Albon v Naza Motor Trading Sdn Bhd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Lightman |
| Judgment Date | 09 November 2007 |
| Neutral Citation | [2007] EWHC 2613 (Ch) |
| Docket Number | Case No: HC05C02150 |
| Court | Chancery Division |
| Date | 09 November 2007 |
(No 5)
[2007] EWHC 2613 (Ch)
Mr Justice Lightman
Case No: HC05C02150
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Robert Anderson QC & Mr Andrew George (instructed by Sheridans, Whittington House, Alfred Place, London WC1E 7EA) for the Claimant
Mr Neil Kitchener (instructed by Finers Stephens Innocent, 179 Great Portland Street, London W1W 5LS) for the Defendants
Hearing dates: 29 th October 2007
Approved Judgment
I direct that pursuant to CPR PD 39A paragraph 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
INTRODUCTION
At issue in this action is whether the Defendant Naza Motor Trading Shd a Malaysian Company substantially owned and controlled by Tan Sri Dato Nasimmudin Amin (“Mr Nasim”) is indebted to the Claimant Mr Albon (a resident of England) in respect of transactions between them relating to the export of cars by the Defendant from Malaysia to the Claimant in England and the export of cars by the Claimant from England to the Defendant in Malaysia.
The background facts to this dispute are set out in four judgments which I have given in this action and to which I shall subsequently refer. In short the Claimant claims that pursuant to an oral agreement with the Defendant there were dealings between the parties relating to the import into England of cars from Malaysia and the export of cars from England to Malaysia and that in respect of those dealings there is a substantial sum due from the Defendant to the Claimant. The larger part of that sum relates to the export of cars from England. The Defendant admits that there was an oral agreement for the import of cars into England, but denies that it covered the export of cars from England to Malaysia and the Defendant also disputes the terms of the oral agreement alleged by the Claimant. Going beyond this the Defendant contends that the parties entered in Malaysia into a Joint Venture Agreement (“the JVA”) which provided for arbitration of all disputes between the parties in Malaysia. The Claimant contends that the JVA is a forgery.
By the first of my four judgments dated the 23 rd January 2007 (“the First Judgment”) I dismissed an application by the Defendant to set aside the grant of permission to the Claimant to serve these proceedings on the Defendant in Malaysia. By the second judgment dated the 9 th March 2007 (“the Second Judgment”) I dismissed the Defendant's challenge to an order authorising service of these proceedings by the Claimant on the Defendant by a method not permitted by the CPR. By the third judgment dated the 29 th March 2007 (“the Third Judgment”) I held that the English court rather than the persons purportedly appointed arbitrators under the JVA (“the Arbitrators”) should determine the authenticity of the JVA. The court orders in respect of the three judgments have not yet been drawn up. By the fourth judgment dated the 31 st July 2007 (“the Fourth Judgment”), in the face of a refusal by the Defendant to agree that the Arbitrators should have no jurisdiction to determine the authenticity of the JVA unless and until the Third Judgment was reversed, I granted an injunction restraining the Defendant from pursuing the arbitration proceedings pending determination by the court of the authenticity of the JVA. On Wednesday the 24 th October 2007 the Court of Appeal heard an appeal against the Fourth Judgment and reserved judgment and on the 6 th November dismissed the appeal.
The present application (“the Application”) issued on the 24 th April 2007 is a form of application commonly referred to as a “Barrell Application” whereby in exceptional circumstances a party may apply for an order setting aside a judgment before the order giving effect to that judgment has been entered. The Application in this case seeks an order setting aside the First, Second and Third Judgments on the grounds that there have come to light: (a) certain documents and in particular a contract in writing between the parties dated the 3 rd November 2000 (“the CSA Agreement”) which governed the export of cars by the Claimant to the Defendant and that the Claimant wrongly failed to disclose the CSA Agreement to the court on the application for permission to serve in Malaysia or thereafter; and (b) certain written communications between the parties which (the Defendant contends) do not accord with the Claimant's case as to the terms of the oral contract between the parties. The Claimant contends that the CSA (like the JVA) is a forgery.
