Gan v Export-Import Bank of Malaysia Berhad
[2017] NSWSC 176
•02 March 2017
Supreme Court
New South Wales
Medium Neutral Citation: Gan v Export-Import Bank of Malaysia Berhad [2017] NSWSC 176 Hearing dates: 2 March 2017 Decision date: 02 March 2017 Jurisdiction: Equity Before: Stevenson J Decision: Summons dismissed with costs
Catchwords: PRIVATE INTERNATIONAL LAW – service on foreign corporation – whether court should assume jurisdiction – where dispute sought to be agitated already decided by Malaysian court – whether proceedings have any prospects of success – whether court an inappropriate forum Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) Texts Cited: M Davies, A Bell and P Brereton, Nygh's Conflict of Laws in Australia, (9th ed 2014, LexisNexis Butterworths) Category: Procedural and other rulings Parties: Sing Kian Gan (First Plaintiff/Respondent) (In Person)
Zaridah Sujak (Second Plaintiff/Respondent)
Export-Import Bank of Malaysia Berhad (Defendant/Applicant)Representation: Counsel:
Solicitors:
D Ratnam (Defendant/Applicant)
HWL Ebsworth Lawyers (Defendant/Applicant)
File Number(s): SC 2016/325582
Judgment
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The plaintiffs, Mr Sing Kian Gan and Ms Zaridah Sujak, commenced these proceedings by summons filed on 1 November 2016.
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The defendant, Export-Import Bank of Malaysia Berhad, is a Malaysian corporation. It does not carry on business in, and has no presence in Australia.
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The plaintiffs purported to serve the summons on the Bank by email, and then by post. They did not seek leave to do so.
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The Bank has not entered an appearance and by notice of motion filed on 20 January 2017, seeks an order under Uniform Civil Procedure Rules 2005 (NSW) r 11.6 dismissing the proceedings upon the basis that:
service of the summons on it was not authorised by the Rules;
the Court is an inappropriate forum for the trial of the proceedings; and
the claim has insufficient prospects of success to warrant putting the Bank to the time, expense and trouble of defending the claim.
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The issues that the plaintiffs seek to agitate in these proceedings have been determined adversely to the plaintiffs, on a final basis, in proceedings in which the plaintiffs participated by solicitors and counsel in the High Court of Malaya and in the Court of Appeal of Malaysia.
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My conclusion is that, in those circumstances, and assuming (without deciding) that service on the Bank was authorised by the Rules, the Court should not assume jurisdiction because the proceedings have no prospects of success. The summons should be dismissed.
Background
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The plaintiffs are Malaysian citizens who live in NSW. The first plaintiff was the manager of Kaki Lima Restaurant Pty Ltd, a company incorporated in New South Wales. The second plaintiff was the sole director and company secretary of Kaki Lima.
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In 2009, Kaki Lima sought finance from the Bank as part of the Malaysian Government’s “Malaysian Kitchen Program” (a scheme designed to promote Malaysian cuisine abroad to enhance Malaysian tourism).
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Kaki Lima entered into a facility agreement with the Bank on 2 April 2009. On the same date, the plaintiffs guaranteed Kaki Lima’s obligations under that facility.
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The Bank alleged that Kaki Lima defaulted in its obligations under that facility and made demand on the plaintiffs, as guarantors.
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Thereafter, the Bank commenced proceedings against the plaintiffs in the High Court of Malaya.
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In those proceedings, the plaintiffs (as defendants) contended that the Bank had wrongly terminated the facility and that the Bank was not (as it contended) a mere lender but was, rather, the agent of the Malaysian Government in a joint venture with Kaki Lima.
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The first plaintiff, Mr Gan, made a number of witness statements in those proceedings.
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The hearing took place on 27 October 2015 before Judge Datuk Hasnah binti Dato’ Mohammed Hashim. Her Honour delivered judgment on 18 March 2016 in favour of the Bank and dismissed the cross-claim brought by the plaintiffs (as defendants) in which they agitated the matters to which I have referred.
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The plaintiffs lodged a Memorandum of Appeal to the Court of Appeal of Malaysia. The appeal was dismissed on 20 October 2016.
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These proceedings were commenced less than two weeks later.
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Throughout the course of the proceedings in Malaysia, the plaintiffs (as defendants) were represented by solicitors and counsel.
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Mr Gan, who appeared for the plaintiffs before me today, accepted that the contentions which the plaintiffs wish to agitate in these proceedings are precisely those which were rejected by the court in Malaysia.
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In his affidavit of 2 February 2017, Mr Gan contended that “something is seriously wrong with the judgments” in the Malaysian court.
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Before me, Mr Gan contended that the Malaysian judicial system has “broken down” and that Malaysian courts “favour government institutions” (such as, I would infer Mr Gan means, the Bank).
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Mr Gan contended that, in the Malaysian proceedings it was not possible for him to have the matter resolved in “a fair way” and that he wished this Court to have “another look at the evidence” so that it could make a “proper and fair judgment” on the matters that, Mr Gan contended, had not been decided correctly by the Malaysian courts.
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Mr Gan said that he was concerned that some unspecified adverse consequences may befall the plaintiffs (as Malaysian citizens) should they return to Malaysia (where, Mr Gan told me, they have family) unless this Court reconsidered, and came to a different conclusion, in respect of the matters that have been determined adversely to Kaki Lima and the plaintiffs in the Malaysian proceedings.
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On the evidence before me, there is simply no basis upon which I could accept the accuracy of Mr Gan’s contentions.
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The plaintiffs (as defendants) have had their day in court in Malaysia. They have not been successful and it would be entirely inappropriate for this Court to, in effect, rehear the matter, assuming it had jurisdiction to do so.
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In fact, far from having any reason to doubt the integrity of the judgments given in Malaysia, they have the characteristics which would permit their enforcement in Australia under the common law rules for enforcement of foreign judgments; namely that:
the Malaysian court has exercised a jurisdiction that this Court recognises;
the Malaysian judgments are final and conclusive;
there is an identity of parties; and
the Malaysian judgments are for a specified amount.
See M Davies, A Bell and P Brereton, Nygh's Conflict of Laws in Australia, (9th ed 2014, LexisNexis Butterworths) at [40.2]).
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The proceedings must be dismissed with costs.
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Decision last updated: 02 March 2017
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