Gonzalez v Agoda Company Pte Ltd [2017] NSWSC 1133

Supreme Court New South Wales

Medium Neutral Citation: Gonzalez v Agoda Company Pte Ltd [2017] NSWSC 1133 Hearing dates: 9 February 2017 Decision date: 28 August 2017 Jurisdiction: Common Law Before: Button J Decision: (1) The proceedings brought by the plaintiff, Ms Leonor Gonzalez, against the defendant, Agoda Company Pte Ltd, are permanently stayed.

(2) The costs of the motion are reserved.

(3) Unless costs are subsequently agreed, the defendant must file and serve written submissions as to costs within one week of today, of no more than five pages in length.

(4) The plaintiff must file and serve written submissions as to costs within one week after that, of no more than five pages in length.

(5) The defendant may file and serve written submissions in reply three business days after that, of no more than two pages in length. Catchwords: PRIVATE INTERNATIONAL LAW – conflict of laws – – whether statement of claim should be set aside – forum non conveniens – "default test" of whether Supreme Court of New South Wales is a clearly inappropriate forum for determination of dispute – impact of exclusive jurisdiction clause – modified test of whether the plaintiff has shown strong cause to displace the exclusive jurisdiction clause CONTRACTS – interpretation and construction – online contract – whether exclusive jurisdiction clause incorporated into terms of contract – by reference – by signature – Electronic Transactions Act 2000 (NSW), s 9(1) CONSUMER LAW – whether exclusive jurisdiction clause unfair contract term – whether statutory guarantees as to fitness for purpose apply Legislation Cited: Competition and Consumer Act 2010 (Cth), Schedule 2 Australian Consumer Law, ss 23(1), 24, 60, 61(1), 67(a), 67(b), 131 Contracts Review Act 1980 (NSW) Electronic Transactions Act 2000 (NSW), s 9(1) Evidence Act (Cap. 97), s 62A Evidence (Audio and Audio Visual Links) Act 1998 (NSW), s 5B Uniform Civil Procedure Rules 2005, rr 11.7(2)(a), 11.7(2)(b), 12.11(1)(a), 12.1(1)(b), 12.11(1)(g), 12.11(1)(h), 31.3 Cases Cited: ACCC v Valve Corporation (No 3) [2016] FCA 196 Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 Bonython v Commonwealth [1951] AC 201 BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266 FAI General Insurance Co Ltd v Ocean Marine Mutual Protection & Indemnity Association Ltd (1997) 41 NSWLR 559 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 Henry v Henry (1996) 185 CLR 571; [1996] HCA 51 L'Estrange v Graucob [1934] 2 KB 294 Oceanic Sun Line Shipping Company Inc v Fay (1988) 165 CLR 197; [1988] HCA 32 Piatek v Piatek (2010) 245 FLR 137 Puttick v Tenon Ltd (2008) 238 CLR 265; [2008] HCA 54 Smith v South Wales Switchgear Ltd [1978] 1 All ER 18 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52 Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; [1990] HCA 55 Category: Procedural and other rulings Parties: Leonor Gonzalez (Plaintiff) Agoda Company Pte Ltd (Defendant) Representation: Counsel: R. Royle (Plaintiff) T. W. Marskell (Defendant)