Global Distressed Alpha Fund I Ltd Partnership v PT Bakrie Investindo

• Jurisdiction: Singapore
• Judgment Date: 30 January 2013
• Date: 30 January 2013
• Docket Number: Originating Summons No 595 of 2011 (Registrar's Appeal No 483 of2012)
• Court: High Court (Singapore)

Global Distressed Alpha Fund I Ltd Partnership

Plaintiff

and

PT Bakrie Investindo

Defendant

[2013] SGHC 30

Tay Yong Kwang J

Originating Summons No 595 of 2011 (Registrar's Appeal No 483 of2012)

High Court

Civil Procedure—Foreign judgments—Judgments and orders—Enforcement—Judgment creditor applying for examination of judgment debtor proceedings following registration of foreign judgment—Application by judgment debtor to set aside registration of foreign judgment pending before Court of Appeal—Whether examination of judgment debtor constituted ‘execution’ for purposes of O 67 r 10 (2) (Cap 322, R5, 2006 Rev Ed)—Whether application to set aside registration order was ‘finally determined’ for purposes of O 67 r 10 (2) if appeal was still pending—Order 67 r10 (2) Rules of Court (Cap 322, R5, 2006 Rev Ed)

Global Distressed Alpha Fund I Ltd Partnership (‘the Judgment Creditor’) obtained an English judgment against PT Bakrie Investindo (‘the Judgment Debtor’) which was subsequently registered in Singapore pursuant to a registration order (‘the Registration Order’). The Judgment Creditor then successfully applied for an order to examine a director of the Judgment Debtor as to the Judgment Debtor's assets and for the director to produce all books or documents in his possession, custody or power relevant to the Judgment Debtor's assets (‘the EJD Order’).

The Judgment Debtor applied to set aside both the Registration Order and the EJD Order but the applications were dismissed before both an assistant registrar and subsequently on appeal before a High Court Judge. The Judgment Debtor then appealed to the Court of Appeal against the decisions of the High Court (‘the CA Appeals’). The CA Appeals are still pending before the Court of Appeal.

The examination of judgment debtor proceedings (‘the Relevant EJD’) then proceeded as scheduled. During the Relevant EJD before an assistant registrar, counsel for the Judgment Debtor sought to rely on O 67 r 10 (2) which states: ‘Ifan application is made to set aside the registration of a judgment, execution on the judgment shall not issue until after such application is finally determined’. Heargued that examination of judgment debtor proceedings (‘EJD’) constituted ‘execution’ for the purposes of O 67 r 10 (2) and that this provided an automatic stay of the Relevant EJD until the CA Appeals were disposed of. The assistant registrar dismissed the Judgment Debtor's arguments and the Judgment Debtorappealed.

On appeal, counsel for the Judgment Creditor argued that if an EJD constituted ‘execution’ for the purposes of O 67 r 10 (2), the application to set aside the Registration Order was in any event ‘finally determined’ within the meaning of O 67 r 10 (2), notwithstanding the pending CA Appeals. Both parties relied on various provisions of the Reciprocal Enforcement of Foreign Judgments Act (Cap 265, 2001 Rev Ed) (‘the REFJA’) and Reciprocal Enforcement of Commonwealth Judgments Act (Cap 264, 1985 Rev Ed) (‘the RECJA’) to support their interpretation of O 67 r 10 (2).

Held, dismissing the appeal:

(1) Although the REFJA and the RECJA were structured differently, both were couched in similar enough terms to make it clear that the two pieces of legislation were meant to complement each other and thus it was necessary to bring them in line with each other: at [18] .

(2) Given that O 67 r 10 adopted the wording of s 4 (5) of the REFJA, any analysis of the meaning of the word ‘execution’ should start with the meaning of ‘execution’ in the REFJA and not the RECJA: at [21] .

(3) Section 4 (4) of the REFJA, like s 3 (3) of the RECJA, dealt with the scope of the Singapore court's jurisdiction over a foreign judgment, as opposed to purely procedural matters, which was what s 4 (5) of the REFJA (and correspondingly, O 67 r 10) dealt with. It was therefore not necessarily the case that ‘execution’ in s 4 (5) of the REFJA and in O 67 r 10 should bear the same meaning as that in s 4 (4) of the REFJA: at [22] .

