The High Court has dismissed an Italian company’s application to set aside service of proceedings brought by General Monitors Ireland Limited, finding that the Irish courts have jurisdiction over the company’s claim for payment for goods.
In a judgment delivered on 28 June 2005, Ms Justice Finlay Geoghegan ruled that the goods were delivered in Ireland under the relevant contracts. The decision concerned jurisdiction only; the court did not determine whether the defendant owes the sums claimed.
General Monitors Ireland, which manufactures gas and flame detection instruments in Galway, began the proceedings by summary summons on 1 April 2004. It claims €345,224.38 and $1,115,948.22 for goods allegedly sold and delivered to SES-ASA Protection S.p.A. The defendant, an Italian company, entered an appearance to contest jurisdiction and sought an order setting aside service under the Rules of the Superior Courts.
The plaintiff relied on Article 5(1) of EU Regulation 44/2001, which permits a defendant domiciled in one member state to be sued in another in certain contract disputes. For sales of goods, the regulation identifies the place where the goods were delivered, or should have been delivered, as the relevant place of performance. The plaintiff had to satisfy the court that the exception to the general rule applied.
The companies had a 1999 Value Added Reseller agreement setting out commercial terms, including a 20 per cent discount. The defendant argued that this was the relevant contract and was an agreement for services, rather than a contract for the sale of goods.
The judge concluded that the claim involved 22 separate obligations to pay for goods identified in invoices. Those obligations arose under individual contracts formed when the plaintiff agreed to sell goods specified in the defendant’s orders. The reseller agreement set the price terms but did not itself require the defendant to buy specified goods or pay the amounts claimed. The judge found that the individual sales contracts fell within the regulation’s provision for sales of goods.
Evidence for the plaintiff was that the defendant’s forwarding agent collected the goods from the plaintiff’s factory in Galway. The defendant did not dispute that account in its affidavits. Although invoices and order acknowledgments identified Milan as the ultimate destination, the judge found that delivery under the contracts took place in Ireland, when the goods were handed to the forwarding agent.
The court therefore held that the place of performance was Ireland and dismissed the defendant’s application to set aside service. The underlying payment claim remained unresolved by this judgment.