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Judgment summary - Australian Gourmet Pastes Pty Ltd v IAG New Zealand Limited [2017] VSCA 155

The Court of Appeal today allowed an appeal against a decision in the County Court to grant a permanent stay of proceedings under the Trans-Tasman Proceedings Act 2010 (Cth) (‘the TTP Act’).

IAG New Zealand Ltd (‘IAG’) is the insurer of an Australian manufacturer that supplied faulty caps for jars of garlic paste to Australian Gourmet Pastes Pty Ltd (‘AGP’). AGP sued the manufacturer and IAG. The County Court granted IAG a permanent stay of the proceeding in Australia because there was an exclusive choice of court agreement in the insurance contract in favour of New Zealand courts. The judge also considered, on discretionary grounds, that a New Zealand court was the more appropriate forum.

The Court of Appeal found that the judge had erred in granting a permanent stay.

The Court held that the exclusive choice of court clause was not a written agreement between the parties to the proceeding, as required under the TTP Act.

The Court further held that the discretion miscarried. The manufacturer was incorporated in Australia, not in New Zealand as the judge believed. The business of the manufacturer was largely in Australia. The place where the subject-matter of the proceeding was situated is Australia. Principal issues in the proceeding will require evidence from witnesses who are resident in Victoria.

Re-exercising the discretion, the Court dismissed the application for a permanent stay.

Read the Court's full judgment on Austlii (External link)

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Author: Supreme Court of Victoria
Publisher: Supreme Court of Victoria
Date of Publication: June 2017
Copyright: Supreme Court of Victoria, 2017


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