M & B Ltd v. Gemological Institute of America Inc. and Others

HCMP 874/2019

[2020] HKCFI 991

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 874 OF 2019

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BETWEEN

Before: Madam Recorder Yvonne Cheng, SC

Date of Written Submission by the Plaintiff: 31 March 2020

Date of Decision: 28 May 2020

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J U D G M E N T

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A. INTRODUCTION

A1.   The appeal

1.By a notice of appeal of 29 January 2020, the Plaintiff appeals against the decision of Master Chow of 14 January 2020 dismissing the Plaintiff’s ex parte application for leave to issue a concurrent amended Originating Summons and serve it out of the jurisdiction on the four Defendants named therein.

2.The appeal was originally set down for argument on 31 March 2020, but was adjourned pursuant to the general adjournment of court proceedings announced by the Judiciary by reason of public health considerations. By the Plaintiff’s solicitors’ letter of 25 March 2020, the Plaintiff agreed that the appeal should be determined on the papers.

A2. The background

3.The Plaintiff’s case is as follows.

4.It is a wholesaler and retailer of (inter alia) loose diamonds, and operates a shop in Wellington Street in Central in which diamonds were traded with customers from the general public.

5.The Plaintiff says that in March 2019, two members of the public visited the Plaintiff’s shop, seeking to sell a 20.33 carat diamond (“the Diamond”). After negotiations with Roi Sheinfeld of the Plaintiff, it was agreed that the Diamond would be exchanged with another diamond (“the Contract”).

6.In April 2019, the Plaintiff sent the Diamond to the Gemological Institute of America Inc (the 1^st Defendant), seeking to have it graded to facilitate its resale to other customers.

7.The Plaintiff received a letter from the 1^st Defendant dated 16 April 2019, stating that the Diamond was the same, or substantially the same, as a stone which a third party had previously reported as lost, stolen or otherwise was of interest to law enforcement authorities. The 1^st Defendant would therefore hold the Diamond pending resolution of the competing claims to ownership of the Diamond, in accordance with the terms in the “GIA Client Agreement”, which appears to be an agreement between the Plaintiff and the 1^st Defendant.

8.The Plaintiff received a further letter from the 1^st Defendant dated 18 April 2019, stating that both the Plaintiff and the 2^nd Defendant, being the person claiming that the Diamond had previously been lost or stolen, had signed agreements with the 1^st Defendant governing the competing claims to ownership. The letter notified the Plaintiff and the 2^nd Defendant that they had sixty days to either (a) settle their claims to ownership or (b) to commence an action, obtain a court order and effect service of process on the 1^st Defendant, naming other parties claiming the Diamond as well, and seeking a determination as to the claiming parties’ respective rights to the Diamond.

9.By an originating summons of 17 June 2019 (“the Originating Summons”) naming the 1^st and 2^nd Defendants,[1] the Plaintiff claimed a declaration that the Plaintiff had acquired good title to the Diamond, and that the Diamond be returned to it.

10.By an email of 26 June 2019, the 1^st Defendant’s lawyers notified the Plaintiff’s solicitors that a Mr Jahan of Geneva Gems SA, the 3^rd Defendant, who claimed to be the owner of the Diamond, rather than the 2^nd Defendant. By a letter of 27 June 2019, the 2^nd Defendant notified the Plaintiff’s solicitors that it was Swissgem SA, the 4^th Defendant, who was the owner of the Diamond (and that the 2^nd Defendant had simply assisted the 4^th Defendant in notifying the 1^st Defendant of the theft of the Diamond). The Plaintiff’s solicitors attempted to clarify in correspondence whether it was the 3^rd or 4^th Defendant who is actually claiming ownership of the Diamond, but did not receive any reply. Subsequently, on 24 July 2019, the 3^rd and 4^th Defendants issued proceedings against the Plaintiff in New York, claiming return of the Diamond.

11.The Plaintiff therefore sought and obtained leave on 18 September 2019 to amend the Originating Summons to add the 3^rd Defendant and 4^th Defendant as parties.

12.By the 3^rd Affidavit of Roi Sheinfeld dated 18 November 2019, the Plaintiff applied ex parte for leave to issue a concurrent Originating Summons and serve the same on the Defendants out of Hong Kong. In paragraph 18, Mr Sheinfeld described the claim against the Defendants as “a claim to confirm the validity of the Contract and to confirm the effect of the Contract”.

