Broadcast Solutions Pte Ltd v Zoom Communications Ltd

• Jurisdiction: Singapore
• Judge: Woo Bih Li J
• Judgment Date: 18 December 2013
• Neutral Citation: [2013] SGHC 273
• Court: High Court (Singapore)
• Docket Number: Suit No 119 of 2013 (Registrar’s Appeal No 181 of 2013) Summons No 3444 of 2013
• Published date: 02 January 2014
• Year: 2013
• Hearing Date: 30 August 2013,27 June 2013
• Plaintiff Counsel: Philip Fong and Kirsten Teo (Harry Elias Partnership LLP)
• Defendant Counsel: Moiz Haider Sithawalla and Meilyna Lyn Poh (Tan Rajah & Cheah)
• Citation: [2013] SGHC 273

Woo Bih Li J: Introduction

The defendant, Zoom Communications Ltd (“Zoom”), applied by way of Summons 1975 of 2013 for two reliefs: 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 to stay all further proceedings pursuant to O 12 r 7(2) of the Rules of Court (Cap 322, R5, 2006 Rev Ed) (“Rules of Court”). I will refer to that application as “the Setting Aside and Stay Application”.

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

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

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.

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.

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 5.30pm of 4 April 2013.

On 4 April 2013, Zoom filed an application by way of Summons 1787 of 2013 for various reliefs including a prayer for an order that the time limited for the service of the defence be extended to one week from the date of the order to be made on the application (“the 1st EOT Defence Application”).

On 8 April 2013, Zoom obtained an order on the 1st EOT Defence Application which granted it an extension of time to file its defence. Therefore, Zoom was supposed to file its defence by 15 April 2013. Zoom did not do so. Instead, Zoom filed the Setting Aside and Stay Application on 15 April 2013.

On 27 May 2013, an Assistant Registrar dismissed the Setting Aside and Stay Application. Zoom filed a notice of appeal on 5 June 2013. Thereafter, Zoom filed Summons 2928 of 2013 for a further extension of time to file and serve its defence within seven days after the decision on its appeal was rendered, should its appeal be unsuccessful. This was its second application for an extension of time to file and serve its defence. On 17 June 2013, Zoom obtained an order on its second application.

I heard Zoom’s appeal on 27 June 2013 and dismissed its appeal.

The court’s reasons

As regards Zoom’s first prayer to set aside the Order, Zoom relied on material non-disclosures by Broadcast when Broadcast obtained the Order. However, there was one hurdle facing Zoom. Broadcast alleged that as Zoom had submitted to the jurisdiction of the Singapore court it was too late for Zoom to apply to set aside the Order. Zoom accepted the proposition that if it had submitted to the jurisdiction of the Singapore court, then it was precluded from applying to set aside the Order. However, Zoom disputed that it had submitted to the jurisdiction of the Singapore court.

Broadcast submitted that each of the two steps taken by Zoom constituted a submission by Zoom to the jurisdiction of the Singapore court: The first step was Zoom’s 1st EOT Defence Application. The second step was the Setting Aside and Stay Application.

As regards Zoom’s 1st EOT Defence Application, each side referred to the decision of the Court of Appeal in Carona Holdings Pte Ltd and others v Go Go Delicacy Pte Ltd [2008] 4 SLR(R) 460 (“Carona”) to support its position.

In Carona, a question arose as to whether an application for an extension of time to file a defence constituted a “step in the proceedings” for the purpose of s 6(1) of the Arbitration Act (Cap 10, 2002 Rev Ed). The Court of Appeal decided that if the purpose of asking for an extension of time to file a defence is not bona fide for the purpose of applying for a stay of proceedings pending arbitration, the court may either refuse an application for extension of time or dismiss an application for stay of proceedings.

In the case before me, Broadcast submitted that the 1st EOT Defence Application was not bona fide for the purpose of applying for a stay of proceedings. This was because Zoom’s supporting affidavit for that application only mentioned two reasons. The first was that Zoom was obtaining legal advice in India on the service of the writ. The second was that Zoom did not have an office or representative in Singapore and, thus, its solicitors had not been able to obtain full instructions earlier. What Broadcast was saying was that because Zoom did not expressly reserve its right to apply to set aside the Order in that application or in its supporting affidavit, Zoom had submitted to the jurisdiction of the Singapore court.

I was of the view that this argument was without merit. Zoom had already made it clear that its Singapore solicitors had to take full instructions. Both Zoom and its Singapore solicitors may not have considered the point as to whether Zoom should apply to set aside the Order (as opposed to setting aside the service of the writ) for material non-disclosure. The issue was whether Zoom had clearly submitted or evinced its intention to submit to the jurisdiction of the Singapore court and there was no clear evidence of this yet. It is true that there may be occasions when a defendant expressly reserves the right to apply to set aside a similar order. However, while it would be ideal for a defendant to do this, the absence of such an express reservation did not transform an equivocal act into a clear submission. Therefore, there was no basis to say that Zoom had submitted to the jurisdiction of the Singapore Court when it filed the 1st EOT Defence Application. In fact, it was held in Carona at [95] that “[a]n application for an extension of time is not in itself tantamount to an unequivocal submission to jurisdiction”. Therefore, Carona was authority in favour of Zoom’s position on the point rather than Broadcast’s.

The second step which Zoom took was another matter. Here, Zoom had filed an application which consisted of two different reliefs, ie, to set aside the Order or to stay the Singapore suit on the ground of forum non conveniens.

In so far as Zoom was seeking to set aside the Order, Zoom was contending that the Singapore court has no jurisdiction over the matter in dispute. In so far as Zoom was seeking to stay the Singapore suit, Zoom was making a different contention, ie, that the Singapore court should not exercise jurisdiction. In other words, even though the Singapore court has jurisdiction, the Singapore court ought not to exercise that jurisdiction and ought to stay the Singapore suit in favour of some more appropriate jurisdiction. The premise of each relief was therefore not consistent.

It seemed to me that by including a prayer for a stay of the Singapore suit, it was arguable that Zoom had submitted to the jurisdiction of the Singapore court. On the other hand, it was also arguable that the mere filing of an application with an alternative prayer for a stay was not a clear submission as Zoom was still first seeking to set aside the Order. To that extent, arguably, Zoom should be permitted to file an application with these two reliefs to save time and costs. If Zoom was obliged to refrain from including a prayer for a stay, then it would have to file a fresh application for a stay if it was unsuccessful in its application to set aside. However, even on this argument, there was yet another point. What should Zoom do if it fails in its application to set aside? Should it file an appeal on this issue or should it continue with the alternative prayer for a stay? If the latter, what happens if it also loses its application for a stay? Can it then file an appeal in respect of both prayers or would the fact that it had proceeded with the second prayer amount to a step in the proceedings which is a submission to the court’s jurisdiction and preclude it from proceeding with the first prayer on appeal?

Zoom appeared to have thought that it could proceed with both prayers and, if it was unsuccessful on both, it could then appeal against both the decisions without realising that taking the step to proceed with the second prayer at first instance might well prejudice its appeal against the decision on the first prayer.

Zoom relied on Williams & Glyn’s Bank Plc v Astro Dinamico Compania Naviera SA [1984] 1 WLR 438 (“Williams”). In that case, a bank in England had commenced an action in England against two guarantors who were companies...