Tipperary Developments v. State of Western Australia [2009] WASCA 126

Facts: In Western Australia (WA), at the relevant time, the Statute of Frauds was still in force; it included a provision that the contract of guarantee was unenforceable in the absence of writing. Proceedings were brought in WA for the enforcement of what was alleged to be a guarantee, given by the defendant (D) (State of WA) in respect of a financial obligation owed to the plaintiff (Pl) by a failed merchant bank in WA. 

Issue: What was the proper law of the contract? 

Held: The law of WA was the objective proper law of the contract of guarantee. The relevant provision was characterised as substantive, and thus the provision barred Pl’s action because the law of WA was the proper law of the contract of guarantee, not because it was the lex fori.