Plaintiff v Defendant

1. On 22 December 2022, the plaintiff, Select Harvests Pty Ltd ('Select') filed a generally indorsed writ ('Writ') in this Court alleging negligence and/or a breach of contract against the defendant, Jose Borrell S.A., a company registered under Spanish law ('Borrell').[1] On 1 March 2023, Select filed a statement of claim ('Statement of Claim').
2. Service was effected on Borrell in Spain under r 80.04 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) ('Rules'). Borrell filed a conditional appearance in August 2024.
3. On 22 August 2024, Borrell applied by way of summons under r 8.08 of the Rules for orders that service of the Writ and the Statement of Claim on it be set aside and that the substantive proceeding be dismissed or permanently stayed.
4. For the reasons which follow, I will make orders acceding to Borell's application.

1. On 14 June 2023, Select's lawyers filed documentation with the Prothonotary[2] for the purpose of effecting service on Borrell in Spain under r 80.04 of the Rules.
2. On 22 September 2023, Select's lawyers were notified that the documents would be returned by the relevant Spanish authority because the standard request form required under the Rules and the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters ('Hague Service Convention') had not been properly executed.[3]
3. As a result of the delay to Select's request for foreign service, Select made application for an extension of the period of validity of the Writ. On 31 January 2024, orders were made extending the validity of the Writ for a period of one year.
4. On 12 March 2024, Select's lawyers again filed documentation including the Writ and the Statement of Claim with the Prothonotary for the purpose of effecting service on Borrell in Spain under r 80.04 of the Rules.
5. On 23 July 2024, Borrell's lawyers indicated to Select's lawyers that it would be challenging the service of the Writ and the Statement of Claim and the jurisdiction of this Court to hear the matter and filing a conditional appearance.
6. On 8 August 2024, Borrell filed a notice of conditional appearance.
7. In this application, Borrell seeks orders that:

(a) the service of the Writ and the Statement of Claim on it be set aside under r 8.08 of the Rules;

(b) the proceeding be permanently stayed or dismissed under r 8.08 of the Rules on the basis that the Court of Dénia in Spain have exclusive jurisdiction to hear and determine any dispute between the parties;

(c) in the alternative to (a) and (b), the proceeding be permanently stayed or dismissed under r 8.08 of the Rules on the basis that Victoria is a clearly inappropriate forum for the determination of the proceeding;[4] and

(d) Select pay its costs of the application.

1. In support of the application, Borrell relies on the affidavits of:

(a) María Asunción Cebrián Salvat, affirmed 21 August 2024; and

(b) Michael Vieyra, affirmed 21 August 2024.

1. In opposition to the application, Select relies on the affidavits of:

(a) Liam Brian Campion, affirmed 12 December 2023[5] and 15 October 2024; and

(b) Daniel Paul Wilson, affirmed 16 October 2024.

1. The parties also relied upon detailed written submissions.

1. Select is an ASX-listed company and a large-scale grower, processor, manufacturer and marketer of almonds in Australia. Its registered office and principal operations are located at Carina West in Victoria ('Plant'). It also carries on operations from several other locations in Victoria, South Australia and New South Wales. Select does not occupy any premises nor does it conduct operations in Spain or anywhere else outside Australia.
2. Borrell is a company registered under the laws of Spain. It conducts business as a manufacturer and supplier of farm and factory equipment for hulling, shelling and processing almonds and other tree nuts. The statement of claim describes it as an industry leader and that it conducts business in 35 countries, including Australia. Its registered office and principal place of business are located at Dénia in the province of Alicante, Spain. Borrell is registered and entitled to carry out business in Australia as a foreign company pursuant to the Corporations Act 2001 (Cth) but has no assets, property, employees or corporate presence in Australia, either in its own name or through any subsidiaries.

1. In 2013, Select began negotiations by email correspondence with Borrell's representatives in Spain for the purchase of an almond roaster. These negotiations were followed by several in-person meetings in 2014 and 2015 between the parties' representatives in the United States, Spain and Germany.
2. On 17 July 2015, the parties entered into a contract whereby Borrell agreed to supply, install, monitor and refine the roaster at the Plant ('Supply Agreement'). The value of the contract is of the order of €2.8 million.
3. Select alleges the contract for the supply of the roaster included provisions contained in a document titled 'Quotation for Borrell Almond Blanching, Processing, Pasteurising, Drying-Cooling-Roasting, Screening Line, no. 106313 of 02.06.15' ('Quotation'). The Quotation included a segment containing Borrell's general terms for sales and warranty ('Sale Terms'). In the current context, cl 15 of the Sale Terms ('Clause 15') is of central importance and provides:

15. GOVERNING LAW AND JURISDICTION

The processing of any order and completed purchase implies acceptance by Buyer of these Terms in each and every clause. In the event of any dispute that may arise from the contracted operation, the parties submit to Spanish Law and the jurisdiction of the Courts of Dénia (Alicante), having waived their own jurisdiction.

1. In early 2016, Borrell delivered and commissioned the roaster. In his affidavit, Mr Wilson, who is the General Manager of almond operations at Select, states that a number of problems concerning the operation, reliability and productivity of the roaster developed and were reported to Borrell.
2. Between 2017 and April 2019, Borrell's representatives provided Select with technical support and advice remotely from Spain on potential solutions to the problems. On at least two occasions in 2017, Borrell's representatives physically attended the Plant to assess the problems and make modifications and refinements to the roaster.
3. On 10 April 2019, apparently because of an accumulation of almond fines in the air recirculation ducting apparatus, the roaster caught fire. Select alleges the fire caused extensive loss and damage to the Plant, the roaster, and its equipment and stock on site, as well as losses arising from the interruption to its business. Select submitted an insurance claim which was subsequently accepted and finalised in October 2020 for approximately $4 million.
4. In its Statement of Claim, Select makes six allegations of negligence or breaches of Borrell's duty 'to take reasonable care to avoid or minimise the risk of death or injury, property damage and economic loss from the ignition and spread of uncontrolled fire in connection with the operation of the roaster'. The impugned conduct concerns Borrell's design, modification, refinement and failure to warn of various aspects and functions of the roaster in the period of 2014 to 2019, i.e., the period from when the parties began discussing the supply of the roaster, to the fire. Specifically, Select alleges Borrell was negligent or breached its duty of care by:

(a) failing to include filtration systems to filter out small-particle fines or other by-products;

(b) failing to specify streamlined radial supports as the 'radial support' between the inner and outer burner tubes;

(c) designing the air recirculation ducting apparatus in a rectangular shape, where the air flow would transition from the burner and, ultimately, where the almond fines accumulated and caused the fire;

(d) failing to warn Select of the possibility of the fine accumulation and its consequences; and

(e) failing to design appropriate access for inspection and cleaning of the ducting point where the fines were accumulating.

