Commencing proceedings in two separate countries has
just become that little bit easier. The Qld Court of Appeal has
confirmed that forum shopping is possible in certain cases, opening
up a range of recovery possibilities.
The case involved a $15 million loan facility between Telesto
and ANZ, guaranteed by the directors of Telesto . The agreements
were all executed in Singapore, with the Singaporean courts given
non - exclusive jurisdiction. Telesto also granted ANZ a mortgage
over a property on the Gold Coast to secure the facility.
When it all fell apart, ANZ commenced proceedings in Singapore
to recover the amounts owing under the facility and, separately in
Queensland, for possession of the land subject to the mortgage.
Should both proceedings have been commenced in a single court?
This was one question for the Qld court when deciding whether to
enforce ANZ's judgment from Singapore.
Not surprisingly, the Singaporean courts don't have
jurisdiction to grant judgments for possession of land on the Gold
Coast. If they'd tried to exercise that jurisdiction, the QLD
court would not have recognised the judgment.
While it seems the Qld court would have had jurisdiction to hear
the whole of the dispute, the Singaporean proceedings were
commenced first. ANZ could have chosen to commence solely in QLD,
but was equally entitled to continue the Singaporean proceedings.
Perhaps the lure of chilli crab was just too strong.
Obviously commencing proceedings in two jurisdictions isn't
without risk. There will be the additional cost of running two
cases, and you'll need to be sure that the case is suited to
dual judgments. It may not be the most efficient way to go about
recovery of your debts, but depending on the case, it could give a
better chance of complete recovery.
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PNG has domestic arbitration legislation, but does not provide for the enforcement of foreign arbitral awards.
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