XCHRX CARTIMAN INTERNATIONAL LTD. v. POLYMER RESOURCES INTERNATIONAL (USA) INC. and Another

1995, No. CL 132

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

COMMERCIAL LIST

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J U D G M E N T

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INTRODUCTION

1. In these proceedings, the Plaintiff, Cartiman International Ltd. ("CIL"), a company incorporated in Hong Kong, claims damages from the 1st Defendant, Polymer Resources International (USA) Inc. ("PRI"), a company incorporated in the State of Delaware. In order to understand the issues which arise on the summonses before me, it is necessary to identify the nature of CIL's case against PRI. What follows is a brief summary of it.

2. In May 1995, CIL agreed to buy a quantity of a particular polystyrene product from PRI. Payment of the price was to be made by irrevocable letter of credit. The goods were to be shipped from Buenos Aires to Hong Kong. The last date for the shipment of the goods was agreed to be 20th June. In a series of faxes towards the end of June, PRI and its agents informed CIL that the goods had been shipped on 20th June on the vessel "Merkur Bay", and on 11th July PRI presented various documents to the 2nd Defendant, The Hong Kong and Shanghai Banking Corporation Ltd. ("the Bank"), to secure payment of the sum due under the letter of credit. Those documents included a bill of lading, which purported to show that the goods had been shipped clean on board the "Merkur Bay" at Buenos Aires on 20th June.

3. In fact, the "Merkur Bay" did not arrive at Buenos Aires until 28th June, and the goods could not therefore have been shipped from Buenos Aires on the "Merkur Bay" on 20th June. CIL discovered that towards the end of July. On 29th July, it issued proceedings against PRI and the Bank, having on the previous day obtained leave from Leonard J. to serve the writ on PRI out of the jurisdiction. Leonard J. also granted CIL various forms of interlocutory relief. That relief was continued until CIL's summons for the interlocutory relief to continue until the trial of the action could be heard.

THE ORDER OF CHEUNG J.

4. CIL's summons eventually came before Cheung J. He delivered judgment on 2nd October 1995. He thought that CIL's cause of action against PRI was the tort of deceit. He cannot be blamed for thinking that. The case in Ord.11 r.1(1) which CIL relied upon was r.1(1)(f), which relates to claims in tort. However, no loss had at that stage been caused by the presentation of the documents to the Bank. That was because the Bank had not at that stage made any payments under the letter of credit. Since CIL's claim did not come within r.1(1)(f) for that reason, and since the only other case on which CIL relied was not available to it, Cheung J. set aside the leave to serve the writ out of the jurisdiction granted by Leonard J. Since the interlocutory injunctions granted by Leonard J. had been based on a writ for which leave to serve out of the jurisdiction should not have been granted, Cheung J. declined to continue the injunctions until trial. He also took the view that the injunction against the Bank, which restrained the Bank from making payments under the letter of credit, should be discharged.

5. However, by then the writ had been amended. By that amendment, CIL pleaded an additional cause of action. That cause of action was undoubtedly for breach of contract. Cheung J. took the view that the plea of breach of contract brought the claim within Ord.11 r.1(1)(d). Accordingly, he gave CIL leave to issue the amended writ for service on PRI out of the jurisdiction. He then went on to consider whether the interlocutory injunctions which CIL had obtained under the original writ should now be granted under the new writ. He declined to restrain PRI from presenting any documents under the letter of credit for payment. That would have served no useful purpose because the documents had already been presented to the Bank. However, he restrained PRI from removing the proceeds of the letter of credit from the jurisdiction or from dealing with the proceeds in any way up to the sum of US$324,000.00, which represented the price which CIL had agreed to pay for the goods.

6. To bring matters up to date, since there was no longer any order restraining the Bank from making any payments under the letter of credit, the Bank had to consider its position. It had to balance its obligations to CIL (because if it made any payments under the letter of credit negligently or in breach of its duty to CIL, it would be liable to CIL in damages) against its obligations to PRI (because if it failed to make payments under the letter of credit without good reason, it would be liable to PRI in damages). Eventually, the Bank decided to pay the sum of US$324,000.00 to PRI. CIL claim that the Bank did so on 3rd November 1995, and that sum is now held in an interest-bearing account pending the outcome of this action. The action against the Bank has been discontinued, and PRI is now the only defendant.

