Telesto Investments Limited v UBS AG - [2013] NSWSC 503 - NSWSC 2012 case summary — Zoe

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Telesto Investments Limited v UBS AG

[2013] NSWSC 503

Supreme Court of NSW|2012-11-23|Before: Sackar J

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Court

Supreme Court of NSW

Decision date

2012-11-23

Before

Sackar J

Source

Original judgment source is linked above.

Judgment (19 paragraphs)

[1]

48 ALR 573 Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256 Blair v Curran (1939) 62 CLR 464 Boles v Esanda Finance Corporation Ltd (1989) 18 NSWLR 666 Bryant v Commonwealth Bank of Australia (1995) 57 FCR 287 C G Maloney Pty Ltd v Noon [2011] NSWCA 397 Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853 Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502 Champerslife Pty Ltd v Manojlovski (2010) 75 NSWLR 245 Coffey v Secretary, Department of Social Security (1999) 86 FCR 434 Commonwealth Bank of Australia v White (No 1) (1999) 2 VR 681 Commonwealth Bank of Australia v White (No 4) [2001] VSC 511 CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 Desert Sun Loan Corporation v Hill [1996] 2 All ER 847 Digi-Tech (Australia) Ltd v Brand (2004) 62 IPR 184 Dow Jones v Gutnick (2002) 210 CLR 575 Duchess of Kingston's Case (1776) 2 Smith LC (13th edn) 644 Ex Parte Nelson (No 2) (1929) 42 CLR 258 FAI General Insurance Co Ltd v Ocean Marine Mutual (1997) 41 NSWLR 559 Falk v Haugh (1935) 53 CLR 163 Ferris v Plaister (1994) 34 NSWLR 474 Francis Travel Marketing Pty Ltd v Virgin Atlantic Airways Ltd (1996) 39 NSWLR 160 Garsec v Sultan of Brunei [2008] NSWCA 211 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Global Sportsman Pty Ltd v Mirror Newspapers Ltd (1984) 55 ALR 25 Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 Hall v Odber (1809) 11 East 118 Henderson v Henderson (1843) 3 Hare 100 Henjo Investments Pty Ltd v Collis (Marrickville) Pty Ltd (1988) 79 ALR 83 Henry v Geoprosco International Ltd [1976] QB 726 Hilton v Guyot (1895) 159 US 113 Hoystead v Federal Commissioner of Taxation (1921) 29 CLR 537 IBM Australia Ltd v National Distribution Services Ltd (1991) 22 NSWLR 466 IEL Finance Limited v Commissioner of Taxation [2006] FCA 267 Jackson v Goldsmith (1950) 81 CLR 446 Johnson v Gore Wood & Co [2002] 2 AC 1 Kok Hoong v Leong Cheong Kweng Mines Ltd [1964] AC 993 Linprint Pty Ltd v Hexham Textiles Pty Ltd (1991) 23 NSWLR 508 Kuligowski v Metrobus (2004) 220 CLR 363 Macquarie Bank Ltd v National Mutual Life Association of Australasia Ltd (1996) 40 NSWLR 543 McCormick v Allen (1926) 39 CLR 22 Newmont Yandal Operations Pty Ltd v J Aron Corp (2007) 70 NSWLR 411 O'Donel v Commissioner for Road and Transport and Tramways (NSW) (1938) 59 CLR 744 PCH Offshore Pty Ltd v Dunn (No 2) (2010) 273 ALR 167 PNJ v The Queen (2009) 252 ALR 612 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 599 R v Lintrose Nominees Pty Ltd; Hopkins v R (2001) 4 VR 619 Reinsurance Australia Corporation Ltd v HIH Casualty and General Insurance (in liq) (2003) 254 ALR 29 Ridgeway v The Queen (1995) 184 CLR 19 Rogers v The Queen (1994) 181 CLR 251 Ruddock v Taylor (2003) 58 NSWLR 269 Schnabel v Lui [2002] NSWSC 15 Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699 Spirits International BV v Federal Treasury Enterprise (FKP) Sojuzplodoimport [2011] FCAFC 69 Talacko & Ors v Talacko [1999] VSC 81 Tanning Research Laboratories Inc v O'Brien (1990) 169 CLR 332 Telesto Investments Ltd & ors v UBS AG (2012) 262 FLR 119 The Sennar (No 2) [1984] 2 Lloyd's Rep 142 The Sennar (No 2) [1985] 1 WLR 490 Trawl Industries of Australia Pty Ltd (in liquidation) and Others v Effem Foods Pty Ltd (1992) 36 FCR 406 Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 Wright v TNT Management Pty Ltd (1989) 15 NSWLR 679 Zavodnyik v Alex Constructions Pty Ltd (2005) 67 NSWLR 457 Texts Cited: Davies, Bell and Brereton, Nygh's Conflict of Laws in Australia, 8th ed (2010) LexisNexis Butterworths E Campbell, "Res Judicata and Decisions of Foreign Tribunals" (1994) 16 Sydney Law Review 311 K R Handley, Spencer Bower, Turner and Handley, The Doctrine of Res Judicata, 3rd ed (1996) Butterworths K R Handley, Spencer Bower and Handley, Res Judicata, 4th ed (2009) LexisNexis Butterworths Mortensen, Garnett and Keyes, Private International Law in Australia, 2nd ed (2011) LexisNexis Butterworths P Barnett, Res Judicata, Estoppel and Foreign Judgments, (2001) Oxford University Press R V Miller, Miller's Australian Competition and Consumer Law, 34th ed (2012) Thomson Reuters Category: Interlocutory applications Parties: Telesto Investments Limited (Plaintiff) UBS AG (Defendant) Representation: Counsel: R McHugh SC and N Bender (Plaintiff) J Stoljar SC and L Livingston (Defendant) Solicitors: Russells Solicitors (Plaintiff) King & Wood Mallesons (Defendant) File Number(s): 2010/363808

[3]

Background 3In setting out the factual background in the following paragraphs, I have adopted a number of uncontroversial factual matters from a previous judgment on an interlocutory application in these proceedings given by Ward J on 7 February 2012 (Telesto Investments Ltd & ors v UBS AG [2012] NSWSC 44; (2012) 262 FLR 119). 4On 3 December 2007, Telesto opened investment account 116731 with UBS in Singapore. 5The account was the subject of detailed terms and conditions. Clause 19.1 provided: 19. Governing Law and Jurisdiction 19.1 In relation to any Account or Services, the Account Agreement and any Security Document shall be governed by and construed in accordance with the law of the country in which the relevant Account is booked and the Client irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of such country, unless otherwise specified. In the case of UBS e-banking Services and the use of unsecured email, the place of performance of all obligations by the Client and the Bank and the exclusive place of jurisdiction for any disputes arising out of and in connection with that Service shall be the jurisdiction in which the Account is booked. Notwithstanding this, the Bank shall have the right, but not the duty or obligation, to take legal action against the Client in the jurisdiction in which UBS e-banking Services is offered, in the Client's place of residence or domicile or any other jurisdiction, subject always to the foregoing choice of law. 6In Section 6 of the terms and conditions dealing with risk disclosure the following general conditions were contained: General Conditions a. The terms and conditions in this Section 6 are applicable to transactions involving equities, foreign exchange, precious metals, bonds, commodities, interest rates, securities, market indices and any combination of these, and any spot, forward contracts, swaps, options and other derivatives transactions thereof including any structured products incorporating any or any combination of the preceding (the "Transactions"). b. Due to the volatile nature of the Transactions and the underlying assets therein, participation in a Transaction involves a certain degree of risk. The Client's attention is hereby drawn to such risks (which can be substantial). The Client should consult his advisors on the nature of such Transactions and carefully consider whether the kind of Transaction is appropriate for him in the light of his experience, objectives and personal and financial circumstances. The Client carries the burden of all risks involved in such Transactions and the Bank is not responsible for any losses whatsoever or howsoever arising from the Transactions. c. The Client accepts that, when the Bank undertakes a Transaction for the Client, the Bank, or some other person connected with it, may have an interest, relationship or arrangement that is material in relation to the Transaction concerned. The client further acknowledges and agrees that when the Bank undertakes a Transaction for him, the Bank, or a person connected with it, could be dealing as principal for its own account or as agent for the account of another client or customer of the Bank. d. By entering into any Transaction with the Bank, the client confirms that he has read and fully understood this Risk Disclosure Statement and all product term sheets, annexures and supplements pertaining to the Transaction, and that he fully understands the nature of the Transaction and the terms and conditions governing the said Transaction, including the Bank's margin requirements (if applicable). e. By entering into any transaction with the Bank, the Client acknowledges that he makes his own assessment and relies on his own judgment in relation to any and all investment or trading or other decisions in respect of such Transaction and accepts any and all risks associated therewith and any losses suffered as a result of entering into any Transaction. f. The Bank is not obliged to give advice or make recommendations and, notwithstanding that it may do so on request by the Client or otherwise, such advice or recommendations are given or made (and the Client acknowledges and agrees that it is so given or made) without any responsibility on the part of the Bank and on the basis that the Client will nevertheless make his own assessment and rely on his own judgment. 7Clause 17 was in the following terms: 17. Emerging Markets Emerging markets are markets in countries with moderate to low per capita national income, according to the World Bank's definition. This applies, for example, to some Asian countries. Experience has shown that political changes in emerging markets countries affect the capital markets more profoundly than is the case in industrialized countries. Economic policy measures such as nationalization, government intervention in industry and trade, or limits on ownership rights may dramatically change corporate earnings outlook for foreign investors in emerging markets. The influences of higher interest rates or a high inflation rate can have much more serious consequences for economic development than would be the case in more mature markets. The dependence on price trends of commodities also represents an additional risk. 8Telesto, which is incorporated in Jersey, held a portfolio of securities and had for some time retained Pole Star Funds Management Pty Ltd (Polestar), the principal of which was a Mr Scott Tyne (Mr Tyne), to manage its investment portfolio. 9By late August 2008, Telesto's portfolio principally comprised equities and managed funds. 10Under the arrangements, UBS made available to Telesto certain credit facilities including a short term facility in the amount of $US50 million which increased to US$60 million. The respective facilities were put in place by the acceptance by Telesto of an initial Credit Services Notification Letter dated 12 December 2007 and subsequent letters dated 13 February 2008, 1 June 2008 and 1 August 2008. The facilities were to operate in accordance with the account terms and conditions. 11Mr Tyne, who was at the relevant time the sole beneficial owner of Telesto's assets, agreed to guarantee the amounts owing by Telesto to UBS under the facilities by executing a guarantee and indemnity on 26 September 2008 in favour of UBS which was expressly said to be governed by the laws of Singapore and nominated Singapore as non-exclusive jurisdiction to which the parties agreed to submit. 12In mid to late 2007, it is alleged by Telesto that a Mr Steve Betsalel and a Mr Edward Farrell who were then employees or agents of UBS advised Telesto that Telesto should reconfigure its portfolio to include bonds recommended by UBS as a risk-reducing measure in light of the then prevailing state of global equities markets. It is further alleged that UBS told Telesto that it had specialist expertise in respect of debt capital markets particularly in emerging countries including Kazakhstan. 13It is further alleged by Telesto that UBS specifically advised it to invest in bonds issued by Bank Turan-Alem (BTA) and Astana Finance both of which were banks located in Kazakhstan. 14Telesto used funds available to it under the facilities to purchase various investments but this included bonds issued by the Kazakhstan financial institutions which investment amounted to the equivalent of AUD 33,401,266.20. 15Telesto alleges that in the course of dealing with UBS (through Mr Tyne) UBS made a number of representations as to the safety, as it were, and the relatively risk free venture was involved in the investment in the bonds issued by BTA and/or Astana Finance. Further it is alleged that none of the representations made to Telesto were made to Mr Tyne whilst he was in Australia. 16In September 2008, the value of the bonds declined and UBS on 29 October 2008 made a margin call requiring Telesto either to provide additional collateral or to reduce the amount owed under the facilities. As at 28 October 2008 the shortfall was USD 28,159,607. The October 2008 margin call was not met, and on 22 December 2008 UBS notified Mr Tyne that a Default Event had occurred and that the full amount of Telesto's liabilities was immediately due and payable, but that in "recognition of [Mr Tyne's] full cooperation to date", and subject to certain stated provisos, UBS would "suspend enforcement of its rights under the Account Agreement for the time being". 17It is asserted by UBS that Telesto and Mr Tyne requested UBS not to sell the bonds provided by Telesto or make any further margin calls in relation to amounts owing under the facilities. 18Telesto asserts that in order to meet the margin call it was forced to sell assets and make cash payments. 19Over the balance of 2008 and throughout early 2009, the value of the bonds continued to decline and UBS made further margin calls on Telesto which liquidated further asserts in order to meet the margin calls. Telesto asserts that Mr Tyne was assured during 2008 that BTA was not a bank that would go into default. A similar representation was made by UBS (through Mr Farrell) in relation to Astana again to Mr Tyne. 20On 9 April 2009, UBS was appointed by BTA to advise it in respect of restructuring its debts. 21On or about 28 April 2009, BTA and Astana finance defaulted on their obligations to make payments in respect of each of the bonds all of which no longer have any value. 22In April 2009, a proposed "Standstill Agreement" dated 23 April 2009 was forwarded to Telesto, but that document was not signed by Telesto and there is no suggestion it became a binding agreement. On 6 May 2009, UBS made demands on Telesto and Mr Tyne as guarantor to repay EUR 6,800,000 and GBP 2,350,000, representing the notional value of the BTA bonds, by 11 May 2009. 23In any event, it is alleged by UBS that Telesto and Mr Tyne requested that UBS not sell the collateral provided by Telesto or make further margin calls in relation to amounts owing under the facilities, and UBS agreed not to do so on certain conditions that were contained in a subsequent letter dated 14 December 2009 and counter signed by Telesto on 31 December 2009 (the Standstill Agreement). UBS set out in the Standstill Agreement the terms on which it agreed, without prejudice to its rights under the account agreement, not to liquidate the collateral or to make further margin calls or call for further collateral until 31 March 2011 or the occurrence of an earlier event of default. 24As part of the Standstill Agreement, Telesto undertook to procure Argot, which is the trustee of the Argot Unit Trust, to enter into a letter of undertaking in favour of UBS (Argot is a company incorporated in Australia and the corporate trustee of the Argot Unit Trust, and Mr Tyne was at all material times the director of Argot and the sole beneficial owner of the assets in the Argot Unit Trust). On 28 January 2010, Argot executed the letter of undertaking (Letter of Undertaking). Under the Letter of Undertaking, Argot undertook to open an account with UBS and to charge all and any assets held within that account as a continuing security in favour of UBS to secure Telesto's liabilities to it. Argot also agreed to apply the proceeds of certain litigation brought by it against a third party in Victoria directly to the Argot account towards repayment of Telesto's liabilities to UBS. The Argot account was opened on or about 4 June 2010. 25The Standstill Agreement did not contain a choice of jurisdiction or choice of law clause, but the Letter of Undertaking, executed by Argot in consideration for the Standstill Agreement, nominated Singapore as the exclusive jurisdiction and specified the law of Singapore as the governing law. The Standstill Agreement made provision for its termination on the occurrence of certain events of default, including the failure of Telesto or Argot to comply with any of the conditions of the Letter of Undertaking; the failure of Telesto to comply with any of the conditions under the Standstill Agreement; and the occurrence (in the reasonable opinion of UBS) of a material adverse change in Telesto's financial condition or operating environment or of any event or circumstances causing UBS to believe that Telesto may not be able to comply with or perform any one or more of its obligations. 26On 8 October 2010, Telesto's Australian solicitors, Eakin McCaffery Cox, wrote to UBS advising that they were instructed to commence proceedings against UBS on 16 October 2010 or as soon as practical thereafter. The letter raised various allegations against UBS, including the undertaking by UBS of a series of trades purportedly on behalf of Telesto without authority; the misrepresentation or omission by UBS of material facts in its promotion of debt securities issued by financial institutions in Kazakhstan; false and misleading conduct by UBS in relation to the provision of a financial service under Australian law; and the inducement by UBS of a financial institution in Kazakhstan to default upon debt securities issued by it in breach of its contract with third parties. The letter also adverted to the possibility of "collective legal action" by "purchasers of Kazakh bank debt" and sought details of any agent of UBS upon whom service could be effected in Australia on and from 16 October 2010. 27On 11 October 2010, UBS issued a certificate of indebtedness pursuant to clause 14.3 of section 2 (General Conditions) of UBS's Account Terms and Conditions and clause 6 of the Guarantee and Indemnity dated 26 September 2008. Under the account terms, this certificate was said to be conclusive and certified total liabilities to be USD 12,617,499.56 as at 14 October 2010 (Total Liabilities). 28On 15 October 2010, UBS served a notice of termination of the Standstill Agreement on Telesto, advising that default events set out in the Standstill Agreement had occurred and that pursuant to the terms of that agreement it "has terminated, ceased to be binding on the Bank and is of no further effect". UBS also demanded payment of the Total Liabilities from Telesto and from Mr Tyne as guarantor, for the amount specified in its previously issued certificate of indebtedness. 29Also on 15 October 2010, UBS commenced proceedings in the High Court of the Republic of Singapore (being suit No 801 of 2010) against Telesto and Mr Tyne. I will later return to the detail of these proceedings. 30On 18 October 2010, Telesto and Mr Tyne's solicitors responded, advising they would now commence proceedings against UBS and would effect service in Singapore. On the same day, UBS asked the solicitors then acting for Telesto and Mr Tyne in Singapore for instructions as to whether they were authorised to accept service on behalf of the Telesto defendants of the UBS writ in the Singapore proceedings. 31On 19 October 2010, the High Court of the Republic of Singapore made orders allowing UBS to serve the originating process in the substantive proceeding on Telesto in Jersey and on Mr Tyne in the UK (UBS had received no response to its communication of 18 October 2010). On 23 October 2010, UBS received notification from the United Kingdom Royal Mail that the delivery of the initiating process on Mr Tyne was refused. 32On 2 November 2010, Telesto, Mr Tyne and others, commenced proceedings in New South Wales (being matter 2010/363808) by filing in court a summons and commercial list statement on 2 November 2010, and serving those documents on UBS in Singapore on 3 November 2010. I will later return to the detail of these proceedings. 33On 5 November 2010, the writ in the substantive Singapore proceedings was served on Telesto in Jersey by the Royal Court of Jersey. 34On 11 November 2010, UBS commenced proceedings in the High Court of Singapore to restrain the plaintiffs in the New South Wales proceedings from carrying on those proceedings (the Singapore Anti-Suit Application). UBS joined each of the Telesto parties to this application, including Argot (which was not a party to the substantive Singapore proceedings previously commenced). 35On 24 November 2010, Tan Kok Quan partnership (TKQP) filed a memorandum of appearance on behalf of Telesto in the substantive Singapore proceedings. 36On 9 December 2010, the New South Wales Supreme Court heard a motion filed by UBS that the New South Wales proceedings be temporarily stayed pending the determination of the Singapore Anti-Suit Application. Consent orders for a temporary stay were made without prejudice to the parties' respective positions in the substantive Singapore proceedings or the Singapore Anti-Suit Application. 37On 14 December 2010, following an application for substituted service, the originating process in the substantive Singapore proceedings was served on Mr Tyne in Sydney (through his solicitors). 38On 21 December 2010, Telesto applied in Singapore for a stay of the substantive Singapore proceedings in favour of the New South Wales proceedings, on the basis of forum non conveniens. 39On 10 January 2011, Mr Tyne similarly applied in Singapore for a stay of the Singapore proceedings in favour of the New South Wales proceeding. 40On 11 February 2011, the Singapore Anti-Suit Application brought by UBS, and the stay applications brought by Telesto and Mr Tyne, were heard by Assistant Registrar Ms Tan Wen Hsien. An order was made on 21 February 2011 allowing the Singapore Anti-Suit Application brought by UBS and dismissing the stay applications brought by Telesto and Mr Tyne for a stay of the Singapore proceedings. At this time, the Total Liabilities owed by Telesto to UBS is alleged by UBS to be in excess of USD 12,000,000. 41On 28 February 2011, Telesto, Mr Tyne and Argot lodged notices of appeal in respect of the decisions in the Singapore Anti-Suit Application and the stay applications. 42On 8 March 2011, UBS informed Telesto that if UBS fails to receive payment of the liabilities on the account, it will take steps to realise the collateral in the account and apply the proceeds towards repayment of those liabilities. Later that month, on 24 March 2011, UBS informed Telesto that it will immediately take steps to realise the collateral in the account and apply the proceeds to reduce the liabilities. 43On 16 May 2011, the appeal was heard before Justice Chong of the High Court of Singapore, at which time Telesto's liabilities to UBS were in excess of USD $5,000,000. On 14 July 2011, Justice Chong delivered his decision dismissing the appeal. By this time, UBS had taken further steps to realise the collateral in the account and apply the proceeds to reduce liabilities, and the Total Liabilities owed by Telesto to UBS was nil. 44On 25 July 2011, application was made by the plaintiffs for leave to appeal from the decision of Justice Chong. The plaintiffs also agreed to file their defence in the substantive Singapore proceedings by 15 August 2011. 45On 5 August 2011, TKQP discharged themselves as solicitors for the plaintiffs in Singapore. 46On 12 August 2011, the plaintiffs' then Australian solicitors (Eakin McCaffery Cox) sent a letter to the Registrar of the Supreme Court of Singapore requesting an extension of three weeks to brief new counsel. 47On 16 September 2011, Justice Chong heard the application for leave to appeal (against the appeal decision of 14 July 2011 in respect of UBS's Anti-Suit Application, and Telesto and Mr Tyne's stay applications). No appearance was noted on behalf of the plaintiffs and the application for leave to appeal was dismissed. 48On 24 October 2011, UBS filed a notice of motion in the New South Wales Supreme Court seeking a permanent stay of the New South Wales proceedings. 49On 21 November 2011, Ward J heard the application. Her Honour gave judgment on 7 February 2012, and made formal orders on 21 February 2012 staying the New South Wales proceedings "pending the final determination of the Singapore proceedings or further order of this Court". 50On 1 March 2012, Telesto and Mr Tyne's Australian solicitors wrote to UBS's Australian solicitors indicating that they did not intend to file an appearance in the Singapore proceedings, nor were they instructed to accept service on behalf of any party in respect of the Singapore proceedings. 51On 6 March 2012, the plaintiffs filed an amended summons and further amended statement of claim pursuant to orders of Ward J in which Mr Tyne and Argot were removed as plaintiffs. 52On 8 March 2012, UBS filed an application to amend the amended statement of claim in the substantive Singapore proceedings. 53On 12 March 2012, Telesto's Australian solicitors wrote to UBS's Australian solicitors in respect of the substantive Singapore proceedings stating that Mr Tyne's address for service was 26 Knightsbridge Parade, East, Sovereign Islands, Queensland. 54On 2 April 2012, UBS arranged for a copy of its application to amend its statement of claim in the substantive Singapore proceedings to be served on Telesto and Mr Tyne. 55On 12 April 2012, Telesto's Australian solicitors and Mr Tyne sent correspondence to UBS stating that neither party would contest the substantive Singapore proceedings on the merits. 56On 13 April 2012, the Singapore court heard UBS's application to amend its amended statement of claim. No appearance was made on behalf of Mr Tyne or Telesto. Leave to amend was granted, and UBS served its further amended statement of claim in the substantive Singapore proceedings on Telesto on 16 April 2012, and on Mr Tyne on 18 April 2012. 57On 19 April 2012, timetabling orders were made in the substantive Singapore proceedings for the filing of a defence by Telesto and for the filing of UBS's list of documents. UBS, through its Singaporean solicitors, sent a letter to each of Mr Tyne and Telesto setting out the orders made by the court. 58On 17 May 2012, UBS filed its list of documents and verified affidavits in the substantive Singapore proceedings. 59On 23 May 2012, UBS filed a summons for directions in the Singapore proceedings, and on the same day its solicitors sent copies of the list of documents and summons for directions to each of Telesto and Mr Tyne by ordinary and registered post. 60On 24 May 2012, UBS attended a pre-trial conference before Registrar Ng in respect of the substantive Singapore proceedings. A timetable was fixed for the hearing which was to take place on 27 July 2012. 61Also on 24 May 2012, UBS's Singapore solicitors sent a letter to each of Mr Tyne and Telesto with details of the directions made by Registrar Ng in respect of the substantive Singapore proceedings. 62On 11 July 2012, UBS sent copies of its affidavits of evidence in chief and its supplementary list of documents and verifying affidavit to the Registrar of the Singapore Court. 63On 12 July 2012, UBS's Singapore solicitors sent a compact disk containing UBS's affidavits of evidence in chief and its supplementary list of documents and verifying affidavit to each of Telesto and Mr Tyne by courier and ordinary post. 64Between 12 and 20 July 2012, UBS filed a number of documents, including its bundle of documents and opening statement in respect of the substantive Singapore proceedings, in the Singaporean Court. 65On 17 July 2012, UBS's Singaporean solicitors sent a compact disk containing UBS's bundle of documents and opening statement in respect of the substantive Singapore proceedings to each of Telesto and Mr Tyne by courier. 66On 24 July 2012, UBS's Australian solicitors sent a compact disk to Telesto's Australian solicitors containing copies of relevant court documents in respect of the substantive Singapore proceedings, including copies of UBS's bundle of documents, UBS's opening statement, UBS's affidavits of evidence in chief, and UBS's supplementary list of documents and a verifying affidavit. 67On 27 July 2012, the substantive Singapore proceedings were heard before the Honourable Justice Lai Siu Chiu. No appearance was noted on behalf of either Telesto or Mr Tyne. 68Telesto called evidence and questions were asked of certain witnesses by the Judge. In the end, the Judge made a declaration in the following terms: the defendants are estopped from asserting, and/or have compromised, any claims or defences they may have arising out of, or in relation to, the Investments and/or Total Liabilities due and owing to the Plaintiffs, including but not limited to, the acquisition or management of the Investments and/or the Total Liabilities. 69On 30 July 2012, UBS's Singapore solicitors sent a letter to each of Telesto and Mr Tyne by courier and ordinary post setting out a summary of the hearing in the substantive Singapore proceedings on 27 July 2012. 70On 6 September 2012, UBS filed its notice of motion in the New South Wales proceedings as described above. 71On 10 September 2012, Telesto filed its notice of motion in the New South Wales proceedings also described above. 72On 6 November 2012, Telesto served a copy of a proposed second further amended summons and second further amended statement of claim in respect of which it proposes to seek leave to file and serve in the event UBS's stay is lifted.

