Broadcast Solutions Pte Ltd v Zoom Communications Ltd

• Jurisdiction: Singapore
• Judgment Date: 18 December 2013
• Date: 18 December 2013
• Docket Number: Suit No 119 of 2013 (Registrar's Appeal No 181 of 2013); Summons No 3444 of 2013
• Court: High Court (Singapore)

Broadcast Solutions Pte Ltd

Plaintiff

and

Zoom Communications Ltd

Defendant

[2013] SGHC 273

Woo Bih Li J

Suit No 119 of 2013 (Registrar's Appeal No 181 of 2013); Summons No 3444 of 2013

High Court

Conflict of Laws—Jurisdiction—Discretionary—Defendant submitted both application to set aside O 11 writ and application to stay action on grounds of forum non conveniens—Whether defendant had submitted to jurisdiction of court

Conflict of Laws—Jurisdiction—Discretionary—Plaintiff not making full and frank disclosure—Whether order to serve O 11 writ would be set aside on grounds of not making full and frank disclosure

Conflict of Laws—Natural forum—Burden of proof—On whom did the burden of proof lie

Conflict of Laws—Natural forum—Stay of proceedings—Defendant applying for stay of proceedings—Whether there was clearly or distinctly more appropriate forum than Singapore

Both the plaintiff, Broadcast Solutions Pte Ltd (‘Broadcast’), and the defendant, Zoom Communications Ltd (‘Zoom’), were broadcast service providers, offering services such as the rental of broadcast equipment, hire of broadcast crew and outsourcing of contracts entered into with Indian sports event organisers. Broadcast and Zoom would from time to time enter into agreements and request for assistance in the hiring of equipment or crew to fulfil contractual obligations owed to other parties. The present suit pertained to three sums of money claimed by Broadcast against Zoom in respect of three hire-purchase agreements.

On 14 February 2013, Broadcast obtained ex parte leave under O 11 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) to serve a writ of summons on Zoom in India. Service was effected on 22 or 25 February 2013. Zoom filed a memorandum of appearance on 18 March 2013. According to Broadcast, Zoom was required to file its defence by 1 April 2013, but did not do so. On 2 April 2013, Zoom's solicitors asked Broadcast's solicitors for an extension of time until 8 April 2013 to take full instructions; this request was without prejudice to Zoom's right to contest the service of the writ. Broadcast rejected this request and gave 48 hours to file and serve the defence by 5.30 pm on 4 April 2013.

On 4 April 2013, Zoom applied for, and successfully obtained, an extension of time to file its defence, and was supposed to do so by 15 April 2013. On 15 April 2013, Zoom did not do so and instead filed an application to set aside the order granting leave to serve the writ out of jurisdiction and in the alternative to stay proceedings pursuant to O 12 r 7 (2) (‘the Setting Aside and Stay Application’). This application was dismissed by an assistant registrar on 27 May 2013. Zoom then filed an appeal against the decision.

As regards Zoom's appeal in respect of the prayer to set aside the order granting leave to serve the writ out of jurisdiction, one hurdle facing Zoom was whether it had submitted to the jurisdiction of the Singapore court.

Held, dismissing the plaintiff's appeal:

(1) An application for an extension of time to file a defence was not in itself tantamount to an unequivocal submission to jurisdiction. While it would be ideal for a defendant to expressly reserve the right to apply to set aside the order granting leave to serve an O 11 writ, the absence of such an express reservation did not transform an equivocal act into a clear submission: at [16] .

(2) The Setting Aside and Stay Application consisted of two reliefs which were inconsistent. An application to set aside contended that the Singapore court had no jurisdiction; an application to stay contended that the Singapore court should not exercise jurisdiction. By including a prayer for stay it was arguable that Zoom had submitted to the jurisdiction of the Singapore court: at [18] and [19] .

(3) Even if the fact of including a prayer of stay did not amount to a submission to the Singapore court's jurisdiction, Zoom had crossed the line and submitted to the court's jurisdiction when it proceeded with its prayer for a stay: at [26] .

(4) The protection of O 12 r 7 (5) of the Rules of Court applied only to an application made under O 12 r 7 (1) and not to one made under O 12 r 7 (2). This suggested that an application per se for a stay constituted a submission to the jurisdiction of the court, and, a fortiori, where arguments had in fact been advanced for an application for stay on the ground of forum non conveniens: at [52] .

(5) Zoom had conceded that it was precluded from applying to set aside the order granting leave to serve the writ out of jurisdiction if it had submitted to the jurisdiction of the court: at [57] .

(6) As regards a stay application on the ground of forum non conveniens,the burden of proof was always on the applicant to establish clearly and distinctly that there was a more appropriate jurisdiction than Singapore to hear the dispute: at [74] .

