XCHRX PRECIEUX GARMENT FACTORY LTD. v. THE RALPH LAUREN WOMENSWEAR CO. L.P.

1996, NO.A11705

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

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JUDGMENT

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1. This is an appeal by the Defendant from the Master's decision dismissing the Defendant's application by Summons for an Order declaring that the Writ of Summons herein has not been duly served upon the Defendant. The grounds upon which the Defendant sought for such an Order are as follows :-

(a) The purported service of the said Writ was effected at an address other than that specified by Master Jennings in his Order dated 26th May 1997; and

(b) The Defendant is a limited partnership constituted under the laws of the State of Delaware which has neither an established place of business in Hong Kong nor carries on business in Hong Kong, and which, for the purposes of service of a Writ of Summons should be served as such in accordance with the laws of Hong Kong.

The Facts

2. The Plaintiff issued the Writ of Summons against the Defendant on 14th October 1996 claiming from the Defendant the sum of US$74,526.40 or its equivalent in Hong Kong dollars being the price for goods manufactured, sold and delivered by the Plaintiff to the Defendant at the Defendant's request. The Defendant is a limited partnership carrying on business in the United States of America. The Defendant has no established place of business in Hong Kong nor any office here. For this reason the Plaintiff obtained an ex-parte Order from Master Jennings on 26th May 1997 for leave to issue a concurrent Amended Writ out of the jurisdiction. The precise wording of Master Jennings' Order is as follows :-

"IT IS ORDERED that :-

1. the Plaintiff do have leave to issue a concurrent Amended Writ and serve a sealed copy thereof together with the Amended Statement of Claim and the Acknowledgement of Service, out of the jurisdiction of Hong Kong on the Defendant at its place of business at 9 Polito Avenue, Lyndhurst, NJ 07071, the United States of America;

2. the Defendant to enter the Acknowledgement of Service of the said Amended Writ of Summons within 28 days after service thereof."

3. After obtaining this Order from Master Jennings, the Plaintiff instructed a firm of process server in USA to effect service of the concurrent Amended Writ upon the Defendant at the address stated in Master Jennings' Order ("the New Jersey address"). At the New Jersey address, the process server was informed by an adult inmate that the Defendant did not conduct business at the New Jersey address which was the place of business of an affiliated company of the Defendant. Moreover, the process server was given an address where the Defendant conducted business. The address given was 550, Seventh Avenue, 3rd Floor, New York 10018, USA ("the New York address"). Thereupon the process server conducted a company search by checking with the Department of State of New York which confirmed that the Defendant is a limited partnership registering as its place of business the New York address. Armed with this information, the process server attended the New York address and there requested to speak to someone who had authority to accept service of process on behalf of the Defendant. He was shown to a Miss Fucci being the assistant to the Vice President of the Defendant. Miss Fucci then informed the process server that she had authority to accept service on behalf of the Defendant whereupon the process server served the concurrent Amended Writ on Miss Fucci.

The Defendant's First Ground

4. Mr. Lane who appeared for the Defendant took one point only in this appeal. He submitted that because of the wording in the Order of Master Jennings, it was incumbent on the Defendant to serve the concurrent Amended Writ on at the New Jersey address only and nowhere else as the Order of Master Jones only gave leave to the Defendant to serve the concurrent Amended Writ at that address.

5. Mr. Lane frankly conceded that it is normal in orders giving a plaintiff leave for service out of jurisdiction that the order would contain the words "or elsewhere" which usually follows the address for service; and that if those words had appeared in the Order of Master Jennings, he would be out of court on the point taken by him. However, he submits that as the words "or elsewhere" was not a part of Master Jennings' Order, the Plaintiff in the present case was not entitled to serve the Defendant at the New York address without coming back to Master Jennings and obtaining an amendment to the original Order or a fresh order giving them leave to serve at the New York address.

The Plaintiff's answer

6. Mr. Lee, on behalf of the Plaintiff, answered the submission of Mr. Lane by saying that once leave is granted by a Master for service out of the jurisdiction, that leave is general and is not restricted to the address stated in the order as long as the defendant can be properly served within the country in respect of which the leave for service out of jurisdiction is granted. Unfortunately Mr. Lee did not see fit to support his submission with any authority.

