CPIT Investments Ltd v Qilin World Capital Ltd and another

• Court: International Commercial Court (Singapore)
• Judge: Vivian Ramsey IJ
• Judgment Date: 28 July 2017
• Neutral Citation: [2017] SGHC(I) 7
• Citation: [2017] SGHC(I) 7
• Published date: 18 August 2017
• Plaintiff Counsel: Tan Poh Ling Wendy and Chua Han Yuan, Kenneth (Morgan Lewis Stamford LLC)
• Defendant Counsel: Renganathan Nandakumar, Sharon Chong Chin Yee and Nandhu (RHTLaw Taylor Wessing LLP)
• Date: 28 July 2017
• Hearing Date: 28 July 2017
• Docket Number: Suit No 5 of 2016 (Summons No 21 of 2017)
• Subject Matter: Civil Procedure,Stay of execution

Vivian Ramsey IJ (delivering the judgment of the court ex tempore): Introduction

This judgment deals with the principles to be applied to an application to stay execution of a judgment in the Singapore International Commercial Court (“SICC”) pending an appeal.

Summons No 21 of 2017 (“the Summons”) is an application by the Second Defendant (“Qilin”) to seek a stay of execution of my judgment handed down in Suit No 5 of 2016 on 17 July 2017 (“the Stay Application”): see CPIT Investments Limited v Qilin World Capital Limited and another [2017] SGHC(I) 5 (“the Judgment”). The stay is sought until Qilin’s appeal from the Judgment in Civil Appeal No 126 of 2017 (“the Appeal”) is determined.

In the Judgment, I found there was a constructive trust in respect of proceeds which had come from an unlawful sale for HK$62.5m of the 25,000,000 shares in Millennium Pacific Group Holdings Limited (“Millennium”) that the Plaintiff (“CPIT”) had provided to Qilin in exchange for a non-recourse loan (“the Pledged Shares”), leading to HK$31.25m being held on trust by Qilin as the proceeds of the sale of the Pledged Shares (at [300(a)]). I also ordered an account be taken of the profits made by Qilin in respect of that sum held on trust (at [300(b)]).

Background

Pursuant to the terms of a consent order dated 12 February 2016 and a solicitors’ undertaking dated 15 February 2016, the sum of HK$27,532,000 is currently held in Qilin’s solicitors’ trust account as security for CPIT’s claim in these proceedings. The sum is to be released within 14 days from receipt of a written demand from CPIT’s solicitors. Given that CPIT’s solicitors have issued a written demand on 18 July 2017, the sum would be payable on 1 August 2017.

In those circumstances, Qilin now seeks a stay of the enforcement of the Judgment, in particular in relation to the solicitors’ undertaking and the sums which are held there, pending the Appeal.

The grounds on which Qilin seeks to stay the enforcement of the Judgment are set out in the affidavit of Wilbur VI Morgan James (“Mr Wilbur”) dated 21 July 2017. Mr Wilbur is a US citizen who gave evidence before me during the course of the trial. In addition, I have seen written submissions which were submitted shortly before this hearing which outlined the legal position on a stay of execution in Singapore and also set out what Qilin says are the merits of the appeal.

I therefore take those matters into account when I consider whether it is appropriate in this case to grant a stay of execution.

The applicable legal principles

The position in Singapore, similar to other common law jurisdiction, is set out succinctly by Yong Pung How CJ in Lee Sian Hee (trading as Lee Sian Hee Pork Trader) v Oh Kheng Soon (trading as Ban Hon Trading Enterprise) [1991] 2 SLR(R) 869 (“Lee Sian Hee”) at [5], which has been cited in Lian Soon Construction Pte Ltd v Guan Qian Realty Pte Ltd [1999] 1 SLR(R) 1053 at [14] and also in Denis Matthew Harte v Tan Hun Hoe and another [2001] SGHC 19 (“Denis Matthew Harte”) at [61]. Yong CJ said in Lee Sian Hee (at [5]) that:

While the court has power to grant a stay, and this is entirely in the discretion of the court, the discretion must be exercised in accordance with well-established principles (Lee Kuan Yew v Jeyaretnam Joshua Benjamin [1990] 1 SLR(R) 772). First, as a general proposition, the court does not deprive a successful litigant of the fruits of his litigation, and lock up funds to which prima facie he is entitled, pending an appeal (The Annot Lyle (1886) 11 PD 114 at 116). However, when a party is exercising his undoubted right of appeal, the court ought to see that the appeal, if successful, is not nugatory (Wilson v Church (No 2) (1879) 12 Ch D 454 at 458–459). Thus, a stay will be granted if it can be shown by affidavit that, if the damages and costs are paid, there is no reasonable probability of getting them back, if the appeal succeeds (Atkins v The Great Western Railway Co (1886) 2 TLR 400).

Those are the principles which have been applied in the subsequent cases, and they are clearly the principles which are to apply in this case in the SICC.

My decision

The first question relates to the merits of the appeal. In this case, Qilin pursues an appeal which is substantially on grounds that were not argued before me, and I consider that this is not a case where there is something in the merits of the appeal which would justify a stay, by being some special circumstances, if there were not other grounds for showing that if the damages and costs were paid, there will be no reasonable probability of getting them back.

Therefore, I concentrate, for the purpose of this application, on the question of whether if the sum of HK$27,532,000 were paid, there is “no reasonable probability of getting them back, if the appeal succeeds”, to use the words of Yong CJ in Lian See Hee ([8] supra).

In this case, the evidence I have before me is limited to the affidavit of Mr Wilbur. It is clearly the burden of the party who seeks to stay proceedings to put forward some convincing grounds in the affidavit. If those convincing grounds are put forward, then the opposing party to a stay has an obligation to put in an affidavit in response, setting out why what is said is incorrect.

In the present case,...