JTrust Asia Pte Ltd v Group Lease Holdings Pte Ltd and others

• Jurisdiction: Singapore
• Judge: Steven Chong JCA
• Judgment Date: 26 March 2021
• Neutral Citation: [2021] SGCA 26
• Year: 2021
• Docket Number: Civil Appeal No 21 of 2020 (Summonses Nos 132 and 133 of 2020)
• Published date: 31 March 2021
• Hearing Date: 25 March 2021
• Plaintiff Counsel: Chan Leng Sun SC and Colin Liew (instructed counsel), Ang Hsueh Ling Celeste, Danitza Hon Cai Xia, Shirleen Low, Lee Zhe Xu and Yiu Kai Tai (Wong & Leow LLC)
• Defendant Counsel: Teh Kee Wee Lawrence, Pan Xingzheng Edric, Melvin See, Chia Huai Yuan, Elias Benyamin Arun and V Santhosh (Dentons Rodyk & Davidson LLP)
• Court: Court of Appeal (Singapore)
• Citation: [2021] SGCA 26
• Subject Matter: Mareva injunctions,Release from undertaking,Post-judgment Mareva injunctions,Civil Procedure

Steven Chong JCA (delivering the judgment of the court): Introduction

This decision concerns two issues relating to Mareva injunctions which may arise after final judgment has been pronounced by the court. First, it sets out the requirements to obtain a post-judgment Mareva injunction. Second, it sets out the conditions that must be met before a plaintiff who has obtained a worldwide Mareva injunction may be released from the undertakings furnished to the court in order to commence enforcement proceedings in other jurisdictions.

CA/SUM 132/2021 (“SUM 132”) is the appellant’s application to extend the duration of a worldwide Mareva injunction against the first respondent (“R1”) and a domestic Mareva injunction against the second respondent (“R2”). The appellant also seeks disclosure of R1’s and R2’s assets worldwide, and to be relieved of certain undertakings that it had given to the court. CA/SUM 133/2021 (“SUM 133”) is an application by R1 and R2 to reduce the enjoined quantum of the Mareva injunctions from US$180 million to US$72 million, though in their submissions, they seek to further reduce the quantum to US$34 million on the basis that it is undisputed that around US$38 million has already been paid to the appellant.

After considering the parties’ respective submissions, we order that the Mareva injunctions be extended until the respondents satisfy the judgment debt and costs that they owe to the appellant. However, we reduce the enjoined sum to US$50 million, for the reasons set out below. Despite the reduction in quantum, we observe that the assets disclosed and valued by R1 and R2 in their affidavits are still objectively insufficient to meet this quantum as we have found the valuation to be inflated or not sufficiently proved. In light of this, the respondents are not to deal with these disclosed assets since their aggregate value appears to be worth less than the enjoined quantum. It is therefore also appropriate to order R1 and R2 to file a fresh affidavit of disclosure within three weeks of this judgment, listing out their assets up to the collective value of US$100 million. The disclosure of R1’s and R2’s assets up to US$100 million is not to be confused with the sum of US$50 million enjoined under the Mareva injunctions – see [61] below. Any valuation of assets so disclosed must be properly supported and not based on incomplete, arbitrary, or subjective belief. The respondents are forewarned that in dealing with or disposing of their assets in the belief that those assets are in excess of the enjoined quantum of US$50 million, they bear the risk that they may be found to be in contempt if it subsequently transpires that the preserved assets are worth less than US$50 million. Finally, we disallow the appellants from being released from their undertakings, but if they wish to commence proceedings elsewhere, they may apply to court for leave. We now set out our reasons for our various orders.

Procedural History

The appellant brought proceedings against the respondents for deceit and conspiracy in HC/S 1212/2017 (“the High Court Trial”). While proceedings were pending, worldwide Mareva injunctions were granted against R1 and the third respondent (“R3”), while a domestic Mareva injunction was granted against R2, up to the total quantum of US$180 million. Subsequently, the High Court dismissed the appellant’s claim. The appellant appealed and pending the appeal, this court reinstated the worldwide Mareva injunction against R1 and the domestic Mareva injunction against R2, but did not reinstate the Mareva injunction against R3. The reinstated Mareva injunctions were ordered to be in place pending the final determination of the appeal or further order.

On 6 October 2020, this court reversed the High Court’s decision and found the first to seventh respondents liable for the torts of deceit and conspiracy. The first to seventh respondents were ordered to be jointly and severally liable to the appellant for the total sum of US$70,006,122.49 and S$131,817.80 (collectively, the “Judgment Sum”). Thereafter, we also: (a) awarded the appellant S$155,000 as costs of the appeal (including disbursements); and (b) ordered costs of the High Court Trial to be taxed on a standard basis with a certificate for three counsel, to be paid to the appellant by R1, R2, and the fourth to seventh respondents, jointly and severally.

