Antariksa Logistics Pte Ltd and others v Nurdian Cuaca and others

• Jurisdiction: Singapore
• Court: High Court (Singapore)
• Judge: George Wei J
• Judgment Date: 28 March 2017
• Neutral Citation: [2017] SGHC 60
• Citation: [2017] SGHC 60
• Hearing Date: 03 November 2016,04 November 2016
• Defendant Counsel: Gurbani Prem Kumar (Gurbani & Co LLC),Tan Boon Yong Thomas and Loh Chiu Kuan (Haridass Ho & Partners),the 6th, 7th and 8th Defendants absent.,Siraj Omar and See Chern Yang (Premier Law LLC),Davinder Singh SC, Pardeep Singh Khosa and Chen Chi (Drew & Napier LLC)
• Published date: 06 February 2018
• Plaintiff Counsel: N Sreenivasan SC, Lim Min (Straits Law Practice LLC) (instructed) and Manickam Kasturibai (East Asia Law Corporation)
• Date: 28 March 2017
• Docket Number: Suit No 950 of 2015 (Registrar’s Appeal Nos 196, 197, 272 and 273 of 2016)
• Subject Matter: Extended doctrine,Striking out,Res judicata,Civil Procedure

George Wei J: Introduction

Does a case management decision to litigate incrementally constitute an abuse of process under the extended doctrine of res judicata? This is the fundamental question that arises in these appeals.

The plaintiffs in the present suit had previously brought an action in conversion against only one defendant in 2009. They then commenced the present suit six years later, relying on substantially the same facts to bring three other causes of action against eight different defendants for conspiracy, deceit and unjust enrichment.

The 1st to 5th defendants brought applications to strike out the claims against them pursuant to O 18 r 19 of the Rules of Court (Cap 322, R 5, 2014 Rev Ed), alleging, inter alia, that the present suit constituted an abuse of process under the extended doctrine of res judicata, or that the plaintiffs’ pleadings did not contain sufficient particulars. The Assistant Registrar (“the AR”) held that he could not conclude with certainty that the present suit constituted an abuse of process. He also found that the particulars given by the plaintiffs were sufficient. He thus declined to strike out any of the plaintiffs’ claims. The 1st to 5th defendants appealed.

The appeals were heard before me over two days on 3 and 4 November 2016. At the end of the hearing, I reserved judgment. I now deliver my decision.

Background facts Dramatis personae

The 1st Plaintiff, Antariksa Logistics Pte Ltd, the 2nd Plaintiff, Pacific Global (S) Pte Ltd, and the 3rd Plaintiff, Fastindo (Singapore) Pte Ltd (collectively, “the Plaintiffs”) are companies incorporated in Singapore and are in the business of freight forwarding and other related logistics services. They act for customers that require their goods to be shipped to foreign countries, including Indonesia. Mr Tie Hari Mulya (“Hari”) is a director of the 2nd and 3rd Plaintiffs. Ms Linda Irawaty Lim (“Linda”), Hari’s wife, is the sole director and shareholder of the 1st Plaintiff.¹

The 1st Defendant, Mr Nurdian Cuaca, is an Indonesian national who is also in the business of freight forwarding and logistics in Indonesia. The 1st Defendant is the director and shareholder of the 2nd Defendant, D’League Pte Ltd.

The 2nd Defendant is a company incorporated in Singapore and is in the business of retail sale of watches, clocks and general wholesale trade.²

The 3rd to 5th Defendants are related to a company known as McTrans Cargo (S) Pte Ltd (“McTrans”), which is incorporated in Singapore and is in the business of air cargo services. A winding up order has been made against McTrans. It was the sole defendant in an earlier action commenced by the Plaintiffs, Suit No 856 of 2009 (“the 2009 Suit”). More details on the relevance of McTrans to the proceedings will be discussed later. The 3rd Defendant, Mr Tan Tzu Wei (also known as Fabian), was a former sales director of McTrans. The 4th and 5th Defendants, Mr Wee Kian Teck Brendan and Ms Chan Mui Aye Rosa, are both directors and shareholders of McTrans.³

The 6th and 7th Defendants, Mr Johnny Abbas and Mr Radius Arthadjaya, are Indonesian nationals in the business of freight forwarding and logistics. The Plaintiffs allege that the 6th and 7th Defendants worked for and/or under the instructions of the 1st Defendant at all material times.

The 8th Defendant, PT Prolink Logistics Indonesia, is an Indonesian company that is also in the business of freight forwarding logistics.

The 2009 Suit The Plaintiffs’ case on the events leading up to the 2009 Suit

According to the Plaintiffs, in or around January 2009, the Plaintiffs consolidated 30 container loads of goods for transportation from Singapore to Jakarta, Indonesia.⁴ These goods, which belonged to the Plaintiffs’ customers, consisted of general merchandise such as fabrics, perfumery products, mobile phones, apparel, healthcare products, liquor, toys, electronic goods and stationery (collectively “the Cargo”).⁵

Sometime in or around February 2009, the 1st Defendant entered into an oral agreement with Hari (acting on behalf of the Plaintiffs) to effect transhipment of the Cargo to Indonesia. Under the agreement, the 1st Defendant was, inter alia, supposed to obtain the necessary permits and to facilitate customs clearance in Indonesia.⁶

On or about 18 February 2009, the Plaintiffs shipped the Cargo from Singapore to Jakarta.