13.On 14 January 2020, Master Chow dismissed the application on the grounds that O.11 r.1(1)(d) was not applicable, given that the relief sought against the Defendants under the Originating Summons did not relate to the Contract and was not sought against the couple who were the other parties to the Contract.

14.For completeness, I note that on 4 May 2020, the Hon O Peter Sherwood of the Supreme Court of the State of New York conditionally dismissed an action commenced by the 3^rd and 4^th Defendants against the Plaintiff claiming the Diamond, on the grounds of forum non conveniens. The matters decided in that judgment are not relevant to the issue of the applicable “gateway” addressed below.

B.     PRINCIPLES REGARDING SERVICE OUT OF THE JURISDICTION 

15.A plaintiff who seeks leave to serve a writ out of the jurisdiction under RHC O.11 r.1 must demonstrate that:

15.1 there is a good arguable case that his claims fall within one of the “gateways” under O.11 r.1(1);

15.2 there is a serious issue to be tried as regards the merits of the plaintiff’s case;

15.3 Hong Kong is the forum conveniens for the trial of the action.

See Dynasty Line Ltd v Sukamto Sia [2009] 4 HKLRD 454 at [29] (Cheung JA).

C. GATEWAY UNDER O.11 r.1(1)(d)

16.O.11 r.1(1)(d) provides that service of a writ[2] out of the jurisdiction is permissible with the leave of the Court if in in the action begun by the writ,

“…(d) the claim is brought to enforce, rescind, dissolve, annul or otherwise affect a contract, or to recover damages or obtain other relief in respect of the breach of a contract, being (in either case) a contract which –

(i) was made within the jurisdiction, or

(ii) …

(iii) is by its terms, or by implication, governed by Hong Kong law, or

(iv)  … .”

17.The Plaintiff says that its claim (and in particular the declaration sought) is “to confirm and enforce the effect of the Contract”,[3] and therefore falls within the gateway under O.11 r.1(1)(d)(i) or (iii).

18.However, the Contract was not made between the Plaintiff and any of the Defendants. Whilst the validity of the Contract may be an issue which arises in a claim by the Plaintiff against the Defendants for return of the Diamond, it does not seem to me that such a claim can properly be characterised as a claim to enforce the Contract in the first place. The Defendants are not being asked to perform any part of the Contract.

19.Be that as it may, I turn to consider whether there are any authorities in support of the Plaintiff’s interpretation of the scope of O.11 r.1(1)(d).

20.The Plaintiff submitted that:[4]

20.1 this gateway does not exclude any category of contractual claim. Provided that a contract satisfies one or more of the criteria in O.11 r.1(1)(d)(i) to (iv), there is no reason why any legal claim in respect of that contract should not fall within paragraph (d) (citing Hong Kong Civil Procedure note 11/1/21);

20.2 the party to be served out need not necessarily be a party to the contract (citing note 11/1/21B);

20.3 a claim for a negative declaration (such as one of the plaintiff’s non-liability on account of rescission or frustration) or a positive declaration (for example that a contract is valid, subsisting and enforceable) are both examples of a claim enforcing or affecting a contract (citing note 11/1/21C).

21.The Plaintiff did not cite authorities to support these propositions (including the ones referred to in the notes in the Hong Kong Civil Procedure 2020 identified above), notwithstanding the reasons given by the Master for dismissing the application.

C1. “Any legal claim in respect of a contract satisfying O.11 r.1(1)(d)(i) to (iv) suffices”

22.The Plaintiff’s first proposition is that so long as a contract satisfies one of the criteria in O.11 r.1(1)(d)(i) to (iv), any legal claim “in respect of that contract” will satisfy the O.11 r.1(1)(d) gateway, relying on note 11/1/21. In note 11/1/21, Gulf Bank KSC v Mitsubishi Heavy Industries Ltd [1994] 1 Lloyds’ Rep 323 at 327 and DR Insurance Co v Central National Insurance Co of Omaha (in rehabilitation) [1996] CLC 64 are cited for this proposition.

23.In Gulf Bank KSC, the defendant (Mitsubishi) had asked the plaintiff (Gulf Bank) to issue a guarantee and had signed a letter headed “counter-indemnity”, saying that in consideration of Gulf Bank issuing a guarantee, Mitsubishi agreed to pay amounts paid out by Gulf Bank on the guarantee. When the beneficiary under the guarantee indicated that it would invoke the guarantee, Mitsubishi wrote to Gulf Bank, claiming that the counter-indemnity had ceased to have effect. Gulf Bank obtained leave to serve proceedings on the defendant in Japan, claiming a declaration that the counter-indemnity was valid. Mitsubishi sought to set aside the leave, saying that the claim was not “brought to enforce, rescind, dissolve, annul or otherwise affect a contract”.

