CPIT Investments Ltd v Qilin World Capital Ltd

JurisdictionSingapore
CourtHigh Court (Singapore)
JudgeVivian Ramsey IJ
Judgment Date28 July 2017
Date28 July 2017
Docket NumberSuit No 5 of 2016 (Summons No 21 of 2017)

[2017] SGHC(I) 7

Singapore International Commercial Court

Vivian Ramsey IJ

Suit No 5 of 2016 (Summons No 21 of 2017)

CPIT Investments Ltd
and
Qilin World Capital Ltd and another

Tan Poh Ling Wendy and Chua Han Yuan, Kenneth (Morgan Lewis Stamford LLC) for the plaintiff;

Renganathan Nandakumar, Sharon Chong Chin Yee and Nandhu (RHTLaw Taylor Wessing LLP) for the defendants.

CPIT Investments Ltd v Qilin World Capital Ltd [2017] 5 SLR 1 (refd)

Denis Matthew Harte v Tan Hun Hoe [2001] SGHC 19 (refd)

Lee Sian Hee v Oh Kheng Soon [1991] 2 SLR(R) 869; [1992] 1 SLR 77 (folld)

Lian Soon Construction Pte Ltd v Guan Qian Realty Pte Ltd [1999] 1 SLR(R) 1053; [1999] 2 SLR 233 (refd)

Naseer Ahmad Akhtar v Suresh Agarwal [2015] 5 SLR 1032 (refd)

Civil Procedure — Judgments and orders — Partial stay pending conclusion of application to Court of Appeal — Application for stay of execution pending appeal made and dismissed — Second defendant intending to apply to Court of Appeal for full stay — Second defendant's solicitors' undertaking provided for sum held in their trust account to be released within 14 days of receipt of written demand from plaintiff's solicitors — Whether partial stay pending conclusion of application to Court of Appeal should be granted

Civil Procedure — Judgments and orders — Stay of execution pending appeal — Court's discretion to grant stay — Plaintiff found to possess assets of about HK$70m — Both parties incorporated in British Virgin Islands — Whether there was serious risk of second defendant's appeal being rendered nugatory even if it succeeded on appeal — Whether second defendant discharged its burden of showing that there was no reasonable probability of sum paid over to plaintiff being returned if it succeeded on appeal

The plaintiff and the second defendant were both companies incorporated in the British Virgin Islands (“BVI”). The plaintiff had brought a claim against the second defendant for selling off the 25 million shares in Millennium Pacific Group Holdings Limited (“Millennium”) over which the plaintiff had provided that the second defendant should have control in exchange for a non-recourse loan of HK$31.25m. 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 was held in the second defendant's solicitors' trust account as security for the plaintiff's claim in these proceedings. This sum was to be released within 14 days from receipt of a written demand from the plaintiff's solicitors.

In the trial judgment, the court found that the second defendant held HK$31.25m on trust for the plaintiff, representing the proceeds from the second defendant's wrongful sale of the Millennium shares. The court also ordered an account from the second defendant of any profit which it had made from using the sale proceeds. The second defendant appealed against the trial judgment. The plaintiff's solicitors issued a written demand on 18 July 2017. The sum of HK$27,532,000 was thus payable on 1 August 2017.

The second defendant applied to court for a stay of execution of the judgment pending appeal. Its main argument was that if a stay was not granted, there was a serious risk of the second defendant's appeal being rendered nugatory even if it succeeded on appeal as the plaintiff lacked the assets to pay back the HK$27,532,000.

Immediately after the dismissal of the summons, the second defendant made an oral application for a partial stay of execution of the judgment pending the conclusion of its application to the Court of Appeal for a full stay of execution.

Held, dismissing the application for a full stay of execution and the oral application for a partial stay of execution:

(1) The court, in exercising its discretion to grant a stay of execution pending an appeal, ought to see that the appeal, if successful, was not rendered nugatory. Hence, the court would grant the stay only if the second defendant could show by affidavit that there was no reasonable probability of the second defendant getting back its damages and costs paid over even if its appeal succeeded: at [8], [9] and [11].

(2) The merits of the second defendant's appeal alone was not a special circumstance that could justify the grant of the stay without there being any other ground for showing that there was no reasonable probability of the second defendant getting back the sum paid over to the plaintiff: at [10].

(3) The affidavit evidence presented by the second defendant showed that as at the end of April 2017, the plaintiff had assets of about HK$70m. This comprised the sum of HK$66m received by the plaintiff from the sale of 993,000,000 of the plaintiff's shares in Millennium, and the sum of some HK$3.9m, which was the value of the plaintiff's remaining Millennium shares. Thus, it could not be said that there was no reasonable probability of the HK$27,532,000 from the second defendant's solicitors' account being returned to the second defendant if its appeal succeeded: at [14] to [16].

(4) The fact that there were parties from foreign jurisdictions before the court was not in itself sufficient ground for there to be a stay of execution of a judgment pending appeal. This had to be so for matters in the Singapore International Commercial Court...

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1 cases
  • Offshoreworks Global (L) Ltd v POSH Semco Pte Ltd
    • Singapore
    • Court of Three Judges (Singapore)
    • 22 Septiembre 2020
    ...Agam [2019] 1 SLR 83 (refd) Bulk Trading SA v Pevensey Pte Ltd [2015] 1 SLR 538 (refd) CPIT Investments Ltd v Qilin World Capital Ltd [2017] 5 SLR 148 (refd) Gay Choon Ing v Loh Sze Ti Terence Peter [2009] 2 SLR(R) 332; [2009] 2 SLR 332 (folld) Ma Hongjin v SCP Holdings Pte Ltd [2020] SGCA ......

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