Kishinchand Bhojwani and Another v Sunil Bhojwani and Another

CourtHigh Court (Singapore)
JudgeKan Ting Chiu J
Judgment Date14 March 1997
Subject MatterDetermination of where the cause of action for declaration of trust arises,Whether the defendant was a 'necessary or proper party to the action',Whether Singapore was the forum conveniens for a claim for declaration of a trust,Service,Stay of proceedings,Forum non conveniens,Claim for declaration of trust,Civil Procedure,Service out of jurisdiction,Whether the claim is founded on a cause of action arising in Singapore,O 11 r 1(c) Rules of Court,Whether there was a dispute between the defendants and the plaintiff
Date14 March 1997
Docket NumberSuit No 443 of 1995 (Registrar's,Suit No 434 of 1995,Suit No 434 of 1995 (Summons In Chambers No 6739 of 1995)
Defendant CounselAndrew Ho (Allen & Gledhill)
Published date19 September 2003
Plaintiff CounselDeborah Barker (Khattar Wong & Pnrs),Muthu Arusu (Drew & Napier)

The plaintiff in this action is resident in Singapore and carries on business in and from Singapore. The first defendant is the son of the plaintiff and is resident in Nigeria. The second defendant is the wife of the first defendant. She is now resident in London.

In November 1992, the plaintiff made a telephone call from Singapore to the first defendant in Nigeria.
In that telephone conversation the plaintiff asked the first defendant to establish an offshore company in the Isle of Man for the purposes of the plaintiff`s business operations. The first defendant then telephoned the second defendant in London, gave her the name of a firm of accountants in London and asked her to approach that firm for assistance in setting up such a company for the plaintiff.

The second defendant carried out the request and eventually the two registered shareholders of a company incorporated in the Isle of Man, called Culford Investments Ltd (Culford), executed separate declarations of trust that each held the share in Culford registered in her name on behalf of the first and second defendant respectively.
The two registered shareholders were also the directors of Culford. On 20 November 1992 the two directors executed a power of attorney authorising and giving unlimited discretion to the plaintiff (as well as to the first and second defendants) to act on behalf of Culford. The share certificates, the declarations of trust and the power of attorney were all handed to the plaintiff in Singapore by the first and second defendants in December 1992.

In December 1992, Culford opened an account with American Express Bank in London and that account was used by the plaintiff in connection with the plaintiff`s business affairs until the account was closed in January 1995.
The first and second defendants played no role in the operation of this account.

The plaintiff, by this action, claimed that Culford had been acquired for his sole use and benefit and alleged in para 12 of the statement of claim that the second defendant in January 1995 had, in a letter sent by her solicitor to the solicitor for the first defendant, wrongfully and fraudulently asserted that she and the first defendant were the beneficial owners of the shares in Culford and that Culford and its assets were matrimonial assets.
The plaintiff sought, inter alia, a declaration that the first and second defendants had no beneficial interest in the shares of Culford and an order requiring them to take the necessary steps to procure from the registered shareholders declarations of trust in favour of the plaintiff. It would be relevant to note that the first defendant does not dispute the plaintiff`s claim that the plaintiff was the ultimate beneficiary of the shares of Culford.

The first defendant accepted service of the writ in Singapore and entered appearance.
On 5 April 1995 the assistant registrar (Miss Gladys Lee), on the ex parte application of the plaintiff, granted leave to the plaintiff to serve a sealed copy of the amended writ of summons herein on the second defendant who was then in the United Kingdom.

The second defendant disputed the jurisdiction of the court to hear the claim against her and applied under O 12 r 7(1), for the orders made by the assistant registrar to be set aside and for a declaration that the court had no jurisdiction over the second defendant in respect of the claims made.
In the alternative, the second defendant sought an order that all further proceedings in this action be stayed on the grounds that the High Court of Singapore was not the proper forum to adjudicate on the dispute. The application was dismissed by the assistant registrar (James Leong) on 21 August 1995. This is an appeal against that decision.

Section 16(1)(a) of the Supreme Court of Judicature Act (Cap 322) provides as follows:

The High Court shall have jurisdiction to hear and try any action in personam where -

(a) the defendant is served with a writ or other originating process -

(i) in Singapore in the manner prescribed by Rules of Court; or

(ii) outside Singapore in the circumstances authorised by and in the manner prescribed by Rules of Court.

In this case the second defendant was resident outside Singapore.
The High Court would therefore have jurisdiction to hear the proceedings against her only if the service of the writ on her was authorised by and in the manner prescribed by the Rules of Court.

