Eleven Gesellschaft Zur Entwicklung Und Vermarktung Von Netzwerktechonologien MBH v Boxsentry Pte Ltd
Jurisdiction | Singapore |
Judge | Tan Siong Thye J |
Judgment Date | 20 October 2014 |
Neutral Citation | [2014] SGHC 210 |
Court | High Court (Singapore) |
Docket Number | Suit No 677 of 2012 (Registrar’s Appeal Nos 292 and 293 of 2013) |
Published date | 31 October 2014 |
Year | 2014 |
Hearing Date | 17 October 2013,22 August 2014,22 April 2014,22 May 2014,29 November 2013 |
Plaintiff Counsel | Sarbit Singh Chopra and Nur Rafizah bte Mohamed Abdul Gaffoor (Selvam LLC) |
Defendant Counsel | Pateloo Eruthiyanathan Ashokan and Sheryl Cher (KhattarWong LLP) |
Subject Matter | Conflict of laws,foreign judgments,enforcement,defences,Civil procedure,jurisdiction,inherent |
Citation | [2014] SGHC 210 |
The appellant was Boxsentry Pte Ltd (“Boxsentry”), a Singapore-incorporated company, while the respondent was Eleven Gesellschaft Zur Entwicklung Und Vermarktung Von Netzwerktechonologien MBH (“Eleven”). They had entered into a Partner Agreement (“the PA”) to integrate Eleven’s “eXpurgate” spam filter and email categorisation service (collectively referred to as the “eXpurgate service”) into Boxsentry’s “RealMail” application. Under the PA, Boxsentry had guaranteed quarterly revenue payments for the first three years to Eleven for the use of the eXpurgate service.
Boxsentry made payment to Eleven for the first and second quarters of the first year. However, it failed to make payment for the third and fourth quarters of that year. Subsequently, Eleven sued Boxsentry in Berlin, Germany, and obtained a default judgment (“the Berlin default judgment”) against Boxsentry as it had failed to respond to Eleven’s claim. Subsequent events led Eleven to take out a Writ of Summons in Singapore so as to enforce the Berlin default judgment. In the meantime, Boxsentry took out a summons to stay the enforcement proceedings.
At the hearing below, the Assistant Registrar (“AR”) granted Eleven’s summary judgment application which would allow the enforcement of the Berlin default judgment in Singapore. The latter’s stay application was dismissed. Boxsentry appealed against both the decisions.
I heard both Registrar’s Appeal No 292 of 2013 (“RA 292”) and Registrar’s Appeal No 293 of 2013 (“RA 293”). In RA 292, Boxsentry appealed against the dismissal of the stay application by the AR. In RA 293, it appealed against the grant of summary judgment by the same AR. I dismissed both the appeals.1 Boxsentry is dissatisfied with my decisions and has appealed against them. I now give my reasons for my decisions.
The factsBoxsentry and Eleven were involved in the supply of information technology services. Central to this dispute was the PA entered into by them on 27 November 2007.
Under the terms of the PA, Boxsentry agreed to integrate Eleven’s eXpurgate service into its “RealMail” application. The bundled application would then be sold to certain specified territories where Boxsentry operated in.2 Those territories were the Asia Pacific region and the Middle East.3 For the provision of its services, Eleven was guaranteed revenue payments under cl 5 of the PA for the first year, second year and third year. Clause 5 read as follows:4
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The terms of payment were contained in cl 6 of the PA which read as follows:
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Boxsentry had paid Eleven for the first and second quarters of the first year under the PA. Those payments were €15,000 and €25,000 respectively.6 However, Boxsentry failed to make payment for the third and fourth quarters. The facts below illustrate the sequence of events that took place between Boxsentry and Eleven after the first and second quarter payments.
