Case Document

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CACV000103/1991

IN THE COURT OF APPEAL	1991, No. 103
	(Civil)

BETWEEN

MICHAEL ERIC ALEXANDER BOS MAK

Plaintiff
(Appellant)

AND

OSVALDO PATRIZZI

Defendant
(Respondent)

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Coram: Hon. Sir Derek Cons, Ag. C.J., Kempster & Clough, JJ.A.

Date of hearing: 23 & 24 July 1991

Date of delivery of judgment: 24 July 1991

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JUDGMENT

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Sir Derek Cons, Ag C. J.:

1. This is an appeal against the decision of Jones, J. dismissing an appeal against the order of Master Woolley granting a stay of proceedings in the court below. Jones, J. took the view that the courts of Switzerland would be the more appropriate forum.

2. The proceedings in question comprise an action for damages for failure to deliver a watch said by the statement of claim to have been sold by the defendant to the plaintiff under an oral contract concluded over the telephone on or about 17th July last year. The plaintiff, a resident of Hong Kong, is a businessman with a keen interest in rare time-pieces, both antique and new, and to some extent is a trader in the same. The defendant, an Italian resident in Switzerland, is the chairman of the board of a company incorporated in Geneva which carries on the business of fine arts auctioneers under the name of Habsburg S.A. He is also the managing director of its watches and clocks department.

3. There is ho dispute that the plaintiff is a regular customer of Habsburg. But the plaintiff is adamant that he has also engaged in private transactions with the defendant and that the present instance was such a private transaction. The defendant is equally adamant that there have been ho private transactions in the past and that this was hot such a private transaction. But for the purposes of these proceedings his counsel accepted below, and I quote from the words of Jones, J.,

"that the defendant is the correct party to be sued."

It has been suggested before us by Mr. Ronny Tong, who did not appear below, that this may hot accurately represent what was in fact conceded there. But in any event I do hot think it matters, for although I was at one stage concerned that the concession would preclude the defendant from relying directly upon a written contract made one or two days subsequent to the oral contract, i.e. oh 18th July, I am satisfied now, upon a close examination of that agreement, that the concession is hot in fact inconsistent with its terms.

4. The agreement is between the plaintiff and Habsburg. It acknowledges that "because of the special relationship between (Habsburg) and (the plaintiff)" the watch in question is in the possession of Habsburg and provides, inter alia, that it shall be delivered to the plaintiff in Geneva oh the 25th of the same month, provided that oh or before that day the purchase price is paid in full to Habsburg. The contract, intended apparently to pre-empt the consequences of possible insolvency proceedings against Habsburg and also to avoid the incidence of the Swiss equivalent of V.A.T., appears to have been signed on behalf of Habsburg by the defendant.

5. The plaintiff's case is that the watch in question was "incorrectly included" in the agreement and then goes on to allege that, instead, the original agreement was varied at a meeting between the plaintiff and the defendant in Geneva on 25th July postponing delivery, now to be in Hong Kong, until oh or before the end of September, with a prior part payment of the purchase money said to hate been duly effected on two days in August. Yet delivery was not made, despite the demands of the plaintiff, and eventually a suggested repudiation by the defendant was accepted, the plaintiff limiting his claim to damages for non-delivery of the watch and loss of profit on the intended re-sale of it.

6. The defendant's case is that although the parties did meet on 25th July there was no variation of the written contract which, the defendant having failed to comply with it, was cancelled in due course.

7. The basic principle of forum non conveniens is to be found in the speech of Lord Goff in Spiliada Maritime Corporation v. Cansulex Limited [1987] AC 460 @ p. 476. There is no need to go any further. It is:

"that a stay will only be granted on the ground of forum non conveniens where the court is satisfied that there is some other available forum having competent jurisdiction, which is the appropriate forum for the trial of the action, i.e. in which the case may be tried more suitably for the interests of all parties and the ends of justice".

To that end it is necessary to look for "connecting factors", of which he gives examples at p. 478.