1. Paragraphs 70 and 71 of the Statement of Claim respectively refer to and repeat the same breaches and particulars of loss and damage as set out above in respect of breaches of the Supply Agreement. Select's claims will be the subject of further discussion below.

1. Mr Vierya, who is an associate at KHQ lawyers, Borrell's solicitors, states the roaster was designed, manufactured and tested by Borrell in Spain, where its expertise, technology and engineering resources are physically located. He states that all documents relevant to the design, manufacture and testing of the roaster, including technical documents, design schematics and manufacturing records, which Borrell intends to tender, are located in Spain and are in Spanish. He states that the witnesses Borrell would call in order to defend the proceeding, including engineers, designers and technical staff, are physically located in Spain and speak Spanish.
2. Mr Wilson of Select states that the personnel who were involved in the communications with Borrell concerning the contract for the supply of the roaster, who witnessed the fire or who were involved in the repair works and insurance claim after the fire, all reside in Victoria. He states the relevant business records of Select, including correspondence with and records of payments to Borrell, internal policies and processes and all financial and accounting records relevant to the business interruption losses are all in English and physically located in Victoria, or located there digitally on servers. Mr Wilson says all other relevant evidence, including evidence relating to the replacement roaster, is held by Select in Victoria and that all correspondence, advice and documents that passed between the parties from 2015 to 2024 are in English.

1. Borell's solicitors engaged Professor Salvat, who is a senior lecturer and professor in the Faculty of Law in the University of Murcia, Spain, as an independent expert to provide an opinion in relation to its application. Professor Salvat has prepared a report dated 20 August 2024 ('Expert Report') which is exhibited to her affidavit.
2. Professor Salvat states the Expert Report was based wholly or substantially on specialised knowledge gained from her qualifications and experience. In the report, Professor Salvat details her curriculum vitae which states, among other things, that:

(a) she is a tenured Professor at the University of Murcia;

(b) she was awarded a PhD in Law from the University of Murcia for her thesis titled International Franchise Contracts: International Jurisdiction and Applicable Law in the European Union with the qualification 'outstanding cum laude' and received relevant recognition, including the Extraordinary Doctorate Award and a national award for the best thesis in Private International Law by the Spanish Association of Professors of International Law;

(c) her research area includes Spanish and European Private International Law, International Procedural Law, International Family Law and International Trade Law from predominantly conflictual as well as substantive and procedural perspectives;

(d) she has presented papers and spoken at numerous international conferences;

(e) she has conducted predoctoral and postdoctoral research at many internationally renowned centres;

(f) she has published research articles on Spanish and European Private International Law on high-impact international journals;

(g) she is a peer reviewer for various law journals, as well as for two publishers specialising in private international law, Colex and Comares;

(h) she has participated in national and international research projects; and

(i) she has produced expert opinions which have been presented before Spanish, French and German courts when advising individuals and lawyers as an expert witness through the Technology Transfer Office of the University of Murcia.

1. I accept by reference to her curriculum vitae that Professor Salvat is experienced in the area of law under consideration here and is qualified to express the opinions that appear in the Expert Report. I did not understand Select to contend otherwise nor did it make any formal objection to the report.
2. The Expert Report responded to three questions which were posed by Borrell's solicitors. These questions were formulated as follows:

(a) are the claims Select advances in the Statement of Claim (being negligence and breach of contract) against Borrell able to be made:

(i) under Spanish Law;

(ii) in the Courts of Dénia (Alicante);

(b) if the answer to (a) is yes, can Select seek the remedies it seeks in the Statement of Claim (being the claims for loss and damages particularised in para 22 of the Statement of Claim and for costs and interest):

(i) under Spanish law;

(ii) in the Courts of Dénia (Alicante); and

(c) if the answer to (a) and (b) is no, is there a similar or analogous claim and remedy available to Select under Spanish law that it could pursue in the Courts of Dénia (Alicante)?

1. In the Expert Report, Professor Salvat responded to the questions posed in sub-paras (a) and (b) in the affirmative, giving her opinion that Select can bring the claims it advances in the Statement of Claim against Borrell and seek the relevant remedies under Spanish law in the Courts of Dénia (Alicante). By reason that (a) and (b) were answered in the affirmative, Professor Salvat did not address the question posed in sub-para (c).
2. In the Expert Report, Professor Salvat stated that the scheme of private international law requires that the question of the jurisdiction of the Spanish courts be considered first and the election of law second; only then is the remedial aspect of the claim considered. Her opinion is presented in that sequence.
3. In preparing the Expert Report, Professor Salvat relied upon facts provided in the letter of instruction by Borrell's solicitors, KHQ, and the documents attached to it, including:

(a) the Writ and the Statement of Claim (in English);

(b) the Writ and the Statement of Claim (in Spanish);

(c) a document described as 'Borrell Almond Blanching, Processing, Pasteurising, Dry-Cooling-Roasting, Screening Line';

(d) the Quotation; and

(e) the Sale Terms.

1. Professor Salvat's opinion is that to adjudicate the matter, the Courts of Dénia would be required to have both international and territorial jurisdiction. She describes international jurisdiction as the legal capacity of Spanish courts, considered as a whole, to hear a dispute arising from a 'private international situation'; and territorial jurisdiction as the capacity of a specific Spanish court to hear a case based on territorial criteria.
2. In the Expert Report, Professor Salvat first considers the question of international jurisdiction and states the set applicable rule is Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters ('Regulation 1215/2012').[6] She describes the Regulation 1215/2012 as being hierarchical and organised in three levels, with art 25 (i.e. the second level) as being the most relevant in the present context.
3. Article 25 provides that jurisdiction of a court in a Member State of the European Union ('EU') may be established by an agreement which complies with the prescribed requirements as to substance and form.
4. Professor Salvat is of the opinion that Clause 15 is valid for the purposes of art 25.
5. Professor Salvat's opinion is that the claims made by Select fall under the scope of Clause 15 of the Sale Terms and that the Courts of Dénia have international jurisdiction to deal with the whole case under art 25 of Regulation 1215/2012.
6. Professor Salvat states that even if the Courts of Dénia determined that Clause 15 was not valid or that its scope did not extend to Select's claims, those courts would have international jurisdiction to adjudicate the case:

(a) under art 26 of Regulation 1215/2012 if Select filed the claim and Borrell entered an appearance; or

(b) under art 4, as they are, according to art 63, the Courts of the State of the domicile of Borrell.