On 6 August 2008, Eleven sent an invoice for the third quarter payment to Boxsentry. The latter did not reply.7 Eleven subsequently sent an email to Boxsentry on 29 October 2008 to remind Boxsentry of its obligations to make payment for the third quarter within the next 14 days.8 Boxsentry eventually replied Eleven, stating that the eXpurgate service had not performed up to expectations. Boxsentry also alleged that this problem had been raised to Eleven on several occasions but to no avail. This had caused damage to Boxsentry’s reputation.9 For that reason, Boxsentry rescinded the PA on the ground of misrepresentation.10
On 20 November 2008, Eleven sent an email to Boxsentry, stating that there was no legal basis for a premature termination of the PA or a cessation of the business relationship between them.11 Eleven also demanded Boxsentry to make the payments for the third and fourth quarters. Boxsentry replied in its email dated 15 December 2008 that it would not make any further payment.12
Under the PA, German law governed the PA and the parties had agreed to submit to the Berlin court’s exclusive jurisdiction.13 On that basis, Eleven commenced legal action again Boxsentry in Berlin on 19 February 2009. Subsequently, German court documents were served on Boxsentry in Singapore informing it that legal proceedings had been commenced by Eleven against it.
Boxsentry ignored the Berlin legal proceedings. Accordingly, Berlin Regional Court issued the default judgment against Boxsentry. That judgment was served on Boxsentry but it continued to ignore the Berlin legal proceedings. When Eleven issued a letter of demand to enforce the default judgment in Singapore, Boxsentry again failed to respond.
The present proceedingsExasperated, Eleven commenced the present proceedings in Singapore to enforce the Berlin default judgment under the common law. The Writ of Summons, together with the endorsed Statement of Claim, was served on Boxsentry, which finally entered its appearance on 24 August 2012. It filed its defence and counterclaim against Eleven on 12 September 2012.14 On 27 September 2012, Eleven filed an application for a stay of proceedings in relation to Boxsentry’s counterclaim. The parties agreed to this application. Accordingly, the court granted the stay in relation to Boxsentry’s counterclaim by consent on 22 October 2012.15
On 23 November 2012, Eleven applied for summary judgment under O 14 r 1 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) (“ROC”) in Summons No 6024 of 2012 (“SUM 6024”) against Boxsentry. This was to enforce the Berlin default judgment.16 Boxsentry retaliated by commencing Civil Action Case No 98 O9/13 in Berlin to set aside the Berlin default judgment and to restrain Eleven from enforcing the Berlin default judgment (“the Berlin restrain action”).17 It also filed an application to stay the present action in Summons No 3974 of 2013 (“SUM 3974”) pending the outcome of the Berlin proceedings. The AR granted Eleven its application for summary judgment and dismissed Boxsentry’s application for a stay of proceedings. Boxsentry appealed against both his orders.18
Boxsentry’s restrain action in Berlin to prevent Eleven from enforcing the Berlin’s default judgment in SingaporeSubsequently, the Berlin restrain action was heard in the Berlin High Court on 1 April 2014. The Berlin High Court ruled against Boxsentry on 13 May 2014.19 Boxsentry filed an appeal on 13 June 2014 (“the Berlin appeal”). In its appeal, Boxsentry sought to set aside the Berlin judgment as well as another default judgment (see [28(i)] and [43]) issued against it and also to transfer the case to be heard before the Senate. If it again failed in its action, Boxsentry then would ask for its case to be transferred to the Federal Supreme Court of Germany.20 Boxsentry informed me that the appeal would be heard in Berlin at the end of October 2014 or in early November 2014.21
The issues before me The issues on appeal were thus twofold:
At the hearing below, the AR dismissed Boxsentry’s stay application. He held that while international comity was an important consideration, he had to consider two issues. First, whether Boxsentry’s application to restrain Eleven from enforcing the Berlin default judgment in Singapore was
Boxsentry’s appeal was founded on two grounds. The first was based on s 18 of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) (“SCJA”) read with para 9 of the First Schedule. The second was premised on the inherent jurisdiction of the court under O 92 r 4 of the ROC.23
Boxsentry’s case premised on the Supreme Court of Judicature Act On its first submission, Boxsentry’s case was that a stay of the present proceedings should be granted as:24
Boxsentry submitted that a limited stay had been granted before, for example, in
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