[5]

Proceedings before Ward J 74Although the procedural context Ward J was faced with is different to that which currently confronts the court, her Honour made a number of pertinent comments in relation to analogous issues. 75Ward J was confronted with an application by UBS for a permanent stay of proceedings which had been commenced by Telesto on 21 November 2010. The application was sought pursuant to section 67 of the Civil Procedure Act 2005, or the inherent or implied power of the court. 76Her Honour considered the procedural chronology in some considerable detail which at the time, as I have said, of the hearing before her the courts in Singapore had been concerned of course with UBS seeking an anti-suit injunction in Singapore on the one hand and Telesto on the other seeking a stay of the Singapore proceedings based on a forum non conveniens argument. 77Assistant Registrar Tan, as I have already observed, on 21 February 2011 made orders in chambers dismissing the application by Telesto for a stay of the Singapore proceedings on the grounds of forum non conveniens and granted an anti-suit injunction against Telesto, Mr Tyne and Argot from prosecuting or continuing to prosecute the Australian proceedings. Telesto unsuccessfully appealed the orders of Assistant Registrar Tan and, on 14 July 2011, Chong J in the High Court of Singapore dismissed Telesto's appeals. 78In considering the motion then before the Court her Honour made it clear that the test applicable on such an application was that as recognised in CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345. Her Honour therefore had to determine whether the Australian court was a clearly inappropriate forum. 79UBS put a number of argument to the court as to why a permanent stay should issue. First it was submitted that principles of comity required the stay. Secondly it was submitted that there was an issue estoppel which precluded the Telesto parties from contending in the then proceedings that it was not vexatious or oppressive for them to continue to prosecute them. Next it was submitted that Telesto, by seeking to re-litigate matters in this court, was involved in an abuse of process, the forum non conveniens issues having been determined in Singapore. Her Honour expressed the view that depending upon what was ultimately involved in a determination of the Singapore proceedings then a continuation of the proceedings in this court would be likely to be vexatious and oppressive having regard to the controversy as a whole. That was dependent in her Honour's view on there being "such an overlap" in the proceedings but largely dependent upon the course that the Telesto parties might ultimately take in that jurisdiction. 80Her Honour considered that the principles considered by the High Court in CSR, accepting the explanation given by the Supreme Court of the United States in Hilton v Guyot (1895) 159 US 113, at 163 to 164. 81Her Honour considered that the principles of comity require that due recognition be given to the judicial act of the High Court of Singapore in granting (and upholding on appeal) an anti-suit injunction restraining the Telesto parties from proceeding with the matter in New south Wales and dismissing Telesto's application for a stay of the proceedings in Singapore. Her Honour made clear that the orders made in Singapore are a factor to be taken into account but by no means a determinative factor, [111]. Her Honour thought that to accept that the anti-suit injunction was determinative of the question of stay would be tantamount to the enforcement in this jurisdiction of a foreign injunction, [113]. Her Honour did accept that the existence of the anti-suit injunction in Singapore was clearly a powerful discretionary factor because to permit Telesto to otherwise prosecute the proceedings in Australia would be to acquiesce in its defiance of an anti-suit injunction especially one granted following a contested hearing and upheld on appeal, [115]. 82In analysing the question of whether or not there was an issue estoppel having referred to the relevant authorities, her Honour determined that there was no issue estoppel in relation to the issue as to whether this court was a clearly inappropriate forum for the resolution of the disputes between the parties. Her Honour observed that all that had been determined in Singapore was that it was the natural and most appropriate forum, [131]. Her Honour observed that Chong J in the High Court in Singapore had made a finding that it was vexatious or oppressive for the Telesto parties to continue the proceedings in New South Wales. Her Honour thought estoppel was certainly capable of arising in relation to that issue, [132]. Her Honour found that the Telesto parties were, by reason of the determination in Singapore, estopped from denying in the proceedings before her that the maintenance of those proceedings will operate in a manner that is vexatious or oppressive in its effect on UBS. However, her Honour did not accept that the fact that the Telesto parties were so bound by that finding determined the issue of whether to grant a stay, and there was still a discretion for her to exercise accordingly, [135] and [136]. Her Honour took the view that that matter had to be determined consistent with the authorities objectively and that UBS had the onus in persuading the court accordingly (albeit that the Telesto parties may be estopped from denying or raising a positive case against it, [136]). 83It is plain that relevant to her Honour's consideration of this issue was, to some extent, what the subject matter of the claims may ultimately be in the substantive proceedings in Singapore. No defence had been filed by the Telesto parties and it is plain from the above chronology the ambit of the substantive claims being prosecuted by UBS was significantly reduced by reason of the discharge of the Total Liabilities claimed in relation to Telesto's account. What was then on foot in Singapore so far as UBS was concerned was claims for declaratory relief and for indemnity costs. Her Honour was therefore faced with having to determine the application on the basis that she was unable to make an assumption as to the potential content of Telesto's defence in the Singapore proceedings. It was foreshadowed by UBS before her Honour that if it obtained declaratory relief as sought, this would bring the entirety of the dispute between the parties to an end. The declaration, it was submitted, would be fatal to all claims thought to be prosecuted by Telesto and Mr Tyne in New South Wales. Any such attempt would not be permissible on the grounds, it was submitted, of res judicata issue estoppel or abuse of process. Her Honour thought it might ultimately be a matter for debate. Her Honour also thought a relevant consideration was whether the defence raised in the Singapore proceedings challenged the validity or enforceability of the initial transactions or transaction documents themselves (as opposed to a defence going only to the estoppel/compromise said to have been effected by reason of the later Stand Still Agreement and alleged Implied Agreement, [152]). 84Her Honour clearly contemplated the possibility that because of the stance taken forensically by Telesto in Singapore, duplication of issues and the risk of even conflicting decisions would not necessarily arise as would in the event of a direct overlap in the issues, [180]. 85As part of the discussion on this issue, her Honour of course had regard to the expert opinion of senior counsel in New South Wales, Mr J T Gleeson SC, as to the relevant Australian legislation and the juridical advantages available to the Telesto defendants thereunder. Her Honour was therefore not satisfied that there would necessarily be an abuse of process by reference to the re-litigation of the substantive issues in the Singapore proceedings if a stay was not granted, although she could see forceful arguments, that costs incurred to date in the various interlocutory applications in Singapore would have been effectively wasted. 86On the fourth issue which her Honour had to deal with, namely that of forum non conveniens, her Honour did advert to the competing claims that there were juridical advantages by reason of the existence of forms of relief available under the Trade Practices Act 1974 (Cth) which may not be available in Singapore, together with the evidentiary and onus of proof advantages for a claim under the Trade Practices Act as compared to proceedings for negligent misrepresentation. Chong J in the High Court in Singapore, who also had the benefit of the expert opinion of Mr Gleeson SC, formed the view that there would be no material differences or advantages for the Telesto parties arising under the Trade Practices Act. Her Honour felt that she could not discount the analysis performed by Chong J who concluded that there was no substantial or material advantage to the Telesto parties prosecuting their claims in New South Wales. Her Honour thought that the test in the circumstances was that articulated by Campbell JA in Garsec v Sultan of Brunei [2008] NSWCA 211 to the effect that the court as a general rule should not be deterred from granting a stay of proceedings because the plaintiff may be deprived of an advantage forensically, provided the court is satisfied that substantial justice will be done in the available appropriate forum. Her Honour accepted the submission by UBS and was satisfied that substantial justice would be done in Singapore, [194]. 87The issue of juridical advantage was articulated before me, and again I had the benefit of the opinion of Mr Gleeson SC, but also that of Tan Cheng Han, an advocate and solicitor of the Supreme Court of the Republic of Singapore and a Professor of Law at the National University of Singapore. I will of course return to this aspect of the matter later. However, her Honour importantly concluded at [205] and [206] the following: [205] In light of the conclusions reached by Chong J (following his analysis of the pleadings and Mr Gleeson's expert opinion) as to the operation of the law in Singapore it is difficult to find that there are any substantial juridical advantages in the ability of the Telesto parties here to invoke the statutory provisions in relation to misleading and deceptive conduct, although I note that there is weight to be accorded to the public policy underpinning this legislation as a factor pointing to this jurisdiction. [206] While the substantive law to govern the claims made by the Telesto parties in relation to the tort and misleading and deceptive conduct claims seems to me to be the law of this forum the other claims raised by the Telesto parties I accept are likely to be governed by the law of Singapore. I also note that the commencement of the proceedings in this jurisdiction by ArgoT is in breach of an exclusive jurisdiction clause in its contractual arrangements. 88Her Honour concluded (at [218]) that (upon the basis she was then considering the matter) this court was clearly an inappropriate forum for the purposes of the test in Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538. 89Her Honour though relevantly observed at [219]: [219] If, however, the controversy to be litigated in Singapore will not overlap to the extent that was considered likely when the matter was before Chong J, then I do not consider that it would be vexatious and oppressive for the Telesto parties to continue the present proceedings in which relief is sought in part under forum statutes in respect of which the courts have recognised there is a strong public policy in favour of the protection of those doing business in this jurisdiction (and even though I recognise that this would seem to involve a clear breach of the orders made against the Telesto parties in Singapore and would presumably expose them to charges for contempt according to the applicable law in Singapore). 90In all the circumstances her Honour was not minded to grant a permanent stay but rather a temporary stay subject to the outcome of the proceedings in Singapore.