In applying for service out of jurisdiction, the plaintiff relied on the provisions of O 11 rr 1(c) and (p) of the Rules of Court.
The sub-rules provide as follows:

Provided that the originating process does not contain any claim mentioned in O 70 r 3(1), service of an originating process out of Singapore is permissible with the leave of the Court if in the action -

(c) the claim is brought against a person duly served in or out of Singapore and a person out of Singapore is a necessary or proper party thereto;

(p) the claim is founded on a cause of action arising in Singapore;

Order 11 r 2(d), would also be relevant.
Rule 2(1)(d) stipulates that in an application under r 1(c) the affidavit filed in support on an application under r 1(c) has to state grounds for the deponent`s belief that there is between the plaintiff and the person on whom originating process has been served `a real issue which the plaintiff may reasonably ask the court to try`.

Order 11 r 1(c)

In the present case, the plaintiff sought to bring himself within this rule by virtue of the fact that the claim had been duly served on the first defendant and the second defendant is a necessary or proper party for that claim to be adjudicated.
Miss Deborah Barker, who appeared for the second defendant, submitted that the plaintiff had not complied with the requirements of r 2(1)(d) in that the plaintiff had not in any of his affidavits stated grounds for his belief that there was a real issue between himself and the first defendant. She submitted that there was, in fact, no issue at all between the plaintiff and the first defendant as the first defendant fully supported the plaintiff`s claim that the plaintiff was the ultimate beneficiary of the two issued shares of Culford.

Mr Muthu Arusu, for the plaintiff, submitted that the fact that the first defendant concedes the claim by the plaintiff does not mean that the proceedings against the first defendant had not been properly brought.
He submitted the proceedings against the first defendant was necessary because the shareholders/directors of Culford had taken a position allied to that of the second defendant and the plaintiff therefore needed a judgment of court against both the first and second defendants for enforcement in the Isle of Man. If the plaintiff had not proceeded against the first defendant and had instead obtained the first defendant`s acknowledgment of the trust, the second defendant, he submitted, would have alleged fraud and collusion between the plaintiff and the first defendant. He further submitted that as this was a trust action, all the trustees should be joined as parties.

It may well be that the second defendant may not accept the first defendant`s position that he held his beneficial interest in the one share of Culford in trust for the plaintiff.
As for the shareholders, there was no evidence to support the submission that they would not accept the first defendant`s position. But, even if the shareholders did dispute the first defendant`s claim, I do not see how the positions adopted by them or by the second defendant, would constitute `a real issue` between the plaintiff and the first defendant.


To continue reading

Request your trial
9 cases
  • Koh Kay Yew v Inno-Pacific Holdings Ltd
    • Singapore
    • Court of Appeal (Singapore)
    • 2 de junho de 1997
    ...898; [1994] 2 SLR 816 (folld) Hermain v Hermain [1988] 2 FLR 388 (folld) Kishinchand Tiloomal Bhojwani v Sunil Kishinchand Bhojwani [1996] 1 SLR (R) 861; [1996] 2 SLR 686 (folld) Société Nationale Industrielle Aerospatiale v Lee Kui Jak [1987] AC 871 (folld) Spiliada Maritime Corporation v ......
  • UBS AG v Telesto Investments Ltd
    • Singapore
    • High Court (Singapore)
    • 14 de julho de 2011
    ...Stott Kirkham v Trane US Inc [2009] 4 SLR (R) 428; [2009] 4 SLR 428 (refd) Kishinchand Tiloomal Bhojwani v Sunil Kishinchand Bhojwani [1996] 1 SLR (R) 861; [1996] 2 SLR 686 (refd) Koh Kay Yew v Inno-Pacific Holdings Ltd [1997] 2 SLR (R) 148; [1997] 3 SLR 121 (refd) Kuwait Oil Co (KSC) v Ide......
  • Karaha Bodas Co LLC v Pertamina Energy Trading Ltd and Another
    • Singapore
    • High Court (Singapore)
    • 19 de junho de 2006
  • UBS AG v Telesto Investments Ltd and others and another matter
    • Singapore
    • High Court (Singapore)
    • 14 de julho de 2011
    ...would be done in the forum. For instance, in Kishinchand Tiloomal Bhojwani and another v Sunil Kishinchand Bhojwani and another [1996] 1 SLR(R) 861 (“Bhojwani”) at [20]–[21], despite the defendant’s contention that she would enjoy much wider discovery rights in New York than in Singapore, t......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT