JTrust Asia Pte Ltd v Group Lease Holdings Pte Ltd and others
Judge | Steven Chong JA |
Judgment Date | 01 June 2020 |
Neutral Citation | [2020] SGCA 54 |
Citation | [2020] SGCA 54 |
Defendant Counsel | and Daniel Tan Shi Min and Abhinav Ratan Mohan (Shook Lin & Bok LLP),Teh Kee Wee Lawrence, Pan Xingzheng Edric, Chia Huai Yuan and Elias Benyamin Arun (Dentons Rodyk & Davidson LLP) |
Published date | 04 June 2020 |
Hearing Date | 21 May 2020 |
Plaintiff Counsel | Chan Leng Sun SC (instructed counsel), Shirleen Low, Danitza Hon Cai Xia, Lee Zhe Xu and Yiu Kai Tai (Wong & Leow LLC) |
Docket Number | Civil Appeal No 21 of 2020 (Summons No 21 of 2020) |
Court | Court of Appeal (Singapore) |
Date | 01 June 2020 |
Subject Matter | Fraud and deceit,Mareva injunctions,Misrepresentation,Tort,Conspiracy,Civil Procedure |
The law is clear that an applicant for a Mareva injunction would need to satisfy the court that it has a good arguable case and that there is a real risk of dissipation of the defendant’s assets to defeat any judgment which might be made in the applicant’s favour. By its interlocutory nature, evidence in support of such an application need not be strictly proved at this stage.
What happens to the Mareva injunction if the trial is resolved against the applicant? The dismissal of the claim would typically result in the discharge of the injunction. In the event of an appeal, what is the applicable threshold for the unsuccessful applicant to satisfy in order to continue the injunction pending the appeal? The authorities rightly suggest that the threshold should no longer be a good arguable case since a trial has already been concluded against the applicant. Instead the cases suggest that the threshold should be that of a good arguable appeal. In practical terms, what is the true difference between these two thresholds? This judgment will thus examine what the threshold to establish a good arguable
In HC/S 1212/2017 (the “Suit”), the appellant, JTrust Asia Pte Ltd (“JTA”), brought (a) an action in the tort of deceit against the first respondent, Group Lease Holdings Pte Ltd (“GLH”), and the second respondent, Mr Mitsuji Konoshita (“MK”); and (b) an action against the first to seventh respondents in the tort of conspiracy, alleging that they had conspired to defraud JTA of its investment in the parent company of GLH.
Pursuant to this action, JTA successfully obtained
In the appeal against the Judge’s decision to set aside the Mareva injunctions in CA/CA 46/2018, this court reinstated the domestic Mareva injunctions ordered against MK, GLH and Cougar and expanded the Mareva injunctions against GLH and Cougar to worldwide Mareva injunctions (collectively referred to as the “Injunctions”), in the decision of
Following the trial of the Suit, the Judge dismissed JTA’s claims in deceit and conspiracy against the first to seventh respondents on 12 February 2020 (see
The present application by JTA under CA/SUM 21/2020 (“SUM 21”) is for an order that the Injunctions be continued or renewed pending the determination of CA 21.
Given the context under which SUM 21 came to be filed, the following issues arise for our determination:
Before we address the above issues, it would be useful to refer to a brief summary of the material facts in order to properly appreciate the evidence which was before the Judge when he made the decision to dismiss JTA’s claims.
Material background factsJTA is a Singapore-incorporated investment company and is wholly owned by J Trust Co, Ltd ("J Trust Japan"), a company listed on the Tokyo Stock Exchange.
GLH is a wholly owned subsidiary of Group Lease Public Company Ltd (“GL Thailand”), a Thai public company. GLH has four directors, including MK and Mr Tatsuya Konoshita (“TK”), who is MK’s brother and is also a director of GL Thailand. MK is a Japanese national and a Singapore Permanent Resident. He was the chairman of GL Thailand until October 2017, when he relinquished his office after the publication of an incriminating news release by the Securities and Exchange Commission of Thailand (“the Commission”), the regulatory body in Thailand that oversees listed companies. After MK stepped down, TK assumed his office.
The third respondent, Cougar, is a Singapore incorporated company which has the same registered address as GLH. Its sole shareholder is a company incorporated in Luxembourg called Pacific Opportunities Holdings SARL (“Pacific”), which was owned by Mr Tep Rithivit, a Cambodian businessman, until 12 June 2018. Mr Rithivit was a director of Cougar from August 2015 to end 2017. Pacific was acquired by Saronic Holdings Ltd (“Saronic”) on 12 June 2018, after the Suit was filed but prior to the commencement of the trial.
On 9 March 2017, the Stock Exchange of Thailand (“the Exchange”) issued a public notice to GL Thailand, requiring it to provide to its investors information on loans that it had extended to two sets of borrowers (“the GLH Loans”). The first set is known as the “Singapore Borrowers”, who comprise Cougar, Pacific, Mr Rithivit and a Brazilian company called Kuga Reflorestamento Ltda (“Kuga”), which was also wholly owned by Pacific (and, ultimately, by Mr Rithivit). The second set is referred to as the “Cyprus Borrowers”. They comprise the fourth to seventh respondents, which are companies incorporated in Cyprus.
Yoichi Kuga (“YK”), who claimed to be the beneficial owner of Cougar, joined the action on 8 May 2019 and affiliates himself with the first to seventh respondents (Judgment at [4]).
APF Group is a corporate group of companies with a complex structure which includes APF Group Co Ltd (“APF BVI”), APF Holdings Co Ltd (“APF Thailand”), Showa Holdings Co Ltd (“Showa”), Wedge Holdings Co Ltd (“Wedge”) and a wholly-owned subsidiary of Wedge, Engine Holdings Pte Ltd (“Engine”). JTA alleges that the APF Group is controlled by MK through APF BVI which was MK’s “personal asset management and investment vehicle”.
Between March 2015 and September 2017, JTA made a number of investments in GL Thailand. During this time, MK was the chairman of GL Thailand. The investments were as follows:
Each of the three investment agreements contained
It is not disputed that GL Thailand’s financial statements were prepared on a consolidated basis (meaning, that GL Thailand’s financial statements incorporated the financial information of its subsidiaries, including GLH) (Judgment at [9]). GL Thailand filed its accounts on a quarterly and annual basis and GLH’s revenue, assets and profits were duly reflected in GL Thailand’s quarterly and annual financial statements. In particular, over a period of just over two years which corresponded to the period of the alleged fraud, (
Further, prior to each of JTA’s investments in GL Thailand, representations were made as to GL Thailand’s financial health and profitability by MK to Mr Nobuyoshi Fujisawa (“Fujisawa”), the managing director and Chief Executive Officer of JTA, and Mr Shigeyoshi Asano (“Asano”), a director of JTA and J Trust Japan. On 9 March 2017, the Exchange required information from GL Thailand on the loans that it had extended to (a)...
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