JH Rayner (Mincing Lane) Ltd v Teck Hock & Co (Pte) Ltd and Others

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JC
• Judgment Date: 30 December 1989
• Neutral Citation: [1989] SGHC 107
• Docket Number: Suit No 1219 of 1987
• Date: 30 December 1989
• Published date: 19 September 2003
• Year: 1989
• Plaintiff Counsel: Loo Dip Seng (Ang & Partners)
• Citation: [1989] SGHC 107
• Defendant Counsel: Yap Fai Ming (Drew & Napier)
• Court: High Court (Singapore)
• Subject Matter: O 11 rr 1(h) & 1 (j) Rules of the Supreme Count 1970,Leave to serve writ of summons out of jurisdiction,Choice of jurisdiction,Forum non conveniens,Civil Procedure,Service,Conflict of Laws,Place where tort committed,Factors to be considered

This is an appeal by the third to sixth defendants against the decision of the registrar refusing an application by those defendants to set aside a notice of concurrent writ of summons served out of the jurisdiction. The question raised is whether the writ should be served on those defendants who are resident outside Singapore.

By this action, the plaintiffs, a company incorporated in the United Kingdom and carrying on business there, claim against the six defendants named herein for conversion and the recovery of 502.075 metric tonnes of Uganda Robusta coffee beans or the proceeds thereof.

It is alleged in the statement of claim that by a contract dated 13 June 1986, the plaintiffs agreed to sell to the first defendant about 500 metric tonnes of the said coffee beans. It was a term of the contract that the ownership of the goods remained vested with the plaintiffs until payment was received. Eventually 502,075 metric tonnes of the said coffee beans were shipped from Mombasa to Singapore. The relevant bills of lading, together with the plaintiffs` invoices, were sent to a bank in Singapore for collection by the first defendant against payment. The first defendant failed to collect the documents against payment and without the plaintiffs` consent, knowledge or authority wrongfully obtained possession of the said goods from the vessel.

The plaintiffs further claim that subsequently the first defendant, without title and wrongfully, sold and delivered 350 metric tonnes of the coffee beans to the second defendant and another 149 metric tonnes of the coffee beans to the third or fourth or fifth or sixth defendant. For these two sales, the first defendant were paid by the purchasers the sums of US$1,100,466.72 and US$571,766.40 respectively. The payments were received in Singapore. The sales were expressed to be FOB, Singapore.

In an affidavit filed on 5 May 1987 by one Mr Loo Dip Seng on behalf of the plaintiffs, the material facts as set out above were affirmed.

As the second, third, fourth, fifth and sixth defendants are resident outside Singapore, the plaintiffs applied for and obtained leave to issue a concurrent writ of summons to be served out of the jurisdiction. The plaintiffs relied on O 11 r 1(h) and/or r 1(j) of the Rules of the Supreme Court 1970 (RSC).

On being served with the notice of concurrent writ of summons, the third to sixth defendants entered conditional appearance, followed by an application to set aside the said notice for want of jurisdiction. Alternatively, they asked the court to set aside the said notice in the exercise of its discretion. In the further alternative, they asked that the proceedings herein against them be stayed. The application was dismissed by the registrar with costs. The third to sixth defendants (hereafter collectively referred to as the defendants) appealed against that decision of the registrar. I dismissed with costs the appeal of the third defendant but allowed the appeal with costs in so far as the fourth to sixth defendants were concerned. The third defendant has appealed to the Court of Appeal. I now give my reasons.

The defendants contended that the dispute does not come within the jurisdiction of the High Court. The defendants in an affidavit filed herein on 13 November 1987 said that the contract between the first defendant and the third defendant was negotiated by telephone between Singapore and Oakland California: the offer to sell was made by an officer of the first defendant in Singapore and accepted by one Mr Elroy Fulmer for the third defendant in California. The third defendant denied that the sale was FOB, Singapore and alleged that it was ex-dock, Oakland. Payment was only made well after the goods had arrived at Oakland. The third defendant does not maintain any office or presence (either directly or through agents) in Singapore.

Under O 11 r 1 of the RSC, service of a notice of a writ out of the jurisdiction is permissible with the leave of the court in, inter alia, the following cases:

(h) if the action begun by the writ is founded on a tort committed within the jurisdiction;...

(i) ) if the action begun by the writ being properly brought against a person duly served within the jurisdiction, a person out of the jurisdiction is a necessary or proper party thereto.

Mr Yap for the defendants argued that the tort was in fact committed in the United States. He said that the fact that the contract had an FOB clause did not necessarily mean that it was an FOB contract. He emphasized the fact that delivery was at United States and that was where the tort was committed. However, he conceded that the payment made by the third defendant to the first defendant was on the basis of FOB, Singapore. As regards r 1(j), Mr Yap argued that this rule should be applied with circumspection and that this court should bear in mind the principles governing the plea of forum non conveniens.

Counsel for the plaintiffs conceded, in the light of the facts that subsequently emerged, that the plaintiffs have no claim whatsoever against the fourth to sixth defendants. The sale of the coffee beans in question was from the first defendant to the third defendant. The fourth to sixth defendants, though connected with the third defendant, had nothing to do with the purchase of the coffee beans. It would appear that the plaintiffs were initially uncertain whether the fourth to sixth defendants were in any way involved in the purchase and thus, presumably out of caution, cited them as defendants as well.

From the documents exhibited in the affidavit of Loo Dip Seng filed on 5 May 1987, I see that approximately 147.92 metric tonnes of Uganda Robusta Coffee-beans were sold to the third defendant at the price of `US$1.60 per lb FOB`. Shipment was to be `prompt`. Terms of payment were: `document against acceptance for payment 45 days from date of draft`. The invoice issued by the first defendant on 23 September 1986 stated that the goods...