The Cargo was consigned to PT Texmaco Micro Indoutama and PT Hegar Mulya, two Indonesian companies nominated by the 1st Defendant, under three Bills of Lading, namely, B/L No. APLU 057309975, B/L No. APLU 057309976 and B/L No. SSLSGJK1CHB682.⁷

As things turned out, after arriving at the port in Jakarta, the Cargo could not be cleared for import into Indonesia.⁸ The 1st Defendant informed Hari that the Cargo was to be returned to Singapore and to the Plaintiffs upon the payment of certain charges and expenses. The Plaintiffs duly paid two sums of money to (inter alia) the 6th Defendant and the 7th Defendant: US$170,000 for costs incurred in the course of re-exportation; and Indonesian Rp 1.2 billion (about US$140,000) for store rent and related expenses. (Collectively, “the Transportation Expenses”).⁹

On 17 September 2009, one of the Plaintiffs’ representatives, Ms Kim Sutandi (“Sutandi”), was issued with two pro-forma Bills of Lading in respect of the shipment of the Cargo from Jakarta to Singapore. These Bills of Lading named the 1st Plaintiff as the consignee of the Cargo. The 8th Defendant in the present suit, PT Prolink Logistics, was named as the forwarding agents. Another company not involved in the present proceedings, PT Prolink Clare Indonesia (“PT Prolink Clare”), was named as the shippers.

However, the next morning, on 18 September 2009, when Sutandi wanted to collect the original Bills of Lading as formally signed and issued, she discovered that contrary instructions had been provided by the 1st, 6th, 7th and/or 8th Defendants and/or PT Prolink Clare, with the result that the Cargo was consigned to McTrans instead. This was allegedly done without the Plaintiffs’ consent or authorisation.¹⁰

Hari contacted the 1st Defendant in the late afternoon of 18 September 2009 and received assurance that although the Cargo had been consigned to McTrans, he would arrange for the Cargo to be returned to the Plaintiffs.¹¹

On or about 19 September 2009, the Cargo arrived in Singapore. McTrans received the Cargo and transported it back to its premises.¹²

On 25 September 2009, one of the representatives of the Plaintiffs, Mr Charles Lie (“Mr Lie”), witnessed the un-stuffing of the Cargo. McTrans purportedly broke the seals of the 30 containers without the Plaintiffs’ consent and authorisation.¹³

On 8 October 2009, Hari met the 1st Defendant in Jakarta, where the latter allegedly made an extortionate demand of Rp 45 billion in return for the release of the Cargo, which Hari refused outright.¹⁴

Subsequently, the 6th Defendant, the 8th Defendant and/or one Mr Eugen Chua (“Eugen”) of the 2nd Defendant approached the Plaintiffs’ customers (ie, the Cargo owners) directly to demand the payment of unspecified sums of money and/or the issuance of Powers of Attorney in favour of the 8th Defendant and PT Prolink Clare, in order to obtain the release of their goods.¹⁵

On 12 October 2009, the 1st Plaintiff, through their solicitors, sent a letter of demand to McTrans, demanding the confirmation of the delivery up of the Cargo by 3pm on that day. No response was received from McTrans by the stipulated time.¹⁶

The commencement of the 2009 Suit

The next day, on 13 October 2009, the Plaintiffs commenced the 2009 Suit against McTrans as the sole defendant. On the same day that the writ was filed, the Plaintiffs filed Summons No 5358 of 2009 for a mandatory injunction for delivery up of the Cargo (“the injunction application”). The injunction application was adjourned on various occasions thereafter, pending the addition of some other Cargo owners, whose cargo was also detained by McTrans, as co-plaintiffs. I will come back to this point shortly.

In their Statement of Claim in the 2009 Suit, the Plaintiffs recounted all the material events stated at [11]–[23] above.

The Statement of Claim in the 2009 Suit alleged that McTrans, the 1st Defendant, the 6th Defendant, the 7th Defendant, the 8th Defendant and/or PT Prolink Clare had converted or wrongfully detained cargo to their own use, and deprived the Plaintiffs of the use of the same. These individuals had, therefore, acted in a manner that was inconsistent with the rights of the Plaintiffs to the Cargo.¹⁷ Nevertheless, only McTrans was named as a defendant to the 2009 Suit.

At that point in time, the Plaintiffs claimed, inter alia, for damages to be assessed and a declaration that the Plaintiffs be indemnified by McTrans for all claims arising from the conversion. However, the Plaintiffs did not initially seek the delivery up of the Cargo. This was only done at a later point in time by way of an amendment to the initial Statement of Claim. The amendments also added a claim for the Transportation Expenses.¹⁸

In its defence, McTrans denied liability for conversion and alleged, inter alia, that (a) it was an innocent agent who acted in good faith in relation to the Cargo and it was the named consignee appointed by the 8th Defendant to receive the subject containers from the carriers, handle the customs clearance process and store the subject containers in Singapore; (b) the detention of the Cargo was in lawful exercise of a possessory lien until storage and ancillary charges were paid; and (c) the plaintiffs were not entitled to the reliefs claimed as their claims were tainted with illegality.¹⁹ For the purposes of this judgment, I shall focus on the first defence raised by McTrans.

Shortly after the commencement of the 2009 Suit, nearly 84% of the Cargo (“Group A Cargo”) was returned to the cargo owners. 16%...