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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Rakusens Ltd (A Company) v Baser Ambalaj Plastik Sanayi Ticaret AS [2001] EWCA Civ 1820 (15 October 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1820.html Cite as: [2001] EWCA Civ 1820, [2002] 1 BCLC 104 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
LEEDS DISTRICT REGISTRY
(His Honour Judge McGonigal)
Monday, 15th October 2001 |
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B e f o r e :
LADY JUSTICE ARDEN
MR. JUSTICE BODEY
____________________
RAKUSENS LIMITED (A COMPANY) | ||
Respondent | ||
- v - | ||
BASER AMBALAJ PLASTIK | ||
SANAYI TICARET AS | ||
Appellant |
____________________
of Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2AG
Telephone No: 0171-421 4040
Fax No: 0171-831 8838
Official Shorthand Writers to the Court)
MR. M. ROLLASON (instructed by Messrs Pinsent Curtis Biddle, Leeds) appeared on behalf of the Respondents.
____________________
Crown Copyright ©
"However -
(a) where such a company makes default in delivering to the registrar the name and address of a person resident in Great Britain who is authorised to accept on behalf of the company service of process or notices,
(b) ...
a document may be served on the company by leaving it at, or sending it by post to, any place of business established by the company in Great Britain."
"Those orders were accepted by Baser but there is no evidence as to how they were accepted. It is clear that they were accepted because skillets were subsequently delivered by Baser to the claimants pursuant to those orders."
"At the time being, because we have just met you, we cannot give you any representship, but at least we can say that we will not get in touch with your customers directly, until we see how we are settling our relations with your company."
"In my view a place of business is a place at which the business of the company is transacted, whether by agents or by employees and an address can be a place of business of an overseas company even if none of the people at the address have the authority to enter into contracts on behalf of the company. The business of a company is much wider than entering into contractual relations. This was exemplified by the South India case. Part of the business of Baser was the negotiation of orders through the agency of Mr Phillipson, the receipt of those orders at his premises in Harrogate and the transmission of those orders to Baser in Turkey. There is sufficient evidence for the conclusion that that part of Baser's business was being conducted at 10 Rutland Road, Harrogate during 1999 and there is no suggestion that there had been any change in the position by January 2000."
"Although the defendants conduct their main business from Korea, they rent office accommodation in Plantation House in Fenchurch Street, London EC."
"The defendant bank is an import-export bank, not a high street bank. It has both premises and staff within the jurisdiction. It conducts external relations with other banks and financial institutions. It carries out preliminary work in relation to granting or obtaining loans. It seeks to give publicity to the foreign bank and encourage trade between Korea and the United Kingdom... It has therefore established a place of business within Great Britain and it matters not that it does not conclude within the jurisdiction any banking transactions or have banking dealings with the general public as opposed to other banks or financial institutions."
"Our client is prepared to give security to the value of £7,500.00. It intends to do so by way of a Bank Guarantee. . . "
"We have taken our client's instructions upon your recent letter and our client is willing to accept your client's offer of security, to the value of £7,500, by way of bank guarantee.
We would be grateful if you could provide us with details of your client's banking details and, in particular, a draft of the guarantee documentation which your client intends to provide."
"As our client has advised you that it is happy to accept your client's offer of security, to the value of £7,500 by way of bank guarantee we would request that relevant guarantee documentation is provided by return. If not, our client must reserve its rights in regard to an application for this security.
Due to the closeness of the appeal we require that the security and guarantee documentation is in agreed and signed form by close of business on Friday."
"The question is one of fact as to whether 10 Rutland Road was a place of business of Baser at the time of service."
"The question for the District Judge, and the one on which this appeal turns, is whether in January 2000 10 Rutland Road, Harrogate was a place of business for the purpose of section 695."
"That expression is not peculiar to section 106 [the predecessor of section 409 of the Companies Act 1985]. It occurs also in Part X of the Act, which applies to companies which 'establish a place of business in Great Britain.' Section 407 [the predecessor of section 691 of the Companies Act 1985] assumes that there is going to be some readily identifiable point of time at which it can be said that a company has established a place of business because it imposes [obligations on the company] doing so. Similarly, section 412 [the predecessor of section 695 of the Companies Act 1985], in cases where an overseas company has not furnished the registrar with the name and address of a living resident authorised to accept service, enables documents to be served by leaving them at, or sending them to, 'any place of business established by the company in Great Britain.' Here again there seems to be implied some degree of continuity and recognisability in the establishment of a 'place of business.'" (page 187).
