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Komaia Deccof And Co Sa And Others v Perusahaan Pertambangan Minyik Dan Gas Bumi Negara

Judgment Cited authorities 4 Cited in Precedent Map Related
Vincent
Judgment Date26 February 1982
Year1982
Judgement NumberCACV8/1981
Subject MatterCivil Appeal
CourtCourt of Appeal (Hong Kong)
CACV000008/1981 KOMAIA DECCOF AND CO SA AND OTHERS v. PERUSAHAAN PERTAMBANGAN MINYIK DAN GAS BUMI NEGARA

CACV000008/1981

IN THE COURT OF APPEAL

1981 No. 8
(Civil)

Headnote

O.11 r.1(1)(g) - Breach of contract within the jurisdiction - whether place of payment Hong Kong - proper approach to the ascertainment of the place of payment where contract is silent - relevant place of business where two exist.

IN THE COURT OF APPEAL 1981 No. 8
(Civil)

BETWEEN

KOMAIA DECCOF & CO., S. A. 1st Appellant
(1st Plaintiff)
COLLIN NAVIGATION CO., S. A. 2nd Appellant
(2nd Plaintiff)
KOMALA DECCOF & CO. (a firm) 3rd Appellant
(3rd Plaintiff)

AND
PERUSAHAAN PERTAMBANGAN MINYIK DAN GA BUMI NEGARA (PERTAMINA) Respondent
(Defendant)

__________

Coram: Leonard, V. P., Power & Hunters JJ.

Date: 26 February 1982

___________

JUDGMENT

___________

Hunter, J.:

1. The plaintiffs are an associated group of companies, said at the material time to have carried on business in and from Hong Kong. The first two plaintiffs are limited companies, in fact incorporated in Liberia. The third plaintiff is a firm. The defendant, better known as Pertamina, carries on business exclusively outside the jurisdiction, having its head office in Jakarta, Indonesia. On 26th February 1980 the plaintiffs obtained the leave of Mr. Registrar Cameron to issue and serve upon the defendant the writ in this matter. By the statement of claim endorsed upon the writ the plaintiffs made various claims against the defendant which fall into two categories, namely first, those made under oral contracts, and secondly those under written contracts. The claims made under oral contracts were those made

(i) by the first plaintiff in paragraph 1A and paragraph 1B;

(ii) by the second plaintiff in paragraph 2A; and

(iii) by the third plaintiff in paragraphs 3A and B.

The claims underwritten contracts were made exclusively by the 2nd plaintiff and form the subject matter of paragraphs 2B, C and D of the statement of claim. The defendants have sought to have the order as to the issue and service of the writ set aside upon the basis that the court has no jurisdiction to adjudicate upon the claims therein made. This application came before Mr. Justice Liu in Chambers and by order dated 13th of January 1981, he acceded to the defendant's application in part in that he ordered all the claims, herein before set out, arising under the oral contracts to be struck out. From that order the plaintiffs now appeal.

2. It is convenient to summarise at the outset certain matters which were common ground between the parties at the hearing of this appeal. Principally these matters were: -

(i) the plaintiffs accepted that they could no longer contend that the oral contracts in question were made in Hong Yong and that they could not rely upon the provisions of O.11 r.1(1)(f)(i).

(ii) At the opening of this appeal the plaintiffs' case was founded exclusively upon O.11 r.1(1)(g), namely, that this court had jurisdiction because a breach of each material contract had been committed within the jurisdiction. The breach complained of was a failure to pay, it being the plaintiffs' case that the contracts imposed a contractual obligation upon the defendant to pay in Hong Kong.

(iii) The sole issue was whether the plaintiffs could bring themselves within the provisions of sub-rule (g). It was not argued that if the plaintiffs could do so there were any grounds upon which the court could or should exercise its discretion against the plaintiffs.

(iv) In the words of O.11 r.4(2), "no such leave shall be granted unless it shall be made sufficiently to appear to the court that the case is a proper one for service out of the jurisdiction." It was common ground that the proper approach to that question was that set out in the speeches in their Lordship's house in Horni v. Korner(1) as paraphrased by the Court of Appeal in Brinkibon Ltd. v. Stahag Stahl(2) as "somewhere between a prima facie case resting on an assertion ... and a case which satisfied the court that it would be proved at the trial'; per Stephenson LJ at p559.

We shall in this judgment use the phrase "good arguable case" to of describe this intermediate standard of proof.

3. In these circumstances the issue raised by this appeal was whether the plaintiffs had a good arguable case for contending that by failing to pay the sums claimed under these oral contracts the defendants had committed a breach within the jurisdiction because the defendant's obligation was to pay in Hong Kong. During the course of the argument it became clear that this issue could be said to depend upon the answers to two questions, each of which we will separately consider, namely

(i) have the plaintiffs a good arguable case for contending that they formed an associated group of companies whose trading activities vis-a-vis the defendant were conducted from Hong Kong.

(ii) If so, have the plaintiffs a good arguable case for contending that the defendant's obligation under the relevant contracts was to pay at the place from which the plaintiffs' activities were conducted, namely Hong Kong.

Question 1

4. The plaintiffs' original application was founded upon an affirmation of Miss Mary Fung made on 20th February 1980. Much criticism has been directed at this and particularly to the form of paragraph 1. The second sentence there reads:

"Unless otherwise stated, the facts herein affirmed to are known tome of my own knowledge or had been gleaned by me from the records of the intended plaintiffs".

We wish to say nothing to endorse this formula. It seems to us that the lady's personal knowledge of this matter must have been minimal, and that such knowledge as she did acquire was most likely to have been acquired from conversations with some persons unnamed on behalf of the plaintiffs themselves. If that inference be correct then she should have given her sources of information. Likewise it is not for a witness to draw inferences from documents which is what Miss Fung seems to us to be doing, but to put the documents before the court and to allow the court to draw its own inferences therefrom. It is upon such of the records as have been produced by the parties that we have principally relied.

5. A number of copies of original documents were exhibited to Miss Fung's affirmation. In addition the defendants produced two documents. The first was exhibited to an affidavit of Mr. Clarke dated 12th January 1981 and was a letter dated 8th October 1980; the second was produced by the defendants during the argument before us and was a letter dated 30th December 1972. It seems to us reasonable to infer that the documents produced are representative samples. They all point one way, namely that the plaintiffs' dealings with this defendant were...

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