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The Hearing of the Substantive Proceedings in Singapore 91Immediately following the entry of formal orders by Ward J, Telesto's Australian solicitors and Mr Tyne made it abundantly plain that they did not propose to take part in any way at all in the substantive proceedings in Singapore; in particular, that neither party would contest the proceedings on the merits. Mr Tyne, on 12 April 2012, from his address in Queensland wrote to Drew and Napier (solicitors for UBS in Singapore) in the following terms: The High Court of Singapore does not have personal jurisdiction over me and I will not contest this hearing on its merits. This was communicated to your client via its Australian lawyers but it was also self evidence given: a. the defendant's lawyer formally withdrew from the proceeding after the application to put a stay on jurisdictional grounds failed; and b. a defence was required to be filed more than a year ago. I understand you propose to prosecute this proceeding ex parte "on the basis of the facts" set out in the Statement of Claim and the affidavit of Sng Sannie dated 29 March 2012. Many of those "facts" are wrong and are known to be so by your client. Other "facts" are simply asserted in circumstances where your client could not possibly know whether the proposition is true and is aware it is disputed. Some "facts" are contradicted in evidence in other proceedings. Yet other "facts" are inconsistent with documents published by and to your client. 92UBS obtained leave to amend its statement of claim in the Singaporean proceedings. In that document, which was filed on 13 April 2012, both Telesto and Mr Tyne were still the first and second defendants respectively. 93There are a number of matters that require noting. First, there appears to be added in now paragraph 5 an allegation that the first defendant did not request or pay for any investment specialist services or advice in relation to the account. It alleges that the first defendant signed up for the standard services and was otherwise in full control of its portfolio. Additionally, there was also an allegation that the first defendant had the ability to assess the merits of and understood and bore the economic risk of trading in securities, derivatives and/or currencies on a margin basis. Reference is therein made to the Risk Disclosure Statement (paragraph 99(d)). 94As with the previous pleading, the full extent of the alleged contractual obligations are fully set out in the amended pleading. In addition, for example, it was alleged pursuant to clause 7.1 that the first defendant (Telesto) accepted all risk arising from its opening and maintenance of the relevant account including but not limited to any investment or trading. Further it is alleged that the first defendant fully acknowledged that it had read and fully understood the Risk Disclosure Statement and was relying upon its own judgment in making the investments. 95Considerable detail is then pleaded by way of extracts from the Risk Disclosure Statement and the consequences of having acknowledged, as it were, by signing the relevant documentation that the particular transactions were volatile (clause (gg)). In addition, it was specifically pleaded (at 9(kk)) that the plaintiff was not obliged to give advice or make recommendations notwithstanding that it may do so upon the request of Telesto. 96The whole thrust of Section A, as it were, of the amended pleading (apart from the various contractual obligations) was to emphasise that the whole nature of the risk associated with the particular investments was entirely for the assessment and analysis of the defendants. 97Section B of the pleading deals in considerable detail with the interaction between employees of UBS and the defendants. 98In section B of the amended pleading, UBS specifically pleaded the roles of Mr Betsalel, described as the "client advisor", and Mr Farrell, described as "an emerging market specialist". The dealings between the various parties is set out in some considerable detail. More to the point, in paragraph 16 (although it purports to be a summary of calls, emails and/or meetings) there are a number of representations which it is alleged UBS made to the second defendant acting on behalf of the first defendant. Importantly, in paragraph 16(g) it was pleaded in particular that UBS represented that BTA and Astana Finance bonds were "interesting ideas and suitable investments for investors seeking high yield at the material time". In paragraph 16(h) it is specifically pleaded that the first defendant was effectively advised to diversify investments across issuer and countries as the investments were "risky". It is further pleaded that it was represented that the potential to lose more than the investments themselves was always possible when leverage and financing was involved. In addition, in paragraph 17 it is alleged (amongst other things) that Mr Farrell told the second defendant that based on a presentation and financials provided, BTA did not appear to be a bank on the verge of defaulting. It is asserted that Mr Farrell simply relayed the contents of a conference call conducted by BTA for investors and analysts in February 2008. 99In particular, in paragraph 18 UBS alleged that the statements relevantly made in paragraphs 16 and 17 were true at the time they were made or alternatively there was a reasonable basis and/or grounds for making the statements based on the information available to it. 100In paragraph 21, it is specifically asserted that the defendants asked the plaintiff (through Mr Betsalel and Mr Farrell) for investment recommendations. It is asserted the defendants acknowledged that the plaintiff was not obliged to give such recommendations and more to the point that the first defendant expressly agreed that it was not relying on the plaintiff but on its own assessment and judgment. Section C of the pleading deals with the conduct of the account and Section D deals with the margin call events. Section E deals with the guarantee. Section F deals with the Standstill Agreement. 101In paragraph 46 of the pleading it is alleged that in consideration of the plaintiff entering into the Standstill Agreement and receiving benefits thereunder the defendants impliedly agreed amongst other things to waive and/or not raise any claims or defences they may have arising out of or in relation to the investments and/or Total Liabilities including but not limited to the acquisition or management of the investments and/or Total Liabilities. 102Paragraph 46(vi) asserts that the second defendant on or before 20 December, discovered a seminar paper prepared by Ms Bakhyt Mazhenova, chairman of the Kazakhstan Deposit Insurance Fund which set out certain matters in respect of investments in Kazakhstan. The second defendant is alleged to have sent a copy of the paper to Mr Betsalel and as a result, a telephone conversation took place between the second defendant and Mr Betsalel about the seminar paper. Mr Betsalel is alleged to have said to the second defendant that the plaintiff should have known of the matters mentioned in the seminar paper and should not have recommended the investments to the first defendant. Notwithstanding this apparent knowledge, the defendants executed the Standstill Agreement and did not pursue their alleged claims against the plaintiff. Further it is asserted that the defendants had the benefit of independent legal advice from Singaporean solicitors which led to the execution of the Standstill Agreement. As a result it is pleaded in paragraph 47 that either by reason of the Standstill Agreement or alternatively the implied agreement the defendants are estopped from asserting and/or have compromised any claims or defences they may have had arising out of or in relation to the investments and/or Total Liabilities including but not limited to the acquisition or management of the investments and/or the Total Liabilities. 103Section G of the pleading deals with events of default. Section H deals with the realisation of collateral. 104The relief claimed is in the following terms: IT IS THIS DAY ADJUDGED AND DECLARED that (all capitalised terms as defined in the Statement of Claim (Amendment No 2) filed on the 13th day of April 2012 (the "SOC")):- 1. The Investments were authorised. 2. The Defendants are estopped from asserting, and/or have compromised, any claims or defences they may have arising out of, or in relation to, the Investments and/or Total Liabilities due and owing to the Plaintiffs, including but not limited to, the acquisition or management of the Investments and/or the Total Liabilities. 3. By reason of the Events of Default, the Standstill Agreement was terminated and the Total Liabilities were immediately due and payable to the Plaintiffs. 4. As at 14 October 2010, the Defendants were liable to the Plaintiffs in the total sum of USD12,617,499.56, and with interest at a rate of 3% thereon over and above the Plaintiffs' cost of funds. 5. Pursuant to clauses 11.5 and 13.3 of the Account T & C - General Conditions, clause 1.8 of section C of the Account T & C - Product Conditions, clause 6 of the Charge, clause 2 of the Account T & C - Risk Disclosure Statement, and the CSNL, the Plaintiffs were entitled to realise the Collateral in the Account and apply the proceeds received to satisfy the Total Liabilities owed by the 1st and 2nd Defendants. AND IT IS ORDERED that costs to be paid by the Defendants to the Plaintiffs on a full indemnity basis. 105There is no dispute that a number of procedural steps thereafter took place in Singapore. As is clear from the above, Mr Tyne and Telesto were each provided with copies of relevant court documents including lists of documents, a compact disc containing the discovery of UBS and copies of its affidavits of evidence in chief. 106Amongst the materials which was not only filed in court in Singapore but provided to the defendants was the opening statement on behalf of UBS. That statement is a 74-page document. Apart from dealing with the proceedings in Singapore the opening statement also dealt with the Australian proceedings. It was certainly the case as opened in Singapore that Mr Tyne was a knowledgeable and sophisticated investor who did his own research, came to his own conclusions and, it was submitted, made his own decisions as to the investments including the Kazakh bonds. It was specifically asserted that UBS shared its views with Mr Tyne but that its views were at all times based on analysis available to UBS and in doing so it acted diligently and with reasonable care. It was specifically asserted in UBS's opening that the defendants at all relevant times were possessed of every material piece of information and yet entered the Standstill Agreement in order to compromise their position. 107The proceedings in Singapore were heard before the Honourable Justice Lai Siu Chiu on 27 July 2012. UBS was represented by Mr Kumar of counsel. Mr Kumar informed the Judge that no defence had been filed and the defendants had notified UBS that they did not propose to contest the proceedings or to appear. 108In addition to the written opening it appears 11 volumes comprised the plaintiff's tender bundle of documents. I was not supplied, unsurprisingly, with all the documentation which was filed before the court in Singapore but I was provided with a list of documents and I was provided also with the affidavit of evidence in chief of a Mr Daniel Heimlicher who was the first witness called by UBS. Mr Heimlicher's statement ran for some 70 pages and all in all comprised four volumes of material. Evidence was also called from Mr Farrell whose affidavit comprised three volumes and a Mr Milan Parmar Singh whose affidavit comprised a single volume. 109Mr Kumar explained to the court that UBS had attempted to have Mr Betsalel attend and give evidence, and although he had resigned from UBS in May 2009 he appeared to be cooperating with the defendants' then solicitors TKQP. Mr Kumar then informed the Judge that Mr Betsalel had insisted that if UBS were to take a statement from him he wanted the defendants' solicitors, who had already spoken with him, to be present. Further, Mr Kumar advised the court that at the time the proceedings were before Justice Chong in Singapore, Mr Betsalel resided in Singapore but had since moved to Hong Kong. Mr Kumar said that the explanation he provided to the court was really for the purposes of supporting the proposition that Mr Betsalel was not prepared to speak with and/or cooperate with UBS in relation to the proceedings. 110Following his opening address Mr Kumar called as his first witness Mr Heimlicher. Apart from being sworn in and having confirmed that the contents of his affidavit were true, no further questions were asked of him, unsurprisingly. The learned Judge however asked Mr Heimlicher to confirm that apart from some conference calls he had really not had much to do with Mr Tyne. He confirmed that at the relevant time Mr Betsalel was the client advisor who it seemed had no assistance, and Mr Heimlicher confirmed effectively that Mr Betsalel virtually had sole contact with Mr Tyne. 111The Judge asked Mr Heimlicher whether he thought there was any chance that Mr Betsalel had persuaded Mr Tyne to invest in the bonds, to which Mr Heimlicher said he would not know. Mr Heimlicher confirmed that he had conference calls with Mr Tyne but he thought perhaps ten would be the maximum number. When the Judge asked Mr Heimlicher how Mr Tyne had come across, Mr Heimlicher said that he appeared to him to be very knowledgeable, very sophisticated and a "very savvy investor who knew exactly what he did, who had a very clear opinion of the investments in the portfolio he had with UBS at that point in time". Mr Heimlicher said "we always" had the impression Mr Tyne was in full control of his account and the investments he made. 112Mr Heimlicher said that when he came to deal with Mr Tyne, he had already invested in the Kazakh bonds and he was party to attempting to persuade Mr Tyne to sell some of the investments. So far as the Kazakhstan bonds were concerned Mr Tyne he said "felt comfortable" and did not want to sell them. However he finally changed his mind when the price was too low. Mr Heimlicher indicated that in his opinion Mr Tyne did not panic and he further went on to say that he felt Mr Tyne was "very confident" in what he knew or seemed to know about the Kazakhstan banking system. The Judge then asked Mr Heimlicher about the Standstill Agreement and the circumstances surrounding it. 113The next witness was Mr Singh. Again he confirmed that the contents of his affidavit were true and correct. The Judge asked Mr Singh whether he had spoken with Mr Tyne, and Mr Singh indicated that he had a couple of phone calls and one meeting. The Judge enquired of Mr Singh whether Mr Tyne had ever asked for bank statements, and Mr Singh said they were ultimately emailed to Mr Tyne. Mr Singh also confirmed that an e-banking platform was provided to Mr Tyne so that he could access the financial information he needed. The Judge then asked a number of questions about the witness' knowledge of Mr Betsalel. The witness indicated that he did not know the reasons why Mr Betsalel had resigned from UBS. 114The next witness was Mr Farrell. Again he confirmed that the contents of his affidavit were true. Mr Farrell confirmed that he had some initial discussions with Mr Tyne about investments in emerging markets in general, and his impression was that Mr Tyne was genuinely interested in investing in emerging markets and seeking investments with high potential for returns and that he did not mind taking the risk. Mr Farrell indicated that his impression was that Mr Tyne understood and/or had previous knowledge that Kazakhstan was a place that was rich in minerals and had a good deal of wealth and he thought that would be a good place to look for opportunities. He told the Judge that at that time the coupon rates for Kazakhstan bonds were somewhere between 9 - 10% whereas US treasury bonds were somewhere between 4 - 5%. The witness told the Judge that Mr Tyne had mentioned to him at some point that he had gone onto a website and checked prices for various bonds in emerging markets. Mr Farrell indicated that he was not specifically aware of the seminar paper that Mr Tyne had referred to in the Australian proceedings. To his knowledge, that seminar paper was never widely distributed in the circles Mr Farrell dealt with and was never mentioned in any research reports that he regularly read. Mr Farrell thought that, having read the seminar paper, it was quite irrelevant to any decision to invest in Kazakhstan bonds. Mr Farrell said that he did not believe that the banks in Kazakhstan would default but that it might be difficult to sell the bonds. When the financial crisis occurred there were simply no buyers. 115At the conclusion of the evidence Mr Kumar drew the Judge's attention to the penultimate paragraph of Ward J's judgment. 116In giving her ex tempore judgment on 27 July 2012, the Judge indicated that she had considered the documents before the court and was satisfied that whatever may have been the rights and liabilities between UBS and Telesto and Mr Tyne all of those rights and liabilities were subsumed after the Standstill Agreement was signed by the first defendant on 31 December 2009. Further, she found that the Standstill Agreement had not been complied with by the second or first defendant and therefore she proposed to give judgment for the plaintiff. Therein a discussion took place between Mr Kumar of counsel and her Honour as to the precise form of the declaratory relief that she proposed to give. In doing so, the Judge purported to make findings of the variety of matters asserted in UBS's Opening Statement in paragraphs 113 to 139, and said that the content of those paragraphs accorded with the documentation and the evidence before the Court. In one sense however, what her Honour did was cryptically indicate her accord that the evidentiary materials support the allegations in UBS's opening statement. This was a process of adoption rather than a reasoned judgment in which the Judge makes it clear precisely what facts are indispensable to the ultimate outcome. 117It is important to note the substance of a number of those apparent findings. First, the judge found that in the circumstances the investments were clearly authorised, [115]. She also found that the defendants were contractually estopped by the terms and conditions of the account from asserting that: (1)they have relied upon UBS Singapore's advice or representation; (2)UBS owed them a duty to furnish them investment advice; (3)UBS Singapore owed them a duty to act in their best interests; and (4)UBS Singapore owed them a fiduciary duty, [116]. 118Further, her Honour found that UBS was not in breach of any fiduciary obligation it may have owed the defendants by entering into the Kazakhstan engagement, [117] and [118]. 119Her Honour also held that by reason of the circumstances she appears to have found, Telesto admitted and /or was not entitled to deny that the Total Liabilities were owed to UBS Singapore, the investments were authorised and UBS Singapore was discharged from all its obligations to Telesto and Mr Tyne. Further, she found that Telesto was estopped from denying the Total Liabilities, asserting the investments were unauthorised and asserting that UBS Singapore was negligent or that UBS Singapore misled or deceived Telesto and/or Tyne, [119]. In addition, by UBS Singapore entering into the Standstill Agreement and the defendants receiving benefits under that agreement, the defendants had impliedly agreed to waive and/or not raise any claims or defences they may have had arising out of or in relation to the investments and/or Total Liabilities. 120Further, the Judge again appears to have found that there was a clear understanding between Telesto and Mr Tyne when entering into the Standstill Agreement that Telesto had decided to settle matters with UBS Singapore and abandoned their causes of action against UBS Singapore in exchange for UBS Singapore agreeing to give Telesto and Mr Tyne the benefit or more time to meet the Total Liabilities and not enforce its right to liquidate the collateral, [123]. 121It was noted that the defendants had sought to rely on various matters in respect of their alleged claims against UBS Singapore (among other things, that UBS Singapore should inform them of potential frauds or issues in Kazakh banks, and in particular, BTA and Astana including matters in the seminar paper, and that UBS improperly acted in the restructuring of BTA's bonds). It was further noted that the defendants had made the same allegations before the Singapore courts in the Anti-Suit Application, [124]. However, the Judge found that the events and matters which Telesto and/or Mr Tyne seek to rely upon in relation to their alleged claims against UBS Singapore were matters which they were aware of, or must have been aware of, at the time they were legally represented and decided to enter the Standstill Agreement. Notwithstanding this they entered into the agreement presumably on their lawyers' advice. 122In particular, by adopting the detail of paragraph 125 of UBS's opening statement, the Judge appears to have found that Telesto and/or Mr Tyne had impliedly agreed to waive or not raise any claims or defences they may have had in relation to a number of matters. This was based on the following of the Judge's findings:

information was provided by Messrs Betsalel and Farrell to Mr Tyne in a phone call on 19 March 2009 about the likelihood that BTA would have to restructure because of the possibility of fraud within BTA, [125(a)];
it was public knowledge in or around April 2009 that UBS was engaged by BTA as a financial consultant, [125(b)];
in April 2009 BTA declared that it would cease payment of principal sums and on 29 April 2009 BTA defaulted on payment of coupons owed to bond holders, [125(c)];
Mr Tyne was following the events in Kazakhstan as they developed, [125(d)];
during a further conversation in April 2009 Mr Betsalel and Mr Farrell again spoke to Mr Tyne who revealed that he was aware that BTA was being advised by UBS and Goldman Sachs, [125(d)(i)];
it was public knowledge on or around 19 May 2009 that Astana Finance was suspending payments of interest and principal on their international debt and principal payments on certain domestic obligations as of 15 May 2009, [125(e)];
during a telephone call on 15 June 2009 Mr Tyne told Mr Heimlicher that he may want to get rid of the Kazakh bonds because he did not "trust them" , [125(f)];
during a telephone call on 26 June 2009 Mr Tyne said that he had looked at BTA's balance sheet and that they had lost half or more of their balance sheet in the last four months and he said it was "the world's largest fraud" , [125(g)];
it was also public knowledge that in August of 2009 proceedings had been commenced in the High Court in England against the ex-chairman of the Board of Directors of BTA alleging fraud and a number of persons, including Mr Mukhtar Ablyazov (the ex-chairman), were charged with fraud and money laundering by Russian and Kazakh authorities, [125(h)];
Mr Tyne's affidavit sworn 20 December 2010 on behalf of Telesto in the Anti-Suit Application indicated that Mr Tyne was intimately aware of the various events described, [125(i)];
in Mr Tyne's affidavit filed 31 January 2011 (in response to UBS Singapore's assertion that Telesto and/or Mr Tyne knew of the seminar paper and their alleged claims in misrepresentation against UBS Singapore before entering into the Standstill Agreement), Mr Tyne had alleged that he and Telesto were aware of their alleged "claims in misrepresentation" against UBS Singapore and that they believed that the claims entitled them to damages, [125(j)]. 123It was therefore found by the Judge that the Standstill/Implied Agreement was, and was intended to be, a compromise. Prior to entering into the agreements on 31 December 2009 Telesto and Mr Tyne were aware of their alleged claims and had contemplated legal proceedings. It was in that context that they negotiated and executed the Standstill Agreement, [126], [127], [128], [129] and [130]. 124Further, the Judge said the termination of the Standstill Agreement was irrelevant as it provided that upon termination the Total Liabilities became immediately due and payable which clearly implied that there could be no challenge to the Total Liabilities, and hence the relevant estoppel arises, [136], [137] and [138].

