilities remained outstanding at that stage. It is not disputed in the present proceedings that the debt in respect of the Total Liabilities was fully extinguished in late June 2011, his Honour's judgment being handed down about two weeks later.) 66His Honour noted that at the hearing of the appeals he had directed Counsel for the Telesto defendants to proceed first with the appeal in relation to the stay applications on the basis that if it were to be decided that a stay of the Singapore proceedings should be granted (on the ground that Singapore was not the more appropriate forum to try the matter) then logically the appeal against the decision to grant the anti-suit injunction would be allowed but that the converse was not the case (since the fact that Singapore was the natural or more appropriate forum to hear the dispute did not per se mean that the anti-suit injunction must necessarily be ordered - that also depending on whether other requirements were established by UBS AG to justify the grant of an anti-suit injunction, such as whether the Australian proceedings were vexatious and/or oppressive) ([49]). 67In considering the appeal from the decision on the stay application on the basis of forum non conveniens , Chong J applied (and noted that the parties were ad idem as to the applicability of these principles) the principles laid down in Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460. His Honour noted that the first stage of the Spiliada test required that the Telesto defendants establish that Australia was clearly or distinctly the more appropriate forum to try the dispute (that not being the issue to be determined on a forum non conveniens application in this Court). 68In considering the various connecting factors for the purpose of the application of this test, his Honour accepted UBS AG's submission that the Standstill Agreement was governed by Singapore law, noting that it was not a "standalone contract" but was executed to supplement and/or modify the rights and obligations of the parties under the Account Agreement ([64]). (His Honour also noted the concession by the Telesto defendants' Counsel during the hearing that Singapore was clearly the natural forum for the determination of the claims by UBS AG under the various contractual documents ([66]). 69In considering the Telesto defendants' submission that Australia was the more appropriate forum to try the matter having regard to the allegations as to misrepresentations by UBS AG said to have been received and acted upon by Mr Tyne in Australia (which his Honour said was "admittedly the only connection which the dispute has with Australia" [71]), his Honour found that the place of the tort of misrepresentation was Singapore and not Australia ([80]). At [79], Chong J had observed that "It is pertinent to point out that the tort in the present case did not occur without a contractual context: but for the banking relationship between UBS AG and Telesto which stemmed from the various banking instruments between the two parties, Mr Betsalel and/or Mr Farrell would not have spoken to Mr Tyne about the Kazakh Bonds to begin with". 70His Honour nevertheless went on to observe that even if the tort had occurred in Australia in his view that was not in his view in and of itself sufficient to displace Singapore as the natural forum to determine the entire dispute. (Thus it cannot be said that the finding by his Honour as to the lex loci delicti for the tort of misrepresentation was fundamental to his Honour's conclusion on the stay application so as to give rise to an issue estoppel.) 71Mr Stoljar submits that the finding by Chong J that the place of reliance on Mr Betsalel's alleged misrepresentation was Singapore (and hence that the lex loci delicti for the tort for misrepresentation was Singapore and not Australia) ([80]) was correct, the alleged misrepresentations having been acted upon by communication of instructions to officers of the bank in Singapore. For the reasons I set out later, I do not accept that submission. 72Chong J concluded that at [87] that "The attempt to displace Singapore as the natural forum for UBS AG's claim [by asserting what his Honour described as "essentially a tortious defence in the guise of a claim in Australia"] ... is disingenuous" and that the stay application was nothing more than an instance of forum shopping by the Telesto defendants. 73At [88], his Honour held that Singapore was not only the natural forum of the dispute but was clearly and distinctly the more appropriate forum for the determination of the dispute between the parties. On that basis his Honour dismissed the appeal against the decision not to grant a stay of the Singapore proceedings. Accordingly, his Honour's consideration of the second stage of the Spiliada test, namely as to whether the ends of justice required the stay of the proceedings, was in that sense obiter . Nevertheless, the conclusion reached by his Honour in relation to the second stage of the Spiliada test (in particular, as to the claim by the Telesto defendants that if the stay were not granted they would be deprived of the juridical advantage of pursuing the statutory claims for misleading and deceptive conduct available to them in this jurisdiction) formed part of the reasoning in relation to his decision on the anti-suit injunction and thus was not obiter in that context. 74In the Singapore proceedings, the Telesto defendants relied upon an expert opinion from Senior Counsel in New South Wales (Mr J T Gleeson SC) as to the relevant Australian legislation and the juridical advantages available to the Telesto defendants thereunder (those being, broadly, the reversal of the evidentiary onus where the representation in question is as to a future matter; the absence of any requirement for the plaintiff to prove or plead intent, negligence or carelessness in the conduct alleged to be misleading or deceptive; the "remedial smorgasbord" provided by the legislation; issues as to causation, remoteness/foreseeability, and the lack of any constraint imposed by limitations on the right to rescind for misrepresentation at common law). 75Chong J noted that Mr Gleeson did not conclude that the differences he had identified would make a material bearing on the outcome of the dispute given the specific facts of the case ([97]). His Honour, having reviewed the opinion of Mr Gleeson and having compared it with the position under the law of Singapore in relation to the same issues, concluded that there were no significant or material differences which would make it unfair or unjust for the case to be heard in Australia and hence that, had stage one of the Spiliada test had been satisfied (which it was not), UBS AG would not have satisfied the burden of proof under stage two of the Spiliada test ([96]). (The corollary of this, relevant for the purposes of the appeal in relation to the grant of the anti-suit injunction, was that his Honour considered that the Telesto defendants would not be deprived of any substantial juridical advantages if not able to pursue their claims in the New South Wales proceedings.) His Honour concluded that although there may be some differences between the relevant laws of the two countries they did not translate into any material difference on the specific facts of the present dispute ([101]). 76As to the differences (and potential advantages for a claimant) between the Australian statutes proscribing misleading conduct and the laws of Singapore, Mr Stoljar submits that the finding by Chong J (at [92]-[95]) (that these did not translate into any material differences on the specific facts of the present dispute and did not displace the natural forum (Singapore)) was based upon a close analysis of the specific allegations of misrepresentation made in the New South Wales proceedings ([96]-[101]). He further submits that the conclusion that the alleged representations were not with respect to "future matters" (but, rather, were as to present facts pertaining to the status or suitability of the Kazakh Bonds [99]) is binding on the Telesto parties. Insofar as that was a finding on a question of law that was a fundamental or necessary part of the reasoning on the determination of the anti-suit injunction, I accept that an issue estoppel would arise on that issue (even if that might not have been the conclusion that would be drawn in this jurisdiction - and I make no comment as to whether that would be the case). 77Having dismissed the appeal in relation to the stay application, his Honour turned then (from [106]) to consider the appeal in respect of the anti-suit injunction, noting that an anti-suit injunction is not invariably granted whenever a stay is refused; that such jurisdiction must be exercised with caution; and that such an injunction should only be granted and justified in the clearest of circumstances that the foreign proceedings are vexatious or oppressive [109]. 78Chong J then considered the five factors set out in [108] of his judgment, relevantly applying in this regard his findings that Singapore was the natural forum of the dispute and that there were no differences of sufficient materiality between Australian and Singapore law on the common issues in dispute (the latter in answer to the submission for the Telesto defendants that injustice would be caused to them if the anti-suit injunction were maintained because they would be deprived of substantial juridical advantages under Australian law). 79His Honour found that the institution of the proceedings in this Court was not in breach of any contractual obligation other than Argot's Letter of Undertaking. In regard to Argot his Honour accepted that there was no issue of parallel proceedings so far as Argot was concerned, as it was not a party to the Singapore proceedings, and he accepted that, while its claim in isolation could be construed as a breach of the exclusive jurisdiction provision, that breach would assume significance only if the commencement of the proceedings by Telesto and Mr Tyne "is somehow wrongful and/or vexatious", since it hinged on the outcome of the declaratory relief sought by those parties in the Australian proceedings - thus his Honour considered that the fate of Argot's claim in the Australian proceedings would abide the outcome of the analysis vis a vis the other Telesto defendants' claims ([113]). 80His Honour explicitly approached the matter on the basis that, in order to justify the continuation of the anti-suit injunction, it was necessary for UBS AG to prove vexatious and/or oppressive conduct independent of the non-exclusive jurisdiction clauses [127], noting that the vexatious or oppressive ground is a separate and independent basis for an anti-suit injunction ([128]). His Honour there applied the following passage at [12-073] in Dicey, Morris & Collins on Conflict of Laws vol 1: [12.073] In the result, an injunction may be granted if England is the natural forum for the resolution of the dispute and the proceedings in the foreign court are vexatious or oppressive. English courts have refrained from giving a comprehensive or limiting definition of these expressions; indeed, they have deliberately refrained from marking the outer extent of their power to act to restrain conduct which may give rise to injustice or, if the need for caution is given its due weight, serious injustice. It has been held that vexation or oppression may be indicated by the following: subjecting the other party to oppressive procedures in the foreign court, especially a party with no substantial connection with that jurisdiction; bad faith in the institution of the proceedings, or the institution of proceedings which are found to fail, extreme inconvenience caused by the foreign proceedings; multiplicity of actions, especially where the foreign action might spawn further consequential litigation which might not be reconcilable with the foreign decision; bringing proceedings which interfere with or undermine the control of the English court of its own process; bringing proceedings which could and should have formed part of an English action brought earlier; bringing proceedings for no good reason in a court which will disregard an express choice of English law . (my emphasis) 81Chong J considered matters such as whether the institution and maintenance of the New South Wales proceedings amounted to subversion of the choice of law clauses in the respective transaction documents; the timing of the commencement of the proceedings in Australia (in the context of which his Honour said he would be slow to impute to Telesto any ulterior motive of 'getting ahead' before the Singapore proceedings, given that the Australian proceedings had been foreshadowed by Telesto in advance), his Honour according little weight to the order in which the claims were brought in the competing jurisdictions (as this would encourage a 'rush to fire the first shot'); and the possibility of there being conflicting judgments in the context of the non-exclusive jurisdiction clauses in the parties' agreements. 82His Honour then proceeded on the basis that if UBS AG were able to show that the Telesto defendants would not suffer injustice if the foreign proceedings were restrained then an anti-suit injunction should be granted since the Singapore court was the natural forum of the dispute ([150]). Summing up his views in that regard, his Honour concluded that the commencement of the Australian proceedings was not in breach of contract (apart from the position of Argot); that there was no presumption that the multiplicity of proceedings was vexatious; that the possibility of conflicting decisions, while undesirable, was not in and of itself vexatious or oppressive; that the claims and issues in both proceedings were essentially similar though not identical; and that, although there might be some differences between the respective laws on the common issues, those differences were overstated and not of sufficient materiality to displace the natural forum, Singapore ([151]). 83His Honour noted that there had been heavy reliance by the Telesto defendants on the perceived juridical advantages of suit in Australia as leading to the conclusion that the defendants would suffer injustice if the anti-suit injunction were not discharged. At [153], Chong J (having earlier noted that the court will not grant an injunction if by so doing it will deprive the respondent of advantages in the foreign forum of which it would be unjust to deprive him) said this of the rationale for the proposition that in order to justify the grant of an anti-suit injunction the applicant must show that the forum court is the natural forum and that justice does not require that the action should nevertheless be allowed to proceed in the foreign court: ... if there is no advantage which the defendant would be deprived of if the foreign proceedings are restrained, then there is no reasonable explanation for not defending or pursuing the claim in the natural forum. Consequently, the court is entitled to conclude or infer that the defendants in instituting such foreign proceedings are indeed acting vexatiously or oppressively . (my emphasis) 84His Honour's finding of vexatious and oppressive conduct was predicated on the finding that there were no differences of sufficient materiality between the respective countries' laws on the issues in dispute, and hence that it must follow that there would be no injustice to the defendants if the Australian proceedings were restrained and that the loss of the alleged juridical advantages did not render it "unjust" for the dispute to be heard and determined in the jurisdiction which he found to be the natural forum. His Honour said: In the premises, it must follow there would be no legitimate reason for the defendants to pursue the Australian Proceedings. In any event, even if the differences can amount to some juridical advantages (which I have determined to be overstated), the court can still grant the anti-suit injunction particularly in this case since the advantages are only available in the Australian Proceedings which is not the natural forum of the dispute.... There is no reason for a different outcome [from that in Bhojwani and Evergreen International to which his Honour had referred], on the specific facts of the case especially given my finding that Australia is not the natural forum of the dispute. (my emphasis) 85The question of the compellability of Mr Betsalel, while a matter to which his Honour had regard and which he commenting was something that could not be overemphasised, was one that was not determinative of the issue, his Honour pointing out that he would have arrived at the same conclusion even if the compellability of the witness had not arisen as an issue. 