Astro Exito Navegacion S.A. v Hsu (Messiniaki Tolmi)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE OLIVER,LORD JUSTICE ROBERT GOFF |
| Judgment Date | 20 December 1983 |
| Judgment citation (vLex) | [1983] EWCA Civ J1220-2 |
| Docket Number | 83/0524 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 December 1983 |
[1983] EWCA Civ J1220-2
Lord Justice Oliver
Lord Justice Slade
and
Lord Justice Robert Goff
83/0524
1981 A. No. 3926
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (COMMERCIAL COURT)
(MR. JUSTICE MUSTILL)
Royal Courts of Justice.
MR. STEPHEN GEE (instructed by Messrs. Holman, Fenwick & Willan) appeared on behalf of the (Plaintiffs) Respondents.
THE (DEFENDANT) APPELLANT was neither present nor represented.
This is the judgment of the court.
There are before the court an appeal by the appellant, Mr. Hsu, and a cross-appeal by the respondents, Astro Exito Navegacion S.A., from a decision by Mr. Justice Mustill. The appellant has failed to appear before this court, and his appeal is therefore dismissed. The respondents appeared however, and we have heard argument from them on their cross-appeal. We shall therefore only set out in this judgment such of the facts of the case as are relevant to the cross-appeal.
The respondents are a company registered in Panama. At the material times they were the owners of a ship called "Messiniaki Tolmi". The appellant is a citizen of the Republic of Taiwan, and is the president of Li Chong Co. Ltd., a company which carries on business in Taiwan as brokers and ship breakers. On the 2nd July, 1980 the respondents entered into an agreement for the sale of "Messiniaki Tolmi" (which we shall refer to as "the vessel") to a Taiwanese company called Southland Enterprises Co. Ltd. The appellant acted as a form of broker in negotiations leading up to that contract. Pursuant to that contract, the vessel arrived in the outer harbour at Kaohsiung in Taiwan on the 22nd September, 1980 for the purposes of delivery to Southland Enterprises Co. Ltd. (which we shall refer to as "the buyers") under the sale contract. However, difficulties arose over the delivery of the vessel. These difficulties related to a gas-free certificate which was required under the contract of sale. The buyers maintained that the certificate provided by the respondents was not in accordance with the contract; the respondents maintained that it was. The dispute continued for a number of days; and it was not until the 8th October, 1980 that approval was given to the certificate by the harbour authority. Meanwhile a cancelling date in the sale contract, 30th September, had come and gone, though the respondents had purported to extend that date under the terms of the contract. However, the buyers refused to take delivery of the vessel on the 8th October, on the ground that the tender was out of time.
There followed a whole series of proceedings in this country. Among those proceedings was an arbitration pursued by the respondents against the buyers in London, in which the respondents claimed that the buyers had repudiated the sale contract. The case of the respondents was that the buyers had deliberately provoked the delay in Kaohsiung, including in particular by intervening with the harbourmaster in order to delay approval of the gas-free certificate, their purpose being to put themselves in the position of being able to cancel the sale contract on a sharply falling market. The arbitrators unanimously upheld the respondents' case, and on the 23rd March, 1982 made a final award for damages and demurrage in favour of the respondents. The award was not honoured. On the 13th July, 1982 the respondents obtained leave to enforce the award in the same manner as a judgment, the total sum due under the judgment being U.S. $2,647,680.84 together with costs. This judgment, too, has not been honoured.
Among the witnesses who gave evidence at the arbitration on behalf of the buyers was the appellant. The respondents maintain that the appellant was a principal actor in the moves made in Taiwan to enable the buyers to escape from their responsibilities under the sale contract. The respondents took advantage of his presence at the hearing of the arbitration in London to effect personal service upon him of the writ in the present proceedings. The writ was endorsed with four heads of claim, as follows:
(1) Damages for wrongful inducement of breaches of contract by Southland Enterprise Company ("Southland") and/or Nan Jong Iron and Steel Company ("Nan Jong") in or about August, September, October and/or November 1980 of a Memorandum of Agreement (the "M.O.A.") dated 2nd July, 1980 for the sale of the vessel "MESSINIAKI TOLMI" by the plaintiffs.
(2) Damages for wrongful interference with the performance of the M.O.A. by Southland and/or Nan Jong in or about August, September, October and/or November, 1980.
(3) Damages for wrongful conspiracy with Southland and/or Nan Jong and/or others to seek to carry out a scheme whereby Southland and/or Nan Jong would break and/or repudiate the terms of the M.O.A. and the plaintiffs would be left with no prospect of receiving any purchase monies for the said vessel under the M.O.A.
(4) Damages for wrongful inducing and/or aiding and abetting Southland and/or Nan Jong to act in contempt of the High Court and in particular in respect of orders made by the High Court on October 27th and 28th, 1980 in relation to the M.O.A.
The writ was served on the 2nd October, 1981. On the 14th October the appellant entered an acknowledgment of service, indicating his intention of defending the proceedings. On the 28th October, 1981, within the 14-day period then specified in order 12, rule 8(1) of the Rules of the Supreme Court, he applied for an extension of time for the issue of an application under that rule; on the 26th November, on an ex parte application, Mr. Justice Webster granted an extension of 28 days after the time prescribed in order 12, rule 8. On the 25th November, the appellant had issued a summons asking for a stay of the proceedings in the action; this summons was served on the respondents on the 26th November. The basis of the application was that there was another clearly more appropriate forum for the hearing of the action, viz. Taiwan, and that on the principle stated by the House of Lords in MacShannon v. Rockware Glass Ltd. (1978) Appeal Cases 795 the court should exercise its inherent power to stay the proceedings. On the 1st July, 1982 a further summons was issued by the appellant, asking the court to strike out paragraph 4 of the claim indorsed on the writ on the ground that it disclosed no cause of action.
Both applications were heard by Mr. Justice Mustill. He gave judgment on the 10th January, 1983 dismissing both applications. The appellant's appeal to this court was against Mr. Justice Mustill's decision to refuse to order a stay of proceedings. As we have already recorded, that appeal is dismissed.
We now turn to the cross-appeal of the respondents. For the purposes of explaining the nature of the cross-appeal, it is necessary for us to refer to certain provisions of order 12 of the Rules of the Supreme Court.
Under the new procedure embodied in order 12, an acknowledgment of service by a defendant does not operate as a waiver of any irregularity in the issue or service of the writ. This is the effect of order 12, rule 7, which provides as follows:
"The acknowledgment by a defendant of service of a writ or notice of a writ shall not be treated as a waiver by him of any irregularity in the writ or notice of service thereof or in any order giving leave to serve the writ or notice out of the jurisdiction or extending the validity of the writ for the purpose of service."
Furthermore, under order 12, rule...
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