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The New South Wales proceedings 125Initially in New South Wales Telesto, Mr Tyne and Argot commenced proceedings on 2 November 2010. Mr Tyne and Argot ceased to be plaintiffs in New South Wales upon the filing of amended pleadings on 6 March 2012 pursuant to leave granted by Ward J on 21 February 2012. Telesto is presently the sole plaintiff in the New South Wales proceedings. 126It is not controversial that the New South Wales proceedings have included claims of negligence, misleading or deceptive conduct and breach of fiduciary duty against UBS. 127On 6 November 2012, Telesto served a second further amended summons and a second further amended commercial list statement. Telesto has foreshadowed an intention to seek leave to file those pleadings in the event it succeeds in the present motions. 128In the proposed pleading Telesto advances three principal claims against UBS. First, it alleges misleading and deceptive conduct in that it acted in reliance upon misrepresentations made orally by UBS (Mr Betsalel and Mr Farrell) to Mr Tyne in telephone conversations. Further it relies upon the provision of written materials and various statements and advice allegedly given by UBS between October 2007 and April 2008. It is further alleged that there was a failure on the part of UBS to disclose certain matters, and in particular an alleged statement made by Mr Farrell in 2008 regarding one of the Kazakh financial institutions. Telesto alleges that it opened its account with UBS, purchased and retained the Kazakh bonds, liquidated assets and entered into the Standstill Agreement in reliance upon the alleged misrepresentations. 129There is also a claim in negligence on the basis that UBS owed Telesto a duty of care in connection with the provision of investment advice. A similar factual sub-stratum is relied upon as that in relation to the claim for misrepresentation or misleading and deceptive conduct. 130There is also a breach of fiduciary duty alleged, on the basis that UBS owed fiduciary duties to Telesto in relation to the Account and breached those alleged duties by acting as advisors to BTA. 131Declarations are sought and damages are claimed pursuant to the Australian Securities and Investments Commission Act 2001 (Cth), the Corporations Act 2001 (Cth) and the Fair Trading Act 1987 (NSW) or the Fair Trading Act 1987 (Qld). Orders are also sought, the effect of which would be to set aside any obligation on Telesto arising from the Account Terms and Conditions or the Investment Services Terms and Conditions, the Standstill Agreement and any implied agreement between UBS and Telesto. 132Equitable compensation is also sought, together with an order that UBS account to Telesto for profits.

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Expert Evidence 133Both the plaintiff and the defendant rely upon expert evidence on the question of whether and if so to what extent particular causes of action and/or remedies available in New South Wales provide a material juridical advantage to Telesto. Whether or not this is in fact so may go to a number of issues, but certainly to the question of the exercise of discretion in the event that consideration needs to be given to the question of abuse of process. 134Before the High Court in Singapore and also before me was an affidavit of Mr Justin Thomas Gleeson SC. Mr Gleeson SC did not give evidence before me. His reputation however is well known in this jurisdiction. A number of questions were posed to him. The first was whether the various statutes relied upon by the plaintiff (both State and Federal) would apply to the representations which were then alleged as at the date of Mr Gleeson SC's opinion. Mr Gleeson SC's opinion was obtained very early in the proceedings, namely on 20 December 2010. 135Mr Gleeson SC (at [18]) expresses the view that on the face of the amended commercial list statement the misleading and deceptive conduct case is capable of going forward in New South Wales without any real or arguable issue being raised that in some way asserts an extra-territorial element beyond the reach of either the State or Federal laws relied upon. He points out (at [20]) that the relevant statutory prohibition is upon conduct that is misleading or deceptive or is likely to mislead or deceive. He makes the point that these are separate limbs so that conduct which has the capacity or likelihood of leading to deception is thus prohibited just as much as conduct which is found to be actually misleading or deceptive. He also points out that where the representations concern a future matter the provisions have two benefits for a plaintiff. First, unless the defendant had reasonable grounds for making the representation at the time it was made it will be deemed to be misleading. Second, there is a reversal of onus. In such a case the defendant will be taken not to have reasonable grounds for making the representation unless it produces evidence to the contrary. 136There is no need for the plaintiff to plead or prove intent, and if the conduct is viewed objectively as being misleading or deceptive or likely to mislead or deceive it is actionable whether the defendant knew, intended or was reckless as to that result. Further, there is no requirement to plead or prove negligence or carelessness. 137Assuming contravention has been proven, Mr Gleeson SC describes the remedies available as a "remedial smorgasbord". Remedies can range from damages, through to the making of other orders, through to a statutory injunction. He also points out that the principles governing the remedies are to be deduced from the statute and are not "reduced" to the principles of ordinary law. In each case where he refers to various juridical advantages he refers appropriately to well-known authorities. 138Concepts of remoteness and foreseeability which might apply in a tort claim are not automatically translated into the statute, and further, the court is not constrained by limitations under the general law upon a party's right to rescind for misrepresentation. The court is obliged to consider all of the circumstances including the causal link between the defendant's conduct and the loss asserted. 139The second question Mr Gleeson SC was asked was whether the statutory causes of action and remedies available to Telesto and Mr Tyne under the State or Federal legislation is comparable to causes of action and remedies for negligent misrepresentation, deceit and/or under the Singapore Misrepresentation Act (Cap 390). 140Mr Gleeson SC expressed the view that in relation to negligent misstatement, the claim under the various Australian statutes is broader than remedies which might have been available in Singapore. Negligent misstatement in Singapore requires the existence of a duty to act carefully in respect of the statements. The duty depends on the existence of factual foreseeability, proximity and public policy considerations. By contrast the claim under the Australian statutes does not require the existence of a duty. As Mr Gleeson SC points out, a misstatement is one example of misleading conduct, but only one. Conduct can be misleading by making a statement as to a future matter without reasonable grounds. The breadth of admissible evidence that can be taken into account on the question of conduct broadens the scope of the evidentiary enquiry. Once the conduct is objectively misleading it is actionable, there being no requirement that there is any negligence in the conduct. Mr Gleeson SC again refers to the reversal of onus and the greater breadth of remedies available. 141Again, in relation to deceit, Mr Gleeson SC expressed the view that the Australian statutes are broader. First, deceit requires an element of intention, that is that the false statement must be made knowing it is untrue or with reckless indifference as to its truth. No such requirement exists under the Australian statutes. Further, conduct by way of a representation as to a future matter made without reasonable grounds and carrying the reversal of onus is actionable even where such conduct would not constitute deceit. 142In relation to the Misrepresentation Act again Mr Gleeson SC expressed the view that the Australian statutes were broader in operation. He points out that in relation to Singaporean law section 2 of the Misrepresentation Act provides for a damages remedy where negligent misrepresentation has induced a contract and it lifts a barrier to rescission of a contract for innocent misrepresentation with alternative damages and limited indemnity remedy. In his opinion this would not extend to that part of the plaintiff's case which relied upon the statutes to seek relief in respect of the bonds purchased from third parties in reliance on misleading conduct of UBS, there being no relevant contract with the wrongdoer. He also observed that whilst section 2(1) of the Misrepresentation Act spoke of a misrepresentation of fact he expressed the view that the Act may not extend to the full range of conduct caught by the Australian statutes and that it does not deem representations to the future to be misleading absent reasonable grounds and does not carry a reversal of onus where the representation is as to the future. 143UBS called Tan Cheng Han who is an advocate and solicitor of the Supreme Court of the Republic of Singapore and a Professor of Law at the National University of Singapore. He provided two opinions to the court, one of 10 October 2012 and another of 15 November 2012. Professor Tan is a senior respected member of the legal profession in Singapore. He has significant experience in commercial litigation acting as advisor and counsel in a practice he maintains notwithstanding his academic appointment to the National University of Singapore. The first question he was to express a view upon was the effects and consequences of the judgment of the Singapore High Court of 27 July 2012. He referred to relevant rules of Court but expressed the view (at [10]) that where a trial proceeds in the absence of a party and the trial Judge pronounces judgment the decision of the Judge is a judgment on the merits. He referred to relevant authorities to support the proposition. He also referred to a rule of court (Order 35, Rule 2) which would permit, upon proper grounds being established, that such a judgment be set aside. The court in considering such an application will be guided by the overriding consideration of whether there was a likelihood that there had been a real miscarriage of justice. 144Professor Tan was also asked whether the judgment would establish a claim for res judicata, issue estoppel or estoppel of the kind considered in the Australian case of Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 599 or an abuse of process of the court in respect of the issues and causes of action raised. He was of the view that Singaporean law considered issue estoppel to be an aspect of res judicata. It applies where the court has finally and conclusively adjudicated an issue on the merits that was necessary for the resolution of the cause of action. It precludes the parties to that litigation from raising the same issue in other proceedings. He further expressed the view that in Singapore the courts have accepted that abuse of the court's process is the true basis for the operation of the extended doctrine of res judicata. He was unable to comment on Anshun but expressed the view that the estoppel recognised in that case by the majority appeared similar to the extended doctrine of res judicata as applied in Singapore. He was of the view that the judgment of 27 July 2012 was sufficient to establish a claim for res judicata/cause of action estoppel, issue estoppel and abuse of process in relation to the issues in causes of action raised, as well as to any issue that could have been raised in that proceeding. 145Absent the decision of 27 July 2012 he expressed the view that Telesto and/or Mr Tyne would be entitled to bring the same or similar causes of action as those set out in paragraph 16 of his letter of instruction of 24 September 2012. The assumption set out in that paragraph distilled the causes of action then pleaded in New South Wales. It was his view that in substance the same or similar causes of action could be brought. However, in relation to the allegation that UBS engaged in misleading or deceptive conduct or conduct that was likely to mislead or deceive, in his initial opinion in October 2012 he expressed the view that such a claim would be actionable under the law of deceit in Singapore. He thought that under Singaporean law, suing for fraud by asserting a claim in the tort of deceit was a similar cause of action to that for misleading or deceptive conduct. However, he pointed out that in order to recover for deceit under Singaporean law, a plaintiff must show both fraud and damage having been suffered. If a defendant, however, could establish on the balance of probabilities that he honestly believed the representations to be true, the tort or deceit would not be made out. 146So far as negligent misstatement was concerned, such a claim would be actionable under Singaporean law. Proof of duty on the part of the defendant to take reasonable care would need to be proven together with loss. So far as breach of contract was concerned, such a claim was actionable in Singapore. So far as fiduciary duty was concerned, the law of equity in Singapore is based on English law and causes of action for breach of fiduciary duty are well recognised. 147In his November 2012 report, Professor Tan was asked to answer a similar question to that earlier posed, but this time on the basis of causes of action proposed in the second further amended summons and second further amended commercial list statement. Again he expressed the view as before (at [5]) that there was nothing that would lead him to change his view that Telesto and Mr Tyne could bring the same or similar causes of action under Singaporean law. He referred, as he had done previously, to the decision of Chong J to the effect that the differences between Australian and Singaporean law, on the facts of the case, provided no significant or material differences between the law of both countries. He pointed out that Chong J did not consider the Misrepresentation Act as the matter was apparently not raised before him. 148He also expressed the view (at [7]) that certain of the matters pleaded in paragraphs 4 and 5 of the second further amended summons, if proved, would establish the existence of fraudulent misrepresentation on the part of UBS in which case a remedy would be available under Singaporean law that such an agreement was void and may be set aside. Again he was of the view that Telesto and/or Mr Tyne would be able to raise all of the causes of action pleaded in the proposed amended pleadings by way of defence (or partial defence) to the Singapore proceedings had they chosen to do so. 149Professor Tan was cross-examined. He had been provided with a copy of the expert report of Mr Gleeson SC. Although he had not read the whole report he had familiarised himself with what Mr Gleeson SC had had to say. 150He accepted that in order to succeed in Singapore in misrepresentation it was not enough that conduct be merely likely to mislead or deceive. It was necessary to prove that the representation was actually false before it was actionable. He also accepted that his understanding of the Australian law was that a defendant could not escape liability in relation to a representation as to existing facts by simply proving that he had an innocent state of mind at the time the representation was made. He accepted that the position in Singapore was different. However, he said if the allegations were founded on fraudulent misrepresentation, proof of an innocent state of mind would assist a defendant to escape liability although it would not be the case in relation to negligent misrepresentation where one's state of mind, even if innocent, would be irrelevant. He also accepted, unsurprisingly, that it was necessary to prove a duty of care and a breach of that duty in Singapore. 151Professor Tan also accepted that in Singapore in relation to the tort of deceit the plaintiff had to prove that the representation was false, that the defendant believed it was false or was reckless about its truth or falsity and that the defendant intended the plaintiff to act upon the representation. He also accepted that in Singapore a cause of action in deceit would involve proving the defendant had acted dishonestly. 152Upon the assumption that the Kazakh bonds were not purchased from UBS but from third parties by Telesto, any losses occasioned as a result of a misrepresentation from UBS would fall outside the operation of section 2(1) of the Misrepresentation Act. 153Professor Tan also accepted as a theoretical possibility that something may be likely to mislead although it may not in fact constitute an untrue representation. 154Professor Tan also accepted that the Misrepresentation Act operated such that if a defendant could prove that it believed that the statement was true on reasonable grounds, a defence might exist. To that extent the defendant's mental state was highly relevant to any possible defence. He accepted that on his understanding of Australian law, state of mind was generally irrelevant. 155He agreed that under the law of Singapore where there is a claim for pure economic loss it was not always straightforward establishing the existence of a duty of care. 156Professor Tan also agreed that on the basis of certain allegations that Telesto may wish to make there would be unlikely to be a case of a fraudulent misrepresentation so as to make that cause of action available in Singapore. He also agreed that in the absence of an allegation about UBS's state of knowledge the pleading could not constitute a pleading of deceit for the purposes of the common law in Singapore. 157So far as the reversal of onus is concerned, Professor Tan accepted that as soon as the representation could be seen as a prediction as to a future matter there was a deeming provision in Australian law deeming the representation misleading, subject to the defendant bearing the onus to show it had reasonable grounds for making such a representation. In Singapore, for example with the tort of deceit, the plaintiff would have to establish that the defendant lacked an honest belief in the prediction or was reckless about the prediction so as to constitute dishonesty or fraud. 158Professor Tan accepted that section 2(1) of the Misrepresentation Act does not operate so as to deem all representations as to the future to be misleading in the absence of misleading grounds for making such representations. Professor Tan also accepted that in order to establish a misrepresentation in Singapore in relation to a prediction it would be necessary for the plaintiff to establish that the prediction was not reasonably based. Professor Tan did attempt to suggest that in Singapore if there is a misrepresentation allegedly in relation to a future act there is no way you could know whether or not the representation was in fact a misrepresentation unless it later turns out to be wrong in fact. Professor Tan said that in Singapore, generally speaking, a statement as to the future would not be regarded as a representation as to fact. A representation or statement as to the future, he said, might have legal consequences in that a statement as to the future may be regarded as a contractual term or a warranty. Alternatively, it may be possible to prove that the person did not believe the statement to be true or was negligent in holding such a belief and hence it may be construed as a misrepresentation of fact. If these matters could be proved then section 2(1) would operate. Hence in Singapore, from the plaintiff's perspective, the question may turn upon how one characterises the representation. 159Professor Tan was then asked what he meant when he said that in the absence of the decision of 27 July 2012 Telesto could bring the same or similar causes of action in Singapore as it proposed to bring in Australia. He accepted that Telesto could not bring the same causes of action because of the particular provisions of the Australian statutes. Professor Tan however appeared to agree that he was in fact equating the notion of misleading and deceptive conduct with that of the tort of deceit which of course would be actionable in Singapore.

[9]