THE PRESENT SUMMONSES

7. There are two summonses before me. They have both been issued by PRI. The first was filed on 11th September 1996. In it, PRI seeks two things:

(i) PRI seeks the striking out of some or all of the allegations in the Statement of Claim on the grounds that the Statement of Claim discloses no reasonable cause of action, and that it is an abuse of the process of the court. Its Statement of Claim had been filed on 29th February 1996. However, it has since then been amended, and it is the Amended Statement of Claim which PRI wants struck out.

(ii) PRI seeks the discharge or variation of the injunction granted against it by Cheung J.

8. PRI's second summons was filed on 30th October 1996. It seeks leave to amend the first summons so as to enable PRI to seek two further things:

(i) PRI seeks the stay of the action on the ground that the proper and convenient forum for this litigation is in the courts of New York.

(ii) In the event of the injunction granted against PRI by Cheung J. not being discharged, PRI seeks the fortification of CIL's cross-undertaking as to damages.

9. Mr. Andrew Cheung for CIL opposes PRI's application for leave to amend the first summons. The grounds on which he does so are the same as the reasons why the relief sought in the amendments should not, according to him, be granted. However, CIL is not in any way prejudiced by the fact that all the points which PRI wishes to raise were not included in the first summons. In those circumstances, I have decided to grant the application for leave to amend the first summons, and I therefore make an order on the second summons in terms.

10. It became plain in the course of the hearing that I should determine first the application to strike out the Amended Statement of Claim. That was because of two important concessions made by Mr. Christopher Smith for PRI. First, he told me that PRI could only apply for a stay of the action on the ground of forum non conveniens if the Amended Statement of Claim was struck out. If it remained in its present form, he would not be pressing PRI's application for a stay. Secondly, he told me that if the Amended Statement of Claim was not struck out, he would not be seeking the discharge of the injunction which Cheung J. granted against PRI. He accepted that the evidence relied upon by CIL to prove the facts pleaded against PRI satisfies the evidential threshold. What he asserted was that:

(i) the facts pleaded against PRI do not amount to a reasonable cause of action against PRI;

(ii) to the extent that they do amount to a reasonable cause of action against PRI, a number of the allegations in the Amended Statement of Claim either amounted to an abuse of the process of the court, or prejudiced, embarrassed or delayed the fair trial of the action.

THE STRIKING OUT OF THE AMENDED STATEMENT OF CLAIM

11. No evidence is admissible on an application to strike out a pleading on the ground that it discloses no reasonable cause of action. It is necessary therefore to scrutinise the Amended Statement of Claim with some care. For ease of reference, a copy of the Amended Statement of Claim will be annexed to this judgment when this judgment has been transcribed. I propose to deal separately with each cause of action pleaded in it.

(i) Late Shipment. CIL's first pleaded cause of action relates to the late shipment of the goods. That cause of action is pleaded as breach of contract. It is pleaded in paras. 3-11, with the loss pleaded in para. 15. The breach alleged is the failure to ship the goods by 20th June 1995. The obligation to ship the goods by 20th June 1995 is pleaded in paras. 4-6. The short point taken by Mr. Smith is that the primary facts pleaded are incapable in law of giving rise to such an obligation. The argument runs like this. Normally, only the date of delivery is of the essence. In this case, the date of shipment is pleaded as being of the essence. In law, the date of shipment will have been of the essence if the purchase price of the goods was only payable under a letter of credit and if the letter of credit stipulated a date for shipment. If payment for the goods could have been made in some other way under the contract, the date of shipment would not have been of the essence, and a failure to ship the goods on 20th June would not have amounted to a repudiatory breach of contract. As it is, on a fair construction of the pleading, argued Mr. Smith, payment for the goods did not have to be made by letter of credit: otherwise, the word "only" would have been included in para. 4(1).

12. I cannot go along with this argument. I do not read para. 4(1) in the way in which Mr. Smith wants me to. I read it as pleading that payment for the goods had to be made by letter of credit. If it were otherwise, I would have expected the word "could" to be used instead of the words "was to".

