Inno Pacific Holdings Ltd v Koh Kay Yew

• Jurisdiction: Singapore
• Judge: Warren Khoo L H J
• Judgment Date: 20 November 1996
• Neutral Citation: [1996] SGHC 271
• Court: High Court (Singapore)
• Published date: 30 January 2013
• Year: 1996
• Plaintiff Counsel: Mohan Pillay with Tay Peng Cheng
• Defendant Counsel: G Raman
• Citation: [1996] SGHC 271

Judgment:

Grounds of Decision

1. The plaintiffs (Inno Pacific), who were the employers of the defendant, applied by this originating summons for a declaration that Singapore was the natural and proper forum for the resolution of a dispute between them and the defendant (Mr Koh) arising from an employment contract, and for an injunction restraining Mr Koh from carrying on an action pending in a Californian court (the Superior Court of the State of California for the County of San Mateo) arising from that dispute. I heard the summons on 18 September, and granted the application in terms. I now give my reasons.

2. By the employment contract, dated 3 January 1990, Mr Koh undertook to provide business development services for Inno Pacific in the United States and Canada. The contract provided for the payment of a salary of $10,000 per month (Singapore currency), reviewable annually at the discretion of Inno Pacific, and bonuses. It also provided for the payment of Central Provident Fund contributions in accordance with prevailing CPF regulations.

3. The employment contract provided that it would not be terminated so long as Mr Koh continued to be in the employment of Shakey's Inc. It further provided that should Inno Pacific terminate Mr Koh's appointment other than for reason of wilful neglect of duty, malfeasance or misfeasance on his part, where no further compensation was payable, Inno Pacific would pay him an amount equivalent to 24 months' basic salary.

4. Mr Koh alleges in the Californian suit, which was commenced on or about 19 September 1995, that in breach of these provisions of the contract Inno Pacific terminated the employment contract during the subsistence of his employment with Shakey's Inc. He also alleges that Inno Pacific were in breach of these provisions of the contract by failing to pay the 24 months' basic salary upon such termination. Mr Koh therefore claims damages, interest and costs.

5. On or about 5 January 1996, Inno Pacific applied to the Californian court to stay or dismiss the action on the ground that it was not the convenient forum to try the dispute, and that the convenient forum was Singapore. Mr Koh resisted the motion on the ground, principally, that he and his family have been residents of California since 1985, and that although not a citizen of the United States, he owns property and pays taxes in California.

6. In December 1995, as Mr Koh stated in these Californian motion proceedings, he was offered an employment in Singapore, and he moved here and took up the employment, as he had been unable to find a job as an executive in California. He was not certain how long he would be in Singapore. He said that he intended to return to California in the future as his home and family were in California.

7. The employment contract, according to him, came about in this way. He had been living in California for four years when he was contacted by phone by Gopinath Pillay, the then executive director of Inno Pacific in 1989. He was subsequently interviewed by Mr Pillay in California. The employment contract, in the form of a letter of appointment dated 3 Jan 1990, was sent to him at his home in California.

8. As summarised in an affidavit of Inno Pacific in the application before me, Inno Pacific supported their motion in the Californian court on the following grounds:

a) there is a suitable alternative forum for the action in Singapore;

b) the Defendant is a citizen and resident of Singapore and the Plaintiffs are a Singapore corporation with virtually no contacts in California;

c) the Plaintiffs' entire performance under the Contract of Employment took place in Singapore and all the relevant evidence and witnesses are located in Singapore; and

d) given the limited relationship of the litigation in general to California, Singapore has a strong interest in resolving this dispute which involves an essentially Singaporean transaction between Singapore citizens and residents.

9. The Californian court decided that the convenience of witnesses and the economics of litigation was evenly balanced, but that on the basis that Mr Koh was and had been for several years a permanent resident of California, his choice of forum should be deferred to. The Californian court, however, left the question of convenient forum open, stating that its decision was without prejudice to a fresh application being made after Mr Koh's deposition had been taken. Taking of depositions, I gather, is a pre-trial discovery process in which witnesses for both sides are examined. Deposition taking had not commenced at the date of my hearing of this originating summons.

The principles applicable 10. In Societe Nationale Industrielle Aerospatiale v. Lee Kui Jak < 1987 > 1 A.C. 871, the Privy Council laid down the principles applicable to the grant of an injunction to restrain a party from commencing or carrying on proceedings abroad, as follows. Where the remedy for a particular wrong is available both in this country and in a foreign court, the court of this country will, generally speaking, only restrain the plaintiff from commencing or...