civil suit no. 22 ncvc-570-12/2014 between chengdu malaysia educati
Transcription
civil suit no. 22 ncvc-570-12/2014 between chengdu malaysia educati
IN THE HIGH COURT IN MALAYA AT KUALA LUMPUR (CIVIL DIVISION) CIVIL SUIT NO. 22 NCVC-570-12/2014 BETWEEN CHENGDU MALAYSIA EDUCATION … PLAINTIFF CONSULTING SERVICE PTE LTD AND … DEFENDANT TWINTECH HOLDINGS SDN BHD GROUNDS OF JUDGMENT BACKGROUND FACTS 1. The Plaintiff is a company incorporated in the People’s Republic of China (“China”). It has a registered address in Chengdu, Sichuan Province, China. 2. The Defendant is a company incorporated in Malaysia. It has its registered address and business address at Bandar Sri Damansara, Kuala Lumpur. The Defendant owns the International University College of Technology Twintech (“IUCTT”). It manages and operates the IUCTT in Kuala Lumpur which provides private education. 3. The Plaintiff and the IUCTT entered into an agreement dated 1.9.2006 (“2006 Agreement”) where the Plaintiff recruits students from China for them to further their studies at the IUCTT, an institution operated by the Defendant. 1 As consideration, the Plaintiff takes a percentage of the fees collected from these students. 4. The parties further entered into another agreement dated 1.9.2008 (“2008 Agreement”) to affirm the relationship between them for another 15 years (collectively “Agreements”). 5. Pursuant to the Agreements, the parties agreed to cooperate and set up a financially independent office (“China Divisional Office”) for recruitment purposes. It was also agreed that the China Divisional Office would collect the fees from these students and apportion the fees paid by them. 6. The students who are recruited to study in IUCTT pay both the International Student Fee and Tuition Fees to the China Divisional Office. The International Student Fee collected by the China Divisional Office is to be divided pursuant to Clause 8 of the 2008 Agreement read together with Appendix 1. As for tuition fees paid by the students, Clause 9 of the 2008 Agreement provides for the division. 7. The Plaintiff contended that it had performed its part of the Agreements, where it has recruited a total of 526 students from year 2007 to 2009. Accordingly, the China Divisional Office had collected the first year tuition fees from the students and paid the Defendant a total sum of RM1,277,435.00. 8. The Plaintiff further contended that it has paid an additional sum of RM1,441,773.00 to the Defendant. This sum ought to be refunded by the Defendant to the Plaintiff. The Defendant acknowledged 2 the said overpayment through a letter dated 24.8.2009 and assured the Plaintiff that the fees collected by the China Divisional Office in the following year will be used to contra the additional sum collected. 9. However, to-date, the Defendant has not refunded the said sum or any part thereof. 10. In addition, in breach of the Agreements, the Defendant directly collected fees from the 526 students without giving the Plaintiff its portion of the student recruitment fees, which amounts to a total of RM4,916,500.00. 11. The Plaintiff alleged that the Defendant had also represented to the Plaintiff that the Bachelor Degree Programme in Music (“Degree”) offered by IUCTT is recognised by the Chinese Government but to-date, the Chinese Government has yet to recognise the Degree due to the fact that the relevant accreditation and approval from the Malaysian authorities are yet to be obtained. As a result, the Plaintiff has suffered and continues to suffer losses including the loss of income, opportunity and reputation. 12. The Plaintiff commenced this Writ action for the above overpayment, unpaid student recruitment fees and losses. ENCLOSURE 8 13. This is the Defendant’s Notice of Application (“Application”) made under O.12 r.10(1)(a), (g) and/or (f) of the Rules of Court 2012 (“ROC”) for the following Orders: 3 “1. Writ dan Penyataan Tuntutan, kedua-duanya bertarikh 22.12.2014 diketepikan dan/atau dibatalkan; 2. Suatu deklarasi bahawa dalam hal keadaan kes ini Mahkamah Yang Mulia ini tidak mempunyai bidang kuasa ke atas Defendan berkenaan dengan hal perkara tuntutan atau relief atau remedi yang dipohon dalam tindakan ini; 3. Sekiranya Perintah-Perintah di perenggan-perenggan 1 dan 2 tidak dibenarkan, maka Defendan dibenarkan memfailkan dan menyerahkan Pembelaannya dalam tempoh masa 14 hari daripada tarikh Perintah ini dibuat; 4. Kos; dan 5. Relif lanjut atau yang lain yang mana Mahkamah Yang Mulia ini sifatkan sesuai dan patut.”