Lanna Resources Public Co Ltd v Tan Beng Phiau Dick and another

• Jurisdiction: Singapore
• Judge: Judith Prakash J
• Judgment Date: 28 September 2010
• Neutral Citation: [2010] SGHC 287
• Date: 28 September 2010
• Docket Number: Suit No 50 of 2010 (Registrar’s Appeal No 253 of 2010)
• Published date: 06 October 2010
• Plaintiff Counsel: Ng Kim Beng (Rajah & Tann LLP)
• Hearing Date: 29 July 2010
• Defendant Counsel: Sujatha Bhargavan (Toh Tan LLP)
• Court: High Court (Singapore)
• Subject Matter: Civil Procedure

Judith Prakash J:

In May 2010, the defendants filed a Summons-in-Chambers seeking the following reliefs: An order that all further proceedings in the plaintiff’s action herein against the defendants be stayed on the ground of forum non conveniens and/or lis alibi pendens. Alternatively, an order that all further proceedings in the plaintiff’s action herein against the defendants be stayed pending and until the final determination and resolution of the arbitration proceedings in the Singapore International Arbitration Centre (“SIAC”) in Case No ARB055/09/MM (“the arbitration proceedings”) commenced by the plaintiff against Saraburi Resources Pte Ltd (“SRL”) and PT Saraburi Batu Hitam (“SBH”) in relation to an advance of US$2m paid by the plaintiff to SRL.

The defendants’ application was dismissed by Assistant Registrar Then Ling (“the AR”) on 18 June 2010. The defendants appealed against that dismissal. I heard the appeal on 29 July 2010 and was not persuaded that the decision below was wrong. Accordingly, I dismissed the appeal.

Background

The plaintiff is a company incorporated in the Kingdom of Thailand and is in the business of the sale and distribution of coal. The first defendant is an Indonesian national and the second defendant is a Thai national. The defendants are both directors of SRL, a company incorporated in Singapore, and are also the beneficial owners of this company. The third company involved in the matter is SBH, a company incorporated in Indonesia, which has rights to carry out coal mining activities in a particular area in Indonesia.

The plaintiff’s case in this action appears from the averments in the statement of claim endorsed on the writ herein which was filed on 25 January 2010.

On 25 April 2008, an agreement entitled “Memorandum of Agreement” (“the MOA”) was entered into between the plaintiff, SRL and SBH. By the MOA, the plaintiff agreed to lend SRL up to US$4m (“the loan”) for the construction of a coal port and jetty and other infrastructural items to facilitate delivery of coal mined from SBH’s mines. The MOA provided that SRL would be in default of the loan if it failed to comply with certain documents which were described as the “Coal Supply Contracts”. Upon such default, the loan plus interest at a specified rate would become due and payable on demand.

Paragraph 8 of the statement of claim averred that in consideration of the plaintiff making or continuing to make the loan to SRL, the first and second defendants agreed to guarantee all sums of money owing or remaining unpaid by SRL to the plaintiff under the MOA and to pay to the plaintiff on demand, as principal debtors, all sums of money which were owing on the date of such demand. It referred to the written guarantee dated 25 April 2008 (“the guarantee”) signed by the plaintiff and the defendants.

According to para 10 of the MOA, the plaintiff paid the first advance of the loan in the sum of US$2m to SRL on 6 May 2008. Subsequently, SRL did not perform the Coal Supply Contracts and on 25 March 2009, the plaintiff issued a written demand to SRL for the repayment of US$2,115,150 being the principal of the loan advanced and interest thereon at the agreed rate. SRL failed or refused to pay the said sum or any part thereof to the plaintiff.

By two letters dated 27 April 2009 [(para 16 of the statement of claim)], the plaintiff made a written demand on the defendants to fulfil their obligations under the guarantee and make payment of the sum of US$2,120,750 to the plaintiff (this being the amount outstanding as at 16 April 2009). No payment was made and this action was started against the defendants on 25 January 2010.

In the meantime, pursuant to a clause in the MOA which provided for disputes to be submitted to arbitration according to the rules of the SIAC, the plaintiff submitted its claim against SRL for arbitration by two arbitrators appointed by the chairman of the SIAC. This resulted in the arbitration proceedings. SRL disputed the plaintiff’s claim and filed a substantive defence in the arbitration proceedings in which it alleged, inter alia, that the US$2m advanced by the plaintiff was not a loan but was an advance payment to SRL for the supply of Indonesian steam coal in bulk under the Coal Supply Agreements. It also alleged that the plaintiff was the party in breach of the MOA and filed a counterclaim against SRL in the arbitration proceedings. At the time I heard the defendants’ appeal, the arbitration proceedings were still in progress and had not been concluded.

The defendants entered a joint appearance to this action on 29 January 2010. They filed their defence on 26 February 2010. Substantive assertions were made in the defence among which were: The payment of US$2m to SRL was not a loan but an advance payment under the Coal Supply Agreements. The MOA did not apply because no loan was or could have been made since Bank of Thailand approval for the loan had not been obtained. The MOA breached the exchange control regulations of Thailand. The plaintiff had wrongfully failed to disburse the second tranche of the loan and SRL was therefore unable to meet scheduled payments for infrastructure and had suffered loss and damage. Basically, the defendants’ stand was that SRL was not liable to pay US$2m or any interest thereon to the plaintiff and, in turn, the defendants were not liable to the plaintiff under the guarantee.

The defendants also relied on the clause in the MOA providing that all disputes were to be referred to and resolved by arbitration. They contended that the guarantee was given pursuant to the MOA and formed part of the agreement between the plaintiff and SRL. Therefore, the plaintiff’s claim against the defendants based on the guarantee was also made pursuant to the MOA and should also be resolved by arbitration. The defendants asserted that the action should be dismissed and...