Venter v Ilona MY Ltd [2012] NSWSC 1029

Facts: The deceased was an employee on the owner's (respondent) yacht who died in an accident in Thai waters due to a defect in the hoist. The deceased’s wife (applicant) commenced proceedings in NSWSC for loss of life while carrying out employment duties and compensation under the NSW Compensation to Relatives Act 1897. Although the proceedings between the applicant and the respondent were settled, the respondents claimed against the manufactures of the hoist (cross-respondents) under contract law and pursuant to the NSW Law Reform (Miscellaneous Provisions) Act 1946. The cross-respondent sought to set aside the cross-claim and get a declaration that NSWSC had no jurisdiction. Alternatively, the cross-respondent claimed it was entitled to rely on exclusive jurisdiction in the contract with the respondent requiring any claim to be made in Germany.

Issue: Were the T&Cs (including exclusive jurisdiction clause) incorporated into the contract?

Held: Whether the clause provides for exclusive or nonexclusive jurisdiction depends on the proper law of the clause. Here, forum law (Australian law) was relied on and the T&Cs (which required all disputes arising under or out of contract, or connected with work done per the contract, to be brought in Germany) were part of the contract. Therefore, the NSWSC stayed proceedings.