1. ) LYFEMED MEDICARE (M) SDN BHD 2. ) FERDI GROUP SDN BHD 3. ) Rahiya Binti Kunji Moidin Kutty v ITS TESTING SERVICES (M) SDN BHD

Case Significance

Illustrates the approach to a foreign-jurisdiction-clause challenge under Order 12 rule 10 of the Rules of Court 2012: the party asserting the clause must show it was properly incorporated, a bare reference to a website may not suffice, and the court will retain jurisdiction where performance and the parties and witnesses point to Malaysia.

This High Court decision at Kuala Lumpur concerns a defendant's attempt to halt a civil suit on the strength of an alleged foreign jurisdiction clause. The plaintiffs — two companies and a sole proprietor trading under a related business name — had sued the defendant company, and the defendant applied under Order 12 rule 10 of the Rules of Court 2012 to set aside the writ, contending that the parties' contract contained a clause requiring their disputes to be governed by English law and heard by the English courts. The court had to address several questions. The first was whether the point was already foreclosed by res judicata, the jurisdiction clause having been raised in an earlier striking-out application that had been dismissed. The second was whether the alleged jurisdiction clause had in fact been incorporated into the contract at all — the clause being said to arise from a reference to a service provider's website or portal, which raised the question whether such a reference is an acceptable means of incorporating terms. The court emphasised that each case turns on its own facts, and it examined the connecting factors to England: it found there was no nexus with England, that the services in question had been performed in Malaysia, and that the parties and their witnesses were all in Malaysia. On that footing the court dismissed the defendant's application, making no order as to costs because the plaintiffs had in the meantime been allowed to amend their statement of claim. The judgment is a useful illustration of the approach to a foreign-jurisdiction-clause challenge under Order 12 rule 10: the party asserting the clause must show it was properly incorporated, a bare reference to a website or portal may not suffice, and the court will decline to cede jurisdiction where the real connecting factors — the place of performance and the location of the parties and witnesses — point firmly to Malaysia.