The Law

7. Interesting though the argument may have been, this point is not a novel one in Hong Kong and has been decided by Deputy Judge Andrew Li Q. C. as he then was in the case of Mattel Inc. v Tonkka Corp [1991] 2 HKC 411. In that case the plaintiff, a Hong Kong company issued a writ against the defendant, a company in the United States of America, alleging infringement of copyright and trade marks against the defendant. The plaintiff obtained an ex-parte order to serve the writ on the defendant at a specified address in Minnesota but the writ was served on the defendant's agent in California, who later transmitted the documents to the specified Minnesota address. The defendant sought to set aside the order for service on the ground, inter alia, that the purported service upon the defendant of the writ was irregular. The ex-parte order also did not contain the words "or elsewhere" following the specified address. It was held that the ex-parte order did not mean that service must be effected only at the Minnesota address. In essence, the order granted leave to the Plaintiff to issue the writ and to serve it out of the jurisdiction. The reference to the address was a reference to where the defendant may be served, not where it must be served. The service in California was good service on the defendant.

8. In his judgment, Deputy Judge Li, after reciting the facts, had this to say at page 419:-

"There is no doubt that the defendant received the writ at the address in Minnesota specified in the ex parte order shortly after service on its agent in California, as is evident from the Service Transmission form I have referred to. That transmission was between the defendant's agent and the defendant and did not constitute service by the plaintiff on the defendant at the Minnesota address.

As Mr. Sakhrani acknowledges, the point is a technical one. But is it a good point?

In my judgment, it is not. I agree with Mr. Rogers that the proper interpretation of the ex parte order is that it does not mean that the service must be effected only at the Minnesota address.

In essence, the order grants leave to the plaintiff to issue the writ and to serve it out of the jurisdiction. The reference to the address was, in my judgment, a reference to where the defendant may be served, not where he must be served. Although the words 'or elsewhere' were not present, my interpretation of the order is that it permitted service in the USA on an address other than the one specified."

9. I agree with and endorse the decision of Deputy Judge Li Q. C. On this point. In the light of this decision, the argument put forward by Mr. Lane on the first ground of the appeal must be rejected.

The Defendant's Second Ground

10. There is a second ground, at least on paper, upon which this appeal is brought. This second ground relates to the Defendant being a limited partnership without an established place of business in Hong Kong. At the hearing before me, Mr. Lane indicated that he does not seek to address me on this second ground except to say that the usual practice is contained in Order 81 of the Rules of the Supreme Court.

11. My attention has been drawn by Mr. Lee to certain American cases supplied by the process server in USA to Messrs. Iu Lai and Li, the Plaintiff's solicitors in Hong Kong and which have been exhibited in the Affirmation of Alice Choi, a solicitor with Messrs. Iu Lai and Li. One such case being Oncology Associates, a limited partnership v McGraw-Hill Corp. (1985) 109 A.D. 2d 616, a decision of the Supreme Court, Appellate Division, held that a limited partnership in the USA can sue and be sued in the firm's name.

12. Moreover, I have also noted that in an Advice of Paul, Weiss, Rifkind, Wharton & Garrison (a firm of Attorney in New York) obtained by the Defendant and exhibited to the Affidavit of Jeffrey Haydn Lane, a solicitor with Messrs. Wilkinson and Grist, the Defendant's solicitors in Hong Kong, the advice given is that a process is validly served under New York Law on a limited partnership if, inter alia, it is served on an employee specifically authorised or designated to accept service on the partnership's behalf.

13. Based on the facts as already stated above, I can see nothing wrong with the process being served on Miss Fucci who accepted it on behalf of the Defendant at the New York address. From those facts Miss Fucci must be taken to be an employee of the Defendant who had authority to accept such service.

Conclusion

14. In the circumstances and for the reasons given above, the Defendant's appeal is dismissed. I shall make the usual costs order nisi that costs follow the event and award the costs of this appeal to the Plaintiff.