"On behalf of the department we had cited to us a set of cases which arose under the Income Tax Acts, where the phrase which had to be considered was 'carrying on business'. Well, the simple answer to the income tax cases seems to me to be that 'carrying on business' is one thing and 'establishing a place of business' another. If what the legislature meant was that these requirements were to be imposed upon all foreign companies who carried on business within the United Kingdom, it would have been perfectly easy to say so. Therefore I am driven to the conclusion that when the legislature selected the phrase 'establishes a place of business' it meant something other than 'carrying on business'. And if I were at liberty - I do not know that I am - to search for reasons, I think the reason would be very apparent. The expression 'carrying on business' is so wide that it would really touch all persons having business in the United Kingdom, a result from which the legislature may well have shrunk. On the other hand, we had another set of cases quoted to us, where undoubtedly the expression was nearer the present expression, because there the expression used was 'having a place of business'. But these were cases which dealt with jurisdiction, and, in so far as our own courts are concerned, dealt with the jurisdiction of the Sheriff Court. As I have already said, I think it was quite right that those cases should have been quoted, but I think it would be a little unsafe to rely upon them for this reason: no doubt the wisdom of Parliament is supposed to have before it all the statute law and all the decided cases that are extant, but, even supported by that comfortable doctrine, I think it would be a little rash to take it that those who framed the Companies (Consolidation) Act of 1908 had in mind the phraseology of the Sheriff Courts (Scotland) Act of 1876.
I therefore, in my judgment, merely look at the expression as it is used. That expression seems to me clearly to point to this, that the company must have what I may call a local habitation of its own. I do not wish to say more, because I do not think that exact definition is at all a profitable pursuit;in fact, it always leads one into this trouble that one deserts the words which Parliament has used and substitutes others. But taking the requirement of a local habitation of its own as a sort of note, when I come to look at the facts here I do not find anything of that sort."
"... a place of business is a place at which the business of the company is transacted, whether by agents or by employees and an address can be a place of business of an overseas company even if none of the people at the address have the authority to enter into contracts on behalf of the company. The business of a company is much wider than entering into contractual relations. This was exemplified by the South India case."
"Part of the business of Baser was the negotiation of orders through the agency of Mr Phillipson, the receipt of those orders at his premises in Harrogate and the transmission of those orders to Baser in Turkey."
"A corporation resides in a country if it carries on business there at a fixed place of business, and, in the case of an agency, the principal test to be applied in determining whether the corporation is carrying on business at the agency is to ascertain whether the agent has authority to enter into contracts on behalf of the corporation without submitting them to the corporation for approval..."
"These companies do, I think, carry on business in the United Kingdom, that is to say, they tout for loans and, in order to have their touting properly carried out, they have agents. Well, these agents put forth prospectuses in which they say that the companies are willing to receive money upon debenture. They indicate a bank to which that money can be paid, and they give the terms upon which the money will be received. But everything in the way of making the contract itself - by issuing the debenture, inscribing the debenture in the proper register, and so on - is all done by the foreign company at its own domicile in Canada. And, by terms of this special case, which, of course, is an agreed-on statement of facts between the parties - I find the second party (and it is equally true of the other parties) does not own any office in the United Kingdom, nor does it possess any office under lease or otherwise, or pay any rent or other allowance for the use of any office. The second party has no salaried representative in this country. The case goes on to explain that their agents are paid by commission on debentures which they place. Now, in that state of facts, I look in vain to discover where is its 'established place of business'. In point of fact, I think the learned Solicitor-General was in difficulties in attempting to say where its place of business was. Was it the office of the agent who sent out the touting circular? Or was it the office of the person who had the power of attorney?Or was it the offices of the Bank of Scotland where alone the money was going to be received?Well, it is perfectly clear that each of these, whatever it was, was not the office or place of business of the company."