(ii) Presentation of documents. CIL's case on this topic is pleaded in paras. 12-14. What is alleged is that PRI (a) procured the issue of the bill of lading, (b) brought into existence a number of other documents, and (c) presented the bill of lading and the other documents to the Bank to obtain payment under the letter of credit. The bill of lading and the other documents contained information which is alleged to have been false, because they stated that the goods had been shipped on 20th June 1995 from Buenos Aires when in fact they had not been. Those acts are alleged to have been fraudulent, because PRI knew that the information contained in the documents was false, or was at the very least reckless as to whether the contents of the documents were true.

13. Mr. Cheung originally argued that the cause of action pleaded by these allegations was breach of contract only. He contended that he had not been pleading a cause of action in tort at all in paras. 12-14. The importance of that is that a cause of action in tort is only complete when loss has been occasioned. CIL only suffered loss as a result of the presentation of the documents for payment when the Bank actually paid the sum of US$324,000.00 to PRI. Since that was a few months after the writ was issued, any cause of action in tort had not accrued by the date of the issue of the writ.

14. I have no doubt that the tort of deceit was pleaded as a cause of action in paras. 12-14. The language of para. 12 is the language used when the tort of deceit is pleaded. Clearly, those who were advising CIL as to which case to rely on in Ord.11 r.1(1) thought that CIL's claim was a claim in tort for CIL to have relied on Ord.11 r.1(1)(f). But the point which clinches it is the fact that there are separate claims in the prayer for damages for breach of contract and damages for fraud. That shows that a cause of action other than causes of action for breach of contract were being pleaded. "Fraud" is how the tort of deceit is sometimes described. When I put that point to Mr. Cheung, he accepted that the tort of deceit must have been pleaded.

15. In the light of that, Mr. Smith argued that the tort of deceit had not been properly pleaded because there was no averment that the Bank believed that the misrepresentations contained in the documents were true. I see the force of that point, but I think it arguable that all that has to be proved in a case in which the deceit is alleged to have been the presentation of false documents to obtain payment under a letter of credit is that the bank was influenced to pay out by the documents which were presented to it. Para. 14 pleaded that sufficiently by referring to the payment as being "under the L/C".

16. Although the allegations in paras. 12-14 amount to a plea of the tort of deceit, they also amount, in my view, to a plea of breach of contract, namely the breach by PRI of its contractual obligation to CIL not to present fraudulently documents for payment under the letter of credit the contents of which were false. That is apparent from para. 13 in which the presentation of the documents is pleaded as amounting to the wrongful repudiation of the contract.

17. Mr. Smith sought to counter that by arguing that on the claim for breach of contract pleaded in paras. 12-14, the issue as to whether PRI presented the documents to the Bank fraudulently is irrelevant. If the documents which PRI presented were false, Mr. Smith concedes that PRI was not entitled to be paid by the Bank the sum of US$324,000.00. That may be so, but what CIL wishes to allege, in addition to the falsity of the documents, is that the documents were false to PRI's knowledge. That is what CIL has to prove if it wishes to establish the particular breach of contract alleged in paras. 12-14, namely a breach by PRI of its contractual obligation not to present fraudulently documents for payment under the letter of credit the contents of which were false.

18. The upshot of all this is that two causes of action are pleaded in paras. 12-14: breach of contract (which was complete by the date on which the writ was issued because proof of loss does not have to be proved before the cause of action for breach of contract is complete) and the tort of deceit (which had not accrued by the date of the issue of the writ). However, the fact that the tort of deceit had not accrued by the date of the issue of the writ does not mean that deceit could not be pleaded as a separate cause of action under the Statement of Claim. That is because Ord.18 r.9 provides:

"Subject to rules 7(1), 10 and 15(2), a party may in any pleading plead any matter which has arisen at any time, whether before or since the issue of the writ."

Ord.18 r.15(2) precludes a plaintiff from raising in the Statement of Claim any cause of action which is not mentioned in the writ or does not arise from the same or related facts. There is no doubt that the tort of deceit arises from the same facts as the breach of contract which is pleaded in paras. 12-14. Accordingly,

(a) the tort of deceit could properly have been pleaded in the Statement of Claim, even though it had not accrued by the date of the issue of the writ,

(b) for the same reason, the allegation in para. 14 that PRI obtained payment of the sum of US$324,000.00 from the Bank under the letter of credit could properly have been pleaded, even though that payment was made on 3rd November 1995, some months after the issue of the writ.

