Chio v Basuki
[2002] WASC 60
CHIO & ANOR -v- BASUKI & ORS [2002] WASC 60
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASC 60 | |
| Case No: | CIV:2251/2001 | 6 MARCH 2002 | |
| Coram: | MASTER BREDMEYER | 28/03/02 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | PETER KWEE SENG CHIO JAMES CHAN KOK CHOON JOHNNY BASUKI JOONDALUP COUNTRY CLUB HOLDINGS LTD (ARBN 060 072 175) JOONDALUP HOTEL INVESTMENTS PTE LTD INTERNATIONAL GOLF RESORTS PTE LTD |
Catchwords: | Service of writ out of the jurisdiction Application to set aside service Abuse of process |
Legislation: | Rules of the Supreme Court, O 10 r 1(1)(a)(ii), (e) |
Case References: | Koranna Nominees Pty Ltd v Roberts, unreported; SCt of WA; Library No 4289; 15 October 1991 Mauroux v Soc Com Abel Pereira Da Fonseca SARL [1972] 2 All ER 1085 Saltram Wine v Independent Stave Co (1992) 57 SASR 156 Victoria v Hanson [1960] VR 582 Voth v Manildra Flower Mills Pty Ltd (1990) 171 CLR 538 Agar v Hyde (2000) 201 CLR 552 Banque des Marchands de Moscou v Kindersley [1951] 1 Ch 112 Bell Group NV (In liq) v Aspinall (1998) 19 WAR 561 Colbert v Tocumwal Trading Co [1964] VR 820 Derby & Co Ltd v Larssno [1976] 1 All ER 401 Dey v Victorian Railways Commissioners (1948) 78 CLR 62 Edwards v Culcairn Shire Council (1964) NSWR 873 Entores Ltd v Miles Far East Corporation [1955] 2 QB 327 Geraldton Building Co Pty Ltd v Christmas Island Resort Pty Ltd (No 3) (1995) 14 WAR 293 Highfield Woods Pty Ltd v Bayview Crane Hire Pty Ltd (1996) 130 FLR 238 House of Spring Gardens Ltd v Waite [1991] 1 QB 241 Hyde v Agar [1998] 45 NSWLR 487 Reichel v Magrath (1889) 14 App Cas 665 Seaconsar Far East Ltd v Bank Markazi Jomhouri Islami Iran [1994] AC 438 Sheldon Pallet Manufacturing Co Pty Ltd v New Zealand Forest Products Ltd [1975] 1 NSWLR 141 The Commonwealth v Verwayen (1990) 170 CLR 394 The Hagen [1908] All ER 21 Vitkovice Horni a Hutni Tezirstvo v Korner [1951] AC 869 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- JAMES CHAN KOK CHOON
Plaintiffs
AND
JOHNNY BASUKI
First Defendant
JOONDALUP COUNTRY CLUB HOLDINGS LTD (ARBN 060 072 175)
Second Defendant
JOONDALUP HOTEL INVESTMENTS PTE LTD
INTERNATIONAL GOLF RESORTS PTE LTD
Third Defendants
Catchwords:
Service of writ out of the jurisdiction - Application to set aside service - Abuse of process
(Page 2)
Legislation:
Rules of the Supreme Court, O 10 r 1(1)(a)(ii), (e)
Result:
Application dismissed
Category: B
Representation:
Counsel:
Plaintiffs : Mr P D Evans
First Defendant : Ms C C Toman
Second Defendant : No appearance
Third Defendants : No Appearance
Solicitors:
Plaintiffs : Freehills
First Defendant : Williams & Hughes
Second Defendant : Tottle Christensen
Third Defendants : Tottle Christensen
Case(s) referred to in judgment(s):
Koranna Nominees Pty Ltd v Roberts, unreported; SCt of WA; Library No 4289; 15 October 1991
Mauroux v Soc Com Abel Pereira Da Fonseca SARL [1972] 2 All ER 1085
Saltram Wine v Independent Stave Co (1992) 57 SASR 156
Victoria v Hanson [1960] VR 582
Voth v Manildra Flower Mills Pty Ltd (1990) 171 CLR 538
Case(s) also cited:
Agar v Hyde (2000) 201 CLR 552
(Page 3)
Banque des Marchands de Moscou v Kindersley [1951] 1 Ch 112
Bell Group NV (In liq) v Aspinall (1998) 19 WAR 561
Colbert v Tocumwal Trading Co [1964] VR 820
Derby & Co Ltd v Larssno [1976] 1 All ER 401