8. If this matter had come before me de novo I would have been minded, I think, to conclude that Switzerland was the place in which the case might be tried more suitably for the interests of all the parties and the ends of justice. The most influential connecting factor would have been that the evidence before the judge below suggests to me that there had long been a course of trade between the plaintiff and Habsburg, for whom the defendant was acting as agent, in which it was agreed between the parties, having regard to the standard conditions of Habsburg, that not only should their transactions be governed by Swiss law but that any legal proceedings between them, at least if brought by the plaintiff, should be conducted in a Swiss court. There is one exception to that course of trading, in December 1989. However it concerned a particularly expensive watch , albeit none are cheap by common standards, for which a one-off agreement appears to nave been drawn. It seems to me then natural to infer, in the absence of any evidence to the contrary, that if the plaintiff and the defendant should have conducted personal business, they would more than likely have done so on terms similar to those employed by the company.

9. Further I would have had regard to the fact that although the defendant visits Hong Kong from time to time on the business of Habsourg the present transaction does not arise from any such visit and that the service of the writ upon him here was to some extent fortuitous.

10. Finally I would have noted that, due to the lack of any agreement for reciprocal enforcement of judgments in Switzerland, should the plaintiff finally succeed in his action here other proceedings in Switzerland would still be necessary if he were to seek to enforce it there. The other matters canvassed, with many fine distinctions and much nice argument, before us do not seem to me to carry much significance one way or the other.

11. I appreciate, of course, that that is not the correct approach of this court which will interfere with the exercise of discretion of a judge at first instance only if it can be shown that he misdirected himself in some way or other or was plainly wrong. There is no suggestion that he was plainly wrong. The substantial burden of the appeal, as to misdirection, is that the judge confused the question of the proper law of the contract with that of the appropriate forum, and in particular elevated the former to a decisive test. Secondly that he relied upon the written agreement of l8th July as having "fundamental importance" to the ascertainment to the proper law.

12. For my part I do not see why the judge should not have had regard to that agreement. It was drawn up by the plaintiff's own solicitors in Hong Kong and signed on his behalf by his wife. There is nothing to suggest that it did not represent the true intention of the parties at the tune it was made: cf. to the contrary, the plaintiff's letter which appears at p. 101 of the appeal bundle. It is pertinent to note that this agreement specifically provides that it shall be governed by the laws of Switzerland and the parties expressly submit themselves to a non-exclusive jurisdiction of the courts of that country.

13. The other complaint is not so easily disposed of. The judge appears to altercate easily and without clear distinction between consideration of the proper law and consideration of forum non conveniens. To be fair to him, that may have resulted from the way in which the arguments were presented. Mr. Tony, however, argues that if his judgment is properly analysed, the judge will be found to have correctly applied the test formulated by Lord Goff; that he considered all the relevant connecting factors which he found to be evenly balanced save for two, i.e. that the proper law was Swiss and that the defendant had only a tenuous connection with Hong Kong, which two factors tipped the balance in favour of Switzerland.

14. I accept the force of that analysis, but even so I find it difficult to avoid the impression that the judge may have attached considerably more importance to the factor of the proper law than it seems to me to be able to bear in the present instance. However, for the reasons I have indicated earlier, were I required to substitute my discretion for that of the judge below, I would in any event have exercised it in the same way that he did, so that in any event the appeal must fail. For my part I would dismiss it.

Kempster, J.A.:

15. I agree and only wisn to emphasise the importance, as I see it, of the written agreement relating to the watch with which we are concerned, signed by Habsburg and the plaintiff, by his attorney, not more than two days after the conclusion of the oral contract for purchase and sale as between defendant and plaintiff alleged. Whether or not reference to this watch was deleted by subsequent variation of the terms drawn by the plaintiff's solicitors, it demonstrates his qualified submission to and acceptance of the suitability of the courts of Switzerland in any dispute with Habsburg about the watch. It is difficult in these circumstances for him to contend that those courts were not also appropriate for the resolution of any dispute between him and the defendant in relation to that watch. That is one reason why, in my opinion, the defendant has plainly demonstrated that the courts of Switzerland constitute the forum in which the case can be suitably tried for the interests of all parties and for the ends of justice and clearly so.

Clough, J.A.:

16. I agree that this appeal should be dismissed for the reasons given in both of the judgments which have just been delivered.