EDITORIAL NOTE: NO SUPPRESSION APPLIED. IN THE DISTRICT COURT AT QUEENSTOWN CIV [2016] NZDC 2055

Similar documents
Rawofi (age assessment standard of proof) [2012] UKUT 00197(IAC) THE IMMIGRATION ACTS. Before UPPER TRIBUNAL JUDGE WARR. Between SAIFULLAH RAWOFI.

COURT OF APPEAL FOR BRITISH COLUMBIA

IN THE EMPLOYMENT COURT CHRISTCHURCH [2018] NZEmpC 51 EMPC 328/2017. IBRAHIM KOCATÜRK First Applicant. GÜLER KOCATÜRK Second Applicant

CASE NO: 154/2010 DATE HEARD: 19/10/10 DATE DELIVERED: 22/10/10 NOT REPORTABLE WALTER SISULU UNIVERSITY

WHEN A FALSE STATEMENT VITIATES A CLAIM:

SUPREME COURT OF QUEENSLAND

Outflanked High Court of Australia goes behind Bankruptcy Court Judgment

THE IMMIGRATION ACTS. Heard at Field House Decision & Reasons Promulgated On 31 March 2016 On 19 April Before

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV UNDER the Companies Act BLOSSOM WOOL LIMITED Applicant

THE HUMAN RIGHTS REVIEW TRIBUNAL & ORS Respondents

DEPUTY UPPER TRIBUNAL JUDGE WOODCRAFT. Between

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY CIV [2016] NZHC IN THE MATTER of the Insolvency Act 2006

Introduction 2. Debt Basics 2. Letter of Demand to recover a Debt 4. Financial Counselling for Debtors 4. Harassment by Debt Collectors 5

Mr B Archer, solicitor

IN THE EMPLOYMENT COURT AUCKLAND [2018] NZEmpC 33 ARC 98/13 ARC 22/14. LSG SKY CHEFS NEW ZEALAND LIMITED First Defendant

THE IMMIGRATION ACTS. Before UPPER TRIBUNAL JUDGE WARR. Between. THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Appellant and

IN THE SUPREME COURT OF NEW ZEALAND SC 78/2014 [2014] NZSC 197. Appellant. Elias CJ, McGrath, William Young, Glazebrook and Arnold JJ

Meloche Monnex Insurance Company, Defendant. R. D. Rollo, Counsel, for the Defendant ENDORSEMENT

THE IMMIGRATION ACTS. Promulgated On 22 December 2014 On 8 January Before DEPUTY UPPER TRIBUNAL JUDGE HANBURY. Between

Rent in advance not a deposit: Court of Appeal latest

Before: MR JUSTICE MORGAN Between: - and -

THE IMMIGRATION ACTS. Before UPPER TRIBUNAL JUDGE KOPIECZEK. Between AH (ANONYMITY DIRECTION MADE) and THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

THE IMMIGRATION ACTS. Before DEPUTY UPPER TRIBUNAL JUDGE MCGINTY. Between MS G.N. (ANONYMITY DIRECTION MADE) and

THE IMMIGRATION ACTS. Promulgated On 9 July 2014 On 9 July Before. Deputy Upper Tribunal Judge Pickup Between

NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 OF THE CRIMINAL JUSTICE ACT 1985.

Upper Tribunal (Immigration and Asylum Chamber) PA/03023/2017 THE IMMIGRATION ACTS

Basnet (validity of application - respondent) [2012] UKUT 00113(IAC) THE IMMIGRATION ACTS. Before

IN THE EMPLOYMENT COURT CHRISTCHURCH [2010] NZEMPC 144 CRC 25/10. DEREK WAYNE GILBERT Applicant

Upper Tribunal (Immigration and Asylum Chamber) PA/06808/2016 THE IMMIGRATION ACTS

IN THE EMPLOYMENT COURT AUCKLAND [2012] NZEmpC 203 ARC 98/11. AND IN THE MATTER OF an application for costs. Plaintiff

VN (Chicago Convention s 86(4)) Iran [2010] UKUT 303 (IAC) THE IMMIGRATION ACTS. Before

IN THE HIGH COURT OF SOUTH AFRICA (BOPHUTHATSWANA PROVINCIAL DIVISION)

IN THE EMPLOYMENT COURT AUCKLAND [2012] NZEmpC 34 ARC 73/11. Plaintiff. VINCENT SINGH Defendant

ASYLUM AND IMMIGRATION TRIBUNAL

THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN JUDGMENT

IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI COURT OF APPEALS OF THE STATE OF MISSISSIPPI WILLIAM M. MILEY, JR.

