Gan v Export-Import Bank of Malaysia Berhad [2017] NSWSC 176

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: D Ratnam (Defendant/Applicant)

Solicitors: HWL Ebsworth Lawyers (Defendant/Applicant) File Number(s): SC 2016/325582

Judgment 1. The plaintiffs, Mr Sing Kian Gan and Ms Zaridah Sujak, commenced these proceedings by summons filed on 1 November 2016. 2. 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. 3. The plaintiffs purported to serve the summons on the Bank by email, and then by post. They did not seek leave to do so. 4. 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: 1. service of the summons on it was not authorised by the Rules; 2. the Court is an inappropriate forum for the trial of the proceedings; and 3. the claim has insufficient prospects of success to warrant putting the Bank to the time, expense and trouble of defending the claim. 1. 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. 2. 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.