24.It was in that context that Hobhouse J said at 327:

“In my judgment the words in sub-par. (d)[5] are clearly intended, together with the references to breaches of contract, to make a comprehensive reference to contractual claims. The language discloses no intention to exclude any category of contractual claim nor does the policy of O.11, itself. The restrictive part of sub-par. (d) is that which follows and lays down criteria which the relevant contract must satisfy. Provided that the relevant contract satisfies one or more of those criteria then there is no reason in policy why any legal claim in respect of that contract should not fall within the ambit of O.11, r.1.

The claim made in the present proceedings is a claim which is properly characterized as a claim to enforce a contract. To obtain a declaration of a Court that a contract is enforceable is one of the steps in enforcing that contract. From a legal point of view, to establish that the contract is enforceable is a necessary first step in any enforcement by legal process. In practical terms, a declaration by the Court that the contract is enforceable and that the defendant is liable under it may often be sufficient to enable the plaintiff to elect a recovery under the contract with the need for further legal proceedings.”

(Emphasis added.)

25.Thus, Hobhouse J was considering a situation where the plaintiff was seeking to enforce a contract against the contracting party. His reference to “any legal claim in respect of that contract” was a reference to contractual claims, and not to any claim to which a contract might, in some way, have some connection to the claim. He was not saying that so long as a plaintiff can show that a contract has a connection to the local jurisdiction by reason of satisfying one of the criteria in O.11 r.1(1)(d)(i) to (iv), any claim which touches on the contract in some way, however tangential, will fall within O.11 r.1(1)(d).

26.In DR Insurance Co, the plaintiff (DR Insurance) was the successor in title to certain reinsurance business originally written by another reinsurer, who had entered into contracts of reinsurance in favour of the first and second defendants. The transfer of business was effected by an “Agreement of Bulk Insurance”. The first and second defendants sought to pursue claims under the contracts against DR Insurance. DR Insurance issued proceedings, seeking a declaration that the contracts were unenforceable by reason of illegality. Leave to serve out was obtained under O.11 r.1(1)(d) on the grounds that the claim was bought to “annul or otherwise affect a contract”. The defendants sought to set aside leave on the grounds that DR Insurance was not a party to the original contracts, and was party only to the agreement for transfer of business, but that that was not a relevant contract of the purposes of O.11 r.1(1)(d).

27.Deputy Judge Moore-Bick QC (as he then was) held at 68 that:

“The agreement of bulk reinsurance may have been the mechanism whereby contractual rights and liabilities originally vested in Elkhorn were transferred to DR, but it does not follow that it is the contract which is affected by this action. Mr Kealey accepted, correctly in my view, that the claim of an assignee to enforce rights arising under a contract would fall within the scope of subpara. (d), and, by parity of reasoning, that the claim of a transferee of liabilities who sought relief which would have a direct effect on his liability to the defendant would equally do so. In my judgment that is correct because in each case the effect of the assignment or transfer is to create contractual rights and liabilities directly between the parties to the action and it is those rights and liabilities which are affected by the relief being claimed. The expression ‘contract’ in subpara. (d) is in my view quite wide enough to cover contractual rights and liabilities which have become vested in one or other party in this way. In support of its submissions on this and other issues DR drew my attention to the decisions of Saville J in The Ines [1993] 2 Ll Rep 492 and of Hobhouse J in Gulf Bank KSC v Mitsubishi Heavy Industries Ltd [1994] 1 Ll Rep 323 and in particular to the judges' comments concerning the general policy considerations which underlie r.1(1)(d) which in my view clearly support that conclusion.”

(Emphasis added.)

28.The claim came within RSC O.11 r.1(1)(d) on the grounds that there were direct contractual rights between the plaintiff and defendants, the plaintiff having succeeded to the rights and liabilities of the original contracting party. It was not a situation where the contract in question was made between the plaintiffs and a third party – as indeed the judge pointed out at 67.

29.I therefore do not agree with the Plaintiff’s proposition that so long as a contract satisfies one of the criteria in O.11 r.1(1)(d)(i) to (iv), any legal claim “in respect of that contract” will satisfy the O.11 r.1(1)(d) gateway. Indeed, there are a number of authorities which directly contradict such a proposition: see for example Pacific Dunlop Garments Ltd v Fundamental Global Ltd, unreported, HCA 1655/2008, 17 May 2012 at [38], and Newocean Petroleum Co Ltd v OW Bunker China Ltd [2016] 3 HKLRD 892 at [58], both referred to below.

