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2021 MarsdenLR 2120
HIGH COURT (SHAH ALAM)
FAIZAH JAMALUDIN, J
Alupanorama Metals Sdn Bhd & Anor – Plaintiff
Versus
Okaya International (HK) Ltd & Anor – Defendant
WRIT SUMMONS NO BA-22NCC-109-09 OF 2019
The Malaysian High Court has jurisdiction over non-resident defendants when a leave order is granted for service out of jurisdiction, asserting its authority based on allegations in the statement of claim.
Headnote:(A) Rules of Court 2012 - Order 11 - Courts of Judicature Act 1964 - Jurisdiction over non-resident defendants - Court finds jurisdiction over a non-resident defendant exists based on leave order and statutory provisions - Claim for breach of contract, fraud, and unjust enrichment upheld. (Paras 8, 9, 20)
(B) Jurisdiction Determination - The court must assume the plaintiff's allegations in a statement of claim are true when determining jurisdiction and cannot deny jurisdiction without clear proof of lack of power to grant relief. (Paras 21, 37, 40)
(C) Forum Non Conveniens - Court affirms Malaysia is the proper forum due to strong connections with the case, dismissing claims that Hong Kong or PRC is more appropriate. (Para 93)
Facts of the case:
Plaintiffs, Malaysian companies, alleged D1 (Hong Kong company) and D2 (PRC state-owned enterprise) breached contracts regarding aluminium supplies, leading to significant financial losses. Court granted leave to serve notice out of jurisdiction on defendants.
Findings of Court:
High Court of Malaya has jurisdiction over D1, which is an appropriate forum for trial; application to dismiss was denied.
Issues: Whether jurisdiction exists for non-resident defendants; whether the Malaysian court is the appropriate forum for the case; adequacy of plaintiffs' disclosures.
Ratio Decidendi: The court upheld principles that require the assumption of truth regarding the plaintiffs' claims and established jurisdiction based on statutory provisions and the facts of the case, highlighting the importance of full disclosure in applications for leave to serve out of jurisdiction.
Result: Application by D1 to set aside writ and claim dismissed with costs.
| Table of Content |
|---|
| 1. plaintiffs filed claims for contract breach. (Para 1 , 2 , 3 , 6 , 34) |
| 2. high court's jurisdiction over non-residents. (Para 8 , 9) |
| 3. jurisdiction is conferred by roc order 11. (Para 11 , 13) |
| 4. service of warrants and jurisdiction defined. (Para 14 , 18) |
| 5. evolving jurisprudence on jurisdiction. (Para 19) |
| 6. serious issues must exist to proceed. (Para 59 , 60) |
| 7. significant connections validate jurisdiction. (Para 63) |
| 8. dismissal of d1’s application affirms jurisdiction. (Para 92) |
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 Order 11 of the Rules of Court 2012 (“ ROC ”) to serve out of the jurisdiction on D1 and D2, the notice of the writ. On 23.9.2019, 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 22.10.2019.
[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 Order 12 rule 10 of the ROC . D1 had entered its appearance on 6.11.2019 and filed this application on 5.12.2019.
[7]Order 12 rule 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 Order 11 of the ROC and/or pursuant to section 23Courts of Judicature Act 1964CJA”).
