Global Distressed Alpha Fund I Ltd Partnership v PT Bakrie Investindo

• Jurisdiction: Singapore
• Judge: Tay Yong Kwang J
• Judgment Date: 30 January 2013
• Neutral Citation: [2013] SGHC 30
• Court: High Court (Singapore)
• Docket Number: Originating Summons No. 595 of 2011 (Registrar’s Appeal No. 483 of 2012)
• Year: 2013
• Published date: 04 February 2013
• Hearing Date: 17 December 2012
• Plaintiff Counsel: Emmanuel Chua (Drew & Napier LLC)
• Defendant Counsel: Suresh Damodara (Damodara Hazra LLP)
• Subject Matter: Civil Procedure,Foreign Judgments,Judgments and Orders,Enforcement
• Citation: [2013] SGHC 30

Tay Yong Kwang J: Introduction

This case turns on the interpretation of O 67 r 10(2) of the Rules of Court (the “Rules”). The appellant/judgment debtor, PT Bakrie Investindo (“Bakrie”), is appealing against the dismissal of an application to adjourn the examination of judgment debtor proceedings (“EJD”) granted in favour of the respondent/judgment creditor, Global Distressed Alpha Fund I Limited Partnership (“GDAF”).

This appeal raises two issues in relation to O 67 r 10(2): first, whether an EJD comes within the meaning of “execution” for the purposes of O 67 r 10(2); and second, whether an application to set aside a registration of a foreign judgment registered under the Reciprocal Enforcement of Commonwealth Judgments Act (Cap 264) (“RECJA”) is considered “finally determined” for the purposes of O 67 r 10(2) if the application is pending hearing before the Court of Appeal.

The relevant provision

Order 67 r 10 reads as follows: (1) Execution shall not issue on a judgment registered under the [Reciprocal Enforcement of Commonwealth Judgments Act (Cap 264)] or [Reciprocal Enforcement of Foreign Judgments Act (Cap 265)] until after the expiration of the period which, in accordance with Rule 5(2), is specified in the order for registration as the period within which an application may be made to set aside the registration or, if that period has been extended by the Court, until after the expiration of that period as so extended. (2) If an 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. (3) Any party wishing to issue execution on a judgment registered under the [Reciprocal Enforcement of Commonwealth Judgments Act (Cap 264)] or [Reciprocal Enforcement of Foreign Judgments Act (Cap 265)] must produce to the Sheriff an affidavit of service of the notice of registration of the judgment and any order made by the Court in relation to the judgment.

Factual background

On 17 February 2011, GDAF obtained an English judgment against Bakrie (the “English Judgment”). On 18 July 2011, the English Judgment was registered in Singapore pursuant to s 3 of the RECJA and a registration order was granted (the “Registration Order”).

On 14 June 2012, GDAF successfully applied for an order to examine a director of Bakrie, Mr Kurniawan, as to Bakrie’s assets and for Mr Kurniawan to produce all books or documents in his possession, custody or power relevant to Bakrie’s assets (the “Bakrie EJD Order”).

Bakrie applied to set aside the Registration Order and the Bakrie EJD Order but was unsuccessful at the hearing before the assistant registrar on 24 September 2012 and subsequently on appeal before Woo Bih Li J on 31 October 2012. Bakrie has appealed to the Court of Appeal against the decision of Woo Bih Li J (the “CA Appeals”).

On 5 November 2012, Bakrie’s solicitors wrote to the registry to inform that Bakrie had filed the notices for the CA Appeals and requested an adjournment of the examination of Mr Kurniawan until after the CA Appeals have been disposed off. On 6 November 2012, the assistant registrar rejected this request and directed that the EJD proceed before her on the same day, as scheduled (the “Bakrie EJD”).

During the Bakrie EJD (at which Mr Kurniawan was absent), counsel for Bakrie, Mr Suresh Damodara (“Mr Damodara”), argued that an EJD constitutes “execution” for the purposes of O 67 r 10(2) and that this provided an automatic stay of the Bakrie EJD until after the disposal of the CA Appeals.

On 21 November 2012, the assistant registrar dismissed Bakrie’s arguments and Bakrie appealed to a Judge. On 17 December 2012, I heard the parties and dismissed Bakrie’s appeal. Bakrie has appealed to the Court of Appeal against my decision.

