A specially indorsed writ in this action was issued on 26 October 1966 to 'Winsen Steamship Co SA a limited liability company incorporated in Panama and carrying on business at Room 11, New Henry House, 10, Ice House Street, Hongkong [sic]' claiming for breach of contract arising from a short delivery of 121 bags of coffee beans which ought to have been delivered to the plaintiff from the SS Winley which arrived in Singapore on 30 December 1965 from Hong Kong. Before issuing this writ, however, it became necessary for the plaintiff, through his solicitors, to ascertain the name and address of the owners of this vessel at the material time so that the writ could be addressed to the correct defendant. In answer to an inquiry, Drew & Napier, as solicitors for the agents of the owners, on 19 August 1966 informed the plaintiff's solicitors that the owners were the company above. This writ was issued to the company accordingly.

A search at the Registry of Companies in Hong Kong showed that no record could be traced there of the company which, as a company incorporated abroad, was required by their Companies Ordinance, if it had a place of business there, to file certain particulars with the registry, including the names and addresses of one or more persons, resident in Hong Kong, authorised to accept service on that company's behalf. However, a search at the Business Registration Office in Hong Kong disclosed that, on 14 April 1965 a business known as Winsen Steamship Co SA with the same address as that shown on the writ addressed to the company was registered as a partnership in the names of William Wong and Lim Tow Say. On 27 February 1967 the plaintiff obtained leave to amend the writ by addressing it to Winsen Steamship Co SA (sued as a firm) at the same address, no doubt in the belief that Drew & Napier had made a mistake as to the identity of the owners of the vessel concerned. On objection being taken to the new form of the writ and to the fact that the new defendants, being a foreign firm not carrying on business within the jurisdiction, could not be sued as a firm, the plaintiff successfully applied on 22 May 1967 for leave to amend the writ again by showing (a) William Wong and (b) Lim Tow Say trading as Winsen Steamship Co SA as the defendants.

On 20 March 1967 a conditional appearance was entered by William Wong. On 9 October 1967 the defence was filed on behalf of the two partners trading as a firm. On 24 October 1967 in SC No 2375/67 the first defendant, William Wong, applied to have the writ and all subsequent proceedings struck out on the ground that the two partners were never the owners of the SS Winley. On 7 November 1967 in SC No 2487/67 the plaintiff applied for the writ and all subsequent proceedings to be further re-amended to the form in which it originally was on 26 October 1966, ie showing the limited company as the defendant. The plaintiff also applied for service of the writ and the statement of claim as so amended to be dispensed with and for the appearance entered by William Wong on 20 March 1967 to stand as a good and valid appearance.

Both these summonses in chambers came before Buttrose J on 6 December 1967 who dismissed the first defendant’s application in SC No 2375/67, with costs, and granted the plaintiff’s application in SC No 2487/67, restoring, in effect, the status quo as it stood on the original writ, dispensing with service on the company and ordering that the appearance entered by William Wong on 20 March 1967 should stand as a good and valid appearance for the limited company.

The first defendant, William Wong, now appeals against both those decisions.

Held: Appeal allowed.

The question for determination is whether the amendment granted whereby the company became the new defendant, constituted the mere correction of a misnomer or whether it involved the addition or substitution of a new defendant. In Colgate-Palmolive (Asia) Ltd v Swedish East Asia Co Ltd [1965-1967] SLR(R) 394, this Court applied the test laid down by Devlin LJ in Davies v Elsby Brothers Ltd [1960] 3 All ER 672 (EWCA) in deciding whether a misnomer has taken place or not in the name of the writ. The test to be applied is: How would a reasonable person receiving the writ take it? If, in all the circumstances of the case and looking at the writ and statement of claim indorsed thereon as a whole, they would say to themselves: 'Of course it must mean me, but they have got my name [wrong]', then there is a case of mere misnomer which can be corrected. In the present appeal, Winsen Steamship Co SA (sued as a firm) were served in Hong Kong and the question arises whether when service was effected on the firm as defendants at the same address as the company, the recipient of the writ must have said to themselves: 'Of course it means the limited company'.

It should be remembered that two separate and distinct legal entitles were carrying on business at Room No 11, New Henry House, 10, Ice House Street, Hong Kong. One was the firm and the other the limited company, both bearing the same name. William Wong was the managing partner of the firm as well as president of the limited company. The owners of the SS Winley were the limited company. The solicitors for the Singapore agents of the owners, Drew & Napier, had indicated to the plaintiff in clear and unequivocal terms that the owners were the limited company. They must have been acting on information and instructions which no doubt reached the Singapore agents from Room No 11 and it is almost certain that it was either William Wong or someone on his behalf who supplied this information unless the Singapore agents already knew who the owners were. The question therefore is whether William Wong or someone in Room No 11 when served with the writ addressed to the firm would, as a reasonable person, have had no doubt in their mind that it was the limited company whom the plaintiff intended to sue and that it had simply got the name wrong. (See Donovan LJ in Whittam v WJ Daniel & Co Ltd [1962] 1 QB 271).

A reasonable person would have had some doubt as to the identity of the party whom the plaintiff intended to sue. That person would not have been convinced that the limited company was intended. The firm and the limited company were both in existence and the writ was addressed to the firm. A reasonable person receiving the writ would justifiably have said to themselves, 'Despite the fact that the SS Winley is owned by the limited company and despite the fact that this information has been given to the plaintiff, for some reason unknown to me, he insists on suing the firm. Therefore the firm is clearly the intended defendant.'

The further re-amendment allowed by M Buttrose J in SC No 2487/67 involved the substitution of a new defendant. It is to be borne in mind that, by 6 December 1967 the claim had become time-barred by art 3.6 of the Hague Rules which provides a one-year limitation period, and that any such substitution would have deprived the new defendant of the benefit of the time limit imposed. Counsel for the plaintiff/respondent, however, did not admit the limitation period of one year under the Hague Rules. From the notes of argument recorded by M Buttrose J the limitation point was certainly taken by counsel for the defendant/appellant before him and the Colgate-Palmolive case, which is remarkably like the present one, was cited in support of the defendant’s contention. It does not appear that counsel for the plaintiff disputed the one-year limitation period though he does so now.

It follows that the order in SC No 2487/67 that the conditional appearance entered by the first defendant personally on 20 March 1967 should stand as an appearance for the limited company, automatically falls to the ground. In any case, even if this was a case of misnomer and not the substitution of a new defendant, a conditional appearance entered by the first defendant cannot be allowed to stand as an appearance for the limited company when the limited company has never been served at all. It was wrong to dispense with such service.

The plaintiff has only himself to blame. One blunder after another has been committed in the course of these proceedings which could easily have been avoided if pains had been taken to check Lloyd’s register as to ownership of the SS Winley or to communicate with the solicitors for the defendants as to the accuracy of the information supplied by them as to such ownership.