86The basis for his Honour's express finding (at [156]) that the Telesto defendants were acting vexatiously and/or oppressively in instituting and continuing with the proceedings in this Court (so as to warrant the maintenance of the anti-suit injunction), therefore, was that Singapore (a jurisdiction to which the Telesto defendants were amenable) was the natural forum for the dispute and that there was no material advantage to the prosecution of the proceedings in this Court of which it would be unjust to deprive the Telesto defendants (from which his Honour inferred that the institution and continuation of the proceedings in this court by the Telesto defendants was vexatious and oppressive). 87Fundamental to his Honour's reasoning was the conclusion that there were no substantial or material differences in the relevant laws applicable in the respective jurisdictions which would make it unjust for the Telesto defendants to be deprived of the opportunity to pursue their claims in this jurisdiction. 88Thus, insofar as Mr Stitt contends that the New South Wales proceedings entail claims under the Trade Practices Act that Telesto could not prosecute in Singapore and submits that the uncontested expert evidence when the matter was before Chong J was that a Singaporean court would be unlikely to apply the Trade Practices Act and that there was no equivalent to the Trade Practices Act in Singapore, this seems inconsistent with the basis on which Chong J reached the above conclusion. In particular, to the extent that Chong J concluded (by reference to his analysis of the pleadings and his knowledge of the law in Singapore), having expressly taken into account Mr Gleeson's opinion, that, if Telesto and Mr Tyne were able to adduce evidence in the Singapore proceedings to prove the facts pleaded in paragraphs [40] and [41] of the Amended Commercial List Statement in the present proceedings, then they should be able to establish a prima facie case of misrepresentation under Singapore law, which his Honour seems to have treated as having an equivalent operation in this case, then it seems to me that this gives rise to an issue estoppel and it would not be open to the Telesto parties now to re-open that issue. (Chong J noted that under Singapore law, on a claim of misrepresentation the legal and evidential burden would be on UBS AG to prove that it did not act dishonestly, recklessly, carelessly or negligently in making the alleged misrepresentations, in order for UBS AG to succeed in proving its case on the balance of probabilities) (see his Honour's judgment at [99]-[101], [155]). Issues for determination 89With the above factual background in mind, I turn to the particular issues for determination. The test applicable in this Court on an application for a permanent stay of proceedings in favour of other proceedings, as recognised in CSR v Cigna [1997] HCA 33, (1996-7) 189 CLR 345, is that which was stated in Voth , applied in Henry v Henry (1996) 185 CLR 571 and Regie National des Usines Renault SA v Zhang [2002] HCA 10, and more recently affirmed in Puttick v Tenon Ltd [2008] HCA 54; (2008) 234 CLR 265; namely, that a stay is to be granted only if the Australian court is a clearly inappropriate forum (that being the test propounded by Deane J in Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 at 242, 248, 251-255, and not the test stated in Spiliada as was applicable on the determination of the stay application in Singapore). The question for the Court focuses on the advantages and disadvantages of the forum (rather than the comparative exercise required by Spiliada ). (i) Comity 90The first basis on which UBS AG relies in support of the stay application is by invocation of the principle of comity, having regard to the anti-suit injunction granted by the High Court of Singapore. It is submitted that the jurisdiction to grant that injunction was there enlivened by the tendency of the present proceedings to interfere with the due process of the Singapore court and that considerations of comity require that (at least in the absence of exceptional circumstances) this Court should be slow to permit or require a party to engage in any act or omission which contravenes such an injunction. 91As noted above, Chong J, in considering the appeal against the grant of the anti-suit injunction, articulated the caution that must be exercised on such an application and the need for the clearest of circumstances to be shown by the applicant for such an injunction; his Honour clearly having in mind the principles of comity applicable in that context. Mr Stoljar submits that the corollary to the recognition that real consideration must be given to the principles of comity in the exercise of discretion to grant an anti-suit injunction is that those same principles of comity require this Court (in the absence of exceptional circumstances) to accord recognition to the anti-suit injunction so granted. 92In CSR v Cigna , the High Court considered what is meant by comity in this regard, the majority referring to the explanation given by the Supreme Court of the United States in Hilton v Guyot (1895) 159 US 113 at 163-164: "Comity", in the legal sense, is neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will, upon the other. But it is the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws. and going on to observe that it is for this reason that the cases emphasise that the power to grant injunctions in restraint of foreign proceedings should be exercised with caution (whether the injunction is sought in the exercise of the inherent or equitable jurisdiction of the court). 93Mr Stitt maintains that a permanent stay of New South Wales proceedings because of a foreign anti-suit injunction would amount to the enforcement of a foreign injunction that would not otherwise be enforceable (noting that at common law a foreign judgment was never enforceable unless for a debt or definite sum of money: Sadler v Robins (1808) 170 ER 948 and citing the observation in Mortensen, Private International Law in Australia (2006), p137 to the effect that there is no reported instance of a court of equity enforcing a foreign order of specific performance or injunction or its equivalent). 94Mr Stoljar accepts that an anti-suit injunction operates in personam . However, he draws a distinction between the recognition by this Court of the grant by a foreign court of an anti-suit injunction and its enforceability . Mr Stoljar submits that it cannot be the case that the enforceability in Australia of a foreign anti-suit injunction is a prerequisite to the courts of this country recognising and giving due weight to the judicial act constituted by the making of such an injunction. 95The question as to what recognition is to be accorded to the grant of an anti-suit injunction by a foreign court (or, perhaps more precisely, how any such recognition is to be manifested in proceedings brought or continued in the local court in defiance of such an injunction) has not often arisen for consideration (perhaps, as Mr Stoljar suggested, because parties bound by such an injunction might ordinarily be expected to act in compliance therewith). However, the issue arose for consideration in Victoria in litigation arising out of disputes involving Lloyd's 'names', on the various decisions in which emphasis was placed by both UBS AG and the Telesto parties (from a different perspective of course). 96In 1997, the Commonwealth Bank of Australia commenced proceedings against Mr White (a Lloyd's name) in the Supreme Court of Victoria seeking an indemnity in respect of several letters of credit issued by the bank to the Society of Lloyd's in connection with Mr White's membership of Lloyd's. Mr White then brought a third party claim against Lloyd's, seeking an indemnity in respect of the amounts claimed by the bank and damages for alleged contraventions of the Trade Practices Act 1974 (Cth) and the Fair Trading Act 1985 (Vic) . 97An application by Lloyd's for summary dismissal, or alternatively for a permanent stay of the third party claim, was dismissed by Byrne J (in Commonwealth Bank of Australia v White [1999] 2 VR 681, to which judgment I will refer as White [No 1] ). Byrne J held that Lloyd's had been validly served in the local jurisdiction and, relevantly as it later transpired, found that "good reason" or "strong cause" had been shown not to hold Mr White to the exclusive jurisdiction clause contained in his contract with Lloyd's. His Honour accepted that the exclusive jurisdiction clause (in a contract the proper law of which was English law) cast the onus on Mr White to show strong cause why the discretion should not be exercised to stay the proceedings but considered that Mr White had discharged that onus in circumstances where it was undesirable that an exclusive jurisdiction clause could potentially circumvent the statutory protection against misleading or deceptive conduct such as that provided in s 52 of the Trade Practices Act 1974. His Honour observed at 705 that "it is a hard thing to turn away a litigant who has properly invoked the jurisdiction of this Court, particularly where the consequence of this must be that the litigant is precluded from enforcing rights which he enjoys as a person engaging in commerce in Victoria by virtue of legislation in force in this jurisdiction". 98Byrne J said (at 704): Counter veiling considerations include the non-availability in the selected forum of the relief sought in this Court based on misleading and deceptive conduct and on breaches of the company's legislation. It is undesirable that parties should, by entering into an exclusive jurisdiction agreement, be able to circumvent a legislative scheme established by parliament to protect investors purchasing interests or prescribed interests. Put more positively, the statutes creating these standards of commercial behaviour for persons doing business in this jurisdiction do not exempt foreign corporations. Moreover, the policy behind them would not be served if exemption might be achieved by inserting stipulations as to foreign law or forums. Furthermore, in this proceeding, the very validity of the exclusive jurisdiction agreement is in issue on the basis of Lloyd's alleged improper conduct. If Mr White's challenge to it is successful, the agreement as a ground for a stay disappears. 99After his Honour's refusal of the summary dismissal/stay application, and unsuccessful applications by Lloyd's for leave to appeal to the Victorian Court of Appeal and for special leave to appeal therefrom to the High Court, Lloyd's sought and was granted in England an anti-suit injunction against Mr White enjoining him from pursuing in the courts of any country other than England any claim against Lloyd's arising out of or in relation to his membership of Lloyd's and/or underwriting of insurance business at Lloyd's. The anti-suit injunction was granted in the context of the separate proceedings that were then on foot in the Commercial Court, Queens Bench Division of the High Court of Justice in England (the Jaffray proceedings) in which Mr White was one of a number of defendants sued by Lloyd's and on whose behalf a counterclaim had been issued raising similar allegations to those made in Mr White's third party claim in the Victorian proceedings. 100After the anti-suit injunction had been granted in England, Warren J (as her Honour then was) in Commonwealth Bank of Australia v White [No 3] [2000] VSC 259 considered an application by Lloyd's for a temporary stay of Mr White's third party claim pending the outcome of judgment in the Jaffray proceedings. 101Her Honour noted that the application for a stay was made pursuant to the inherent jurisdiction of the court ([29]) and that the relevant principles had been considered by Lockhart J in Sterling Pharmaceuticals Pty Ltd v The Boots Company (Aust) Pty Ltd (1992) 34 FCR 287 at 290-1. Her Honour applied the criteria considered in that case (which had been referred to with approval in both Henry v Henry (1996) 185 CLR 571 at 590 and CSR v Cigna at 390 n98). 102At [44], Warren J considered a submission by Lloyd's to the effect that (while Lloyd's acknowledged that the Victorian court was not bound to give effect to the anti-suit injunction granted in England) the fact that a foreign court had granted an anti-suit injunction restraining Mr White from further prosecuting his claim in the local forum should weigh in the exercise of discretion in favour of the grant of a stay and that the court should grant such a stay for reasons based on notions of comity. Her Honour referred to the principles of comity considered in CSR v Cigna and the explanation of comity given in the passage extracted above from Hilton v Guyot and concluded (at [49]) that it was appropriate "on the basis of duty, convenience and in recognition of citizens' rights under the law" that recognition be given to the judicial act of the court in the Jaffray proceedings in granting the anti-suit injunction. Her Honour granted the temporary stay sought by Lloyd's. 103Mr Stoljar submits that like considerations apply in the present case and favour the grant of a stay of the proceedings in this Court (notwithstanding that the stay sought here is of a permanent rather than temporary nature). 104However, after judgment (in favour of Lloyd's) had been handed down in the Jaffray proceedings and a permanent anti-suit injunction was granted against the defendants (including Mr White) in those proceedings, Warren J considered and dismissed an application by Lloyd's for a permanent stay of the Victorian proceedings ( Commonwealth Bank of Australia v White [No 4] [2001] VSC 511). Mr Stoljar submits that the present case is distinguishable from White [No 4] : first, because no court in Australia has already determined that this is not a clearly inappropriate forum for the present dispute and, secondly, because the court in Singapore has dismissed the forum non conveniens application for a stay there brought by Telesto and has held that Singapore is the more appropriate forum. Mr Stoljar thus submits that the ultimate refusal of a permanent stay, notwithstanding the existence of a permanent anti-suit injunction by the foreign court, is explicable by the procedural history of the White litigation. 105At [11] in White [No 4] , Warren J noted that the first basis for the permanent stay application then before her was the commitment of Mr White in his contractual arrangements with Lloyd's to an exclusive jurisdiction clause, in light of which it was submitted by Lloyd's that substantial grounds were required for a permanent stay of proceedings to be declined. The difficulty for Lloyd's with that submission was that Byrne J, on the initial permanent stay application, had found that good reason had been shown not to hold Mr White to the exclusive jurisdiction clause. 