BNP Paribas SA v Jacob Agam and another

• Judge: Vivian Ramsey IJ
• Judgment Date: 15 March 2018
• Neutral Citation: [2018] SGHC(I) 3
• Citation: [2018] SGHC(I) 3
• Court: International Commercial Court (Singapore)
• Published date: 20 March 2018
• Docket Number: Suit No 2 of 2016 (Summons No 5 of 2018)
• Plaintiff Counsel: Pillai K Muralidharan, Luo Qinghui and Andrea Tan (Rajah & Tann Singapore LLP)
• Defendant Counsel: The first and second defendants absent.
• Subject Matter: Civil Procedure,Rules of Court,Singapore International Commercial Court,Offshore case
• Hearing Date: 05 March 2018

Vivian Ramsey IJ: Introduction

The Plaintiff is a private bank incorporated in France and conducts business in Singapore through its Singapore-registered branch. The Defendants are brother and sister and are Israeli nationals. The Defendants were customers of the Plaintiff’s subsidiary company, BNP Paribas Wealth Management (“BNPWM”), prior to BNPWM’s merger with the Plaintiff on 1 October 2016.

On 27 November 2015, BNPWM commenced an action in the Singapore High Court against the Defendants for recovery of €17,113,889.93 and €12,988,922.66, which was claimed to be due and owing by them jointly and severally as personal guarantors pursuant to two Personal Guarantees provided to BNPWM (“Personal Guarantees”) as security for loans provided to SCI Ruth Agam and Det Internationale, companies owned by the Defendants (“the Companies”), pursuant to two Facility Agreements.

On 5 April 2016, the proceedings were transferred to the Singapore International Commercial Court (“SICC”). Directions were given which led to a hearing in August 2017. The SICC issued its judgment on 17 November 2017 (“the Judgment”), finding for the Plaintiff and awarding the claimed amounts plus interest, and dismissing a counterclaim by the First Defendant (see BNP Paribas SA v Jacob Agam and another [2018] 3 SLR 1).

On 13 December 2017, the Defendants appealed against the Judgment to the Court of Appeal. In doing so, they also filed an offshore case declaration dated 5 December 2017 (“the Declaration”). In response to the Declaration, the Plaintiff then filed the present application on 24 January 2018 (“the Application”), pursuant to O 110 r 37(1) of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) (“the Rules”) for a declaration that this action is not or is no longer an offshore case, and that, consequently, the Declaration would cease to have effect. The Application was supported by the Second Affidavit of Yin Hsiu Mei dated 24 January 2018.

The Defendants sought to file an Affidavit of Jacob Agam, sworn in Paris on 12 February 2018 (“the Affidavit”), in response to the Application. They sent an email to the SICC Registry on 12 February 2018 attaching the Affidavit and requesting the Registry to file it with the Court of Appeal. The background to this request was that the Registry had previously assisted with the filing of the Defendants’ Notice of Appeal, the Certificate for Security for Costs and the Declaration (the “Commencement Documents”). However, the Registry had in a letter dated 7 December 2017 emphasised that it would only assist with the filing of the Commencement Documents, and that the responsibility for filing all future documents in the appeal would rest with the Defendants and the Registry would not be in a position to assist them in filing of future documents. The Registry therefore replied by letter on 15 February 2018 to point this out, and to say that it was unable to accede to the request for assistance in the filing of the Affidavit.

Subsequently, on 4 March 2018, the Defendants sent a letter by email to the Court, attaching a number of documents, including the Affidavit and explaining difficulties which they had in filing the documents with the Service Bureau through an agent. At the hearing on 5 March 2018, I observed that in the absence of the Defendants, it would be appropriate for me to have regard to the contents of the Affidavit, notwithstanding that it was not regularly filed, in order that I might understand their submissions on the issues raised by the Application. The Plaintiff had no objections to my taking into account the matters contained in the Affidavit and made submissions on the relevance of those matters to the Application. I have therefore taken into account all the matters which are relied upon by the Defendants and are relevant to the Application.

At the hearing, the Plaintiff was represented by Mr K Muralidharan Pillai and Ms Andrea Tan of Rajah & Tann Singapore LLP. The Defendants were neither represented nor present in person, but under O 32 r 5 of the Rules, I was satisfied that they had notice of the hearing and that it was expedient to hear the Application. I therefore decided to proceed in the absence of the Defendants. In particular, the Defendants had made their submissions in the Declaration and Affidavit and it was necessary to have an early decision on whether this case was an offshore case in the light of the time for filing the Appellants’ case in the appeal.

Before dealing with the merits of the Application, it is necessary to deal with two initial points: the validity of the Declaration under O 110 r 35 and the jurisdiction to make a declaration under O 110 r 37 of the Rules.

Validity of the Declaration

The Plaintiff submits that the timing of the Defendants’ filing of the Declaration is not in accordance with the relevant provisions of the Rules. In particular, the Plaintiff says that O 110 r 35 provides that: (3) An offshore case declaration must be filed — (a) by the plaintiff, together with the originating process; or (b) by any other party, together with the first document filed by the party in the action.

The Declaration was evidently filed long after it should have been filed under that provision, defences having been filed by the First Defendant on 12 February 2016 and by the Second Defendant on 27 January 2016. There was no application for an extension of time and, absent such an application and the Court granting the extension, I do not consider that the Declaration was validly made. Nor do I consider that there are grounds on which I should extend time. If a party fails to make an offshore case declaration under O 110 r 35, it can then apply under O 110 r 36 of the Rules for a decision that an action is an offshore case but, again, any application must be made within 28 days of the close of pleadings. In the present case, pleadings were deemed to have closed in April 2016, and no such application made within the 28 days thereafter.

I therefore do not consider that the Declaration was a valid offshore case declaration under O 110 r 35 of the Rules.

Jurisdiction under O 110 r 37

The Defendants have made the Declaration in the context of their appeal. The Plaintiff submits that the appropriate court to consider the Application is a first-instance SICC court rather than the Court of Appeal.

O 110 r 37(1) of the Rules provides that, “the Court may at any time decide that an action is not or is no longer an offshore case, either on its own motion or on application of a person.” Under O 110 r 1(1) of the Rules, “Court” means the SICC. The jurisdiction of the Court of Appeal under s 29A of the Supreme Court of Judicature Act...