Beckkett Pte Ltd v Deutsche Bank AG and another
Jurisdiction | Singapore |
Court | High Court (Singapore) |
Judge | Judith Prakash J |
Judgment Date | 24 September 2010 |
Neutral Citation | [2010] SGHC 284 |
Citation | [2010] SGHC 284 |
Plaintiff Counsel | Davinder Singh SC and Pradeep Singh (Drew & Napier LLC) |
Docket Number | Suit No 326 of 2004 (Registrar’s Appeal No 99 of 2010) |
Subject Matter | Conflict of Laws,Civil Procedure |
Hearing Date | 24 March 2010 |
Date | 24 September 2010 |
Defendant Counsel | Ang Cheng Hock SC, William Ong, Loong Tse Chuan and Kenneth Lim (Allen & Gledhill LLP) |
Published date | 04 October 2010 |
This registrar’s appeal is another chapter in this epic piece of litigation which has occupied the courts in Singapore since 2004. The plaintiff, Beckkett Pte Ltd (“Beckkett”), wishes to be free of the Singapore proceedings in order to pursue remedies against the first defendant, Deutsche Bank AG (the “Bank”), in the courts in Indonesia. This might seem a rather odd course for Beckkett to take since it has been awarded judgment against the Bank by the Singapore courts but has yet to be equally successful in Indonesia. Yet when asked to elect between continuing the Singapore litigation (essentially by proceeding with the assessment of the damages payable by the Bank) and pursuing its Indonesian action, Beckkett chose the latter course.
The underlying application, Summons No 5313 of 2009, was filed by the Bank on 9 October 2009. By it, the Bank applied for the following orders:
The application was heard before Assistant Registrar David Lee (the “AR”) over several days. On 12 February 2010, the AR released a long and carefully considered judgment ([2010] SGHC 55) giving his reasons for the following findings (at [122] – [126]):
Beckkett did not appeal from this decision. Subsequently it elected to pursue the Indonesian action. The Bank, however, lodged an appeal and maintained before me that the AR’s order giving Beckkett the option of an election should be set aside and, instead, the anti-suit injunction it had applied for should be granted.
Background Course of the litigation in Singapore The facts giving rise to the original law suit are a matter of public record. They are set out at length in the judgment of the court of first instance,
Beckkett is a Singapore company. It and its subsidiary, PT Swabara Mining and Energy (“SME”), owned shares in PT Asminco Bara Utama (“Asminco”) which in turn owned shares in PT Adaro Indonesia (“Adaro”) which owned a coal mine in Kalimantan. SME, Asminco and Adaro are Indonesian companies.
The Bank is incorporated in Germany and has a registered branch in Singapore. In 1997, the Bank extended a loan to Asminco. This loan was supported by a guarantee from Beckkett and pledges by Beckkett and Asminco of their respective shares in SME, Asminco and Adaro (collectively, the “Pledged Shares”). Asminco did not repay the loan and the Bank sold the Pledged Shares to an Indonesian company named PT Dianlia Setyamukti (“DSM”). The sale was completed on 15 February 2002.
In April 2004, Beckkett started this action against the Bank. DSM was joined as the second defendant in February 2005. Beckkett claimed the following reliefs:
The trial of the action occupied some 50 days in the High Court before Kan Ting Chiu J (“the Judge”). Judgment was reserved and delivered on 21 September 2007. The Judge dismissed Beckkett’s claim against DSM and the Bank’s counterclaim against Beckkett. He found (at [152]) that Beckkett had made out a claim that the Bank had failed to discharge its duties as pledgee when it sold the Pledged Shares but had failed to show that the Bank had sold those shares at an undervalue. The Judge therefore awarded Beckkett nominal damages of $1,000. Both Beckkett and the Bank appealed against this decision.
The appeals were heard on 23 April 2008 and judgment was reserved. On 27 April 2009, the Court of Appeal delivered judgment and allowed the Bank’s appeal in full and Beckkett’s appeal in part. The relevant findings of the Court of Appeal at [143] of its judgment are that:
The Court of Appeal made orders to the following effect:
On 2 May 2008, shortly after it had presented its appeal to the Court of Appeal, Beckkett filed the Indonesian action. Essentially its claim was that the sale of the SME shares by the Bank was unlawful under Indonesian law because:
The reliefs claimed by Beckkett in the Indonesian action concerned the return of the SME shares and a declaration that it was the owner of these shares that it had pledged to the Bank. Beckkett also wanted declarations that the sale of the SME shares effected by the Bank was illegal and legally defective and that two documents, the Deed of Sale and Purchase and the Deed of Minutes, were null and void and any other documents based on the same were similarly null and void.
The Bank responded to the Indonesian action on 30 October 2008 by filing an application known as an “Absolute Competency Exception” in the District Court. Basically, it sought a stay of the Indonesian proceedings on the ground that Singapore was the proper forum under the relevant loan documentation and that Beckkett had acted in bad faith by filing its claim in Indonesia. This application was rejected on 8 January 2009. The Bank did not appeal.
The Indonesian action then proceeded on its merits. On or about 8 April 2009, the District Court dismissed the suit. On 13 April 2009, Beckkett filed an appeal against that decision (the “First Indonesian Appeal”). This was some two weeks prior to the issue of judgment by the Court of Appeal.
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