C2. “The party to be served out of the jurisdiction does not have to be party to the contract”

30.The Plaintiff’s second proposition is that the party to be served out of the jurisdiction does not have to be a party to the contract, citing note 11/1/21B. Note 11/1/21B refers to Pacific Dunlop Garments Ltd v Fundamental Global Ltd, unreported, HCA 1655/2008, 17 May 2012, To J.

31.What To J actually said was this.

“22. The plaintiff relies on Order 11 rule 1(c), (d)(iii) and (e) for the service out application. … Firstly, Mr Chua SC submits that in respect of these sub-paragraphs under rule 1, the plaintiff has to show that the party sought to be served is a party to the contract with the plaintiff which is the subject matter of the action. ...

23. With respect, Mr Chua SC’s first proposition is no longer correct. It used to be assumed that the contract must be one made between the plaintiff and the party sought to be served. But this is no longer the case. …

24. In Brody Limited & Anor And Chu Kong Shipping Enterprises (Holdings) Company Limited & Another which was relied on by the learned author, after holding that the party sought to be served is a necessary and proper party under rule 1(c), Stone J said at paragraph 11:

Having reached this firm conclusion, there is, in the circumstances, perhaps no need for present purposes to finally decide the interesting arguments put forward under the contractual head, and in particularly, the approaches of Saville J. (as he then was) in The Ines [1993] 2 LLR 492, and the decision of the High Court in Finnish Marine Insurance Co. Ltd. v. Protective National Insurance Co. [1990] QB 1078. Suffice to say that I do not think they are in conflict to the degree suggested by Mr Kerr. In Finnish Marine, op cit., the learned Deputy Judge held that a contract with a third party did not fall within O.11, r.1(1)(d)(ii), whereas Saville J. (op. cit at 495) was, I think, merely pointing out that the precise words of the rule (i.e. r. 1(1)(d)) should not be subject to the implied requirement of establishing, at the outset, that the contract in question is one to which the party sought to be served is a party, holding merely that in cases of dispute as to whether or not a proposed defendant is a contractual party, the case will not be a proper one for service out unless the Court was of the view that the question of the identity of the contracting parties and the alleged breach raised issues which it is fair to all concerned should be tried in England…

Thus in both The Ines and Brody Ltd, the proposition that the party sought to be served need not be a party to the contract in issue is obiter.

25. I think there can be no simple or single answer to the unduly vague or broad question whether the party sought to be served must be a party to the contract which is the subject matter of the action. It all depends on the particular sub-paragraph of rule 1 under which leave for service out is sought. Thus, the answer lies in the true construction of Order 11, particularly rule 1.

26. To obtain leave for service out of the jurisdiction, a plaintiff has to show that his claim falls within one of the sub-paragraphs of rule 1. Subparagraphs (c), (d) and (e) are pertinent in relation to a claim in contract or a claim affecting a contract. These sub-paragraphs provide as follows: …

27. Rule 1(c) allows service out so long as one party has been served whether within or out of the jurisdiction and the party sought to be served is a necessary and proper party. There is not the slightest mention whether the party sought to be served has to be a party to the contract which is the subject matter of the litigation.

28. Rule 1(d) gives jurisdiction to serve out if the claim is brought to enforce, rescind, dissolve, annul or otherwise affect a contract, or to recover damages or obtain other relief in respect of the breach of contract, provided that the contract meets certain qualifications. In a nutshell, the qualifications are that the contract has a sufficient Hong Kong connection, being one made within the jurisdiction or made by or through an agent trading or residing within the jurisdiction on behalf of an outside principal, or is a contract governed by Hong Kong laws, or a contract which expressly gives jurisdiction to the Court of First Instance of Hong Kong. There is no mention that the party sought to be served must be a party to the contract in issue, or is a person who may be related to the contract or in any way likely to be affected by the contract or must be a person against whom a remedy is sought.

29. Under rule 1(e), the court may order service out if the claim is brought in respect of a breach committed within the jurisdiction of a contract whether made within or out of the jurisdiction. There is no requirement that the contract must have a Hong Kong connection, nor is there any requirement that the party sought to be served must be a party to that contract.

