MONTGOMERY WARD & CO, INCORPORATED v. EVERGO TRADING CO LTD AND ANOTHER

1995, No.A2186

IN THE HIGH COURT OF HONG KONG

COURT OF FIRST INSTANCE

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J U D G M E N T

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1. This is a claim by Montgomery Ward & Co. Inc. ("MW" or the "Plaintiff") an Illinois corporation against two Hong Kong companies, namely Evergo Trading Company Limited ("Trading") and Evergo Holdings Company Limited (formerly known as Evergo Industrial Enterprise Limited) ("Industrial" or the "2^nd Defendant") to enforce a judgment obtained by MW and Montgomery Ward Importing, Inc. ("Importing") in an action in the Circuit Court of Cook County, Illinois, USA, under Docket No.87L11749 ("the Illinois proceedings"). A judgment order dated 7 October 1992 ("the US Judgment"), was made in favour of MW and Importing ("the US Plaintiffs") against "the Defendants and each of them" in the sum of US$1,146,312.06 together with costs. The Defendants named in the caption of the US Judgment were "Evergo Trading Company Limited f.k.a. Evergo Industrial Enterprise Limited, a Hong Kong corporation and Evergo Manufacturing of America, Inc. ("Manufacturing") a Delaware corporation."

2. The HK action does not concern Manufacturing. Rather, it has been brought against Trading and Industrial. Trading admitted liability on 14 September 1995 and on 29 September 1995, judgment was entered in this action against Trading. As Trading has no assets with which to meet the judgment, MW now seeks to recover the sum due under the US Judgment from Industrial. The key issue is whether the US Judgment is enforceable against Industrial in Illinois.

The US Judgment

3. This is reproduced below :

"STATE OF ILLINOIS		Attorney I.D. No. 22325
	) SS.
COUNTY OF C O O K )

IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS
COUNTY DEPARTMENT, LAW DIVISION

MONTGOMERY WARD & CO., INCORPORATED, an Illinois corporation, and MONTGOMERY WARD IMPORTING, INC., a Delaware corporation,			) ) ) ) )
Plaintiffs,			)
v.			)	No. 87 L 11749
EVERGO TRADING COMPANY, LIMITED, f.k.a. EVERGO INDUSTRIAL ENTERPRISE, LIMITED, a Hong Kong corporation, and EVERGO MANUFACTURING OF AMERICA, INC., a Delaware corporation,			) ) ) ) ) )
Defendants.			)

JUDGMENT ORDER

This cause coming on for trial, and all parties having appeared and answered 'ready for trial' by their respective attorneys, and upon the election of the defendants to waive and relinquish their right to trial by jury, this cause is submitted to the court for trial without a jury, and the court, after reviewing the pleadings and the plaintiffs' Request For Admission to which the defendants have failed to respond, and hence the court deems the Request for Admission as having been admitted in its entirety as required by law, and after hearing the evidence thus adduced and produced in open court, and being fully advised in the premises, finds the issues for the plaintiffs and against the defendants and assesses damages in the sum of $1,146,312.06. Therefore, it is hereby

ORDERED that the plaintiffs have and recover Judgment against the defendants, and each of them, in the sum of One Million, One Hundred Forty-Six Thousand Three Hundred Twelve and six one-hundredths dollars ($1,146,312.06) together with their costs herein expended. Execution to issue forthwith.

JUDGE WALTER J. KOWALSKI
OCT 07 1992
Circuit Judge"

In answer to Interrogatories dated 1 November 1996 served on them in the present action by Industrial, MW stated that the US Judgment obtained in the Illinois proceedings "is against three Defendants" namely Trading, Industrial and Manufacturing, although in further and better particulars dated 12 February 1997 of its answer to the interrogatory relating to the number and identity of defendants sued in the Illinois proceedings, MW stated that only two Defendants were sued, namely Manufacturing and Industrial.

4. For a proper understanding of the issues in this case, it is necessary to set out the chronology of events in the Illinois proceedings culminating in the US Judgment.

The Illinois proceedings

1. 1987

The Complaint

5. On 28 May 1987, the US Plaintiffs filed a Complaint at law ("the Complaint") against "Evergo Trading Company Limited f.k.a. Evergo Industrial Enterprise Limited, a Hong Kong corporation, and Evergo Manufacturing of America, Inc., a Delaware corporation." Para.3 of the Complaint alleged that :

"3. At all times material herein mentioned, Evergo Trading Company Limited, f/k/a Evergo Industrial Enterprise Limited, hereinafter referred to as 'Evergo Trading', was and now is a corporation duly organized existing under the laws of Hong Kong."

In fact, Trading and Industrial are separate corporate entities : Trading was incorporated in Hong Kong on 16 December 1983 and Industrial was incorporated in Hong Kong on 14 April 1978.

6. The US Plaintiffs asserted contractual claims arising out of a series of import purchase orders commencing in 1983 relating to kerosene heaters and ceiling fans. Counts I to III were claims asserted against Trading f.k.a. Industrial aggregating approximately US$785,000. Count I, the essential claim, was for a full refund of merchandise returned as of 30 April 1987 pursuant to the terms of the relevant purchase orders "as well as" the IBA Agreement (entered into between Importing and Industrial) a copy of which was exhibited to the Complaint. Count II related to a claim for US$50,000 odd under credit memos issued by Industrial to MW in respect of returns of defective kerosene heaters and ceiling fans. Count III related to a promotional allowance and a share of the cost of producing a sales training book totally US$81,000. Count IV was a claim against Manufacturing.

Service of the proceedings

7. On 2 June 1987, a request was issued pursuant to the Hague Convention for service of the summons and complaint on "the Defendant" in Hong Kong. The summons was addressed to Industrial. It was served together with a copy of the complaint which was attached to the summons. Trading and Industrial shared the same address. On 18 June 1987, the summons and complaint were left with Miss Chu Yim Ting Alice who claimed to be the person having the management or control of Industrial.

Appearance by Trading

8. On 20 July 1987, Haskell and Perrin entered an appearance and jury demand for Trading "for itself and not for any other party" and also filed an Answer to the Complaint subject to the same qualification. Para.3 of the Answer reads as follows :

"3. The defendant states that [Trading] is a corporation duly organized existing under the laws of Hong Kong. The defendant denies the remainder of the allegations of Paragraph 3 of Count I and each and every of them."

It is plain to any lawyer reading this answer in the light of the allegations made in paragraph 3 of the Complaint that Trading was denying that it was formerly known as Industrial.

