IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE	
CIV-2019-404-2420
[2020] NZHC 2032	

BETWEEN	SEQUITUR HOTELS PTY LIMITED
First Plaintiff/First Respondent

SEQUITUR CAPITAL PTY LIMITED
Second Plaintiff/Second Respondent	
AND	SATORI HOLDINGS LIMITED
First Defendant/First Applicant

ANDREW HUGH GRIFFITHS
Second Defendant/Second Applicant	

Hearing:	25 June 2020	
Counsel:	A S Olney and K P Woodward for Plaintiffs/Respondents
A M Glenie and A C van Ammers for Defendants/Applicants	
Judgment:	12 August 2020	

JUDGMENT OF WHATA J

This judgment was delivered by me on 12 August 2020 at 10.00 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ………………………….

Solicitors:	Wilson Harle, Auckland
Glenie Legal, Limited, Auckland

SEQUITUR HOTELS PTY LIMITED v SATORI HOLDINGS LIMITED [2020] NZHC 2032 [12 August 2020]

[1]	The plaintiffs (collectively, Sequitur) are Australian companies. The directors of Sequitur, Mr and Mrs Fell, are also Australian. The first defendant, Satori Holdings Limited (Satori), is a company registered in both New Zealand and Fiji (as Satori Holdings Pte Limited). The second defendant, Mr Griffiths, is a New Zealand citizen, but a resident of Fiji. He is also a director of Satori. Proposed defendants include,  Mr Palmer, a New Zealand resident; and NJA Resorts Pte Limited (NJA Resorts), a company owned by Mr Palmer and registered in New Zealand and Fiji.

[2]	In December 2017, Sequitur purchased beneficial interests in a joint venture to own, develop, and operate a Fiji island resort called the Six Senses (the Resort). The terms of this purchase are recorded in the Joint Venture Interest and Capital Contribution Deed (the JVICC Deed). Clause 9.5 of the Deed provides that “the parties irrevocably submit to the non-exclusive jurisdiction of the Courts of New Zealand”.

[3]	The joint venture has not gone well. After talks between the joint venture parties broke down, Sequitur issued proceedings in Fiji claiming material non- disclosure about project funding and relationship issues. A without notice Mareva injunction freezing all of Satori’s and Mr Griffiths’ assets, together with Anton Piller orders, were obtained on 22 October 2019. Proceedings were then filed in New Zealand in early November 2019, claiming that Sequitur were misled about key operating costs of the Resort. The Fiji orders were subsequently discharged by the Fijian High Court in April 2020. The Judge was highly critical of Sequitur’s application for failure to properly disclose all relevant information. Those proceedings are ongoing.

[4]	Satori and Mr Griffiths contend that:

(a)	Leave was required and  not obtained to bring proceedings against  Mr Griffiths in New Zealand;

(b)	claims against them based on the Fair Trading Act 1986 (FTA) and the Financial Markets Conduct Act 2013 (FMCA) cannot apply to them in

Fiji and/or in relation to the alleged conduct which occurred in Fiji, and that, in any event;

(c)	Fiji is the proper forum for the dispute.

[5]	I must therefore answer the following questions:

(a)	Was leave required to commence proceedings against Mr Griffiths in New Zealand?

(b)	Are the FTA and FMCA claims extra-territorial?

(c)	Is New Zealand forum conveniens?

Application to add defendants

[6]	Sequitur has applied to add both Mr Neil Palmer and his company, NJA Resorts PTE Limited, as additional defendants. Sequitur’s application was accompanied by a draft amended statement of claim. The application to add those defendants is granted unopposed, and I proceed on the basis that the draft amended statement of claim sets the proper frame for my evaluation.

Background

[7]	The background facts are largely agreed.1

The joint ventures

[8]	The Resort forms part of a mixed-use development situated on Malolo Island, known as the Vunabaka development. It was started by four New Zealand businessmen, including Mr Griffiths, as part of an unincorporated joint venture (VBJV). A New Zealand registered company, Vunabaka Bay Fiji Limited (VBFL), holds the assets of this joint venture as a bare trustee for the joint venture partners,

1	The following narrative is largely drawn from the defendants’ summary of the background in their submissions, as well as the amended statement of claim. It was not disputed by Sequitur, subject to matters of clarification it identified (also not disputed), which have been included.

including Satori. VBFL also administers and services the common property and communal facilities of the Vunabaka development. VBFL is incorporated in New Zealand, has five directors, including Mr Griffiths, and one shareholder, Mr Keith Gosling (a New Zealand resident).

[9]	A second joint venture, the Island Grace Joint Venture (IGJV), was formed to own, develop, and operate the Resort. It is governed pursuant to the Island Grace Joint Venture Agreement, originally signed in 2013, and later amended (IGJVA). Like the VBJV, the IGJVA provides New Zealand law governs the joint venture, and that the joint venture parties submit to the jurisdiction of New Zealand. The assets of the IGJVA are held by Island Grace Fiji Limited (IGFL) on bare trust for the joint venture parties. IGFL was incorporated in New Zealand, but it is also registered as a foreign company in Fiji. It has seven directors, including Mr Griffiths and Mr Palmer; and one shareholder, Satori.

[10]	The Resort is located on land subleased from VBFL. Owners of residences in the Vunabaka development are entitled to use the Resort’s facilities and IGFL holds exclusive rights to rent out the Vunabaka residences, which it has assigned to Sustainable Luxury Holdings (BVI) Limited, who is the operator of the Resort through a related company (Six Senses). The IGJV’s sole undertaking is the Resort. It does not carry on any other business in or outside of Fiji.

[11]	Mr Griffiths was one of the original parties to the IGJVA. Satori became a joint venture party on 20 November 2015 (by deed of accession). By late 2017, the parties to, and participating interests in, the IGJV were as follows: Satori – 50 per cent; NJA Resorts (Neil Palmer) – 35 per cent; and Sustainable Luxury Holdings (BVI) Limited – 15 per cent (the Old IGJV parties).

Capital raising

[12]	In 2016, Mr Griffiths and Mr Palmer were engaged by IGFL to manage all aspects of the development of the Resort, including, if required, the raising of equity. In October 2017, the Old IGJV parties began looking for a long-term capital partner to contribute FJ$20m (NZ$14.2m) for a 50 per cent participating interest in the joint venture. As part of this process, on 5 October 2017, Mr Palmer emailed Mr Fell the

investment presentation IGFL had been providing to all potential investors. This was followed by a non-disclosure agreement and a financial model built by SURF, a specialist hospitality consulting firm (the financial model). Mr Griffiths also set up an online data-room containing further information relevant to the development, including the financial model and an independent valuation of the Resort that was prepared by Pacific Valuations Limited, dated 27 September 2017 (the valuation). It is common ground that none of the above actions were taken in New Zealand and none of the communications were sent either to or from New Zealand.