106Her Honour noted that in White [No 3] , for the purposes of the interim stay application, she had considered it appropriate that the fact that a foreign court had granted an anti-suit injunction restraining White from further prosecuting his claim in this forum was a factor to be weighed in the exercise of the discretion in granting the interim stay and did not resile therefrom but went on to say: ... However, in the same judgment (at para50) I observed that Lloyd's in the application for the interim stay urged that the fact that White agreed to an exclusive jurisdiction clause and the fact that the law of the foreign jurisdiction, namely England, constituted the proper law of the contract between White and Lloyd's together were factors to weigh in favour of granting the stay. I observed that there were separate issues that would be canvassed in the Jaffray proceeding as distinct from the claims made by White in the present proceeding and I cited the "obvious examples" of the breaches of the Trade Practices Act and the Fair Trading Act. Hence, in White (No 3) (at para50) in reliance upon Byrne J in White (No 1) I considered that there were separate issues, namely, the Trade Practices Act and Fair Trading Act claims, that could not be determined under English law. I observed, further, that if this was the only factor relied upon in support of the interim stay application I would decline to make the orders sought. Ultimately, I considered that there were other compelling factors such that it was unnecessary for me to determine whether to exercise my discretion on the basis urged by Lloyd's. 107Her Honour observed that "in the ordinary course most if not all of the submissions made on behalf of Lloyd's [as to why the approach of Byrne J to the import of the exclusive jurisdiction clause should not be followed in preference to the contrary approach of McDonald J in Williams v Society of Lloyd's (1994) 1 VR 274, where there was an exclusive jurisdiction clause and a permanent stay of proceedings had been granted] would bear much attraction". However, where the question of a permanent stay had earlier been determined by Byrne J in a ruling that had stood undisturbed following the refusal of leave to appeal by the Victorian Court of Appeal and the refusal of special leave to appeal by the High Court, her Honour considered that in all the circumstances Mr White was entitled to the benefit of the policy of finality of judicial determinations "and against a person being vexed twice in the courts for the same matter" (citing the description of that policy by Hayne JA, as his Honour then was, in Christie v Baker (1996) 2 VR 582 at 603). 108Thus, in the exercise of her discretion, Warren J considered that it was inappropriate and undesirable to grant the stay sought by Lloyd's and she refused the application for a permanent stay. It was after her Honour had come to that conclusion that she went on to consider, as a further factor weighing in the exercise of discretion, the issue of comity. At [39], her Honour commented that the essential basis of the decision to grant the anti-suit injunction by Cresswell J in England was the exclusive jurisdiction clause in the agreement between Mr White and Lloyd's (a clause to which Byrne J had found that Lloyd's had not shown good reason for Mr White to be held). Given the apparent contradiction between the two decisions, her Honour said that "If compelled it seems appropriate that this Court should prefer its own decision to that of a foreign court in the circumstances". (Hence, the significance attributed by Mr Stoljar to the fact that in the present case there has been no previous determination by this Court that is inconsistent with the basis on which the court in Singapore granted the anti-suit injunction.) 109For completeness, I note that a further factor to which her Honour referred was the lack of commensurate provisions in the English jurisdiction to the statutory trade practices law provisions applicable in Victoria, which her Honour considered led to the reasonable assumption that the important Australian public policy considerations underpinning Byrne J's judgment had not been taken into account or given the extent of the weight and significance that would have attached thereto in this jurisdiction. Her Honour noted the authorities (on which Mr Stitt relies in the present proceedings) that dictate that in such circumstances comity does not require a court to stay its own proceeding on the ground that a foreign court has enjoined one of the plaintiffs from continuing such proceedings ( Laker Airways Limited v Pan American World Airways (1983) 559 F Supp 1124, 1134; Laker Airways Limited v Sabena (1984) 731 F 2d 909, 933-934, 937-938; Air Bus Industries GIE v Patel (1999) 1 AC 119, 136; Laker Airways Limited v Pan American (1983) 577 F Supp 348). The Victorian Court of Appeal later dismissed an application for leave to appeal from her Honour's decision ([2004] VSCA 101). 110I accept that no issue arises in the present proceedings as to any contradiction between a decision of this court and that of the court in Singapore and hence the factor that was compelling against the grant of a permanent stay in White [No 4] does not apply in the present case. (That does not, of course, mean that the principles of comity necessarily require that a stay be granted in the present case.) 111What I consider that the principles of comity require is that due recognition be given to the judicial act of the High Court of Singapore in granting (and upholding on appeal) an anti-suit injunction enjoining the Telesto parties from continuing to prosecute these proceedings and in dismissing the Telesto parties' application for a stay of the proceedings in Singapore. By "due" recognition, I mean that the orders made in Singapore may be recognised as a factor to be taken into account (though not a determinative factor) to the extent that this may be relevant in determining whether New South Wales is a clearly inappropriate forum and/or that the Telesto parties are or would be acting vexatiously or oppressively in continuing the prosecution of these proceedings or in the exercise of discretion whether to grant a stay (permanent or otherwise) of the present proceedings. 112According recognition to the fact that an anti-suit injunction has been granted (at the same time as the Telesto parties' stay application was dismissed) is consistent with the approach adopted by Warren J in White [No 3] , from which her Honour did not resile in White [No 4] (the later judgment turning on the divergence between the respective local and foreign judgments as to the import of the exclusive jurisdiction clause in the context then under consideration), though I note the observation of Tadgell J in Rocklea Spinning Mills Pty Limited v Consolidated Trading Corporation [1995] VSC 15; [1995] 2 VR 181 at 183 that the dismissal of a stay application in the foreign court would have no bearing on the question whether the local court was a clearly inappropriate forum. (In Rocklea , his Honour went on at 184 to accept that the pendency of the foreign proceedings could be relevant in the sense that the availability of relief in a foreign forum would "always be a relevant factor in deciding whether or not the local forum is a clearly inappropriate one", there citing Voth .) 113I do not accept that the fact that an anti-suit injunction has been granted would of itself warrant a stay of the present proceedings, since I consider that such a proposition would, as Mr Stitt submits, be tantamount to the enforcement in this jurisdiction of a foreign injunction. However, as I understand the submissions made by Mr Stoljar, it is not suggested that comity requires that there be a stay of the proceedings in this Court simply because an anti-suit injunction has been granted by the High Court of Singapore; rather, that this is a factor that weighs in favour of exercising the discretion to grant a stay (having regard to the consequence that, absent a stay, not only will the Telesto parties be in defiance of the anti-suit injunction but also UBS AG, an entity which carries on business in Singapore, will be placed in the position that it is in one sense participating in such a breach) and having regard to the real risk of conflicting judgments, as well as the waste of time and resources on account of the duplication of issues litigated simultaneously in different jurisdictions, if proceedings in this Court were to continue in contravention of the anti-suit injunction. 114Understood in that context, there seems to me to be no inherent conflict in the positions adopted by the respective parties in this case as to the import of the anti-suit injunction, it being accepted by Mr Stitt that the existence of the anti-suit injunction is a factor that can be taken into account in exercising the discretion whether to grant a stay (the relevant test in that regard being that set out in Voth ); it simply not being of itself determinative of the issue. Such an approach seems to me to accord with the principles of comity as explained in Hilton v Guyot , namely that the recognition allowed to the judicial acts of another nation is one that also has due regard to the rights of those who are under the protection of the laws of the nation giving such recognition. 115Thus, while I do not consider that comity alone requires the grant of a permanent stay of the present proceedings I am of the view that (both in the application of the test in Voth and in the exercise of discretion whether to grant a stay of these proceedings), the fact that continued prosecution of these proceedings by the Telesto parties would be in defiance of an anti-suit injunction (granted following a contested hearing and upheld on appeal following a further contested hearing at which both parties were represented by Counsel) and would have the necessary consequence that (at least if all the issues foreshadowed in the Telesto parties' defence of the Singapore proceedings are pursued) there will be an inevitable overlap between the issues to be determined in both the foreign and local proceedings is something that goes to the question whether (having regard to the controversy as a whole) it is vexatious or oppressive for the Telesto parties to maintain these proceedings (and hence goes to the question whether this Court is a clearly inappropriate forum). (ii) Issue Estoppel 116The second ground relied upon for the stay is that the Telesto parties are bound by an issue estoppel arising from the decision of Chong J on the question of forum non conveniens . 117The issue estoppel argument was put in two ways - first, that there has been a finding in contested proceedings between the same parties that the continued prosecution of these proceedings is vexatious and oppressive (it is said that, this issue having been determined, it follows that the Voth test is satisfied and that this is a clearly inappropriate forum for the determination of the dispute) and, second, that the issue of forum non conveniens has been determined (albeit by the application of a different test than would be applicable if such an issue were here to be determined) with the finding that the Singapore court was the natural and most appropriate forum for the dispute (from which finding it is said that the inevitable conclusion is that the local forum is clearly inappropriate for the purposes of the Voth test). 118In Blair & Perpetual Trustee Co Ltd v Curran (Adam's will) (1939) 62 CLR 464, at 531-2, Dixon J said that: A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment ... necessarily established as the legal foundation or a justification of its conclusion ... (my emphasis) 119Diplock LJ in Thoday v Thoday [1964] P 181, 197-198, [1964] 1 All ER 341, [1964] 2 WLR 371, contrasting issue estoppel with the other species of estoppel per rem judicatam (which his Lordship called 'cause of action estoppel'), said this of issue estoppel: ... The second species, which I will call 'issue estoppel', is an extension of the same rule of public policy [that expressed in the Latin maxim 'Nemo debet bis vexari pro una et eadem causa']. There are many causes of action which can only be established by proving that two or more different conditions are fulfilled. Such causes of action involve as many separate issues between the parties as there are conditions to be fulfilled by the Plaintiff in order to establish his cause of action; and there may be cases where the fulfilment of an identical condition is a requirement common to two or more different causes of action. If in litigation upon one such cause of action any of such separate issues as to whether a particular condition has been fulfilled is determined by a court of competent jurisdiction, either upon evidence or upon admission by a party to the litigation, neither party can, in subsequent litigation between one another upon any cause of action which depends upon the fulfilment of the identical condition, assert that the condition was fulfilled if the court has in the first litigation determined that it was not, or deny that it was fulfilled if the court in the first litigation determined that it was. 120More recently, Handley AJA in Newmont Yandal Operations Pty Ltd v J Aron Corporation [2007] NSWCA 195; (2007) 70 NSWLR 411 at [198] said: The Court which has to consider such questions [of res judicata or issue estoppel] must examine the reasons for judgment of the Court which made the decision relied on. This is particularly important where the earlier proceedings were dismissed. In such a case the res judicata estoppel is limited to the actual ground or grounds given by the Court in its reasons for making the order dismissing the proceedings. The dismissal will not create an estoppel on other grounds which could have, but did not, lead to that dismissal. ... noting that in Blair v Curran , Dixon J had gone on to say that: Where the conclusion is against the existence of a right or claim which in point of law depends upon a number of ingredients or ultimate facts the absence of any one of which would be enough to defeat the claim, the estoppel covers only the actual ground upon which the existence of the right was negatived. 121In Champerslife Pty Ltd v Manojlovski & Anor [2010] NSWCA 33 the Court of Appeal noted that the test for an issue estoppel is objective, saying (at [106]) that "For issue estoppel it is whether the precise question of fact or law sought to be litigated in the later proceedings was decided in the earlier as a fundamental basis for the decision" (my emphasis). 122Diplock LJ in Thoday cautioned that: ... 'issue estoppel' must not be confused with 'fact estoppel', which, although a species of 'estoppel in pais', is not a species of estoppel per rem judicatam. The determination by a court of competent jurisdiction of the existence or nonexistence of a fact, the existence of which is not of itself a condition the fulfilment of which is necessary to the cause of action which is being litigated before that court, but which is only relevant to proving the fulfilment of such a condition, does not estop at any rate per rem judicatam either party in subsequent litigation from asserting the existence or non-existence of the same fact contrary to the determination of the first court." (my emphasis) 123In Fidelitas Shipping Co Ltd v V/O Exportchleb [1966] 1 QB 630 at 641 Diplock LJ said: The final resolution of a dispute between parties as to their respective legal rights or duties may involve the determination of a number of different 'issues,' that is to say, a number of decisions as to the legal consequences of particular facts, each of which decisions constitutes a necessary step in determining what are the legal rights and duties of the parties resulting from the totality of the facts . To determine an 'issue' in this sense ... it is necessary for the person adjudicating upon the issue first to find out what are the facts, and there may be a dispute between the parties as to this. But while an issue may thus involve a dispute about facts, a mere dispute about facts divorced from their legal consequences is not an 'issue'. 124Writing on " Res Judicata: General Principles and Recent Developments " Handley JA has noted that "Issue estoppel, as its name implies, only applies to issues. There is no estoppel as to evidentiary facts or legal questions which are no more than steps in reasoning to the determination of an issue" and that where several grounds for succeeding on a cause of action are upheld, there is no estoppel on the separate findings because none is fundamental. In Spencer Bower, Turner and Handley, The Doctrine of Res Judicata , 3 rd edn, to distinguish the fundamental from the collateral the test is said to be "whether the determination was so fundamental to the decision that the latter cannot stand without it". 125Mr Stoljar relies on Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] AC 853 at 918; 935 and Armacel Pty Ltd v Smurfit Stone Container Corp (2008) 248 ALR 573 at [56]-[82] as authority for the propositions, first, that issue estoppel can be based on a foreign judgment and, second, that it can be based on an interlocutory decision (where, as here, the decision finally determines the relevant issue between the parties). 