SUPREME COURT OF QUEENSLAND

SUPREME COURT OF QUEENSLAND

THE IMMIGRATION ACTS. Heard at Field House Decision & Reasons Promulgated On 30 June 2017 On 4 July Before UPPER TRIBUNAL JUDGE SMITH.

IN THE EMPLOYMENT COURT CHRISTCHURCH [2017] NZEmpC 58 EMPC 178/2016. AFFCO NEW ZEALAND LIMITED Plaintiff

DISCIPLINARY COMMITTEE OF THE ASSOCIATION OF CHARTERED CERTIFIED ACCOUNTANTS

MH (pending family proceedings-discretionary leave) Morocco [2010] UKUT 439 (IAC) THE IMMIGRATION ACTS. Before SENIOR IMMIGRATION JUDGE JARVIS

IN THE COURT OF APPEAL. and BERNARD LIDDIE. and ST. KITTS & NEVIS ANGUILLA NATIONAL BANK LTD

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV ORAL JUDGMENT OF VENNING J

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY CIV [2017] NZHC 367. IN THE MATTER the Insolvency Act 2006

In the application between: Case no: A 166/2012

EDITORIAL NOTE: NO SUPPRESSION APPLIED. IN THE DISTRICT COURT AT QUEENSTOWN CIV [2016] NZDC HARI AROHA RAPATA Appellant

REGULAR REGIONAL ARBITRATION PANEL ARBITRATION IN THE MATTER OF BEFORE ARBITRATOR PATRICK HARDIN. Roy D. Dowden Labor Relations Assistant

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV [2013] NZHC 1628

CONCERNING CONCERNING BETWEEN. DECISION The names and identifying details of the parties in this decision have been changed.

IN THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG COMPUTER STORAGE SERVICES AFRICA (PTY) LTD

WESLEY BORK JR. And THE TAMARIND CLUB II LIMITED

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV CLAVERDON DEVELOPMENTS LIMITED Defendant. P Chambers for Defendant

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV [2015] NZHC KIWIBANK LIMITED Defendant

IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, JOHANNESBURG

Before : LORD JUSTICE LONGMORE LORD JUSTICE PATTEN and MR JUSTICE ROTH Between :

PROCEDURE application for stay in proceedings - refused. - and - TRIBUNAL: JUDGE HARRIET MORGAN

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P IN THE SUPERIOR COURT OF PENNSYLVANIA

WHETHER TO PROCEED OR NOT WITH AN ADVERSE PANEL OPINION By Mark A. Lienhoop November 15, 2000

Opposing Applications to Wind Up a Company in Insolvency

THE IMMIGRATION ACTS. Before UPPER TRIBUNAL JUDGE HEMINGWAY. Between ENTRY CLEARANCE OFFICER. and

IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND CHANCERY DIVISION (BANKRUPTCY) RE: RICHARD ANDREW McVEIGH (BANKRUPT)

ASYLUM AND IMMIGRATION TRIBUNAL

1. Company/Organization/Individual named in the determination ( Appellant ) Name Address Postal Code

SUPREME COURT OF ALABAMA

Indexed as: Rano v. Commercial Union Assurance Co. Between: Teresa Rano, applicant, and Commercial Union Assurance Company, insurer

THE IMMIGRATION ACTS. Promulgated On 25 July 2014 On 11 August 2014 Oral determination given following hearing. Before UPPER TRIBUNAL JUDGE CRAIG

THE IMMIGRATION ACTS. On 17 December 2015 On 5 January Before DEPUTY UPPER TRIBUNAL JUDGE DOYLE. Between

THE IMMIGRATION ACTS. Heard at Birmingham Decision & Reasons Promulgated On 15 th July 2016 On 26 th July Before UPPER TRIBUNAL JUDGE HEMINGWAY

IN THE COURT OF APPEAL KENNETH HARRIS. and SARAH GERALD

110th Session Judgment No. 2993

Ontario Superior Court of Justice. Small Claims Court Goderich, Ontario. - and - Bill Steenstra

Preventing or Opposing a Sale in Execution A LEGAL GUIDE MAY 2016

THE IMMIGRATION ACTS. Heard at Field House Decision & Reasons Promulgated On 13 March 2018 On 19 March Before

IN THE EMPLOYMENT COURT WELLINGTON [2013] NZEmpC 175 WRC 27/12. Judge Couch Judge Inglis Judge Perkins JUDGMENT OF FULL COURT

Mr S complains about Bar Mutual Indemnity Fund Limited s decision to withdraw funding for his claim.