1. Turning to the question of territorial jurisdiction, Professor Salvat concludes the Courts of Dénia have territorial jurisdiction to deal with the case under art 25 of the Regulation 1215/2012, which allows the parties to submit to a specific court of a Member State (here, the Courts of Dénia). She states that territorial jurisdiction is also conferred under art 26 of the Regulation 1215/2012.

1. Professor Salvat states the question of choice of law involves a consideration of whether Select can bring the claims it advances in the Statement of Claim against Borrell under Spanish Law. Professor Salvat answers this question in the affirmative.
2. Professor Salvat observes that, unlike the position in respect of jurisdiction, there is no single provision as to choice of law that applies to all civil and commercial matters. For contractual obligations, Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the Law Applicable to Contractual Obligations (Rome I) ('Rome I Regulation')[7] applies, and for non-contractual obligations, Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the Law Applicable to Non-contractual Obligations (Rome II) ('Rome II Regulation') applies.[8]
3. Professor Salvat states the claims advanced in the Statement of Claim appear to be characterised under Australian law as contractual (i.e. breach of contract) and non-contractual (i.e. negligence), which cannot be directly assumed for the purposes of European private international law, where concepts of contractual and non-contractual obligations are autonomous from national laws.
4. Professor Salvat refers to a decision of the Court of Justice of the European Union ('CJEU')[9] which stated that a 'contractual obligation' will be found when it is possible to identify 'a legal obligation freely consented to by one person vis-a-vis another and on which the plaintiff's action is based'. Professor Salvat considers that Select's claim for breach of contract would obviously be construed as 'contractual' for the purpose of the determination of applicable law. She states the contractual claim is derived from the contract between Select and Borrell and that it is expressly covered by art 12 of the Rome I Regulation.
5. Professor Salvat considers that the negligence claim should also be characterised as 'contractual' for the purposes of European private international law. She states the definition of non-contractual is a 'residual' concept, as it includes any action in which the liability of a defendant is not related to contractual matters. She describes this as an 'a contrario configuration', which requires the satisfaction of two conditions for an action to be considered as a non-contractual matter. Namely:

(a) it is an action which calls into question the defendant's liability; and

(b) the action cannot be qualified as a contractual matter because:

(i) there is no commitment freely entered into by both parties; or

(ii) the action brought is not considered to arise out of such a commitment.

1. Professor Salvat observed that the agreement for the supply of the roaster was entered into by both parties freely. Further, citing the CJEU's decisions in the cases of Marc Brogsitter v Fabrication de Montres Normandes EURL[10] and Granarolo SpA v Ambrosi Emmi France SA,[11] she states that if the terms of a contract need to be consulted in order to determine the claim, such a claim would be characterised as contractual.
2. Professor Salvat made reference to cls 9 and 10 of the Sale Terms which detail the extent of warranties and limitation of liability and concludes that given they must be considered in determining the extent of Borrell's liabilities, both the contractual claims and the negligence claims under Australian law are apt to be considered as contractual under European private international law.
3. Professor Salvat is of the opinion that the applicable law is therefore the Rome I Regulation. Under that regulation, she considers that Clause 15 would be deemed valid and give effect to the parties election of Spanish law in the clause.
4. Professor Salvat states that even if the negligence claim was considered non-contractual, Spanish Law would still apply. Under art 14 of the Rome II Regulation, which governs non-contractual claims, the parties may agree to submit their obligations to the law of their choice where all the parties are pursuing a commercial activity, by an agreement freely negotiated before the event giving rise to the damage occurring. Professor Salvat considers that Clause 15 would also be valid under art 14 the Rome II Regulation and give effect to the parties' election of Spanish law.
5. In summary, Professor Salvat concludes that Select can bring the claims it advances in the Statement of Claim under Spanish law before the Courts of Dénia according to arts 25, 26 and 4 of Regulation 1215/2012; art 3 of the Rome I Regulation; and arts 1088-1091, 1101-1107 and 1902 of the Spanish Civil Code.

1. Professor Salvat states that a range of remedies are available to an aggrieved contractual party; these include specific performance or forced performance, damages, contractual penalty and termination.
2. Professor Salvat is of the opinion that Select can seek the remedies it proposes in the Statement of Claim, including damages, costs and interest under Spanish law in the Courts of Dénia under arts 1101, 1124, 1108 of the Spanish Civil Code and arts 394-398 of the Spanish Law of Civil Procedure.

1. Borrell's written submissions originally advanced two grounds in support of its application that Select's claim be permanently stayed or dismissed. The first relied on the operation of Clause 15. The second relied on the common law doctrine of forum non conveniens, the basis of which is that this Court is a clearly an inappropriate forum but that ground is no longer pressed.
2. Ms Tiplady contended that Clause 15 is unambiguously an exclusive jurisdiction clause; she emphasized that it provides that in the event of 'any dispute' arising out of the operation of the contract, the parties submit to Spanish law and to the jurisdiction of the Courts of Dénia in Spain.
3. Ms Tiplady referred to the two causes of action, for breach of contract and of tortious duty, which Select pursued in this proceeding. She emphasised that in the Statement of Claim, the particulars of the breaches of contract rely on and mirror the same allegations as the claims for breach of tortious duty. As such, Ms Tiplady submitted that the dispute which is the subject of the proceeding falls within the scope of 'any dispute' arising out of the operation of the Sales Terms and that the exclusive jurisdiction clause applies.
4. Ms Tiplady observed that the particulars appended to para 70 within section D of the Statement of Claim, headed 'CONTRACT', which alleges breaches by Borrell of the Sale Terms in relation to several different aspects of the roaster, mirrors and repeats the same breaches as those alleged in paras 32, 38, 44, 50, 56 and 63 of section C of the Statement of Claim under the heading 'NEGLIGENCE'.[12]
5. In the same regard, the Statement of Claim describes the contractual loss and damage suffered by Select in para 71 by reference to the same loss and damage claimed in para 22 in respect of the negligence claims.
6. Ms Tiplady summarised the significant elements of the claim. In the Statement of Claim, it is pleaded that it was implied the Roaster would be manufactured to Australian standard. It was also alleged that the Roaster would be capable of operating safely within the parameters provided by the Supply Agreement without causing Select to sustain loss and damage and would be monitored and refined by Borrell after commissioning so as to achieve the capabilities mentioned. The Sale Terms encompassed not only the supply of the Roaster but also involved an obligation to commission and refine its operation on an ongoing basis.
7. As to the scope of Clause 15, Ms Tiplady accepted the submission of Select's counsel in respect of the principles applicable to the interpretation of provisions in a commercial contract which were collected and discussed by the Court of Appeal in VS Property & Holding Pty Ltd v Zurzolo ('VS Property') as follows:[13]

(a) In determining the meaning of the terms of a commercial contract, it is necessary to ask what a reasonable businessperson would have understood those terms to mean. To answer that question, 'the reasonable businessperson [is] placed in the position of the parties', and the Court applies the following principles:

(b) The rights and liabilities of parties under a provision of a contract are determined objectively. The subjective intentions of the parties are irrelevant.

