Chen Aun-Li Andrew v Ha Chi Kut

• Jurisdiction: Singapore
• Judge: Kannan Ramesh JAD,Debbie Ong Siew Ling JAD,Aedit Abdullah J
• Judgment Date: 01 December 2022
• Docket Number: Civil Appeal No 31 of 2022
• Court: High Court Appellate Division (Singapore)

Chen Aun-Li Andrew

and

Ha Chi Kut (suing as the sole executrix of the estate of Khoo Ee Liam, deceased)

[2022] SGHC(A) 41

Kannan Ramesh JAD, Debbie Ong Siew Ling JAD and Aedit Abdullah J

Civil Appeal No 31 of 2022

Appellate Division of the High Court

Conflict of Laws — Foreign judgments — Enforcement — Registration of foreign collective judgment comprising order on liability on costs and subsequently issued cost certificate — Whether collective judgment was validly registered as required under s 4(1)(a) Reciprocal Enforcement of Foreign Judgments Act (Cap 265, 2001 Rev Ed) — Sections 4(1) and 4(1)(a) Reciprocal Enforcement of Foreign Judgments Act (Cap 265, 2001 Rev Ed)

Statutory Interpretation — Construction of statute — Expansion of scope of Reciprocal Enforcement of Foreign Judgments Act (Cap 265, 2001 Rev Ed) to allow for registration of “non-money judgments” by Reciprocal Enforcement of Foreign Judgments (Amendment) Act 2019 (Act 25 of 2019) — Whether legislative object and purpose of Reciprocal Enforcement of Foreign Judgments Act was altered — Reciprocal Enforcement of Foreign Judgments Act (Cap 265, 2001 Rev Ed) — Reciprocal Enforcement of Foreign Judgments (Amendment) Act 2019 (Act 25 of 2019)

Held, dismissing the application:

(1) The enforcement regime under the REFJA was based on and intended to replace the common law action on a foreign judgment. Contrary to the appellant's submissions that the purpose and legislative object of the REFJA had changed because of the Reciprocal Enforcement of Foreign Judgments (Amendment) Act 2019 (Act 25 of 2019) (the “2019 Amendment”), the parliamentary debates indicated that the 2019 Amendment sought to supplement and strengthen the existing regime, and it was not the aim of Parliament to oust or replace the common law regime. The substantive requirements for a common law action on a foreign judgment were retained in the REFJA: at [8] and [9].

(2) The legislative history of the REFJA also affirmed that the intent of the REFJA was to encapsulate the requirements under the common law to bring an action on a foreign judgment. The REFJA could be traced to the draft of the Foreign Judgments (Reciprocal Enforcement) Act 1933 (c 13) (UK) (“FJREA 1933 (UK)”), which was presented as part of a report prepared by the Foreign Judgments (Reciprocal Enforcement) Committee chaired by Lord Justice Greer (United Kingdom, Report of the Foreign Judgments (Reciprocal Enforcement) Committee (Cmd 4213, 1932) (Chairman: Sir Arthur Greer)). The enactment of the FJREA 1993 (UK) was to serve as a proxy for the common law action for the enforcement of a judgment. These requirements were imported into local jurisdiction by way of the Foreign Judgments (Reciprocal Enforcement) Ordinance 1959 (No 29 of 1959), the first iteration of the REFJA in Singapore: at [10].

(3) There was an alignment between the limitation period for a common law action for the enforcement of a foreign judgment in Singapore and the period available for the registration of a judgment under s 4(1)(a) of the REFJA, which was a period of six years. Section 7 of the REFJA, which was present as s 7 of the version of the Act prior to the 2019 Amendment, extinguished the option of enforcement at the common law to which the REFJA applied. This was to prevent a diminution of the rights at common law of foreign judgment creditors: at [11].

(4) It was observed that the 2019 Amendment introduced s 4(3A) of the REFJA, which provided for the registration of a non-money judgment if the registering court was satisfied that enforcement would be just and convenient. While various consequential amendments were made to accommodate the expanded scope of the REJFA following the 2019 Amendment, nothing in the post-2019 Amendment schema for the enforcement of a “non-money judgment” affected the registration of a “money judgment”: at [12].