Dey v Victorian Railways Commissioners (1948) 78 CLR 62
Edwards v Culcairn Shire Council (1964) NSWR 873
Entores Ltd v Miles Far East Corporation [1955] 2 QB 327
Geraldton Building Co Pty Ltd v Christmas Island Resort Pty Ltd (No 3) (1995) 14 WAR 293
Highfield Woods Pty Ltd v Bayview Crane Hire Pty Ltd (1996) 130 FLR 238
House of Spring Gardens Ltd v Waite [1991] 1 QB 241
Hyde v Agar [1998] 45 NSWLR 487
Reichel v Magrath (1889) 14 App Cas 665
Seaconsar Far East Ltd v Bank Markazi Jomhouri Islami Iran [1994] AC 438
Sheldon Pallet Manufacturing Co Pty Ltd v New Zealand Forest Products Ltd [1975] 1 NSWLR 141
The Commonwealth v Verwayen (1990) 170 CLR 394
The Hagen [1908] All ER 21
Vitkovice Horni a Hutni Tezirstvo v Korner [1951] AC 869
(Page 4)
1 MASTER BREDMEYER: On 4 September 2001, I made an ex parte order granting leave to the plaintiffs to serve the writ on the first defendant out of the jurisdiction. The first defendant, whom I will refer to as the defendant, lives in Jakarta. On 9 November 2001, I made an ex parte order for substituted service, allowing the writ against the defendant to be served on his Perth solicitors, Williams & Hughes. The defendant has applied, by notice of motion dated 6 December 2001, to set aside those orders.
2 The first ground of the application is that, insofar as the application is based on causes of action pleaded at par 21 of the statement of claim, it is an abuse of process, in that the High Court in Singapore, in action number 1150 of 2000 between Mr Basuki and parties related to the plaintiffs, has decided that there was no such settlement agreement.
3 Paragraph 21 of the statement of claim indorsed on the writ of summons refers to a settlement agreement between the plaintiffs, on the one part and the defendant, whereby the defendant would abandon all legal claims made against the second defendant, Joondalup Country Club Holdings Ltd (JCCH), and the plaintiffs and, in return, his loans to the company, and the three plaintiffs' loans to the company would be converted into shares. Two particulars of that agreement are given. It was made in a telephone call between Mr James Chan on behalf of himself and the other plaintiffs and another, and the defendant, on 16 September 1998. In that telephone call, James Chan acted on behalf of the company and the plaintiffs. It is said that the agreement reached in the telephone call was confirmed by two faxes from James Chan to the defendant on 16 and 24 September 1998.
4 In the Singapore action, James Chan filed a long affidavit sworn on 2 August 2000, which has been produced to me. The affidavit sets out this agreement at par 52 onwards. Mr Chan said he sent off a fax on 16 September 1998 to confirm the oral agreement reached. He tried to get the defendant to countersign it. Mr Basuki wanted to meet with Mr Peter Kwee and various places for a suggested meeting were discussed. On 24 September, Mr Chan redated and resent his fax of 16 September to the defendant in Jakarta. Mr Basuki still refused to sign. Later in November, Mr Chan says the defendant raised three issues he wanted put into a deed of settlement. Mr Chan considered he had an agreement, but nevertheless negotiated with the defendant over the terms of a deed of settlement. No agreement was reached on those terms and no deed was ever signed.