(c) The objective approach requires reference to the text and its ordinary meaning, together with:

(i) the context, being the entire text of the contract including matters referred to in the text; and

(ii) the purpose of the contract and/or the clause in question.

(d) These matters will ordinarily be identified by reference to the contract alone, but evidence of mutually known objective background circumstances relevant to the purpose is admissible 'no matter how clear the "ordinary meaning" of the words'. Identification of purpose may allow admission of evidence of the genesis of the transaction, the background, the context and the market in which the parties are operating.

(e) Unless a contrary intention appears in the contract, the court is entitled to approach the task of interpretation on the assumption that the parties intended to produce a commercial result, and should construe it so as to avoid a commercial nonsense. However, the court does not weigh the commerciality of the agreement, and business common sense is a topic on which reasonable minds may differ.

(f) If the language used in the contract 'is ambiguous or susceptible of more than one meaning', then evidence of surrounding circumstances external to the contract is admissible to assist with interpretation of the language in question.

(g) However, 'evidence of the parties' statements and actions reflecting their actual intentions and expectations' is inadmissible. Although evidence of prior negotiations is admissible to establish objective background facts known to both parties and the subject matter of the contract, evidence of negotiations reflective of actual intentions and expectations is not receivable.

(h) Post-contractual conduct is inadmissible to construe the terms of the contract. However, the parties' subsequent communications may be relevant to determine whether the parties intended to enter into a binding contract.

1. Ms Tiplady contended that the authorities considering the construction of exclusive jurisdiction clauses reveal a strong disposition towards a broad and generous interpretation. Ms Tiplady referred to the decision of the New South Wales Court of Appeal in Global Partners Fund Ltd v Babcock & Brown Ltd,[14] where Spigelman CJ observed:[15]

Finally, in my opinion an exclusive jurisdiction clause should be interpreted in the same liberal manner as is authoritatively established with respect to arbitration clauses. The two kinds of clauses have frequently been treated as legally cognate and authorities on the scope of arbitration clauses are frequently cited in authorities on exclusive jurisdiction clauses. In both cases, all disputes which, as a matter of substance, arise from the contractual relationship between the parties are intended to be determined by the same tribunal. It is not appropriate to give general words in such a commercial context a narrow interpretation, with the consequence that some disputes which, in a practical sense, arise from the contractual relationship could be determined by courts or tribunals other than that to which the parties have agreed to submit their disputes.

The oft-quoted decision of Gleeson CJ in Francis Travel Marketing Pty Ltd v Virgin Atlantic Airways Ltd [1996] NSWSC 104; (1996) 39 NSWLR 160, made with respect to an arbitration clause, is applicable to exclusive jurisdiction clauses. His Honour said (at 165):

When the parties to a commercial contract agree, at the time of making the contract, and before any disputes have yet arisen, to refer to arbitration any dispute or difference arising out of the agreement, their agreement should not be construed narrowly. They are unlikely to have intended that different disputes should be resolved before different tribunals or that the appropriate tribunal should be determined by fine shades of difference in the legal character of individual issues, or by the ingenuity of lawyers in developing points of argument.

1. Spigelman CJ made further reference to the decision of Allsop J (as the Chief Justice then was) at [62] in Comandate Marine Corp v Pan Australia Shipping Pty Ltd ('Comandate'),[16] where he stated:[17]

[164] ... The court should, however, construe the contract giving meaning to the words chosen by the parties and giving liberal width and flexibility to elastic and general words of the contractual submission to arbitration.

[165] This liberal approach is underpinned by the sensible commercial presumption that the parties did not intend the inconvenience of having possible disputes from their transaction being heard in two places. This may be seen to be especially so in circumstances where disputes can be given different labels, or placed into different juridical categories, possibly by reference to the approaches of different legal systems. The benevolent and encouraging approach to consensual alternative non-curial dispute resolution assists in the conclusion that words capable of broad and flexible meaning will be given liberal construction and content. This approach conforms with a common-sense approach to commercial agreements, in particular when the parties are operating in a truly international market and come from different countries and legal systems and it provides appropriate respect for party autonomy.

1. Ms Tiplady emphasised what Allsop J described in Comandate as the 'sensible commercial presumption that the parties did not intend the inconvenience of having possible disputes being heard in two places.'[18] I understood that that submission was made to head off the contention foreshadowed in Select's submissions that the contractual dispute fell within the scope of the exclusive jurisdiction clause but the negligence claim did not. It was submitted that while Comandate involved consideration of a contractual submission to arbitration, it applies with equal force to the present context, that is, contractual submission to the nominated Spanish Court.[19]
2. Ms Tiplady stated the critical phrase in the present context are the words 'in the event of any dispute that may arise from the contracted operation', and submitted that these words impose a mandatory, not permissive, contractual obligation to submit to the jurisdiction of the Courts of Dénia. Borrell does not rely on the phrase in respect of submission to Spanish law in Clause 15; it was accepted that this was not determinative of the issue under consideration as this court could apply Spanish law if this was required.
3. Ms Tiplady contended that where a contract contains an exclusive jurisdiction clause, such as Clause 15, 'the courts begin with a firm disposition in favour of maintaining that bargain unless strong reasons are adduced against a stay, it being the policy of the law that the parties who have made a contract should be kept to it'.[20] This 'firm disposition' has also been described as a 'prima facie position'.[21]
4. In support of those propositions, Ms Tiplady referred to the observation by Spigelman CJ in Global Partners where he stated:[22]
   1. In the case of an application for a stay based on an exclusive jurisdiction clause, the prima facie position is that a court will enforce the clause and grant the stay. In the context of an international investment arrangement, such as that presently under consideration, which potentially involves multiple different jurisdictions, the strength of the prima facie position is of a high order.
   2. The kinds of considerations which may lead to the prima facie position being overturned have been frequently expressed in forceful words of equivalent import such as:

"A strong bias in favour" (Huddart Parker v The Ship "Mill Hill", supra at 509).