(iii) Particulars of knowledge, recklessness and fraud. The cause of action pleaded in paras. 12-14 are dependent on the documents having been presented to the Bank for payment by PRI, either in the knowledge that their contents were false, or being reckless as to whether their contents were false or not. If the documents were presented with that knowledge or recklessness, fraud is established. It was therefore necessary for CIL to plead all the facts and matters relied upon to support the pleas of knowledge and recklessness. CIL pleaded those facts in the particulars under para. 12. The point taken by Mr. Smith is that it is not possible in law to infer knowledge or recklessness from the primary facts pleaded.

19. I cannot accept this argument. The fact which CIL has to prove is that when PRI presented the documents for payment on 11th July, PRI knew that the goods had not been shipped from Buenos Aires on the "Merkur Bay" on 20th June, or were reckless as to whether that was true or not. One of the facts pleaded in the particulars under para. 12 is that on 29th June PRI informed CIL that goods under a different contract were expected to be shipped on the "Merkur Bay" on 30th June. By virtue of that fact, the court at trial will be asked to infer that if PRI thought on 29th June that the "Merkur Bay" was still in Buenos Aires, it could not have thought that the goods under the original contract had been shipped from Buenos Aires on the "Merkur Bay" 9 days earlier on 20th June. And if, as I now know, PRI claims that it was only going on what the shippers told it, there must at the very least have been some doubt in its mind as to what the true position was, because the "Merkur Bay" could not have left Buenos Aires on 20th June with the goods under the original contract, while at the same time be due to leave Buenos Aires on 30th June with the goods under a different contract. Its recklessness consisted of it presenting documents to the Bank for payment without receiving an explanation from the shippers about this apparent discrepancy.

20. It may be that some of the primary facts pleaded in paras. 1-6 of the particulars under para. 12 do not lead to the inference of knowledge in para. 7 or of recklessness in para. 8 or of knowledge or recklessness on 11th July in para. 9. But there are a sufficient number of primary facts pleaded, particularly those pleaded in para. 4, which make it possible in law for the pleaded inferences to be found.

21. However, I do not think that the primary facts pleaded in para. 10 of the particulars under para. 12 is a proper pleading. I accept that the words "the matters set out" in Cheung J.'s judgment refer, not to his findings, but to the primary facts which he set out in his judgment. But the primary facts from which knowledge or recklessness are to be inferred had to be pleaded with precision, and (a) on the present state of the pleadings PRI simply cannot tell which of the primary facts set out in Cheung J's. judgment are relied on, and (b) those primary facts should be pleaded separately. I therefore strike out para. 10 of the particulars under para. 12, not as disclosing no reasonable cause of action, but under Ord.18 r.19(1)(c). It is of course open to PRI to serve voluntary further and better particulars under para. 12 setting out any additional facts which are relied on and which are not already included in paras. 1-6.

(iv) Correspondence to description. CIL alleges that the goods which were eventually delivered did not correspond to their description. That allegation is in para. 14A, and the loss is pleaded in para. 15. The addition of para. 14A is the only material amendment to the Statement of Claim. The point taken by Mr. Smith is that that breach could not in law have been accepted by CIL as a repudiatory breach of contract, because CIL had already accepted what they claimed to have been PRI's repudiatory breach of contract, namely the late shipment of the goods and the presentation of false documents. I reject that argument. It is open to a party to justify his refusal to perform a contract by reference to facts which were in existence at the time of the refusal even if those facts were not known to him at the time of refusal: see Chitty on Contracts, Vol. 1, 27th ed., para. 24-012. Accordingly, although CIL decided to treat the contract as at an end because it believed that (a) the shipment had been delayed and (b) false documents had been presented to the Bank, it can nevertheless justify treating the contract as at an end on the basis that it subsequently discovered that the goods did not correspond to their description.

22. For these reasons, with the exception of para. 10 in the particulars under para. 12, I decline to strike out the Amended Statement of Claim.

THE DISCHARGE OF THE INJUNCTION

23. When I announced my decision, Mr. Smith told me that despite what he had said earlier he would be seeking the discharge of the injunction which Cheung J. had granted against PRI. He did not resile from his statement that the evidence relied upon by CIL to prove the facts pleaded against PRI satisfied the evidential threshold. Instead, he relied on two other grounds which it is necessary for me to consider.