(4) In any event, unlike s 3 (3) (b) of the RECJA, nothing in the plain language of s 4 (4) of the REFJA required ‘execution’ to have a wide meaning in order to give effect to the legislative intention of the REFJA: at [24] .

(5) Furthermore, one had to have sufficient regard for the context in which ‘execution’ was used in O 67 r 10 (and correspondingly in s 4 (5) of the REFJA), ie, the words ‘execution ... shall not issue’. On a plain and natural reading, the word ‘issue’ in relation to ‘execution’ was likely to be shorthand for the issuing of a writ of execution or such other enforcement procedures which had similar consequences for a judgment debtor. This lent itself to the narrow construction of ‘execution’ and the EJD would not fall within this narrow meaning: at [25] .

(6) An EJD was a step taken towards the enforcement of a judgment because it was a post-judgment proceeding that furthered the successful plaintiff's interest in obtaining the fruits of his judgment. Nevertheless, the proposition that an EJD was a thing apart from the typical forms of execution was supported by the structure of the Rules of Court. Therefore, even if ‘execution’ should take on a wider meaning, then unless it was construed in its loosest sense to include any step taken towards the enforcement of a judgment, having regard to the nature of an EJD, it would still not fall within ‘execution’ in O 67 r 10: at [31] and [32] .

(7) The meaning of ‘final and conclusive’ in s 3 (3) of the REFJA could not be applied by analogy to ‘finally determined’ in O 67 r 10 (2). Section 3 (3) of the REFJA was little more than a restatement of the English common law position in relation to the recognition and enforcement of foreign judgments, where a judgment could only be so recognised and enforced in the English court if it was ‘final’ in the narrow sense that it was not interlocutory and ‘conclusive’ in the sense that if an attempt were to be made by one party to litigate the same point between the same parties in the same country, the other party could defeat the attempt by pleading res judicata:at [37] to [39] .

(8) It was deemed necessary to include s 3 (3) of the REFJA to clarify any potential ambiguity in the interpretation of ‘final’ in s 3 (2) of the REFJA, since a natural reading of ‘final’ in s 3 (2) of the REFJA suggested that it meant no further avenues for either party to raise any arguments in relation to the foreign judgment before the foreign court were available. However, there was no similar clarifying provision in relation to s 4 (5) of the REFJA (and correspondingly in O 67 r 10), which suggested that it was the natural meaning of ‘finally determined’ that was to be preferred in s 4 (5) of the REFJA (and correspondingly in O 67 r 10), ie, that no further appeals were possible: at [40] .

Cheah Theam Swee, Re [1996] 1 SLR (R) 24; [1996] 2 SLR 76 (refd)

Fagot v Gaches [1943] 1 KB 10 (folld)

Lo Kon Wah, Re; ex p Jupiter Securities Sdn Bhd [2000] 5 MLJ 180 (distd)

Riddell, Re; ex parte Earl of Strathmore (1888) 20 QBD 512 (folld)

Sassoon Ezekiel, Re [1933] MLJ 245 (folld)

Tan Patrick, Re; ex parte Walter Peak Resorts Ltd [1994] 2 SLR (R) 379; [1994] 2 SLR 728 (folld)

Udos ak Riging, Re, ex p Seabanc Kredit Sdn Bhd [1994] 3 MLJ 383 (distd)

United Overseas Bank Ltd v Thye Nam Loong (S) Pte Ltd [1994] SGHC 262 (folld)

Reciprocal Enforcement of Commonwealth Judgments Act (Cap 264, 1985 Rev Ed) s 3 (3) (consd) ;ss 3, 3 (3) (b)

Reciprocal Enforcement of Foreign Judgments Act (Cap 265, 1985 Rev Ed) s 4 (2)

Reciprocal Enforcement of Foreign Judgments Act (Cap 265, 2001 Rev Ed) ss 3 (2) , 3 (3) , 4 (4) , 4 (5) (consd)

Rules of Court (Cap 322, R 5, 2006 Rev Ed) O 67 r 10 (2) (consd) ;O 45, O 48, O 67 r 10, O 67 r 10 (1)

Bankruptcy Act 1967 (Act 360) (M'sia) s 3 (1)

Courts (Emergency Powers) Act 1939 (c 67) (UK) s1 (1)

Emmanuel Chua (Drew &amp...