126In Kuligowski v Metrobus [2004] HCA 34; (2004) 220 CLR 363 at [21], as noted at [56] in Armacel , the High Court adopted the formulation in Carl Zeiss (at 935) of the following three requirements in order for an issue estoppel to be established: that the same question has been decided; that the decision was final; and that the decision was in proceedings between the same parties or their privies. As to the first, Jacobson J in Armacel noted that there was a need to identify "with precision" the issue which was necessarily decided in the earlier proceedings in order to see whether it was identical with an issue sought to be raised in the later proceedings, accepting that the question may be one of fact or law (and referring to Blair v Curran at 532 in this regard). As to the second, Jacobson J noted that it may be satisfied even if the earlier judgment is interlocutory (citing Castillon v P&O Ports Ltd [2007] QCA 364 at [49]ff), the requirement being that the decision be both "final and conclusive" and "on the merits" (citing The Sennar (No 2) [1985] 1 WLR 490 (HL) at 499). 127(I note that in Armacel , Jacobson J sounded the need for caution in the application of the doctrine of issue estoppel "especially where the estoppel is said to arise from a judgment of a foreign court, and in an interlocutory context" (at [63]).) 128Mr Stoljar submits (and I accept) that the decision of Chong J comprises a judicial determination (following a contest on the merits) in proceedings involving the identical parties to those now before this Court and that, as between the parties, his Honour's decision finally determines the relevant issue(s). The critical question, however, is as to what that particular issue is (or what those issues, if more than one, are). 129Mr Stoljar (in the course of submissions) identified the relevant issue as being whether Singapore is the appropriate forum for the hearing of this dispute. While I accept that in a broad sense the same issue arises for determination in the present proceedings, the test for an issue estoppel requires the relevant issue(s) to be determined with precision. 130The fact that a different test may be applied under the law of the foreign country would not preclude an issue estoppel arising (see Armacel , where his Honour noted that if the issue has already been determined by a court of competent jurisdiction, issue estoppel operates regardless of whether the local court would regard the reasoning of the foreign judgment as open to criticism). Nevertheless, here, the difference in the applicable test for determining the forum non conveniens question means that in fact a different issue has been decided in Singapore than that which would fall to be decided on a forum non conveniens application in this Court (ie, the issue as to whether Singapore was the 'more appropriate' or 'natural' forum rather than the issue which arises here being one as to whether New South Wales is a 'clearly inappropriate' forum). 131I have thus concluded that no estoppel has arisen in relation to the issue as to whether this Court is a clearly inappropriate forum for the resolution of the disputes between the parties. What has been decided in Singapore, relevantly, is simply that Singapore is the natural or most appropriate forum. A conclusion as to that issue does not determine the issue now before me. 132However, in the context of the appeal from the decision to grant an anti-suit injunction, Chong J also made a finding that it was vexatious or oppressive for the Telesto parties to continue the proceedings in New South Wales. The issue as to whether the Telesto parties are acting vexatiously or oppressively in maintaining proceedings in this jurisdiction is one that is raised on the current application having regard to the test in Voth (and is to be determined objectively having regard to the effect of their conduct on UBS AG). I consider that an issue estoppel is capable of arising in relation to that issue. 133Mr Stitt, however, submits that inherent in the proposition so put by UBS AG (namely, the proposition that the issue as to whether the New South Wales proceedings amount to an abuse of process is one that has already been decided by the High Court in Singapore) is the untenable proposition that a foreign court can decide (in some fashion binding on this Court) that proceedings commenced in this Court are an abuse of the process of this Court. In reply on this point, Mr Stoljar argues that recognition that the Telesto parties are estopped (by reason of the judgment of Chong J) from re-litigating the question of forum non conveniens does not involve any proposition that the Singapore court might decide that the present proceedings were an abuse of the process of this Court; rather that it does no more than restrain the Telesto parties from running an argument already run and lost in the Singapore proceedings, namely their argument that the Singapore court is not the appropriate forum for resolution of the present dispute. 134It seems to me that a conclusion that the Telesto parties are estopped from denying that they are behaving vexatiously and oppressively in pursuing the present proceedings (as was found against them in Singapore) does not carry with it the untenable consequence for which Mr Stitt contends nor does it involve an acceptance that a foreign court can determine whether proceedings in this Court are an abuse of this Court's process. Rather, what it amounts to is an acceptance of the proposition that the Telesto parties may be estopped from now denying the effect of their behaviour, in continuing the present proceedings, on UBS AG, that issue having already been determined in a judgment binding on them in Singapore. Such a conclusion does not represent any abdication of the power of this Court to determine whether on the facts at hand the conduct of the Telesto parties amounts to an abuse of process of this Court nor is it inherent in the finding that there is an issue estoppel as to the finding that the conduct of these proceedings is vexatious or oppressive that this Court is bound by a foreign court's finding as to what amounts to an abuse of process of this Court. 135The consequence of the application of the doctrine of issue estoppel in this regard is simply that the Telesto parties are estopped from denying, in the present proceedings, that the maintenance of these proceedings will operate in a manner that is vexatious or oppressive in its effect on UBS AG (as so found by Chong J), just as in other cases (by way of analogy) a party might be estopped by the finding of a foreign court that the effect of its conduct in other contexts operated to the prejudice of another party. 136However, the question whether to grant a stay remains one within the discretion of this Court and hence I do not accept that the fact that the Telesto parties are bound by the finding made by Chong J on the issue as to whether the maintenance of these proceedings is vexatious or oppressive is determinative of the application before me. It remains necessary for UBS AG to persuade this Court that in all the circumstances the test set out in Voth is satisfied. That requires me to consider and form my own conclusion (as I do below) as to whether the maintenance of the proceedings is vexatious or oppressive in the relevant sense (albeit that the Telesto parties may be estopped from denying or raising a positive case against it). (iii) Abuse of process 137The third basis on which UBS AG seeks a permanent stay of the present proceedings is that they amount to an abuse of process. UBS AG invokes the power of the court to stay proceedings which amount to an abuse of process so as to safeguard the administration of justice, to protect the integrity of the court's process or to prevent serious and unjustified prejudice or harassment ( Rogers v The Queen (1994) 181 CLR 251 at 286; Ridgeway v The Queen (1995) 184 CLR 19 at 74-75; Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256 at [9]-[16]). 138It is submitted by Mr Stoljar that even if an issue estoppel does not strictly arise, any re-canvassing by the Telesto parties of the determinations of Chong J would constitute an abuse of process since that would involve the re-litigation, in substance, of an issue already determined. Lord Halsbury LC in Reichel v Magrath (1989) 14 App Cas 665 at 668 said: ... it would be a scandal to the administration of justice if, the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceedings to set up the same case again .. there must be an inherent jurisdiction in every Court of justice to prevent such an abuse of its process 139Reliance was also placed by Mr Stoljar on what was said in Tiufino v Warland (2000) 50 NSWLR 104 at [50] by Handley JA (with whom Powell JA and Mason P agreed): It has long been established that proceedings which seek to re-litigate some question which technically is not covered by an issue estoppel may be stayed or dismissed as an abuse of process: see Reichel v Magrath (1989) 14 App Cas 665. (See also Wall v Radford [1991] 2 All ER 741). 140So, for example, in Rippon v Chilcotin Pty Ltd [2001] NSWCA 142, Handley JA referred to the finding in Reichel that a defence not barred by res judicata estoppel may nevertheless be struck out as an abuse of process and there concluded that although the defendants had not been party to the earlier proceedings, the later proceedings threatened the integrity of the administration of justice and raised the prospect of conflicting judgments; and were therefore an abuse of process. 141In Habib v 2UE Pty Ltd [2009] NSWCA 231, McColl JA (with whom Giles and Campbell JJA agreed), there speaking in the context of an argument based on a claimed Anshun estoppel, noted at [83] that "new proceedings may threaten the integrity of the administration of justice if they raise the prospect of conflicting judgments". 142In Armacel , Jacobson J, having come to the view that there was an issue estoppel barring Armacel from contending that the clause in question was an exclusive jurisdiction clause (even though his Honour would have reached a different conclusion on the question of construction of that clause), referred to The Sennar (where the question sought to be re-litigated was as to the construction and effect of an exclusive jurisdiction clause) as authority for the proposition that it is not possible to avoid the consequence of an issue estoppel by simply re-characterising the issue as one which is sought to be litigated in accordance with the law of a different jurisdiction. (In The Sennar , Kerr LJ at 150 had indicated that to accept the converse of that proposition would be to permit uncontrolled forum shopping and, in effect, to subvert the policy behind the doctrine of issue estoppel.) 143Mr Stoljar notes that, amongst the matters to which regard may be had in this context are, the importance of the issue to the earlier determination; the opportunity available (and taken) fully to litigate the issue; the terms and finality of the finding; the identity between the relevant issues in the two applications; the extent of the unfairness to the other party if the issue were re-litigated; and the impact of the re-litigation upon the principle of finality of judicial determination and public confidence in the administration of justice (referring to Habib at [91]-[92] and State Bank of NSW Ltd v Stenhouse Ltd (1997) Aust Torts Rep 81-423 at 64,089). 144Considering those matters, it seems to me that the issue as to the vexation or oppression caused or likely to be caused to UBS AG by the conduct of the litigation in New South Wales (in light of the subsisting Singapore proceedings) was of fundamental importance to the determination by Chong J of the appeal in relation to the anti-suit injunction (though not to the earlier determination of the appeal in relation to the forum non conveniens application, since that was determined at the first stage of the Spiliada test); there is no suggestion that the Telesto parties did not have a full opportunity available to them to canvass matters before the courts in Singapore and to litigate the issue now before this Court; and, as Mr Stoljar emphasises, the anti-suit injunction was final and perpetual in nature. 145It is submitted by Mr Stoljar that it is oppressive for the Telesto parties to use the present proceedings to circumvent orders made against them after a contested hearing in Singapore (especially where they have elected not to pursue an appeal from the judgment of Chong J) and that the public interest in the finality of litigation (and the avoidance of vexation by re-litigation of previously determined questions) requires that the present proceedings be permanently stayed as an abuse of process. 146As to the extent of the unfairness to UBS AG if the New South Wales proceedings are not now stayed, UBS AG points to the substantial expense (in excess of SGD400,000) it has incurred in the litigation in Singapore in which it successfully applied for (and defended on appeal) the anti-suit injunction. It is submitted by Mr Stoljar that, having obtained that injunction following several contested hearings involving substantial evidence, that expenditure would be wasted (and in that sense UBS AG would be exposed to vexation and oppression), were it now required to litigate through to a contested final hearing substantially the same dispute in two countries. It is also submitted (as adverted to earlier) that vexation and oppression would occur if UBS AG were required to participate or acquiesce in a course of conduct involving defiance of an anti-suit injunction granted on its application in a country in which it carries on business. 147In relation to the contention that it would be vexatious and oppressive for it (having incurred considerable expense in obtaining the results it has obtained in the Singapore proceedings) now still to be required to litigate the same issues at or around the same time in two different countries (in effect an argument that the expenditure incurred to date has been wasted and that there will be duplication of legal costs in litigating in two jurisdictions at the same time), this is predicated on the assumption (not unreasonable in light of the position adopted by Counsel appearing for the Telesto parties in Singapore) that the matters the subject of the claims made by the Telesto parties as plaintiffs in the New South Wales proceedings will be raised by way of defence in the Singapore proceedings. However, that assumption is one that may or may not prove to be well-founded having regard to the now reduced ambit of the substantive claims being prosecuted by UBS AG in the Singapore proceedings and it is in this context that the discharge of the Total Liabilities claimed in relation to Telesto's account seems to me to be significant. 148The observation of Tadgell J in Rocklea (at 183) is not inapposite: The pendency of the New Jersey proceeding could not alone render the Victorian court a clearly inappropriate forum for determination of the dispute ... the mere pendency of a proceeding upon a dispute in another jurisdiction does not render litigation upon the dispute inappropriate here ... If the dispute were litigated in New Jersey there might be good reason to restrain its re-litigation in Victoria, assuming a re-litigation of the issues to be otherwise competent. The prospect of litigation of the dispute in New Jersey is alone, however, no reason to deny a prospect of its litigation here . (my emphasis) 149His Honour went on to note that there had been no evidence before the trial judge to suggest that the litigation of the issues in the foreign forum would (or should) occur before litigation of the issues in Victoria and that it therefore did not follow that if litigation were to occur in Victoria (ie if the stay were not granted) then it would be a "re-litigation" of the issues. 