US Plaintiffs' motion for default and for prove-up of damages

9. Some time prior to 15 September 1987, the US Plaintiffs filed a motion for default judgment and for prove-up of damages against Trading f.k.a. Industrial, on the basis that "it" had been served with process on 18 June 1987 and for a prove-up of damages. As noted above, the summons with the complaint attached was addressed to and served on Industrial. This motion was granted by the court on 15 September 1987.

10. On 6 October 1987, Haskell and Perrin wrote to Alexandra Goddard, attorney for the US Plaintiffs in the following terms :

"The motion for default judgment by [MW] did not alert me to this situation as the motion was directed to 'Evergo Trading Company, Ltd., f/k/a Evergo Industrial Enterprise, Ltd.' and our answer was filed on behalf of 'Evergo Trading Co., Ltd.' only. Assuming you had a copy of our answer, this led us to believe you were seeking a default judgment against some entity other than 'Evergo Trading Co., Ltd.'"

On the same day, Trading filed a motion to vacate any and all defaults that may have been entered against it in the action. Trading's motion was granted and an order was made on 13 October 1987 vacating all defaults that may have been entered against the Defendant Trading.

11. When the scheduled "prove-up" hearing took place on 18 November 1987, the US Plaintiffs withdrew their application. Thus the prove-up never materialized and on 24 November, the case was returned to the trial call.

Representation of US Plaintiffs

12. John J. Corbett was engaged to represent MW on 13 November 1987 and became additional counsel of record for the US Plaintiffs on 3 December 1987.

2. 1988

13. The Illinois proceedings went to sleep for about 22 months. It was reactivated only in September of 1989.

3. 1989-90

The Amended Complaint

14. An Amended Complaint was filed on 7 September 1989. The caption remained the same but the preamble referred to the Defendants as "Evergo Trading Company, Limited and Evergo Manufacturing of America Inc." without any reference to "Industrial". Paragraph 3 of the Amended Complaint reads as follows :

"3. At all times hereinafter mentioned, defendant EVERGO TRADING COMPANY, LIMITED ('Evergo Trading') was, and still is, a corporation duly organized and existing under and by virtue of the laws of Hong Kong, a British Crown Colony, engaged in the business of exporting certain goods and merchandise to the United States of America, and other nations, for sale to the public at retail, with its principal office and place of business located in the British Crown Colony of Hong Kong. Defendant Evergo Trading was formerly known as Evergo Industrial Enterprise, Limited."

15. Count I was a claim for breach of express warranties in a sum in excess of US$1.2 million. Count II was a claim for breach of implied warranties for the same amount. Count III was a claim made under para.7 of Importing's Standard Import Order relating to excessive defective products. The claim was also for a sum in excess of US$1.2 million. Count IV was a claim in respect of credit memos in the sum of US$50,000 odd. Count V was a contractual claim for US$6,000 being one half the cost of a product sales training book and Count VI was a claim against Manufacturing.

The Answer and Amended Answer to the Amended Complaint

16. On 6 December 1989, Haskell and Perrin withdrew their appearance as counsel for Trading and Tressler was substituted in their place. On 12 December 1989, Trading and Manufacturing filed an Answer to Counts II, IV, V and VI of the Amended Complaint. At the same time, they filed a motion to strike out Counts I and III of the Amended Complaint for failing to state a proper cause of action based on the absence of supporting exhibits. After this motion to strike out was dismissed, Trading and Manufacturing filed an Answer to Counts I and III on 19 January 1990. Paragraph 3 of the Amended Complaint which raised the issue whether Trading was formerly known as Industrial was "specifically" denied. The Answer (filed in part in December 1989 and in part in January 1990) was prepared by Mr Jansen of Tressler.

17. The Answer of Trading and Manufacturing to all six counts were subsequently amended following a motion to strike the Answer. An Amended Answer to the Amended Complaint was filed by Tressler on 26 September 1990. This was prepared by Mr James Borcia. However, Industrial's name rather than Trading's appeared in the preamble and the paragraph identifying the companies in whose names the pleading was signed but not in the body of the pleading.

Interrogatories

18. Meanwhile, on 18 June 1990, the US Plaintiffs' "First Set of Interrogatories to Defendant Evergo Trading Company, Limited" was propounded and served on Tressler as attorneys for Trading. It contained the following interrogatories :

" INTERROGATORY NO. 2: Please identify yourself by stating your full corporate name and any name under which you do business, and describe your relationship to your co-defendant, a corporation known as Evergo Manufacturing of America, Inc.

INTERROGATORY NO. 3: At any time during the last 8 years, has the defendant had any relationship with a corporation known as Evergo Industrial Enterprise, Limited? If so, describe that relationship."

A mirror image set of interrogatories was served on Manufacturing on the same day. In Interrogatory No.2, Trading was referred to as Manufacturing's co-defendant. At the same time, the US Plaintiffs made a request for production of documents.

19. A motion was filed on 27 July 1990 by Tressler for an extension of time to answer the First Set of Interrogatories. Although in the body of the motion reference was made to the Defendant Trading, Industrial's name appeared in the preamble, the "wherefore" clause and the paragraph of the motion identifying the companies in whose name the document was signed.

20. On 31 August 1990, the US Plaintiffs' served "Revised Interrogatories to Defendant Evergo Trading Company, Limited" on Tressler as attorneys for Trading. Interrogatories Nos.2 and 3 remained unchanged.

21. The second motion for extension of time to answer document requested was filed by Tressler. Again, Industrial's name appeared in the preamble, the "wherefore" clause as well as the paragraph identifying the companies in whose name the motion was signed. The Defendant's second motion for extension of time was granted on 28 September 1990. But the Defendant named in the order was Trading.

22. Manufacturing answered Interrogatory Nos.2 and 3 on 29 October 1990 as follows :

"ANSWER TO INTERROGATORY NO. 2:

Evergo Trading Company, Ltd. - Relationship to Evergo Manufacturing of America, Inc. is through common but not identical share ownership.

ANSWER TO INTERROGATORY NO. 3:

Relationship to Evergo Industrial Enterprise, Ltd. is through common but not identical share ownership."

Notice of Revocation of Acceptance

23. Between September 1989 and January 1990, Tressler and Mr Corbett engaged in correspondence regarding the Notice of Revocation of Acceptance served by the US Plaintiffs on the attorneys of record for the Defendants to the action. Tressler's response was given on behalf of Manufacturing and Trading only although prior to 6 December 1989, Tressler had not yet replaced Haskell and Perrin as attorney of record for Trading.

4. 1991-2

Motion to compel and for sanctions

24. In February 1991, the US Plaintiffs filed a motion to compel and for sanctions against Trading. On 21 February 1991, Trading was barred from offering any testimony at the trial. Trading's motion to vacate the order barring its testimony was denied.