THE IMMIGRATION ACTS. Heard at Manchester Civil Justice Centre Reasons Promulgated On 22 May 2018 On 22 November Before

THE IMMIGRATION ACTS. Before DEPUTY UPPER TRIBUNAL JUDGE KELLY. Between. and THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

THE IMMIGRATION ACTS. Before THE HONOURABLE MRS JUSTICE PATTERSON DEPUTY UPPER TRIBUNAL JUDGE J G MACDONALD. Between. and

OFFICE OF THE DIRECTOR OF ARBITRATIONS. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Appellant. and APPEAL ORDER

Upper Tribunal (Immigration and Asylum Chamber) PA/02026/2017 THE IMMIGRATION ACTS

IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : CODE OF CIVIL PROCEDURE Date of Decision: FAO(OS) 455/2012 and CM No.

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY CRI [2013] NZHC Appellant. CHRISTCHURCH CITY COUNCIL Respondent

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI CAUSE NO CA APPEAL FROM THE CIRCUIT COURT OF ATTALA COUNTY, MISSISSIPPI

IN THE COURT OF APPEAL OF SEYCHELLES. Beoliere Aqua (Proprietary) Limited

A GUIDE FOR SELF-REPRESENTED LITIGANTS

DECISION ON A MOTION

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV JUDGMENT OF WYLIE J

JOHN ARCHIBALD BANKS Appellant. THE QUEEN Respondent

Upper Tribunal (Immigration and Asylum Chamber) HU/06395/2016 THE IMMIGRATION ACTS

RACING APPEALS TRIBUNAL IN THE MATTER OF A STAY APPLICATION BY DEAN MCDOWELL

TC04086 [2014] UKFTT 974 (TC) Appeal number: TC/2014/00845

Case Name: Graham v. Coseco Insurance Co./HB Group/Direct Protect

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA JUDGMENT DAVID WALLACE ZIETSMAN MULTICHOICE AFRICA (PTY) SECOND RESPONDENT

IN THE LABOUR COURT OF SOUTH AFRICA. (Held at Johannesburg) Case No: J118/98. In the matter between: COMPUTICKET. Applicant. and

THE IMMIGRATION ACTS. On 16 December 2014 On 21 January Before UPPER TRIBUNAL JUDGE GRUBB. Between

THE IMMIGRATION ACTS. Before UPPER TRIBUNAL JUDGE DAWSON. Between D A. and THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

RACING APPEALS TRIBUNAL IN THE MATTER OF A STAY APPLICATION BY NEIL DAY

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV [2016] NZHC SOSENE JOHN ROPATI Applicant. Applicants

JUDGMENT. Volkswagen Financial Services (UK) Ltd (Respondent) v Commissioners for Her Majesty s Revenue and Customs (Appellant)

Transcription:

EDITORIAL NOTE: NO SUPPRESSION APPLIED. IN THE DISTRICT COURT AT QUEENSTOWN CIV-2014-059-000156 [2016] NZDC 2055 BETWEEN AND JAMES VELASCO BUENAVENTURA Plaintiff ROWENA GONZALES BURGESS Defendant Hearing: 10 February 2016 Appearances: Plaintiff appears in Person Defendant appears in Person Judgment: 16 March 2016 JUDGMENT OF JUDGE K G SMITH Introduction [1] On 23 October 2014 Mr Buenaventura issued proceedings against Ms Burgess claiming judgment for $25,151 arising from an alleged debt said to be due and owing to him because of a loan he made to Ms Burgess. The amount claimed may have reduced to $22,000 because of payments made by Ms Burgess. [2] Ms Burgess has filed an Appearance Under Protest to the Court s jurisdiction (appearance), which Mr Buenaventura has applied to set aside. [3] Both parties are representing themselves but have had some assistance in preparing their respective submissions on Mr Buenaventura s application. In presenting their arguments they have relied on material filed to comply with previous directions by the Court without significant elaboration. JAMES VELASCO BUENAVENTURA v ROWENA GONZALES BURGESS [2016] NZDC 2055 [16 March 2016]