(Page 5)
5 This settlement agreement reached between Mr Chan and the defendant in that telephone call is precisely the agreement pleaded in par 21 of the present statement of claim. It was an agreement put into evidence before the Judge in the High Court in Singapore. After hearing evidence on the agreement, her Honour concluded that there was no such agreement reached. She said it was a preliminary consensus reached only over the phone. Chan expected Basuki to accept the terms sent in written form. They were sent to Basuki's lawyer. Some negotiation was expected. But no agreement was reached.
6 I consider there is sufficient identity between the parties in the two courts. The Singapore action was between International Golf Resorts Pte Ltd (IGR) and Mr Basuki. IGR brought an injunction application in the Singapore High Court - later changed to an application for a declaration - to stop Mr Basuki proceeding on a statutory demand. IGR is a holding company for the other companies in the Joondalup group. Two of the plaintiffs in the present action, Mr Kwee and Mr Low, did not have any personal evidence to give to the Singapore court about the existence of the settlement agreement. That agreement was said to have been reached on the phone in a conversation between Messrs Chan and Basuki. I consider there is sufficient identity of the parties to say that this claim is an abuse of process. Test it this way: If this action was brought in the Singapore High Court, would these three directors/lenders be able to lead evidence again on the telephone agreement of 16 September 1998? Clearly not. I consider the plaintiffs' claim in par 21 is an abuse of process, but it is only a small part of the whole statement of claim and does not justify discharging my order for leave to serve the writ out of the jurisdiction. I consider par 21 and a small part of the prayer for relief, which is ancillary to par 21, should be struck out from the statement of claim.
7 My grant of leave to serve the writ out of the jurisdiction was based on matters set out in Mr Standing's affidavit of 28 August 2001. In particular, the order was made on two of the subheadings in O 10 r 1 of the Supreme Court Rules, namely:
"(1)(a) the subject matter of the action, so far as it concerns the party to be served, is —
(i) …
(ii) any shares or stock of a corporation or joint stock company having its principal place of business within the State;
(Page 6)
- …
- (e) the action is one brought to enforce, rescind, dissolve, annul, or otherwise affect a contract, or to recover damages or obtain other relief in respect of the breach of a contract, being in either case a contract —
(i) made within the jurisdiction; or
(ii) …
(iii) … "
9 The affidavit in support is that of Mr Standing sworn 28 August 2001. It, in turn, refers to two affidavits of Mr James Chan sworn 25 July 2000 and 18 September 2000 in COR 191 of 2000. Despite the incorporation of those affidavits, I consider that Mr Standing's affidavit relies on those two grounds only.
10 I will now consider the first ground, that the subject matter of the action is shares (amongst others) in JCCH which has its principal place of business at 1 Country Club Boulevard, Connolly, WA. The company certainly has its principal place of business within the State. It owns the Joondalup golf course land and the clubhouse erected on it. It is a Singapore company.
11 Is the subject matter of the action shares in the company? Shares do feature in the statement of claim. There are a number of strands in the statement of claim. The principal subject matter of the claim is the construction of an investment agreement whereby two of the plaintiffs and another, I think all from Singapore, and the defendant, each agreed to take up 24.5 per cent "shares" in the company. Many of the terms of the agreement reached are said to be implied. Paragraph 23 pleads a term,
(Page 7)
- express or implied, that the loans to the company were to be treated as "quasi-capital" and shares were to be issued in lieu of the loans. One of the prayers for relief is that the company issue shares to replace the loans and that the defendant's shares be offered for sale to the other investors. I consider that shares do form part of the statement of claim.
12 Ms Toman for the defendant has cited to me Victoria v Hanson [1960] VR 582 at 585, 586 and Saltram Wine v Independent Stave Co (1992) 57 SASR 156 at 160, as authorities for the proposition that it is only where the title to shares is in issue, that they form "the subject matter of the action". Title to shares is not an issue in this case. This is not a case, for example, where the dispute is whether "A" or "B" owns a certain parcel of shares. The shares mentioned in this statement of claim have not yet been created. The plaintiffs want them to be created and issued, and then for the defendant to sell his shares to them at a price to be agreed upon, or, if not, to be fixed by an independent source. If the plaintiffs succeed in this action and get the orders sought, that would affect significantly the shareholding of the company. The company would be ordered to issue many new shares. I consider such an order would have a direct effect on the shareholding of the company and I consider that is sufficient to bring it within O 10 r 1(1)(a). See the Saltram Wine case at 160.