Sequitur joins the IGJV

[13]	Mr and Mrs Fell decided to invest in the IGJV and, on 7 December 2017, Satori, Sequitur Capital Pty Limited (Sequitur Capital), and IGFL entered into the JVICC Deed under which Sequitur Capital (or nominee) agreed to make two capital contributions to the IGJV. Both contributions totalled FJ$20m, including FJ$16m to be paid in full on completion (the capital contribution); and $FJ4m, payable after completion, and subject to confirmation being obtained from the Fiji Revenue and Customs Authority that the IGJV would gain certain tax exemptions (the additional capital contribution). In return for the capital contribution, IGFL agreed to issue a 50 per cent proportionate interest in the IGJV to Sequitur Capital (or nominee), and to hold that interest on trust for Sequitur Capital (or nominee). Satori also gave certain warranties, including the warranty in cl 8.2(f), which states:

To the best of its knowledge, all representations, information, disclosures, and statements made by it or its agents to Sequitur during the course of negotiating and agreeing this Deed are true and accurate and are not misleading in any material particular, whether by inclusion of misleading information or omission of material information.

[14]	This warranty was given at the date of execution – 7 December 2017 (the first warranty date); and repeated on the date of completion – 25 April 2018 (the second warranty date).

[15]	Completion of the JVICC Deed was effected through a series of steps in late April 2018. On 21 April 2018, Sequitur Capital nominated Sequitur Hotels Pty Limited (Sequitur Hotels) to undertake the IGJV investment, and the IGJVA was amended to reflect the admission of Sequitur Hotels into the IGJV. Sequitur Hotels

then confirmed that the conditions precedent set out in the JVICC Deed had been either satisfied or waived and IGFL (on behalf of the Old IGJV) gave an undertaking that, following the capital contribution, the IGJV’s total debt would not exceed:

(a)	FJ$37m within five days of completion of Sequitur’s initial investment of $16m; and

(b)	FJ$33m within five days of completion of Sequitur’s additional investment of FJ$4m (the debt limit undertaking).

[16]	Then, on 25 April 2018, Sequitur paid the balance of the capital contribution into IGFL’s Fijian bank account. Sequitur thereby acquired a 50 per cent proportionate interest in the IGJV, whereby IGFL issued that interest and held it on trust for Sequitur. As a result, as at 25 April 2018, the interests of the IGJV parties in the IGJV were as follows: Sequitur Hotels – 50 per cent; Satori – 25 per cent; NJA Resorts – 17.5 per cent; and Sustainable Luxury Holdings (BVI) Limited (for Six Senses) – 7.5 per cent. It is common ground that Mr Fell, Mr Palmer, and Mr Griffiths were all in Fiji on 21 April 2018 and 25 April 2018.

Disagreement

[17]	Later in 2018, a disagreement arose between Sequitur and the Old IGJV parties. The IGJV’s total debt had exceeded the FJ$33m limit in the debt limit undertaking. Ultimately, the issue then in dispute was settled. On 19 January 2019, the IGJV parties executed an amended and restated joint venture agreement (the ARJVA), pursuant to which Sequitur Hotels obtained (amongst other things) an increase in its share in the IGJV from 50 per cent to 52 per cent, valued at FJ$800,000. The interests of the IGJV parties in the IGJV are currently as follows: Sequitur Hotels
– 52 per cent; Satori – 24 per cent; NJA Resorts – 16.75 per cent; and Six Senses –
7.25 per cent.

The Fiji proceedings

[18]	Unfortunately, the relationship between Sequitur, Satori, and Mr Griffiths continued to sour. In October 2019, Sequitur filed a statement of claim in the High

Court of Fiji seeking relief against both Satori Holdings Pte Limited and Mr Griffiths. As noted above, Sequitur also sought and obtained an ex parte Mareva injunction and Anton Piller orders, which were subsequently discharged by the High Court of Fiji in April 2020.

[19]	The judgment of that Court helpfully describes the gist of the Fiji proceedings in this way:

1. … [Sequitur] commenced proceedings by writ of summons against [Satori] and [Mr Griffiths] seeking damages of FJ$11,215,998 and four alternative causes of action are pleaded for misleading and deceptive conduct in trade and for breach of contractual warranties. The conduct and warranties were said to have taken place or were given by Satori and Mr Griffiths in the course of and as part of negotiations and agreement between the parties for the investment by [Sequitur] in 2018 in a holiday resort on Malolo Island off Denarau.

[20]	The Court elaborated:

16.     In this proceeding [Sequitur says] that [Satori and Mr Griffiths] were in breach of the warranty referred to [at cl8.2(f)] or were guilty of misleading and deceptive conduct (presumably in breach of the Fijian Competition and Consumer Commission Act 2010) in that they had:

i	made representations, or provided information, statements and disclosures as to the Island Grace Joint Venture’s ability to:

•	meet development costs from its own resources, and

•	apply to repay debt the money paid by the plaintiffs that had no reasonable basis or were untrue and inaccurate.
ii	failed to disclose to [Sequitur] relationship difficulties that [Satori and Mr Griffiths] and the Island Grace Joint Venture had with the Vunabaka Bay Joint Venture and its participants that amounted to a fundamental breakdown of trust and confidence between the parties that it was no longer tenable of the Vunabaka Bay Joint Venture to continue. This would in turn profoundly affect the success of the resort within the wider development, dependant as it was on the use of essential infrastructure and facilities owned by that joint venture.

[21]	The Fiji proceedings are ongoing, but Satori and Mr Griffiths have filed an application for a stay of those proceedings, pending final determination of the present application.

The New Zealand proceeding

[22]	On 5 November 2019, Sequitur sent a copy of the New Zealand pleadings to the solicitors acting for Satori and Mr Griffiths. There is a dispute about whether this constituted effective service on Mr Griffiths and, on 10 December 2019, Mr Griffiths filed an appearance under protest to jurisdiction. I return to that issue below.

[23]	Sequitur’s draft amended statement of claim identifies six heads of claim:

(a)	 The Project Funding claim: Funds invested by Sequitur in the IGFL joint venture were only partially used to retire external debt as agreed, while about FJ$4.8m of the invested funds was misapplied by the defendants to meet unfunded project costs as a result of a project funding deficit not previously identified or disclosed to Sequitur.

(b)	 The Electricity Claim: The defendants had but did not disclose information indicating that the cost of expected electricity consumption of the Resort would be significantly higher than those projected in the financial model, the adverse impact of which is calculated at FJ$6,699,323.

(c)	 The Insurance Claim: The defendants had but did not disclose information that indicated that the expected cost of insuring the Resort were about FJ$5,263,320 higher than that projected in the financial model.