Is there a juridical advantage in New South Wales? 160The Trade Practices Act, when enacted, did not contain s 51A or any other provision equivalent to s 51A. That provision was inserted as part of the Trade Practices Revision Act 1986 (Cth). This means that there are really three positions to consider in respect of the law on representations as to future matters, namely pre-Trade Practices Act, post-Trade Practices Act but pre-s51A, and post-s51A. I will briefly comment on each position in reverse chronological order. 161First, the present position (i.e. following the enactment of s 51A) on representations as to future matters is plainly set out by the text of s 51A, and has been explained in a number of cases. That section provides: (1) For the purposes of this Division, where a corporation makes a representation with respect to any future matter (including the doing of, or the refusing to do, any act) and the corporation does not have reasonable grounds for making the representation, the representation shall be taken to be misleading. (2) For the purposes of the application of sub-section (1) in relation to a proceeding concerning a representation made by a corporation with respect to any future matter, the corporation shall, unless it adduces evidence to the contrary, be deemed not to have had reasonable grounds for making the representation. (3) Sub-section (1) shall be deemed not to limit by implication the meaning of a reference in this Division to a misleading representation, a representation that is misleading in a material particular or conduct that is misleading or is likely or liable to mislead. 162Next, the case of Global Sportsman Pty Ltd v Mirror Newspapers Ltd (1984) 55 ALR 25 was decided after the Trade Practices Act came into operation, but before s 51A was inserted. Therefore the court in that case, comprising Bowen CJ, Lockhart and Fitzgerald JJ, considered the principles applicable for representations as to future matters or predictions under s 52, without the operation of s 51A. Their Honours' statement of the relevant principles (at 31) has been described (R V Miller, Miller's Australian Competition and Consumer Law, 34th ed (2012) Thomson Reuters) as "the classic statement of position without ACL s 4 [being the corresponding provision to s 51A]": The non-fulfilment of a promise when the time for performance arrives does not of itself establish that the promisor did not intend to perform it when it was made or that the promisor's intention lacked any, or any adequate, foundation. Similarly, that a prediction proves inaccurate does not of itself establish that the maker of the prediction did not believe that it would eventuate or that the belief lacked any, or any adequate, foundation. Likewise, the incorrectness of an opinion (assuming that can be established) does not of itself establish that the opinion was not held by the person who expressed it or that it lacked any, or any adequate, foundation. ... An expression of opinion which is identifiable as such conveys no more than that the opinion expressed is held and perhaps that there is a basis for the opinion. At least if those conditions are met, an expression of opinion, however erroneous, misrepresents nothing. 163Finally, at common law, the distinction drawn between a representation as to existing fact and a promise as to a future matter was explored by McHugh JA in a dissenting judgment in Wright v TNT Management Pty Ltd (1989) 15 NSWLR 679 at 688-690: The common law drew a distinction between a representation as to an existing fact and a promise to do something in the future. At common law, a promise as to a future intention or event was actionable in contract. But a representation as to a future event was not actionable. A representation was actionable only when it concerned an existing or past fact. Moreover, statute apart, a non-contractual promise that something was to be done in the future did not constitute a representation of an existing fact "unless out of it can be spelt a representation as to the present existence of an intention, belief or state of knowledge on the part of the promisor": Balfour v Hollandia Ravensthorpe NL (1978) 18 SASR 240 at 252 per Bray CJ. ... Prior to the enactment of s 51A of the Trade Practices Act 1986 (Cth), a promise of future conduct was not actionable under s 52 unless it implied a representation as to an existing or past fact: Bill Acceptance Corporation Ltd v GWA Ltd (1983) 50 ALR 242 at 246-247. The view was taken that s 52 did not cover a mere breach of contract: cf Beckett v Cohen [1972] 1 WLR 1593 at 1596-1597... As Lockhart J pointed out (at 250) in Bill Acceptance Corporation Ltd v GWA Ltd: "The mere fact that representations as to future conduct or events do not come to pass does not make them misleading or deceptive." ... Moreover, although a statement as to the future may contain an implied assertion as to the past or present which is misleading or deceptive, the non-fulfilment of a promise when the time for performance arrives does not establish that "the promisor did not intend to perform it when it was made or that the promisor's intention lacked any, or any adequate, foundation": Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82 at 88; 55 ALR 25 at 31. To overcome this difficulty s 51A of the Trade Practices Act 1974 (Cth) was enacted. ... At common law a representation outside a contract would only give rise to legal consequences if it was in respect of an existing or past fact; a contractual promise as to the future did have legal consequences. But for the purposes of Pt V, s 51A must be taken to have abolished the distinction between a promise and a representation with respect to a future event. A promise to do something in the future is to be regarded as a representation that it will be performed. It will be deemed misleading, therefore, unless the corporation proves that it had reasonable grounds for making the promise. 164McHugh JA's description of the distinction between common law's treatment of a representation as to existing fact and a representation as to future matters was approved in Digi-Tech (Australia) Ltd v Brand (2004) 62 IPR 184 (per Sheller, Ipp and McColl JJA in a joint judgment at [93], though see discussion generally at [91]-[101]). 165In the proceedings relating to the anti-suit injunction application, Chong J observed that, despite the availability to Telesto of ss 51A and 52 in New South Wales, there was, on the facts of the present case, no material juridical advantage in pursuing the proceedings in New South Wales. Professor Tan gave evidence that whether or not there exists a juridical advantage to Telesto in New South Wales depends on the characterisation of UBS's conduct. Ward J (at [75] and [87]-[88]) also noted Chong J's observation that on the facts of the specific case there was no material difference in the relevant laws applicable in the respective jurisdictions "which would make it unjust" for Telesto be deprived of the opportunity to pursue its claims in New South Wales. 166Chong J's observation that the Australian consumer protection provisions for reversal of onus did not provide a material juridical advantage in the present case was based on his view that the representations were as to existing matters and not future matters. His Honour's conclusion appears to have been based on his observation that "nowhere in [Mr Gleeson SC's opinion] did Mr Gleeson SC state that the representations received by Mr Tyne relate to matters in the future" and that despite "the Australian pleadings which have characterised them as such" his own reading of the Australian pleadings led him to form the view that the alleged representations were in fact as to present matters. His Honour said that an example of representations which in his view were as to present facts, were the representations "pertaining to the status and/or suitability of the Kazakh Bonds". 167It is apparent from the face of Telesto's pleadings (the initial and especially the proposed amended pleadings) in the New South Wales proceedings that Telesto pleads that UBS made representations as to future matters. Mr Gleeson SC's opinion records this, but expresses no view as to whether the representations are in fact as to future matters. Numerous cases in this area have shown the difficulty sometimes involved in determining whether a representation was as to a future matter (see discussion in R V Miller, Miller's Australian Competition and Consumer Law, 34th ed (2012) Thomson Reuters, at [1.S2.4.25]). I think one should, as when determining a strike-out application (General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125), be particularly cautious before ruling out the relevant possibility without having had the benefit of a trial. A representation in relation to an investment, its profitability, or the likelihood of default of a financial institution could quite possibly constitute a representation as to a future matter, depending on the precise formulation of the representation and the context in which it was made. 168In my view, whether or not a representation should properly be characterised as relating to a future matter, thereby attracting the operation of s 51A, will depend ultimately on the evidence and cannot be determined merely by reference to the pleadings. It is a mixed question of law and fact. I should add that his Honour noted that although the Singaporean Misrepresentation Act does contain a somewhat similar provision reversing the onus of proof, "it appears that [Telesto] may not be able to avail [itself]" of that provision due to particular non-controversial factual circumstances of the case. 169Chong J noted the absence of any requirement under Australian misleading and deceptive conduct laws to prove intent, negligence or carelessness, and the requirement under Singaporean law of proof of a duty of care. However, his Honour said that this would not materially affect the outcome because there was nothing to suggest that Telesto could not establish a duty of care, and that Telesto had in its pleadings in New South Wales an allegation that there existed a duty of care for the purposes of its tort claim. Again, it is my view that any assessment of whether or not the differences in law would produce different outcomes depends on the evidence. By reference only to the pleadings, apart from the evidence, I think it is difficult to say that despite the differences in law in the respective jurisdictions, there is no material juridical advantage. 170Accordingly, the availability of ss 52 and 51A of the Trade Practices Act may, depending on the evidence ultimately placed before the court, provide a significant juridical advantage to Telesto in New South Wales. In summary, this juridical advantage stems from the objective standard under s 52 and the reversal of onus under s 51A of the Trade Practices Act. Whether or not these juridical differences ultimately produce a different in outcome will depend on issues (e.g. whether the alleged representations are as to present or future matters, and whether UBS relevantly owed Telesto a duty of care) which, at present, and in the absence of evidence, cannot be determined. 171I am aware, as I have noted, that Chong J made observations to the contrary. However, as noted in Telesto's submissions, I do not consider those observations to give rise to an issue estoppel preventing Telesto from arguing before me that there may be significant juridical advantages in New South Wales by reason of ss 51A and 52 and the remedies available under the Trade Practices Act. My view that there may, subject to the evidence, exist material juridical advantages to Telesto in New South Wales will be a relevant consideration for at least some of the analysis which follows. Subsequent references throughout my reasons to the Trade Practices Act and particular provisions of it should be taken to also refer to corresponding provisions relied upon by Telesto in corresponding Federal and State legislation (including the Australian Securities and Investments Commission Act 2001 (Cth), Corporations Act 2001 (Cth), Fair Trading Act 1987 (NSW) and the Fair Trading Act 1987 (Qld)).

[10]

Preclusionary doctrines 172UBS bases its application on one or more of the doctrines of res judicata, issue estoppel, Anshun estoppel and abuse of process. Although these preclusionary doctrines are distinct, they do share, at least in part, a unifying policy basis. 173In Jackson v Goldsmith (1950) 81 CLR 446 (at 466) Fullagar J said in relation to res judicata: This rule is not, to my mind, correctly classified under the heading of estoppel at all. It is a broad rule of public policy based on the principles expressed in the maxims "interest reipublicae ut sit finis litium" and "nemo debet bis vexari pro eadem causa." 174This was later approved in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 (at 597 per Gibbs CJ, Mason and Aickin JJ). The two maxims have been translated by Lord Bingham as "there should be finality in litigation" and "a party should not be vexed twice in the same matter", respectively (Johnson v Gore Wood & Co [2002] 2 AC 1 at 31). The New South Wales Court of Appeal in Boles v Esanda Finance Corporation Ltd (1989) 18 NSWLR 666 (at 671) said that Anshun estoppel was also based on the public policy considerations expressed by those two maxims. The Victorian Court of Appeal in R v Lintrose Nominees Pty Ltd; Hopkins v R (2001) 4 VR 619 (at [19]) agreed that those maxims express the public policy basis on which both res judicata and Anshun estoppel rest. 175In Rogers v The Queen (1994) 181 CLR 251 (at 273) Deane and Gaudron JJ (with whom Mason CJ agreed) explained in further detail the import of those two maxims, and added a third maxim, "res judicata pro veritate accipitur", expressing the need for decisions of the courts, unless set aside or quashed, to be accepted as incontrovertibly correct. Their Honours also added that issue estoppel is justified by the same policy considerations (at 274). 176More recently, in Dow Jones v Gutnick (2002) 210 CLR 575, Gleeson CJ, McHugh, Gummow and Hayne JJ observed (at [36]): Clearly, the common law favours the resolution of particular disputes between parties by the bringing of a single action rather than successive proceedings. The principles of res judicata, issue estoppel, and what has come to be known as Anshun estoppel, all find their roots in that policy. Effect can be given to that policy by the application of well-established principles preventing vexation by separate suits... 177Consistent with these comments, and as noted in UBS's submissions, the desirability of finality of litigation is given express statutory recognition in the Supreme Court Act 1970 s 63 and the Civil Procedure Act 2005 ss 56-59. 178Despite their common underlying basis, there are technical legal distinctions between the various preclusionary doctrines. As Fullagar J said in Jackson v Goldsmith (1950) 81 CLR 446, the distinction between the various preclusionary doctrines has sometimes been obscured by the absence of a generally accepted terminology. Below I set out what I understand to be the principles in respect of each doctrine. 179Once the relevant principles are identified, a question arises as to whether they retain their force where the prior judgment alleged to give rise to the preclusionary doctrine is of a court of a foreign jurisdiction. It is also necessary to consider whether the principles are altered by the fact that the judgment said to give rise to the various preclusionary doctrines was not only of a foreign court, but was given in the absence (even if deliberately so) of one of the parties.

[11]

Res judicata or cause of action estoppel 180Res judicata is sometimes called "cause of action estoppel" (for example, Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 597; Rogers v The Queen (1994) 181 CLR 251 at 274). The basic principle has received expression in a number of High Court decisions. In Jackson v Goldsmith (1950) 81 CLR 446 (at 466 and 467) Fullagar J said: where an action has been brought and judgment has been entered in that action, no other proceedings can thereafter be maintained on the same cause of action. ... Where the plea is of res judicata, only the actual record is relevant. Where the plea is of issue estoppel, any material may be looked at which will show what issues were raised and decided. Reasons given for the judgment pronounced are likely to be particularly important for this purpose. [My emphasis] 181In Blair v Curran (1939) 62 CLR 464 Dixon J said (at 532) in relation to res judicata: the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence... 182In Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589, Gibbs CJ, Mason and Aickin JJ cited both Jackson v Goldsmith and Blair v Curran and said (at 597): The rule as to res judicata comes into operation whenever a party attempts in a second proceeding to litigate a cause of action which has merged into judgment in a prior proceeding. 183This statement was subsequently approved by Deane, Toohey and Gaudron JJ in Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502 at 507. 184More recently, in Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 (at [73]) the Court of Appeal (McColl JA with Giles and Campbell JJA agreeing) said that the doctrine of res judicata applies where a plaintiff establishes a cause of action so that, upon judgment, the cause of action no longer has an independent existence and cannot be re-litigated in subsequent proceedings between the parties and their privies. In Champerslife Pty Ltd v Manojlovski (2010) 75 NSWLR 245 Handley AJA said (at [106]) that the test for res judicata is whether the cause of action in the later proceedings is in substance the same as that litigated to judgment in the former. 185In the present case UBS bases its res judicata argument on a foreign judgment. It appears to be settled that it is possible for res judicata to arise from a foreign judgment (Trawl Industries of Australia Pty Ltd (in liquidation) and Others v Effem Foods Pty Ltd (1992) 36 FCR 406 at 418 per Gummow J; Spirits International BV v Federal Treasury Enterprise (FKP) Sojuzplodoimport [2011] FCAFC 69 at [45]; most authorities tend to accept this as an unquestioned assumption). Some of the authorities indicate that when determining whether an earlier foreign judgment gives rise to one or more of the preclusionary doctrines, the foreign judgment should not be given any conclusive effect greater than what it would have pursuant to the equivalent preclusionary doctrines under the law of the foreign jurisdiction (see PCH Offshore Pty Ltd v Dunn (No 2) (2010) 273 ALR 167 at [99]-[107] per Siopis J and the cases cited there). I consider this in further detail later. In any event, Professor Tan gave uncontradicted expert evidence that, under Singaporean law, the judgment of Lai J is final, on the merits and sufficient to establish a claim for res judicata or cause of action estoppel in Singapore. 186The effect, if any, of the non-appearance of Telesto and the absence of contest before Lai J is a relevant consideration, on whether or not res judicata arises. It is often said that, to found a plea of res judicata, the earlier judgment must be final and on the merits (Linprint Pty Ltd v Hexham Textiles Pty Ltd (1991) 23 NSWLR 508 at 518). It seems clear that the judgment of Lai J, though perhaps capable of being appealed in Singapore, is nonetheless final in the relevant sense. The issue however is whether, given the manner in which the proceedings were conducted, Lai J's decision can be characterised as being "on the merits". The plaintiff, in written submissions, said that Lai J determined UBS's claim in the course of a single day in about two and a quarter hours of sitting time. The transcript is brief, and appears to be consistent with that submission. However a good deal of material was filed, which it is reasonable to suppose the Judge read, and witness statements of some length were also filed and those witnesses were called. 187Having examined the transcript, it was apparent to me that the decision of Lai J was expressed to be based on the merits of UBS's case, not on Telesto's failure to appear. For this reason, as noted in UBS's written submissions, it is not entirely accurate to describe Lai J's decision as a default judgment. I will make one brief comment on the treatment of judgments of this nature where there is a plea of res judicata. 188In Schnabel v Lui [2002] NSWSC 15, Bergin J (as her Honour then was) was asked by the plaintiffs to enforce a foreign judgment (a US judgment). Bergin J noted that in order for the plaintiffs to succeed, they were required to show that the judgment was final and conclusive (at [75]) and that the relevant test was whether the judgment would be treated as res judicata (at [77]). One of the objections raised by the defendant was that the judgment was a default judgment and therefore not final and conclusive in the relevant sense. After an extensive review of the authorities (and of K R Handley, Spencer Bower, Turner and Handley, The Doctrine of Res Judicata, 3rd ed (1996) Butterworths), Bergin J said (at [134]-[135]): [134] From the cases earlier cited it is clear that there are differing approaches to the meaning of "on the merits" in the international law sense. The first defendant has used that term in the sense that the judgment was given in proceedings that were in reality undefended even though the first defendant was allowed to appear at the damages hearing and put the arguments to which I have already referred on liability and call evidence on damages. The US Judgment was not a simple procedural entry of judgment in favour of the plaintiffs on liability. The judgment dealt with a number of deemed admissions that the first defendant had made by reason of the failure to respond to the plaintiffs RFAs. The Judgment set out the findings of fact and the application of the principles of law to those facts and the entry of judgment in the plaintiffs' favour... I will approach the first defendant's submission as to "on the merits" on the basis that the case was undefended. [135] [Ainslie v Ainslie (1927) 39 CLR 381] is authority for the proposition that a foreign judgment will be enforced even if it is not a judgment "on the merits" in the sense that it was undefended or by consent ... A default judgment or consent judgment is still capable of being final and conclusive on the merits. [My emphasis.] 189Accordingly, I do not think that brevity or apparent lack of analysis necessarily defeats a plea of a res judicata. 190The real issue before me, and which was the principal point of contention between the parties, is whether the judgment of Lai J covers the cause or causes of action which would be brought by Telesto in the proceedings in New South Wales. It is therefore necessary to direct attention to the cause or causes of action covered by Lai J's judgment. 191UBS contends that the causes of action which Lai J held were the subject of the estoppel or compromise with effect from 31 December 2009 included the causes of action then sought to be advanced on the pleadings in the New South Wales proceedings, namely negligence, misleading and deceptive conduct and breach of fiduciary duty. These are the same causes of action Telesto advances in its proposed amended pleadings. On the other hand, Telesto says that the orders made by Lai J did not determine or purport to determine Telesto's causes of action based on misleading and deceptive conduct, negligence and breach of fiduciary duty. 192The difficulty sometimes involved in identifying the relevant cause of action for the purpose of a plea of res judicata has been recognised in a number of cases. In Port of Melbourne Authority v Anshun, Brennan J said (at 610-611, citations omitted): There is an imprecision in the meaning of the term cause of action, which is sometimes used to mean the facts which support a right to judgment; sometimes to mean a right which has been infringed, and sometimes to mean the substance of an action as distinct from its form. Imprecision in the meaning of cause of action tends to uncertainty in defining the ambit of the rule that a judgment bars subsequent proceedings between the same parties on the same cause of action. The foundation of the rule, whether it be termed res judicata, or cause of action estoppel or judgment recovered, is the merging of the cause of action in the judgment... 193In Macquarie Bank Ltd v National Mutual Life Association of Australasia Ltd (1996) 40 NSWLR 543, the Court of Appeal considered in some detail the proper approach to be taken to identify the relevant cause of action for the purpose of the doctrine of res judicata. Clarke JA (with whom Priestley JA agreed) reviewed the relevant authorities and said (at 558-559): Like Giles J in Onerati v Phillips Constructions Pty Ltd (In Liq) (1989) 16 NSWLR 730 at 738-739, I do not think it helpful to adopt a technical approach to the present problem. The doctrine is concerned with substance, not form, and where parties simply plead facts (without necessarily identifying the cause of action) it seems to me that it is far more helpful to focus on the facts which are said in each instance to support the right to relief. That was the approach of Lord Goff in Republic of India v India Steamship Co and it seems to me to accord with the weight of authority. In that case both claims arose out of the single incident and it was said that different breaches of contract had been committed. Lord Goff acknowledged that there might have been more than one breach of contract but found against the plaintiff because "the factual basis relied upon by the plaintiffs as giving rise to the two breaches is the same". In Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd (1992) 108 ALR 335, Gummow J (at 347) expressed the opinion that it was necessary to focus on the substance and not the form of the two actions... His Honour went on to say (at 351) that the same factual matrix had generated the controversy which was given legal form in the two actions. This may be a wider test than the test I favour but I am not presently convinced that there is a significant difference between them. Both require an examination of the facts pleaded (and analysed in the first judgment) and both concentrate on substance. But, as Port of Melbourne Authority v Anshun Pty Ltd itself demonstrates (at 597), a claim intimately bound up with the facts the subject of the first action but not relied on in that action may, subject to the Anshun principle, be litigated in a later proceeding. A plea of estoppel by record will be bad, notwithstanding that the second judgment might contradict the earlier one. What I think is necessary is an examination of the factual circumstances relied upon to establish the right to relief in each case in order to determine whether there is a sufficient identity between them to found the conclusion that the same cause of action was in question in both cases... [My emphasis.] 194In Abigroup Contractors Pty Ltd v ABB Service Pty Ltd (Formerly ABB Engineering Construction Pty Ltd) [2004] NSWCA 181 (at [145]), Giles JA (with whom Tobias JA and Cripps AJA agreed) quoted with approval the last sentence (which I have emphasised) of the passage from Macquarie Bank Ltd v National Mutual Life Association of Australasia Ltd just quoted. 195In Trawl Industries of Australia Pty Ltd (in liquidation) and Others v Effem Foods Pty Ltd (1992) 36 FCR 406, Gummow J also considered this question. His Honour's comments have been summarised in the passage from Macquarie Bank Ltd v National Mutual Life Association of Australasia Ltd which I have quoted above. However, I only wish to add that in Trawl Industries of Australia Pty Ltd (in liquidation) and Others v Effem Foods Pty Ltd Gummow J appeared to emphasise that "characterisation [of cause of action] by regard to substance rather than form" was particularly important "where the first action was brought in a foreign forum" (at 418). 196The underlying facts giving rise to the proceedings in Singapore and New South Wales are identical. The precise wrongdoing of which Telesto complains would be the same in both proceedings, though the legal effect flowing from proof of that conduct, and the method of proof of such conduct, might be different by reason of ss 52 and 51A and the variety of remedies available in New South Wales under the Trade Practices Act. I bear in mind the need to take a substantive approach in characterising the causes of action. 197The face of the record of the Lai J's judgment provides: 1. The Investments were authorised. 2. The Defendants are estopped from asserting, and/or have compromised, any claims or defences they may have arising out of, or in relation to, the Investments and/or Total Liabilities due and owing to the Plaintiffs, including but not limited to, the acquisition or management of the Investments and/or the Total Liabilities. 3. By reason of the Events of Default, the Standstill Agreement was terminated and the Total Liabilities were immediately due and payable to the Plaintiffs. 4. As at 14 October 2010, the Defendants were liable to the Plaintiffs in the total sum of USD12,617,499.56, and with interest at a rate of 3% thereon over and above the Plaintiffs' cost of funds. 5. Pursuant to clauses 11.5 and 13.3 of the Account T & C - General Conditions, clause 1.8 of section C of the Account T & C - Product Conditions, clause 6 of the Charge, clause 2 of the Account T & C - Risk Disclosure Statement, and the CSNL, the Plaintiffs were entitled to realise the Collateral in the Account and apply the proceeds received to satisfy the Total Liabilities owed by the 1st and 2nd Defendants. 198Given the breadth of the relief ultimately granted by Lai J, I do not see how Telesto could, without creating inconsistency with the ultimate relief granted in Singapore, succeed in proceedings in New South Wales. The main issue on which Telesto's case rests is the truthfulness or untruthfulness of certain communications allegedly made by or on behalf of UBS to Telesto. Determination of issues of misleading and deceptive conduct, negligence and breach of fiduciary duty will really boil down to this factual question. 199The facts underlying each of the three principal claims in Telesto's proposed amended pleadings had all taken place prior to the execution of the Standstill Agreement on 31 December 2009, and therefore Lai J's finding (namely that all rights and liabilities arising as a result of those facts were the subject of a compromise or settlement agreement that should not be set aside), included everything which Telesto pleaded against UBS in the New South Wales proceedings. No events have occurred between the conclusion of the Singapore proceedings and now which would give Telesto any rights different to those in existence at the time the Singapore proceedings were on foot. 200If the New South Wales litigation was permitted to proceed, the materials that Telesto would put before the court would, in my view, be substantially, if not entirely, identical to what it would have put before the court in Singapore had it decided to participate there. I agree with Chong J's observation that the questions of whether Telesto is entitled to rescission and/or damages are "two sides of the same coin". The legal outcome may well have been different because of juridical differences, but I think the substantial similarity of both proceedings supports the view that, as a matter of substance, the cause or causes of action would be the same. Indeed, this view is supported by the fact that in Singapore, counsel for Telesto (before Chong J) appeared to accept that, if the Singapore proceedings were not stayed, Telesto would simply raise the issues which were then in the New South Wales proceedings as a defence and counterclaim in the Singapore proceedings. 201Accordingly, in my view, the Singapore and New South Wales proceedings, as a matter of substance, cover the same cause or causes of action, and therefore I consider the judgment of Lai J in Singapore creates a res judicata.

