Days International Ltd v. Nizarali Esmail Jessa and Another

Case No.HCA 5380/1983

Court

High Court CFI

Date—

Judge—

Case Document

100%Judiciary

HCA005380/1983

IN THE HIGH COURT OF JUSTICE

NO. 5380 OF 1983

BETWEFN:-

	DAYS INTERNATIONAL LIMITED	Plaintiff
	- and -
	NIZARALI ESMAIL JESSA	1st Defendant
	MOHAMED JESSA	2nd Defendant

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Coram: The Honourable Mr. Justice Jones in Chambers.

Hearing dates: 28th October, 16th-17th November 1983

Date of delivery of judgment: 1st December 1983

Mr. R .J. Faulkner (Johnson, Stokes & Master) for Plaintiff.

Mr. Ronny Wong (Deacons) for Defendants.

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JUDGENT

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1. On the 5th and the 20th May 1983 Master Wilson made orders granting the plaintiff leave to serve notice of the writ of summons out of the jurisdiction. The defendants apply to set aside the orders on the grounds that Hong Kong is not the proper forum. The orders were made pursuant to Order 11 rule 1(1)(g) of the Rules of the Supreme Court which provides: -

"1. (1) Subject to rule 3 service of a notice of a writ out of the jurisdiction is permissible with the leave of the Court in the following cases, that is to say -

(g)

if the action begun by the writ is brought against a defendant in respect of a breach committed within the jurisdiction of a contract made within or out of the jurisdiction, and irrespective of the fact; if such be the case, that the breach was preceded or accompanied by a breach committed out of the jurisdiction that rendered impossible the performance of so much of the contract as ought to have been performed within the jurisdiction.

The plaintiff company carries on business in Hong Kong. It is alleged by the plaintiff that the defendants were in business as a partnership in Zaire under the name of M.N.Z. Between January and October 1982 the plaintiff sold and delivered goods to the defendants.A dispute has arisen with regard to payment for the goods and whether the defendants should have been sued in their personal capacities. Invoices show that the goods were delivered either for the account of M.N.Z. or Monano-Zaire.

2. The defendants deny that they were partners, but carried on business as a limited company in Zaire under the name Monano-Zaire SPRL. It has been conceded by the defendants that by condition 6 of the confirmation notes, the court would have jurisdiction if the action had been brought against Monano-Zaire SPRL.

3. Both defendants are now living in Canada.

4. Many of the documents that were before the court have been challenged by both sides as not being authentic.

5. Mr. Wong for the defendants submits that there was express provision in the contract for payments to be effected outside the jurisdiction, and that the course of dealing between the parties shows conclusively that this was the case. Much of his argument was based on the fact that the contracts were C.I.F. or C. & F. He contends that under such contracts payment is required to be made at the port of destination. However, it is my understanding as submitted by Mr. Faulkner that the obligation is upon the buyer to pay the cost of freight at the port of destination not payment for the goods. Rein v. Stein (1892) 1.Q.B. 753 which was cited by Mr. Wong states prima facie that the place of payment in a C.I.F. contract is at the sellers place of business. I was referred by Mr. Wong to Parker v. Schuller (1901) 17 T.L.R. 299 which held that where a defendant applied to set aside a writ after a plaintiff had obtained leave to serve outside the jurisdiction the plaintiff was not allowed to set up and rely on another and distinct cause of action. However, that authority does not apply to the present action for the plaintiff has not abandoned the original cause of action.

6. Mr, Wong argued that the plaintiff has attempted to invoke the provisions of Order 11 rule (1)(f) which was not the basis of the application before the Master. Irrespective of the merits of this submission I am of the opinion that the order was made under sub-rule (g).

7. Mr. Faulkner submits that the court has jurisdiction for the agreed place for payment was Hong Kong, that the plaintiff has a good arguable case, that both contracts for the sale of goods and the contracts signed in Zaire are impliedly governed by Hong Kong law and that the confirmation notes signed by the 2nd defendant were made in Hong Kong.

8. There was abundant evidence on affidavit that the plaintiff delivered goods to the defendants in their personal capacities and that payment was to be made in Hong Kong. The plaintiff has therefore established that there is a good arguable case that there was a breach of contract within the jurisdiction. The Master applied the correct principles in granting leave. Upon the evidence it would be totally unrealistic for the proceedings to be heard in Zaire. Hong Kong is the appropriate forum. Accordingly the summons is dismissed with costs.

( B.L. Jones )

Judge of the High Court

Representation:

Mr. R .J. Faulkner (Johnson, Stokes & Master) for Plaintiff.

Mr. Ronny Wong (Deacons) for Defendants.