"Strong reasons" Oceanic Sun Line Special Shipping Co Inc v Fay [1988] HCA 32; (1988) 165 CLR 197 at 259 per Gaudron J_; Akai v The People's Insurance Co_ supra at 429 per Dawson and McHugh JJ and at 445 per Toohey, Gaudron and Gummow JJ.

"Strong cause" The Eleftheria supra at 99.

"Substantial grounds" FAI v Ocean Marine Mutual supra at 569; Incitec v Alkimo Shipping Corp supra at [42].

"Strong countervailing circumstances_" Incitec v Alkimo Shipping Corp_ supra at [43].

1. Reference was also made by Ms Tiplady to the decision of Lew Footwear Holdings v Madden International,[23] where Elliott J identified the key applicable principles in the following terms:[24]

Key principles applicable to considering clauses such as the Governing Law Clause and the Forum Clause in this context may be shortly stated:

(1) The contractual obligation imposed by an exclusive foreign jurisdiction clause does not operate to exclude the jurisdiction of this court, but it may constitute a ground for the court to refuse to exercise its jurisdiction.

(2) Where a contract contains an exclusive foreign jurisdiction clause, "the courts begin with a firm disposition in favour of maintaining that bargain unless strong reasons be adduced against a stay, it being the policy of the law that the parties who have made a contract should be kept to it".

(3) A stay may be refused where the exclusive foreign jurisdiction clause offends the public policy of the forum evinced by statute or judicial decision.

1. In Urban Moto Imports Pty Ltd v KTMAG & Ors ('Urban Moto'),[25] Connock J observed, in respect of an exclusive foreign jurisdiction clause, as follows:[26]

The existence or otherwise of strong reasons is to be determined having regard to the particular facts and circumstances of each case. A review of the case has reveals that a variety of circumstances have fallen for consideration in this context, including, for example: prejudice to parties if a stay is granted; the position of parties to proceedings who are not parties to the exclusive jurisdiction clause or choice of law clause; whether the relevant clause might be seen to offend public policy; whether the relief sought or cause of action being pursued is available in the selected forum; the fragmentation or bifurcation of proceedings and the consequences that may flow from it; multiplicity of proceedings; an unforeseeable change in the procedure of a foreign court; the loss of a legitimate juridical advantage; and issues in a selected forum that may put a fair trial at risk.

1. Ms Tiplady argued that there are no circumstances here which displace that 'firm disposition' or 'prima facie position' in favour of maintaining the parties' contractual bargain. She emphasised the following features of the matter:

(a) there is no juridical advantage to the bringing of the proceeding in Victoria, as compared to Spain as the expert evidence of Professor Salvat reveals each of the claims brought by the Select in the proceeding can be brought against Borrell under Spanish law in the Courts of Dénia;

(b) Borrell is based in Spain and has no corporate presence, employees or assets in Australia;

(c) Borrell's witnesses are located in Spain and speak Spanish;

(d) while the roaster was installed in Victoria and the fire took place in Victoria, the roaster was designed, manufactured and tested in Spain using expertise, technology and engineering resources physically located in Spain; and

(e) all documents relevant to the design, manufacture and testing of the roaster are located in Spain and are in Spanish.

1. Ms Tiplady submits that it follows from the above that there is no basis to depart from the prima facie position and the Court should maintain the parties' contractual bargain, which requires the parties to litigate all disputes arising out of the contract in the Courts of Dénia, under Spanish law.
2. Ms Tiplady contended that the submission by Select that 'the contracted operation' where it appears in Clause 15 should be confined to the original supply and commissioning of the roaster in 2016 should not be accepted. In this regard, she noted that Select's claim in contract pleaded that the contract provided for ongoing refinement by Borrell of the roaster; the contractual claims range from 2014 to 2019 and she submitted that it could not therefore be contended by Select in resistance to this application that period of the contracted operation did not include events after 2016. Ms Tiplady pointed to emails in evidence from Select's managing director to Borrell which demonstrated that as of January 2018 commissioning of the roaster was still underway.
3. On that basis, Ms Tiplady submits that it is appropriate that service of the writ and statement of claim on Borrell be set aside and that the proceeding be dismissed or permanently stayed.

1. In his written submissions, senior counsel for Select, Mr Whitten KC, submits that, based on the proper construction of Clause 15 of the Sale Terms, Borrell's application should be refused by reason that the clause:

(a) does not apply to the acts and omissions alleged in the Statement of Claim;

(b) amounts to nothing more than a non-exclusive jurisdiction clause;

(c) is, alternatively, unclear, ambiguous and produces a non-sensical result; and/or

(d) the competing connecting factors, on balance, demonstrate that Victoria is not a clearly inappropriate forum.

1. Select submits that whether a contractual jurisdiction clause is exclusive or non-exclusive is a matter of contractual interpretation, paying such regard to the circumstances surrounding entry into the contract as is permissible in the case of any other commercial contract.[27] The question for the Court to determine is whether the parties, if they decide to litigate, are obliged to conduct proceedings in the chosen court on all matters between them.[28] It was contended that Australian courts will only interpret a clause as being an exclusive jurisdiction clause if it is clear and unambiguous and does not conflict with the public policy of Australia.
2. Mr Whitten accepted that there is no issue about the appropriate principles in relation to the construction exercise to be undertaken by the Court. However, he submitted that the Court is still required to examine the language used by the parties in their agreement; in that exercise there must be a limit to broad or generous interpretation of provisions such as Clause 15 before a court ends up concluding on an interpretation which the parties could not reasonably or sensibly have intended on a proper consideration of the text.
3. Mr Whitten contends that Select's claims are not within the scope of the words 'contracted operations' in Clause 15 and therefore the election of jurisdiction does not apply to the present application.
4. Select relies on the fact that the phrase 'contracted operation' in Clause 15 is not defined in the Sale Terms, nor does it appear in any other clause. In accordance with the orthodox principles of construing commercial agreements,[29] interpretative assistance may be gained from other provisions of the Sale Terms, such as:

(a) cl 1.1, which refers to the Sale Terms as governing the purchase and sale agreements for machines, spare parts and services sold by Borrell;

(b) cl 3, which defines the subject matter of the agreement as being Borrell's 'machines, production lines and systems ... Spare parts, components, machinery parts, finished goods, consumables and any other tangible or intangible goods relative thereto, including software' and 'installation and assembly services, commissioning, training and advice, maintenance and technical support';

(c) cl 9.1, which provides for a warranty whereby Borrell undertook to deliver the machinery to Select in accordance with purchase and sale agreements, and is liable to Select for any non-compliance at the time of delivery of the product; and

(d) cl 9.2, which requires Borrell to correct any operational defect stemming from a defect in design, materials or workmanship, subject to the limitations set out in the subsequent provisions.

