Lam Soon (Thailand) Co Ltd and Others v Transpac Capital Pte Ltd

• Jurisdiction: Singapore
• Judge: Amarjeet Singh JC
• Judgment Date: 30 September 1998
• Neutral Citation: [1998] SGHC 328
• Court: High Court (Singapore)
• Published date: 26 February 2013
• Year: 1998
• Plaintiff Counsel: Philip Jeyaretnam assisted by Albert Leong (Helen Yeo & Partners)
• Defendant Counsel: Devinder K Rai Harry Elias & Partners)
• Citation: [1998] SGHC 328

Judgment :

GROUNDS OF JUDGMENT

Narrative

1. The Respondents [Plaintiffs] being dissatisfied with my decision on appeal which set aside an order of the Asst Registrar requiring service out of jurisdiction of the Writ of Summons on the Appellants [1^st Defendants], now in turn, appeal against such order.

2. The Respondents are Transpec Capital Pte Ltd an investment company incorporated in Singapore providing finance and venture capital.

2. The Appellants Lam Soon (Thailand) Co Ltd are a company incorporated in Thailand and are in the business of refining palm and edible oils into various products, manufacturing and sale of liquid detergent products.

3. The 2^nd and 3^rd Defendants (‘the guarantors’) were at all material times the Directors of the 1^st Defendants. They are not concerned in these satellite proceedings.

4. The Respondents’ action against the Appellants and the guarantors is for payment to them of the balance of monies owed to them in the sum of S$924,660.98 as follows:

(a) Amount outstanding on balance of unconverted loan plus interest:	S$464,448.77
(b) Late payment of interest for outstanding amount on unconverted portion of loan due on 31/12/95:	S$ 56,113.15
(c) Dividends on Bht 7.098 million at the exchange rate between Bht and S$ as on 23 August 1995:	S$404,099.06
Total:	S$924,660.98

5. Pursuant to an Ex-Parte application the Respondents obtained leave to serve out of jurisdiction, to wit, Thailand, a sealed copy of the Writ of Summons. In the meantime the 2^nd and 3^rd Defendants were served within the jurisdiction and filed their respective Appearances and joint Defence.

6. The grounds on which the Appellants sought the discharge or setting aside of the order granting leave to serve the Writ out of the jurisdiction were as follows:

(i) The Respondents failed to satisfy the mandatory requirements of Order 11 (2)(a) of the Rules of the Supreme Court requiring grounds supporting the application.

(ii) The Respondents did not make full and frank disclosure in their ex-parte application to the Court and

(iii) The Respondents have failed to show a serious question to be tried on the merits.

alternatively, Thailand is the appropriate forum for the trial of the claims pleaded in the Statement of Claim or one or more of them.

Decision

7. Order 11(2)(a), amongst other things, states:

‘An application for the grant of leave under Rule 1 must be made by an ex-parte Summons-in-Chambers supported by an Affidavit in Form 12 stating:

(a) the grounds on which the application is made.’

x x x

Form 12 requires facts to be stated in support of the application.

7.1 It was the contention of Counsel for the Appellants that having regard to the Respondents’ Counsel’s Affidavit dated 14 November 1997 to support his application for leave to obtain an order to serve the Writ out of jurisdiction, the Respondent’s Counsel failed to furnish the grounds of his application as can easily be discerned from paragraph 9 of his Affidavit and this was fatal to his application and as such the order obtained ought not to have been and should be set aside.

7.2 In support of their application to obtain an order to serve the Writ out of jurisdiction, the Respondents’ Solicitors stated in their Affidavit:

"9. The Plaintiffs’ claim is to recover damages in respect of, inter alia, the breach of a Loan Agreement, being an agreement which by its terms is governed by the laws of Singapore. A copy of the agreement is annexed hereto and marked "DKR-2".

10. I verily believe that the Plaintiffs have a good cause of action against, inter alia, the 1^st Defendants in respect of the claim set out in the Statement of Claim." (emphasis added)

8. I am satisfied, amongst other things, the Respondents’ Counsel has failed to meet an important condition prescribed by O.11(2) i.e. the Respondents have failed to furnish the grounds on which the application for service out of jurisdiction was made.

8.1 Paragraph 9 of the Respondents’ solicitors’ Affidavit filed on behalf of the Respondent was in substance a bare paragraph when they should have shown by some grounds that they have a good arguable case for the various claims made in the action. This they did not do.

8.2 The Statement of Claim in fact contradicts the application for leave to serve out of jurisdiction. The Statement of Claim pleads breach of a Divestment Agreement in paragraph 12 as follows:

"12. In breach of the Divestment Agreement, the First Defendants have failed to pay to the Plaintiffs the monies particularised here which is now due and owing by the First Defendants to the Plaintiffs."

The application for leave to serve out of jurisdiction however has a different complexion as it describes the claim as being for damages for breach of the Loan Agreement.

8.3 Although a copy of the Loan Agreement is annexed to the Respondents’ solicitors’ Affidavit purportedly supporting the application for service out of jurisdiction, nevertheless the Divestment Agreement referred to as such by the Respondents and constituted by a document dated 4 September...