Beckkett Pte Ltd v

• Jurisdiction: Singapore
• Judgment Date: 20 December 2010
• Date: 20 December 2010
• Docket Number: Civil Appeal No 180 of 2010
• Court: Court of Appeal (Singapore)

Beckkett Pte Ltd

Plaintiff

and

Deutsche Bank AG

Defendant

[2010] SGCA 50

Chan Sek Keong CJ

,

Chao Hick Tin JA

and

Andrew Phang Boon Leong JA

Civil Appeal No 180 of 2010

Court of Appeal

Abuse of process—Indonesian action brought after identical Singapore action was heard by High Court and appealed to Court of Appeal—Court of Appeal not informed of Indonesian action—Whether bringing of Indonesian action constituted abuse of process—Whether injunction should be issued to restrain continued prosecution of Indonesian action—What comity required in such situations

The appellant (“Beckkett”) pledged certain shares (“the pledged shares”) to the respondent (“DB”) as security for a loan granted by DB to Beckkett's subsidiary. The pledge agreements were governed by Indonesian law. There was a default on the loan and between December 2001 and February 2002 DB obtained penetapans from the South Jakarta District Court authorising the sale of the pledged shares.

On 27 April 2004, Beckkett brought an action in the High Court (“the Singapore action”) to set aside the sale of the pledged shares, among other things. The legality of the sale under Indonesian law was fully argued before the High Court. During the trial, Beckkett also brought an action in the Indonesian High Court to set aside the penatapans issued by the South Jakarta District Court. The Indonesian High Court ruled in Beckkett's favour. This was affirmed on appeal to the Indonesian Supreme Court, which ruled on 3 March 2006 that parties injured by the issuance of the penetapans could bring claims. This was disclosed to the High Court Judge, Kan Ting Chiu J.

On 21 September 2007, Kan J handed down his reserved judgment. The parties appealed. The appeal was heard by the Court of Appeal on 23 April 2008. During the appeal, issues of Indonesian law were fully argued. The Court of Appeal reserved judgment. On 2 May 2008, Beckkett brought an action in the South Jakarta District Court (“the Indonesian action”) claiming the same reliefs as those sought in the Singapore action and relying on the same grounds as those relied on in the Singapore action. DB made an unsuccessful jurisdictional challenge in the South Jakarta District Court. It did not appeal but proceeded to defend the Indonesian action on the merits, succeeding before the South Jakarta District Court. Beckkett appealed to the Jakarta High Court.

The Indonesian action was not disclosed to the Court of Appeal, which handed down its reserved judgment on 27 April 2009. DB's solicitors asked Beckkett to desist in the Indonesian action. Beckkett declined. On 9 October 2009, DB applied to the High Court for an injunction to restrain Beckkett from proceeding with the Indonesian action. This was granted by Judith Prakash J. Beckkett appealed. At the time of hearing before the Court of Appeal, Beckkett's appeal to the Jakarta High Court had been dismissed and its further appeal to the Indonesian Supreme Court was pending.

Before the Court of Appeal, Beckkett argued that it should be allowed to proceed with the Indonesian action. With regard to the commencement of the Indonesian action, Beckkett argued that this was justified because of (a) the Indonesian Supreme Court's ruling that those injured by the issuance of the penetapans could bring claims, (b) an argument by DB before the Court of Appeal in the Singapore action that the issues of Indonesian law should be litigated in Indonesia, and (c) DB's failure to protest the commencement of the Indonesian action in its application for an anti-suit injunction. Further, Beckkett pointed out that DB did not pursue its jurisdictional challenge further and was dilatory in opposing the Indonesian action in Singapore. It also raised considerations of comity.

Held, dismissing the appeal with costs:

(1) A court may issue an anti-suit injunction to restrain an individual from continuing to prosecute foreign proceedings which amounted to an abuse of its process because of their effect on pending litigation in the court. Once there was an abuse of the court's process, the matter ceases to be a case involving only the competing interests of the parties concerned - the court had to intervene, where it is able to do so, to prevent its process from being abused: at [19].

(2) The present case disclosed a blatant, opportunistic and egregious abuse - Beckkett commenced the Indonesian action after Kan J had dismissed its claim against DB on the merits and after the Court of Appeal had heard Beckkett's appeal against Kan J's decision. Even assuming that DB had wholeheartedly embraced the Indonesian action, the parties could not be permitted, even by consent, to abuse the process of the Court of Appeal by stealthily engaging in the Indonesian action after placing the substantive merits of the Singapore action before the Court of Appeal. Even if there was some valid reason why the forum for resolving the parties' dispute should be changed from Singapore to Indonesia, the proper procedure would be for one or both of the parties to inform the Court of Appeal, so that appropriate orders could be made. Since this was not done, the parties had to be content to wait upon the Court of Appeal's deliberations and abide by its decision: at [20].

(3) Beckkett's explanation for commencing the Indonesian action could not be accepted, given that it was Beckkett itself which had placed the issue of Indonesian law and produced expert evidence on Indonesian law before the Singapore courts: at [22].

(4) In the absence of any evidence on the judicial process of Indonesia, no inference could be drawn from DB's decision not to appeal against its failed jurisdictional challenge and to, instead, defend the Indonesian action on the merits whilst reserving its jurisdictional objections. However, it was accepted that DB had no satisfactory explanation for its undue delay in applying for an anti-suit injunction: at [23].

(5) So far as comity was concerned, the only practical and sensible solution in the present case was to restrain Beckkett from...