Astro Nusantara International BV and others v PT Ayunda Prima Mitra and others and another matter

• Jurisdiction: Singapore
• Judge: Belinda Ang Saw Ean J
• Judgment Date: 11 March 2016
• Neutral Citation: [2016] SGHC 34
• Plaintiff Counsel: Lim Wei Lee, Chan Xiao Wei and Catherine Chan (WongPartnership LLP)
• Docket Number: Originating Summons No 807 of 2010 (Summons No 6343 of 2013) and Originating Summons No 913 of 2010 (Summons No 6344 of 2013)
• Date: 11 March 2016
• Hearing Date: 23 January 2015,20 January 2014,02 September 2014,04 September 2015,31 August 2015
• Subject Matter: Injunctions -Undertaking as to damages -Inquiry as to damages
• Published date: 28 April 2016
• Citation: [2016] SGHC 34
• Defendant Counsel: Edmund Jerome Kronenburg, Lye Hui Xian and Alicia Xuang (Bradell Brothers LLP)
• Court: High Court (Singapore)
• Year: 2016

Belinda Ang Saw Ean J: Introduction

The present applications, which are filed by the second defendant, PT First Media TBK (formerly known as PT Broadband Multimedia TBK) (“FM”), seek an inquiry as to damages in relation to the worldwide mareva injunctions that the plaintiffs obtained ex parte on 8 July 2011 (“the Mareva Orders”). The debate here concerns FM’s entitlement to enforce the undertaking as to damages, which was given to the court by the plaintiffs upon their applications to obtain the Mareva Orders.

By their terms, the Mareva Orders would automatically lapse unless extension of the duration of the restraint was sought from the High Court. As this was not done, the Mareva Orders lapsed on 31 October 2013, which was the day the Court of Appeal delivered its judgment in Civil Appeal No 150 of 2012 and Civil Appeal No 151 of 2012 (“the FM Appeals”). However, the undertaking as to damages given to the court is unaffected by these events. The issue of whether the court should in its discretion enforce the undertaking therefore remains to be determined. In this regard, the plaintiffs oppose FM’s applications for an inquiry as to damages.

Background facts

I begin with the history which forms the background to the present applications.

The underlying dispute

The plaintiffs are Astro Nusantara International BV (“P1”), Astro Nusantara Holdings BV (“P2”), Astro Multimedia Corporation NV (“P3”), Astro Multimedia NV (“P4”), Astro Overseas Limited (formerly known as AAAN (Bermuda) Limited) (“P5”), Astro All Asia Networks PLC (“P6”), Measat Broadcast Network Systems Sdn Bhd (“P7”) and All Asia Multimedia Networks FZ-LLC (“P8”). P1 to P5 and P7 to P8 are directly or indirectly owned by P6. The first and third defendants are PT Ayunda Prima Mitra (“D1”) and PT Direct Vision (“D3”).

The underlying dispute arose out of a failed joint venture between two groups of companies, the Astro group and the Lippo group, to provide direct-to-home multi-channel digital satellite pay television, radio and interactive multimedia services in Indonesia. The plaintiffs (collectively referred to as “Astro”) are part of the Astro group, while FM, D1 and D3 are part of the Lippo group.

Central to the underlying dispute was a Subscription and Shareholders Agreement (“the SSA”). The SSA was subject to a number of conditions precedent, one of which was the conclusion of service agreements between an Astro entity and D3 (“the Service Agreements”). Notably, P6 to P8 were not parties to the SSA, but had, in the interim, provided supporting services and funding to D3. The Service Agreements were never concluded, and what followed was a dispute over the provision of the supporting services and funding.

The arbitration proceedings

The dispute was sent to arbitration pursuant to an arbitration clause in the SSA (“the Arbitration”). The Arbitration commenced on 6 October 2008 under the auspices of the Singapore International Arbitration Centre (“SIAC”). SIAC Rules 2007 applied to the Arbitration. An important preliminary issue before the arbitral tribunal (“the Tribunal”) was the joinder of P6 to P8 as parties to the Arbitration. Factually, P6 to P8 were not parties to the SSA. The defendants objected to the joinder arguing that the Tribunal did not have jurisdiction to join P6 to P8 to the Arbitration. In an award issued on 7 May 2009 (“the 7 May 2009 Award”), the Tribunal found otherwise and exercised its powers to join P6 to P8 to the Arbitration. There was no application to the High Court under Article 16 of the UNCITRAL Model Law on International Commercial Arbitration on the 7 May 2009 Award. The Tribunal subsequently made four other awards in favour of Astro between 3 October 2009 and 3 August 2010 (together with the 7 May 2009 Award, collectively referred to as “the Five Awards”).

Enforcement proceedings and the Mareva Orders

At no time did FM and the other defendants apply to set aside the Five Awards in Singapore. Prior to 2011, Astro had obtained leave to enforce the Five Awards in England, Malaysia and Hong Kong (see [90] below for details).

Astro subsequently applied ex parte for leave to enforce the Five Awards in the same manner as a judgment in Singapore. Accordingly, Originating Summons No 807 of 2010 (“OS 807/2010”) and Originating Summons No 913 of 2010 (“OS 913/2010”) were filed. Leave was granted on 5 August 2010 in OS 807/2010 (in relation to four awards) and on 3 September 2010 in OS 913/2010 (in relation to the remaining award) (“the Enforcement Orders”). As there was no challenge to the Enforcement Orders within the time stipulated therein, Astro entered judgments in the terms of the Five Awards against all three defendants on 24 March 2011 (“the 2011 Judgments”).

