Sigma Coachair Group Pty v Bock Australia Pty Limited [2009] NSWSC 684

Facts: Sigma Coachair (Australian (AU) company, D1) supplied air conditioning units to Bock (AU company, P), which constructed and installed the units on trains in India. D2 (Germany company) manufactured the units; the catalogue, operating instructions & date plate on the compressors were provided by D2 to D1 upon sale. The units installed by P on trains failed. P brought proceedings in NSWSC for misleading and deceptive conduct (MDC) (arguing the instructions were representations provided by D2 to P in NSW). D2 applied for a stay of proceedings on the basis that the cause of action did not arise in NSW and therefore the court had no jurisdiction.

Issue: Did the Court have jurisdiction? Where did the tort of MDC occur (in NSW)?

Held: The tort of MDC occurred in NSW because the cost of providing the service was incurred in NSW and damage occurred in NSW (i.e. the misrepresentation was directed towards the company in NSW). Even if the materials were supplied indirectly to P, in the sense that the D1 acted as an agent or intermediary, the representations were directed to a purchaser or user i.e. (P) in NSW and were relied upon in NSW.

Quoting Voth: Where it is directed from one place to another, the tort is committed at the place to which it was directed whether or not it was acted upon there, provided it was a place where it could have been reasonably anticipated that it would be received by the plaintiff or brought to the plaintiff’s attention (even if in fact it is received by the plaintiff elsewhere).