Showtime Touring Group Pty Ltd v Mosely Touring Inc [2010] NSWSC 974

Facts: P (AU company) and Ds (D1: US company, D2: performance artist hired by D1) made a contract for live performances. It was written in NSW and emailed to D’s lawyers in New York. The contract stipulated that parties were governed by US law (not no choice of law forum). There was a breach in the contract in the US (D1 failed to procure the artist in the US). Ds sought an order setting aside service, arguing that none of the circumstances referred to in Sch 6 were present.

Held: Here, no Sch 6 grounds applied so the service on Ds was set aside.

Question: Was the contract made in AU or US? 

Held: The contract was made in the US. Although it was written and signed in NSW, the contract was made when the email was received by lawyers in NY.

Question: Was the contract governed by AU or US law?

Held: The contract had express terms that it was to be governed by US law.

Question: Was the breach in AU or US?  

Held: The breach was in the US; no breach in AU. Where the breach consists of nonfeasance, the place of breach is where the obligation in question was due to be performed. The alleged breach was the D1’s failure to procure the appearance of D2 (this would involve scheduling, making travel arrangements) which would have occurred in the US.