(5) The Collective Judgment was a judgment within the meaning of s 4(1)(a) of the REFJA. The Cost Order was not a “money judgment”. The definition of “money judgment” was expressly provided for in s 2 of the REFJA. The Collective Judgment was only a “money judgment” on the issuance of the Cost Certificate. The Cost Certificate merged with the Cost Order, turning an inchoate obligation to pay money into a choate obligation to pay a sum of money. As the right to enforce only arose on 13 May 2020, when the sum payable was assessed under the Cost Certificate, the Collective Judgment was only a “money judgment” on that date, thereby entitling the respondent to apply for its registration within six years from that date: at [13].

Case(s) referred to

Khong Yuen Leng, Re; ex p Selberan Co Sdn Bhd [2005] 5 MLJ 22 (refd)

Poh Soon Kiat v Desert Palace Inc [2010] 1 SLR 1129 (folld)

Facts

The appellant, Mr Chen Aun-Li Andrew, was a director and sole shareholder of Aachen (Asia Pacific) Consultants Ltd (“ACL”), a company incorporated in Hong Kong. ACL commenced legal proceedings against Mr Khoo Ee Liam (“Mr Khoo”) in Hong Kong; Mr Khoo filed a counterclaim against ACL. ACL's claim was dismissed, and Mr Khoo's counterclaim was granted. Mr Khoo then successfully applied to join the appellant as a party to the action in Hong Kong for the purposes of costs. An order was issued by the Court of First Instance of the Hong Kong Special Administrative Region on 30 April 2013, stipulating that costs of the action were to be paid to Mr Khoo by ACL and the appellant (“Cost Order”). The matter was set down for taxation. Thereafter, Mr Khoo passed away and the respondent, Mdm Ha Chi Kut, obtained an order to be made a party to the suit in her capacity as the sole executrix of Mr Khoo's estate. Following the taxation of the action in Hong Kong, a cost certificate dated 13 May 2020, which was the taxing master's cost certificate, was issued (“Cost Certificate”). The Cost Order and Cost Certificate were collectively registered (“Collective Judgment”) in Singapore on 22 June 2021. The appellant unsuccessfully sought to set aside the registration of the Collective Judgment before an assistant registrar under s 5(1) of the Reciprocal Enforcement of Foreign Judgments Act (Cap 265, 2001 Rev Ed) (“REFJA”). On appeal, the appellant failed to persuade the judge in the General Division of the High Court (“Judge”) to set aside the Collective Judgment. The Judge found that the date of the Collective Judgment was that of 13 May 2020 and that the Collective Judgment was registered within the time required under s 4(1)(a) of the REFJA.

Legislation referred to

Foreign Judgments (Reciprocal Enforcement) Ordinance 1959 (No 29 of 1959)

Reciprocal Enforcement of Foreign Judgments Act (Cap 265, 2001 Rev Ed) s 4(1)(a) (consd); ss 2, 3, 3(2)(a), 3(2)(b), 4, 4(1), 4(3A), 5(1), 5(1)(a)(i), 7

Reciprocal Enforcement of Foreign Judgments (Amendment) Act 2019 (Act 25 of 2019)

Foreign Judgments (Reciprocal Enforcement) Act 1933 (c 13) (UK)

Soo Ziyang Daniel (Selvam LLC) for the appellant;

Tan Kai Liang, Mak Sushan MelissaandJonathan Kenric Trachsel (Allen & Gledhill LLP) for the respondent.

1 December 2022

Debbie Ong Siew Ling JAD (delivering the judgment of the court ex tempore):

1 This is an appeal against the decision of the judge of the General Division of the High Court (the “Judge”) in Ha Chi Kut (suing as the sole executrix of the estate of Khoo Ee Liam, deceased) v Chen Aun-Li Andrew[2023] 3 SLR 283 (the “GD”), which upheld the registration of a foreign judgment, referred to as the “Collective Judgment”, as it comprised two components:

(a) An order dated 30 April 2013 of the Court of First Instance of the Hong Kong Special Administrative Region (the “HKCFI”) – this is an order that the costs of the main action, ie, Action No 4354 of 2003 (“Action 4354”), and the counterclaim...