[4] Neither party swore an affidavit, but there is broad agreement that money was paid by Mr Buenaventura to Ms Burgess. The dispute is about the nature of that payment and where that dispute should be litigated. Background [5] Both Mr Buenaventura and Ms Burgess live in New Zealand. The proceedings were served on Ms Burgess at her address in Wanaka. Briefly, Mr Buenaventura and Ms Burgess were in a relationship possibly while in Christchurch but certainly while in Manila. At an unspecified time, but possibly during June or July 2014, Mr Buenaventura says he lent money to Ms Burgess to buy a property in the Philippines. [6] Mr Buenaventura alleges that, in August 2014, Ms Burgess promised to repay that loan by regular instalments but he has not been repaid. Ms Burgess accepts she was paid money but otherwise denies Mr Buenaventura s claim against her. Ms Burgess appearance [7] Ms Burgess appearance is founded on two bases. First, Ms Burgess denies Mr Buenaventura s claim on the basis that his allegations are fabricated and untrue. [8] Second, Ms Burgess argues any proceedings should be heard in Manila in the Philippines. [9] In her appearance, Ms Burgess acknowledges having been in a brief relationship with Mr Buenaventura. She says they were going to invest in a property in Manila and accepts Mr Buenaventura deposited money into her bank account in Manila. Ms Burgess says that the deposit into her bank account was used to buy air tickets for Mr Buenaventura and as part of a deposit for a house he wanted us to buy. Ms Burgess does not elaborate on this statement but does say the house was to be purchased in her mother s name. [10] Ms Burgess appearance is summed up in one passage:

All of my dealings with the plaintiff happened in Manila. We made an unfortunate mistake and I also lost the money I had saved. The money was originally given to me to buy air tickets and for the deposit on a house, with no mention of repayments. I did begin to say I would pay him back because he was threatening and intimidating me. I borrowed 100,000 php [Philippines currency] from a friend and my mother deposited that in his account in Manila, I am unable to pay any more. [11] Ms Burgess appearance contains a statement that she could verify everything that had happened, but her support people are in Manila, together with the friend who lent her money to pay Mr Buenaventura the 100,000 php referred to in para [10]. [12] There is no written record of the transaction between Mr Buenaventura and Ms Burgess, but there are emails that, at trial, might shed light on what took place. Aside from Mr Buenaventura and Ms Burgess, there do not appear to be any witnesses to the formation of the arrangement leading to Mr Buenaventura depositing money into Ms Burgess bank account. The application to set aside [13] Mr Buenaventura s application to set aside Ms Burgess appearance relies on practical matters. Both parties reside in New Zealand. Both parties have jobs in New Zealand. Mr Buenaventura says Ms Burgess has property in New Zealand and intends to relocate her children to New Zealand. These assertions were not challenged by Ms Burgess as inaccurate. [14] Mr Buenaventura says he will rely on his own evidence and on the material disclosed with his list of documents, which is his reference to the email correspondence mentioned earlier. Both parties accepted the proposition I put to them, which is that this case will turn on what the Court makes of their evidence. [15] Although Ms Burgess mentioned having witnesses, she did not identify them or describe what they might give evidence about other than in the general way described earlier. However, the impression I have is that two separate matters may have been conflated; payment of money to Ms Burgess and the subsequent use of that money.

Discussion [16] Rule 5.51 of the District Court Rules 2014 governs appearances of this sort. That rule provides: 5.51 Appearance and objection to jurisdiction (1) A defendant who objects to the jurisdiction of the court to hear and determine the proceeding may, within the time allowed for filing a statement of defence and instead of so doing, file and serve an appearance stating the defendant s objection and the grounds for it. [17] Under r 5.51(3) a defendant who has filed an appearance may apply to dismiss the proceeding. Under r 5.51(5), at any time after an appearance has been filed, the plaintiff may apply to the Court to set aside the appearance. [18] Under rule 5.51(6) the Court hearing an application to set aside the appearance must (a) (b) if it is satisfied that it has jurisdiction to hear and determine the proceeding, set aside the appearance; but if it is satisfied that it has no jurisdiction to hear and determine the proceeding, dismiss both the application and the proceeding. [19] Finally, under r 5.51(9) The Court, in exercising its powers under this rule, may do so on any terms and conditions that the Court thinks just and, in particular, on setting aside the appearance it may extend the time within which the defendant may file and serve a statement of defence and may give any directions that appears necessary regarding any further steps in the proceeding. [20] Under s 29 of the District Courts Act 1947 this Court has jurisdiction to hear and determine any claim for a debt where the amount sought by way of judgment does not exceed $200,000. Mr Buenaventura is claiming a debt within the monetary limit fixed for this Court s jurisdiction. Consequently, this Court has jurisdiction to hear and consider his claim.

