Koh Kay Yew v Inno-Pacific Holdings Ltd

• Jurisdiction: Singapore
• Court: Court of Appeal (Singapore)
• Judgment Date: 02 June 1997
• Docket Number: Civil Appeal No 167 of 1996
• Date: 02 June 1997

Koh Kay Yew

Plaintiff

and

Inno-Pacific Holdings Ltd

Defendant

[1997] SGCA 24

Yong Pung How CJ

,

M Karthigesu JA

and

L P Thean JA

Civil Appeal No 167 of 1996

Court of Appeal

Civil Procedure–Injunctions–Injunction restraining foreign proceedings–Relevant principles–Whether party against whom injunction was sought amenable to jurisdiction of court–Relevant factors–Meaning of amenable to jurisdiction–Submission–Service of writ–Civil Procedure–Injunctions–Restraining foreign proceedings–Relevant principles –Whether action commenced in foreign jurisdiction vexatious or oppressive–Objective test–Relevant considerations–Natural and proper forum for resolution of dispute–Conflict of Laws–Natural forum–Restraint of foreign proceedings–Relevant principles–Whether party against whom injunction was sought amenable to jurisdiction of court–Whether action commenced in foreign jurisdiction vexatious or oppressive–Approach to be taken where actions commenced in multiple foreign jurisdictions–Whether any difference in approach if action only commenced in single foreign jurisdiction

The respondent, a Singaporean resident in California, was employed by the applicant, a Singapore company, to provide business development services for the applicant in the US and Canada. These services were concurrent with the respondent's employment at a Delaware corporation which appeared to be substantially owned by the applicant. Subsequently, the respondent's employment was terminated by the applicant without any prior notice. The respondent commenced a suit against the applicant in the Californian courts against this termination and claimed for compensatory damages. The applicant challenged the action in California on the basis of lack of jurisdiction and forum non conveniens. Their challenge was dismissed by the Californian courts. The applicant made the instant application for a declaration that Singapore was the natural and proper forum for the determination of the matter and an injunction restraining the respondent from prosecuting or taking any further steps in the Californian action. The High Court held that Singapore was the natural and proper forum for the determination of the dispute and granted the injunction. The respondent appealed.

Held, allowing the appeal:

(1) An injunction restraining a party from commencing or pursing legal proceedings in a foreign jurisdiction was to be granted when the “ends of justice” required it. The injunction was directed not against the foreign court, but against the parties so proceeding or threatening to proceed. An injunction would only be issued restraining a party who was amendable to the jurisdiction of the court, against whom an injunction would be an effective remedy. Further, since such an order indirectly affected the foreign court, the jurisdiction was one which must be exercised with caution: at [14].

(2) Where Singapore was the natural forum for the determination of the dispute, an injunction should only be granted if the pursuit of the proceedings by the respondent in the foreign jurisdiction would be vexatious or oppressive and account must be taken of any injustice to the applicants if the respondent was allowed to pursue those proceedings and of any injustice to the respondent if he was not allowed to do so: at [15].

(3) A party who had submitted to the jurisdiction of the courts, by seeking relief in the High Court or otherwise, would be amendable to the jurisdiction of the court. Similarly, a party who was validly served with the required court documents as required by The Rules of Court 1996 would also be amendable to the jurisdiction of the courts: at [17].

(4) Being amendable to the jurisdiction of the local courts simply meant being liable or accountable to this jurisdiction. Hence, as long as the court had in personam jurisdiction over a party, that party would be regarded as being amendable to the jurisdiction of the court. In the instant matter, the respondent had contested the present proceedings and had made himself amendable to the jurisdiction of the Singapore courts: at [17] and [30].

(5) The finding of a natural and proper forum for the determination of the dispute was a necessary condition precedent to the grant of an injunction restraining foreign proceedings: at [18].