13 The second basis for the grant of leave was under O 10 r 1(1)(e) that the contract was made wholly or partly in WA. For this, I was referred to par 3 of the statement of claim. I do not think that basis is arguable. The pleading of meeting "A" held in Perth, referred to in par 3 of the statement of claim, where two of the plaintiffs and a Henry Liem met with the defendant's father and agreed on a joint venture for the country club site, is probably an idle plea. It was not an agreement with the defendant, Johnny Basuki. It was not binding on him. It is not pleaded that his father acted as his agent at that meeting. The meeting at which the defendant agreed to come into the investment was held in Jakarta.
14 In summary, I consider that the grant of leave can be sustained under O 10 r 1(1)(a)(ii), but not under r 1(1)(e).
15 I consider the pleading of the settlement agreement in par 21 of the statement of claim is an abuse of process, that matter having been decided against a company related to the plaintiffs in the High Court of Singapore. I do not regard that as a reason to set aside the service, but rather consider that I should strike out par 21 and a few words in prayer for relief 1(b), namely:
(Page 8)
- "The Settlement Agreement pleaded in para 21, or "
16 Megarry J, as he then was, in Mauroux v Soc Com Abel Pereira Da Fonseca SARL [1972] 2 All ER 1085 said:
"Leave shall not be granted unless the Court is satisfied that a proper case has been made out for service of the jurisdiction."
17 Megarry J then said, at 1087:
"In my judgment, it is for the plaintiff to establish not only that the case falls within some part of [the rule], but also that the case is otherwise a proper one for service out of the jurisdiction; and these latter words must include the issue of forum conveniens." (Emphasis mine)
18 The High Court of Australia in Voth v Manildra Flower Mills Pty Ltd (1990) 171 CLR 538 at 564 made the same point, but expressed it a little differently.
"Where a case falls within a category in which the legislature has seen fit to allow service outside the jurisdiction if, but only if, the leave of a court is first obtained, that court should not grant leave unless it is positively persuaded that it should do so. Plainly, it should not be so persuaded unless the plaintiff satisfies it that the case is of the relevant category and that the proceedings would not be subsequently stayed as an abuse of process on forum non conveniens grounds or for some other reason."
19 This Supreme Court is a very convenient forum for this action. This defendant, Mr Basuki, has been suing various defendants in Australian courts trying to recover his multi-million dollar investment in the Joondalup Country Club project, since 1997. He started off in the Federal Court in Victoria. That action has been transferred to this Court and consolidated with two other actions and the consolidated action now has the lead number CIV 2550 of 2000. He engaged new solicitors, Williams & Hughes, in December 2000. In January 2001, they produced a greatly simplified, consolidated statement of claim. In March 2001, they discontinued the action against the second to twelfth defendants, which included the present three plaintiffs. Mr Basuki sues JCCH in that action to recover moneys due under two loan deeds, one of 8 June 1993 and one of 31 December 1993. The loans were in Australian dollars. Each of the loan deeds contains a clause:
(Page 9)
- "This Deed shall be governed by and construed in all aspects in accordance with the laws of Singapore."
20 Despite that clause, Mr Basuki has chosen this Supreme Court as his forum to pursue these claims. That suited his convenience. I consider he will not suffer any inconvenience by having to face this present action in this Court when the subject matter of it arises out of the same transaction, namely, his investment in the Joondalup Country Club. It is the desire of the plaintiffs in this action that this action be consolidated, or otherwise heard together with Mr Basuki's action. It is, in effect, a kind of counterclaim.
21 Subject to the striking-out of par 21 of the statement of claim indorsed on the writ and part of the prayer for relief mentioned above, this application will be dismissed.
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