. COURT’S DECISION GIVEN ON 3.3.2015 REGARDING ENCLOSURE 8 14. (a) The Defendant’s Application is dismissed. Costs of RM2,500.00 are to be paid by the Defendant to the Plaintiff. (b) The Defendant is ordered to file its Defence within 2 weeks from the date of this Order. 4 GROUNDS FOR DECISION 15. O.12 R.10(1)(a), (g) and (f), and O.12 r.10(2), (3) and (4) of the ROC provide as follows: “Dispute as to jurisdiction (O.12, r.10) 10.(1) A defendant who intends to dispute the jurisdiction of the Court in the proceedings by reason of any irregularity as is mentioned in rule 9 or on any other ground shall enter an appearance and, within the time limited for serving a defence, apply to the Court for – (a) an order setting aside the writ or service of the writ on him; (b) ………. ; (c) ………. ; (d) ………. ; (e) ………. ; (f) the discharge of any order made to prevent any dealing with any property of the defendant; (g) a declaration that in the circumstances of the case the Court has no jurisdiction over the defendant in respect of the subject matter of the claim or the relief or remedy sought in the action; or (h) ……… ; (2) A defendant who wishes to contend that the Court should not assume jurisdiction over the action on the ground that Malaysia is not the proper forum for the dispute shall enter an appearance and, within the time limited for serving a defence, apply to the Court for an order to stay the proceedings. (3) An application under paragraph (1) or (2) shall be made by notice of application supported by an affidavit 5 verifying the facts on which the application is based and a copy of the affidavit shall be served with the notice of application. (4) Upon the hearing of an application under paragraph (1) or (2), the Court may make such order as it thinks fit and may give such directions for its disposal, as may be appropriate, including directions for the trial thereof as a preliminary issue.” (emphasis added). 16. At the outset, it must be noted that this Application is made under O.12 r.10(1) of the ROC to set aside and/or strike out the Writ of Summons and Statement of Claim (“SOC”) on the ground that this Court does not have jurisdiction over the Defendant regarding the Plaintiff’s claim. This Application is not made under O.12 r.10(2) to contend that the Court should not assume jurisdiction over the action on the ground that Malaysia is not the proper forum for the dispute. 17. It is observed that the Agreements were executed in China, but that does not prevent this Court from having jurisdiction over this action. 18. The civil jurisdiction of this Court is provided in s.23(1) of the Courts of Judicature Act 1964 (“CJA”) as follows: “Civil jurisdiction – general 23. (1) Subject to the limitations contained in Article 128 of the Constitution the High Court shall have jurisdiction to try all civil proceedings where – (a) the cause of action arose; 6 (b) the defendant or one of several defendants resides or has his place of business; (c) the facts on which the proceedings are based exist or are alleged to have occurred; or (d) any land the ownership of which is disputed is situated, within the local jurisdiction of the Court and notwithstanding anything contained in this section in any case where all parties consent in writing within the local jurisdiction of the other High Court. (2) Without prejudice to the generality of subsection (1), the High Court shall have such jurisdiction as was vested in it immediately prior to Malaysia Day and such other jurisdiction as may be vested in it by any written law in force within its local jurisdiction.”. 19. From s.23(1) of the CJA, it is clear that in the situations covered by paragraphs (a) to (d) of the same subsection, this Court has jurisdiction to try all civil proceedings. 20. As submitted by learned Counsel for the Plaintiff, the Plaintiff’s action meets more than one of the conditions put forward in s.23(1) of the CJA. The Defendant is a company registered in Malaysia and has a place of business in Malaysia. The cause of action arose here i.e. the Defendant’s refusal to return the overpayment to the Plaintiff, to pay the student recruitment fees to the Plaintiff, and to obtain accreditation from the Malaysian authorities (see Malayan Banking Bhd V. International Tin Council and another appeal [1989] 3 MLJ 286). 