25. Meanwhile, on 16 April 1991 Trading filed its Answer to the Plaintiffs' Revised Interrogatories. The answers to interrogatory Nos.2 and 3 were, in substance, identical to those filed by Manufacturing.

26. On 4 September 1992, the US Plaintiffs filed a request for admissions.

27. The trial took place on 7 October 1992. Mr Borcia appeared for "the Defendants". The hearing culminated in the US Judgment of that date.

Application for leave to file reply

28. At the end of the fourth day of the 9 day hearing, leading counsel for the Plaintiff agreed to supply certain particulars. On the fifth day, it emerged from the particulars supplied that MW wished to raise what was referred to as "the orchestration theory". I ruled that that theory which related to Tressler's apparent authority to act for Industrial could not be ventilated on the pleadings as they stood. Leading counsel for MW then applied for leave to amend the pleadings. A short adjournment was granted to enable the Plaintiff to formulate the amendment it wish to put forward, which in itself was a highly unusual course. On the sixth day of the hearing, the Plaintiff applied for leave to file a reply. This contained an allegation of a deliberate plan on the part of Industrial that the Plaintiff's mistaken belief that Trading was formerly known as Industrial should not be disabused, and that the action should be conducted in the interests of Industrial by avoiding a judgment against Industrial, who was under Illinois law the party in interest served and intended to be sued. It also alleged that Tressler had ostensible and/or presumptive authority to so act on behalf of Industrial. The application was opposed. After full submissions from both parties, the application for leave was refused. The reasons are briefly set out below.

29. The application was made just before the Plaintiff closed its case. It was not an application to amend in order to clarify the issues in dispute. It raised an entirely new allegation for the first time and one that has wide-ranging ramifications for the 2^nd Defendant. Although as formulated the allegation was lacking in material particulars, the plan alleged could conceivably implicate several U.S. law firms. Whether the handling attorneys can now be located is not known. The deficiency in pleading is also true as regards the allegation that Tressler had the authority of Industrial to do certain acts with the result that Industrial submitted to the jurisdiction of the Illinois court.

30. In Poly Commence Ltd. v. Wellfit Investments Ltd. [1995] 3 HKC 56, the Court of Appeal stated (at page 61) :

"Where amendments, particularly material amendments of the present sort, are made so shortly before the hearing, it must be incumbent upon the party seeking them to ensure adequate particularity. The constraints of time, and the high risk of disruption of the orderly conduct of trials by the courts and of prejudice to the other party must demand strongly that leave be refused. Thus in Perak Pioneer Ltd v. Carrian Holdings Ltd (CA 59/85), unreported) Fuad JA (as he then was ) commented that:

As regards particulars, in my view, it is no answer to an objection that a proposed amendment lacks particulars, to say that particulars can later be given. Of course, if a pleading lacks particulars, particulars can be asked for in the usual way and ordered by the court if necessary, but where an amendment is applied for it would bes an unusual case where the court would consider it appropriate to allow an amendment to be made which lacks particularity, and might cause embarrassment."

That statement is apposite to the present case.

31. If the amendment were allowed, I have no doubt that the prejudice thereby occasioned to the 2^nd Defendant cannot be compensated for by costs. I have already alluded to the wide-ranging implications for the 2^nd Defendant if it had to address the allegations raised in the proposed reply. That factor alone would require that the application be refused.

The present action

32. Originally, the Plaintiffs were MW and Importing. It transpired that Importing was dissolved on 23 December 1990 well before the date of the US Judgment. Importing ceased to be a party on 24 April 1995.

33. Both Trading and Industrial are Defendants to this action. It necessarily follows that it is MW's case that the US Judgment is enforceable in Illinois against three defendants. The US Judgment in its existing form can only be against two defendants, one Hong Kong corporation and a Delaware corporation. The burden is thus on MW to show that, notwithstanding its form, the US Judgment is enforceable against three defendants. In the course of the hearing, leading counsel for MW submitted that while the "three Defendant" theory was his primary case, his alternative case was that the US Judgment is enforceable against two defendants, namely Industrial and Manufacturing.

34. The alternative case was never pleaded and MW's expert on Illinois law has not given any evidence in support of this alternative case. As MW has already obtained judgment against Trading on the basis of the US Judgment, it is not apparent how or why MW may now proceed against Industrial on the "two Defendant" theory based on the same judgment. No compelling reason has been put forward to justify this. In these circumstances, I see no rational basis for entertaining MW's alternative case.

35. The Plaintiff claims that the US Judgment is enforceable against Industrial under the "three Defendant" theory. The burden is on the Plaintiff to establish that notwithstanding that the Judgment on its face is only directed against two Defendants, the action having been brought only against two Defendants, it is nonetheless binding on three Defendants under Illinois law. It is in this context that issues of Illinois law arise.

Issues of Illinois law

36. Mr Ira A. Moltz gave expert evidence on Illinois law on behalf of MW in support of the "three Defendant" theory. It is Mr Moltz's opinion that the US Judgment is valid and fully enforceable under Illinois law against Trading and Industrial jointly and severally because the Illinois court had jurisdiction over both Trading and Industrial.

37. That the Illinois court had jurisdiction over Trading is not in issue. Trading had filed an appearance and participated in the action. As regards Industrial, it is Mr Moltz's opinion that the misnomer principle applies, Industrial being the real party in interest. Therefore, service of the summons on Industrial, the real party in interest, established jurisdiction. Further, Industrial appeared in the action through filing an Amended Answer and the two motions for extension of time to answer interrogatories. Mr Moltz opined that "those only supplemented the authority over Industrial that was already there when they first got served with the summons."

38. Industrial's experts were David J. Fitzpatrick and Michael A. Snyder. Although only Mr Fitzpatrick gave evidence, expert reports were filed by both Mr Fitzpatrick and Mr Snyder on 20 November 1996 and in reply on 30 April 1997. The cases cited in those reports as well as the propositions of law contained in those cases are accepted by Mr Moltz to be valid propositions of law. On that basis, Industrial was content not to call Mr Snyder to give evidence but so far as necessary, to rely on the cases and the propositions of law set out in his reports.

39. They disagree with Mr Moltz. In their opinion :

(1) the present case does not come within the misnomer principle;

(2) even if misnomer were applicable, the judgment is not enforceable against the misnamed party unless and until it is amended pursuant to the misnomer rule;

(3) the Illinois court did not have jurisdiction over Industrial because

(a) unless the misnomer principle were applicable, mere service does not confer jurisdiction over Industrial; and

(b) Industrial never appeared in the Illinois proceedings.

