Hong Pian Tee v Les Placements Germain Gauthier Inc

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 28 March 2002
• Neutral Citation: [2002] SGCA 18
• Published date: 04 May 2004
• Court: Court of Appeal (Singapore)

Between

Hong Pian Tee ... Appellant

And

Les Placements Germain Gauthier Inc ... Respondents

In Suit No. 229 of 2000/S

Between

Les Placements Germain Gauthier Inc ... Plaintiffs

And

Hong Pian Tee ... Defendant

Citation:	Civil Appeal No 600101 of 2001
Jurisdiction:	Singapore
Date:	2002:01:22
Court:	Court of Appeal
Coram:	Tan Lee Meng, J
Counsel:	Manjit Singh and Sree Govind Menon (Manjit & Partners) for appellant
	Siva Murugaiyan and Ms Parveen Kaur Nagpal (Colin Ng & Partners) for respondents

[Delivered by Chao Hick Tin JA]

HEADNOTES

Conflict of Laws – Enforcement of foreign judgment – Applicable principles –Conclusiveness of foreign judgment – Whether application for summary judgment can be made – When local court will refrain from enforcing foreign judgment

Conflict of Laws

– Enforcement of foreign judgment – Allegation that foreign judgment procured by fraud – Approach to be taken by court – Whether there was any new evidence of fraud

Facts

The respondent ("Les Placements") was a Canadian company which entered into a loan agreement ("the Loan Agreement") with a Singapore company, Wiraco Trading Pte Ltd ("Wiraco"), in 1995. At the time of the Loan Agreement, the President of Les Placements was one Mr Germain Gauthier ("Germain"). Under the terms of the Agreement, Les Placements was to lend Wiraco C$350,000 and the appellant ("Hong") gave Les Placements a guarantee to ensure the repayment of the loan. Wiraco subsequently defaulted in repaying the loan and Les Placements commenced proceedings against it and Hong in the Superior Court of the District of Montreal, Quebec, Canada. At the trial, Hong alleged that he never guaranteed a loan from Les Placements to Wiraco. Instead, he claimed that either the guarantee he executed related to a personal loan from Germain to Wiraco which was never effected, or that the arrangement was that Germain was to extend a personal loan to him. The thrust of his defences was therefore that there was no privity of contract between Hong and Les Placements. The Canadian Court rejected Hong’s defences and held that in relation to the loan transaction, Germain was not acting for himself but on behalf of Les Placements, and that the guarantee was addressed to him as the head of Les Placements. It then held that both Hong and Wiraco were jointly and severally liable to Les Placements for C$360,645 plus interest and costs. Dissatisfied with this decision, Hong and Wiraco appealed to the Court of Appeal in Quebec but their appeal was disallowed.

Upon obtaining the judgment in Canada, Les Placements commenced a writ action in Singapore to enforce the Canadian judgment against Hong under common law. It then applied for, and received, summary judgment in its favour. Hong appealed, arguing that the Canadian judgment had been obtained by fraud because Les Placements had fraudulently failed to disclose to the Canadian court that the guarantee was addressed to Germain and not Les Placements. As such, the Canadian Judgment was not conclusive and that this was so, even if the defence of fraud had been investigated into by the Canadian court and rejected. Furthermore, Hong argued that he was entitled to have the issue of fraud re-litigated in Singapore even if there was no new material before the court supporting his allegation of fraud. Finally, Hong asserted that there were, in any case, fresh material to support his allegation: the sworn statements of two witnesses which were prepared by Les Placements in the Canadian proceedings but were never produced before the Canadian court.

Held

, dismissing the appeal

(1) A foreign judgment in personam given by a foreign court of competent jurisdiction may be enforced by an action for the amount due under it so long as the foreign judgment is final and conclusive as between the same parties. Such a foreign judgment is conclusive as to any matter thereby adjudicated upon and cannot be impeached for any error, whether of fact or of law (see ¶¶ 12 – 14); Goddard v Gray (1890) L.R. 6 QB 139 and Ralli v Angullia [1915-23] XV SSLR 33 followed. In respect of such an action, an application for summary judgment may be made on the ground that the defendant has no defence to the claim; Grant v Eaton (1883) 3 QBD 302. A local court will only refrain from enforcing a foreign judgment if it is shown that the plaintiff procured it by fraud, or if its enforcement would be contrary to public policy or if the proceedings in which the judgment was obtained were opposed to natural justice (see ¶ 12).