Does an EJD constitute “execution” for the purposes of O 67 r 10(2)? The parties’ submissions

Relying on Re Cheah Theam Swee, ex parte Equiticorp Finance Group Ltd and another [1996] 1 SLR(R) 24 (“Re Cheah Theam Swee”), Mr Damodara argued that “execution” should be given a wide meaning so as to achieve consistency between the use of “execution” in s 3(3) of the RECJA and O 67.¹ Mr Damodara submitted that this wide meaning of “execution” would encompass the enforcement of, or giving effect to, the judgments or orders of a competent court through the use of procedures such as an EJD.²

Conversely, counsel for GDAF, Mr Emmanuel Chua (“Mr Chua”), contended that “execution” should be given a narrow meaning so as to give full effect to the legislative intention behind the RECJA, ie to facilitate the enforcement and recognition in Singapore of Commonwealth judgments to which the RECJA applied.³ For this proposition, he also relied on Re Cheah Theam Swee as well as an analysis of the nature of an EJD.⁴ On that basis, he argued that “execution” in O 67 r 10(2) referred only to the various modes of execution provided by the Rules, such as garnishee proceedings and writs of seizure and sale.⁵

However, by way of observation, I note that although both sides have invited me to adopt meanings of “execution” that represent extreme ends along a spectrum of possible meanings, one cannot exclude the possibility that the correct interpretation of “execution” may lie somewhere along this spectrum.

The meaning of “execution” in O 67 r 10

In Re Cheah Theam Swee, the question arose as to whether a bankruptcy notice could be taken out on a Commonwealth judgment registered in Singapore under the RECJA. Section 3(3) of the RECJA provides: (3) Where a judgment is registered under this section —

...

(b) the registering court shall have the same control and jurisdiction over the judgment as it has over similar judgments given by itself, but in so far only as relates to execution under this section;

...

(emphasis added)

The crux of that dispute was whether “execution” in s 3(3)(b) of the RECJA was wide enough to encompass bankruptcy proceedings. In arriving at his decision, Warren Khoo J felt it was necessary to consider the legislative intention of the RECJA (at [18]):

It is the evident object and purpose of the [RECJA] to facilitate the enforcement of judgments obtained in the superior courts of the United Kingdom and other Commonwealth countries to which the [RECJA] is extended. ...

Warren Khoo J went on to say (at [21], [25] and [26]): 21 As pointed out by the learned editors of Halsbury’s Laws of England vol 17 (Butterworths, 4th Ed) at para 401, the word “execution” can mean one of two things. In its wide sense, it signifies the enforcement of or giving effect to the judgements or orders of courts of justice. In its narrower sense, it means the enforcement of those judgments or orders by a public officer under the various modes of execution provided by rules of court, such as writs of fi fa, possession, delivery.

...

25 It follows that when considering the question whether bankruptcy proceedings may be taken on a registered judgment on the strength of sub-s (3), the question to be asked is not whether such proceedings are a form of "execution" in the sense, for example, that a writ of seizure and sale is a form of execution. The relevant question, rather, is whether they are proceedings properly taken on the registered judgment as a final and conclusive judgment, as opposed to proceedings seeking to impeach the existence or validity of the judgment. 26 For these reasons, I would hold that on a proper construction of these provisions of the Act a bankruptcy notice can be founded upon a judgment registered under the Act.

(emphasis added)

Warren Khoo J also held (at [24]) that the purpose of adding the qualification “but in so far only as relates to execution under this section” in s 3(3)(b) of the RECJA was merely to prevent a judgment debtor from attempting to impeach the registered judgment in Singapore rather than before the original court that heard the substantive dispute. In this context, the judge opined that “execution” in s 3(3)(b) of the RECJA has the wide meaning (ie the meaning as contended by Bakrie) rather than the narrow meaning (ie the meaning contended by GDAF) since the RECJA does not refer to the various modes of execution of a registered judgment.

However, Re Cheah Theam Swee is not the only local case on that issue. In Re Cheah Theam Swee, Warren Khoo J referred with approval to Re Loo Choon Beng (unreported) and Re Tan Patrick, ex parte Walter Peak Resorts Ltd (in receivership) [1994] 2 SLR(R) 379 (“Patrick Tan”), where the court in both cases also had to consider the question whether bankruptcy proceedings could properly be taken out on a Commonwealth judgment in the light of s 3(3) of the RECJA. In fact, Warren Khoo J (at [28]) asserted that the court in the other two cases had reached the same conclusion as he did by a different route and that all these decisions would result in a uniformity of treatment of judgments registered under the RECJA and the Reciprocal Enforcement of Foreign Judgments Act (“REFJA”) (which relates to the recognition and enforcement in Singapore of foreign judgments of certain countries to which the REFJA applied).

In Patrick Tan, Lai Kew Chai J opined (at [6]) that s 4(2) of the REFJA (Cap 265, 1985 Rev Ed) ⁶, assisted in the contextualisation of s 3(3) of the RECJA. This was because the REFJA and the RECJA, although structured differently, 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.

This...