Kim Michael Productions Pty Ltd v Tropical Islands Management Ltd [2010] NSWSC 269

Facts: P (Kim Michael Productions) was an AU company and Ds were Cayman, German and UK companies. In 2004, P and German D entered a contract to produce a show at D’s resort in Germany. The contract was governed by German law and money was to be paid into P’s account in AU. In 2005, P and UK D entered into an oral contract to produce a show at the resort. Some payments were made but UK D repudiated. P terminated the contract and sued for damages for production costs, lost profits and lost opportunity. Ds sought an order setting aside service and staying the proceedings. The parties agreed the contract was not made in NSW and not governed by NSW law. 

Held: The failure to pay $35,000 was a breach of contract (although tenuous claim) which occured in NSW, meaning that NSWSC had jurisdiction. The breach of contract occurred where debt was to be paid. Although jurisdiction existed, it was not exercised (on forum non conveniens grounds). The proceedings were vexatious and therefore, were stayed.