Holdrich Investment Ltd v Siemens AG

• Jurisdiction: Singapore
• Judge: Lee Seiu Kin J
• Judgment Date: 21 December 2009
• Neutral Citation: [2009] SGHC 284
• Docket Number: Suit No 679 of 2008 (Registrar's
• Date: 21 December 2009
• Published date: 23 December 2009
• Year: 2009
• Plaintiff Counsel: N Sreenivasan and Collin Choo (Straits Law Practice LLC)
• Citation: [2009] SGHC 284
• Defendant Counsel: Gregory Vijayendran and Sung Jingyin (Rajah & Tann LLP)
• Court: High Court (Singapore)
• Subject Matter: Natural forum,Conflict of Laws

21 December 2009

Lee Seiu Kin J:

1 On 23 September 2008, the plaintiff filed the writ of summons in this action. The plaintiff then obtained leave on 11 November 2008 to serve the writ of summons on the defendant outside the jurisdiction pursuant to O 11 r 1(d)(iii) of the Rules of Court (Cap 322, R5, 2007 Rev Ed) (“Leave Order”). However on 4 May 2009, in summons no 1100 of 2009, the defendant obtained an order discharging the Leave Order. The plaintiff appealed before me against the decision of 4 May 2009.

2 The appeal turned on whether Singapore is forum non conveniens, because if it is, then the appeal should be dismissed, and vice versa. After hearing counsel’s submissions on 17 July 2009, I held that Singapore was clearly the more appropriate forum and allowed the appeal. I set aside the order of 4 May 2009 which discharged the order granting leave to serve the writ outside jurisdiction and reinstated the Leave Order. The defendant has since appealed against my decision and I now give the grounds for my decision.

3 The plaintiff is a Hong Kong company and the defendant a German company. They entered into a contract entitled “Service Agreement” under which the plaintiff undertook to render what is best described as “consultancy services” in respect of a project known as the “UMTS Project”. This Service Agreement was subsequently amended by common consent. I shall refer to the amended agreement as “the Contract”. Under the Contract, the plaintiff was to receive a commission fee equivalent to 2% of the value of the supply contract for the UMTS Project upon its award to Siemens Information and Communication Networks S.p.A., an Italian company related to the defendant. The Contract provides that it shall be governed by Singapore law. Apart from that provision, there appears to be no other connection to Singapore.

4 The plaintiff’s claim is for the sum of US$2.33m, being the sum payable under the Contract in respect of the “consultancy services” provided to procure UMTS projects in India and Indonesia. The defendant denied liability and took the position that Germany is the more appropriate forum to hear the dispute, essentially because the persons who negotiated and executed the Contract on its behalf, and who will be called as its witnesses, are no longer in its employ and are located in Germany. These witnesses are important for a possible defence based on implied terms of the Contract. Another defence is that of lack of...