National Commercial Bank v Wimborne (1979) 11 NSWLR 156

Facts: National Commercial Bank (NCB) was a corporation established under Saudi Arabian law; it had no branch office, agency or place of business in NSW. NCB had an arrangement with NSW bank which involved the bank collecting proceeds and remitting them back to NCB in Saudi Arabia. NCB was requested by P to honour its guarantee to the full amount that was owed by the principal. 

Issue: Does a NSW Court have jurisdiction over NCB? This came down to whether NCB was “present” in the jurisdiction of NSW. 

Held: Here, the facts indicated that NCB was not ‘present’ in the jurisdiction of NSW so the claim was struck out. The test for presence of a foreign company within the jurisdiction is whether it “carries on its business” within the territory (question of fact). 

Indicia to prove presence of a foreign corporation: Holland J set out three criteria for determining whether a company is carrying on a business in a territory. These criteria are cumulative (it is not sufficient to have just one; must satisfy all). 

1. The business has an agent with authority to make contracts with people in the state on behalf of the business;

2. The business has been carried on at some fixed and definite place within the state;

3. The business must have continued for a sufficiently substantial period of time.

If a foreign company meets these requirements, service can be affected upon that company in the manner prescribed by the rules of court in all jurisdictions for the service of local corporations.

A corporation will not have presence if the agent is ‘a mere ministerial agent’ or is carrying on his own business and not that of the foreign corporation. It needs to be carrying on the business of the corporation.

Additional factors to prove presence by agent: 

1. The name of the foreign corporation is displayed at the agent’s place of business 

2. The foreign business pays rent or office expenses or employs staff for the agent.

Question: Does P submit to the court’s personal jurisdiction wrt all cross-claims brought by D? 

Held: The general rule is that in bringing proceedings, P has submitted to the court's personal jurisdiction (includes cross-claims brought by D). However, P does not submit to ALL cross-claims; if cross-claims are a different subject matter, separate and distinct and not arising from P’s action, then P has not submitted.