Changhe International Investments Pte Ltd and Another v Dexia BIL Asia Singapore Ltd and Others

• Jurisdiction: Singapore
• Judge: Tan Lee Meng J
• Judgment Date: 26 January 2005
• Neutral Citation: [2005] SGHC 12
• Docket Number: Suit No 63 of 2004 (Registrar's
• Date: 26 January 2005
• Year: 2005
• Published date: 27 January 2005
• Plaintiff Counsel: Leslie Yeo Choon Hsien (Leslie Yeo and Associates)
• Citation: [2005] SGHC 12
• Defendant Counsel: Sarjit Singh SC (Shook Lin and Bok)
• Court: High Court (Singapore)
• Subject Matter: Whether second action should be struck out for abuse of process,Plaintiffs subsequently commencing second action against defendants,Striking out,Plaintiffs attempting to admit statement of claim from first action in second action,Civil Procedure,First plaintiff's first action against first defendant dismissed for failure to comply with peremptory order

26 January 2005

Tan Lee Meng J:

1 The first defendant, Dexia BIL Asia Singapore Limited (“Dexia”), formerly known as Banque International A Luxembourg BIL (Asia) Ltd (“Banque Luxembourg”), appealed against the dismissal of its application to strike out the Statement of Claim of the first plaintiff, Changhe International Investments Pte Ltd (“Changhe”), and the second plaintiff, Yangyun, on the grounds that it is an abuse of the process of the court and/or is scandalous, frivolous or vexatious and/or discloses no reasonable course of action. I allowed the appeal and now give the reasons for my decision.

Background

2 The starting point for any discussion of the appeal must be Suit No 1725 of 1999 (“the first suit”), which was commenced by Changhe against Banque Luxembourg in December 1999. In this suit, Changhe claimed the sum of US$10m from the bank on the ground that this sum was transferred out of its account in breach of the mandate and express instructions that it gave to the bank. On 8 March 2000, that claim was dismissed with costs by Ms Thian Yee Sze, who was then an assistant registrar, because of a breach by Changhe of an “unless order” with respect to the filing of a list of documents by 2 March 2000.

3 Changhe’s counsel did not appeal against the order dismissing the first suit. Subsequently, Changhe appointed new solicitors, who decided to apply to set aside the order dismissing the first suit. At the hearing of this application on 14 June 2000, Banque Luxembourg’s counsel asserted that what Changhe was in fact trying to do was to have one assistant registrar overturn an order of another assistant registrar when the proper course of action would have been to appeal against the order dismissing the first suit. Ms Vivian Wong, the then assistant registrar who heard the application, agreed and dismissed Changhe’s application without hearing the merits. Changhe appealed to a judge in chambers. Amarjeet Singh JC dismissed the appeal and said that Changhe “could not re-litigate the same matter save by way of appeal”. Changhe’s appeal against the judicial commissioner’s decision was dismissed by the Court of Appeal on 18 January 2001.

4 Three years later, on 20 January 2004, after Banque Luxembourg had changed its name to Dexia, Changhe issued a new Writ of Summons (“the second suit”) against the bank. It is evident that the second suit concerns the same causes of action as those pleaded in the first suit. Essentially, what is different about the second suit is the inclusion of the second plaintiff and the second and third defendants. The inclusion of additional defendants is now academic because as far as they are concerned, Changhe allowed the new Writ to lapse.

5 Dexia’s lawyers applied to strike out the second suit and when this failed, they lodged the present appeal.

The appeal

6 At the outset, it ought to be noted that although Changhe added two other defendants in the second suit, it took no concrete steps to advance its case against the second and third defendants, sought no substantial relief against them, and allowed the Writ to lapse as far as these two defendants were concerned.

7 At the hearing of the appeal, Changhe’s counsel accepted that the second suit was identical to the first suit. In his written submissions, he stated:

It is not disputed by the Plaintiffs that apart from the inclusion of the 2nd Plaintiff, the...