Ashlock William Grover v Set Clear Pte Ltd

• Judgment Date: 19 March 2012
• Date: 19 March 2012
• Docket Number: Civil Appeal No 66 of 2011
• Court: Court of Appeal (Singapore)

Ashlock William Grover

Plaintiff

and

Set Clear Pte Ltd and others

Defendant

[2012] SGCA 20

Chao Hick Tin JA

,

Andrew Phang Boon Leong JA

and

Tan Lee Meng J

Civil Appeal No 66 of 2011

Court of Appeal

Conflict of Laws—Restraint of foreign proceedings—Anti-suit injunctions—Parties involved in parallel proceedings in more than one national court

Contract—Contractual terms—Construction of terms

An action was commenced by the respondents (‘the Respondents’) by way of an originating summons (‘the Singapore Action’) at the High Court against the appellant (‘the Appellant’) seeking, inter alia, (a) a declaration that the Appellant, in breach of cl 14 of a settlement agreement (‘cl 14’), had commenced and maintained an action in the United States of America (‘the American Action’) against the Respondents in respect of certain alleged ‘founder’ benefits enjoyed by the Appellant, and (b) an order restraining the Appellant from continuing the American Action or commencing any further or other proceedings in the United States of America against the Respondents in respect of the same alleged ‘founder’ benefits. In the Singapore Action, the High Court Judge (‘the Judge’) gave judgment in favour of the Respondents, holding by way of summary determination that cl 14, properly construed, prohibited the Appellant from pursuing any claims in relation to the alleged ‘founder’ benefits against the Respondents. The Judge further ordered an anti-suit injunction against the Appellant in respect of the American Action.

On appeal, the Appellant contended, inter alia, that summary determination on the ambit of cl 14 in the Singapore Action was inapt, and that the Judge had erred in his construction of cl 14 that the alleged ‘founder’ benefits fell within the scope of cl 14. The Appellant further argued that the Judge had misapplied the law in relation to anti-suit injunctions in coming to his conclusion that an anti-suit injunction ought to be ordered against the Appellant. In particular, the Appellant argued that given that the ultimate relief sought by the Respondents in the Singapore Action was actually an anti-suit injunction, the Judge was wrong to begin his analysis of the matter with a determination on the substantive reliefs prayed for by the Respondents in the Singapore Action. Instead, the Appellant contended that the Judge in his analysis ought to have first directed his mind to the private international law principles applicable in respect of interlocutory anti-suit injunctions in the present case.

Held, dismissing the appeal:

(1) On a plain reading of cl 14, it could not have been clearer that it provided for the full and final settlement of all and any of the Appellant's claims, future or existing, against the Respondents. This would include whatever claims the Appellant might have against each of the Respondents, irrespective of their nature: at [22].

(2) The Appellant's contention that a summary determination on the ambit of cl 14 in the Singapore Action was inapt was without merit. A court in undertaking a contextual approach in the construction of a contract did not inquire into the parties' subjective states of mind but made an objective judgment based on the materials already identified: at [23].

(3) The Judge was not wrong to determine the case before him on its merits before concluding as a matter of consequence that an anti-suit injunction was justified in the circumstances. The Respondents commenced the Singapore Action after the American Action was instituted by the Appellant in the United States. Despite this, not only did the Appellant fail to take steps to challenge the Singapore court's jurisdiction in the Singapore Action, he had made a conscious decision to participate in the hearing of the Singapore Action before the Judge. The Appellant had chosen to resist the Singapore Action on the substantive and not the jurisdictional front despite the fact that he could have pursued the latter course. Coupled with the fact that the Respondents did not make any application for an interlocutory anti-suit injunction pending the final determination of the substantive matters engendered by the Singapore Action, this showed that the Judge was merely dealing with the Singapore Action as per the manner it was pleaded and contended by the Respondents: at [26] to [30].

(4) Parties to a dispute who had entered into parallel proceedings in more than one national court took the risk of being bound by the decision of the court which first rendered its decision and, subject to the rules on the doctrine of res judicata, being barred by way of a permanent anti-suit injunction from prosecuting further any pending proceedings in the other national courts once that decision was rendered. This was so regardless of whether the decision of the deciding court is appealable under the laws of that country: at [31].

(5) The principles governing interlocutory anti-suit injunctions did not apply unmodified to cases where a permanent injunction was sought after a judgment on the merits. In the present case, there was nothing to suggest that the Judge had erred in his decision to grant the anti-suit injunction after deciding on the underlying merits of the Singapore Action: at [35] and [36].