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Issue estoppel 202In K R Handley, Spencer Bower and Handley, Res Judicata, 4th ed (2009) LexisNexis Butterworths) (at [8.01]) the authors trace the substance of the doctrine of issue estoppel back to 1776 in the case of Duchess of Kingston's Case (1776) 2 Smith LC (13th edn) 644 at 645. However, the expression "issue estoppel" appears to have first been used by Higgins J in a dissenting judgment in Hoystead v Federal Commissioner of Taxation (1921) 29 CLR 537 at 561 where his Honour said "in the case of what I call 'issue-estoppel' it must appear that the precise issue was previously taken". The expression was taken up by the High Court in a number of subsequent cases (McCormick v Allen (1926) 39 CLR 22 at 41 per Rich J; Ex Parte Nelson (No 2) (1929) 42 CLR 258 at 276 per Dixon J; Falk v Haugh (1935) 53 CLR 163 at 171 per Rich, Dixon, Evatt and McTiernan JJ; O'Donel v Commissioner for Road and Transport and Tramways (NSW) (1938) 59 CLR 744 at 762 per Evatt J), and the principle it refers to was eloquently expounded by Dixon J in Blair v Curran (1939) 62 CLR 464 where his Honour said (at 531-533): A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared. The distinction between res judicata and issue estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order. Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded. In matters of fact the issue estoppel is confined to those ultimate facts which form the ingredients in the cause of action, that is, the title to the right established. Where the conclusion is against the existence of a right or claim which in point of law depends upon a number of ingredients or ultimate facts the absence of any one of which would be enough to defeat the claim, the estoppel covers only the actual ground upon which the existence of the right was negatived. But in neither case is the estoppel confined to the final legal conclusion expressed in the judgment, decree or order ... [T]he judicial determination concludes, not merely as to the point actually decided, but as to a matter which it was necessary to decide and which was actually decided as the groundwork of the decision itself, though not then directly the point at issue. Matters cardinal to the latter claim or contention cannot be raised if to raise them is necessarily to assert that the former decision was erroneous. ...But matters of law or fact which are subsidiary or collateral are not covered by the estoppel. Findings, however deliberate and formal, which concern only evidentiary facts and not ultimate facts forming the very title to rights give rise to no preclusion. Decisions upon matters of law which amount to no more than steps in a process of reasoning tending to establish or support the proposition upon which the rights depend do not estop the parties if the same matters of law arise in subsequent litigation. The difficulty in the actual application of these conceptions is to distinguish the matters fundamental or cardinal to the prior decision or judgment, decree or order or necessarily involved in it as its legal justification or foundation from matters which even though actually raised and decided as being in the circumstances of the case the determining considerations, yet are not in point of law the essential foundation or groundwork of the judgment, decree or order. 203This statement of principle has been quoted in full in Spencer Bower and Handley (at [8.02]) and in numerous subsequent cases. As is apparent from Dixon J's statement, the test for whether an issue estoppel arises is objective (Champerslife Pty Ltd v Manojlovski (2010) 75 NSWLR 245 at [106] per Handley AJA) and applies both in respect of questions of fact and law (Champerslife Pty Ltd v Manojlovski at [106]; Armacel Pty Ltd v Smurfit Stone Container Corporation (2008) 248 ALR 573 at [59] per Jacobson J). It is also necessary "to identify with precision the issue which was necessarily decided in the earlier proceedings to see whether it is identical with an issue sought to be raised in the later proceedings" (Armacel Pty Ltd v Smurfit Stone Container Corporation at [58]). 204The High Court more recently in Kuligowski v Metrobus (2004) 220 CLR 363 (at [21], per Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ) accepted the formulation of Lord Guest in Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853 (at 935) of three requirements for the creation of an issue estoppel: (1) that the same question has been decided; (2) that the judicial decision which is said to create the estoppel was final; and, (3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies. 205The High Court was not replacing or detracting from the validity of Dixon J's statement in Blair v Curran, but was simply stating the broad framework of the doctrine within which Dixon J's observations apply (see for example Kuligowski v Metrobus at [62]). 206In Tanning Research Laboratories Inc v O'Brien (1990) 169 CLR 332 Brennan and Dawson JJ left open the question of whether a foreign judgment can found an issue estoppel (at 346): As the [foreign] proceedings, giving them full faith and credit, did not give rise to a cause of action estoppel precluding Tanning from enforcing any debt owing by Hawaiian, it is unnecessary to consider the question whether a foreign judgment is capable of founding such an estoppel... 207Their Honours then cited the English authorities of Hall v Odber (1809) 11 East 118 and Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853 at 966-967. In the former case, the court held that a plaintiff who obtains a foreign judgment may sue again in their local jurisdiction either on that judgment or on their original cause of action. In the latter case, Lord Wilberforce said that "this rule, which, if surviving at all, is an illogical survival". More recent English authority appears to have adopted the position that a foreign judgment could found a cause of action estoppel. 208Commenting on Tanning Research Laboratories Inc v O'Brien, Professor Enid Campbell said "it is not clear whether, under Australian law, pleas of issue estoppel can be raised in relation to judgments of foreign tribunals" (E Campbell, "Res Judicata and Decisions of Foreign Tribunals" (1994) 16 Sydney Law Review 311 at 313). 209In the subsequent case of Armacel Pty Ltd v Smurfit Stone Container Corporation (2008) 248 ALR 573, Jacobson J considered whether an issue estoppel can arise from a foreign judgment. His Honour accepted that there was need for caution in the application of the doctrine of issue estoppel where the judgment alleged to give rise to it is of a court of foreign jurisdiction (at [63]). After considering the English cases of The Sennar (No 2) [1985] 1 WLR 490 and The Sennar (No 2) [1984] 2 Lloyd's Rep 142, his Honour said (at [67]-[68], [72]-[74] and [82]): [67] It seems to me that the reasons for judgment of Kerr LJ and Sir Denys Buckley (Cumming-Bruce LJ concurring) make it clear that it is not possible to avoid the consequence of issue estoppel by simply re-characterising the issue as one which is sought to be litigated in accordance with the law of a different jurisdiction. [68] As Kerr LJ said (at 149), it was not open to the plaintiffs to say, simply: What we seek to litigate here are issues under English law, and it does not matter that we litigated precisely the same issues under other systems of law in Holland. ... [72] ... [A]s I have said, Kerr LJ (at 149) also rejected the proposition that it was open to the plaintiffs to seek to re-litigate under English law the same issue that had been litigated under other systems of law in Holland. [73] His Lordship observed (at 150) that to accept this proposition would altogether remove the possibility of an issue estoppel arising "from any decision by any Court" on the jurisdiction clause. It would permit uncontrolled forum shopping and run directly counter to the policy behind the doctrine of issue estoppel. [74] Sir Denys Buckley's analysis was to the same effect. He said (at 159) that the Dutch court answered the question by reference to Dutch law, except in so far as it paid attention to Sudanese law; an English court must answer the question by reference to English law except in so far as Sudanese law would be applied. He continued: This does not, however, mean that the question for decision is not the same in each jurisdiction. ... [82] ... [A]s Lord Diplock pointed out in The Sennar (HL)...if the issue has already been determined by a court of competent jurisdiction, issue estoppel operates regardless of whether the local court would regard the reasoning of the foreign judgment as open to criticism. 210I would respectfully embrace his Honour's reasoning. I think his Honour accepted that an issue estoppel may be founded on a foreign judgment. Professor Tan gave uncontradicted evidence that, under Singaporean law, the judgment of Lai J is sufficient to establish a claim for issue estoppel in Singapore, and therefore if I was minded to find that that Lai J's judgment gave rise to an issue estoppel in Australia, that would not be conferring on it greater conclusive force than what it would have in Singapore. 211I think, however, that there are real conceptual difficulties involved in establishing an issue estoppel when the foreign judgment in question is in the nature of an ex parte hearing, or where the reasons for judgment, for whatever reason, do not spell out precisely the legal and factual grounds on which the outcome rests, given the procedure adopted by Lai J at the hearing to which I have referred earlier. In P Barnett, Res Judicata, Estoppel and Foreign Judgments, (2001) Oxford University Press, the author relevantly noted that "the question as to what the default judgment concludes poses the greatest difficulty when considering the plea of issue estoppel" (at [1.29]). 212I have already observed that the plaintiff, in written submissions, said that UBS's claim was determined in a short period of time. I have already made comments about this aspect of the plaintiff's case (at [186]-[187] above). 213In the Singaporean proceedings, Lai J made a number of findings. The relevant exchange is recorded in the transcript as follows: COURT: ... I'm satisfied that whatever may have been the rights and liabilities between the plaintiffs and UBS and the 1st defendant and the 2nd defendant, all those rights and liabilities were subsumed became irrelevant after the standstill agreement was signed by 1st defendant on 31 December 2009. ... The standstill agreement, I agree with Mr Kumar [counsel for UBS], was in every sense a compromise agreement, so everything prior to that was subsumed in that compromise agreement and therefore become irrelevant. Consequently, I would give judgment for the plaintiffs on their claim. 214Counsel for UBS then invited Lai J to make findings of fact by effectively adopting large parts of the Opening Statement filed by UBS: MR KUMAR: ... All we seek, your Honour, is an order that your Honour agrees that the facts set out in 113 to 139 [of the Opening Statement] are accurate. COURT: Yes, I can confirm that the facts set out in paragraph 113 all the way to 139 of the plaintiff's opening statement accords with the documentation and with the evidence that is before the Court. MR KUMAR: Thank you. That is all I need. 215UBS contends that the decision of Lai J comprises a judicial determination, following a contest on the merits, of the issue of whether Telesto and Mr Tyne are estopped from asserting, or having compromised, any claims or defences they may have arising out of, or in relation to, the "Investments" or the "Total Liabilities", including the acquisition and management of the "Investments". UBS also contends that the doctrine of issue estoppel prevents Telesto from re-agitating any of the matters asserted in paragraphs 113 to 139 of UBS's Opening Statement before Lai J. 216Telesto, on the other hand, contends that there has been no actual determination of any issue relevant to Telesto's entitlement to the relief claimed in prayers 4 and 5 of its further amended statement in the New South Wales proceedings. Telesto's main argument is that whilst Lai J clearly thought the relevant contractual documents were valid and granted relief accordingly, her Honour did not consider whether those contractual documents should have be set aside because of UBS's allegedly misleading and deceptive conduct. 217It is true that Lai J purports to have expressly made a number of factual and legal findings by reference to paragraphs 113 to 139 of UBS's Opening Statement. I also accept as a matter of principle that "[a] point or an issue may be actually controverted, may be in actual controversy, in actual litigation, although it is not argued, or argued properly" and that "[a] point may be in controversy although counsel may address no arguments to it, or may overlook certain aspects" (Hoystead v Federal Commissioner of Taxation (1921) 29 CLR 537 at 561 per Higgins J in dissent, approved in Kuligowski v Metrobus (2004) 220 CLR 363 at [21] per Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ). 218However, it is also true, as Dixon J emphasised in Blair v Curran, that an issue estoppel "covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion" (at 531). Fullagar J (in Jackson v Goldsmith at 467) said that where the plea is of res judicata, only the actual record is important, but for a plea of issue estoppel, "[r]easons given for the judgment pronounced are likely to be particularly important for this purpose". There are numerous authorities which emphasise that in order to establish issue estoppel, it is necessary to closely scrutinise the reasons behind the ultimate conclusion reached in order to identify those steps which were actually relied on to reach the conclusion. More recently, in Newmont Yandal Operations Pty Ltd v J Aron Corp (2007) 70 NSWLR 411, Handley JA said (at [198]) "The Court which has to consider such questions must examine the reasons for judgment of the Court which made the decision relied on". 219Although I have been supplied with the statement of Mr Heimlicher and a list of the documents which before Lai J in Singapore, I was not supplied with the totality of the documents before Lai J. Those documents consisted of about 6,500 pages of tender material, a four-volume witness statement of Mr Heimlicher, a three-volume witness statement of Mr Farrell, and a single-volume witness statement of Mr Singh. 220The multitude of apparent findings made by Lai J (namely all factual and legal allegations in paragraphs 113-139 of UBS's opening statement) were made only after Lai J had expressed her conclusion as to the outcome of the case, and they were made in a somewhat compendious fashion. Those paragraphs of UBS's Opening Submissions which Lai J adopted contain submissions by way of findings (many of which would involve drawing inferences), direct assertions of detailed factual matters, and submissions on matters of law. This makes it difficult for a Judge in subsequent proceedings presented with a plea of issue estoppel by one of the parties to identify with precision the basis or bases on which the relief granted in the earlier judgment actually rested. Having examined the brief reasons given by Lai J more than once, and bearing in mind the need to exercise caution before permitting a foreign judgment to form the basis of an issue estoppel in Australia (Armacel Pty Ltd v Smurfit Stone Container Corporation at [63]), I find myself, subject to one exception, unable as a matter of principle to identify precisely those matters which were "legally indispensable" or which made up the "groundwork of the decision itself" or which were "necessarily established as the legal foundation or justification of" Lai J's decision. 221The exception to which I have referred is the finding that "whatever may have been the rights and liabilities between the plaintiffs and UBS and the 1st defendant and the 2nd defendant, all those rights and liabilities were subsumed became irrelevant after the Standstill Agreement was signed by 1st defendant on 31 December 2009". It is clear, from the transcript, that this necessarily formed the basis for at least part of the relief granted, as Lai J continued to say "[c]onsequently ... I don't see why therefore that the [defendants] should not be made to comply with the Standstill Agreement" (emphasis added). The finding which gives rise to an issue estoppel is effectively that all the parties' rights and liabilities in existence at the time they entered into the Standstill Agreement were compromised, or settled, by entry into the Standstill Agreement. As I have already noted, by the time the parties entered into the Standstill Agreement, all conduct which forms the basis for the New South Wales proceedings had taken place, and was therefore, on Lai J's findings, covered by the compromise or settlement agreement. This is the basis on which Lai J ultimately granted relief. 222In the circumstances of this case, I do not think that I can, apart from the exception I have noted, identify the "legally indispensable" findings or steps of reasoning which formed the basis for the earlier decision. 223Accordingly, apart from the ultimate conclusions reached by Lai J as noted on the face of the record (which I have already found enliven the doctrine of res judicata) and the single exception I have referred to, I do not think I can identify any further issues to be covered by the doctrine of issue estoppel. 224In the event that I am wrong about my conclusion as to res judicata, it would be necessary to consider whether my finding on issue estoppel would nonetheless warrant the grant of a permanent stay of the New South Wales proceedings. It is a question of some complexity and open to debate, and therefore, in the absence of submissions or the views of the parties, I do not propose to express any view on it.