(2) There were two distinct views as to how a domestic court should treat a foreign judgment where fraud was raised in relation to a foreign judgment, the English position as enunciated in Abouloff v Oppenheimer (1882) 10 QBD 295 and the Canadian-Australian approach laid down in Jacobs v Beaver (1908) 17 OLR 496 and Keele v Findley (1991) 21 NSWLR 44. Under the former approach, so long as fraud was alleged, the defendant was entitled to reopen the issue of fraud even though no new evidence was produced and even though the fraud might have been, and was, alleged in the foreign proceedings. The latter approach allowed the examination of the merits of the foreign judgment only if extrinsic fraud was alleged or if the defendant had discovered evidence of intrinsic fraud after the foreign judgment was passed. The latter approach is consistent with the approach taken by courts when facing an allegation of fraud vis-à-vis domestic judgments (see ¶¶ 15 - 26).

(3) The approach adopted in Abouloff had less to commend itself as it would only encourage endless litigation. It is of paramount importance that there should be finality. That said, the rule against re-opening issues is not absolute. As established in the body of law governing the re-litigation of issues already adjudicated upon by domestic courts, there are exceptions but these are subject to safeguards. There is no logical reason why a different rule should apply in relation to a foreign judgment (see ¶ 27). It is also vitally important that no court of one jurisdiction should pass judgment on an issue already decided upon by a competent court of another jurisdiction. This is the doctrine of comity. After all, two tribunals, both acting conscientiously and diligently, could very well come to a different conclusion on the same facts. There is no question of which is more correct. To seek to make such an evaluation would be an invidious exercise and could lead to the undesirable consequence of encouraging judicial chauvanism. (see ¶ 28).

(4) On the other hand, the approach taken by the Canadian-Australian cases and Ralli v Angullia is preferable since it is more in line with the principles of conflict of laws and treats foreign judgments in the same way as domestic judgments. It is consonant with the doctrine of comity of nations. It avoids any appearance that this court is sitting in an appellate capacity over a final decision of a foreign court. Applying this approach, where an allegation of fraud had been considered and adjudicated upon by a competent foreign court, the foreign judgment may be challenged on the ground of fraud only where fresh evidence has come to light which reasonable diligence on the part of the defendant would not have uncovered and the fresh evidence would have been likely to make a difference in the eventual result of the case (see ¶30).

(5) Hong had objected to the admission of the two sworn statements in the Canadian proceedings and now sought to rely on them to show that the Canadian judgment was obtained by fraud. He knew of the existence of the statements and of what the two persons stated therein. There was therefore no new evidence of fraud (see ¶ 32). In any case, even if the statements were admitted in the Canadian proceedings, they would not have made a difference to the court’s verdict since they did not really indicate that there was any evidence of fraud. On the contrary, Hong’s actions led to an irrefutable inference that there was no fraud and that he had in fact agreed to guarantee the loan from Les Placements to Wiraco.

Case(s) referred to

Abouloff v Oppenheimer (1882) 10 QBD 295 (not folld)
Codd v Delap [1905] 92 LT 510 (refd)
Goddard v Gray (1890) L.R. 6 QB 139 (folld)
Grant v Eaton (1883) 3 QBD 302 (folld)
House of Spring Gardens Ltd v Waite [1991] 1 QB 241 (refd)
Jacobs v Beaver (1908) 17 OLR 496 (folld)
Jet Holdings Inc v Patel [1989] 2 All ER 648 (not folld)
Keele v Findley (1991) 21 NSWLR 444 (folld)
Manolopoulos v Pnaiffe [1930] 2 DLR 169 (folld)
Owens Bank Ltd v Bracco [1991] 4 AER 833 (not folld)
Owens Bank Ltd v Etoile Commerciale SA [1995] 1 WLR 44 (refd)
Ralli v Angullia [1915-23] XV SSLR 33 (folld)
Roach v Garvan (1748) 1 Ves Sen 157 (refd)
Roglass Consultants Inc v Kennedy Lock & Willet Inc (1984) 65 BCLR 393 (folld)
Schibsby v Westenholz (1870) LR 6 QB 155 (refd)
Syal v Heyward [1948] 2 KB 443 (not folld)
Union of India v Bumber Development Corp [1995] 7 W.W.R. 80 (folld)
Vadala v Lawes (1890) 25 QBD 310 (not folld)
Vanquelin v Bouard 15 C.B.N.S. 341 (folld)
Woodruff v McLennan {1887} 14 OAR 242 (refd)

Judgment

GROUNDS OF DECISION

1. This was an appeal by the defendant (Hong) against a decision of the High Court granting summary judgment to the plaintiffs (Les Placements) on the latter’s claim based on a judgment obtained in Canada. Hong argued that, having raised the point that the Canadian judgment was obtained by fraud, that should suffice to preclude the judgment from being enforced in Singapore, and that the action should be allowed to go on for trial to enable Hong to establish the alleged fraud. We were not persuaded by Hong’s contention and dismissed the appeal. We now give our reasons

Background

2. The facts giving rise to the action were largely as follows. Les Placements was a company incorporated in Canada. On or about 25 April 1995, it entered into a loan agreement (‘the Loan...