24. The injunction restraining PRI from dealing with the proceeds of the letter of credit was made, as I have said, following an inter partes hearing. There is no formal jurisdictional bar to the court entertaining, where justice requires it, an application to discharge an injunction granted at the conclusion of an inter partes hearing, but the circumstances in which the court will do so are necessarily circumscribed. However, the court will do so in two circumstances which are relevant to the present case:

(i) where there has been a material change of circumstances since the injunction was first granted;

(ii) where it has become apparent that the injunction was granted on an erroneous view of the law.

Mr. Smith relies on both these circumstances. The material change of circumstance since the injunction was first granted is that when the goods eventually arrived in Hong Kong, they were resold, and the proceeds of that resale have been paid into court to await the outcome of the action. Those proceeds amount to the sum of HK$492,824.93. Accordingly, it is said that to the extent of that amount the proceeds of the letter of credit can be released to PRI, because any judgment which CIL obtains against PRI can be enforced against that sum in court. I see no answer to that point, because the one thing which CIL will not be entitled to is both the sum of US$324,000.00 and the sum of HK$492,824.93. If CIL wins the action, it will be entitled only to the former sum. If CIL loses the action, it will be entitled only to the latter.

25. Secondly, Mr. Smith claims that Cheung J. proceeded on an erroneous view of the law. He does not claim that Cheung J.'s view of the law has been vitiated by any recent developments in the law: he claims that Cheung J.'s view of the law was erroneous at the time. I am sceptical as to whether that argument can be deployed on this application. The better view is that it should have been advanced by way of appeal to the Court of Appeal. But without deciding whether that is correct or not, I let Mr. Smith develop his argument. It went like this. In deciding that this was an appropriate case in which to freeze the proceeds of the letter of credit, Cheung J. said:

"I would respectfully adopt the approach of Godfrey J. in Honsaico Trading Ltd v. Hong Yiah Seng Co. Ltd.. [1990] 1 HKLR [235], that there is a real risk of dissipation of assets in the light of the dishonest behaviour on the part of the 1st Defendant. I have a sense of uneasiness over the conduct of the 1st Defendant in this transaction."

26. In Honsaico, the issue was whether a Mareva injunction should be granted against the Defendant. Godfrey J. (as he then was) said at p. 240B-H:

"The question is: On the whole of the evidence, would the refusal of a Mareva injunction involve a real risk that the judgment in favour of the plaintiff would remain unsatisfied?.... The defendant is a foreign company which is, on the evidence, in a big way of business, though not in Hong Kong. There is no evidence before me of its having a bad reputation in the market. There is, I think, no doubt that the grant of a Mareva injunction would tend to damage its interests and its reputation in Hong Kong and possibility elsewhere; that is often the effect of a Mareva injunction granted on the ground that the judge is satisfied that there is a real risk that the defendant might allow a judgment against it to remain unsatisfied. In the present case, the defendant claims (without giving anything that could remotely be considered as particulars) that it has a substantial banking relationship in Hong Kong with its bankers. For these reasons, which I quite understand, I am most hesitant to grant this relief against this defendant. But I do have to weigh against these considerations the fact that, as the evidence establishes; there is no reciprocity of enforcement of judgments between Hong Kong and Thailand [which I assume was where the Defendant's assets were], and also the most important consideration which, as it seems to me this case discloses; that is, the devious conduct of the defendant in its dealings with the plaintiff.

I am not here to punish the defendant because I disapprove of its conduct; that is not the purpose of a Mareva injunction. But, if I come to the view that its conduct, in relation to this transaction, leaves me so uneasy that I am driven to the conclusion that there is a real risk that a judgment in favour of the plaintiff might remain unsatisfied, then I conceive it to be my duty to grant the injunction. It may be that some cash will come to the hands of the defendant which would be easily removable out of the jurisdiction, but I attach no very considerable weight to that. It is the case as I have already pointed out that the defendant is a foreign corporation, but it is a substantial one, and I place no great weight on that either.

I have, however, come to the conclusion that the defendant has exhibited an unacceptably low standard of commercial morality in its dealings with the plaintiff; and this drives me to conclude that there is a danger that if the defendant thought it was in its best interests to do it, it would not shrink from attempting to defeat the interests of the plaintiff under any judgment the plaintiff might obtain here."