1. Misnomer

1.1 Whether appropriate for forum court to resolve misnomer issue

40. A preliminary point which arises is whether the Hong Kong court should make a finding as to whether or not an Illinois court presented with the facts of this case would find misnomer. It is not merely a question of ascertaining what Illinois law is on misnomer, but actually applying the legal principles (about which there is no disagreement) to the facts. It seems wrong in principle and it would appear presumptuous for a Hong Kong court to pronounce on how an Illinois court would apply Illinois legal principles to a particular set of facts.

41. The course I am invited to take by MW would appear to be unprecedented. No authority has been cited, in the context of applying the misnomer principle, in which a forum court is asked to enforce a judgment against a party said to be bound through the application of the misnomer principle. To the contrary, there are analogous Illinois decisions that support the view that the forum court is not the appropriate court for resolving the question whether misnomer has been made out and that this issue must be resolved in the court where the judgment was rendered. See Ayers Asphalt Paving Inc. v. Allen Rose Cement and Construction Company, 109 Ill. App.3d 520, 440 N.E. 2d 907 (1982) and in the Estate of Wallen, 262 Ill. App.3d 61, 633 N.E.2d 1350 (1994).

42. In both those cases, the plaintiff sought to enforce a judgment obtained in a sister state in the Illinois courts in proceedings brought under the Uniform Enforcement of Foreign Judgments Act (Ill. Rev. Stat. 1977, ch.77, Pars.88-105) ("the Act"). In Ayers Asphalt, a sole proprietorship judgment debtor under an Ohio judgment appealed from an order of the circuit court of Illinois granting the judgment creditor's petition in an action brought under the Act to register the judgment against the defendant's corporate entity. The question which arose was as to who was bound by the Ohio judgment. The plaintiff was effectively seeking to amend the Ohio judgment in the forum court upon proceedings for registration to add the corporation as the intended judgment debtor by relying on the law governing misnomer of a party "to circumvent the fact that the corporation was not named a party in the original suit". It submitted that "to amend the Ohio judgment would be merely to correct a misnomer". In reversing the trial judge, the court held

"the plaintiff's attempt to establish the real party in interest in the forum court raises issues which are collateral to the Ohio judgment and which exceeded the scope of proper judicial inquiry under the Act ... The record is silent as to whether plaintiff ever attempted to correct the claimed misnomer in the rendering court. We feel relief in the first instance must be obtained in the courts of Ohio, and not upon registration in the circuit court."

See 440 N.E.2d at 909-10.

43. Mr Moltz sought to distinguish this line of authority on the basis that they arose under the Act and were confined to decisions concerning registration under the Act. Nevertheless I am not persuaded that different principles apply where it is not a question of enforcing the judgment of a sister state (which rests on principles of comity) but that of a foreign jurisdiction. The underlying reasoning appears to be equally applicable to the enforcement of the judgment of a foreign jurisdiction as was Mr Fitzpatrick's opinion.

44. Leading counsel for the Plaintiff sought to distinguish Ayers Asphalt on the basis that in that case no summons was served on the party in interest. The basis of the submission was the holding in Ayers Asphalt that :

"The foreign judgment is not subject to collateral attack in an Illinois court except for the defence of fraud in the procurement of the judgment or lack of jurisdiction in the rendering court."

The distinction sought to be drawn is not valid unless I were to accept Mr Moltz's opinion that the Illinois court had jurisdiction over Industrial through service on the real party in interest. That involves a consideration of the misnomer rule and the question of the Illinois court's jurisdiction over Industrial. For reasons appearing under the heading dealing with jurisdiction and service (see section 3.1 below), I do not accept Mr Moltz's opinion as an accurate statement of Illinois law on that issue. The distinction sought to be made has no validity.

45. The Plaintiff has therefore failed to show that the misnomer issue can and should be resolved by the forum court. On this ground alone, the Plaintiff's claim ought to be dismissed.

1.2 The rule

46. A statement of the misnomer principle may be found in Ashley v. Hill, 101 Ill. App.3d 292, 427 N.E. 2d 1319 at 1321 (2d Dist.1981) :

"The misnomer rule is narrow, however, and applies only where an action is brought and summons served upon a party intended to be made a defendant (thus giving actual notice of the lawsuit against the real party-in-interest), but the process and complaint do not refer to the person by his correct name. (Janove v. Bacon (1955), 6 Ill.2d 245, 250, 128 N.E.2d 706, 709; Ingram v. MFA Insurance Co. (1974), 18 Ill.App.3d 560, 566, 309 N.E.2d 690, 695, leave to appeal denied.) The courts of this state have long distinguished the misnomer rule, which is applicable only to correctly joined and served but misnamed parties, from those cases where due to mistaken identity the wrong person is joined and served. ... The determination of whether a case involves misnomer of mistaken identity depends on the intent of the parties, but the subjective intention of plaintiff as to who he intended to sue has not been held controlling in the face of objective manifestations indicating an intent to sue another. Proctor v. Wells Brothers Co. of New York (1914), 262 Ill. 77, 80-81, 104 N.E. 186, 187."

Thus the pivotal enquiry is whom did the Plaintiff intend to sue.

47. Leading counsel for the 2^nd Defendant submitted that the following features are discernible from the case law on misnomer :

- There is no authority under the misnomer principle which allows a plaintiff to obtain judgment both against the party he intends to sue and the party actually sued;

- The court has to be satisfied that there is no doubt whom the Plaintiff was intending to sue;

- The misnomer principle has not succeeded in cases where the party actually sued was an existing entity : Ashley v. Hill, (supra) and Clinton v. Avello 105 Ill. App. 3d 336, 338, 434 N.E. 2d 355,356 (1^st Dist.1982). In Clinton, the court stated that

"the most probative evidence of whom a plaintiff intended to sue is the party named by the plaintiff in the complaint."

- Conversely, in cases where the misnomer principle applied, the entity actually sued was non-existent : A-Z Equipment v. Moody, Ingram v. M.F.A. Insurance, Ellis v. Borisek, 220 Ill. App. 3d 48, 580 N.E. 2d 899 (3^rd Dist.1991), Henry v. Folk and Pond v. Ennis.

Mr Moltz takes issue with the latter two of these statements to the extent that while recognising that it is an important factor whether the party named is non-existent, he does not consider that fact to be a dominant theme. I note that the Seventh Circuit has observed that under Illinois law there is a presumption that the plaintiff intended to sue the person named in the complaint but that this may be rebutted where there are "other objective manifestations of an intent to sue another". Shaifer v. Folino 204 Ill. Dec. at 904-5, 650 N.E. 2d at 598-9 considered in Arendt v. Vetta Sports, Inc. 99 F. 3d 231 at 235 (7th Cir. 1996). However, neither party addressed the court on the Shaifer point which remains open.