30. But of course, it stands to no reason that if a dispute arose out of or relating to a contract which has a Hong Kong connection, then someone out of the jurisdiction who has no connection whatever with the contract, or its breach, or the remedies sought may be served with the legal process under rule 1(d) and put either under an obligation to set aside that service or to suffer the costs and inconvenience of being made a party to the litigation. Similarly, it is ridiculous that because someone committed a breach of contract in Hong Kong, then another person out of the jurisdiction may be likewise served with the legal process. That could not have been the intended effect of these two paragraphs.

31. In my view, read as a whole, the scheme intended under Order 11 rule 1 is that where the party to be served is a party to the contract which is the subject matter of the litigation, the court has jurisdiction to order service out under rule 1(d) provided that the contract has a Hong Kong connection or under rule 1(e) if the breach was committed in Hong Kong. But, notwithstanding that the party sought to be served is not a party to the contract, the court also has jurisdiction to order service out under rule 1(c) if that party is a necessary or proper party to the litigation. This may arise, for example, where a remedy may be available against the party sought to be served or where the subject matter of the dispute has fallen into the possession of the party sought to be served. These examples are not exhaustive. The test is whether that party is a necessary or proper party to the litigation. Whether he is a party to the contract is besides the point. These rules may overlap. There may be factual situations where a party may be liable to service out under a number of sub-paragraphs of rule 1.”

(Emphasis added.)

32.In Pacific Dunlop Garments, the defendants alleged that the plaintiffs were in repudiatory breach of an agreement, under which the plaintiffs were to buy shares from the defendants. Unknown to the plaintiffs, the defendants sold the shares to a third party. The plaintiffs sought to join the third party to the proceedings, and to issue and serve a concurrent writ on the third party out of the jurisdiction. Whilst To J granted leave under O.11 r.1(1)(c), finding that the third party was a necessary or proper party to the proceedings, he refused to grant leave under O.11 r.1(1)(d). At [38], he held:

“The plaintiff also relies on Order 11 rule 1(d)(iii) on the basis that by implication the Agreement is governed by Hong Kong law. … However, on the true construction of rule 1, all these are besides the point. In the absence of proof that the plaintiff has a cause of action against the party sought to be served, that the Agreement has a Hong Kong connection alone is not sufficient for the court to invoke this long arm jurisdiction. Simply put, that the plaintiff and defendants are engaged in a dispute about a contract which has a Hong Kong connection is no justification that somebody who is not a party to that contract in the United States, for example, or in the BVI in the present context, should be ordered to defend the case. If the party sought to be served is otherwise connected to the contract or responsible for its breach, a case for leave should be made out under rule 1(c). With the material available before me, I am not satisfied that the plaintiff has shown a good arguable case that its claim is within Order 11 rule 1(d)(iii).”

33.In Newocean Petroleum Co Ltd v OW Bunker China Ltd [2016] 3 HKLRD 892, Deputy High Court Judge Manzoni SC said:

“56. However in order to come within O.11 r.1(1)(d), the plaintiff must demonstrate that the claim is brought “to enforce, rescind, dissolve, annul or otherwise affect a contract, or to recover damages or obtain other relief in respect of the breach of a contract”. It is this aspect of the rule which creates more difficulty for the plaintiff.

57. In my view the provisions of O.11 r.1(1)(d) are concerned with actions between two or more parties bound by the terms of a contract (ignoring for this purpose the terms of the Contracts (Rights of Third Parties) Ordinance (Cap.623), which has not been relied upon by the plaintiff). A plaintiff cannot sue to enforce or rescind or dissolve or annul a contract without the counterparty to that contract being a party to the action. Equally damages or other relief in respect of a breach of contract would normally require the counterparty to be a party to the action, as would any action which affects a contract. In this context I would accept that a counterparty would include any person who may be liable to be sued under or in respect of the contract pursuant to the laws of agency. If the counterparty is not a party to the action, the claim brought by the plaintiff is unlikely to fall within O.11 r.1(1)(d), and is more likely to fall within one of the other limbs of O.11 r.1(1), such as for example r.1(1)(f).

58. On that basis it seems to me that unless the plaintiff can demonstrate a good arguable case that the defendants were in some sense counterparties to the contract between the plaintiff and OW China, either through agency or otherwise, then there is not a good arguable case that the necessary jurisdictional connection in the action against the defendants is established under O.11 r.1(1)(d). That is so irrespective of whether or not that contract is governed by Hong Kong law, was made within the jurisdiction or has a jurisdictional clause in favour of the Hong Kong courts.”

(Emphasis added.)

