Colgate-Palmolive (Asia) Ltd v Swedish East Asia Company Ltd

• Jurisdiction: Singapore
• Judgment Date: 30 September 1966
• Date: 30 September 1966
• Docket Number: Civil Appeal No 57 of 1965
• Court: Federal Court (Singapore)

Colgate-Palmolive (Asia) Ltd

Plaintiff

and

Swedish East Asia Co Ltd

Defendant

[1966] SGFC 9

Wee Chong Jin CJ

,

Tan Ah Tah FJ

and

A V Winslow J

Civil Appeal No 57 of 1965

Federal Court

Civil Procedure–Parties–Party incorrectly named in writ–Leave granted for substitution of party's name–Whether this was a correction of misnomer or substitution of new party–Limitation of Actions–When time begins to run–Substitution of new party in writ–Whether time ran from original action or from service of writ on new party–Whether action time-barred–Order XVI rr 11 (4), 13 The Rules of the Supreme Court 1934

Prior to the expiry of the one-year limitation period, the appellants issued a writ claiming damages from Malaya Indonesia Line. Malaya Indonesia Line was not an entity known to the law, but was a name under which three incorporated shipping companies, including the respondents, Swedish East Asia Co Ltd, carried on business. After the expiry of the one-year limitation period, the appellants successfully applied for the substitution of “Swedish East Asia Co Ltd” as defendants in place of “Malaya Indonesia Line”.

Pursuant to a consent order, a special case was stated by the parties for consideration of the question of law: whether the appellants' claim against the respondents was barred by limitation for the reason that the respondents were substituted for “Malaya Indonesia Line”, after the expiry of the one-year limitation period. The judge answered the question in the affirmative. Being dissatisfied with the judge's conclusion, the appellants appealed, arguing that the amendment was a mere correction of a misnomer.

Held, dismissing the appeal:

(1) In deciding whether a case of misnomer had occurred in the name on the writ, the test to be applied was how would a reasonable person receiving the document take it. The question of the exact legal status of Malaya Indonesia Line was irrelevant because it had an existence of some kind which was recognised in the mercantile world. The recipients of the writ were entitled to conclude that it was Malaya Indonesia Line whom the appellants actually intended to sue because the appellants had already been previously informed by the recipients that the principals concerned were Swedish East Asia Co Ltd. Further, there was not even the remotest resemblance between the two names. There was thus no question of a mere correction of a misnomer: at [16] to [18].

(2) It was clear from O XVI r 11 (4) that proceedings as against Swedish East Asia Co Ltd should be deemed to have begun only on the service of the writ on them. Since service of the writ was dispensed with, proceedings against them were instituted, at the very earliest, only when they were made a party to the action, by which time the period of limitation had already expired. The defence of limitation was thus open to the respondents: at [22].

(3) O XVI r 13 did not contemplate any inroads on the law relating to limitation so as to enable a substituted defendant to be made liable as though he had been sued in the first instance within the statutory period. The concluding words of O XVI r 11 made it clear that when a defendant was added or substituted, the proceedings could not be ante-dated as against him as he had a vested right not to be successfully sued outside the limitation period: at [23].

Davies v Elsby Brothers Ltd [1961] 1 WLR 170; [1960] 3 All ER 672 (folld)

Nos 55 & 57 Holmes Road, Kentish Town, Re [1959] Ch 298; [1958] 2 All ER 311 (folld)

Whittam v WJ Daniel & Co Ltd [1962] 1 QB 271; [1961] 3 All ER 796 (distd)

Rules of the Supreme Court1934 , TheO XVI rr 11 (4), 13 (consd); O XVI 12

M Karthigesu (Allen & Gledhill) for the appellant

A P Godwin (Donaldson & Burkinshaw) for the respondent.

A V Winslow J

1 By a writ of summons dated 14 January 1964 the plaintiffs/appellants claimed damages from Malaya Indonesia Line in respect of a shipment to them from New York of certain goods on a vessel named Hermund delivery whereof was effected at Port Swettenham on or within a few days of 15 February 1963.

2 It is common ground that the carrier and the ship are discharged from all liability in respect of loss or damage to such goods unless an action is commenced within one year after such delivery. The one-year limitation period, therefore, expired within a few days of 15 February 1964 and in any event before 3 April 1964.

3 A conditional appearance was entered by Malaya Indonesia Line, the original defendants, and by Summons in Chambers No 118 of 1964 dated 25 January 1964 they applied for an order that the writ of summons be set aside for irregularity on the grounds that (a) the defendants were not an entity known to the law and (b) the notice delivered at the time of the service of the writ was bad. The application was heard by F A Chua J on 21 February 1964 and adjourned to 3 April 1964.

4 By Summons in Chambers No 411 of 1964 dated 26 March 1964 and heard on 3 April 1964 the plaintiffs/appellants successfully applied to F A Chua J...