Eng Liat Kiang v Eng Bak Hern

• Jurisdiction: Singapore
• Judgment Date: 11 August 1995
• Date: 11 August 1995
• Docket Number: Civil Appeal No 174 of 1994
• Court: Court of Appeal (Singapore)

Eng Liat Kiang

Plaintiff

and

Eng Bak Hern

Defendant

[1995] SGCA 62

Yong Pung How CJ

,

M Karthigesu JA

and

L P Thean JA

Civil Appeal No 174 of 1994

Court of Appeal

Civil Procedure–Jurisdiction–Immovable properties situated in Malaysia–Claim based on equity–Singapore court's jurisdiction over claims involving immovable properties in Malaysia–Conflict of Laws–Natural forum–Applicable test for forumnon conveniens–Claims alleging that immovable properties in Malaysia and shares in Malaysian companies held on trust–Whether Singapore court appropriate forum for trial

On 28 April 1994, the appellant commenced an action in the High Court claiming, inter alia, a declaration that the respondent held on trust for him: (a) the shares in certain companies, all registered in the respondent's name and/or held by him; (b) 27 Victoria Park, Singapore, registered in the respondent's name; and (c) the respondent's interest in various parcels of land in West Malaysia. Subsequently, the respondent applied by notice of motion in the High Court for an order that the claims in relation to the shares in two companies as well as the various parcels of land in Malaysia be stayed on the ground that the Singapore court has no jurisdiction in relation to the claims for the immovable properties as they were situated abroad, or alternatively, on the ground offorum non conveniens.

On the first ground, the learned judge found that on the basis of the statement of claim, the appellant appeared to rely on an express trust, or alternatively, a resulting trust. Since the appellant's claim arose in equity, the court had jurisdiction over the matter even though the proceedings were concerned with foreign immovable properties. As regard the alternative ground as the basis for stay of proceedings, having considered all the relevant factors, the learned judge held that the respondent had discharged the burden of showing that Singapore was not the natural or appropriate forum for the trial of the claims involving the Malaysian lands and shares and that the Malaysian court was clearly the more appropriate forum. The learned judge also held that there were no circumstances by reason of which justice required that a stay of such claim should be refused. Accordingly, she allowed a stay. The appellant appealed.

Held, dismissing the appeal:

(1) It was not disputed that the appellant's claim in relation to the Malaysian land was that of an express or alternatively a resulting trust. The general rule was that the court had no jurisdiction to entertain proceedings principally concerned with a question of the title to, or the right of possession of, immovable property situate out of England, except, inter alia, where the action was based on a contract or equity between the parties: at [11] and [12].

(2) The lex situs did not prohibit the enforcement of a court order and thus jurisdiction could be exercised by a Singapore court; the National Land Code, the legislation governing title to land in Malaysia, recognised trust over land in certain situations, and the guidelines of the Foreign Investment Committee (“FIC”) of Malaysia did not prohibit or nullify the actual act of executing the transfers but were directed at the effect of the transfers executed by the respondent. In any event, the main relief which the appellant sought was a declaration of his interest. Accordingly, the learned judge was right and the respondent's contention that the court had no jurisdiction to determine the claims of the appellant involving the immovable properties in Malaysia was rejected: at [16], [17] and [18].

(3) Two tests had been laid down for forum non conveniens. The first was that as set out in Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460 (“Spiliada”) and the other test was that propounded in the judgment of Deane J of the High Court of Australia in Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197, at 241. On authority and on principle, the test to apply in Singapore was that laid down in Spiliada. The underlying basis in that test was whether the local court was clearly an appropriate forum or not and whether there was another forum which was distinctly and clearly more appropriate. It had a more liberal approach which cut down parochialism as regards judicial adjudication and attached greater importance to considerations of international comity: at [19] and [25].

(4) Although the nationality and place of residence of the parties were relevant, they were not the only factors to be taken into account in deciding whether Singapore was the appropriate forum. The jurisdiction of the court was not based on the nationality and residence of the parties alone. Great weight should also be attached to the location of the subject matters in dispute and the undesirability of a Singapore court in deciding issues involving ownership of land in Malaysia. In addition, there may be complexities involved in the enforcement of the trust in Malaysia, if the court declared there to be one. In any event, the respondent would be carrying on with the proceedings in Malaysia in relation to the Malaysian lands even if the court refused to grant a stay of proceedings in Singapore and there would inevitably be some duplication of proceedings: at [34].