150As I have already noted, my understanding is that (unless this was the subject of orders made at the pre-trial conference that had been scheduled for November last year in Singapore and there has been compliance with those orders), no defence has yet been filed in the Singapore proceedings by the Telesto parties. Granted, they have, through their Counsel in the course of the Singapore proceedings, indicated an intention to raise in their defence matters mirrored in their claim in the New South Wales proceedings. Since then, however, the debt owing to UBS AG has been discharged and the monetary claim will therefore no longer fall to be determined in the Singapore proceedings. The remaining claims are for declaratory relief and for indemnity costs. By reference to the pleadings in the Singapore court it is not clear to me that the claim for indemnity costs is necessarily a contractual claim (so as to be likely to give rise to or be met by the same kind of defence as the defence that had been foreshadowed to the monetary claim), although I accept that the pleadings do contain references to provisions in the transaction documents that entitle UBS AG to a full indemnity in relation to certain charges and expenses. 151It may, therefore, be that there is now a different forensic decision as to the defence to be conducted to the remaining claims in the Singapore proceedings and one that will not involve claims so closely mirroring the claims in the present proceedings. (I make no comment as to the likelihood of this or the consequences that might flow from such a decision having regard to authorities such as Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; 147 CLR 589 at 602-3; Champerslife Pty Ltd v Manojlovski at [4]; Ling v The Commonwealth (1996) 68 FCR 180 at 184; and Zavodnyik v Alex Constructions Pty Ltd (2005) 67 NSWLR 457 at [39]-[40]. I simply note that I do not consider that I should assume what the content of the defence to the Singapore proceedings might ultimately be.) 152Mr Stoljar submits that if UBS AG succeeds in obtaining the declaratory relief sought in the Singapore proceedings this will have the effect of bringing the entirety of the dispute between the parties to an end (since such a declaration would be fatal to all the claims sought to be prosecuted by Telesto and Mr Tyne in the New South Wales proceedings) and that any subsequent attempt by Telesto or Mr Tyne to re-litigate those issues would not be permissible, on the grounds of res judicata , issue estoppel or abuse of process. That may well be the case. However, that may also be open to debate in due course by the Telesto parties. Moreover, if UBS AG does not succeed in obtaining such a declaration then the question whether the present proceedings (if not stayed) would involve any re-litigation of issues determined in the Singapore proceedings would seemingly depend on which proceedings were heard first and, relevantly, on whether the defence raised in the Singapore proceedings challenged the validity or enforceability of the initial transactions or transaction documents themselves (as opposed to a defence going only to the estoppel/compromise said to have been effected by reason of the later Standstill Agreement and alleged Implied Agreement). 153Therefore, I am not satisfied that there will necessarily be an abuse of process by reference to the re-litigation of the substantive issues in the Singapore proceedings if a stay is not granted though I accept the force of the argument that the costs incurred to date in the interlocutory applications in Singapore will effectively be wasted if the Telesto parties were to be permitted to continue the present proceedings (and that is a matter that may inform a decision to grant a temporary stay). In those circumstances, I turn to consider the fourth basis on which the stay is sought. (iv) Forum non conveniens 154The final basis on which the stay is sought (pressed in the event that the question of forum is now able to be re-litigated) is that of forum non conveniens. 155Mr Stoljar notes that the power to stay proceedings on the ground of forum non conveniens is an aspect of the inherent or implied power which every court has to prevent its own processes being used to bring about injustice ( CSR v Cigna ) and that the rationale for the exercise of the power is the avoidance of injustice between the parties in the particular case ( Voth ). 156It is accepted that the test to be applied is whether, having regard to the controversy as a whole, the proceedings are vexatious or oppressive in the sense in which that expression was used in Voth ( CSR v Cigna at 401; as applied in Armacel at 96). In Voth , in considering the "clearly inappropriate forum" test, the majority noted (at 558) that: ...the question that [this] test presents ... focuses on the advantages and disadvantages arising from a continuation of the proceedings in the selected forum rather than the need to make a comparative judgment between the two forums. That is not to deny that considerations relating to the suitability of the alternative forum are relevant to the examination of the appropriateness or inappropriateness of the selected forum. The important point is that, in those cases in which the ascertainment of the natural forum is a complex and finely balanced question, the court may more readily conclude that it is not a clearly inappropriate forum. 157In CSR v Cigna , the majority said at 400-401: ...where different issues are involved in the local and foreign proceedings, albeit that the different proceedings arise out of the same sub-stratum of fact, the question is not whether the Australian court is a clearly inappropriate forum for the litigation of the issues involved in the Australian proceedings. Rather, the question must be whether, having regard to the controversy as a whole, the Australian proceedings are vexatious or oppressive in the Voth sense of those terms, namely, that they are "productive of serious and unjustified trouble and harassment" or "seriously and unfairly burdensome, prejudicial or damaging" . (my emphasis) 158In Oceanic, at 247, it was said that the words vexatious and oppressive are "not used as directly descriptive of the conduct of the plaintiff but as descriptive of the objective effect which continuance of the action would have on the defendant " (my emphasis). 159Mr Stitt places weight on what Deane J in Oceanic referred to as the "prima facie right" of a litigant who has regularly invoked the jurisdiction of the selected forum to insist upon the exercise of that jurisdiction. At 243, Deane J said: the traditional process of determining such an application for the dismissal or stay of an action is not a mere balancing of convenience or inconvenience or the resolution of competing claims of different jurisdictions neither of which could be said to be clearly inappropriate (cf per Gibbs J, Cope Allman (Australia) Ltd v Celermajer (1968) 11 FLR488, at p 492). The starting point of the determination of such an application in accordance with traditional principle must be the prima facie right of a plaintiff to insist upon the exercise of competent jurisdiction which he has regularly invoked That prima facie right of a plaintiff is not to be lightly displaced or denied. and at ( 244) Not only is the jurisdiction one which should be exercised "with great care" or "extreme caution"" It has, as has been indicated, traditionally been seen as a jurisdiction which is only available to be exercised on inappropriate forum grounds where the court whose jurisdiction has been invoked by the plaintiff is so inappropriate for their determination that a continuance of the proceedings in it would be productive of the injustice of oppression and vexation of the defendant concluding (at 248): The power should only be exercised in a clear case and the onus lies upon the defendant to satisfy the local court in which the particular proceedings have been instituted that it is so inappropriate a forum for their determination that their continuation would be oppressive and vexatious to him. Ordinarily, a defendant will be unable to discharge that onus unless he can identify some appropriate foreign tribunal to whose jurisdiction the defendant is amenable and which would entertain the particular proceedings at the suit of the plaintiff. Otherwise, that onus will ordinarily be discharged by a defendant who applies promptly for a stay or dismissal if he persuades the local court that, having regard to the circumstances of the particular case and the availability of the foreign tribunal, it is a clearly inappropriate forum for the determination of the dispute between the parties. 160Deane J noted that the general or traditional approach emerging from Maritime Insurance Co Ltd v Geelong Harbour Trust Commissioners (1908) 6 CLR 194, was that: ...the power of a court whose jurisdiction has been regularly invoked to dismiss or stay proceedings on the ground that they should have been brought in some tribunal in another country is limited to the case where the court is persuaded that it is such an unsuitable or inappropriate forum for their determination that their continuance would work a serious injustice in that it would be oppressive and vexatious to the defendant. On that traditional approach, the clear inappropriateness f the local forum may justify dismissal or a stay. The mere fact that some foreign tribunal would represent a "more appropriate" forum would not. 161Considering the question whether the Spiliada doctrine should be accepted, his Honour said at 252: In so far as legal principle is concerned, the balance seems to me to come down against the adoption of the United Kingdom doctrine. It is a basic tenet of our jurisprudence that, where jurisdiction exists, access to the courts is a right. It is not a privilege which can be withdrawn otherwise than in clearly defined circumstances...A broader forum non conveniens discretion to dismiss proceedings within jurisdiction if it appears that some foreign tribunal is or clearly is a more appropriate forum cannot, in my view, be readily accommodated in any of the established principled qualifications of that basic tenet. In particular, it cannot readily be fitted into the "vexatious or oppressive" qualification even on the less rigid approach to that qualification which should, in my view, be accepted. 162Similarly, Lockhart J in Sterling Pharmaceuticals noted that a party who has properly invoked the jurisdiction of an Australian court is prima facie entitled to have his case heard and determined by that Court. 163In the present case, I accept that the Telesto parties have regularly invoked the jurisdiction of this Court, having foreshadowed an intention to do so and (at least in the case of Telesto and Mr Tyne) not having done so in breach of their contractual arrangements with UBS AG. I do not consider that the fact that the Telesto parties were or might be taken to have been on notice through their Singapore solicitors of the request to accept service of the writ in the Singapore proceedings makes the commencement of the New South Wales proceedings necessarily an abuse of process (although I accept that it is has been said to be prima facie vexatious and oppressive for a party to commence a second or subsequent action if an action is already pending with respect to the matter in issue - Henry v Henry (1996) 185 CLR 571 at 590). At the time of the commencement of the respective proceedings, the position would seem to be that both parties were attempting to ensure that their claims would be heard in the forum of their choice. 164Nevertheless, the majority in the High Court in Henry v Henry considered that to give undue emphasis to this prima facie right as a relevant factor could be misleading (at 588). (Brennan CJ went further and considered it erroneous in principle to have regard to this as a factor to be weighed in the balance in this context.) At 589, the majority said: There may be cases in which the notion of a prima facie right has some role in determining whether or not a stay should be granted. For example, it may well be significant in what is otherwise a finely balanced contest. But there are also cases in which that notion can do little more than indicate that the onus lies on the party seeking a stay to establish that the chosen forum is clearly inappropriate. Indeed there may be cases where the forum is so clearly inappropriate that the notion of prima facie right can have no real bearing on the matter, as, for example, if the cause of action arose in a country in which the parties reside or carry on business and their controversy can conveniently be litigated in that country. (my emphasis) 165As to the observation highlighted in the passage extracted above, Mr Stoljar notes that UBS AG carries on business in Singapore; at the relevant time Mr Tyne's residential address was noted in the business records as being in the United Kingdom; Telesto is incorporated in Jersey; the account was opened in Singapore; the alleged reliance on advice received by Mr Tyne in Australia was the acquisition of investments held in the account in Singapore; and there is no suggestion that the controversy cannot be litigated in Singapore. 166I note that there was a submission by Mr Stitt, but not one supported by evidence from the Telesto parties and hence not one as to which I can make any finding, that conduct of the litigation in Singapore would be more difficult for the Telesto parties, on the basis that the litigation funding in place was for proceedings in this country. In particular, Mr Stitt submitted that the conduct giving rise to the cause of action under the Trade Practices Act had substantially impoverished Telesto and Mr Tyne; that the suit in New South Wales could be prosecuted "only because of the potential for litigation funding"; and that Telesto will be at an "impossible disadvantage" in the foreign proceedings. The fact that Telesto can only participate on an equal footing in New South Wales is said to be a factor militating against the stay of those proceedings reference being made in that context to Henry at [40]. Apart from evidence on affidavit from Mr Sutherland, the solicitor for the Telesto parties in Australia, as to the cost of the Singapore proceedings to date (around SGD159,000), there is not any material as to the financial resources of the Telesto parties or as to any litigation funding or the basis on which it might be available, from which I could form that view that there is such a financial disadvantage as to warrant that being a factor in the decision whether to stay the proceedings. 167While I would not go so far as to say that in this case the notion of the prima facie right to the exercise of a jurisdiction that has been properly invoked can have no real bearing at all on the matter, it seems to me that it is but one of the factors to take into account when considering whether UBS AG has established that this is a clearly inappropriate forum for the dispute. 168Similarly, in Henry v Henry, reference was made to the statement in Voth to the effect that while the substantive law of the forum is a very significant factor in the exercise of the court's discretion the court should not focus thereon to the exclusion of all other factors. (The relevance of the substantive law of the forum in this case arises because of the perceived juridical advantages available to the Telesto parties in prosecuting claims for misleading and deceptive conduct under the ASIC Act or the Trade Practices Act , a matter to which I will return shortly). 