UTANIKO (HONG KONG) LTD v. MITSUI O.S.K. LINES LTD

HCA 532/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 532 OF 2010

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BETWEEN

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J U D G M E N T

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1.  This is an appeal brought by the Plaintiff against the decision of Master de Souza made on 14 February 2011 granting leave to the Defendant to amend its Summons taken out on 16 September 2010 and giving further directions for the filing of evidence by the parties. The history leading to the learned Master’s decision can be stated shortly as follows.

2.  The Writ in this action was issued on 16 April 2010.  It is an action brought by the Plaintiff as shipper against the Defendant as carrier for mis-delivery of goods. The Defendant is a corporation registered in Japan.  On 28 April 2010, the Plaintiff obtained leave from Master Levy to serve the Writ herein out of the jurisdiction on the Defendant.

3.  On 19 September 2010, the Defendant took out a Summons under Order 12 Rule 8(2A) of the Rules of the High Court seeking a stay of the proceedings on the ground that the action has been brought in breach of an exclusive jurisdiction clause contained in the relevant bills of lading which names the Tokyo District Court as the agreed forum for the resolution of the disputes in this action.

4.  The Defendant’s Summons came before Master de Souza on 14 February 2011.  At the hearing, an application was made by the Defendant for leave to amend the Summons to include a challenge against the order of Master Levy granting leave to the Plaintiff to serve the Writ out of the jurisdiction on the Defendant.

5.  The amendment application was objected to by the Plaintiff on two grounds: (i) the proposed Amended Summons did not state the grounds of the application as required by Order 12 Rule 8(3), and (ii) the proposed application to challenge the order granting leave to serve out was not supported by a verifying affidavit as required by Order 12 Rule 8(4).  The Defendant’s response was essentially that (i) the grounds of the application to challenge the order granting leave to serve out were adequately set out in counsel’s skeleton submissions, and (ii) the Defendant did not intend to rely on any further evidence in support of its challenge, other than that appearing in the affidavits already filed on behalf of the Defendant, namely, the 1^st and 2^nd Affidavits of Mr Howse.

6.  After hearing arguments, the learned Master granted leave to the Defendant to amend the Summons, and gave directions to the parties for filing of further evidence.  This led to the Plaintiff’s appeal.

7.  Prior to the hearing of this appeal, on 3 March 2011, the Defendant put forward a draft Re-Amended Summons which clearly set out the grounds in support of its application to challenge the order granting leave for service out of the jurisdiction.  The Defendant also reiterated that it did not intend to rely on any further evidence in support of its application, and proposed that the appeal be disposed of by way of a consent summons.

8.  The Plaintiff was not satisfied with the Defendant’s proposal.

9.  It transpired at the hearing this morning that the Plaintiff no longer complains about the adequacy of the proposed Re-Amended Summons, but maintains that there is no verifying affidavit in compliance with Order 12 Rule 8(4).  In my view, there is no substance in this complaint. There is no reason why the 1^st and 2^nd Affidavits of Mr Howse cannot stand as the relevant verifying affidavits.  It is up to the Defendant to decide what facts and matters it relies upon in support of its application.  So long as those facts and matters are made clear to the Plaintiff, I do not see why there must be a separate affidavit in any particular form in support of the Defendant’s challenge against the order granting leave for service of the Writ out of the jurisdiction.

10.  It is not necessary for me to decide whether the original Amended Summons sufficiently complies with the requirement of Order 12 Rule 8(3), in view of the proposed Re-Amended Summons now put forward by the Defendant, which the Plaintiff accepts to be a sufficient compliance with the rules.

11.  In the circumstances, I shall grant leave to the Defendant to further amend the Summons as per the draft Re-Amended Summons exhibited to the 3^rd Affidavit of Mr Howse, and order that service of the Re-Amended Summons be dispensed with. I shall also record, for the avoidance of doubt, that the 1^st and 2^nd Affidavits of Mr Howse filed herein do stand as the Defendant’s evidence in support of its application by way of the Re-Amended Summons.

12.  On the foregoing basis, subject to the issue of costs which I shall deal with after hearing the parties, I make no order on the Plaintiff’s Notice of Appeal.

[Argument on costs]

13.  I make no order as to the costs of drawing up the Notice of Appeal, and award to the Defendant the costs of this appeal as from 10 March 2011, on the basis that the Plaintiff should be entitled to a reasonable time to consider the Defendant’s proposal made on 3 March 2011.