(5) Having considered all the relevant factors such as, inter alia, the location of the properties, the lex causae and the place where a substantial portion of the facts relating to the transfer of the trust properties took place, the respondent had discharged the burden of showing that Singapore was not the natural or appropriate forum and that the Malaysian court was clearly the more appropriate forum for the trial of the claims involving the Malaysian properties. In the result, the appeal was dismissed: at [26], [28], [29] and [35].

Brinkerhoff Maritime Drilling Corp v PT Airfast Services Indonesia [1992] 2 SLR (R) 345; [1992] 2 SLR 776 (folld)

Companhia de Mocambique v British South Africa Company [1892] 2 QB 358 (refd)

Cook Industries Inc v Galliher [1979] Ch 439 (refd)

Courtney, Re;Ex parte Pollard (1840) Mont & Ch 239; [1835-1842] All ER Rep 415 (refd)

Fitzgerald, In re;Surman v Fitzgerald [1904] 1 Ch 573 (distd)

Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197 (not folld)

Penn v Baltimore (1750) 1 Ves Sen 444 (folld)

Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460 (folld)

Voth v Manildra Flour Mills Proprietary Limited (1990) 171 CLR 538 (not folld)

Webb v Webb [1991] 1 WLR 1410; [1992] 1 All ER 17 (refd)

Companies Act (Cap 50,1994 Rev Ed)s 216

Companies Act 1965 (No 79 of 1965) (M'sia)ss 134, 135, 181 (2) (e)

Wong Meng Meng, Ho Kah Hui and Joy Tan (Wong Partnership) for the appellant

K Shanmugam and Suresh Nair (Allen & Gledhill) for the respondent.

Judgment reserved.

L P Thean JA

(delivering the judgment of the court):

1 This is an appeal against the decision of Judith Prakash JC in which she allowed an application for an order that the action in relation to certain properties situate in Malaysia be stayed on the ground of forum non conveniens. The material facts that have given rise to the application and this appeal are as follows.

2 The appellant is the father of the respondent. Together with Eng Hwee Cheng (another of the appellant's children) and Tan Sock Hian (“the appellant's wife”) they have interests in various companies, including Sin Heng Chan (1960) Pte Ltd (“SHCPL”), a company incorporated in Singapore, Sin Heng Chan (Malaya) Sdn Bhd (“SHC (Malaya)”), a public listed company incorporated in Malaysia, and Eng Heng Holdings Sdn Bhd (“EHSB”), another company incorporated in Malaysia. On 9 April 1994, the respondent commenced oppression proceedings under s 216 of the Companies Act (Cap 50, 1994 Rev Ed) naming,inter alios, the appellant as one of the parties, and alleging oppression against the respondent in respect of the affairs of SHCPL. On the same day, the respondent's sister, Eng Hui Cheng, also commenced similar proceedings separately in relation to the affairs of SHCPL. Further, both the respondent and his sister jointly commenced legal proceedings in Malaysia under s 181 (2) (e) of the Malaysian Companies Act 1965, alleging oppression against them in respect of the affairs of EHSB. Although the petition was filed on 13 April 1994, it has yet to be served on the appellant who is ordinarily resident outside Malaysia.

3 On 28 April 1994, the appellant commenced an action in the High Court claiming, inter alia, a declaration that the respondent holds on trust for him:

(a) the shares in SHCPL, SHC (Malaya), EHSB and Finavest Ltd, a company incorporated in Hong Kong, all registered in the respondent's name and/or held by him;

(b) 27 Victoria Park, Singapore, registered in the respondent's name; and

(c) the respondent's interest in various parcels of land in West Malaysia.

4 Subsequently, the respondent applied by notice of motion in the High Court for an order that the claims in relation to the shares in SHC Malaya and EHSB as well as the various parcels of land in Malaysia be stayed on the ground that the Singapore court has no jurisdiction in relation to the claims for the immovable properties as they are situated abroad, or alternatively, on the ground of forum non conveniens.

Decision below

5 On the first ground the learned judge found that on the basis of the statement of...