169In Henry v Henry , the majority (Dawson, Gaudron, McHugh and Gummow JJ) at 591 said: It is prima facie vexatious and oppressive, in the strict sense of those terms, to commence a second or subsequent action in the courts of this country if an action is already pending with respect to the matter in issue [their Honours there referring to Moore v Inglis (1976) 50 ALJR 589]. And although there are cases in which it has been held that it is not prima facie vexatious, in the strict sense of the word, to bring proceedings in different countries, the problems which arise if the identical issue or the same controversy is to be litigated in different countries which have jurisdiction with respect to the matter are such, in our view, that, prima facie, the continuation of one or the other should be seen as vexatious or oppressive within the Voth sense of those words. (my emphasis) 170Their Honours went on to say that it did not necessarily follow that because one or other of the proceedings is prima facie vexatious or oppressive the local proceedings should be stayed but that: ... it does follow that the fact that there are or, even, that there may be simultaneous proceedings in different countries with respect to the same controversy is highly relevant to the question whether the local proceedings are oppressive in the sense of "seriously and unfairly burdensome, prejudicial or damaging", or, vexatious, in the sense of "productive of serious and unjustified trouble and harassment". And it also follows that courts should strive, to the extent that Voth permits, to avoid that situation . (my emphasis) 171In United Pacific Finance Pty Ltd v Tarrant [2009] NSWSC 630, Austin J at [33] noted that "the commencement of proceedings which create duplicity of proceedings is an abuse of process" (citing Moore v Inglis , at 514 and 516 per Mason J; Commonwealth v Cockatoo Dockyard Pty Ltd [2003] NSWCA 192, at [56]-[63] per McColl JA; and referring also to Slough Estates Ltd v Slough Borough Council [1968] Ch 299, at 314-5 per Ungoed-Thomas J. His Honour also cited Thames Launches Ltd v Trinity House Corporation of Deptford Strond [1961] Ch 197 where Buckley LJ said ( at 209) : [Counsel for the defendant] says that the principle is that a man should not pursue a remedy in respect of the same matter in more than one court. In my judgment, the principle is rather wider than that. It is that no man should be allowed to institute proceedings in any court if the circumstances are such that to do so would really be vexatious. In my judgment it is vexatious if somebody institutes proceedings to obtain relief in respect of a particular subject-matter where exactly the same issue is raised by his opponent in proceedings already instituted in another court to which he is not the plaintiff but the defendant . (my emphasis) 172Here, at the time of commencement of the proceedings in New South Wales, the Telesto parties (albeit it might be said by reason of the refusal presumably on their instructions of their Singapore solicitors to accept service of the writ in that jurisdiction) were not on notice of precisely what issues were being raised in the Singapore proceedings (although they must surely have anticipated that they would at least include a claim for the Total Liabilities that had been the subject of the demand). Hence I accept that the institution of the proceedings themselves may not have been vexatious is the sense considered above. However, there would seem to me to be no logical basis for distinguishing in this regard between the commencement of proceedings and the continuation of proceedings in which there is a duplicity of issues (at least where the continuation is of proceedings which have not yet reached an advance stage, as is the case here, and after the relevant party becomes aware of the existence of the other proceedings, and hence the duplicity of issues). Consideration of that issue should also take into account that a determination (binding on the Telesto parties) has already been made by another court in relation to the question of forum - hence the significance of the first three grounds raised by UBS AG on the present application. 173It is recognised that there may be circumstances in which the prima facie position that it is an abuse of process for any party to institute two proceedings for the one claim may be the subject of an explanation satisfactory to the Court (see Mala Pty Ltd v Johnston (1995) 13 ACLC 100 at 102; Roy Morgan Research Centre Pty Ltd v Wilson Market Research Pty Ltd (1996) 39 NSWLR 311 at 317; Guardian Group Australia Pty Ltd v Alice Lui [2005] NSWSC 1299 at [58]). Similarly, there may be a sufficient explanation as to why two proceedings raising the same issues should be continued at the same time. However, apart from Mr Stitt's submission that responsibility for the concurrency of the proceedings lay at the door of UBS AG, on the basis that it was responding to the foreshadowed intention of the Telesto parties to commence proceedings in Australia, which it was submitted was sufficient to address the concern as to a concurrency of proceedings (reference being made in that regard to News Corporation v Lenfest Communications Inc [1996] NSWSC 474), the present application seems to have been approached by the Telesto parties on the basis that the claim made by UBS AG for declaratory relief could equally be put as a defence to the present proceedings and there was no reason why the matter should not be heard in this jurisdiction alone. (Such a submission seem tacitly to accept that it would not be in the public interest in the administration of justice for there to be permitted the risk of inconsistent decisions on the same issues, as will be the case if both the Singapore proceedings and the present proceedings are to be continued, at least if the Telesto parties in the defence of the former proceedings raise the same issues as are raised in their claims in the present proceedings.) 174In that regard, UBS AG had made demands for the moneys payable from as early as 2008 and had reserved its rights. It might have been expected that if it had proceeded to enforce that demand it would do so in the jurisdiction contemplated in the Account Terms and Conditions. Any suggestion that UBS AG in so doing was being responsive to the threat of litigation by the Telesto parties might equally be met by the inference that the Telesto parties, aware of the likelihood that any claim against them would be made in Singapore, were seeking to pre-empt that choice of forum (in effect that being the finding of Chong J on the issue of forum-shopping). In any event, that does not address my concern at the oppressiveness of both proceedings remaining on foot, with the risk of conflicting judgments, if the same or similar issues will arise for determination in each. 175Mr Stitt also submits that there is suspicion as to the conduct of UBS AG arising from the fact that the principal relief now remaining to be sought in the Singapore proceedings is for a negative declaration, referring to what was said in The Daeyang Honey [1993] FCA 584 by Gummow J, where his Honour in the Federal Court refused to stay proceedings in that court notwithstanding that it was contended that a successful prosecution of the claim for declaratory relief would finally dispose of the matter (and notwithstanding that the foreign proceedings were commenced first in time). 176Similarly, Mr Stitt points to the fact that in CSR v Cigna , where the relief sought was a negative declaration, the court found that the dominant purpose in the institution of the New South Wales proceedings was to prevent the appellants from pursuing remedies available in the US proceedings but not in the New South Wales proceedings. In Tarrant, Austin J referred to the observation in Kolden Holdings Ltd v Rodette Commerce Ltd [2008] 3 All ER 612 at [7] by Lawrence Collins LJ about such claims: About 20 years ago Kerr LJ said that claims for negative declarations, in particular, "must be viewed with great caution in all situations involving possible conflicts of jurisdictions, since they obviously lend themselves to improper attempts at forum shopping": see Saipem SpA v Dredging VO2 BV and Geosite Surveys Ltd, Volvox Hollandia [1988] 2 Lloyd's Rep 361 at 371. Although that is not always the case (see Messier-Dowty Ltd v Sabena SA (No 2) [2000] 1 All ER (Comm) 833 at 842; [2000] 1 WLR 2040 at 2049 (para 36)), it is hard to resist the conclusion that the present case is one of the use of a claim for negative declarations to wrest jurisdiction from the natural forum. 177However, in Armacel , speaking as to the situation where what is sought in the foreign jurisdiction is negative declaratory relief, Jacobson J said (at [97]): ..for the reasons referred to by Lord Woolf in Messier Dowty at [34]-[42], I do not consider that I should approach the question with an adverse pre-disposition to the claim for negative declaratory relief: Challenger Group Holdings Ltd v Concept Equity Pty Ltd [2005] NSWSC 374 at [42]-[43]. This issue in the US District Court is not hypothetical. Our courts should be slow to criticise the approach of the foreign court to the question of negative declaratory relief. It must be a matter of discretion in all the circumstances. (my emphasis) 178I do not accept that I should draw an adverse inference as to the purpose of UBS AG in seeking a negative declaration in the Singapore proceedings, even though those proceedings were commenced at a time when UBS AG was aware that Telesto was threatening to commence litigation in Australia. The very factors that led Chong J to conclude that Singapore was the natural and most appropriate forum for the dispute in my view also count against a conclusion that the purpose of commencing the proceedings in that forum was to deprive Telesto of remedies that might be available to it in New South Wales (particularly given that the proceedings as instituted also claimed other relief and were not restricted to a claim for a negative declaration). Further, the negative declaration is clearly not hypothetical, since its determination will or may affect the relief sought by the Telesto parties in these (even if no longer in the Singapore proceedings). 179That said, the fact that no claim for monetary relief (other than costs) will be pressed at the final hearing does seem to me to be of some significance in the way I have explained above (since if the issues to be determined at the hearing in Singapore, absent any matters that the Telesto parties may raise by way of cross-claim, are confined to the events leading up to entry into the Standstill Agreement and Argot's Letter of Undertaking, then the dispute as to the authorisation to enter into the transactions and issues as to the alleged misleading and deceptive conduct and breach of fiduciary duty will seemingly not arise at all in the Singapore proceedings). 180If it be the case that, because no claim for recovery of the Total Liabilities under the facilities will now be pressed, there is a real prospect that the Telesto parties may no longer seek to raise as defences in the Singapore proceedings the claims sought to be raised in their capacity as plaintiffs in the present proceedings, then the concerns as to duplication of issues and the risk of conflicting decisions will not necessarily arise (or at least will not have the same force as had there been a direct overlap in the issues to be determined in each jurisdiction). 181The claim by UBS AG for declaratory relief turns, as I understand it, on the circumstances in which the Standstill Agreement was negotiated and entered into between the parties. It does not turn on the matters which are alleged to constitute misleading and deceptive or negligent conduct in the entry into the facilities in the first place or in the subsequent conduct of UBS AG (or, for that matter, breach of fiduciary duty) in relation to those facilities. Therefore, while I accept that declaratory relief sought in Singapore may be dispositive of the entirety of the claims by the Telesto parties, that seems to me to involve a temporal issue as to whether the determination of that issue in advance would be the most expeditious way to conduct the proceedings (in whichever jurisdiction) rather than this being a case where the same issues will necessarily be litigated in two proceedings (as would potentially the case if the estoppel/compromise issue were to be determined in favour of the Telesto parties and it was open to them to pursue in both these and the Singapore proceedings the issues going to the initial transactions). 182Although reliance was placed on the concessions made in the proceedings before Chong J by Counsel for the Telesto parties that Singapore was clearly the natural forum for the determination of UBS AG's claims under the various contractual documents against them (noted in the judgment at [66]) and that the Telesto parties' claim in Australia could essentially be mounted as a defence to UBS AG's claim in Singapore (noted in the judgment at [2]), as well as the acknowledgement that if the Singapore proceedings were not stayed then the Telesto parties would simply raise the issues in the Australian proceedings as a defence and counterclaim in the Singapore proceedings (referred to in the judgment at [85]), the difficulty I have in this regard is that it is by no means clear what issues will now be raised by the Telesto parties in Singapore by way of defence/cross-claim having regard to what has since emerged as to the present debt position of the Telesto parties. Ms Mills' affidavit of 7 November 2011 deposes to the advice received from UBS AG's Singapore solicitors that (as at that date) the pleadings had not and (and were not deemed to have been) closed in Singapore. Hence there must be a prospect that the previously stated position as to what would be the subject matter of the defences may be revised. 183Mr Stoljar submits that even if different issues are involved in the two sets of proceedings, it would follow that, having regard to the controversy as a whole, the New South Wales proceedings are vexatious or oppressive in the Voth sense of those terms, namely, that they are "productive of serious and unjustified trouble and harassment" or "seriously and unfairly burdensome, prejudicial or damaging" because of the existence of the anti-suit injunction granted, and upheld on appeal, by the High Court of Singapore. That is identified as a significant factor in favour of a conclusion that this Court is a clearly inappropriate forum or that the continuation of the litigation in this forum is oppressive. 184The relevant factors to be taken into account when considering whether this is a clearly inappropriate forum are summarised by the learned authors of Nygh's Conflict of Laws in Australia (8 th ed) as being: (a) Any significant connection between the forum selected and the subject matter of the action and/or the parties, such as the domiciles of the parties, their places of business and the place where the relevant transaction occurred or the subject matter of the suit is situated, and other factors affecting convenience or expense, such as the availability of witnesses. (b) Any legitimate and substantial juridical advantage to the plaintiff, such as greater recovery, more favourable limitation period, better ancillary procedures, or assets within the jurisdiction against which any judgment can be enforced. (c) Whether the law of the forum will supply the substantive law to be applied in the resolution of the subject case or whether the matter is governed by foreign law. 185As to the first group of factors (the connection between the forum selected and the proceedings), UBS AG relies on a succession of matters (the subject of factual findings or otherwise referred to in Chong J's judgment) as cumulatively indicating that this Court is a clearly inappropriate or oppressive forum for litigation of the present dispute. Broadly speaking, they include matters relating to the location of the respective parties (UBS AG carrying on business in Singapore through its Singapore branch; Telesto being an underlying company of a purpose trust registered in Jersey); the place of issue (and in some cases execution) of the contractual documents and/or performance of the relevant facilities and the Telesto and Argot accounts (that being Singapore, where the respective accounts were booked and serviced); the respective jurisdiction/choice of law clauses in the agreements; that the Telesto parties are amenable to the jurisdiction of the Singapore court (and submitted to the jurisdiction of that court in bringing their stay application); the exclusive jurisdiction clause in the Argot Letter of Undertaking; and that some of the negotiations for (and the place of performance of certain of the obligations under) the Standstill Agreement took place in Singapore. 186For his part, Mr Stitt notes that none of the Telesto parties resides in Singapore, conducts business there or now has assets in the jurisdiction (apart from the residue of the Telesto account); that Mr Tyne resides in Australia (though the address given on the business documents was an address in the United Kingdom and the attempt at service of Mr Tyne in Queensland seems to have been met with the response that Mr Tyne lives overseas most of the time); and that Argot and Pole Star are Australian companies. 