Read the full judgment text of HCA 1309/2007 on BabelCite. This High Court CFI judgment was delivered on 9 January 2009 before Deputy High Court Judge L. Chan.
Civil procedure – joinder of defendants – service out of jurisdiction – concurrent writ – Rules of the High Court, Order 6, Rule 6(1) and 8(1) – whether concurrent writ valid when original writ expired before defendant added by amendment – Order 11, Rule 4 – sufficiency of affidavits in support of application for service out of jurisdiction – Order 11, Rule 1 – whether claims fall within rule justifying service out of jurisdiction – agreements for restructuring of jewellery companies by transfer of shares and assets – corporate defendants not parties to agreements – whether corporate defendants are proper parties. First issue: whether concurrent writ issued on 28 October 2008 valid when original writ issued 21 June 2007 had expired – held, yes, because for a defendant added by amendment, the rule must be construed as requiring service within the appropriate period from the date of the amendment; defendants' construction would require extension of validity and is unreasonable. Second issue: whether plaintiffs complied with Order 11, Rule 4 in applying for service out of jurisdiction – held, yes, applying Inverness Corporation v Magic Dreams Cosmetica Infantil, the materials in the existing affidavits and the relief claimed in the draft re-amended writ were sufficient; the rule does not require ritual incantation of its wording. Third issue: whether claims against the corporate defendants fall within Order 11, Rule 1 – held, no; the corporate defendants are not parties to the agreements and have no cause of action against them, they are merely companies whose ownership is subject to the agreements and are not proper parties. Outcome: application of the 11th, 13th, 14th and 24th to 30th corporate defendants allowed with costs against the 1st and 2nd plaintiffs; application of the 31st and 34th individual defendants dismissed with costs to the 1st and 2nd plaintiffs; hearing on 13 January 2009 vacated.
Legal issues: Validity of concurrent writ issued after original writ expired · Sufficiency of affidavits in support of service out of jurisdiction · Whether claims fall within Order 11, Rule 1 for corporate defendants
Outcome: The application of the 11th, 13th, 14th and 24th to 30th corporate defendants to set aside the joinder and service out of jurisdiction orders was allowed. The application of the 31st and 34th individual defendants was dismissed.
Cited by 4 cases