[21] What is really involved in Ms Burgess appearance is an argument that this case would be more appropriately tried in the Philippines. [22] Ms Burgess supported her argument by making four points. (a) (b) (c) (d) No contract or agreement was entered into in New Zealand. No agent trading or residing in New Zealand was used. She had no dealings with Mr Buenaventura in New Zealand before or after their relationship in Manila. There has been no contract or agreement, written or otherwise, to suggest the dealings between her and Mr Buenaventura should be governed by New Zealand law. [23] Ms Burgess points seem to correctly summarise what happened insofar as the payment transaction is concerned. Those points would support a forum non conveniens argument. Forum non conveniens [24] The approach to forum non conveniens in New Zealand follows a decision of the House of Lords in Spiliada Maritime Corporation v Cansulex Limited. 1 [25] That case has been applied in New Zealand. 2 In Spiliada, the House of Lords described the fundamental principle about jurisdiction in the following way: In cases where jurisdiction has been founded as of right, ie, where in this country the defendant has been served with proceedings within the jurisdiction, the defendant may now apply to the Court to exercise its discretion to stay the proceedings on the ground which is usually called forum non conveniens. 1 [1987] AC 460. 2 Gilmore v Gilmore [1993] NZFLR 561 (HC).

I feel bound to say that I doubt whether the Latin tag forum non conveniens is apt to describe this principle. For the question is not one of convenience, but of the suitability or appropriateness of the relevant jurisdictions. [26] Six steps were considered by the House of Lords to address the forum non conveniens issue: (a) A stay will only be granted on the ground of forum non conveniens where the Court is satisfied there is some other available forum, having competent jurisdiction, which is the appropriate forum for the trial of the action; ie, in which the case may be tried more suitably for the interests of all the parties and the ends of justice. (b) (c) In general, the burden of proof rests on the defendant to persuade the Court to exercise its jurisdiction to grant a stay. Each party will seek to establish the existence of certain matters that will assist in persuading the Court to exercise its jurisdiction in their favour. The evidential burden will rest on the party who asserts its existence. If the Court is satisfied there is another available forum, which is prima facie the appropriate forum for the trial of the action, the burden will shift to the plaintiff to show there are special circumstances by reason of which justice requires the trial should nevertheless take place in this jurisdiction. In considering whether there is some other forum that is the appropriate forum for the trial of the action, it is pertinent to ask whether the fact the plaintiff has found a jurisdiction as of right in accordance with the law of New Zealand, of itself gives the plaintiff an advantage in the sense that the Courts will not lightly disturb jurisdiction so established. (d) Since the question is whether there exists some other forum more clearly appropriate for the trial of the proceeding, the Court will first look at what factors point in the direction of another forum, such factors may even include convenience or expense.

(e) (f) If a Court concludes at that stage there is no available forum that is clearly more appropriate for the trial of the proceeding, it will normally refuse a stay. If, however, the Court concludes at that stage there is some other available forum prima facie that is clearly more appropriate for trying the proceeding, it will ordinarily grant a stay unless there are circumstances by reason of which justice requires a stay should nevertheless not be granted. [27] While those propositions are directed towards an application made to stay proceedings, they are equally appropriate where a protest and an application to set aside that protest are being considered. Test applied [28] A helpful summary of factors to be taken into account in applying the Spiliada test is contained in Jefferson v Jefferson 3 as follows. (a) Whether there is jurisdiction to hear the matter in this Court in the first place. (b) Comparative cost and convenience to the parties of proceeding in each jurisdiction. (c) The location and availability of documents and witnesses. (d) A question of whether the proceedings have been issued in another country and the state of those proceedings. (e) Whether all the relevant parties are subject to a foreign jurisdiction enabling all of the issues to be resolved at one hearing. (f) Whether the law applicable to the proceeding is that of the forum. (g) The similarity of laws to those of New Zealand. 3 CIV 2009 004 001541, 3 February 2010.