1. Select submits the most sensible construction of the term 'contracted operation' is the subject matter of the transaction, namely, the design, manufacture, installation and commissioning of the equipment.
2. In this regard, reference was made to provisions of the Sale Terms which included provisions for training, maintenance and technical support. The Quotation specified 'Fitting costs' as including '12 weeks for installation' and 'three weeks for start-up, testing and training'. There is no other provision in the Quotation for the inclusion of maintenance and technical support within the price or beyond that period. The final page of the Quotation contains a list of 'additional costs to client' which includes 'anything not specified in [the Quotation]'. Select therefore submits that any further work performed after the first 12 weeks falls outside the 'contracted operation'.
3. On that basis, Select submits that Clause 15 can only apply to a dispute arising from the original supply and commissioning of the equipment in 2016. The pleaded claims of negligence and breaches of contract involve events occurring between 2017 and 2019, during which representatives of Borrell attended the site, provided advice and effected various modifications to the plant. Select's claims fall outside the 'contracted operation' specified in Clause 15.
4. Referring to an observation of Spigelman CJ in Global Partners, Select also submits the phrase 'that may arise from' is generally construed more narrowly than the commonly used 'in connection with',[30] which gives rise to two implications:

(a) Clause 15 should be construed as applying only to disputes arising from the original supply and initial commissioning of the roaster, not to events which, as here, occurred some two years thereafter or which might be regarded as being 'in connection with' the original supply; and

(b) by the same reasoning, Clause 15 should be construed as applying only to the legal remedies provided for in the Sale Terms (for instance, Borrell's delivery of machinery or its compliance with warranty requirements), which does not include the damages claimed by Select in the Statement of Claim.

1. Select contends that even if Clause 15 does apply to its claims, the reference to 'submit' in the subsequent limb of the clause is not determinative of jurisdiction, citing the decision of Osborne J in Need Pty Ltd v Need Essentials U.S.A LLC,[31] where his Honour observed that 'the parties submitted themselves to the jurisdiction of the [relevant] Court, but no more'.[32]
2. In such provisions, words such as 'exclusive' can be a strong indication that exclusive jurisdiction was intended or agreed upon.[33] However, Select submits Clause 15 does not contain the word 'exclusive' or any other similar terms. Nor does the clause employ the language of obligation[34] or mandatory words such as 'must' or 'shall', which have been found to be indicative of an exclusive jurisdiction clause.[35]
3. Select submits that a forum clause is more likely to be interpreted as exclusive if disputes are to be 'referred to' the courts of a particular jurisdiction, rather than if the parties simply 'submit' to that jurisdiction.[36]
4. Select contended that even if Clause 15 is considered mandatory, the clause operates only as a governing or choice of law provision and is, of itself, not determinative of jurisdiction. It is possible that the proceeding could be heard in Victoria albeit determined according to Spanish law. If the submission to Spanish law requires Clause 15 to be construed in accordance with that law, Select submits there is no evidence or opinion before the Court which derogates from, or engages with, that analysis.
5. Select submits it is unclear from Professor Salvat's report whether Spanish law could adequately deal with the negligence allegations in the Statement of Claim, particularly having regard to common law principles in relation to the existence and scope of a duty of care and the other considerations in Part X of the Wrongs Act 1958 (Vic).
6. At the hearing of the application, Mr Whitten developed Select's submissions on this issue. First, he submitted that Professor Salvat's report is predicated upon an analysis of the Regulation 1215/2012, an instrument of the European Union which has no application to Australia but only to 'member states' of the EU; Australia not being a member of the EU would be considered to be a 'third state' and not be subject to the regulation. Mr Whitten submitted the only reference to how it applies to a third state is in respect of how a member state court is required to deal with proceedings brought before it in the face of proceedings already commenced in a 'third state' court.
7. Second, with respect to art 25, which effectively provides that an exclusive jurisdiction or choice of forum clause is enforceable unless it is null and void as to its substantive validity under the law of that member state, Mr Whitten submitted there is no attempt in Professor Salvat's report to engage with the issues that have been raised in this application.
8. Third, turning to the section of Professor Salvat's report which deals with the question of the scope of Clause 15 and concludes that Select's claim as pleaded in the Statement of Claim falls entirely within the scope of Clause 15, Mr Whitten resisted what he described as Professor Salvat's view that the phrase ['contracted operation'] should be interpreted as meaning 'anything that arises out of the contractual relationship between the parties'.
9. Fourth, Mr Whitten contended that the only real question before the Court is whether Select's claims can be heard in Spain without it being disadvantaged. The Statement of Claim is structured on the usual common law and statutory principles particular to Australian law. Accordingly, Mr Whitten submitted Professor Salvat's report does not assist the Court because it only considers EU regulations and principles. He made reference to the various articles of the Spanish Civil Code that are cited in the Expert Report and submitted they provide no clear indication or certainty as to how Select's claims, as pleaded in the Statement of Claim, will be treated under Spanish law.
10. Mr Whitten contended Clause 15 merely amounts to a non-exclusive jurisdiction clause, which neither requires litigation to proceed in the Courts of Dénia nor precludes either party from suing in another forum which has jurisdiction to resolve the dispute between the parties.[37]
11. Select contends that the words in Clause 15, 'having waived their own jurisdiction', produces a nonsensical result. On a literal application, it must follow that Borrell has waived its own jurisdiction, being the Courts of Dénia. The logical result is that the clause produces no jurisdiction. The clause is therefore neither clear nor unambiguous. To the extent it is ambiguous, it should be construed contra proferentem against Borrell such that Clause 15 is not an effective exclusive jurisdiction provision.
12. Further or alternatively, Select submits that if both parties have waived their jurisdiction, then jurisdiction may be determined by the place of the tort (lex loci delicti commissi), being Victoria.[38]

