FAT KEE STEVEDORES LTD v. DELMAS HONG KONG LTD AND ANOTHER

DCCJ1658/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 1658 OF 2008

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D E C I S I O N

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1.  I will deal with the summons filed on 17 September 2008.  This is the application by the plaintiff to set aside the judgment entered against it on 12 September 2008.  The judgment obtained by the 1st defendant is a regular judgment.

2.  The plaintiff’s case is based on a misstatement made on the shipping documents provided by the 1st defendant, which led to the occurrence of the incident in question, causing losses to the plaintiff.  The 1st defendant says that it was the plaintiff’s negligence which caused the incident and it counterclaims against the plaintiff for losses sustained as a result of the incident.

3.    Under paragraph 5 of the defence and paragraph 17 of the counterclaim, the 1st defendant avers that it was the agent of Delmas SAS engaged the plaintiff to perform cargo-handling services on board the vessel in question.  In its defence, the 1st defendant avers that the 1st defendant, in his capacity as agent, should not be liable for any damages caused by its principal, if any.  By the same logic, in its capacity as the agent for Delmas SAS it has no legal capacity to claim damages against the plaintiff.  The counterclaim should be instituted by the principal, if what the 1st defendant says is correct.

4.  According to Bowstead and Reynolds on Agency, 18th Edition at page 499, this says:

“In the absence of other indications, when an agent makes a contract purporting to act solely on behalf of a disclosed principal later identified or unidentified, he is not liable to the 3rd party on it, nor can he sue the 3rd party on it.”

5.  The plaintiff’s submissions in this respect, namely, that it has a meritorious defence to the counterclaim of the 1st defendant, is supported by the facts and authority.  So the judgment obtained by the 1st defendant, it being interlocutory judgment entered against the plaintiff on 12 September 2008, must be set aside.

6.   I make an order that this judgment be set aside.

(Submissions on Costs)

7.  Costs of this summons be costs in the cause of the counterclaim, with certificate for counsel.  I make this ruling because obviously the plaintiff did not observe the time frames laid down in the statute, thereby causing the defendant to enter judgment.  On the other hand, the counterclaim of the 1st defendant has no merit.  So it is not a winning by one side situation.  On the one hand, the plaintiff was at fault; on the other hand, there is no merit in the counterclaim so I make this order for costs.

8.  I will deal with the summons dated 29 August 2008.  Item 3 is the only item in issue.  Delmas SAS is a legal entity in France; hence, it is not within the jurisdiction of the Hong Kong courts.  Under Order 11 of the Rules of the District Court, the amended statement of claim has to be served out of the jurisdiction of Hong Kong in order for the case to be brought to the attention of Delmas SAS so that it can respond to it.  Whether Delmas SAS has an agent in Hong Kong or not, this rule applies.

9.  The plaintiff applies for service of the amended writ under Order 10, rule 2 of the Rules of the District Court, under which this court has a discretion to order service of a writ to be effected on the agent instead of the principal.  This rule is not an ordinary rule applying in normal circumstances.  If it is a mandatory rule, then it should be that it is a mandatory rule imposing the court the mandatory power to make the order for service of the writ on the agent, but, instead, it empowers the court to have the discretion to do so.  So the plaintiff must demonstrate why the normal rule under Order 11 has no application or is inappropriate in this case, but Order 10 should apply.

10.  The evidence of Mr Patrick Yeung, solicitor for the plaintiff, only shows that this court could grant leave to serve the writ on Delmas SAS outside the jurisdiction of Hong Kong if necessary.  Under paragraph 21 of his affirmation, he says:

“The plaintiff can therefore bring this case within Order 11, rule 1(c) (d) (i) (ii) (e) and (f) of the RDC and this court can grant leave to serve the writ on Delmas SAS outside the jurisdiction of Hong Kong, if necessary.”

11.  He did not say that it is a necessity to make use of the rule under Order 10, a necessity for the service of the writ on Delmas SAS.  Under paragraph 23 of his affirmation, he only made a submission that the relevant requirements under Order 10, rule 2 of the RDC had been complied with, and the 1st defendant therefore applies for an order for the amended writ of summons together with a statement of claim of this section to be verily effectively served on the 1st defendant instead of Delmas SAS in France, so that the time and costs for service out of the amended writ upon Delmas SAS outside the jurisdiction of Hong Kong could be avoided.  There are no particulars as to the time and costs which can be avoided.  This is a general statement.  He has to demonstrate why it would save time and costs.  The saving must be substantial.  Otherwise it does not serve any purpose.  There is no particular of the evidence to say that substantial time and costs for service out of the jurisdiction would be saved; hence, he has not shown why Order 11 should not be followed because there is no substantial evidence apart from a mere statement that Order 10, rule 2 should be adopted.  That being the case, the plaintiff has not made out their case to support this application that Order 10 of the RDC should be adopted instead of Order 11 of the RDC.  I therefore dismiss the application for item 3 of the summons.  I make an order in terms of items 1, 2, 4 and 6 of the summons.

(Submissions on costs)

12.  Costs of this summons to the 1st defendant to be taxed if not agreed, with certificate for counsel.