(7) Broadcast was a company incorporated in Singapore with its commercial activities in Singapore and its witnesses residing in Singapore. Zoom was a company incorporated in India with its commercial activities in India and its witnesses residing in India. The equipment for the three agreements was in both Singapore and India. The governing law of the agreements was unclear. Proceedings in India pertained to different issues. The factors appeared evenly balanced and India was not clearly or distinctly the more appropriate forum: at [77] to [84] .

[Observation: Broadcast was under a duty to make full and frank disclosure, and did not disclose, inter alia, that the three agreements were not in writing, and that there was no e-mail incorporating its standard terms stipulating that Singapore law was to govern. If not for Zoom's submission to jurisdiction, the court would have set aside the order to serve the writ under O 11 on this basis: at [64] .

A plaintiff proceeding under O 11 had the burden of proving that Singapore was the appropriate forum at the time he was making his application for the service of writ out of Singapore, and the burden remained on the plaintiff when a defendant filed an application in Singapore to set aside an order made under O 11: at [73] .]

Bankers Trust Co v Galadari [1987] QB 222; [1986] 2 Lloyd's Rep 446 (refd)

Carona Holdings Pte Ltd v Go Go Delicacy Pte Ltd [2008] 4 SLR (R) 460; [2008] 4 SLR 460 (folld)

Chan Chin Cheung v Chan Fatt Cheung [2010] 1 SLR 1192 (folld)

Jian He, The [1999] 3 SLR (R) 432; [2000] 1 SLR 8 (folld)

Oriental Insurance Co Ltd v Bhavani Stores Pte Ltd [1997] 3 SLR (R) 363; [1998] 1 SLR 253 (refd)

Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460 (folld)

Sydney Express, The [1988] 2 Lloyd's Rep 257 (refd)

Williams & Glyn's Bank plc v Astro Dinamico Compania Naviera SA [1984] 1 WLR 438 (refd)

Arbitration Act (Cap 10, 2002 Rev Ed) s 6 (1)

Rules of Court (Cap 322, R 5, 2006 Rev Ed) O 11, O 12 r 7 (1) , O 12 r 7 (2) , O 12 r 7 (5) , O 12 r 7 (6)

Civil Jurisdiction and Judgments Act 1982 (c 27) (UK) s 33 (1) (b)

Philip Fong and Kirsten Teo (Harry Elias Partnership LLP) for the plaintiff

Moiz Haider Sithawalla and Meilyna Lyn Poh (Tan Rajah & Cheah) for thedefendant.

Woo Bih Li J

Introduction

1 The defendant, Zoom Communications Ltd (‘Zoom’), applied by way of Summons No 1975 of 2013 for two reliefs:

(a) to set aside an order of court dated 14 February 2013 (‘the Order’) which granted the plaintiff, Broadcast Solutions Pte Ltd (‘Broadcast’), leave to serve the writ of summons (and the statement of claim therein) dated 7 February 2013 on Zoom in India; or

(b) to stay all further proceedings pursuant to O 12 r 7 (2) of the Rules of Court (Cap 322, R 5, 2006 Rev Ed).

I will refer to that application as ‘the Setting Aside and Stay Application’.

2 Zoom's application was heard on 27 May 2013 by an assistant registrar and dismissed. Zoom then filed an appeal. I heard the appeal on 27 June 2013 and dismissed it. Zoom then sought leave to appeal to the Court of Appeal against my decision. On 30 August 2013, I granted Zoom leave to appeal. I set out below my reasons for my substantive decision on 27 June 2013 and also for granting leave to appeal.

Background

3 Broadcast is a company incorporated under the laws of Singapore and Zoom is a company incorporated under the laws of India.

4 Broadcast said that Zoom is a broadcast service provider in a similar business to Broadcast. Zoom offers services such as the rental of broadcast equipment, hire of broadcast crew and outsourcing of contracts it enters into with organisers of sports events in India. Broadcast and Zoom would from time to time enter into agreements and ask each other for assistance in the hiring of equipment and/or crew to fulfil contractual obligations owed to other parties.

5 In the present suit, Broadcast is claiming three sums of money said to be owing by Zoom to Broadcast in respect of three hire-purchase agreements. The three sums are US$500,000, EUR 216,000 and S$35,000. Broadcast's writ of summons was filed on 7 February 2013.

6 On 14 February 2013, Broadcast obtained the Order on an ex parte basis and consequently effected service of the writ of summons on Zoom in India on 22 or 25 February 2013. Consequently, Zoom filed a memorandum of appearance on 18 March 2013. According to Broadcast, Zoom was required, under the Rules of Court, to file its defence by 1 April 2013. Zoom did not do so. On 2 April 2013, Zoom's solicitors asked Broadcast's solicitors for an extension of time till 8 April 2013 to take ‘full instructions’. This request was made without prejudice to Zoom's right as to whether service of the writ was properly effected. Broadcast's solicitors replied on the same day to reject the request and to give 48 hours' notice to file and serve the defence by 5.30 pm of 4 April 2013.

7 On 4 April 2013, Zoom filed an application by way of Summons No 1787 of 2013 for various reliefs including a prayer for an order that...