48. Mr Moltz opined that it is undeniable that the US Plaintiffs intended to sue Industrial : he relied on the fact that

(a) Industrial was specifically named although erroneously noted as the prior name of Trading;

(b) Industrial was served with the summons and complaint;

(c) pleadings were filed on behalf of Industrial on three occasions, namely, the two motions for an extension of time to answer interrogatories and the Amended Answer.

1.3 Is the rule applicable?

A. Whom did the Plaintiff intend to sue

49. The caption to both the Complaint and the Amended Complaint is the same : where an action is brought against "A" f.k.a. "B" and "A" and "B" are separate and distinct corporate entities, is the action brought against "A" or "B"? It is Mr Moltz's opinion that the action is against "B". I do not accept that that is how one would most naturally read the caption. In the absence of Illinois authority on the point, the more natural reading is that the action is against "A", the additional words being descriptive of "A". If indeed the party against whom the action was intended to be brought is "B", there would be no reason to refer to "A" at all. In any event, it cannot be seriously contended that the action was, inarguably, brought against "B".

50. Going beyond the caption to the pleadings however, the Complaint throws no light whatsoever on that issue : the description in the caption is simply repeated in the body of the Complaint and thereafter referred to as "Evergo Trading". So far as the Amended Complaint is concerned, it is even less arguable that the party intended to be sued was Industrial rather than Trading : the preamble makes no reference to Industrial whatsoever and the only reference to Industrial is in paragraph 3 to the effect that it was the former name of Trading, the Defendant. It is of considerable significance that the prayers for relief in both the Complaint and Amended Complaint were directed against "Trading" only and not against Trading f.k.a. Industrial.

51. Reliance was placed on the exhibits to the Complaint and the Amended Complaint. Leading counsel for MW submitted that they made it plain that the party intended to be sued was Industrial rather than Trading : in particular, none of the exhibits to the pleadings mentioned Trading. Mr Moltz referred to In re Estate of Davis, 225 Ill. App. 3d 998 at 1000 for a statement of what is known in Illinois as "the exhibit rule" :

"Exhibits attached to pleadings such as the motions at bar are considered part of the pleadings for all purposes where the pleading is founded on such exhibits. (Ill. Rev. Stat. 1989, ch. 110, par. 2-606.) Allegations in the pleading which conflict with facts disclosed in the exhibits are not admitted as true but, rather, the exhibit controls. (McCormick v. McCormick (1983), 118 Ill. App. 3d 455, 460.) Also exhibits attached to pleadings simply as an example of the evidence supporting the pleader's allegations are not taken as true and are not controlling. Jones v. Lazerson (1990), 203 Ill. App. 3d 829, 836; McCormick, 118 Ill. App. 3d at 460-61."

52. Mr Moltz opined that the allegations in the pleadings are based on the exhibits and that exhibits B to E relating to Counts I to III of the Complaint are all controlling exhibits. It was submitted that these which only refer to Industrial and not Trading had the effect of "controlling" the references to Trading in the pleading.

53. There are a number of difficulties with MW's submission. First, no authority has been cited for the proposition that the exhibit rule may be invoked so as to change the parties or displace Rule 401(c) of the Illinois Code of Civil Procedure which requires a party to set forth in the body of the pleading the names of all parties for and against whom relief is sought. Second, while the actual purchase orders on which the essential contractual claims are founded would unquestionably be controlling exhibits, they were not exhibited. As to exhibits B-E, Mr Fitzpatrick disagreed with Mr Moltz's opinion that they are controlling exhibits. In In re Davis (supra) itself, the court found that the exhibits upon which reliance was placed to show the decedent's subjective intent were attached as examples of the evidence supporting her pleading and, as such, neither control nor need be taken as true by the court in determining the motions. It is no different here. Third, irrespective of whose expert opinion is correct, it is unclear how the exhibits can resolve the identity question where, as regards the essential count, (a) the exhibits offer virtually no support for the claims asserted; (b) the exhibits not only conflict with the pleading but conflict inter se; (c) when the pleading is read together with the exhibits, no coherent claim emerges; one is left guessing at what claims were intended to be asserted and against whom.

54. While it is clearly not the function of this court to act as a trial court in respect of the Illinois proceedings, given the absence of the actual purchase orders as exhibits, the court can hardly reach any conclusion on the question of identity without a proper understanding of the claims. As noted above, the actual purchase orders founding the contractual claim in respect of defective kerosene heaters and ceiling fans under Count I which was the essential count, were not exhibited to the Complaint. These would have clearly identified the party whom MW intended to sue. What was exhibited does not appear to relate to the claims asserted. Specifically, although the IBA Agreement was exhibited, it related to the return of specific models of ceiling fans only and not to heaters. Further it did not provide for refunds : under its terms only credit memos for Evergo merchandise would be issued. Details of returns which were documents generated internally by the US Plaintiffs formed Group Exhibit C. While many mention Industrial, others do not suggesting a reason for the difference. Then only part of the exhibit related to ceiling fans; the rest related generally to "Evergo heaters" without distinguishing between kerosene and fan or electric heaters. But such part of Group Exhibit C as relate to ceiling fans appears to be outside the ambit of the IBA Agreement inasmuch as they concern models other than those specified in the Agreement. Although Exhibit D suggests that other IBA Agreements exist for heaters, these were not exhibited. In these circumstances, the fact that Industrial's name appears in some of the exhibits is not determinative of the identity issue and is plainly not conclusive. The exhibits neither resolve nor establish the identity of the party intended to be sued.

55. Turning to the Amended Complaint which under Illinois law rendered the original pleading a nullity, again the actual purchase orders being the basis for the contractual claims for the first three counts which were the essential counts were not exhibited. There are no controlling exhibits at all regarding the essential counts. While Group Exhibit C has been dropped altogether, and the claims recast, the exhibits (other than Group Exhibit C) formerly supporting the essential claim in the Complaint no longer do so. They are relegated to supporting Count IV which in the context of the action is an insignificant claim. They are in as confused a state as before : the six credit memos which are the subject of the claim under the count relate to kerosene heaters and fan heaters. They have nothing to do with ceiling fans which is the subject matter of the IBA Agreement exhibited. The credit memos allegedly deal with defective returns yet, as pleaded, the fan heaters were said to have been disposed of rather than returned pursuant to Trading's direction. Thus, neither the Complaint nor the Amended Complaint point unequivocally to Industrial being the contracting party.

