1Even assuming a prima facie disposition to enforce an exclusive foreign jurisdiction clause, the unavailability in the chosen forum of substantial proprietary and equitable claims (here, implied trust, tracing and knowing receipt) against a closely connected non-party company not bound by the clause can constitute a strong reason to refuse a stay, particularly when combined with a real risk of fragmentation and inconsistent findings; a personal contractual claim against the controlling individual is not an adequate substitute for proprietary relief against a separate entity.
2An undertaking to submit to a foreign court cannot create a cause of action that the law applied by that court does not recognise; undertakings offered to cure such a deficiency must be assessed against the particular disadvantage they address, and a party relying on them should show (ideally by expert evidence) that they are capable of operating as contended in the foreign forum. A stay should not lightly be granted on terms requiring the plaintiff first to establish in the foreign forum that his claims cannot be determined there.
3The possible loss of ACL claims may carry only modest weight against a stay where, on the facts, the statutory claim largely repackages contractual non-performance (as in Lew Footwear) and was added after the stay application; whether Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd [2019] NSWCA 61 states a distinct principle where not all parties are bound by the clause was left open.