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Anshun estoppel 225Anshun estoppel is sometimes called the rule in Henderson (for example Champerslife Pty Ltd v Manojlovski (2010) 75 NSWLR 245 at [38]; Boles v Esanda Finance Corporation Ltd (1989) 18 NSWLR 666 at 669) or an extension to the basic rule of res judicata (for example Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 at [81]; Boles v Esanda Finance Corporation Ltd (1989) 18 NSWLR 666 at 669; Rogers v The Queen (1994) 181 CLR 251 at 275). The English decision of Henderson v Henderson (1843) 3 Hare 100 to which the origin of this doctrine is traced was considered in detail by the High Court in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589. 226In Port of Melbourne Authority v Anshun Pty Ltd, an injured workman sued the owner and also sued the hirer of a crane. The defendants served notices of contribution on each other. Damages were awarded against both defendants and between them the owner was ordered to pay 90% of the damages and the hirer the remaining 10%. The owner then brought a separate action against the hirer claiming the benefit of an indemnity given by the hirer in the crane hire agreement. It was held that the owner was estopped from raising the indemnity agreement because it was unreasonable to have refrained from raising it in the first action since the indemnity agreement was a defence to the hirer's claim for contribution and was so closely connected with the subject matter of the action that it was to be expected that the owner would raise it as a defence. 227A majority of the High Court (Gibbs CJ, Mason and Aickin JJ) applied the Henderson doctrine as it had developed, and said (at 602-604): In this situation we would prefer to say that there will be no estoppel unless it appears that the matter relied upon as a defence in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it. Generally speaking, it would be unreasonable not to plead a defence if, having regard to the nature of the plaintiff's claim, and its subject matter it would be expected that the defendant would raise the defence and thereby enable the relevant issues to be determined in the one proceeding. ... It has generally been accepted that a party will be estopped from bringing an action which, if it succeeds, will result in a judgment which conflicts with an earlier judgment. ... The likelihood that the omission to plead a defence will contribute to the existence of conflicting judgments is obviously an important factor to be taken into account in deciding whether the omission to plead can found an estoppel against the assertion of the same matter as a foundation for a cause of action in a second proceeding. By "conflicting" judgments we include judgments which are contradictory, though they may not be pronounced on the same cause of action. It is enough that they appear to declare rights which are inconsistent in respect of the same transaction. 228A question of Anshun estoppel may arise where a matter not raised as a defence is later raised as a cause of action (as in Port of Melbourne Authority v Anshun Pty Ltd itself), or where a matter is not brought as a cross-claim, or where a matter is not brought as a claim in earlier proceedings but is later raised as a cause of action (Boles v Esanda Finance Corporation Ltd (1989) 18 NSWLR 666 at 673; Champerslife Pty Ltd v Manojlovski (2010) 75 NSWLR 245 at [41], citing Bryant v Commonwealth Bank of Australia (1995) 57 FCR 287 and Zavodnyik v Alex Constructions Pty Ltd (2005) 67 NSWLR 457). 229However, the Court of Appeal in Champerslife Pty Ltd v Manojlovski (at [3]-[4] per Allsop P and at [52] per Giles JA) said it would be a fundamental error in approach to hold that a matter that could have been raised in the first proceeding should have been raised so as to bar later proceedings based on that matter. Rather, it must have been so relevant in the first proceedings that it was unreasonable not to raise it or rely on it. The mere fact that the matter could have been raised does not mean that it should have been raised. The assessment therefore is not to be made mechanistically, but there is a value judgment to be made by reference to reasonableness, or to the proper conduct of modern litigation. 230There appear to be conflicting opinions in the authorities as to whether or not the doctrine is based on the prevention of abuse of process. Unlike English authority (see Lord Bingham in Johnson v Gore Wood & Co [2002] 2 AC 1), I think the weight of modern Australian authority suggests that Anshun estoppel is based on reasonableness of conduct, not so much on avoidance of abuse of process (see discussion in Champerslife Pty Ltd v Manojlovski at [40], [89], [108] per Giles JA and [3] per Allsop P; Ruddock v Taylor (2003) 58 NSWLR 269 at [82] per Meagher JA with whom Spigelman CJ (on this point) and Ipp JA agreed). The High Court (as noted above) expressed the view that Anshun estoppel finds its root in the policy that disputes between parties should be resolved by the bringing of a single action rather than successive proceedings (Dow Jones v Gutnick (2002) 210 CLR 575 at [36] per Gleeson CJ, McHugh, Gummow and Hayne JJ). 231There appears to be little Australian authority on the question of whether an Anshun estoppel may arise from a final judgment of a court of a foreign jurisdiction. The parties have not cited any relevant Australian authorities in their submissions. English authority appears to establish that a court may, exercising caution, find that an Anshun estoppel (or the English equivalent thereof) arises from proceedings in a foreign court (Desert Sun Loan Corporation v Hill [1996] 2 All ER 847 at 854-855 per Evans LJ). 232In the Victorian decision of Talacko & Ors v Talacko [1999] VSC 81, Ashley J considered the question and said (at [48]-[51]): [48] ... Does the doctrine apply in respect of a matter not raised in a foreign proceeding...? [49] Dealing with the first question, there is some English authority that an Anshun estoppel can arise out of the prosecution of a proceeding in a foreign tribunal: Desert Sun Loan Corporation v Hill [1996] 2 All ER 847 at 854-855 per Evans LJ. By several references his Lordship there made it clear that issue estoppel, a fortiori Anshun estoppel, should be discerned only with caution in the decision of a foreign court; see also his Lordship's observations at 858. [50] Whether "Anshun" estoppel is properly described as a species of issue estoppel, or alternatively as an estoppel of a discrete kind, it may be that, in Australia, such an estoppel could arise by reason of the conduct of proceedings in a foreign court. [Tanning Research Laboratories Inc v O'Brien (1990) 169 CLR 332] touched upon, but did not resolve that question. [51] If such an estoppel could arise I consider that it would be right to be very cautious before concluding that it was unreasonable for a plaintiff not to have raised a particular basis of claim in an earlier foreign proceeding. Such a conclusion appears to me harder to reach, having regard to the considerations mentioned by Lord Reid in [Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853], than would a conclusion that a particular issue had in fact been raised and adjudicated upon. 233His Honour did not however come to any concluded view, as it was not necessary for his Honour to do so in the case before him. In Commonwealth Bank of Australia v White (No 4) [2001] VSC 511, Warren J (as her Honour then was) also considered the same question (at [45]): [45] Furthermore, an interesting and novel issue appears to arise in the present proceeding, namely, as to whether Lloyd's will in fact be able to rely upon Anshun to give rise to an estoppel on the basis that White failed to raise a matter in a foreign proceeding. The matter was contemplated but not determined by Mr Justice Ashley in Talacko v Talacko (1999) VSC 81 at [48] - [52]. Ultimately, the learned judge considered that if the doctrine of Anshun estoppel is capable of application in relation to foreign proceedings it would be correct to be very cautious before concluding that it was unreasonable for a plaintiff not to have raised a particular basis of claim in the earlier, foreign, proceeding. 234In the end, Warren J did not need to decide the question because even if it was accepted that Anshun estoppel could be based on an earlier foreign judgment, the particular case before the court on that occasion would not have given rise to such an estoppel. Warren J said (also at [45]) "[f]or the purposes of the present application I could not be satisfied, therefore, that it would be appropriate to find that an Anshun-type estoppel arises." 235In my own mind, the question of whether or not an earlier foreign judgment can found an Anshun estoppel must depend on whether or not in the foreign jurisdiction in which the earlier judgment was given there exists an equivalent doctrine. In PCH Offshore Pty Ltd v Dunn (No 2) (2010) 273 ALR 167 Siopis J said (at selected passages from [99]-[107]): [99] In the case of Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853 (Carl Zeiss), the House of Lords held that it was open to a party to stay a local proceeding on the grounds that a foreign proceeding gave rise to an estoppel which barred the local proceeding. [100] The Court of Appeal in England in the case of Charm Maritime Inc v Kyriakou [1987] 1 Lloyd's Rep 433 (Charm Maritime), confirmed that the principle in Carl Zeiss applied to an estoppel founded upon, what is referred to in Australia, as Anshun estoppel. At 441, Slade LJ observed: It is plain from the Carl Zeiss decision that a foreign judgment is capable of giving rise to a cause of action estoppel, and indeed Lord Reid ([1967] 1 AC at p 916B) and Lord Wilberforce (ibid at p 966E) referred to Henderson v Henderson itself as an example of this type of estoppel. [101] At 450, Dillon LJ observed: The Carl Zeiss case was a case of issue estoppel, which the present is not, but the reasoning must equally apply to a case of cause of action estoppel per rem judicatam. ... [103] One of the contentions advanced by Mr Kyriakou in the English court, was that it was open to Charm to have advanced the case it now made in the English proceeding before the Greek court, and Charm was estopped from now seeking to do so in the English court. [104] Mr Kyriakou applied to stay the proceeding in the English court on this basis. Mr Kyriakou also contended that the Greek court and not the English court, was the appropriate forum for the hearing of the proceeding. [105] Dillon LJ in Charm Maritime at 449, approved the following observations of Lord Wilberforce in Carl Zeiss at AC 969: The textbooks are in agreement in stating that for a foreign judgment to be set up as a bar in this country it must be res judicata in the country in which it is given ... generally, it would see unacceptable to give to a foreign judgment a more conclusive force in this country than it has where it was given. [106] At 450, Dillon LJ observed: If Carl Zeiss is to be applied to a case of this extended form of cause of action estoppel per rem judicatum as well as to an ordinary case of res judicata or issue estoppel - and at present I cannot see why it should not be - then the effect of the final decision on the merits in the first proceedings, as raising an estoppel to preclude the raising of the fresh issues or claims in the second proceedings, has also to be decided according to the law of the foreign jurisdiction if the first proceedings took place in a foreign jurisdiction. [107] The question, therefore, was whether a Greek court would treat the first proceeding as giving rise to an estoppel in respect of the second proceeding. 236Siopis J went on to accept that whether or not an Anshun estoppel would arise depended on whether an equivalent estoppel would arise in the forum in which the earlier proceedings took place and judgment was given. In that particular case, the relevant foreign law was Azerbaijani law. Siopis J said he was not prepared to determine the question (i.e. whether the equivalent to an Anshun estoppel would arise under Azerbaijani law) by simply applying the presumption that the foreign law would be the same as Australian law. This was because no argument was addressed to his Honour as to whether it was appropriate to apply the presumption, the translation of the earlier foreign judgment was not easy to understand, and the system of law was so different to that applied in Australia. 237In Res Judicata, Estoppel and Foreign Judgments (2001, Oxford University Press), Peter Barnett considered the question squarely, whether the Henderson rule precludes a party from raising in proceedings subject matter that could have been raised in earlier foreign proceedings, and then noted the unsatisfactory state of the law in this area: It would seem that the short answer is: yes...even though it would appear from [the relevant cases] to be an unquestioned assumption that the Henderson plea should apply in the foreign context. That, in a sense, makes the assumption all the more questionable... 238In Kok Hoong v Leong Cheong Kweng Mines Ltd [1964] AC 993 the Privy Council declined to apply the Henderson rule because the previous proceedings had only culminated in a default judgment, and thus lacked the semblance of finality associated with judgments from contested proceedings. Although default judgments were acknowledged as capable of giving rise to estoppels, the Privy Council had doubts as to whether a foreign judgment in the nature of a default judgment should attract the Henderson principle (at 1010-1011 per Viscount Radcliffe): [T]here is no doubt that ... a default judgment is capable of giving rise to an estoppel per rem judicatam. The question is not whether there can be such an estoppel, but rather what the judgment prayed in aid should be treated as concluding and for what conclusion it is to stand. For, while from one point of view a default judgment can be looked upon as only another form of a judgment by consent ... and, as such, capable of giving rise to all the consequences of a judgment obtained in a contested action or with the consent or acquiescence of the parties, from another a judgment by default speaks for nothing but the fact that a defendant for unascertained reasons, negligence, ignorance or indifference, has suffered judgment to go against him in the particular suit in question. There is obvious and, indeed, grave danger in permitting such a judgment to preclude the parties from ever reopening before the court on another occasion, perhaps of very different significance, whatever issues can be discerned as having been involved in the judgment so obtained by default. ... Their Lordships are satisfied that, where a judgment by default comes in question, it would be wrong to apply the full rigour of any principle as widely formulated as that of Henderson v Henderson. It may well be doubted whether the Vice-Chancellor had in mind at all the peculiar circumstances of a default judgment and whether such a judgment would not naturally fall into his reservation of "special cases." In any event it is clear from what has been said in other authorities more immediately directed to the point that a much more restricted operation must be given to any estoppel arising from a default judgment. 239As I previously observed, although Lai J's decision bears some resemblance to a default judgment, it would not be accurate to describe it as such. I think the appropriate course to take when considering whether an Anshun estoppel should be found in New South Wales on the basis of Lai J's decision in Singapore, is to first be satisfied that there exists in under Singaporean law a doctrine equivalent to Anshun (PCH Offshore Pty Ltd v Dunn (No 2) 273 ALR 167), and then to exercise caution (Talacko & Ors v Talacko at [51]; The Commonwealth Bank of Australia v White (No 4) [2001] VSC 511 at [45]) when determining whether, on the principle established in Port of Melbourne Authority v Anshun Pty Ltd (as developed in subsequent cases), such an estoppel actually arises. 240It will generally be presumed that the foreign law is the same as the local law except to the extent that a material difference is proved (see Schnabel v Lui [2002] NSWSC 15 at [76] and the cases there cited). Uncontradicted expert evidence was provided by Professor Tan to the effect that there exists under Singaporean law a principle equivalent to that established by Henderson v Henderson (1843) 3 Hare 100 (i.e. the English case which was adopted by the High Court in Port of Melbourne Authority v Anshun Pty Ltd thereby forming the basis for what is now known as the Anshun doctrine in Australia). I accept this evidence. 241The question then becomes whether what Telesto seeks to put in the proceedings in New South Wales was so relevant to a defence or cross-claim to the proceedings brought by UBS in Singapore before Lai J that it can be said to have been unreasonable for Telesto not to rely upon it in that proceeding (Port of Melbourne Authority v Anshun Pty Ltd at 602 per Gibbs CJ, Mason and Aickin JJ; Champerslife Pty Ltd v Manojlovski at [3] per Allsop P; C G Maloney Pty Ltd v Noon [2011] NSWCA 397 at [62] per Campbell JA with whom Tobias AJA agreed). The assessment of reasonableness is "not to be made mechanistically, but rather there is a value judgment to be made referable to the proper conduct of modern litigation" (Champerslife Pty Ltd v Manojlovski at [3] per Allsop P). 242On the issue of Anshun estoppel, UBS pointed to a number of factors which it says support the finding of an Anshun estoppel, including the significant overlap between the two proceedings, the alleged lack of material juridical advantage in New South Wales (on the specific facts of this case), the possibility of a conflicting judgment if the proceedings were permitted to continue to finality in New South Wales, and the continuing anti-suit injunction issued in Singapore restraining Telesto from continuing its proceedings in New South Wales. On the other hand, the thrust of Telesto's argument against finding an Anshun estoppel is that due to the juridical advantage available to it in New South Wales, there was nothing unreasonable in seeking to prosecute its claim in New South Wales and refraining from participating in Singapore. 243It seems to me the principal reason for Telesto's decision to refrain from participation in the Singapore proceedings was its deprivation in that jurisdiction of what it considered would be a significant juridical advantage afforded to it in New South Wales under ss 51A and 52 of the Trade Practices Act and the variety of remedies available under that statute. I have already indicated that I have arrived at what in my mind is a firm conclusion that, subject to the evidence and despite views to the contrary, the availability of ss 52 and 51A in New South Wales constituted a material juridical advantage (and for reasons already expressed, I do not consider Chong J's observations to give rise to an issue estoppel preventing me from reaching that view). I think it is abundantly plain that what Telesto seeks to agitate in the New South Wales proceedings would have been extremely relevant to the earlier proceedings in Singapore. However, the question which arises in my mind is whether, in determining the reasonableness of Telesto's conduct in refraining from participating in the Singapore proceedings, I can have regard to the juridical advantage which Telesto believed (and which I have found) it would have had in proceedings in New South Wales. 244In most authorities, discussion in relation to the availability of juridical advantage in a particular jurisdiction is usually for the purpose of determining a question of forum non conveniens. However, I can see no reason why the availability of a juridical advantage in another forum would be irrelevant for the purpose of determining whether a party's decision to refrain from participating in the disadvantageous forum was reasonable. Indeed, the parties recognised the relevance of this in their submissions. In C G Maloney Pty Ltd v Noon [2011] NSWCA 397, Campbell JA (with whom Tobias AJA agreed) said "[w]hen the essential question is an Anshun estoppel case concerns the reasonableness of the manner in which litigation has been conducted, any facts that bear upon that reasonableness are relevant" (at [68]). Campbell JA also approved Lord Bingham's comments in Johnson v Gore Wood & Co [2002] 2 AC 1 (at 31) that a court should take a broad approach. In that case, Lord Bingham commented that where the failure to raise an issue that should have been raised was due to lack of funds, that is not necessarily irrelevant. Campbell JA quoted that passage of Lord Bingham in C G Maloney Pty Ltd v Noon (at [111]). 245I appreciate that it is also relevant to my assessment of reasonableness that a number of the contractual documents relevant to the litigation expressed Singaporean law as the governing law, and selected Singapore as a jurisdiction to which the parties agreed to submit (and in the case of the Letter of Undertaking, Singapore was specified as the exclusive jurisdiction). I also bear in mind that the Standstill Agreement contained no express choice of jurisdiction or choice of law clause. 246UBS pointed out that permitting the proceedings in New South Wales to continue may result in a judgment which is inconsistent with that of Lai J. I agree that this might well be the case. However, the inconsistency would arise as a result of juridical differences, not because of any unreasonableness of conduct in the prior proceedings in Singapore. 247Taking all of this into account, and considering the significant juridical advantage afforded to Telesto in New South Wales on one of the most critical aspects of its case, I do not consider Telesto's conduct in refraining from participation in Singapore to be relevantly unreasonable as to give rise to an Anshun estoppel in proceedings in New South Wales. Again, I bear in mind the multitude of authorities emphasising the need to exercise caution before finding that foreign proceedings give rise to an Anshun estoppel, especially where the judgment bears some characteristics of a default judgment.