On 2 November 2020, this court extended the reinstated Mareva injunctions by 60 days but agreed to reduce their quantum to an unencumbered value of US$72 million, provided that an affidavit was filed by R1 and R2 within 14 days to identify the asset(s) forming the unencumbered value of the same. Subsequently, an affidavit was filed on behalf of R1 and R2, but the appellant wrote to court disputing that the value of the disclosed assets amounted to US$72 million. Thereafter, we directed that the quantum of the reinstated Mareva injunctions would remain at US$180 million, and that if R1 and R2 wished to reduce the quantum, they were to file the appropriate applications with supporting affidavits.

SUM 132

On 2 December 2020, the appellant filed SUM 132 to seek an order for the reinstated Mareva injunctions to continue to be in effect until the respondents fully satisfy: (1) the Judgment Sum; (2) the costs of appeal; and (3) the costs of the High Court Trial.

The appellant also sought to be released from certain undertakings it had provided when the worldwide Mareva injunctions were granted against R1 and R3 (“Undertakings”), namely: The appellant shall not without the leave of the Court begin proceedings against R1 and/or R3 in any other jurisdiction or use information obtained as a result of an order of the Court in this jurisdiction for the purpose of civil or criminal proceedings in any other jurisdiction. The appellant shall not without the leave of the Court seek to enforce this order in any country outside Singapore or seek an order of a similar nature including orders conferring a charge or other security against R1 and/or R3 or R1 and/or R3’s assets.

In addition, the appellant sought an order for R1 and R2 to file an affidavit declaring their assets whether inside or outside of Singapore, whether in their own name(s) or not, and whether solely, jointly, or beneficially owned, giving the value, location, and details of all such assets, including encumbrances.

SUM 133

On 9 December 2020, R1 and R2 filed SUM 133 to seek an order for the enjoined quantum of US$180 million in the reinstated Mareva injunctions to be reduced to US$72 million.

Events thereafter

On 4 January 2021, this court ordered the reinstated Mareva injunctions against R1 and R2 to continue until the disposal of SUM 132 and SUM 133.

R1’s and R2’s submissions

Although SUM 133 only sought for the enjoined sum to be reduced to US$72 million ([10] above), in their submissions, R1 and R2 argue for the sum to be further reduced to US$34 million. They argue that not less than US$37.6 million has since been paid to or recovered by the appellant, leaving a remaining judgment debt of only about US$32.4 million. Even providing for a buffer for costs and post-judgment interests, only about US$34 million remains outstanding. The quantum of the reinstated Mareva injunctions should hence be reduced to US$34 million to give effect to the principle that the enjoined sum should cover no more than is necessary to protect the satisfaction of the Judgment Sum.

They claim that they have (in their affidavits) sufficiently identified assets that amount to more than US$32.4 million, including a judgment debt owed by the appellant to R1, and R1’s shares in various subsidiaries and associated companies.

They also allege that the appellant has an ulterior motive in delaying and complicating the process for the payment of the Judgment Sum, despite R1’s and R2’s intentions to pay up the Judgment Sum and costs.

Appellant’s submissions

The appellant argues that the Mareva injunctions ought to continue until R1 and R2 have fully satisfied the Judgment Sum and costs. The conditions to impose a post-judgment injunction are met as there is a real risk of R1 and R2 dissipating their assets; the injunctions would aid the execution of the Judgment Sum; and it would be in the interests of justice as the Judgment Sum remains outstanding.

The appellant does not dispute that a partial payment of US$37 million has been made and that it has also already recovered an additional sum of around US$720,000 from garnishee proceedings. However, it argues that the quantum of the Mareva injunctions should remain as US$142 million (US$180 million – US$38 million). This is because R2 has been providing false and inaccurate asset disclosure, while R1 has been inflating the valuation of its own assets, and has failed to accurately disclose its assets in previous affidavits of assets.

The appellant also argues that the disclosure affidavit sought ([9] above) is needed in order for the appellant to police the Mareva injunctions. R1’s latest affidavit is insufficient as it only discloses unencumbered assets up to a purported value of US$72 million.

Finally, the appellant argues that the Undertakings ([8] above) should be removed in order to enable the appellant to commence enforcement proceedings against R1 in other jurisdictions for the balance Judgment Sum.

Issues to be determined

The issues to be determined are: whether the reinstated Mareva injunctions should be extended until satisfaction of the Judgment Sum and payment of costs; if yes, what the enjoined quantum should be; whether R1 and R2 should be made to file a fresh affidavit disclosing their assets; and whether the appellant should be released from its Undertakings.

Whether the reinstated Mareva injunctions should be continued

We order that the reinstated Mareva injunctions be extended until the Judgment Sum and costs are paid up...