34.Thus, whilst it may be the case that the wording of O.11 r.1(1)(d) does not expressly require the defendant to be a party to the contract which is the subject of the action, so that in certain circumstances, such as when there is a dispute as to whether the party sought to be served is a party to the contract or not, leave may be granted to serve such a party under this rule, this is a far cry from the suggestion that generally, a party to be served under this rule does not need to be a party to the contract.

35.Indeed, even under the subsequent broader formulation of the corresponding English rule,[6] in Alliance Bank JSC v Aquanta Corporation and others [2013] 1 All ER (Comm) 819, Tomlinson LJ said:

“[70]Furthermore, like Rix LJ in the Global 5000 case at [64], I wonder what is the relevance of sub-r (d) of para 3.1(6) of the Practice Direction unless it is implicit that the intended defendant is bound by that term and that agreement. Indeed, I would go a little further, in that I wonder what is the relevance, for the purpose of founding jurisdiction, of the circumstance that the contract has been made within the jurisdiction, or made by or through an agent trading or residing within the jurisdiction, unless it is the intended defendant who has ‘come into’ the jurisdiction to make the contract, or has used the services of an agent trading or residing within the jurisdiction for the purpose of making the contract.

[71] … I am for my part attracted by the argument that a claim is not for that purpose properly described as ‘made in respect of a contract’ where the contract in question is not one to which the defendant is party. For my part I see great force in the argument that it is implicit in the rule that the contract upon which reliance is placed must be one to which the intended defendant is party. I am also attracted by Mr Morgan’s formulation which I would tentatively restate as follows: unless the claimant is suing in order to assert a contractual right or a right which has arisen as a result of the non-performance of a contract, his claim is not in this context properly to be regarded as one made in respect of a contract. I think it likely that ordinarily such claims can only be made in respect of contracts to which the intended defendant is party. However, the case of the intended defendant, Warner, considered by Hamblen J in Cecil v Bayat may show that that will not always be so. It is sufficient to dispose of the point in this case to indicate that the required connection between claim and contract must inevitably be the more difficult to establish in a case where the intended defendant is not party to the contract upon which reliance is placed than in a case where he is party to it.”

C3.   “A claim for a positive declaration is a claim enforcing a contract”

36.The Plaintiff’s third proposition relies on note 11/1/21C, which says that a claim for a declaration that a contract is valid and subsisting and enforceable is within O.11 r.1(1)(d) because it is a claim to enforce a contract, citing Gulf Bank KSC, supra.

37.In Gulf Bank KSC, immediately after the passage cited in section C1 above, Hobhouse J went on to say:

“The same conclusion is arrived at by looking at the question from the other way round. It is not uncommon that a party to a contract comes to the Court and seeks a declaration that he is not bound by the contract. … Any such declaration “affects” the contract. That is the purpose of making the claim for such a declaration. It creates a legal obstacle in the way of the enforcement of the contract by the other party. Just as a negative declaration affects a contract, so can a positive declaration. A claim for a negative declaration cannot be described as a claim to enforce a contract; it is the converse of that. It is a claim which affects a contract. Claims for either type of declaration fall within the opening words of sub-par. (d).”

38.As noted above, Hobhouse J was not considering the situation where a plaintiff was seeking a declaration in respect of a contract to which the defendant was not party. I do not consider that Hobhouse J’s words can be extrapolated to generally cover the situation where a plaintiff claims against a defendant for a declaration that a contract made between the plaintiff and a third party is valid.

C4.   Gateway not satisfied

39.In the circumstances, I do not agree that there is a good arguable case that the Plaintiff’s claim in the Originating Summons falls under the O.11 r.1(1)(d) gateway. The Defendants are not party to the Contract. Nor does the Plaintiff contend that the Defendants are in some way successors to liabilities under the Contract, or that the Plaintiff is asserting a contractual right (under the Contract) against the Defendants. The fact that the Plaintiff claims title to the Diamond by reason of the Contract made with two members of the public does not turn the Plaintiff’s claim against the Defendants into a contractual claim.

40.Whether or not some other gateway applies is not a matter which arises for consideration on this appeal.

D. OTHER REQUIREMENTS FOR SERVICE OUT OF THE JURISDICTION

41.In the light of my finding above that the claim brought by the Plaintiff does not fall within O.11 r.1(1)(d), it is not necessary for me to go on to consider whether there is a serious issue to be tried or whether Hong Kong is the appropriate forum for the trial of the action.

E. DISPOSITION

42.I therefore dismiss the appeal.

Mr Avery Chan, instructed by Tsang, Chan & Woo, for the Plaintiff