Aggeliki Charis Compania Maritima SA v Pagnan Sp A (The ‘Angelic Grace’) [1995] 1 Lloyd's Rep 87 (refd)

Bank of America National Trust and Savings Association v Djoni Widjaja [1994] 2 SLR (R) 898; [1994] 2 SLR 816 (refd)

Bank of Credit and Commerce International SA v Ali [2002] 1 AC 251 (folld)

CSR Ltd v Cigna Insurance Australia Ltd (1997) 71 ALJR 1143 (HCA) (refd)

Evergreen International SA v Volkswagen Group Singapore Pte Ltd [2004] 2 SLR (R) 457; [2004] 2 SLR 457 (refd)

John Reginald Stott Kirkham v Trane US Inc [2009] 4 SLR (R) 428; [2009] 4 SLR 428 (refd)

Koh Kay Yew v Inno-Pacific Holdings Ltd [1997] 2 SLR (R) 148; [1997] 3 SLR 121 (refd)

National Westminster Bank plc v Utrecht-America Finance Co [2001] CLC 1372 (refd)

Société Nationale Industrielle Aerospatiale v Lee Kui Jak [1987] AC 871 (refd)

Kelvin Tan and Natasha Sulaiman (Drew and Napier LLC) for the appellant

Alvin Yeo SC, Sim Bock Eng and Lee Ee Yang (Wong Partnership LLP) for the respondents.

Chao Hick Tin JA

(delivering the grounds of decision of the court):

Introduction

1 This was an appeal against the decision of the High Court judge (‘the Judge’) in Originating Summons No 118 of 2011 (‘the Singapore Action’): see Set Clear Pte Ltd v Ashlock William Grover [2011] SGHC 130 (‘the GD’) where he ruled in favour of the plaintiffs on the construction of an agreement and in consequence thereof he issued an anti-suit injunction against the defendant. In the Singapore Action, William Grover Ashlock (‘the Appellant’) was the defendant while Set Clear Pte Ltd, CLSA Limited, Set Clear Inc, Credit Agricole Securities (USA) Inc (formerly known as Caylon Securities (USA) Inc) and IX Net Holding Limited (individually the ‘1st Respondent’, ‘2 nd Respondent’, ‘3 rd Respondent’, ‘4 th Respondent’ and the ‘5 th Respondent’ respectively, and collectively ‘the Respondents’) were the plaintiffs.

2 The appeal was heard on 24 October 2011. After hearing submissions of the parties, we dismissed the appeal with costs. We now give the grounds for our decision.

The background to the dispute

3 In August 2005, the Appellant, together with one Jonathan Slone (‘Slone’), were the co-founders of a start-up business operated in New York by the 5 th Respondent. Although Slone and the Appellant each initially held 50% of the equity shares in the 5 th Respondent, their equity shareholding was, for reasons which were immaterial to this appeal, subsequently diluted and agreed to be not less than 4% each (‘the Founder's Equity’ or, interchangeably, ‘the founder benefits’). The 2 nd Respondent subsequently invested in the 5 th Respondent's business on terms that Slone would be in the 2 nd Respondent's employment while at the same time retaining his equity shares in the 5 th Respondent.

4 In March 2006, the Appellant was designated as Chief Operating Officer of the 5 th Respondent and concurrently seconded to the 4 th Respondent in New York. In a letter from the 1st Respondent dated 10 May 2007, the Appellant was offered to come under the employment of the 1st Respondent. The Appellant accepted the offer, as a result of which the Appellant re-located to Singapore but continued to shuttle between Singapore and New York from time to time. One of the provisions in the said letter stated:

Founder Status: In light of your [ie, the Appellant's] effort and contribution to the initial set up and establishment of the [1st Respondent], you will be recognised as one of its founders and be eligible for consideration for additional 'founder' benefits, if any, subject to negotiation with Bloomberg Tradebook. and on terms to be mutually agreed between you and the [1st Respondent].

5 In his first affidavit filed in the Singapore Action, the Appellant averred that the provision for ‘Founder Status’ in the letter served to reiterate his original entitlement to the Founder's Equity. The Respondents, however, claimed that no agreement was reached or even alleged to be reached between the Appellant and the 1st Respondent as to the founder benefits.

6 In or around late June 2008, the Appellant was put on a few weeks' ‘leave’ after a disagreement arose between him and Slone on certain plans regarding the 1st Respondent's business. On 17 July 2008, while the Appellant was on ‘leave’, he was asked to meet one Mr Laurie James Young (‘Young’) who was then acting on behalf of the 1st Respondent. At the meeting, the Appellant and Young signed an agreement providing for the cessation of the Appellant's employment with the 1st Respondent (‘the 17 July 2008 Agreement’). Clause 14 of the 17 July 2008 Agreement (‘cl 14’) provided as follows:

14. Final...