(h) Any agreement submitting to this jurisdiction or any other jurisdiction. (i) The strength of the plaintiff s case. (j) The place of enforcement of the judgment. (k) The defendant s motives in objecting to the jurisdiction; for example tactical advantages. (l) Procedural advantages in one jurisdiction or the other. [29] Comments about those factors that are relevant follow. I have already noted the proceeding was served in New Zealand and that Mr Buenaventura and Ms Burgess both live here. [30] Proceedings have not been filed in the Philippines, so that Mr Buenaventura would have to go to the expense of starting again there if the appearance succeeds. Although there was no evidence about the comparative cost of proceedings in New Zealand as compared to the Philippines, I consider it would be more costeffective for the parties to litigate here. [31] If the present proceeding continues there will be a cost saving in not having to issue new proceedings in the Philippines. Neither party will incur litigation-related expense in the Philippines. Not having to travel to the Philippines must represent a significant saving, especially where both parties acknowledged they have limited funds and said they could not afford legal representation for the present argument. Finally, the New Zealand proceeding will be disposed of sooner than would be the case if fresh proceedings had to be issued in the Philippines. Given both parties live in New Zealand, and are the main witnesses, the convenience of litigating here favours New Zealand. [32] The location of documents and witnesses favours New Zealand. There are no documents recording this transaction, but there are emails that, even if written after the event, may tend to show what happened. Those emails are readily available in New Zealand. As has already been noted, the main witnesses will be Mr Buenaventura and Ms Burgess and they are both here.

[33] Even if some relevant evidence needs to be taken from witnesses in the Philippines, I am not convinced that task will be difficult, or is enough to sway this decision in favour of the Philippines as the appropriate forum. [34] No evidence or submissions were provided about the similarities, or dissimilarities, between the law in the Philippines and the law in New Zealand. In those circumstances it is reasonable, in my view, to consider that the relevant law is the same or essentially the same. It is difficult to see that there would be material differences in the law of the Philippines compared to New Zealand law that would impact on determining whether a loan was made and, if it was made, any obligation for repayment. Consequently, Ms Burgess is not in any worse legal position if proceedings are allowed to continue here. [35] The next factor is to consider the strength of Mr Buenaventura s case. Not too much should be said about the strength of his case in the absence of evidence from both parties and the opportunity to explore the issues, including Ms Burgess statement that the claim is fabricated and untrue. However, there is no dispute money changed hands and a part repayment occurred. In that respect, Mr Buenaventura has an advantage. [36] As to enforcement, if Mr Buenaventura obtains judgment against Ms Burgess, any enforcement action will probably be taken in New Zealand. While Ms Burgess protest touched on the possibility her stay in New Zealand might be temporary, I have noted she remains here and all indications, from the materials provided, suggest she anticipates being here for some time. There is no dispute Ms Burgess is in a relationship in New Zealand, owns or may be acquiring assets in New Zealand, and may be bringing her family to New Zealand. If Mr Buenaventura is successful, the place of enforcement of any judgment he obtains is most likely to be New Zealand. [37] There is no basis for requiring Mr Buenaventura to issue proceedings in the Philippines and, if he succeeds, having to go to the time, effort and cost of attempting to transfer a judgment from the Philippines to New Zealand to be enforced.

[38] Ms Burgess may have apprehended a tactical advantage if Mr Buenaventura is unsuccessful in this application because he may be dissuaded from issuing new proceedings in the Philippines. Ms Burgess motives in filing an appearance may be relevant but not much weight should be given to this factor. Conclusion [39] Weighing these matters up, I am satisfied New Zealand is the most appropriate place for this dispute to be decided. Ms Burgess has not persuaded me that the Philippines is a more appropriate place for this claim to be tried. [40] In making that decision I have imposed an onus on Ms Burgess to show why this Court is not the most appropriate forum for a trial, where the Court clearly has jurisdiction and the plaintiff and defendant are both in New Zealand. [41] In case I am wrong about Ms Burgess having that onus, I would have reached the same conclusion, for the same reasons, if Mr Buenaventura had to establish New Zealand is the most appropriate forum. [42] Mr Buenaventura s application to set aside Ms Burgess protest is granted. [43] Ms Burgess has 15 working days from the date of this decision to file and serve her statement of defence. [44] There is no order for costs. K G Smith District Court Judge