Transniko Pte Ltd v Communication Technology Sdn Bhd

• Jurisdiction: Singapore
• Judge: Kan Ting Chiu J
• Judgment Date: 20 December 1995
• Neutral Citation: [1995] SGHC 292
• Docket Number: Civil Suit No 267 of 1995 (Registrar's Appeal No 196 of 1995)
• Date: 20 December 1995
• Year: 1995
• Published date: 19 September 2003
• Plaintiff Counsel: S Gunaseelan (S Gunaseelan)
• Citation: [1995] SGHC 292
• Defendant Counsel: Suresh Nair (Allen & Gledhill)
• Court: High Court (Singapore)
• Subject Matter: Service out of jurisdiction,O 11 r 2(1) Rules of the Supreme Court,Some contracts made in Malaysia and others in Singapore,Acceptance by telephone,Formation,Writ of summons,Contract made in jurisdiction where acceptance received,Application to set aside,Contract,Failure to make full disclosure,Civil Procedure

The question in this case is whether an order giving leave to the plaintiffs to serve a writ out of the jurisdiction should be set aside on the defendants` complaint that the plaintiffs did not make full and frank disclosure of all the facts relevant to the application.

The plaintiffs claim against the defendants S$254,779.32, which they allege to be owing to them as the balance of the price of goods they sold and delivered to the defendants. It was pleaded in the alternative that the defendants owed them RM406,506.00 on an account stated.

The plaintiffs, a Singapore company carrying on business in Singapore, filed their action here against the defendants, a Malaysian company carrying on business in Kuala Lumpur. The plaintiffs applied for and obtained an order on 17 February 1995 under O 11 r 1 of the Rules of the Supreme Court 1990 for leave to serve it outside Singapore. Elizabeth Low Geok Neo, a director of the company, filed two affidavits on 16 and 17 February in support of the application. In the first affidavit she said, `I believe that this court has jurisdiction to try this action by virtue of the fact that the contracts for sale were all made within the jurisdiction, in Singapore` and that the facts in support of that were set out in the statement of claim. In her second affidavit, she elaborated that `this application is made pursuant to O 11 r 1(d)(i)` without disclosing any grounds.

Order 11 r 1(d)(i) of the Rules of the Supreme Court reads:

1 Provided that the originating process does not contain any claim mentioned in Order 70, Rule 3(1), service of an originating process out of Singapore is permissible with the leave of the Court if in the action -

...

(d) the claim is brought to enforce, rescind, dissolve, annul or otherwise affect a contract, or to recover damages or obtain other relief in respect of the breach of a contract, being (in either case) a contract which -

(i) was made in Singapore.

After the writ was served on them, the defendants applied to set aside the service, alternatively to stay the proceedings on the ground of forum non conveniens.

The defendants` application was heard and dismissed. When the matter came before me on appeal, I allowed the appeal and set aside the order of 17 February.

Order 11 r 2 governs applications for leave to serve process outside Singapore. Rule 2(1) provides that:

(1) An application for the grant of leave under Rule 1 must be made by an ex parte summons in Chambers supported by an affidavit in Form 12 stating -

(a) the grounds on which the application is made;

(b) that in the deponent`s belief the plaintiff has a good cause of action;

(c) in what place or country the defendant is, or probably may be found; and

(d) where the application is made under Rule 1(c), the grounds for the deponent`s belief that there is between the plaintiff and the person on whom an originating process has been served a real issue which the plaintiff may reasonably ask the Court to try.

Rule 2(1)(a) obliges the applicant to state more than the limb of r 1 that he relies on, and Form 12 requires him to specify the sub-rule under which the application is made and the facts in support of that.

In Seaconsar Far East Ltd v Bank Markazi Jomhouri Islami Iran [1993] 3 WLR 756; [1993] 4 All ER 456, the House of Lord considered O 11 of the English Rules of the Supreme Court. After reviewing a host of authorities the court concluded that in considering whether jurisdiction of the court has been sufficiently...