CHANCERY DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
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NIGEL PETER ALBON (trading as N A CARRIAGE CO) |
Claimant |
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NAZA MOTOR TRADING SDN BHD (A company incorporated with limited liability in Malaysia) TAN SRI DATO NASIMUDDIN AMIN (Male) |
Defendants |
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Mr Stephen Nathan QC & Dr Colin Ong (instructed by Finers Stephens Innocent, 179 Great Portland Street, London W1W 5LS) for the Respondents
Hearing dates: 16th – 22nd November & 24th November 2006
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Crown Copyright ©
Mr Justice Lightman:
INTRODUCTION
i) the first is against Naza Motors in respect of alleged overpayments totalling over £5½ million made in the course of performance or intended performance of an oral agreement made between Mr Albon and Naza Motors referred to as the "UK Agreement". The UK Agreement provided that Naza Motors should export cars from Malaysia to the United Kingdom, that Mr Albon should sell those cars here as agent for Naza Motors and that the profit on such sales should be shared between them. Mr Albon contends that the UK Agreement also provided for the sale and export from England to Malaysia of cars by Mr Albon to Naza Motors ("reverse trades"). The repayment of the overpayments is claimed on the grounds that the payments were made without consideration and under the mistake of fact that the monies paid were due and owing. The existence of the UK Agreement is common ground but there are disputes as to when and where it was made, and as to many of its terms (and in particular whether it included provision for reverse trades) and as to whether there has been any overpayment;ii) the second is against Mr Nasim. It is to recover the same sum as is claimed against Naza Motors in respect of the alleged overpayments. The claim is made against Mr Nasim on the basis that the monies were paid at the direction of Naza Motors to Mr Nasim, that the payments were made without consideration and under the mistake of fact that the monies paid were due and owing and (quite remarkably and unexplained) that notwithstanding the fact that Mr Albon (who had access to all relevant information) had no such knowledge, Mr Nasim (who did not have such access) did know that the monies were not due and owing. An attempt to justify the grant of permission in respect of this claim was sensibly abandoned by Mr Albon as unmaintainable in the course of the hearing;
iii) the third is against Naza Motors for just over £1 million and arises under what is referred to as "the South African Agreement". This was an oral agreement under which Naza Motors agreed to pay to Mr Albon commission on cars sourced by him from South Africa and supplied to Naza Motors in Malaysia. The primary issue between the parties in respect of this claim is whether the South African Agreement provided for payment as commission of £250 per car, in which case the full commission has been paid, or £1000 per car, in which case the balance of £750 is prima facie payable, subject only to limitation defences;
iv) the fourth (which is referred to as "the Expenses Agreement") is against Mr Nasim for just less than £200,000 and arises from Mr Albon's alleged payment of personal expenses of Mr Nasim in London. The existence of the agreement is in issue as are whether the payments alleged were made pursuant to it, whether any liability under it has already been discharged and as to the existence of limitation defences.
HISTORY
THE APPLICATIONS
i) the Defendants' applications of the 13th March 2006 to set aside:a) the order of 26th August 2005 permitting service outside the jurisdiction; andb) the order of the 13th January 2006 permitting alternative service on the Defendants;ii) Naza Motors' application to stay these proceedings under section 9 of the Arbitration Act 1996;
iii) Mr Albon's application dated the 16th May 2006 to continue the anti-suit injunction against arbitration proceedings in Malaysia (with consequential amendment of the Particulars of Claim);
iv) Mr Albon's application dated the 23rd March 2006 for inspection of the original of the JVA and for the agreement to be examined and tested by an expert.
RELEVANT PRINCIPLES
THE GATEWAYS
"(5) a claim is made in respect of a contract where the contract-
(a) was made within the jurisdiction;…(c) is governed by English law;
(6) a claim is made in respect of a breach of contract committed within the jurisdiction
(15) a claim is made for restitution where the defendant's alleged liability arises out of acts committed within the jurisdiction."
UK AGREEMENT
"5. I am informed by the Claimant and his wife and verily believe that the terms of the UK agreement were incorporated in a handwritten document dated 1st December 1997. This provides for profits to be split 35 per cent to the Claimant and 65 per cent to the First Defendant. A copy of the agreement ["the Memorandum"] is now produced and shown to be marked 'AD.1'. Subsequently, I am aware that the Second Defendant has asserted that the profit sharing agreement was 30 per cent to the Claimant and 70 per cent to the First Defendant….
11. The imports under the UK agreement ended in 1999…. Whilst the UK agreement was being performed the Claimant sent very substantial sums on account of monies due under the UK agreement. Only a small proportion of these monies were sent to the First Defendant. The rest of the monies were sent to accounts controlled by the Second defendant.
13 . …A lot of the payments to the Defendants and others at their direction is at pages 51-54 [exhibit] AD4.
14. The claim against the First Defendant under the UK agreement is one which I believe has reasonable prospects of success. The First Defendant's address is 115 Menara Naza, Jln Raja Muda Abdul Aziz, kg. Baru 50300 Kuala Lumpar, Malaysia. The Court, I submit, should grant permission to serve outside the jurisdiction on the grounds in CPR Rule 6.20(5)(c) and Rule 6.20(6). The UK agreement is most closely connected with England and should be presumed to be governed by English law. The obligation to pay is one owed to the Claimant in England.
15. Limitation is only an issue in relation to claims over six years old. In relation to those however there are what I submit are acknowledgements of the Claimant's claims sufficient to extend the limitation period."
(This last statement is made in relation to his claims generally and not exclusively in relation to his claims "in respect of the UK Agreement").
"1-12-97
Accept & acknowledge that after the deduction of reasonable selling & processing expenses of imported motor vehicles, both parties to pay their taxes, VAT, & other governmental duties separately.
We also accept & acknowledge, at a prior notice, Naza Motor [will]can send their auditors from Malaysia to inspect our books for the benefit of Naza - - - - -
Both parties accept & acknowledge that on any imported cars, NA Carr would retain 35% of the net profit ([and]after deduction of above) and 65% [illegible] Naza Motors who is the exporter & financier of each consignment."
(a) Gateway
"5. A person domiciled in a part of the United Kingdom may, in another part of the United Kingdom, be sued: (1) in matters relating to a contract, in the courts for the place of performance of the obligation in question; …"
In the context of the formula of words there used, and in particular the reference to the place of performance of the obligation in question, there is postulated the existence of a contract giving rise to an obligation of performance in the country whose courts are to have jurisdiction.
"The words 'in respect of' are difficult of definition, but they have the widest possible meaning of any expression intended to convey some connection or relation between the two subject-matters to which the words refer."
(b) Proper Law
(c) Merits
(d) Forum
(e) Discretion
(f) Non-Disclosure
(b) SOUTH AFRICAN AGREEMENT
i) Though Mr Albon states in paragraph 16 of his first witness statement dated the 16th May 2006 that invoices were raised at the end of each year, the only invoices prepared in respect of the years 1996 to 2003 are all dated the 5th March 2003 for the full sum of £1000 making no reference to the payment of £250;
ii) Mr Albon never pressed for payment or made any complaint about non-payment of the balance of £750 per car claimed prior to his letter before action dated the 15th June 2005 (which the Defendants deny receiving). These facts went to whether the claimed debt existed. Mr Albon did not refer to this omission or his later proffered improbable explanation for it, namely a desire not to financially embarrass the Defendants;
iii) No reference is made to the availability of a limitation defence in respect of the cars sourced before the 10th August 1999.
(c) EXPENSES AGREEMENT