Liza Chan Sow Keng JC:

GROUNDS OF JUDGMENT

Introduction

[1]Enclosure 19 is the Defendant’s Notice of Application dated 8.7.2020 to set aside the service of the Notice of Writ dated 23.12.19 as well as to challenge the jurisdiction of the Courts in Malaysia to hear the dispute pursuant to Order 12 Rule 10 (1) and/or (2) of the Rules of Court 2012 (“ROC 2012”) and/or the inherent jurisdiction of the Court.

[2]The relevant cause papers are as follows:

(a)The Defendant’s Notice of Application dated 8.7.2020 (“Enclosure 19”);

(b)The Defendant’s Affidavit in Support dated 1.7.2020 (“Defendant’s Affidavit 1”);

(c)The Plaintiff’s Affidavit in Reply dated 27.7.2020 (“Plaintiff’s Affidavit 1”);

(d)The Defendant’s Affidavit in Reply dated 12.8.2020 (Defendant’s Affidavit 2”);

(e)The Plaintiff’s Affidavit in Reply No. 2 dated 1.9.2020 (“Plaintiff’s Affidavit 2”);

(f)The Plaintiff’s Affidavit of Service affirmed on 29.9.2020; and

(g)The Defendant’s Affidavit in Reply No. 2 affirmed on 2.10.2020.

Background

[3]The Plaintiff is a Malaysian incorporated company in the business of manufacture and supplies of milk powder internationally.

[4]The Defendant is a New Zealand company in the business of producing, supplying and exporting New Zealand dairy products including milk powder.

[5]The Plaintiff was a customer of the Defendant until this dispute.

[6]Sometime on or about August 2016, the Plaintiff started purchasing instant whole milk powder (“IWMP”) from the Defendant for reselling as consumable instant whole milk powder.

[7]According to the Plaintiff, the salient, express and/or implied terms of the 7 purchases (“7 Contracts”) were the same and they are as follows:

(a)The descriptions of the milk powder are as follows:

(i)Physical properties

Light cream in colour, free flowing powder

(ii)Flavour and Odour

Sweet desirable flavour, free from undesirable flavour

(iii)Expiration Dates

2 years from production dates

(b)Pursuant to Section 15Sales of Goods Act 1957

(c)Pursuant to Section 16Sales of Goods Act 1957

(d)It is also an implied condition in all the 7 Contracts that the milk powder shall be of merchantable quality.

[8]According to the Plaintiff, amongst the purchases, were 7 purchases, which had been fully paid by the Plaintiff but were unconsumable.

[9]The Plaintiff discovered that a substantial part of the milk powder were defective. They suffer caking, poor solubility, poor wettability, discolouration, off odour, off flavour, high moisture content, colour turned brownish and separation despite being described to have a shelf life of 2 years from production dates under the contract.

[10]The Plaintiff lodged complaints to the Defendant on 5 occasions, namely on 16.5.2017, 15.1.2018, 22.1.2018, 17.7.2018 and 29.4.2019 whenever defects were discovered.

[11]The Plaintiff had allegedly paid USD4,652,714-04 for all the 7 Contracts. The defective portion of the milk powder amounted to USD3,493,048-80.

[12]By letter dated 1.7.2019, the Plaintiff demanded against the Defendant the sum of USD3,493,048-80 but the demand was ignored.

[13]On 19.11.2019, the Plaintiff filed this suit against the Defendant claiming the sum of USD3,493,048-80, general damages for loss of profit and loss of market, interest and costs.

[14]On 25.6.2020, the Defendant entered appearance to this suit. On 8.7.2020, the Defendant filed Enclosure 19.

[15]I now move on to consider the issues in the application, namely:

(i)Whether the Notice of the Writ should be set aside on the ground that the said Notice of the Writ was not served in accordance with the laws of New Zealand; and

(ii)Whether the Malaysian Courts should not assume jurisdiction over this dispute as there is allegedly an express choice of jurisdiction clause in the relevant contract(s).

Whether the Notice of the Writ should be set aside on the ground that the said Notice of the Writ was not served in accordance with the laws of New ZealandDefendant‘s contentions

[16]The Defendant’s counsel argued that the Notice of the Writ should be set aside because