There can be no doubt from the language which Cheung J. used that he had these passages from Godfrey J.'s judgment in Honsaico in mind. The criticism of Cheung J. is that in reaching his conclusion he ignored the fact that any judgment against PRI could be enforced against its assets in New York. I regard that as an unfair attack on Cheung J. The fact that he did not expressly mention CIL's ability to enforce the judgment in New York does not mean that he ignored that. A judge cannot be expected to mention everything in an ex tempore judgment on an interlocutory application.

27. What I think Mr. Smith really wanted to argue was that the evidence before Cheung J. was not such as to justify the conclusion that the proceeds of the letter of credit could well be dissipated in view of the low standard of commercial morality exhibited by PRI in its dealings with CIL. The facts relied on by CIL were just as consistent with PRI being duped by the manufacturer or the shipper of the goods into believing that the goods had been shipped from Buenos Aires on 20th June, and with PRI only being at fault in presenting the documents to the Bank when the information which it relayed to CIL on 29th June should have put it on enquiry. I am not convinced that it would be right for me to re-open the issue on that ground. But even if it was, I would not have thought it right to discharge the injunction on that ground. It is not as if this was a Mareva injunction relating to all PRI's assets. It relates only to the proceeds of the letter of credit. Nor is it as if PRI needs the proceeds of the letter of credit in order to trade. It has a sufficiently strong asset base and is sufficiently profitable as a trading company for it to trade without the net proceeds.

28. For these reasons, therefore, I decline to discharge the injunction granted by Cheung J. against PRI, but I vary it by reducing the sum of US$324,000.00 by the sum of HK$492,824.93. I will hear the parties as to the precise way in which that sum should be calculated.

FORTIFICATION

29. I do not think that this is an appropriate case for PRI to be required, as a condition for the continuation of the injunction, to fortify its cross-undertaking as to damages. As The Supreme Court Practice 1997, Vol. 1, para. 29/1/12 states:

"Before an application to fortify an undertaking can succeed a likelihood of a significant loss arising as a result of the injunction and a sound basis for belief that the undertaking will be insufficient must be shown."

I do not think that PRI has shown either of these two matters:

(i) There is no evidence before me as to PRI's likely losses caused by reason of it not having had the use of the US$324,000.00 for the time being. Indeed, such evidence as there is (which was relied upon by PRI to dispel any suggestion that it would not be able to honour any judgment debt) is that it is well able to continue trading even without the US$324,000.00. Accordingly, if fortification were to have been ordered, it would have been for a relatively modest sum, but the fact of the matter is that the likelihood of a significant loss arising as a result of the injunction simply has not been shown.

(ii) It is not seriously asserted that CIL would not be able to honour its cross-undertaking as to damages. I have been told that its paid-up capital is HK$20m., that it has banking facilities up to HK$330m., and that its annual turnover is in the region of HK$600m. Of course, that does not necessarily mean that it has a sufficient asset base to meet an award of damages on its cross-undertaking. Recent history has been littered with seemingly profitable companies crashing spectacularly and being unable to pay its debts. But there is nothing in this case which suggests that there is a sound basis for believing that the cross-undertaking will be insufficient without being fortified.

30. In the interests of completeness, I should add that the issue of fortification was not raised before Cheung J. That is important because of the following passage in the same para. of The Supreme Court Practice:

"Where a defendant desires that a plaintiff should give security to fortify a cross-undertaking as to damages, he should apply for the security at the time when the injunction is granted and the cross-undertaking is given. Such an application will not be entertained subsequently, particularly where the security relates to a cross-undertaking given upon the grant of a Mareva injunction which has been discharged."

The authority for that proposition is stated to be "The Mito" [1987] 2 Lloyd's Rep. 197. The sting of that argument has been lanced to a considerable extent by the undertaking offered by PRI that if CIL decided not to fortify the cross-undertaking, and if as a consequence the injunction is discharged, PRI will not rely on the discharge of the injunction on that account to seek an award of damages on CIL's cross- undertaking. However, it is unnecessary for me to reach a final view as to whether the effect of that undertaking disposes of the argument that it is now too late for PRI to seek fortification, because I have decided on the merits that this is not an appropriate case for fortification in any event.