187It is further submitted that Mr Tyne was (and remains) a client of UBS in Australia (but had been encouraged by his then Australian client adviser, Mr Betsalel, to place the Telesto account with UBS Singapore after Mr Betsalel had relocated from Sydney to Singapore) and that at all times the Telesto account was managed by UBS from its "Australia desk" in Singapore. (There is, however, no evidence before me as to the circumstances in which the Telesto account was opened in Singapore nor as to the significance or operation of the "Australia desk", whether in relation to Telesto's account or otherwise. Mr Stoljar points to the fact that Chong J found (at [10]) that the account was serviced from the Singapore branch of UBS. He submits, and I accept, that Mr Tyne's subjective motivation for opening the account in Singapore is irrelevant.) 188Mr Stitt also points to the making of the alleged misrepresentations to Mr Tyne, then resident in New South Wales resident, over the telephone and to the authorities to the effect that a representation or statement effected by telephone takes place "where the message is received - wherever it is heard on the telephone" (per Denning LJ In Diamond v Bank of London and Montreal (1979) QB 333; and see Ramsey v Vogler [2000] NSWCA 260 at [36] to [48]). Lord Denning MR said in Diamond (at [346]): In the case of fraudulent misrepresentation it seems to me that the tort is committed at the place where the representation is received and acted upon; and not the place from where it was sent. Logically, it seems to me, the same applies to a negligent misrepresentation by telephone or by telex. It is committed where it is received and acted upon. 189Stephenson LJ agreed with Lord Denning MR and said further that: But it is settled law that A's misrepresentation, however fraudulent and morally wrong, does not become tortious until B not merely receives it but acts upon it [ citations omitted ]. The damage may be suffered when and where B acts or begins to act upon the representation, but it may be suffered at a later time or at a different place. Although A's part of the tort is committed when and where he speaks or telexes or writes the misrepresentation, B's part is needed to complete the tort by acting upon the representation, and the tort is committed, in my judgment, when and where he does so act. 190In this regard, Mr Stoljar's response to this is that whether or not the alleged representations by telephone were received by Mr Tyne in New South Wales, the critical question is where the acts of reliance occurred (referring to the finding of Chong J that the place of reliance was Singapore where Mr Tyne's instructions were communicated and where the transactions effected on his instructions). In Voth , however, in the course of a discussion of English authorities, their Honours said at [568]): In The "Albaforth" it was said by Ackner LJ and by Robert LJ that it had been held in Diamond that the substance of the tort of negligent misstatement is committed where the statement is received and acted upon. That is accurate so far as it reflects the facts considered in that case. But there is not and cannot be any such general rule, for a statement may be received in one place and acted upon in another. And The "Albaforth" provides no basis for a conclusion that it is the place where the statement is acted upon which determines the place at which the statement was made. That place may have no connexion at all with the place where the statement was initiated or the place where it was completed. And the place where it is acted upon may be entirely fortuitous. 191Reliance was also placed by Mr Stoljar on the location of the witnesses to establish UBS AG's contractual claim (and presumably its defence to the claims raised in the New South Wales proceedings) and to the observations made by Chong J in relation to the (non) compellability of Mr Betsalel. In this regard, Mr Stitt contends that the location of witnesses in relation to the contractual claim is immaterial as the claim remaining is for declaratory relief (though there is the indemnity costs claim that may be sourced in contractual obligations and it does not seem to me that the calling of local witnesses in that regard can be excluded) and that the compellability of Mr Betsalel is irrelevant as he has agreed to attend any proceedings conducted in New South Wales. In response, Mr Stoljar submits that it is immaterial whether or not Mr Betsalel has expressed any 'agreement' or 'willingness' to testify in Australia, since there is a practical necessity for compellability where a witness is not under a party's control. Clearly, the evidence of Mr Betsalel will be necessary insofar as the Telesto parties make claims of oral representations by him. 192As to the second set of factors referred to in Nygh , the reliance placed on the perceived juridical advantages of the present jurisdiction has already been noted (as have Chong J's findings in that regard). The perceived juridical advantages are the existence of forms of relief available under the Trade Practices Act that may not be available in Singapore and the evidentiary and onus of proof advantages for a claim under the Trade Practices Act as compared to proceedings for negligent misrepresentation (as identified by Mr Gleeson in the opinion tendered in evidence in the Singapore proceedings). Mr Stitt relies on the observation by Gummow J in DA Technology Australia Pty Limited v Discreet Logic Inc [1994] FCA 958 at [36] that there is an Australian public interest in the application of a statute of this nature by a Court selected by the Parliament and to the observations of Byrne J in White [No 1] in this regard. 193Mr Stoljar, however, emphasises that the conclusion of Chong J, based upon his Honour's analysis of the pleadings and of the expert evidence of Mr Gleeson was that, on the specific facts of this case, there would be no material differences or advantages for the Telesto parties arising under the Trade Practices Act (referring to his Honour's judgment at [96], [101], [104], [110], and [151](d)). 194The essential question posed by Jacobson J in Armacel was whether Armacel would be able to obtain in the proceedings in the foreign court the relief it sought in this jurisdiction under the Trade Practices Act . His Honour accepted the evidence put before him (albeit not as an independent expert) by Smurfit's legal counsel in the US proceeding that such relief would fall within the supplemental jurisdiction of the US court (and that it was very unlikely that the court there would refuse to exercise such supplemental jurisdiction even though he conceded that the Pennsylvania court was not familiar with the application of the Trade Practices Act ). Thus his Honour was not satisfied that Armacel was deprived of a legitimate forensic disadvantage in being forced to bring its claim in the United States ([111]). In the present circumstances, I consider that one cannot discount the analysis performed by Chong J and which led his Honour (having had the benefit of Mr Gleeson's opinion and his own knowledge of Singaporean law in this area) to conclude that there would be no substantial or material advantage to the Telesto parties in prosecuting their claims in this jurisdiction. 195Further Mr Stoljar submits that, even if a stay of the proceedings in this Court would result in the loss of material juridical advantages to the Telesto parties, this alone will not necessarily justify refusal of a stay, adopting the words of Lord Goff in Spiliada (referred to in Voth at 564-565 and by Campbell JA in Garsec v Sultan of Brunei [2008] NSWCA 211; (2008) 250 ALR 682 at [48]) in submitting that, as a general rule, the court should not be deterred from granting a stay of proceedings "simply because the plaintiff will be deprived of such an advantage, provided that the court is satisfied that substantial justice will be done in the available appropriate forum". Mr Stoljar submits, and I accept, that the Court should be satisfied that substantial justice will be done in Singapore. 196As to the third factor identified by Nygh, Mr Stoljar submits that UBS AG's causes of action against Telesto and Mr Tyne accrued in Singapore, by virtue of the Account and the Guarantee which gave rise to the customer-banker relationship between the parties being operated and serviced in Singapore (as found by Chong J at [58]). Mr Stitt submits that none of the Facilities, Guarantee, Letter of Undertaking or Deed of Assignment is relevant, given that those documents now secure no money or debt, and hence that the residence of UBS witnesses that might establish the contractual claims formerly made is irrelevant. In that regard, Mr Stitt submits that the New South Wales proceedings are not fundamentally concerned with any of those documents but, rather, concern the misleading conduct of UBS AG, the issue of the lack of authority and the breach of fiduciary duty claims. Mr Stoljar in response submits that the contractual documents must remain relevant since they created and governed the banking relationship in which UBS AG provided services and the alleged acts of negligence and alleged representations occurred by reason of, and in the course of execution of, that relationship. Further, it is submitted that any alleged absence of authority must be assessed by reference to the procedures followed by UBS AG in Singapore to obtain appropriate client authorisations for transactions and that all the witnesses and documents relevant to that issue are in Singapore. As to any alleged fiduciary duty said to arise from the contractual relationship between the parties, it is submitted that this will be governed by the proper law of the contract, namely Singapore. 197In relation to the provision of services by UBS AG, it is submitted by Mr Stoljar that a claim in negligence is governed, as to matters of substance, by the law of the place in which the services were provided (in this case Singapore). In relation to the alleged misrepresentation and misleading or deceptive conduct, it is submitted that the relevant place is where the representation was relied and acted upon (and Mr Stoljar submits that Chong J was correct in his opinion that this was Singapore). On this issue, if what is submitted is that the substantive law that would be applied (in accordance with the conflict of law rules in this jurisdiction in relation to the tort of misrepresentation or negligent misstatement or for misleading and deceptive conduct would be Singapore) I am not persuaded that this would be the case. I note that the general rule is that the tort is committed in the place where the statement was directed. The learned authors of Nygh's Conflict of Laws in Australia (8 th ed) relying upon Voth, Delco Australia Pty Ltd v Equipment Enterprises Incorporated and Ors (2000) 100 FCR 385, Aussie Home Security Pty Ltd v Sales Systems Australia Pty Ltd (2000) 172 ALR 141 and Hunter Grain Pty Ltd v Hyundai Merchant Marine Co Ltd (1993) 117 ALR 507, state: ...the tort is committed at the place where it was directed, whether or not it was there acted upon, provided it was a place where it could have been reasonably anticipated that it would be received by the plaintiff or brought to the attention of the plaintiff, even if in fact it is received by the plaintiff elsewhere. The place where the statement was acted upon is not by itself relevant. 198Reference was made by Mr Stitt in this regard to what was said in John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 at 538 per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ; and Usines Renault v Zhang at [66] and [75] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ. 199I have cited earlier the passage in Voth in which the place of commission of the tort involving the alleged negligent accounting advice was said to be the place where the advice was received. There, with respect to cross border communications, their Honours (deriving this principle from Diamond) said: If a statement is directed from one place to another place where it is known or even anticipated that it will be received by the plaintiff, there is no difficulty in saying that the statement was, in substance, made at the place to which it was directed, whether or not it is there acted upon. And the same would seem to be true if the statement is directed to a place from where it ought reasonably to be expected that it will be brought to the attention of the plaintiff, even if it is brought to the attention in some third place. 200Voth focuses on the intention of the party communicating the statement. The majority of the High Court held that it is the place where it is reasonably expected that the receiving party will receive it that is relevant (whether or not that is actually the place of receipt). 201Similarly, Delco and Aussie Home Security are consistent with the principle established above by Voth and extended its application to claims of misleading and deceptive conduct claimed under the Trade Practices Act . 202In Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575, in the context of a defamation claim, Gleeson CJ, McHugh, Gummow and Hayne JJ observed generally at 606 that locating the place of commission of a tort is not always easy, commenting that "In the end the question is 'where in substance did this cause of action arise'? In cases, like trespass or negligence, where some quality of the defendant's conduct is critical, it will usually be very important to look to where the defendant acted, not to where the consequences of the conduct were felt". 203Hunter Grain illustrates the proposition that misrepresentation or misleading conduct, for the purposes of determining the proper law, is not concerned with the jurisdiction where damage accrues. Sheppard J at 520-521 said that: ... the actionable wrong relied upon in this case arises out of misleading or deceptive conduct said to have been engaged in by the parties sued. That conduct, so far as each of the defendants was concerned, was committed entirely in the United States. 204An assessment of the three groups of factors leads me to the conclusion that the most significant connection is with Singapore (that being where the account was opened, the banking services were provided and the place contemplated in the transaction documents as the non-exclusive place for resolution of disputes). The alleged misrepresentations or misleading and deceptive conduct were, however, received in New South Wales and, on the authorities referred to above, acted upon by the giving of instructions in New South Wales. (Although Chong J placed weight on the business efficacy of such transactions and seems to have accepted that the place at which instructions were given by Mr Tyne was fortuitous, it remains a connecting factor on the authorities to which I have referred above.) As to the place of business of the respective parties, this was in different jurisdictions, such that this seems to be a neutral factor. As to the question of convenience, this seems to me to be weighted in favour of Singapore, particularly as Mr Betsalel is resident there or (if he moves to Hong Kong) not far away. (I note that he has apparently professed a willingness to travel to Australia to give evidence but I consider the submissions made by Mr Stoljar as to the practical difficulties if he is not compellable (let alone not contactable) to have considerable force.) 205In light of the conclusions reached by Chong J (following his analysis of the pleadings and of Mr Gleeson's expert opinion) as to the operation of the law in Singapore, it is difficult to find that there are any substantial juridical advantages in the ability of the Telesto parties here to invoke the statutory provisions in relation to misleading and deceptive conduct, although I note that there is weight to be accorded to the public policy underpinning this legislation as a factor pointing to this jurisdiction. 