56. When the contracts in Bundle VIII which come from Mr Corbett's file are reviewed, it is apparent that Trading also had a direct contractual relationship with the US Plaintiffs during the first few months of 1986. It is to be noted that the goods supplied under the contracts with Trading (except for one) bear the model number of the items listed in the IBA Agreement. Apart from these contracts, there are commercial invoices which show a contractual relationship between MW and Trading in early 1986. The Notice of Revocation dealt with goods supplied through and including 1986. Pausing here, MW's stance regarding these contracts is equivocal. Having produced the bundle at the hearing presumably to show the contractual relationship between the US Plaintiffs and Industrial, it sought to argue that the "record" is confined to documents filed in court citing Bank of Ravenswood v. Domino's Pizza, 269 Ill.App.3d 714; 646 N.E.20 1252 (1^st Dist.1995) a case dealing with correcting technical defects under a judgment similar to what is known in Hong Kong courts as the slip rule, suggesting that the Court may not look beyond the "record" in determining the identity issue under misnomer. That submission appears to be misplaced in that it is contrary to the evidence of its own expert : Mr Moltz accepted that the record would include "all of the ... discovery materials".

57. The Complaint was drafted by Ms Goddard but there is no evidence from her as to how the designation of the party she intended to sue came about or how the mistake came to be made. That might have offered some objective evidence as to the identity of the party sued and is highly relevant as appears from Arendt v. Vetta Sports Inc., 99 F.3d 231 at 235. There is undoubtedly a glaring lacuna in the evidence. Mr Corbett admitted that he "took on faith" that the referring attorney had done her homework and drafted the Complaint properly. Yet whether this was so cannot be scrutinized since MW has chosen not to adduce that evidence on the question and in particular how the caption came to be framed in that fashion. It is not suggested that it is not now possible to obtain evidence from Ms Goddard. In fact, she is currently an attorney at a firm that has apparently supplied the additional authorities adduced by the Plaintiff in the course of the hearing. The silence from this critical witness is deafening. What steps (if any) were taken to identify the proper defendants at the initial stage will remain a matter of speculation.

58. Ms Goddard had also filed the motion for a default judgment against Trading f.k.a. Industrial. Much importance was attached to the fact that the summons was addressed to Industrial and not to Trading f.k.a. Industrial. It was thus suggested that the motion for default judgment was directed at Industrial. Viewed objectively, despite the summons having been addressed to Industrial, the application must have been directed at Trading and none other than on the basis that there had been service on Trading. Otherwise there can be no rational explanation for the voluntary withdrawal of the application at the hearing for a prove-up for damages on 18 November 1987. The order on Trading's motion was limited to vacating any and all defaults that may have been entered against Trading in the action. So why was the application withdrawn if it had truly been directed against Industrial?

59. Mr Corbett was responsible for the Amended Complaint. He said he relied on letters from Industrial dated 27 October 1986 and 3 March 1987 and these led him to believe that Industrial had changed its name to Trading. How they could have done so is not apparent as they shed no light on the question : those letters are equally consistent with Trading having taken over the rights and liabilities of Industrial. Mr Corbett also said he had conversations with the US Plaintiffs' staff about this. Unfortunately there is no evidence from them regarding those conversations. Mr Corbett then acknowledged that he took Ms Goddard's words at face value : he did not ask to see the purchase orders and he did not carry out any company search at the time he amended the Complaint.

60. As noted above, the prayers for relief were directed at Trading only and not Trading f.k.a. Industrial. Interrogatories, document requests and request for admissions were again directed exclusively at Trading as distinct from Trading f.k.a. Industrial.

61. There is also the fact that Mr Corbett acknowledged that his view was that "[Trading] was the successor in interest to [Industrial]. Whatever that means, whether it is through a reincorporation, reorganisation, or some other peculiarity in Hong Kong law about which I know nothing, then it was the 'successor in interest' if not 'formerly known as'". This goes beyond the mere change of name and indeed it would normally imply a different legal entity. Further despite the expressed intention of Mr Corbett to firm-up the identities of the parties during the course of the litigation, it was never effectuated.

62. Much was made of Mr Borcia's representation of the "Defendants" at the trial and the fact that the evidence targeted Industrial. This of itself is hardly sufficient when weighed against all the other objective manifestations of intent as to whom the US Plaintiffs intended to sue.

63. The parties' experts are agreed that in cases where the misnomer rule has been held to apply, the court must have been satisfied that there is no doubt as to whom the plaintiff intended to sue. This is plainly not the present case. Accordingly, I am not satisfied that there is no doubt that the US Plaintiffs intended to sue Industrial or that an Illinois court would find this to be a misnomer case.

B. Knowledge of Industrial's existence

64. Did MW know that Trading and Industrial were separate corporate entities prior to obtaining the US Judgment?

65. The following matters are particularly relevant :

- Upon the return of service documents from the US Consul in Hong Kong, MW knew that the documents were left with a person claiming to have the management and control of Industrial. It necessarily follows Industrial did exist and that MW knew this.

- The appearance filed by Trading on 20 July 1987 had an unusual qualification. Mr Corbett said that he did not see or notice that the appearance contained the unusual qualification. He accepted that had he done so, it would have "immediately alerted" him that something was not right and that he would have looked into it. Anyone reviewing the pleadings file would have noticed it, since not a great deal had happened after the filing of the Complaint the file was of a manageable size. It is not unreasonable to assume that when Mr Corbett became additional counsel, he would have reviewed the pleadings file if nothing else. On this basis, I do not find it credible that he did not see or notice the unusual appearance.

- The answer that Trading filed on the same day contained a denial of the "f.k.a." allegation.

- The letter of 6 October 1987 from Haskell and Perrin to Ms Goddard relating to Trading's motion to vacate all defaults that may have been entered against it in the action indicated that Trading was not the same as Trading f.k.a. Industrial. But there is no evidence from Ms Goddard who must have seen the letter. Mr Corbett who shortly thereafter was engaged to represent MW, said he had not reviewed it although it was in his file. For the reasons already stated, I find this hardly credible.

- In paragraph 3 of the Amended Complaint filed in September 1989, Mr Corbett specifically raised the issue of whether Trading was formerly known as Industrial and invited an answer in January 1990 which specifically denied the allegation.

- In June 1990, Mr Corbett framed interrogatories to "firm .... up and solidify the identity (sic) of the parties and their relationship before the case went to trial". Yet, Mr Corbett said that he was not concerned to find out from these interrogatories whether Trading was formerly known as Industrial. Mr Corbett's answers to the series of questions regarding those interrogatories can only be described as evasive. The answers to interrogatory Nos.2 and 3 from Manufacturing in December 1990 and Trading in April 1991 made it plain to anyone reading them that Trading and Industrial were two different legal entities. Mr Corbett eventually and with reluctance accepted that that was so.