1. Resolution of this application begins by a consideration of whether the claims made by Select fall within the ambit of the phrase 'any dispute that may arise from the contracted operation' in Clause 15.
2. If they do, consideration is then required as to whether Clause 15, rather than being a nonexclusive provision involving nothing more than a submission to the nominated jurisdiction, operates as an exclusive jurisdiction clause such that Select is obliged to bring its the claims in the Spanish court.
3. If Clause 15 is considered to be an exclusive jurisdiction clause, it then must be considered whether there are any features of the matter which would displace the 'prima facie' or 'firm disposition' described in the authorities that the parties should be held to their bargain in respect of the choice of forum.
4. The analysis of the first two of these questions involves an application of the general principles applicable to the construction of a commercial agreement which were collected by the Court of Appeal in VS Property. As the passage of VS Property extracted above reveals, the question is approached by consideration of what a reasonable business person would have understood the provision in question to mean. In that exercise, the rights of the parties under a provision of a contract are required to be determined objectively, by reference to the text of the contract and its ordinary meaning, having regard to its context in the entire text of the contract, and its purpose.
5. In VS Property, the Court of Appeal observed that the context and purpose of the provision will ordinarily be identified by reference to the text of the contract alone but evidence of mutually known objective background circumstances relevant to the purpose is admissible 'no matter how clear the "ordinary meaning" of the words'. Unless a contrary intention appears in the contract as a whole, the Court is entitled to approach the task of interpretation on the assumption that the parties intended to produce a commercial result and should construe it so as to avoid a commercial nonsense. If the language used in the provision of the contract in question is ambiguous or susceptible of more than one meaning, then evidence of surrounding circumstances external to the contract is admissible to assist with interpretation. In that exercise, however, evidence of the parties' statements and actions reflecting their actual intentions and expectations is inadmissible, as is post-contractual conduct.

Are Select's claims in the statement of claim 'disputes' which '...arise from the contracted operation'?

1. In my opinion the claims made by Select are 'disputes' which arise from 'the contracted operation' and are within the ambit of cl15. I do not accept Mr Whitten's submission that the clause should be read down in the manner he contends for in respect of its scope, that is, that the 'contracted operation ' where it appears in Clause 15 should be confined to disputes relating to the original supply and commissioning of the equipment in 2016. In my view, this is borne out by the fact that Select's claims in the statement of claim for breach of contract and negligence/breach of duty contend that Borrell had obligations and liabilities in respect of matters which extended well beyond that year. Those obligations and liabilities could only be referable to the 'contracted operation'. As such, I do not accept that Select could submit that the 'contracted operation' is restricted in its scope in the way that it contends.
2. In this regard, para 32 of the Statement of Claim describes breaches of duty in respect of the design, modification and refinement of the roaster which are said to have occurred over the period 2014 to April 2019. In the contractual claim, the particulars of the breach repeat in the contractual context the same factual matters said to give rise to the breaches in the tortious context. Select's claims do not confine Borrell's obligations in the way that Mr Whitten contended for; its own claim contended implicitly that the 'contracted operation' extended well beyond 2016. Select pleaded that Borrell had obligations to perform beyond the manufacture and installation which included monitoring and refinement of the roaster. The Statement of Claim[39] describes Borrell's attendances at the plant as late as 2019; those obligations are said to have arisen from the contract. I also observe that cl 9.2 of the Sale Terms required Borrell to correct any operational defect stemming from a defect in the design of the roaster, a central feature of Select's claims and, in my view, the claims amount to a '... dispute ...' in respect of a 'contracted operation'. In my opinion, the claims in respect of tortious duty and contract come within the meaning of the phrase 'dispute' which has arisen in respect of 'contracted operation' in Clause 15.

Is Clause 15 an exclusive jurisdiction clause which obliges Select to make its claims in the Spanish court?

1. As has been discussed, the authorities dealing with question as to whether a provision of a contract amounts to an exclusive jurisdiction clause speak of a 'strong disposition towards a broad and generous interpretation'. In Global Partners, Spigelman CJ described the approach to be taken in terms of 'a liberal manner' and that, in the context of construing such a clause, it is not appropriate to give general words in a commercial context a narrow interpretation, 'with the consequence that some disputes which in a practical sense arise from the contractual relationship could be determined by courts or tribunals other than that to which the parties have agreed to submit their disputes'.[40]
2. In Global Partners, Spigelman CJ made reference to Francis Travel Marketing Pty Ltd v Virgin Atlantic Airways Ltd,[41] which are extracted above, where Gleeson CJ remarked that when parties to a commercial contract agree at the time of formation of the contract, and before any disputes have yet arisen, to refer any dispute or difference arising out of the agreement, the parties' agreement should not be construed narrowly.[42]
3. Spigelman CJ observed:[43]

A significant purpose of an exclusive jurisdiction clause is to ensure that all disputes are determined in a coherent manner by a single jurisdiction. There is a clear commercial interest in minimising the possibility of a dispute being determined by multiple tribunals, with the consequent prospect of divergent findings. Furthermore, the parties, in advance, have determined that a particular jurisdiction is acceptable to them, both in terms of the speed and efficacy of its civil dispute resolution procedures and for the competence and skill of its judges and lawyers. A party to such a clause should be held to its contractual obligations, whether enforced by another party on a contractual basis or by means of the exercise of a discretion conferred upon the court.

1. The approach of the courts has been described by the High Court in Akai as beginning with a 'firm disposition' in favour of maintaining the agreement that has been reached unless strong reasons are adduced against a stay;[44] the policy of the law is that the parties who have made a contract should be kept to it. In Global Partners, Spigelman CJ described this firm disposition as being a 'prima facie position'.[45]
2. In my opinion, Clause 15 should be construed to operate as an exclusive jurisdiction clause as Borrell contends. The contract for the roaster was drafted specifically for the design and manufacture of the roaster by representatives of the parties, who are both commercially sophisticated entities. The contract contained elaborate and detailed terms, including a very specific and precise identification as to the court to which the parties agreed that they would submit to the jurisdiction of in the event 'any dispute that may arise from the contracted operation'. One can perhaps understand why this was agreed. The evidence is that the roaster was designed, manufactured and tested by Borrell in Spain and the identified court is an understandable choice of venue (as is the choice of Spanish law, but that as has been said is not determinative of the issue under consideration here). Applying the test of what a reasonable business person would have understood the significance of the reference to the Spanish court to be, in my view it is clear and unambiguous that they agreed to take any disputes to the identified court to the exclusion of any other.
3. I do not accept Select's contention that the use of the word 'submit' in Clause 15 as against 'referred to' when identifying the court of a particular jurisdiction gives rise to a construction that the clause was intended to be non-exclusive. In this regard, I consider that the clause, viewed as a whole, with its very specific identification of a particular Spanish court to which the parties agreed to 'submit', is evincing a clear and unambiguous intention by the parties that in the event of a dispute, they were each obliged to bring any claims in that Court. The question is not whether Select's claims can be heard in Spain without it being disadvantaged; the parties agreed to the choice of venue being the Spanish court and no doubt that will not be as convenient to Select as litigating its claim in this jurisdiction.