206While the substantive law to govern the claims made by the Telesto parties in relation to the tort and misleading and deceptive conduct claims seems to me to be the law of this forum, the other claims raised by the Telesto parties I accept are likely to be governed by the law of Singapore. I also note that the commencement of the proceedings in this jurisdiction by Argot is in breach of an exclusive jurisdiction clause in its contractual arrangements. 207As to the enforceability of any declaratory or costs judgment obtained in Singapore, Mr Stitt places weight on the fact that the primary relief now sought in Singapore (a negative declaration) could not be enforced in New South Wales and that it was said in Henry (at [39]) that the fact that the order of the foreign court would not be enforced in Australia "will ordinarily dispose of any suggestion that the local proceedings should not continue". Mr Stoljar's response, in effect, is that this is a neutral factor as this is not a case in which any judgment obtained by UBS AG in Singapore would depend for its practical efficacy upon enforcement against assets situated in Australia. (As UBS AG is carrying on business in Singapore, I would assume it has assets there against which the Telesto parties, if they there made and were successful in the making of claims such as those in the current proceedings, could enforce the judgment so obtained by them.) 208As to discretionary matters, it is submitted by Mr Stitt that the inference to be drawn from the continuation of the Singapore proceedings (despite Telesto's indebtedness being extinguished) is that this is merely a platform by which UBS AG seeks to deny the New South Wales proceedings. I do not accept that such an inference can be drawn having regard to the fact that the declaratory relief was sought from the outset and there remains a claim for indemnity costs. I accept Mr Stoljar's submission that there is no basis for this Court to find that the 'dominant purpose' of UBS AG in instituting the Singapore proceedings was to prevent the Telesto parties from pursuing remedies in Australia. 209The factors referred to above must also be considered in circumstances where the effect of not granting a stay of the proceedings would be to expose the parties to the very real prospect of a duplicity of litigation. In this regard, I place weight on the observations of Jacobson J in Armacel in not dissimilar circumstances. There, an anti-suit injunction having been sought in proceedings in New South Wales in circumstances where the same controversy had been set down for hearing in the United States, Jacobson J observed that the problems which arise if the same controversy is to be litigated in different countries which have jurisdiction with respect to the same matter are such that, prima facie, the continuation of one or other of them must be seen as vexatious or oppressive in the sense stated in Voth, referring there to Henry v Henry at 591, and went on to note that the anti-suit injunction had been sought after the US District Court had determined that it had jurisdiction and after it had provisionally listed the matter for hearing. His Honour considered that in those circumstances "To ask me to now grant anti-suit relief would be invidious and the reverse of comity: The Angelic Grace " and concluded that the proceeding in the Federal Court was vexatious in the Voth sense. His Honour refused to grant an anti-suit injunction restraining Smurfit from continuing the proceeding in the US District Court and granted a temporary stay of the proceedings in this jurisdiction. (I note that his Honour came to that conclusion even though it had been acknowledged by Smurfit's legal counsel in the US District Court proceedings that the decision by Smurfit to commence suit in the United States was a tactical decision as to the selection of the forum and where the proceedings could be "expeditiously forwarded".) 210Here, the Telesto parties are seeking to continue proceedings that, at least having regard to what was said by their Counsel in Singapore, will raise fundamentally the same issues as those to be dealt with in Singapore in circumstances where (although the matter has not there progressed to the point where it has been listed for hearing, provisionally or otherwise), the court in Singapore has not only accepted that it has jurisdiction but has entertained two contested hearings in which, at the heart of the matters before the court, has been the forum in which the dispute should be resolved. There is a substantial connection between the disputes raised in this forum and that to be heard in the Singapore forum (indeed, for Argot, the commencement of the proceedings here is contrary to the exclusive jurisdiction clause in its Letter of Undertaking). It seems to me that in those circumstances it would be vexatious and oppressive of the Telesto parties (in the sense of the objective effect on UBS AG of their conduct) now to pursue a course of conduct that will have the inevitable result of exposing UBS AG to the risk of conflicting judgments across two jurisdictions. The significance of the stay having been granted (and upheld on appeal) in Singapore is that a refusal to stay the proceedings in this Court must have the result that the two proceedings will continue. 211I have adverted earlier to the submission by Mr Stitt as to the relevance of the fact that before Chong J issued his decision on appeal (unbeknownst to him or to Telesto) the debt had been extinguished. It is submitted that Chong J may well have not found as he did had his Honour known the primary relief in the Singapore proceedings was merely declaratory in nature and that insofar as an anti-suit injunction invokes an equitable remedy (and the court is exercising an equitable power when making such an order) (Mr Stitt referring to British Airways Board v Laker Airways Limited [1985] 1 AC 58 (HL), 80H - 81G; Barclays Bank plc v Homan [1993] BCLC 680, 686-88 (Hoffman J); Turner v Grovit [2002] 1 WLR 107 (HL) at [22]; Ellerman Lines Limited v Read [1928] 2 KB 144 per Atkin LJ), UBS AG was obliged to act with equity and good conscience when seeking the anti-suit injunction and was thus obliged to inform Chong J before judgment was given that the debt no longer existed and had been extinguished. It is submitted that such a matter may well have had a determinative effect upon his Honour's decision whether to grant the relief at all and as to costs and that the fact that UBS AG failed to do so is "highly suggestive of an agenda to frustrate the New South Wales proceedings". 212In response, Mr Stoljar submits that the submission as to a failure to act with equity and good conscience (by reason of the non-disclosure to Chong J, some 6 weeks after his Honour had reserved judgment, that the debt had been extinguished) should be rejected. Mr Stoljar points out that UBS AG twice notified Telesto, in writing, of its intention to realise the collateral shortly prior to doing so; that at all times, Telesto had the ability to gain access to the electronic statements which revealed the precise status of the account and to the 'retained mail' or e-banking portal; and that neither Telesto nor either of the other Telesto parties took any step to notify Chong J of the extinguishment of the debt nor suggested to UBS AG that it would be appropriate to do so or that this would be a matter of any significance to his Honour. 213As I have noted earlier, although it was at all times open to the Telesto parties to check the e-banking portal, subsequent enquiries by UBS AG have revealed that it had not done so since 2010. Therefore, the most I can draw from the above is that the Telesto parties appear not to have considered that the possibility or intention of UBS AG to sell down the collateral (once UBS AG's intention to do so was made known to them) was a relevant matter to be brought to the attention of his Honour. 214As for the position of UBS AG, it is submitted by Mr Stoljar that there was no reason for UBS AG to consider that the extinguishment of the debt was a matter of any significance in respect of the issues argued before Chong J but that in any event, this Court should not now speculate, and there is no reason to suppose, that Chong J may not have found as he did had the extinguishment of the debt been disclosed to the Court prior to delivery of his Honour's reasons for judgment. Mr Stoljar points out that his Honour's judgment does not place any significance upon the enforceability in Australia of any judgment obtained in the Singapore proceedings and submits that there is no basis for concluding that the unenforceability in Australia of a Singapore non-monetary judgment would have been material to his Honour's determination, having regard to the strength of the considerations supporting the conclusion that an anti-suit injunction should be granted. 215In relation to this issue, not having been privy to the argument before his Honour, it is impossible for me to assess whether the matter is one that his Honour would have expected should be drawn to his attention while the judgment was reserved. Nor would it be appropriate for me to speculate on what his Honour might have done or to express any view as to what might have been the import on the reasons for judgment of any such disclosure. I accept the force of the submission by Mr Stoljar that if there is an issue in relation to this aspect of the matter it is one better dealt with by raising it with the Court in Singapore. I am not persuaded that a finding as to lack of good conscience would be appropriate, nor am I persuaded that this is something which, as a matter of discretion, should lead me to refuse any relief that I otherwise am prepared to grant. 216In this context, Mr Stoljar notes that the Telesto parties cannot prosecute the proceedings in this Court without being in contempt of the High Court of Singapore (reference being made to Allstate Life Insurance Co v Australia and New Zealand Banking Group Limited [1995] FCA 1563 at [24] where Lindgren J acknowledged if an "anti-anti-suit injunction" were to be made in New York it would have the effect that an application for an anti-suit injunction in Australia could not be made without the applicant being in contempt of the court in New York). 217The significance of the fact that there is no longer a monetary claim being pursued in Singapore, in the context of the application now before me, in my view is not as to the rights or wrongs of the fact that it was not drawn to his Honour's attention but to the question as to whether the scope of the defence by the Telesto parties to those proceedings will encompass the matters raised in the proceedings they have commenced in this jurisdiction. If it will not, then much of the force of the current application by UBS AG in my view falls away. Conclusion 218I am satisfied that if the same, or in substance the same, controversy is to be litigated in two separate sets of proceedings in two different countries each of which has jurisdiction with respect to the same matter, then the continuation of the present proceedings (having regard to the strong connections between the subject matter of the claim and the jurisdiction in Singapore; the contest that has already been determined at considerable expense in relation to this issue in Singapore; and the abuse of process involved in the vexatious and oppressive conduct of exposing UBS AG to the cost of proceedings in two countries and the risk of conflicting judgments) would be vexatious or oppressive to UBS AG in the sense stated in Voth and that this Court should strive to avoid such a result. In those circumstances I would hold that this Court is a clearly inappropriate forum for the purposes of the test in Voth . 219If, however, the controversy to be litigated in Singapore will not overlap to the extent that was considered likely when the matter was before Chong J, then I do not consider that it would be vexatious and oppressive for the Telesto parties to continue the present proceedings in which relief is sought in part under forum statutes in respect of which the courts have recognised there is a strong public policy in favour of the protection of those doing business in this jurisdiction (and even though I recognise that this would seem to involve a clear breach of the orders made against the Telesto parties in Singapore and would presumably expose them to charges for contempt according to the applicable law in Singapore). While I consider it invidious to be placed in the position where the Court might be seen to condone a breach of the anti-suit injunction (and refusal of a stay would have the effect of forcing UBS AG into the position of defending proceedings continued in breach of that order), that seems to me to be the result of the authorities that make it clear that such injunctions operate only in personam; that the courts will not enforce non-monetary orders of this kind; and that unless the present jurisdiction is a clearly inappropriate forum no stay should be granted. 220The difficulty I have is that it is not clear to me into what category the present case will fall without knowing what matters are ultimately to be raised in the defence of the Singapore proceedings. In Sterling Pharmaceuticals , Lockhart J pointed to the substantial difference between a motion for a permanent stay or dismissal of a proceeding and a motion for a temporary stay or lengthy adjournment of the case, noting that the court remains in full control of the proceedings in the latter instances. In Armacel , Jacobson J granted a stay with liberty to apply (noting that the court must remain in control of its own interlocutory orders and citing Adam P Brown Male Fashions Proprietary Limited v Philip Morris Incorporated (1981) 148 CLR 170 at 178). His Honour there foreshadowed that if the United States court declined to exercise its supplemental jurisdiction to apply the Trade Practices Act then it might be appropriate to lift the stay ([118]) and that, having regard to the ordinary vicissitudes of litigation in another country, there might be other circumstances existing in the litigation in the United States that would make it appropriate to consider such an application in the future. 221Bearing in mind the inherent jurisdiction of the Court to ensure that there is no abuse of its own processes, I have concluded that the appropriate relief is not to grant a permanent stay at this stage but, rather, to grant a temporary stay. 222In my view it would be appropriate for the stay to be granted pending the outcome of the claim for declaratory relief in the Singapore proceedings. I did consider whether the stay should be limited to the period pending the closure of pleadings in the Singapore court (at which time it would be known what defences were to be pleaded by the Telesto parties). However, that would not take into account the possibility of amendment to the pleadings at a later stage. Moreover, it seems to me that it is not consistent with the just, quick and cheap resolution of the real issues in dispute in the proceedings to permit a situation to arise where the parties might be embroiled in litigation here in relation to the substantive claims pleaded by the Telesto parties (assuming they were not raised as defences in the Singapore proceedings and the stay were then to be lifted) only then for it to be determined in Singapore that the estoppel/compromise claim was made out. 223As I did not explore with Counsel during the hearing raise the duration of any temporary stay I might be prepared to grant in lieu of a permanent stay, I will defer making orders until after I have enquired whether Counsel would wish to address me on that question. I will also hear Counsel on the question of costs as necessary. Orders 224For the reasons set out above I consider that the appropriate order is temporarily to stay the present proceedings pending the determination in the Singapore proceedings of the application by UBS AG for declaratory relief and to give the parties liberty to apply to restore the proceedings at that stage. However, I will not make final orders until I have heard any submissions from the parties on the proposed orders and as to costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 February 2012