Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd [2019] NSWCA 61

Facts: There was a Risk Transfer Agreement between Sanitarium (Australian company), Emirat (UK company) and Hive (the local agent for Emirat). The agreement was governed by English law and contained an English exclusive jurisdiction clause.

There was also a Promotion Agreement between Rebel, Sanitarium and Hive for reimbursement by Hive of value of purchases redeemed in Rebel stores. The agreement was governed by NSW law and contained a non-exclusive jurisdiction clause for NSW courts.

Pls (Rebel & Sanitarium) brought an action against Ds (Emirat and Hive) in NSW regarding the reimbursement of Rebel.

Held (trial judge): Awarded Emirat a stay of proceedings and set aside service.

Held: The Court upheld TJ's decision. Whilst Rebel was not a party to the agreement containing the EJC, it must have at least been aware of it and the proceedings were rightfully stayed. The Court did not divide the parties, they divided the agreement → the parties sued in England under  Risk Transfer Agreement and in NSW under the Promotion Agreement. The importance of holding parties to their bargain, even if not all parties were privy to such a bargain, outweighed risk of a multiplicity of proceedings.

Rule: There is no prima facie disposition in favour of a stay. The case law dictates an approach which begins with a "firm disposition in favour of maintaining [the] bargain unless strong reasons be adduced against a stay".