7 21. Therefore, I am of the view that the High Court in Malaya has jurisdiction over this action. 22. The Defendant’s contention that the students reside in China is relevant to the matter of proper or appropriate forum, and not the issue of jurisdiction under O.12 r.10(1) of the ROC. 23. The Agreements are drafted in 2 languages i.e. Chinese and English. Clause 13 of the Agreements states as follows: “The agreement will illustrate on Chinese and English language. The actual reference will be based Chinese version.”. 24. Clause 13 therefore provides that the Chinese version of the Agreements would be the authoritative or official text, and not the English version. However, this does not prevent this Court from having jurisdiction over the action. Chinese language experts or interpreters can always be called to assist this Court on the contents of the Chinese version of the Agreements. 25. Clause 12 of the Agreements, inter alia, provides as follows: “…If there is any dispute, both parties should discuss in a friendly manner. If matters could not be solved, then; could apply to Chinese arbitrary.” (emphasis added). 26. Learned Counsel for the Defendant submitted that the prescribed procedure for the settlement of disputes is ultimately by way of arbitration in China after attempts have been made to settle the dispute in a “friendly manner”. 8 Therefore, China is the proper forum to hear and determine the Plaintiff’s dispute. No other country would have jurisdiction to hear and determine the Plaintiff’s dispute. 27. With respect, I am of the view that notwithstanding the use of the words “should” and “could” in Clause 12 of the Agreements, it does not make it mandatory for both parties to settle their dispute by arbitration in China. Clause 12 provides for the procedure to solve any dispute in a friendly manner and parties “could” even apply for arbitration in China. However, Clause 12 does not preclude any party to a dispute from filing an action in Court. 28. In this case, the Plaintiff chose to file the action in the Malaysian Court, instead of going for arbitration in China. 29. Learned Counsel for the Defendant relied on the Supreme Court case of American Express Bank Ltd. V. Mohamad Toufic AlOzier & Anor [1995] 1 CLJ 273 and the Federal Court case of Petrodar Operating Co Ltd V. Nam Fatt Corporation Bhd & Anor [2014] 1 CLJ 18. However, these 2 cases decided by our apex Court are authorities on the principle of determining the appropriate forum to adjudicate a dispute, and not on the matter of the jurisdiction of the Malaysian High Court which powers are expressly provided for in s.23(1) of the CJA. 30. Therefore, I do not think that Clauses 12 and 13 of the Agreements are foreign jurisdiction clauses which make it imperative for this dispute to be resolved only by arbitration in China to the exclusion of this Court’s jurisdiction over the matter. 9 31. The Defendant contended that the Defendant is not named in the Agreements. At this juncture, for the purpose of this Application, suffice for this Court to find that the Defendant is the legal entity which owns, manages and operates IUCTT, and that the IUCTT is not an incorporated entity capable of being sued. The Plaintiff therefore sued the Defendant. 32. In any event, even if it is later found that the Plaintiff is suing a wrong party, it does not oust this Court’s jurisdiction to hear this matter. If it is true that the Plaintiff has sued the wrong party, it is open to the Defendant to file an application under Order 18 rule 19 of the ROC, and not an application under Order 12 rule 10(1) of the same Rules, to strike out the Plaintiff’s action. 33. Based on this Application and the reliefs sought, it is not proper for the Defendant to embark on arguments regarding forum non conveniens. As I have stated earlier, in order for the Court to decide on the proper forum for this action, the Defendant should make its application under O.12 r.10(2), and not under O.12 r.10(1) of the ROC. 34. In view of the above grounds, I therefore ordered accordingly. Dated 17 March 2015 -sgd( DATUK YEOH WEE SIAM ) Judge Civil Division High Court, Malaya, Kuala Lumpur 10 Counsel/Solicitors for the Plaintiff Mr. S Y Liew Messrs Shearn Delamore & Co. Counsels/Solicitors for the Defendant Mr. Wan Muhammad Amin bin Wan Yahya Ms Galoh Nursafinas Samsudin Messrs Amin Karlos 11