(d)	 The Rent Claim: Mr Griffiths and Mr Palmer had but did not disclose information that indicated that expected rental expenses for the Resort would be greater than those projected in the financial model. The cumulative adverse impact of the rent cost on earnings over a ten-year period is estimated at FJ$52,221,950, the present value of which is FJ$3,464,107.

(e)	 The Boat Transfers Claim: The defendants had but did not disclose information about boat transfer costs with an adverse present value impact on the IGFL joint venture of FJ$2,058,820.

(f)	 The Inclusion of Residences Claim in the Hotel Inventory Claim: The defendants had but did not disclose information indicating that the rate of inclusion of new Vunabaka development residences in the Resort’s rental inventory would be much slower than had previously been advised, resulting in an adverse present value impact of FJ$14,701,852.

[24]	Sequitur then pleaded the following causes of action in respect of the six heads of claim:

(a)	First, against Satori (and the Satori Trust) for breach of the warranty.

(b)	Second, against Satori (and the Satori Trust) for pre-contractual misrepresentation under the Contract and Commercial Law Act 2017 (CCLA).

(c)	Third, against all defendants for misleading and deceptive conduct in breach of s 9 of the FTA and, in particular, that this was conduct:

(a)	in trade;

(b)	in relation to the supply of goods or services in New Zealand, namely a beneficial interest in the shares of IGFL, including a right for Sequitur to call for legal ownership of that share to be transferred to it;

(c)	of the Original IGFL JV Parties prior to Sequitur’s investment, including Satori, which is incorporated, resident and carrying on business in New Zealand; and

(d)	that Mr Griffiths, Mr Palmer, and NJA Resorts aided, abetted counselled, or procured and/or were directly or indirectly knowingly concerned in, or party to.

(d)	Fourth, against all defendants for misleading and deceptive conduct in breach of s 19 of the FMCA and, in particular, that this was conduct:

(a)	in trade;

(b)	of the Original IGFL JV Parties prior to Sequitur’s investment, including Satori, which is incorporated, resident and carrying on business in New Zealand;

(c)	that Griffiths, Mr Palmer, and NJA Resorts aided, abetted counselled, or procured and/or were directly or indirectly knowingly concerned in, or party to; and

(d)	in relation to a dealing in a financial product, namely an equity security being an equitable interest in shares in IGFL.

[25]	The total amount of the loss claimed is $FJ19,266,106.

Was leave required to commence proceedings against Mr Griffiths?

[26]	Mr Griffiths submits that, because he is resident in Fiji, leave was required and not obtained to serve him out of New Zealand, pursuant to r 6.28 of the High Court Rules 2016 (HCR). That rule relevantly states:

6.28	When allowed with leave

(1) In any proceeding when service is not allowed under rule 6.27, an originating document may be served out of New Zealand with the leave of the court.

…

(5)	The court may grant an application for leave if the applicant establishes that—

(a)	the claim has a real and substantial connection with New Zealand; and

(b)	there is a serious issue to be tried on the merits; and

(c)	New Zealand is the appropriate forum for the trial; and

(d)	any other relevant circumstances support an assumption of jurisdiction.

[27]	Rule 6.27 allows for service overseas without leave, most relevantly in the following cases:

6.27	When allowed without leave

…

(2) An originating document may be served out of New Zealand without leave in the following cases:

…

(h)	when any person out of the jurisdiction is—

(i)	a necessary or proper party to proceedings properly brought against another defendant served or to be served (whether within New Zealand or outside New Zealand under any other provision of these rules), and there is a real issue between the plaintiff and that defendant that the court ought to try; or

(ii)	a defendant to a claim for contribution or indemnity in respect of a liability enforceable by proceedings in the court:

…

(j)	when the claim arises under an enactment and either—

(i)	any act or omission to which the claim relates was done or occurred in New Zealand;

…

(iii)   the enactment applies expressly or by implication to  an act or omission that was done or occurred outside New Zealand in the circumstances alleged;

…

[28]	He also submits that, because Sequitur did not obtain leave, rr 5.49(6) and 6.29(1) are triggered. Rule 5.49(6) empowers the Court to dismiss a claim for lack of jurisdiction. Rule 6.29(1) requires that the Court must dismiss the proceeding unless the party effecting service establishes:

(a)	that there is –

(i)	A good arguable case that the claim falls wholly within 1 or more of the paragraphs of rule 6.27; and

(ii)	The court should assume jurisdiction by reason of the matters set out in rule 6.28(5)(b) to (d); or

(b)	that had the party applied for leave under rule 6.28 –

(i)	leave would have been granted; and

(ii)	it is in the interests of justice that the failure to apply for leave should be excused

[29]	To elaborate, Mr Griffiths contends, since there is no good arguable case that any of the claims fall within any of the paragraphs of r 6.27, the Court should not assume jurisdiction, and that it is not in the interests of justice that failure to apply for leave should be excused.

[30]	Sequitur responds that leave was not required because Mr Griffiths was in fact validly served in New Zealand by agreement, pursuant to r 6.7, which states:

6.7	Service under agreement

Service by method agreed to in writing by a party is sufficient service on that party.

[31]	Sequitur also submits that r 6.29(3) is thus engaged, which provides that if service is validly made “in New Zealand”, but New Zealand is not the appropriate forum for trial of the action, Mr Griffiths may apply for stay or dismissal under r 15.1. Sequitur further submits, even if Mr Griffiths was served out of New Zealand, Sequitur had a good arguable case that the claim against Mr Griffiths falls within r 6.27(2)(h), (j)(ii), and (iii), and that the Court is right to assume jurisdiction.

[32]	Mr Glenie responds, however, that the submission that service was effected in New Zealand is disingenuous, noting:

(a)	It is unclear whether the authorisation in fact related to Mr Griffiths.

(b)	There was no agreement that Mr Griffiths had been served inside New Zealand and, at most, it was an acknowledgment that through delivery of the documents, Mr Griffiths had been served out of New Zealand.

(c)	The notice of proceedings recorded that Sequitur relied on r 6.27 to serve the proceedings overseas, so Sequitur could not have assumed that Harmos Horton Lusk was authorised to accept service in New Zealand.

(d)	The email of 5 November 2019 was not an acknowledgement of service.

(e)	The notice of opposition to the protest  to jurisdiction did  not refer to r 6.7.

Assessment

[33]	Mr Griffiths was validly served within New Zealand. Relevantly:

(a)	From May 2019, the parties were engaged in without prejudice negotiations.

(b)	On 15 August 2019, Mr Griffiths’ then solicitor, Mr Starrenburg of Harmos Horton Lusk, confirmed by email to Sequitur’s then solicitor, Mr Graeme Quigley (of Webb Henderson):

If you [sic] client does not wish to meet on the above basis, then I confirm that we are authorised to accept service in New Zealand.

(c)	On 5 November 2019, Mr Starrenburg sent an email to Webb Henderson stating:

I confirm receipt of service of the proceedings.

[34]	The logical inference to draw from the 15 August email is that Mr Starrenburg was authorised to accept service for a defendant not resident in New Zealand, otherwise the reference to “accept service in New Zealand” would have been unnecessary. Furthermore, whatever the content of the notice of proceedings, the email cannot sensibly be read as  authorisation  to  receive  the  proceedings  as  if Mr Griffiths is served out of New Zealand. It is what it says – it is authorisation to “accept service in New Zealand”.

[35]	The subsequent confirmation of receipt of the “service of the proceedings” is also consistent with an agreement to accept service in New Zealand. There is no evidence from Mr Starrenburg to suggest otherwise. Furthermore, while r 6.7 was not mentioned in the notice of opposition, the fact of service on Mr Griffiths’ solicitor in New Zealand was noted. Rule 6.7 was therefore engaged. Service with or without leave pursuant to rr 6.27 and 6.28 was not required. It follows that Mr Griffiths has been validly served in New Zealand.

[36]	However, for reasons that will become apparent, had I found that Mr Griffiths was not properly served, and that leave was required to effect service on him personally, I would have dismissed the action against him. In brief, there is no good arguable case that Mr Griffiths is personally liable under either the FTA or the FMCA for conduct in New Zealand.2 Also, in any event, Fiji is the forum conveniens in terms of the claims against him personally.

Are the FTA and FMCA claims extra-territorial?

[37]	Satori and Mr Griffiths seek to have the third and fourth causes of action based on the FTA and the FMCA struck out, pursuant to r 15.1. They claim the impugned conduct occurred outside of New Zealand, and that the extra-territorial reach of those statutes does not extend to either of them. The threshold principles for strike out are well known. These are as follows:3

(i)	A striking-out application proceeds on the basis that the facts pleaded in the statement of claim are true, whether or not they are admitted. This does not extend to pleaded allegations which are entirely speculative and without foundation.

(ii)	The cause of action or defence must be clearly untenable.

(iii)	The jurisdiction is to be exercised sparingly, and only in clear cases where the Court is satisfied it has the requisite material.

2	The reference here to “good arguable case” is as per the meaning given to that phrase in Wing Hung Printing Company Ltd v Saito Offshore Pty Ltd [2010] NZCA 502 at [33] [Wing Hung]: “The good arguable case test required at this stage does not relate to the merits of the case but to whether the claim falls within one or more of the circumstances under r 6.27 in which service may be effected overseas without leave”. And further, at [41]: “It is clear however that a good arguable case test does not require the plaintiff to establish a prima facie case. This recognises that the disputed questions of fact cannot be readily resolved on affidavit evidence. On the other hand there must be sufficiently plausible foundation established that the claims fall within one or more of the headings in r 6.27(2)” (footnotes omitted).
3	Attorney-General v Prince [1998] 1 NZLR 262 (CA) at 267, endorsed by the Supreme Court in Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [33] per Elias CJ and Anderson J. The principles were more recently applied by Katz J in Ward v Lochore [2019] NZHC 1314 at [17].

(iv)	The jurisdiction is not excluded by the need to decide difficult questions of law, requiring extensive argument.

(v)	The Court should be particularly slow to strike out a claim in a developing area of the law.

[38]	It is common ground that the relevant impugned conduct did not occur in New Zealand. This means that the FTA and the FMCA only apply if ss 3 and 33 of those Acts (respectively) are engaged. Section 3 of the FTA states:

This Act extends to the engaging in conduct outside of New Zealand by any person resident or carrying on business in New Zealand to the extent that such conduct relates to supply of goods or services, or the granting of interests in land, within New Zealand.

[39]	Section 33 of the FMCA states:

33	Territorial scope of sections 19 to 23

(1)	Sections 19 to 23 apply to—

(a)	conduct in New Zealand; and

(b)	conduct outside New Zealand by any person resident, incorporated, registered, or carrying on business in New Zealand to the extent that that conduct relates to dealing in financial products, or the supply of a financial service, that occurs (in part or otherwise) within New Zealand.

(2)	Sections 19 to 23 also apply to a restricted communication that is distributed or to be distributed to a person outside New Zealand by any person resident, incorporated, registered, or having a principal place of business in New Zealand.

(3)	Despite anything to the contrary in Part 8, only the FMA may commence a proceeding or make an application under that Part in relation to conduct to which this Part applies by virtue of subsection (2).

(4)	In this section, registered means registered under the Financial Service Providers (Registration and Dispute Resolution) Act 2008.

[40]	With the benefit of argument, to resolve the extra-territoriality issue, I must answer the following questions:

(a)	Is the impugned conduct attributable to Satori?

(b)	Is Satori “resident” or “carrying on business” in New Zealand?

(c)	Does the conduct relate to the supply of goods or services in New Zealand?

(d)	Does the conduct relate to dealing in financial products or the supply of a financial service?

(e)	Is Mr Griffiths resident or carrying on business in New Zealand?

Assessment

[41]	As stated by Tipping J (speaking also for Blanchard, McGrath and Wilson JJ) in Poynter: 4

[T]he courts should not treat legislation as having extraterritorial effect unless and then only to the extent Parliament has made it clear by means of express words or necessary implication.

[42]	By extra-territorial effect, Tipping J meant “with the effect that someone which has not personally done anything within New Zealand and is not present in New Zealand is nevertheless able to be subjected to it”.5 Two important principles call for legislative and judicial restraint in relation to the extra-territorial effect of this kind, namely:6

(a)	Persons who reside overseas and are not present in New Zealand will not lightly be subjected to the jurisdiction of a New Zealand court; and

(b)	international comity and respect for sovereignty of foreign states in the regulation of conduct occurring within their territory.

[43]	With the guidance afforded by Poynter in mind, I am satisfied it is seriously arguable that Satori is subject to the express extra-territorial reach afforded by s 3 of

4	Poynter v Commerce Commission [2010] NZSC 38, [2010] 3 NZLR 300 at [38].
5	At [41].
6	At [30]; citing Harris v Commerce Commission [2009] NZCA 84, (2009) 12 TCLR 379 at [20].

the FTA and s 33 of the FMCA. Conversely, I am not satisfied it is seriously arguable that those sections apply to Mr Griffiths personally.

The conduct may be attributable to Satori

[44]	Section 45 of the FTA states:

45	Conduct by servants or agents

(1)	Where, in proceedings under this Part in respect of any conduct engaged in by a body corporate, being conduct in relation to which any of the provisions of this Act applies, it is necessary to establish the state of mind of the body corporate, it is sufficient to show that a director, servant or agent of the body corporate, acting within the scope of that person’s actual or apparent authority, had that state of mind.

(2)	Any conduct engaged in on behalf of a body corporate—

(a)	by a director, servant, or agent of the body corporate, acting within the scope of that person’s actual or apparent authority; or

(b)	by any other person at the direction or with the consent or agreement (whether express or implied) of a director, servant, or agent of the body corporate, given within the scope of the actual or apparent authority of the director, servant or agent—

shall be deemed, for the purposes of this Act, to have been engaged in also by the body corporate.

(3)	Where, in a proceeding under this Part in respect of any conduct engaged in by a person other than a body corporate, being conduct in relation to which a provision of this Act applies, it is necessary to establish the state of mind of the person, it is sufficient to show that a servant or agent of the person, acting within the scope of that person’s actual or apparent authority, had that state of mind.

(4)	Any conduct engaged in on behalf of a person other than a body corporate—

(a)	by a servant or agent of the person acting within the scope of that person’s actual or apparent authority; or

(b)	by any other person at the direction or with the consent or agreement (whether express or implied) of a servant or agent of the first-mentioned person, given within the scope of the actual or apparent authority of the servant or agent—

shall be deemed, for the purposes of this Act, to have been engaged in also by the first-mentioned person.

(5)	A reference in this section to the state of mind of a person includes a reference to the knowledge, intention, opinion, belief or purpose of the person and the person’s reasons for that intention, opinion, belief or purpose.

[45]	Section 536 of the FMCA similarly provides:

536 Conduct of directors, employees, or agents attributed to body corporate or other principal

(1)	Conduct engaged in on behalf of a body corporate by any of the following must be treated, for the purposes of this Act, as having been engaged in also by the body corporate:

(a)	a director, employee, or agent of the body corporate, acting within the scope of his, her, or its actual or apparent authority:

(b)	any other person at the direction or with the consent or agreement (whether express or implied) of a director, employee, or agent of the body corporate, given within the scope of the actual or apparent authority of the director, employee, or agent.

(2)	Conduct engaged in on behalf of a person other than a body corporate
(A) by any of the following must be treated, for the purposes of this Act, as having been engaged in also by A:

(a)	an employee or agent of A acting within the scope of his, her, or its actual or apparent authority:

(b)	any other person at the direction or with the consent or agreement (whether express or implied) either of A or of an employee or agent of A, given within the scope of the actual or apparent authority of the employee or agent.

[46]	As stated by the Court of Appeal in Visy, a body corporate “must act through actors comprising its directors or officers, and servants or agents of the body corporate”.7 As Mr Griffiths is a director of Satori and he (together with Mr Palmer) engaged in the alleged misleading conduct in issue, to the apparent benefit of Satori, prima facie, there is an arguable basis for attributing his conduct to Satori, at common law and pursuant to s 45 of the FTA and s 536 of the FMCA.

[47]	Satori contends, however, that because Mr Griffiths’ conduct occurred outside of New Zealand, his conduct cannot be attributable to Satori either at common law, or under either the FTA or the FMCA. Satori also says that, in any event, Mr Griffiths

7	Commerce Commission v Visy Board Pty Ltd [2012] NZCA 383 at [13] [Visy].

was acting as an agent for IGFL, not Satori, because he was only paid by IGFL. Poynter is cited as authoritative on the issue of attribution. The Supreme Court there said that neither the common law nor the agency and conspiracy provisions of the Commerce Act 1986 could be invoked to make Mr Poynter (an Australian resident) liable for the conduct of others in New Zealand.8 The Court made clear that the agency provision of the Commerce Act, s 90, which mirrors the present provisions, did not extend the extra-territorial reach of that Act. Rather, only s 4 (the equivalent of s 3 of the FTA and s 33 of the FMCA) could do that. The effect of this was that Mr Poynter’s overseas conduct could not be brought within the Act’s scope, unless s 4 extended to his actions, and that Court found that it could not.9

[48]	The following passage taken from Poynter helpfully summarises the position:

[78] An Act of Parliament should not be held to have extraterritorial effect unless that effect is signalled by express language or by necessary implication. A necessary implication is not the same as a reasonable implication. When, as in this case, Parliament has stated expressly the circumstances in which an Act is to have extraterritorial effect, it would be most unusual if the Act was meant to provide for additional circumstances in which that was so, but this was left to a process of implication. It is common ground that the circumstances of the present case do not fall within s 4 of the Commerce Act, that being the section which expressly provides for the Act’s extraterritorial reach. Mr Poynter cannot properly be regarded as having himself engaged in conduct in New Zealand either pursuant to s 90 of the Act or pursuant to s 80(1)(f), they being, respectively, the sections dealing with attribution of conduct by means of the relationships of employer and employee and principal and agent; and liability as a result of conspiring to contravene the Act. Nor can Mr Poynter properly be regarded as having himself engaged in conduct in New Zealand by reason of some expanded concept of agency or through the common law principles that apply to extraterritorial conspiracies.

[49]	However, in Poynter, the Supreme Court found that those persons acting in New Zealand were not acting as agents for Mr Poynter personally, but for their company. So, there was in fact no relevant agency at all. It is also important to note that Satori is the focal point of the present analysis, not Mr Griffiths. If Satori is found to be carrying on business in New Zealand (and therefore found to be present in New Zealand), and the “outside” conduct of one of its agents (Mr Griffiths) relates to either the supply of goods or the provision of services in New Zealand (an action normally subject to New Zealand law), then it is seriously arguable that Mr Griffiths’ “outside”

8	Poynter v Commerce Commission, above n 4, at [46]-[48].
9	At [60] and [78].

conduct falls within the extra-territorial reach of s 3 of the FTA and s 33 of the FMCA, making Satori liable for that conduct. None of the points of principle or policy raised by the Supreme Court about extra-territorial reach obviously apply here to require a more restrained approach, assuming Satori is found to be carrying on business in New Zealand, and its conduct related to goods, services or financial products supplied in New Zealand.

[50]	I also agree with Mr Olney that the extent to which Mr Griffiths was acting for Satori and/or IGFL is properly a matter for a contested hearing. It is seriously arguable, as Mr Olney suggests, that IGFL, as bare trustee, was at all times acting for the joint venture parties, including Satori, which stood to benefit directly from the transaction with the Fells. So, even if Mr Griffiths was acting for IGFL, he may have been acting also as an agent for Satori for the purposes of both the FTA and FMCA.

Satori may have been carrying on business in New Zealand

[51]	I turn then to examine whether Satori was carrying on business in New Zealand at the key times. In this regard, whatever its day-to-day activities in Fiji, Satori was plainly present in New Zealand and amenable to the application of New Zealand regulation. As Mr Olney aptly submitted, Satori is registered here; is a trustee of the Satori Trust, so the Commissioner of Inland Revenue must have been satisfied it carried on business in New Zealand; one of its two directors is based in New Zealand; its other director (Mr Griffiths) is a New Zealand citizen; and Deloitte Auckland has filed its returns in New Zealand since 2017. Furthermore, it is at least arguable that Satori held itself out as being a New Zealand-based business, given its registration; its New Zealand-born directors; and cl 9.5 of the Deed dealing with jurisdiction. This factor further supports a finding that Satori was carrying on business in New Zealand.10

10	Customer perception was identified by the Court in Visy, above n 7, at [105].

The conduct may have related to the supply of goods and or providing financial products

[52]	It is also seriously arguable that the impugned conduct relates to the supply of goods and/or the provision of financial products in New Zealand. That is, the supply of beneficial interests formerly held by Satori as a New Zealand registered company:

(a)	In the VBJV, which correspond to beneficial interests in shares in VBFL (another New Zealand registered company);

(b)	in the IGFL joint venture, which correspond to beneficial interests in shares of IGFL (another New Zealand registered company); and

(c)	are an equity security in terms of ss 7 and 8 of FMCA.

[53]	I accept there are problems with these conclusions. There is some merit to  Ms van Ammers’ argument that registration as a New Zealand company per se does not necessarily mean a company is resident or carrying on business in New Zealand. It may be that New Zealand law should adopt the approach to residency adopted in Australia, namely, that only humans “reside”, and that “carrying on business” needs to be something more than fleeting or transitory, as noted by the Court in Visy.11 Furthermore, the weight of the available evidence strongly suggests that the business of Satori, VBFL, and IGFL (all of which are also registered in Fiji) is the Vunabaka development and the Resort in Fiji.

[54]	Nevertheless, the resolution of the extent to which Mr Griffiths’ actions can be attributed to Satori; the extent to which Satori, IGFL, and VBFL were and are in fact operating out of New Zealand; and the extent to which the conduct relates to the supply of goods and/or the provision of financial products within New Zealand, are seriously arguable matters and therefore are not amenable to dismissal or strike-out. Accordingly, I do not dismiss or strike out the pleadings against Satori on the grounds of extra-territoriality.

11	At [27]-[28]; citing Bray v F Hoffman-La Roche Ltd [2002] FCA 243, (2002) 118 FCR 1 at [60]-
[63] and Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd (No 2) [2012] VSC 239 at [380].

Mr Griffiths was not carrying on business in New Zealand

[55]	Turning to Mr Griffiths, as Mr Olney quite properly conceded in oral argument, in light of Poynter, Mr Griffiths cannot be sued in New Zealand as an employee or agent of, or accessory to, Satori’s activities. Mr Olney maintained, however, that some minor presence in New Zealand was sufficient to trigger the application of s 3 of the FTA and s 33 of the FMCA, which may be the case. However, Mr Olney’s claim that Mr Griffiths has a relevant presence in New Zealand was not supported by any pleading. There is no allegation or suggestion that he carried on business in New Zealand at any relevant time. Rather the pleadings only refer to his conduct in Fiji. Mr Olney submitted that the pleadings were likely to be amended. But the likely evidential basis for such amendment was not identified by Mr Onley, other than speculation based on Mr Griffiths citizenship, and the presence of the Satori and the Satori Trust in New Zealand. On such an important point, the pleadings needed to allege Mr Griffiths’ carried on business in New Zealand in some relevant way, and there needed to be at least some probative evidence to support that pleading or reasonable basis to assume that evidence of this kind would be forthcoming. While not a matter relied upon by Mr Onley, I note for completeness that Mr Griffiths says that he was in New Zealand on holiday at the time the ARJVA was executed. I do not consider this provides any foundation for a claim that Mr Griffiths carried on business in New Zealand for the purposes of either the FTA or FMCA claims.

[56]	Accordingly, because there is no pleading and no evidence that Mr Griffiths has carried on business here in New Zealand at the relevant time, or is resident here; or is otherwise subject to the express reach of either the FTA or the FMCA; I am satisfied that the claim against him personally must be struck out pursuant to r 15.1.12

Is New Zealand forum conveniens?

[57]	I turn to forum conveniens. I approach this issue on the basis that Mr Griffiths remains amenable to suit in New Zealand.

12	In this regard, I adopt the reasoning of the Supreme Court in Poynter v Commerce Commission, above n 4, at [79].

[58]	It is common ground that the principles of forum conveniens to be applied are found in Spiliada.13 As Lord Goff said in that case:

The basic principle is that 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, i.e. in which the case may be tried more suitably for the interests of all the parties and the ends of justice.

[59]	Lord Goff also laid out the threshold factors to be applied in relation to disputes about forum conveniens. These are helpfully summarised by our Court of Appeal in Wing Hung as follows:14
In considering whether another forum is more appropriate, the Court looks to the forum with which the proceeding has the most real and substantial connection. Relevant factors include issues of convenience or expense, availability of witnesses, the law governing the relevant transaction and the places where the parties resided or carried on business.

[60]	The Court of Appeal also said:15

We accept that other relevant considerations also bear on the issue of appropriate forum. These include a cautious approach already discussed to the subjection of foreigners to the jurisdiction of a New Zealand Court; whether other related proceedings are pending elsewhere; whether the New Zealand court would provide the most effective relief or whether a foreign Court is in a better position to do so; whether overseas defendants will suffer an unfair disadvantage if a New Zealand court assumes jurisdiction; and any choice of jurisdiction previously agreed by the parties.

[61]	If, as here, service has been validly effected in New Zealand, assessment of forum conveniens must be undertaken in two stages.16 First, in general, the burden of proof rests on the defendants/applicants to persuade the Court to exercise its jurisdiction to grant a stay. Second, if the Court is satisfied there is an available forum, which is prima facie an appropriate forum for the trial of an action, then the burden will shift to the plaintiffs/respondents to show there are special circumstances by reason of which justice requires the trial should, nevertheless, take place in this country.17

13	Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460 (UKHL) at 476.
14	Wing Hung, above n 2, at [45].
15	At [46].
16	Spiliada Maritime Corp v Cansulex Ltd, above n 13, at 476.
17	At 476.

Assessment

[62]	This is a complex matter. As Mr Olney submitted, several factors favour New Zealand as forum conveniens, especially in relation to Satori. First, the Vunabaka development is the brainchild of four New Zealand businessmen. Second, reflecting that fact, Satori, VBFL, IGFL, and NJA are all New Zealand registered companies. Third, the directors  of  those  companies  are  New  Zealanders  who,  except  for  Mr Griffiths, reside in New Zealand. Fourth, the contract and breach of warranty claims relate to promises made by Satori, a company registered in New Zealand (and Fiji) at the time the promises were made.

[63]	Fifth, the JVICC parties (including Satori and NJA Resorts) agreed that New Zealand law must apply and to submit to the Courts of New Zealand. This is a strong factor to be weighed in this case.18 Objectively assessed, the joint venture parties contracted in respect of a development in Fiji and certain representations and warranties were made in respect of that development. Whatever their subjective intentions, the joint venture parties clearly agreed that New Zealand should be the forum, irrespective of the Fijian dimension, to resolve any claim relating to the Deed. Satori ought not to be enabled to resile from this promise unless there are strong reasons for doing so.

[64]	Sixth, as the Court of Appeal noted in Wing Hung Printing:19

[141] Another factor favouring New Zealand as the appropriate forum is the fact that the Court has jurisdiction to deal with the Fair Trading Act claim because the reach of the legislation extends to the acts complained of. That makes New Zealand the obvious forum for the resolution of that dispute. And if that is so, and the parties will be before the New Zealand court for that purpose, that supports the proposition that New Zealand is the appropriate forum for other claims arising from the same facts which have a real and substantial connection with New Zealand.

18 Mr Olney cited the  Singaporean Court of Appeal decision in  Shanghai Turbo  Enterprises Ltd v Liu Ming [2019] SGCA 11 AT [84] as authority for the proposition that a defendant must show strong cause to justify breach of a non-exclusive clause. Ms van Ammers refers to various authorities to show that there is no such rule. It is unnecessary for me to resolve this point. I simply proceed on the basis that, given the facts of this case, strong justification is needed.
19 Wing Hung, above n 2.

[65]	Mr Glenie, however, submitted that a New Zealand statute (including both the FTA and the FMCA) may be implemented in Fiji, referring to Randerson J’s decision in Rimini. Randerson J put it this way:20
Where a statute does not expressly or by necessary implication exclude its application by foreign Courts, it must be open for foreign Courts of similar standing to apply it, subject to ordinary limitations of private international law.

[66]	Randerson J went on to say that the plaintiff’s argument that only New Zealand courts can enforce New Zealand legislation “would seriously limit the application of New Zealand statutes by the foreign courts where the parties have agreed New Zealand law is to apply and would inhibit the legitimate commercial expectations of persons and companies trading internationally”.21 But Randerson J also noted that a plaintiff seeking to enforce a foreign right can demand only those remedies recognised by the lex fori (local law), and that the local courts will look to see whether the remedies available by the lex fori harmonise with the right according to the foreign law.22

[67]	In this regard, the parties did not doubt the ability and competency of the Fijian courts to address the contractual claim according to New Zealand law. Sections 75 and 146 of the Fijian Competition and Consumer Commission Act 2010 (FCCCA), which deal with misleading and deceptive conduct and relief, are also broadly comparable with the corresponding provisions of the FTA, namely, ss 9 and 43.

[68]	Section 75 of the FCCCA states:

[COMC 57] Misleading or deceptive conduct

75	(1)	A person shall not, in trade or commerce engage in conduct that is misleading or deceptive or is likely to mislead or deceive.

[69]	Section 9 of the FTA similarly states:

9 Misleading and deceptive conduct generally

No person shall, in trade, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.

20	Rimini Ltd t/a Cleantastic International v Manning Management and Marketing Pty Ltd t/a Cleantastic International NSW [2003] 3 NZLR 22 (HC) at [45].
21	At [46].
22	At [50].

[70]	Both the FTA and the FCCCA also contain similar provisions enabling recovery of damages for misleading and deceptive conduct.23

[71]	While Mr Olney identified definitional differences in terms of the meaning of “goods” in the respective statutes and expressed concerns about the contracting out provisions of both the FTA and the FCCCA, which could have implications for the plaintiffs, I am satisfied that a statutory claim based on misleading and deceptive conduct can be ventilated, with similar likely relief,24 in Fiji. The steps already taken by the plaintiffs in Fiji exemplify that prospect. However, the same cannot be said in respect of any claim under the FMCA. Mr Glenie quite properly conceded that there is no equivalent statutory scheme in Fiji. That juridical gap is important because the reasoning in Wing Hung just mentioned is engaged in respect of any FMCA claim.

[72]	Balanced against the foregoing factors, there are strong reasons why Fiji is the proper forum, at least in respect of Mr Griffiths. Mr Griffiths’ (and Mr Palmer’s) alleged conduct is the fulcrum around which all Sequitur’s claims revolve. Paragraph 21 of the amended statement of claim exemplifies this. It states:

21 For the purpose of enabling Sequitur to assess that investment  opportunity and to induce Sequitur to invest, and with the involvement and knowledge of Mr Griffiths and Mr Palmer:

(a)	An investor presentation was provided to Dr Fell…

(b)	A financial model was provided to Dr Fell…

(c)	Additional information in relation to the investment was later disclosed to Dr Fell via and online data room (the “Data Room”)…

(d)	An independent valuation prepared by Pacific Valuations Limited dated 27 September 2017 (“Independent Valuation”) was provided in the Data Room.

[73]	Paragraph 26 also states:

23 See Fair Trading Act 1986, s 43; and Fijian Competition and Consumer Commission Act 2010, s
146. I note also that the Fijian courts appear to apply comparable Australian jurisprudence to their fair trading legislation, see for example Eggers v Blue Shield (Pacific) Insurance Ltd [2002] FJHC 314.
24 A point Mr Olney accepted in terms of the range of remedies available.

26  By an undertaking dated 21 April 2018, Mr Griffiths provided a debt limit undertaking by IGFL on behalf of the Original IGFL JV Parties whereby:

(a)	Total debt including but not limited to bank facilities and shareholder loans would not exceed FJ$37,000,000 within five (5) business days of completion of Sequitur’s initial investment of FJ$16,000,000; and

(b)	Total debt including but not limited to bank facilities and shareholder loans would not exceed FJ$33,000,000 within five (5) business days of Sequitur’s additional investment of FJ$4,000,000.

[74]	Each of the heads of loss is then attributed to actions by Mr Griffiths in Fiji:

(a)	 The Project Funding Claim: Mr Griffiths was aware of and failed to disclose key information about project funding, and misapplied Sequitur investment proceeds to unfunded project costs.

(b)	 The Electricity Claim: Mr Griffiths was aware of and failed to disclose increased electricity costs to Sequitur.

(c)	 The Insurance Claim: Mr Griffiths was aware of and failed to disclose increased insurance costs to Sequitur.

(d)	 The Rent Claim: Mr Griffiths was asked to provide, was aware of, and failed to disclose information about rental costs.

