Read the full judgment text of HCCT36/2005 on BabelCite. This 高等法院原訟法庭 judgment was delivered on 14 February 2006 before Hon Burrell J.
Construction and Arbitration Proceedings — Jurisdiction — Service of writ out of jurisdiction — Material non-disclosure in ex parte application — Exclusive jurisdiction clause governed by German law — Lis alibi pendens — Good arguable case test. The dispute involves a joint venture terminated by a June 2001 agreement governed by German law with exclusive jurisdiction clauses assigning disputes to German courts. Plaintiff Lucas HK initiated proceedings in Hong Kong claiming negligence and breach of contract, seeking to serve writ out of jurisdiction in Germany. Defendant DrillTec successfully challenged the ex parte order on grounds of material non-disclosure, failure to disclose concurrent proceedings and exclusive jurisdiction clauses, and argued that the German courts are the appropriate forum under established jurisdiction agreements. The Court held that the non-disclosure was material and would have led to an inter partes hearing rather than an ex parte order. The Court also noted the clarity and legal effect of the exclusive jurisdiction clauses which cover both contract and tort claims and emphasized that framing claims as tort does not avoid such jurisdiction clauses. Lis alibi pendens applied due to ongoing German litigation on substantially the same issues. The plaintiff failed to establish a good arguable case sufficient to justify service out of jurisdiction. The Court set aside the ex parte order and ordered costs on a nisi basis with revisions to the wording of the costs order. The outcome underscores the importance of full disclosure in ex parte applications and the binding effect of exclusive jurisdiction clauses in international contracts.
Legal issues: Material non-disclosure · Exclusive jurisdiction clauses · Lis alibi pendens · Good arguable case
Outcome: The High Court set aside the ex parte order permitting service out of jurisdiction.
Cited by 4 cases