Are there any features of the matter which would displace the 'prima facie' or 'firm disposition' that the parties should be held to their bargain in respect of the choice of forum?

1. I do not consider there is any feature of the matter which gives rise to a public policy consideration requiring Select's claims to be brought in an Australian court so as to overwhelm the operation of Clause 15.
2. I accept the submissions of Ms Tiplady that there are no reasons for displacing the 'firm disposition' or 'prima facie position' in favour of maintaining the parties' contractual bargain. Rather, I agree with the several matters which she describes in her submissions including that the design and manufacture of the roaster took place in Spain,[46] the presence of Borrell's personnel there and the other features referred to support Borrell's contention that the 'firm disposition' for holding the parties to their bargain should not be displaced.
3. Further, I do not consider that there is any logical impediment for parties to first waive their native jurisdiction and then to submit to a named jurisdiction, even if that named jurisdiction happens to be one party's native jurisdiction. While perhaps curious drafting, it does not render the clause a nonsense.

(a) the service of the Writ and the Statement of Claim on Borrell by Select be set aside under r 8.08 of the Rules;

(b) the proceeding be permanently stayed under r 8.08 of the Rules; and

(c) Select pay Borrell's costs of the application including any reserved costs.

[1] In the Writ, Select contended in para 6 that there were breaches of the Australian Consumer Law but these are not maintained in the Statement of Claim.

[2] In the Prothonotary's capacity as the 'forwarding authority' under art 18 of the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters ('Hague Service Convention') and r 80.01 of the Rules.

[3] Form 80A required the Court's signature.

[4] This is no longer pressed by Borrell.

[5] This affidavit was primarily concerned with matters in connection with the extension of the validity of the Writ.

[6] Regulation (EU) No 1215/2012 of The European Parliament and of the Council of 12 December 2012 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters [2012] OJ L 351/1 ('Regulation 1215/2012').

[7] Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the Law Applicable to Contractual Obligations (Rome I) [2008] OJ L 177/6.

[8] Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the Law Applicable to Non-contractual Obligations (Rome II) [2007] OJ L 199/40.

[9] Citing ERGO Insurance SE v If P&C Insurance AS (Court of Justice of the European Union, C‑359/14, ECLI:EU:C:2016:40, 21 January 2016) [44].

[10] Brogsitter v Fabrication de Montres Normandes EURL (Court of Justice of the European Union, C‑548/12, ECLI:EU:C:2014:148, 13 March 2014).

[11] Granarolo SpA v Ambrosi Emmi France SA (Court of Justice of the European Union, C‑196/15, ECLI:EU:C:2016:559, 14 July 2016).

[12] These are detailed in paragraph Error! Reference source not found. above.

[13] [2024] VSCA 199, [54] (Niall, Walker and Kenny JJA) (citations omitted) ('VS Property').

[14] [2010] NSWCA 196; (2010) 79 ACSR 383 (Spiegelman CJ, Giles and Tobias JJA) ('Global Partners').

[15] Ibid [60]-[61] (Spiegelman CJ).

[16] [2006] FCAFC 192; (2006) 157 FCR 45 (Finn, Finkelstein and Allsop JJ) ('Comandate').

[18] Global Partners, 398 (Spiegelman CJ) citing Comandate, 87-88 (Allsop J).

[19] See comments of Spigelman CJ in Global Partners [85]: 'The importance of holding parties to their bargain in this respect has often been emphasised in the context of enforcing exclusive jurisdiction clauses and in the cognate area of enforcing agreements to submit to arbitration.'

[20] Akai Pty Ltd v People's Insurance Co Ltd (1996) 188 CLR 418, 445 (Toohey, Gaudron and Gummow JJ) ('Akai'); cited in Lew Footwear Holdings Pty Ltd v Madden International Ltd [2014] VSC 320, [232].

[21] Urban Moto Imports Pty Ltd v KTM AG [2021] VSC 616 [20] (Connock J) ('Urban Moto'), citing _Global Partner_s, 402 (Spigelman CJ).

[22] Global Partners, 402 (Spiegelman CJ)

[23] [2014] VSC 320 (Elliott J).

[25] [2021] VSC 616 (Connock J).

[27] Citing Joshan v Pizza Pan Group Pty Ltd [2021] NSWCA 219; (2021) 106 NSWLR 104, 123-4 (Bell P); Need Pty Ltd v Need Essentials U.S.A. LLC [2023] VSC 184, [105].

[29] Citing VS Property & Holding Pty Ltd v Zurzolo [2024] VSCA 199, [54] (Niall, Walker and Kenny JJA).

[30] Citing Global Partners Fund Ltd v Babcock & Brown Ltd (in liq) [2010] NSWCA 196, [56].

[31] [2023] VSC 184.

[33] Citing Ace insurance Ltd v Moose Enterprise Pty Ltd [2009] NSWSC 724, [33]; AAP Industries Pty Ltd v Rehau Pte Ltd [2015] NSWSC 468, [16].

[34] Citing Richard Garnett, 'Jurisdiction Clauses since Akai' (2013) 87(2) Australian Law Journal 134.

[35] Citing Ace Insurance Ltd v Moose Enterprise Pty Ltd [2009] NSWSC 724, [33].

[36] Citing FAI Insurance Co v Ocean Marine Mutual Protection & Indemnity Assn Ltd (1997) 41 NSWLR 117, 127.

[37] Citing Johan v Pizza Pan Group Pty Ltd [2021] NSWCA 219; (2021) 106 NSWLR 104.

[38] Citing Puttick v Fletcher Challenge Forests Pty Ltd [2007] VSCA 264, [12] citing John Pfeiffer Pty Ltd v Rogerson [2002] HCA 10; (2000) 210 CLR 491, 504.

[39] Paragraph 18 of the Statement of Claim.

[40] Global Partners, 398 (Spigelman CJ).

[41] [1996] NSWSC 104; (1996) 39 NSWLR 160 (Gleeson CJ, Meagher and Sheller JJA).

[43] Global Partners, 399 (Spigelman CJ).

[44] Akai, 445 (Toohey, Gaudron and Gummow JJ).

[45] Global Partners, 402 (Spigelman CJ).

[46] See paragraph 68 above.