(e)	 The Boat Transfers Claim: Mr Griffiths was aware of and failed to disclose information about increased boat transfer costs.

(f)	 The Inclusion of Residences in the Hotel Inventory Claim: Mr Griffiths was aware of and failed to disclose information about the number of residences in the hotel inventory.

[75]	In reality, therefore, Mr Griffiths can expect to be required to take not only an active role in the proceedings, but the central role for all of the defendants. That will be a significant burden on him in terms of cost, time, energy, and stress. That is an important factor in this case, given that it will be a major inconvenience for him to

litigate in New  Zealand,  away from his home in Fiji.  Conversely, Sequitur (and  Mr and Mrs Fell) will be equally inconvenienced, whether the matter is heard in Fiji or in New Zealand.

[76]	It is also necessary to observe that insofar as the key matters in dispute are concerned, all tangible conduct, related business activity, and property interests appear to be located in Fiji. Illustrative of this point, the addresses for service for Satori and NJA Resorts under the JVICC are located in Fiji. All the key personnel, or dramatis personae,25 except Mr and Mrs Fell, are either located in Fiji or would prefer to have the matter heard in Fiji.26 Key assets for the purposes of enforceability of judgment also appear to be located in Fiji.

[77]	Furthermore, this is a distinctly Fijian case – it is predominantly about business conducted in Fiji, affecting Fijian land, a Fijian resort, and Fijian communities. Indeed, based on the pleadings, Mr Griffiths’ dealings with local operators are in focus, including representatives of banks, electricity suppliers, hotel staff, ferry operators, lessors and lessees. That substantial connection to Fiji is a powerful consideration when considering forum conveniens. Indeed, it seems to me that in matters directly affecting a Fijian resident and the people and communities of Fiji, including how business is to be conducted there, the principle of international comity is engaged.

[78]	In this regard, it is not at all surprising that proceedings concerning essentially the  same  subject  matter  were  first  commenced  in  Fiji.  The  desire  to  freeze  Mr Griffiths’ and Satori’s assets in Fiji was likely a driving factor.27 But the commencement of proceedings in Fiji and that desire reinforce the conclusion that Fiji is the natural forum for the dispute. It is the place where the action has “the most real

25 A description aptly used by Mr Olney in oral argument, but not in relation to this point.
26 Mr Palmer has confirmed that given his business interests in Fiji, that would be the preferable  forum for him.
27 Mr Olney suggested this was a driving reason when responding to the claim by Mr Glenie that the plaintiffs took a shock and awe approach. I note for completeness that this suggestion formed part of an issue raised by Mr Olney after trial as part of an application to have without prejudice communications produced. I addressed this application with counsel by telephone conference on 5 August 2020. A minute produced by me of the same date records, in summary, the position of the parties, and the outcome. The application was declined. The same minute addresses an issue raised by me as to the comparability of the FCCCA to the FTA and the FMCA, and the arguments made by the parties.

and substantial connection”.28 I also think that the decision to commence proceedings in Fiji mitigates the full force of the non-exclusive jurisdiction clause. Sequitur cannot say that litigation in Fiji is inappropriate, having commenced proceedings in Fiji.

[79]	A further, but important point, is that the claims based on misleading and deceptive conduct are evidently stronger in Fiji. They do not rely on the type of intellectual athleticism required to extend the FTA and FMCA to the allegedly misleading conduct in Fiji.29 Finally, as I have noted, a Fijian court can apply New Zealand law to the enforceability of the JVICC and provide comparable relief to the FTA.

Overall Stage 1

[80]	As Lord Goff also said in Spiliada:30

It seems to me inevitable that the question… must be at bottom… to identify the forum in which the case can be suitably tried for the interests of all the parties and for the ends of justice

[81]	The case for Fiji in respect of the claims against Mr Griffiths in Fiji is overwhelming. It is clearly the natural forum for both of the claims against him. I accept however, New Zealand is the more natural forum in respect of the contractual claims against Satori. The Fells reasonably expected that their claims against Satori (and NJA Resorts) in respect of the JVICC Deed would be litigated in New Zealand That their FMCA based claim cannot be brought in Fiji is an added factor favouring New Zealand.

[82]	Where then do the interests of the parties and the ends of justice lie? Overall, I favour Fiji as the more preferable forum. Mr Griffiths is the main actor. His presence at the hearing of this matter will be key to the resolution of Sequitur’s major claims. It is clearly more convenient, given his residency in Fiji, for the matter to be determined there. Given also that the Fijian jurisdiction offers broadly comparable

28	See Spiliada Maritime Corp v Cansulex Ltd, above n 13, at 478.
29	As to the relevance of the strength of the claims, see Americhip v Dean [2015] 3 NZLR 498 at [15].
30	At 480.

relief to the New Zealand jurisdiction, I am satisfied that Satori and Mr Griffiths have established that Fiji is the most appropriate forum for the present dispute.

Stage 2

[83]	It is necessary to examine whether there are special circumstances that justify litigating the claims in New Zealand, assuming for that purpose that I am wrong about extra-territoriality. The juridical absence of an FMCA equivalent action in Fiji is a Stage 2 factor supporting litigation in New Zealand. It suggests justice may be better served, at least from the plaintiffs’ perspective, if the matter is litigated in New Zealand. Nevertheless, the key issue remains as to whether substantial justice will be done.31 Given the evidently closer connection of the claims to Fiji and the breadth of relief available in Fiji in relation to the key allegations of misleading conduct, I am satisfied substantial justice can be achieved in Fiji.32

[84]	In the result, Fiji is the proper forum for claims. The Fells will be disappointed by this result, especially given clause 9.5 of the JVICC, but this outcome better reflects the true nature of the dispute they have with Satori and Mr Griffiths. It is a claim based on misleading conduct about a business in Fiji.

Outcome

[85]	I find:

(a)	Mr Griffiths was served in New Zealand.

(b)	The claim against Satori is not struck out on the grounds of extra- territoriality.

(c)	The claim against Mr Griffiths is struck out on the grounds of extra- territoriality.

31 Spiliada Maritime Corp v Cansulex Ltd, above n 13, at 482.
32 While not a matter that has influenced my assessment as part of the Stage 2 evaluation, it would appear that subject to issue estoppel considerations, the potential for FMCA relief after the resolution of the Fiji proceedings, is not necessarily closed. See Americhip Inc v Dean [2014] NZCA 360, [2014] NZAR 1137 and Americhip v Dean [2015] 3 NZLR 498 at [30]ff.

(d)	Fiji is (in any event) forum conveniens.

[86]	Accordingly, the New Zealand proceedings are stayed.

[87]	If costs cannot be agreed, the parties may file submissions on costs no longer than five pages in length.