Exporter A-Ward Ltd has been forced into the Australian courts in a customer’s dispute over machinery supplied, despite their contract stating New Zealand courts have ‘exclusive jurisdiction’ in dealing with any dispute. It is the first New Zealand case dealing with legislation designed to streamline New Zealand/Australia commercial disputes: the Trans-Tasman Proceedings Act.
Complementary legislation was enacted on both sides of the Tasman after a political decision in 2008 to improve resolution of cross-Tasman commercial disputes.
There can be ‘home game’ advantage in fighting a dispute in home courts.
With contracting parties in different countries, they may be operating under similar rules, but these rules will rarely be identical.
Fighting in a foreign court means not only fighting under foreign rules, but at a greater cost with extra legal fees; your own domestic lawyers and the cost of foreign representation in an off-shore court.
Auckland-based A-Ward specialises in machinery handling shipping containers. In 2018, it sold three Mi-Tilt machines to Queensland scrap metal dealer Raw Metal Corp Pty Ltd. Raw Metal alleges the machinery is defective. A-Ward counters that any issues were caused by Raw Metal’s misuse of the equipment.
Raw Metal sued in Queensland, alleging A-Ward was liable for misleading and deceptive conduct in breach of Australia’s Competition and Consumer Act. The New Zealand equivalent is the Fair Trading Act. There is one major point of difference between the two: in New Zealand, there is a limited ability to contract-out of some of the Act’s provisions; not so in Australia.
In New Zealand, A-Ward filed an ‘anti-suit’ claim against Raw Metal, seeking a court order Raw Metal be prohibited from taking legal action in Australia. Their contract specifies any dispute has to be heard in New Zealand courts, it says.
Justice O’Gorman ruled the Trans-Tasman Proceedings Act prohibited ‘anti-suit’ claims against Australian litigants.
The essence of the Act is that each country acknowledges its confidence in the other’s judicial process, she said.
In Queensland, A-Ward previously filed, and then later abandoned, an application to have the Australian hearing put on hold, arguing that the dispute should be heard in New Zealand.
A-Ward Ltd v. Raw Metal Corp Pty Ltd - High Court (9.04.24)
24.088