On 8 July 2011, Astro obtained the Mareva Orders to aid the execution of the 2011 Judgments. The relevant applications were Summons No 2969 of 2011 in OS 913/2010 and Summons No 2970 of 2011 in OS 807/2010.

FM’s challenges in Singapore

It is worth bearing in mind that D1 and D3 did not oppose the 2011 Judgments and the Mareva Orders. The sole challenge against the Enforcement Orders and the 2011 Judgments came from FM. The latter also sought to set aside or vary the Mareva Orders.

FM’s applications to set aside or vary the Mareva Orders

On 19 July 2011, FM filed Summons No 3169 of 2011 (“SUM 3169/2011”) in OS 913/2010 and Summons No 3170 of 2011 in OS 807/2010 (“SUM 3170/2011”) to set aside or vary the Mareva Orders. I dismissed FM’s applications on 16 August 2011. In the end, there was no appeal against the Mareva Orders. Procedurally, as required under Order 56 rule 3(1) of the Rules of Court (Cap 322, R 5, 2006 Rev Ed), FM would have to but did not apply for leave to appeal against my decision within seven days. On 22 September 2011, FM filed Summons No 4223 of 2011 in OS 807/2010 and Summons No 4230 of 2011 in OS 913/2010 for, inter alia, an extension of time to seek leave to appeal against my decision in SUM 3169/2011 and SUM 3170/2011. FM’s applications were dismissed on 4 October 2011.

FM’s applications to set aside the Enforcement Orders and the 2011 Judgments

On 3 May 2011, FM filed Summons No 1911 of 2011 in OS 807/2010 and Summons No 1912 of 2011 in OS 913/2010 to set aside the 2011 Judgments and for leave to apply to set aside the Enforcement Orders for improper service. On 22 August 2011, an Assistant Registrar set aside the 2011 Judgments and granted FM leave to apply to set aside the Enforcement Orders. Dissatisfied, Astro filed Registrar’s Appeal No 278 of 2011 (“RA 278/2011”) in OS 807/2010 and Registrar’s Appeal No 279 of 2011 (“RA 279/2011”) in OS 913/2010 to reverse the decision of the Assistant Registrar. On 12 September 2011, in seeking to resist the enforcement of the Five Awards on the ground that the Tribunal lacked jurisdiction to join P6 to P8 to the Arbitration, FM filed Summons No 4064 of 2011 (“SUM 4064/2011”) in OS 913/2010 and Summons No 4065 of 2011 (“SUM 4065/2011”) in OS 807/2010.

RA 278/2011, RA 279/2011, SUM 4064/2011 and SUM 4065/2011 were then listed for hearing before me. On 22 October 2012, I dismissed Astro’s appeals in RA 278/2011 and RA 279/2011. I also dismissed FM’s applications in SUM 4064/2011 and SUM 4065/2011. The grounds of my decision are reported in Astro Nusantara International BV and others v PT Ayunda Prima Mitra and others [2013] 1 SLR 636 (“the High Court decision”).

FM filed the FM Appeals against my decision in SUM 4064/2011 and SUM 4065/2011. On 31 October 2013, the Court of Appeal allowed the FM Appeals in part, holding, essentially, that FM’s obligations to P1 to P5 under the Five Awards were enforceable, whereas its obligations to P6 to P8 were not: PT First Media TBK (formerly known as PT Broadband Multimedia TBK) v Astro Nusantara International BV and others and another appeal [2014] 1 SLR 372 (“the Court of Appeal decision”).

The present applications for an inquiry as to damages

On 9 December 2013, FM filed Summons No 6343 of 2013 in OS 807/2010 and Summons No 6344 of 2013 in OS 913/2010 to enforce Astro’s undertaking as to damages. FM filed three affidavits in support of the applications. In return, Astro filed two affidavits to oppose the applications. Other affidavits filed in the earlier mareva proceedings were referred to.

Counsel for FM, Mr Edmund Kronenburg (“Mr Kronenburg”), made a straightforward case for an inquiry as to damages. Mr Kronenburg submits that FM’s success in the FM Appeals meant that the Mareva Orders were “wrongly asked for”, and that there is nothing to prevent this court from enforcing the undertaking as to damages since no “special circumstances” exist in this case. In contending that the Mareva Orders were “wrongly asked for”, Mr Kronenburg relies on the fact that the Court of Appeal disallowed P6 to P8 to enforce the Five Awards against FM and that FM was clearly the successful party as demonstrated by the fact that the Court of Appeal allowed enforcement of a much reduced sum of approximately US$700,000. The argument – that the plaintiffs must be regarded as having failed on the merits – develops with a comparison of the disparity between this reduced sum and the ceiling sum of approximately US$130m against FM in the Mareva Orders. As such, the Mareva Orders are to be regarded as having been “wrongly asked for”. Mr Kronenburg made two other points. First, he accepts that FM has to show that there is an arguable case of loss. Here, he submits that so far as the evidence is concerned, FM has met the low threshold required to show that it has an arguable case for compensatory loss. Second, Mr Kronenburg submits that FM needs only to satisfy one ground, viz, that the Mareva Orders were “wrongly asked for”, to carry the day. Put simply, FM was not basing the present applications on want of real risk of dissipation of assets, and therefore Mr Kronenburg made no submissions in this regard. At...