Djoni Widjaja v Bank of America National Trust & Savings Association

• Jurisdiction: Singapore
• Judge: Kan Ting Chiu JC
• Judgment Date: 28 September 1993
• Neutral Citation: [1993] SGHC 229
• Docket Number: Suit No 2132 of 1988 (Summons in
• Date: 28 September 1993
• Year: 1993
• Published date: 19 September 2003
• Plaintiff Counsel: Lim Chung Wei (Boey Ng & Wan)
• Citation: [1993] SGHC 229
• Defendant Counsel: K Shanmugam, Andrew Ho and Maria Ho Yin Keng (Allen & Gledhill)
• Court: High Court (Singapore)
• Subject Matter: Civil Procedure,High Court's jurisdiction to hear applications to restrain foreign proceedings,Jurisdiction,Conflict of Laws,Circumstances in which court will grant injunction to restrain,Whether foreign proceedings were vexatious or oppressive,Restraint of foreign proceedings

The plaintiff filed a claim against the defendants in Singapore. He pursued it with vigour for some time, with little success. He then filed a similar action in Indonesia and applied to discontinue the Singapore action. At that stage, the defendants applied for an injunction to prohibit him from continuing with the Indonesian proceedings. The question before me was whether he should be so restrained.

Background

The plaintiff filed these proceedings against the defendants on 20 October 1988. The plaintiff had placed US$3,427,562.81 in a time deposit account with the defendants. He claimed that on the maturity date, when he requested for payment of the principal sum and interest, the defendants failed to make the payment.

The plaintiff applied for summary judgment against the defendants. The defendants opposed the application. In affidavits filed on their behalf, they said that the plaintiff had instructed the defendants` branch in Jakarta to terminate his account and withdraw and remit US$2,200,000 to the account of one Ongky Widjaja and place the balance sum in a time deposit account, and that the defendants duly carried out these instructions.

The plaintiff denied giving the instructions and disclaimed knowledge of Ongky Widjaja. He relied on the findings reports of the Directorate of Investigation of the Republic of Indonesia Police in their investigations into the matter that Ongky Widjaja was actually one Robin E Aritonang and that the plaintiff did not issue the disputed instructions.

The assistant registrar who heard the application gave the defendants leave to defend the action on 13 March 1989. The plaintiff appealed against that decision, but his appeal was dismissed on 7 August 1990.

Subsequently, the defendants filed their defence on 15 October 1990. They admitted that the plaintiff had made the deposit. However, they claimed that on or about 7 March 1988, the plaintiff instructed the defendants` branch in Jakarta to terminate the deposit and to transfer a sum of US$2,200,000 to the account of one Ongky Widjaja. The defendants complied with these instructions and placed the balance sum of US$1,362,665.91 on a time deposit account in favour of the plaintiff.

On 20 July 1992, the plaintiff applied for an order under O 39 r 2 of the Rules of the Supreme Court to record the evidence of three witnesses in Indonesia, namely, Robin E Aritonang, IKP Suyasa and Farina Kartasasmita. IKP Suyasa is the member of the Directorate of Investigation of the Republic of Indonesia Police who reported that the plaintiff`s signature in the disputed instructions was forged. Farina Kartasasmita is the defendants` employee in Jakarta who received and acted on the disputed instructions. The reasons given for the application was that Robin E Aritonang was imprisoned in Indonesia and was unable to leave Indonesia during his sentence, and that Farina Kartasasmita ignored the plaintiff`s solicitors` letters enquiring whether she was prepared to attend court and give evidence in the case.

The application was opposed by the defendants, and was dismissed when it came on for hearing on 3 September 1992. An appeal was filed on 14 September 1992 against the dismissal. A further affidavit was filed on 21 September 1992 on behalf of the plaintiff exhibiting a letter from the plaintiff`s Indonesian solicitors stating that Robin E Aritonang was released from prison on 18 January 1992 and that he and IKP Suyasa cannot attend court in Singapore `for unclear reasons`. However, the appeal was subsequently withdrawn by the plaintiff on 3 November 1992.

On 20 November 1992 the plaintiff applied to set down the matter for trial out of time, and the application was granted on 13 January 1993. Barely a month later, the plaintiff filed another application on 15 February for leave to discontinue the proceedings as he was instituting proceedings in Indonesia `so that the full weight of evidence can be made available for the court`s decision there.`(see affidavit of Lim Chung Wei filed on 15 February 1993, para 5). This application is still pending.

The present application

The defendants applied on 16 June 1993 for an order to restrain the plaintiff from commencing or continuing any proceedings in Indonesia or elsewhere for money due on his time deposit with them.

In support of the application, the defendants filed an affidavit through Tan Seng Tin. The deponent stated that the plaintiff had already commenced proceedings against the defendants in Indonesia on or about 15 April 1993 and that some unspecified hearing was scheduled for 28 June 1993. The deponent listed three grounds for the injunction: first, Singapore is the forum conveniens, second the Indonesian proceedings are vexatious and third, that it would be unconscionable to allow the plaintiff to prosecute the Indonesian proceedings.

On the first point, it was stated that the plaintiff`s account was maintained in Singapore, the disputed instructions were carried out in Singapore, the account of Ongky Widjaya was opened and the money was withdrawn in Singapore. It was further stated that the documents on the plaintiff`s account can be produced in Singapore by the defendants.

With regard to the three Indonesian witnesses - Robin Aritonang, IKP Suyasa and Farina Kartasasmita - the deponent pointed out that the plaintiff has not explained why the first two cannot be produced in Singapore, and the third is an employee of the defendants. He complained that the Indonesian proceedings were an abuse of the Singapore court process because the Singapore proceedings have been commenced in 1988 and has been set down for hearing, and the defendants have begun work in preparation for trial by collating documents and interviewing witnesses. He also accused the plaintiff of using the Singapore courts to obtain evidence for the Indonesian proceedings.

The arguments

When the application came on for hearing before me on 23 June 1993, Mr Lim Chung Wei, counsel for the plaintiff, said that he had not been able to receive instructions from his client in Indonesia, and he applied for an adjournment. However, in view of the pending hearing in the Indonesian proceedings on 28 June, I decided to start hearing the application, while at the same time giving Mr Lim further time to take instructions before I ruled on the defendants` application.

Mr Shanmugam went through Tan Seng Tin`s affidavit. He submitted that the three grounds referred to in the affidavit is ultimately one ground in view of the Privy Council`s decision in Société NationaleIndustrielle Aerospatiale v Lee Kui Jak & Anor, 1 whether it is just and equitable to allow the plaintiff to continue the Indonesian action. He also submitted that since the defendants have to prove fraud, the plaintiff does not have to call the three Indonesian witnesses, and that Farina Kartasasmita being an employee of the defendants, will come to Singapore.

After hearing Mr Shanmugam, I adjourned the hearing for Mr Lim to get the plaintiff`s instructions. On the resumed hearing on 25 June, Mr Lim was still unable to obtain instructions from the plaintiff. Nevertheless, he made his submissions on the defendants` application and pointed out that discovery had not taken place in these proceedings.

The law

The remedy sought requires particular consideration. `There are obvious comity problems inherent in the exercise of the power to restrain foreign proceedings; for this reason it has often been said that the power must be exercised with caution`: Cheshire & North, Private International Law (12th Ed) at p 242.

This is especially so when there is some uncertainty over the circumstances in which the power should be exercised. In South Carolina Insurance Co v Assurantie NV ,2 the majority of the court agreed with Lord Brandon...