66. Given those facts, MW must have known that Trading and Industrial were separate corporate entities prior to entering the US Judgment and I so find. The suggestion that MW was deliberately misled as to the true state of affairs by the Defendants, that they gave less than honest answers has little merit when in truth MW's attorneys had, wittingly or no, refused to recognize and closed their eyes to the unequivocal denials of Trading that it was formerly known as Industrial and responses which would have alerted any reader that Trading was not Trading f.k.a. Industrial.

67. The failure of a party asserting misnomer to promptly correct the pleadings to reflect the name of the party whom it claims to have intended to sue from the outset upon learning of the error is a factor that would adversely affect the ability to make out the necessary objective intent when invoking the misnomer principle. See Arendt v. Vetta Sports, Inc., 99 F. 3d 231 (7^th Cir.1996).

68. Mr Moltz accepted that whether the Plaintiff knew prior to obtaining judgment that Trading and Industrial were separate entities is a very relevant consideration in the exercise of its discretion by the court. Despite Mr Moltz's prevarication when asked whether the court would really grant relief under the misnomer statute if the Plaintiff was well aware of the mistake before proceeding to judgment, he acknowledged that the misnomer statute would not even be applicable.

2. Whether amendment necessary to render judgment enforceable

Section 2-401 of the Illinois Code of Civil Procedure, the misnomer statute, is as follows :

"5/2-401. Designation of parties - Misnomer

”2-401. ...

(b) Misnomer of a party is not a ground for dismissal but the name of any party may be corrected at any time, before or after judgment, on motion, upon any terms and proof that the court requires."

(735 ILCS 5/2-401)

69. In Mr Moltz's opinion, the term "may" rather than "shall" in the statute means that a party is not obliged to amend the judgment prior to seeking to enforce it. He accepts that as a matter of prudence, an attorney would advise his client to amend once he finds out about a misnomer although for reasons not readily apparent he would not do so after judgment.

70. Mr Fitzpatrick disagrees. In his opinion, the "may" means that there might be a valid judgment but until the misnomer is asserted and the name is corrected, there is not an enforceable judgment. The error has to be corrected with reasonable diligence once it is discovered.Ellis v. Borisek, 162 Ill. Dec.716 at 719, 580 N.E. 2d 899 at 902 (Ill. App.3 Dist. 1991). In each of the cases where misnomer was successfully invoked, the Plaintiff made a motion to modify and amend the judgment before enforcing it : see A-Z Equipment Co. v. Moody, 88 Ill. App.3d 187, 410 N.E.2d 438, 439 (1^st Dist. 1980); Ingram v. M.F.A. Insurance Co., 18 Ill. App. 3d 560, 309 N.E.2d 690, 695 (2^nd Dist. 1974); Henry v. Folk, 220 Ill. Dec.831, 674 N.E. 2d 102 (Ill. App.1 Dist.1996) and Ellis v. Borisek (supra). As stated by Nash J. in Ashley v. Hill, 101 Ill. App.3d. 292, N.E.2d 1319 (2d Dist. 1981) at 1320-1 :

"Misnomer of a party is not a ground for dismissal of an action and the name of a party may be corrected upon motion and proper proof." (emphasis added)

71. When an application is made, the party applying is not entitled to an amendment as of right : it is dependent upon the judge's discretion and in exercising that discretion he has to be satisfied that it is in fact a misnomer case rather than a case of mistaken identity.

72. Mr Fitzpatrick's evidence on this issue is cogent and compelling : having regard to the wording of the misnomer statute and the court's discretion in whether or not to grant the relief sought, there would be little point in having such a statute if amendment is not a pre-requisite to the enforcement of a judgment. I therefore accept Mr Fitzpatrick's opinion that there is a need to amend before enforcement.

73. Mr Moltz raised a subsidiary issue when he opined that it was unnecessary to amend in the present case (although it is not apparent why Mr Moltz considered it unnecessary) and also that the Plaintiff had "no ability to do so because the Defendant never raised the issue and never let the Plaintiff know that there was a misnomer." Mr Moltz suggested that there was a duty on the misnamed defendant to raise the issue. He cited Pond v. Ennis, 16 Ill.341 (1873) where in delivering the opinion of the court, Chief Justice Breese said (at page 345) :

"The weight of authority is, if the writ is served on a party, by a wrong name, intended to be sued, and he fails to appear and plead the misnomer in abatement, and suffers judgment to be obtained, he is concluded, and in all future litigation may be connected with the suit or judgment by proper averments; and when such averments are made and proved, the party intended to be named in the judgment is affected as though he were properly named therein."

Pond v. Ennis was followed in Pennsylvania Co. v. Sloan, 125 Ill.72, 17 N.E.37 (1888). Mr Moltz further relied on Simon v. Patrons' Mutual Fire Insurance Company of Michigan, 228 Mich.508, 199 N.W.810 (1924) where it is stated that :

"It is the duty of the defendant to call the attention of the court early to the misnomer, if it deemed it important, when an amendment could easily be made, and not subject the plaintiff to the expense of a hearing."

74. In Mr Fitzpatrick's view, Pond v. Ennis and Pennsylvania Co. v. Sloan are distinguishable in that the misnamed party actively defended itself under the misnomer name without pleading misnomer in abatement until a very late stage : in Pond v. Ennis, a guardian ad litem was appointed to represent the misnamed infant and in Pennsylvania Co. v. Sloan, the misnamed party actively defended itself during the course of two separate trials and it was only during the course of the third trial, that for the first time it attempted to assert misnomer. They were therefore precluded from asserting the misnomer point at a later date. As regards the Simon decision, Mr Fitzpatrick drew attention to the fact that it is a Michigan decision which is not binding on the Illinois courts. Neither Pond v. Ennis nor Pennsylvania Co. v. Sloan assists Mr Moltz : these decisions pre-dated the misnomer statute and, in any event, are distinguishable for the reasons given by Mr Fitzpatrick.

75. That Industrial had a right to file a plea in abatement is not in doubt. Whether it was obligated to do so is another matter altogether. There is clear Illinois authority that Industrial was under no such obligation. See Chamness v. Minton, 39 Ill. App. 2d 325, 329-30, 188 N.E. 2d 873, 875 and . In Griffith v. Pincham 67 Ill. App. 3d 316, at 319, 384 N.E. 2d 870 at 873 (1^st Dist. 1978), the appellate court held :

"We fail to find any authority which imposes a duty on a defendant ... or a non-party to the action ... to inform plaintiff of the correct defendant."

76. This is another reason why the Illinois judgment is not enforceable even if (which is not the case) the misnomer principle were to apply.