(6) In deciding whether the foreign proceedings were vexatious or oppressive, the court should look at all the circumstances of the case, including taking into account all those relevant circumstances which had not been considered when one considered the natural and proper forum issue such as the kind of remedy sought by the party proceeding in the foreign jurisdiction or the stage at which the foreign proceedings had progressed. The court would then consider the injustice each party might suffer in determining whether the injunction should be granted or not. If the court then concluded that the foreign proceedings were vexatious or oppressive, then the court should exercise its discretion to grant an injunction restraining the party who had commenced the foreign proceedings from continuing with it: at [19].

(7) Where proceedings were commenced concurrently in two jurisdictions, then one set of actions would be more likely than not to be vexatious or oppressive. However, this did not mean that an action commenced in one jurisdiction only could not be vexatious or oppressive: at [21].

(8) The applicable principles to the grant of an anti-suit injunction were the same regardless of whether the plaintiff commenced an action in one or two jurisdictions: at [21].

(9) However, while the same principles and approach applied to every case of this nature, each case turned strictly on its individual facts. Where the respondent had only started proceedings in one jurisdiction, the courts should be more cautious than not in granting injunctions compared with situations in which a party had commenced actions concurrently in two jurisdictions. In the latter situation, the courts should prevent the inherent abuse of the different judicial systems in different jurisdictions by compelling that party to choose the jurisdiction that he wanted to litigate in: at [22].

(10) Where the respondent had only commenced proceedings in one jurisdiction, he would not have abused the systems of justice of various jurisdictions to his advantage. Hence, as long as the party who commenced the foreign proceeding was entitled to do so, whether or not the foreign courts recognised this, then our courts should be extremely cautious in granting an injunction and there should strong and compelling reasons why an action in the foreign courts should not be started or continued: at [23].

(11) A court's role was to achieve fairness and justice according to the law of the land. However, this did not prevent a party from commencing or continuing his foreign proceedings simply on the basis that it would be more inconvenient for one party as compared to the other. The defendant had no right to choose which courts the dispute should be litigated in, unless it was clearly so unfair to him that no reasonable person would have agreed with it and subjected to the fact that the plaintiff must have had good grounds for commencing an action in the place he had chosen: at [23].

(12) In the instant matter, the facts pointed towards California as being the natural and proper forum for the resolution of the dispute. First, the contract was made and concluded in the US. Second, the performance of the contract was in the US. Third, the applicable law under the contract was Californian law. Fourth, the respondent's employment was terminated in the US. Fifth, the California courts could exercise personal jurisdiction over the applicants. Lastly, it would be premature to hold that there was no evidence found in the US. Accordingly, the appeal was allowed and the declaration set aside and the injunction discharged: at [33] to [35], [39], [42], [46], [48] and [49].

Bank of America National Trust and Savings Association v Djoni Widjaja [1994] 2 SLR (R) 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 Cansulex Ltd [1987] AC 460 (folld)

Rules of Court 1996,The

Supreme Court of Judicature Act (Cap 322, 1985 Rev Ed) s 16

Gopalan Raman and Gopal Krishnan Nair (G Raman & Partners) for the appellant

Mohan Pillay and Tay Peng Cheng (Wong Partnership) for the respondent.

Yong Pung How CJ

1 This was an appeal arising out of the decision of Warren L H Khoo J in OS No 638/96 [see Koh Kay Yew v Inno-Pacific Holdings Ltd [1996] SGHC 271]. Essentially, it involved the question of whether the learned Judge in the court below was correct when he made an order granting an injunction which restrained the appellant from proceeding with his action in a foreign jurisdiction, namely, the Superior Court of the State of California for the County of San Mateo in the United States of America. After the foreign proceedings were commenced, the respondents applied to the Singapore courts to ask for such an injunction together with a declaration that Singapore was the natural and proper forum for the determination of the dispute between the appellant and the respondents.

The facts

2 The appellant is a Singaporean but since 1985 had been living with his family in the state of California (“California”). In 1992 he became a registered resident alien entitled to permanent residence and employment in the United States of America (“the US”).

3 Sometime in 1989, the respondents' executive director, one Mr Gopinath Pillay (“Pillay”) contacted the appellant. This resulted in negotiations between the appellant and the respondents regarding the employment of the appellant by the...