Back
2021 MarsdenLR 1832
HIGH COURT MALAYA SHAH ALAM
ALUPANORAMA METALS SDN BHD & ANOR – Appellant
Versus
OKAYA INTERNATIONAL (H.K.) LTD & ANOR) – Respondent
[Writ Summons No: BA-22NCC-109-09-2019]
Court must assume truth of plaintiffs' allegations for jurisdiction over non-resident defendants, confirming jurisdiction under both ROC O 11 and CJA s 23.
Headnote:(A) Rules of Court 2012 - Order 11 and Order 12 - Jurisdiction over non-resident defendants - The Court found jurisdiction based on both the leave order under O 11 and s 23 of the Courts of Judicature Act 1964 - D1's application to set aside was dismissed as it was established that the High Court in Malaysia is the appropriate forum. (Paras 9, 20, 93)
(B) Legal principles - High Court assumes plaintiff's allegations as true in jurisdiction matters - The leading principle established in numerous rulings delineates that the court must first ascertain if cause of action exists for entering into inquiries regarding jurisdiction. (Paras 12, 22, 40)
Facts of the case: The Plaintiffs, Malaysian companies, initiated legal action against D1 and D2 over allegations of breach of contract concerning aluminium products purchased, asserting fraudulent behavior and seeking significant compensatory relief.
Findings of Court: The Court upholds its jurisdiction based on established law, asserting Malaysia as a suitable venue to litigate the dispute between parties.
Issues: The main issues framed by the Court included assessing whether all material facts were disclosed, whether serious issues exist to be tried, and determining the appropriate forum for the case.
Ratio Decidendi: The court emphasized the necessity to assume the truth of the plaintiffs’ allegations when reviewing jurisdictional claims while also reaffirming the existing association of jurisdiction with non-resident cases as per statute and case law. (Paras 37, 40, 78)
Result: D1's application to set aside the writ and related documents is dismissed with costs.
JUDGMENT
(Enclosure 17)
A. Introduction
[1] The Plaintiffs are Malaysian incorporated companies, carrying on the business in Malaysia of purchasing, fabricating and selling metal products, in particular aluminium products. The second Plaintiff ("P2") is a subsidiary of the first Plaintiff ("P1").
[2] The first Defendant ("D1") is a company incorporated in the Hong Kong Special Administrative Region of the People's Republic of China ("Hong Kong") and carries on business in Hong Kong. The second Defendant ("D2") is a state-owned enterprise of the People's Republic of China ("PRC") and carries on business in the PRC.
[3] In September 2019, the Plaintiffs filed a writ and statement of claim against both D1 and D2 seeking declaratory reliefs for alleged breach of contract, fraud and unjust enrichment; full indemnity for the minimum sum of USD22,487,003.30 against potential claims against the Plaintiffs' by its customers arising out of the Defendants' breach of contract and fraudulent actions in the sale and supply of aluminium products; and judgment in the sum of USD206,211.81 together with interest for loss and damages suffered by the Plaintiffs.
[4] The Plaintiffs also applied to this Court under O 11 of the Rules of 2012 ("ROC") to serve out of the jurisdiction on D1 and D2, the notice of the writ. On 23 September 2019, this Court granted the Plaintiffs leave to serve out of the jurisdiction the notice of the writ on the Defendants ("leave order").
[5] Pursuant to the leave order granted by this Court, the Plaintiffs served the notice of the writ together with the writ and statement of claim on D1 by way of personal service at D1's office in Hong Kong on 22 October 2019.
[6] The application in this Enc. 17 is D1's application to set aside the writ and statement of claim, the notice of the writ and the leave order under O 12 r 10 of the ROC. D1 had entered its appearance on 6 November 2019 and filed this application on 5 December 2019.
[7] Order 12 r 10 of the ROC states that a defendant who intends to dispute the jurisdiction of the Court in a proceedings shall enter appearance and, within the time limited for serving a defence, apply to the Court for:
"(a) an order setting aside the writ or service of the writ on him;
(b) an order declaring that the writ has not been duly served on him;
(c) the discharge of any order giving leave to serve a notice of the writ on him out of the jurisdiction;
(d) the discharge of any order extending the validity of the writ for the purpose of service;
(e) the protection or release of any property of the defendant seized or threatened with seizure in the proceedings;
(f) the discharge of any order made to prevent any dealing with any property of the defendant;
(g) a declaration that in the circumstances of the case the Court has no jurisdiction over the defendant in respect of the subject matter of the claim or the relief or remedy sought in the action; or
(h) such other relief as may be appropriate."
[8] One of the fundamental legal principles in determining the High Court's jurisdiction over a non-resident defendant (the jurisprudence and the evolution of this legal principle in Malaysia is discussed in the body of this Judgment) is whether the High Court has jurisdiction either pursuant to a leave order to the serve the notice of a writ out of the jurisdiction on a non-resident defendant granted by the High Court pursuant to O 11 of the ROC and/or pursuant to s 23 of the Courts of Judicature Act 1964 ("CJA").
[9] At the conclusion of the hearing of D1's application in Enc. 17, this Court found that the High Court of Malaya does have jurisdiction over D1 pursuant to the leave order granted under O 11 of the ROC and also under s 23(1) of the CJA. It also found that Malaysia is not a forum non conveniens. For the reasons discussed in this Judgment, this Court found that Malaysia is the suitable or appropriate jurisdiction to inquire into and determine the issues in dispute between the Plaintiffs a