The Defendant has contended since the date of the Application that this court could not and should not determine the issue of the authenticity of the JVA until the outcome of the Application is known for, if the Defendant succeeds on the Application, these proceedings and the grant of permission to the Claimant to serve these proceedings in Malaysia will be set aside, these proceedings will be brought to a close and there will be no occasion for this court to decide the issue. There is force in this contention, but it underlines the need for a speedy trial of the Application. The continued existence of the Application bars the Claimant from prosecuting his claim in these proceedings, but has left the Defendant free (unless and until restrained by this court) to continue to proceed before the Arbitrators.
On the 23 rd April 2007 I gave directions for the hearing of the Application with a hearing date in June or July 2007. The date was subsequently fixed through the normal channels for the 9 th July 2007. The Claimant has at all times been in some financial difficulties and these difficulties were particularly acute around that time. These difficulties led to the non-payment of fees due to the Claimant's solicitors and for this reason they ceased to act. At a hearing on the 29 th June 2007, by reason of the loss to the Claimant of the services of their solicitors I vacated the hearing date of the 9 th July 2007. A further directions hearing took place on the 9 th July 2007 when I directed that the Application should be re-fixed with an estimate of five days and that witnesses attend for cross-examination. In the course of the hearing I stated to Mr Nathan QC, counsel for the Defendant, that I had provisionally fixed the hearing for five days on the 15 th October 2007 and the directions which I should give would include that I must get the skeleton arguments and documents by the first day of the next term (i.e. by the 1 st October 2007, fourteen days before the date of trial). I explained that I wanted to do the bulk of the pre-reading during the first week because I would be abroad for the bulk of the second week. Mr Nathan assented to that course. The court order (quite properly) accordingly directed that skeleton arguments should be exchanged and lodged fourteen days before the date of hearing. Later in the course of the hearing it became apparent that the hearing could not proceed on the 15 th October 2007, and through the usual channels the date of commencement was fixed at the 29 th October 2007.
Both parties proceeded to prepare for trial and trial bundles were prepared and lodged with the court and agreed. A dispute arose regarding disclosure by the Defendant of Malaysian customs declarations relating to the import of cars into Malaysia made by the Defendant to the Malaysian Customs Authorities. The relationship between the prices of the cars exported to Malaysia as shown in the CSA and in such declarations appeared to be relevant to the issue whether the CSA was a genuine document. I ordered their disclosure, but later on the application of the Defendant stayed that order pending the service by the Claimant of further information of the relevant Malaysian customs law and practice relied on by the Claimant. After service of that further information the Claimant made an application for the lifting of the stay, but when this application was opposed on the 18 th October 2007 (most...
To continue reading
Request your trial
-
Bilta (UK) Ltd ((in Liquidation)) & Others v Tradition Financial Services Ltd
...31 The authorities to which we were referred were the following. With one exception (the decision of Lightman J in Albon v Naza Motor Trading Sdn Bhd (No 5) [2007] EWHC 2613 (Ch) (“ Albon”)), they were all decisions of this 32 Dick v Piller [1943] 1 KB 497 was an appeal by the defendant fr......
-
Sadruddin Hashwani and Others v Omv Maurice Energy Ltd
...is only about the ambit or scope of the agreement. That is not this case. I agree with the views expressed by Lightman J. in Albon v Naza Motor Trading Sdn Bhd [2007] EWHC 665 (Ch) that it will only be in exceptional cases that a court faced with proceedings which require it to determine th......
-
Alliance Bank JSC v Aquanta Corporation and Others
...and (d) is satisfied. 50 With regard to the remainder of the claims, it has been now on a number of occasions made clear, since Albon v Naza Motor Trading [2007] EWHC 327 (Ch) (per Lightman J) that the claim, in respect of which service out is sought, does not have to be a claim to enforce ......
-
JSC BTA Bank v Mukhtar Ablyazov & others
...parties, the Court should not normally determine the question itself on affidavit evidence rather than by ordering an issue. In Albon v Naza Motor Trading SDN BHD [2007] EWHC 665 (Ch) Lightman J took the view that it was only in an exceptional case that the court should exercise its inhere......
-
Risk Of Wasted Costs Orders
...cases, including wasted costs orders against a party's legal representatives. See for instance Albon v Naza Motor Trading Sdn Bhd [2007] EWHC 2613 (Ch), Denton v White Ltd [2014] EWCA Civ 906 and in particular Davies v Forrett [2015] EWHC 1761 Risk Of Wasted Costs Orders The content of this......