3. Jurisdiction

3.1 Service of summons

77. Mr Moltz's opinion that service alone can establish jurisdiction over a person is premised on the misnomer principle applying. In view of my conclusion that this is not a misnomer case, the point is rendered academic. Service on Industrial is not equivalent to jurisdiction over Industrial unless Industrial was already a party defendant : see Chamness v. Minton, 39 Ill. App. 2d 325 (3^rd Dist.1963). Fitzpatrick v. Pitcairn, 371 Ill. 203, 208-9 (1939).

3.2 Appearance

78. It is Mr Moltz's opinion that Industrial appeared in the action or took voluntary action through the filing of the Amended Answer and the two motions for extension of time in which the name of Industrial appeared, thereby submitting itself to the jurisdiction of the Illinois court. The context in which these documents were filed and how they came into existence are important considerations in determining whether Industrial had appeared in the action.

79. The motions were respectively filed in July and September of 1990. They were filed in response to the US Plaintiffs' first set of interrogatories. It is relevant to note that the interrogatories were directed only at Trading and not at Trading f.k.a. Industrial. They were served on Trading's attorney of record. Mr Borcia who was the associate at Tressler handling the proceedings on behalf of Trading. Mr Borcia's evidence is very clear : he had no instructions to represent Industrial. He explained that he probably dictated the body of the document and simply left it to his then secretary to prepare the formal parts namely, the preamble, the wherefore clause, and the concluding paragraph containing the name of corporation just above the attorney's signature. The body of the document contains no reference to Industrial in any manner or form : only Trading is mentioned. It is thus consistent with Mr Borcia's theory as to how the mistake might have come about.

80. Mr Borcia is unable to explain now (some 5 years later) precisely how it came about that Industrial's name featured in the formal parts. He is unable to say whether or not it was an error on the part of his secretary because of what appeared in the caption. In any event, he accepts that he should have spotted Industrial's name but did not. But it is a fact that no one at the time, not even Mr Corbett, noticed Industrial's name appearing in those two motions, the interrogatories having been directed exclusively at Trading. It was not until the present proceedings that this was spotted by the Plaintiff. Mr Borcia stated that he did not realize the mistake until after this action had started.

81. Turning to the Amended Answer, this was filed in January 1991 as a result of Mr Corbett's motion to strike. What that motion sought to strike were certain parts of the Answer that had been filed by Trading and Manufacturing in part in December 1989 and in part in January 1990. The Amended Answer which was filed also on behalf of Manufacturing addressed and was intended to address the objections taken by the US Plaintiffs to the Answer and it is to be noted that the Answer had been filed on behalf of Trading and Manufacturing. Industrial's name appears in the formal parts together with Manufacturing but not in the body of the Amended Answer. Again no one realized Industrial's name appeared in the Amended Answer until the present action.

82. Given the background to the filing of the motions and the Amended Answer, the facts viewed objectively support a finding that Industrial's name appeared as a result of a clerical error and I so find. Where the Amended Complaint had not even been served on Industrial and no Answer had been filed by it, it is inconceivable and contrary to commonsense to find that Industrial had authorized Tressler to file an Amended Answer on its behalf. The same can be said of the two motions since they were in response to interrogatories propounded on Trading and on no one else.

83. In Gray v. First National Bank of Chicago 388 Ill. 124, 57 N.E. 2d 363, 365-6, 57 N.E. 2d 363 (1944), it is stated that

"[w]here an attorney appears of record for a party, the presumption is that his appearance in such capacity was duly authorized by the person for whom is appearing. However, it is not a conclusive presumption and when the facts show a lack of authorization, express or implied, and there is no proof of ratification, the acts of counsel are a nullity as against the party for whom the appearance was entered."

See also Cigler v. Kenaith, 167 Ill. App. 65 (1^st Dist. 1912). Mr Moltz relied on the presumption.

84. I accept Mr Fitzpatrick's opinion that these cases are not applicable because no one thought that Tressler was acting for any one other than Trading in filing the two motions and the Amended Answer. Gray and Cigler are thus distinguishable and the presumption does not arise. In any event, even if the presumption were to apply, it is rebuttable and was rebutted by Mr Borcia's evidence.

85. In all the circumstances, I find that the two motions and the Amended Answer were not filed with the authority of Industrial.

4. Conclusion

86. MW has failed to establish that the US Judgment is enforceable in Illinois against three defendants including Industrial. Specifically, it has failed to show that :

i. under Illinois law, a forum court may correct a misnomer;

ii. the misnomer principle applies to the present case;

iii. assuming misnomer to be applicable, the judgment may be enforced against the real party in interest without first applying to the Illinois court to amend the judgment;

iv. Industrial had submitted to the jurisdiction of the Illinois court through voluntarily appearing; and

v. the US Judgment in its form is enforceable against three defendants.

It's claim against Industrial must fail.

Jurisdiction over Industrial under private international law

87. Quite apart from issues of Illinois law, to succeed in the present action, the burden is on the Plaintiff to show that the Illinois court had jurisdiction over Industrial. The relevant test is not whether the Illinois court had jurisdiction over Industrial under Illinois law but under the rules of private international law. Under the Hong Kong conflict rules, the Illinois court has jurisdiction to give a judgment in personam capable of enforcement or recognition in the situations set out in rule 36 in Dicey & Morris on the Conflict of Laws 12^th Ed. Vol.1 at 472-3. If, as this Court has found, the two motions and the Amended Answer were not filed with the authority of Industrial, there would have been no submission to the jurisdiction of the Illinois court by Industrial and MW's claim must also fail on this ground.

Other matters

Apparent authority

88. Leading counsel for the Plaintiff cited Pan-Atlantic Insurance Co. Ltd. v. Pine Top Insurance Co. Ltd. [1995] 1 AC 501 for the proposition that where there is a representation or misrepresentation of fact inducing the other party into the making of a contract, a presumption of reliance arises. He submitted that each time Tressler filed one of the errant documents, it made a representation on behalf of Industrial and that Pan-Atlantic applies where there is apparent authority. Leaving aside the fact that such representation/ misrepresentation was never pleaded, it has not been shown that the same principle applies to apparent authority. The evidence is clear that Mr Corbett never relied on any such representation. He was not aware of Industrial's name appearing on those documents at the time. It follows that he could not have acted in reliance on that.

Additional defences

89. The 2^nd Defendant also raised a number of matters such as the failure to serve the Amended Complaint on Industrial, the effect of Importing ceasing to be a party on the US Judgment and the absence of evidence in interest payable under Illinois law. Those points are academic in view of the Plaintiff's failure to establish the enforceability of the US Judgment in Illinois against Industrial.

Order

90. The Plaintiff's claim is dismissed. I make an order nisi for costs in favour of the 2^nd Defendant.