[14]

Abuse of Process 248Independently of the preclusionary doctrines set out above, the court has the power to stay proceedings for an abuse of process so as to safeguard the administration of justice, to protect the integrity of the court's process or to prevent serious and unjustified prejudice or harassment (Rogers v The Queen (1994) 181 CLR 251 at 286 per McHugh J; Ridgeway v The Queen (1995) 184 CLR 19 at 74-75 per Gaudron J; Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256 at [9]-[16] per Gleeson CJ, Gummow, Hayne and Crennan JJ). 249The basic principles and their supporting authorities were helpfully summarised in Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 (at [89]) by McColl JA (with whom Giles and Campbell JJA agreed): [89] There can be an abuse of process where, even though a plea of res judicata, cause of action or issue estoppel is not available "if, the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceedings to set up the same case again ... ": Reichel v Magrath (1889) 14 App Cas 665 (at 668) per Lord Halsbury LC; Walton v Gardiner (at 392-393) per Mason CJ, Deane and Dawson JJ; Rogers v R (at 286-287) per McHugh J (in a dissenting judgment) referred to with apparent approval in Batistatos (at [15]) per Gleeson CJ, Gummow, Hayne and Crennan JJ; PNJ (at [3]) per French CJ, Gummow, Hayne, Crennan and Kiefel JJ; Haines v Australian Broadcasting Corp (1995) 43 NSWLR 404 (at 410) per Hunt CJ at CL. This form of abuse of process can be invoked both by parties to the original proceedings, as well as non-parties: State Bank of NSW Ltd v Stenhouse Ltd (1997) Aust Tort Rep 81-423 per Giles CJ Comm D (as his Honour then was); Rippon v Chilcotin [2001] NSWCA 142; (2001) 53 NSWLR 198 per Handley JA (Mason P and Heydon JA agreeing). It may be a form of Anshun estoppel, the underlying premise being that success on the reformulated case would contradict the outcome, or determination of an issue, in earlier proceedings. 250In Batistatos v Roads & Traffic Authority of New South Wales (2006) 226 CLR 256, Gleeson CJ, Gummow, Hayne and Crennan JJ explained what would constitute an abuse of process. Their Honours approved the following statement (at [15], footnotes omitted): [15] ... "Although the categories of abuse of procedure remain open, abuses of procedure usually fall into one of three categories: (1) the court's procedures are invoked for an illegitimate purpose; (2) the use of the court's procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court's procedures would bring the administration of justice into disrepute ... Many, perhaps the majority of, cases of abuse of procedure arise from the institution of proceedings. But any procedural step in the course of proceedings that have been properly instituted is capable of being an abuse of the court's process." To that it should be added that the power to deal with procedural abuse extends to the exclusion of particular issues which are frivolous and vexatious. Further, the failure to take, as well as the taking of, procedural steps and other delay in the conduct of proceedings are capable of constituting an abuse of the process of the court. 251Almost identical comments were made by the High Court in the subsequent case of PNJ v The Queen (2009) 252 ALR 612 (at [3] per French CJ, Gummow, Hayne, Crennan and Kiefel JJ). 252In Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699, French J (as his Honour then was) said (at [66]): [66] The doctrines of res judicata, issue estoppel and Anshun do not exhaust the circumstances in which a proceeding may be regarded as amounting to an abuse of process by way of attempted relitigation of a dispute already judicially determined. 253His Honour cited the case of Coffey v Secretary, Department of Social Security (1999) 86 FCR 434, where the Full Court said (at [25]): [25] An attempt to litigate in the Court a dispute or issue which has been resolved in earlier litigation in another court or tribunal may constitute an abuse of process even though the earlier proceeding did not give rise to a res judicata or issue estoppel... 254These comments were cited approvingly in IEL Finance Limited v Commissioner of Taxation [2006] FCA 267 (at [31]). 255Again, I note that Professor Tan provided uncontradicted expert evidence that the judgment of Lai J is sufficient to establish a claim for abuse of process in Singapore. UBS submitted that permitting Telesto to continue proceedings in New South Wales would constitute an abuse of process because it would involve a circumvention of orders made in Singapore and the re-litigation of issues which in substance have already been determined there. Telesto says, in effect, that continuance of proceedings in New South Wales would not constitute an abuse of process because of the juridical advantage available to it in New South Wales. 256The case of Reinsurance Australia Corporation Ltd v HIH Casualty and General Insurance (in liq) (2003) 254 ALR 29 was decided in a slightly different context, but the comments made in it are of particular relevance to the case before me. Jacobson J said (at [289]): [289] In summary, it seems to me that, but for the legitimate juridical advantage arising from the Trade Practices Act claim, the controversy considered as a whole would be vexatious or oppressive in the Voth sense, namely that the Australian proceedings would be productive of serious and unjustifiable trouble or seriously and unfairly burdensome... 257Perhaps more to the point for the purpose of the case before me, his Honour also said (at [326]): [326] ... The co-existence of local and foreign proceedings is not vexatious or oppressive where relief is available in one forum which is not available in the other... 258These comments were approved in PCH Offshore Pty Ltd v Dunn (No 2) (2010) 273 ALR 167. 259Again, it seems to me that a factor weighing heavily against a finding of abuse of process is the availability of what I consider to be a significant juridical advantage in New South Wales by reason of ss 52 and 51A and the variety of remedies available under the Trade Practices Act. The juridical advantage in New South Wales is highly significant to a fundamental aspect of Telesto's case, and therefore Telesto's decision to maintain proceedings in New South Wales cannot, in my view, be described as an abuse of process.

[15]

Jurisdiction of the Court in Singapore 260In its submissions, Telesto raised an additional point, namely that the court in Singapore did not have jurisdiction to entertain the proceedings, and that Lai J's judgment should therefore not be recognised in New South Wales. This contention is based on two principal arguments. The first is that at least some of Telesto's claims fall outside of the scope of the jurisdiction clause (i.e. clause 19.1) of the Account Terms and Conditions, and therefore Telesto should not be treated as having submitted to the jurisdiction of Singapore for the purposes of those claims. Telesto's second argument is somewhat circular. It argues that since the relief it seeks (namely rescission of various contracts) would include the setting aside of clause 19.1 (the submission to Singaporean jurisdiction clause), it cannot be regarded as having submitted to Singapore's jurisdiction. I will deal with each in turn. 261One of the requirements for the recognition and enforcement of a foreign judgment is that the foreign court has exercised a jurisdiction that the forum will recognise. The competence that the law of the forum recognises that a court in a foreign country can exercise if its judgment is to be recognised or enforced in the forum is often called "international jurisdiction" (see for example Davies, Bell and Brereton, Nygh's Conflict of Laws in Australia, 8th ed (2010) LexisNexis Butterworths at [40.4] and Mortensen, Garnett and Keyes, Private International Law in Australia, 2nd ed (2011) LexisNexis Butterworths at [5.11]). The "international jurisdiction" is assessed by reference to the law of the forum, not by reference to the law of the foreign jurisdiction from which the judgment issued. 262It is not controversial between the parties that, at least for the present case, the Australian authorities show that for such "international jurisdiction" to be established, the defendant must either have been personally served with the originating process while present in the foreign place (even if temporarily), or must have submitted to the foreign jurisdiction (either by express agreement or by conduct inconsistent with protest of jurisdiction). There is no argument by UBS that Telesto was present in Singapore when Telesto was served with the originating process. The parties' disagreement is as to whether Telesto either, by clause 19.1 or by conduct inconsistent with protest of jurisdiction, submitted to Singapore's jurisdiction. I will first address the clause 19.1 issue, and then, if necessary, whether any of Telesto's conduct in the Singapore proceedings amounted to a submission to jurisdiction. 263Clause 19.1 provides: In relation to any Account or Services, the Account Agreement and any Security Document shall be governed by and construed in accordance with the law of the country in which the relevant Account is booked and the Client irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of such country, unless otherwise specified. 264The relevant country for the purposes of this clause is of course Singapore. The definition of "Services" is: any and all credit and/or other banking facilities, products and/or services granted and/or made available by the Bank to the Client and/or any third party at the request of the Client from time to time, including the Investment Services. 265The definition of "Investment Services" is: any or all investment services made available to the Client by the Bank from time to time. 266Telesto argued that, on a proper construction of clause 19.1, its submission to jurisdiction is restricted to matters only concerning the construction of the "Account Agreement" and any "Security Document", and therefore there is no submission to jurisdiction for the purposes of Telesto's claims in New South Wales. I do not accept that argument. Clause 19.1 really contains two provisions, and is far broader than what Telesto contends for. It contains a choice of law provision, and a submission to jurisdiction provision. It provides for two things "in relation to any Account or Service", namely: (1)that the Account Agreement and any Security Document shall be governed by and construed in accordance with the law of Singapore; and (2)that Telesto irrevocably and unconditionally submits to the non-exclusive jurisdiction of Singapore. 267Telesto also argued that the extent of its submission to jurisdiction in clause 19.1 was not sufficiently broad to cover the claims it was pursuing in New South Wales, especially as the conduct of which it complains took place prior to entry into contractual arrangements with UBS. 268When interpreting clauses such as this, the authorities establish that the court is to take a wide view. In Ferris v Plaister (1994) 34 NSWLR 474, Mahoney JA said (at 496-497) "I do not differ from those who would take a wide rather than a narrow view of the scope of arbitration clauses". Similarly, in IBM Australia Ltd v National Distribution Services Ltd (1991) 22 NSWLR 466, the Court of Appeal considered the effect of an arbitration clause expressed to govern "any controversy or claim arising out of or related to the agreement or the breach thereof" and held that these words were sufficiently wide to include claims for relief under the Trade Practices Act. Clarke JA said (at 483): There are no indications in the contract that the words should be construed narrowly. Nor, in my opinion, are there any compelling reasons in favour of reading down the meaning of the phrase. On the contrary there are powerful considerations in favour of the contrary view. The consequence of an interpretation of the arbitration clause which excludes the claims under the Act would be that the causes of action based upon breaches of the contract would remain with the arbitrator, and be decided by him, and those in which reliance were placed upon ss 52, 82 and 87 of the Act would be determined in a court of law. As I earlier pointed out this conclusion would follow even in a case in which the same representations were said to ground claims in breach of contract and under the Act. The parties could hardly be thought to have contemplated that the arbitration clause would work in that way. It is far more likely that they intended that all disputes between them concerning the terms of the contract, the performance of it and matters connected, in a real sense, with the contract should be referred to the one tribunal for determination. For my part I would find it difficult to ascribe to the parties to a contract an intention to submit only part of a dispute to an arbitral tribunal reserving the remainder for consideration by the Court as this would, on any view, be inefficient and costly. 269In Francis Travel Marketing Pty Ltd v Virgin Atlantic Airways Ltd (1996) 39 NSWLR 160, the arbitration agreement applied to "any dispute or difference arising out of this agreement". The particular dispute involved allegations of breach of the Trade Practices Act. After reviewing the relevant authorities, Gleeson CJ (with whom Meagher and Sheller JJA agreed) 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. In Ethiopian Oilseeds, Hirst J held that a claim for rectification of a contract gave rise to a dispute "arising out of" the relevant agreement. That decision, and the reasoning underlying it, reflects the current state of the law in New South Wales 270Although these decisions are in the context of discussion of arbitration clauses, the principles are applicable by analogy (see for example FAI General Insurance Co Ltd v Ocean Marine Mutual (1997) 41 NSWLR 559 at 567), and they make it abundantly clear that these types of clauses include claims under the Trade Practices Act based on conduct engaged in prior to actual entry into contractual relations. For example, the allegedly fraudulent conduct complained of in Ferris v Plaister (1994) 34 NSWLR 474 concerned a pre-contractual representation, but that conduct was nonetheless caught by a clause expressed to govern "any dispute...as to the construction of the contract or as to any matter or thing of whatsoever nature arising thereunder or in connection therewith". 271I think Kirby P's analysis in the case of IBM Australia Ltd v National Distribution Services Ltd (1991) 22 NSWLR 466 (at 477) of the numerous authorities in respect of the interpretation of such clauses and his summary of the state of the law in New South Wales is particularly relevant to the present case: From the foregoing trend of authority, both in Australian and overseas courts, it can be seen that an arbitration clause, expressed in the language of the clause here under consideration, is not to be narrowly construed. It is sufficiently wide to include claims for rectification and for relief on the ground of misrepresentation or mistake ... Whilst it is true that the conduct complained of as being in breach of the Trade Practices Act (Cth) is alone sufficient to enliven the provisions of that Act and whilst such provisions do not depend upon the agreement of the parties, such considerations do not determine the simple question posed. That question is whether the misrepresentations alleged are "related to this agreement or the breach thereof". 272These comments were approved by Gleeson CJ in the subsequent case of Francis Travel Marketing Pty Ltd v Virgin Atlantic Airways Ltd. The submission to jurisdiction clause in the present case is expressed in very wide terms. The relevant question in the present case is whether the conduct of which Telesto complains is "in relation to any Account or Services". If so, then Telesto has agreed to "irrevocably and unconditionally" submit to Singaporean jurisdiction. In my view, it would be inconsistent with the authorities to find that the dispute between UBS and Telesto is taken out of the ambit of this clause simply because some of the conduct complained of took place before entry into contractual relations, or because the conduct can technically enliven a claim under the Trade Practices Act independently of the contractual documents (IBM Australia Ltd v National Distribution Services Ltd (1991) 22 NSWLR 466 at 477). It is clear, I think, that UBS's conduct which Telesto complains of is very much "in relation to [an] Account or Services". 273Next, the parties were also in dispute (as noted above) as to whether, apart from clause 19.1, Telesto had in any event submitted to Singapore's jurisdiction by reason of its conduct. UBS argued that by filing an application for a stay of the Singapore proceedings on 20 December 2010 pursuant to a particular Singaporean rule of procedure, or by filing a memorandum of appearance on 24 November 2010 which was not conditional, or by filing a summons on 20 December 2010 which sought (in the alternative to a stay) an order extending the time for the filing and service of its defence, Telesto had submitted to Singapore's jurisdiction. Telesto disputed this. 274As noted in Nygh's (at [40.17) it is of course possible for the law of the foreign court and the law of the forum to differ on what amounts to submission to jurisdiction. The Foreign Judgments Act 1991 (Cth) s 11 effectively provides that contesting the foreign court's jurisdiction or asking the foreign court to decline jurisdiction will not of itself amount to a voluntary submission. In the UK, where an equivalent statutory provision is in force (Civil Jurisdictions and Judgments Act 1982 (UK)), it has been held that when considering what amounts to submission for these purposes, the court must have regard to the general framework of its own procedural rules, but also to the domestic law of the court where the steps were taken, and that if a step would not be regarded as a submission by the domestic law of the foreign court, it should not be regarded as a submission, even if it would amount to such under the law of the forum (Akai v People's Insurance Co [1998] 1 Lloyd's Rep 90 per Thomas J). However, Thomas J also held that where the step would be regarded as a submission by the domestic law of the foreign court, but not by the law of the forum, the forum is free to disregard the foreign court's characterisation and to hold that there is no submission. 275There was some oral debate before me as to whether Telesto had, by making its stay application pursuant to a particular provision in the relevant Singaporean rules of court rather than under another provision of those rules, submitted to Singapore's jurisdiction. However, neither side provided expert evidence on this point. The only material I have before me is the judgment of Chong J and the judgment of Lai J, each of which proceeds on the basis that Singapore has jurisdiction to entertain the proceedings (however it is not clear whether this is on the basis of a finding that Telesto submitted to jurisdiction or that it was merely amenable to jurisdiction under Singapore's relevant rules of procedure). 276UBS cited the case of Henry v Geoprosco International Ltd [1976] QB 726 as authority for the proposition that an application to a court seeking the exercise of a discretion to stay proceedings amounts to submission to jurisdiction. That may be so, but as I have noted, the Foreign Judgments Act 1991 (Cth) s 11 reversed that position. In the absence of evidence of the characterisation under Singaporean law of Telesto's conduct, I would prefer not to express any view as to whether Telesto has, by its conduct, submitted to Singapore's jurisdiction. In any event, it is not necessary for me to do so given my finding in respect of the effect of clause 19.1. 277Turning to Telesto's second argument, it was submitted that since Telesto was seeking to invoke laws in the local forum (i.e. the Trade Practices Act) to set aside the contract which contained the submission to jurisdiction clause, it would be inappropriate for a judgment from that jurisdiction to bar Telesto from having its claim heard in the local forum. 278It is a basic principle in private international law that an agreement as to forum is treated as a separate agreement from the main contract containing that agreement (FAI General Insurance Co Ltd v Ocean Marine Mutual (1997) 41 NSWLR 559 at 567; Ferris v Plaister (1994) 34 NSWLR 474 at 485). It is only where the party seeking to avoid the contractual choice of forum asserts that the choice of forum itself is invalid because their assent to that particular term of the agreement was vitiated that such an argument should be considered (Commonwealth Bank of Australia v White (No 1) (1999) 2 VR 681 at [11] per Byrne J; see also Mortensen at [4.5] and Nygh's at [7.27]). The written submissions provided to me following the hearing carried the suggestion that the case of Commonwealth Bank of Australia v White (No 1) stood for the proposition that effect should not be given to a foreign jurisdiction clause where the local proceedings include claims for the rescission or setting aside of the agreement which contained that clause. 279I will not recite the facts of the case in full. Relevantly, Mr White was an underwriting member of Lloyd's from 1 January 1981 to 31 December 1992. In August 1986, he was required to execute a new general undertaking which included a clause under which he agreed to submit exclusively to the jurisdiction of the courts of England. That undertaking was not contained in the 1980 general undertaking. One of the claims brought by Mr White was that this clause was put forward "for the improper purpose of shielding itself from statutory laws of overseas jurisdictions including those Australian laws relating to misleading and deceptive conduct... It is said that, for this reason, the exclusive jurisdiction clause is void...". Byrne J went on to observe that "an issue which Mr White would litigate here is Lloyd's impropriety in introducing the exclusive jurisdiction agreement" (at [91]). 280In the present case, there was no suggestion, nor was it pleaded, that the inclusion of clause 19 by which the parties agreed to submit to the non-exclusive jurisdiction of Singapore was for the very purpose of avoiding consumer protection legislation, such as the Australian laws relating to misleading and deceptive conduct. An inability to rely on Australian consumer protection legislation may well be an effect of contractually submitting to the courts in Singapore, but it was not said to be the purpose for which that clause was included. I am aware that the authorities on this point are not always consistent (see discussion in Nygh's at [7.40]). On balance, I think the authorities favour the approach that something more is needed than the mere inclusion of an exclusive jurisdiction clause which would have the effect of displacing the application of the misleading and deceptive conduct laws. In Commonwealth Bank of Australia v White (No 1) it was that the exclusive jurisdiction clause was included, not in good faith, but for the very purpose of avoiding the application of the Trade Practices Act (this is also borne out by the chronology of the facts in that case). 281I am aware that there was subsequent related litigation in that case. In Commonwealth Bank of Australia v White (No 1), Byrne J found that there was good reason for proceedings against Lloyd's to continue in Victoria, even though the proceedings were brought in breach of an exclusive jurisdiction clause in favour of the English courts (for reasons which, as already outlined, are not applicable to the present case). However, the High Court of England and Wales was not satisfied that there were good reasons to continue proceedings in Victoria, and granted an anti-suit injunction against Mr White, to restrain the Victorian proceedings. Attempts were then made by Lloyd's to have the Victorian proceedings stayed, partly on the basis of comity. In Commonwealth Bank of Australia v White (No 4) [2001] VSC 511 Warren J (as her Honour then was) held that the stay should be refused, that comity did not require it, and that since the English and Victorian courts had disagreed as to whether there were good reasons to bring proceedings in breach of the exclusive jurisdiction clause it was appropriate that the Victorian court prefer its own decision. 282In any event, none of the judgments subsequent to White (No 1) affected the principles I have articulated above. Therefore I do not accept Telesto's submission that Lai J's judgment should not be recognised for want of jurisdiction. In these circumstances, I consider that the basic principle, that the parties' agreement as to forum is treated as a separate agreement from the main contract, applies. 283I also wish to add one further comment on this issue. I think there is an additional relevant distinction between the case now before me on the one hand, and the cases referred to above and cited in the submissions on the other. In each of the cases cited, the relevant Australian court was not faced with a foreign judgment which was final, on the merits and otherwise capable of giving rise to a res judicata. The parties in those cases were still in dispute about where they should be heard. In the present case, the court in Singapore has given a final judgment on the merits, and therefore Telesto is, in one sense, seeking to retrospectively deprive the Singaporean court of its jurisdiction.