24 Whilst the choice of Singaporean law as the governing law of the contract might be seen to indicate some preference for litigation in Singapore, that tentative indication of preference is, I think, undone by the fact that, in the very next sentence, the parties agreed that the jurisdiction of the courts of Singapore was non-exclusive. In other words, it seems to me, it is legitimate to infer from cl 30 that the parties in fact accepted the possibility, as a real possibility, that litigation might occur elsewhere. If that were to happen, however, then by application of the first sentence, the court hearing the dispute would be bound to apply Singaporean law.
25 There was no evidence to support the proposition (and the proposition was not put) that there are some peculiar features, or complexities, of Singaporean law which render it markedly different from the laws of, and thus opaque to the courts of, this State.
26 On the contrary, I think the Court is entitled to take account of the fact that Singaporean law is, at heart, a common law system and that since Singapore is a major international trade and financial centre, its laws are likely to be accessible to all. In any event, if there are some peculiar features of Singaporean law on which the parties cannot agree (and there is no evidence that this is likely to be so) there are both well established and newer mechanisms for resolving those disputes.
27 Thus, I do not think that the terms of the contract provide any strong indication in favour of one jurisdiction rather than the other.
28 The evidence suggests that the contract was to be performed in various places. The plaintiff's case is that the defendant was bound to procure orders from enterprises in a large number of countries, including the United States of America, the United Kingdom, India, Turkey, the Benelux countries, China, Spain, and Portugal.
29 It is said that the orders were to be compiled by the defendant in Hong Kong, and then forwarded to the plaintiff in Sydney for execution. On that basis, it seems to me likely that, wherever the dispute is to be heard, there is at least a possibility that witnesses will be required to come from various parts of the globe to the court in which the litigation is tried. Whilst I am prepared to accept that Singapore may be more central, and thus more convenient, that is a long way short from saying that this Court is clearly inappropriate.
30 Mr Harrowell pointed to the possibility that his client might wish to cross-claim against the various entities from whom, on the plaintiff's case, it was required to procure business to be passed on to the plaintiff. That may be so, although I have some difficulty in seeing how it would arise on the way that the plaintiff's case is "pleaded". But even if it is so, there is no reason why that could not happen here.
31 In this context, it is important to note that the breach alleged is that, in breach of implied terms that it would enter into appropriate distribution agreements and would enforce those agreements, the defendant did not obtain sufficient commitments to forward to the plaintiff to enable the plaintiff to earn the expected revenues. On the face of things, that case of breach would be made out by an examination of the defendant's records, which records, of course, would be discoverable.
32 If the defendant has kept proper records, they should enable the plaintiff to see exactly what contracts were entered into, and how it was (if at all) that the defendant intended to perform its alleged contractual obligations. Although I accept that the defendant's records are likely to be kept in Singapore, in these days of electronic discovery, the task of producing and inspecting in this city can hardly be regarded as greatly more burdensome than the task of producing and inspecting in Singapore.
33 When one looks at the likely range of witnesses, the probabilities seem to be that there will be witnesses from New South Wales, and witnesses from Singapore, and perhaps witnesses from elsewhere in the world. In other words, wherever the proceedings are heard, someone is going to have to travel for the purposes of giving evidence.
34 Again, while Singapore might be seen as more central than Sydney, the difference does not strike me as being so manifest that it is clearly vexatious or oppressive to require the defendant to bring its witnesses to this city.
35 According some, although not dispositive, weight to the plaintiff's choice of jurisdiction, and bearing in mind both the warning that courts should be slow to decline to exercise jurisdiction that is conferred upon them and the high standard set by the "clearly inappropriate forum" test, I am not satisfied that this is a case that is appropriate for the exercise of the discretion to stay.
36 I order that the defendant's notice of motion filed on 9 July 2010 be dismissed.
37 I order the defendant to pay the plaintiff's costs of the notice of motion.
38 I stand the proceedings over to the directions list on 10 September 2010.