Madihill Development Sdn Bhd v Sinesinga Sdn Bhd

• Jurisdiction: Singapore
• Judgment Date: 21 October 2011
• Date: 21 October 2011
• Docket Number: Originating Summons No 187 of 2010 (Registrar's Appeal No 191 of 2011)
• Court: High Court (Singapore)

Madihill Development Sdn Bhd and another

Plaintiff

and

Sinesinga Sdn Bhd (transferee to part of the assets of United Merchant Finance Bhd)

Defendant

[2011] SGHC 230

Quentin Loh J

Originating Summons No 187 of 2010 (Registrar's Appeal No 191 of 2011)

High Court

Conflict of Laws—Foreign judgments—Registration—Judgment creditor obtainingex parte order for registration while appeal pending in foreign jurisdiction—Judgment debtor applying to set aside registration—Court dismissed application to set aside after appeal process in foreign jurisdiction had been exhausted—Whether registration should be set aside because appeal extant at time of registration even though appeal process had been exhausted by time of application to set aside registration—Sections 3 (1) and 3 (2) Reciprocal Enforcement of Commonwealth Judgments Act (Cap 264, 1985 Rev Ed)—Order 67 Rules of Court (Cap 622, R 5, 2006 Rev Ed)

Conflict of Laws—Foreign judgments—Registration—Judgment creditor obtainingex parte order for registration while appeal pending in foreign jurisdiction—Appeal in foreign jurisdiction pending at time of application for registration—Affidavit in support of application to register deposing that foreign judgment would not be liable to be set aside because the registration did not fall within any of the situations for which registration was prohibited—Whether registration should be set aside because of absence of full and frank disclosure at ex parteapplication

The respondent (‘the judgment creditor’) obtained judgment in the sum of RM 5,078,368.03 together with interest and costs in the High Court in Kuala Lumpur on 24 August 2009 against the first appellant (‘the first judgment debtor’) for moneys due and outstanding under a loan facility and against the second appellant (‘the second judgment debtor’) pursuant to a guarantee furnished in respect of the loan facility. The first judgment debtor and the second judgment debtor will be referred to collectively as ‘the judgment debtors’. On 15 September 2009, the judgment debtors filed a notice of appeal to the Malaysian Court of Appeal against the Malaysian judgment.

On 18 February 2010, while the appeal in Malaysia was still pending, the judgment creditor successfully applied in Originating Summons No 187 of 2010/D (‘OS 187/2010’) to register the Malaysian judgment as a Singapore judgment under the Reciprocal Enforcement of Commonwealth Judgments Act (Cap 264, 1985 Rev Ed) (‘RECJA’). On 7 April 2010, the second judgment debtor filed an application in OS 187/2010 to set aside the order to register the Malaysian judgment.

On 17 June 2011, after some delay due, inter alia, to the bankruptcy proceedings in Malaysia, an assistant registrar dismissed the second judgment debtor's application to set aside the order to register the Malaysian judgment. This was three days after the judgment debtors' application for leave to appeal to the Malaysian Federal Court was dismissed.

The second judgment debtor appealed against the assistant registrar's decision arguing that s 3 (2) of the RECJA provided for a strict legislative prohibition against the registration of a foreign judgment so long as an appeal or a right and intention to appeal is extant. According to the second judgment debtor, the application was therefore wrong from the outset and had to be set aside.

Held, dismissing the appeal:

(1) Order 67 of the Rules of Court (Cap 622, R 5, 2006 Rev Ed) (‘ROC’) envisaged a two-stage process for registering judgments. The first stage was anex parte application by the judgment creditor, supported by an affidavit, for registration of the Commonwealth judgment. At the second stage, the applicant, usually the foreign judgment debtor, was given an opportunity to set aside the registration with an application supported by an affidavit setting out the grounds upon which the applicant sought to set aside the registration. The court hearing the setting aside application might set aside the registration on such terms as it thought fit if it was satisfied that the judgment fell within any of the cases set out in s 3 (2) of the RECJA (which provided the situations where a judgment should not be ordered to be registered), or that it was not just or convenient that the judgment should be enforced or that there was some other sufficient reason for setting aside the registration: at [16] and [17].

(2) Unlike O 67 of the ROC, the provisions of the RECJA did not distinguish between the two stages. However, the statutory scheme covered instances where it was known from the time of registration at the first stage that an impediment against registration existed as well as those where any impediment could only be known or ascertained at a later stage. Taking the impediment under s 3 (2) (e) of the RECJA as an example, it might well be that the judgment creditor was unaware at the first stage that the judgment debtor had filed an appeal. It might equally be the case that the judgment debtor came before the Singapore court at the second stage and satisfied the court that he intended to appeal against the foreign judgment after registration had been obtained at the first stage. A judgment debtor might also file a notice of appeal but yet not proceed with the appeal at any stage: at [18].

(3) Therefore, the argument of the second judgment debtor's counsel that there was a fatal flaw in the registration granted on 18 February 2010 because the Malaysian judgment was incapable of registration at the first stage could not be accepted. If that argument was correct, it would follow that a foreign judgment would be incapable of registration at the first stage if, unknown to the judgment creditor, the judgment debtorintended to but had not yet appealed: at [20].

(4) There was a rule applicable to all ex parte applications (and an application for registration of a commonwealth judgment under O 67 r 3 is no exception) that the applicant had a duty to make full and frank disclosure. In this regard, a representative of the judgment creditor had deposed in an affidavit filed in support of the registration of the judgment that the Malaysian judgment, if registered in the High Court of Singapore, would not be liable to be set aside because the registration did not fall within any of the cases mentioned in s 3 (2) of the RECJA. In fact, about five months earlier, the judgment debtors had filed their appeals against the Malaysian judgment. The court was, however, satisfied on balance that this was not a deliberate statement made to mislead the court. The statement was probably due to some miscommunication. The fact that the appeals were filed was not something that was or could be hidden. No one had raised this allegation below. Further, the second judgment debtor was not prejudiced: at [24] to [26].

(5) There was no utility or practical consideration that required the setting aside of the registration just for the judgment creditor to apply once more to register the Malaysian judgment. Such overemphasis on technicalities no longer had any place in modern civil procedure: at [28].

Abouloff v Oppenheimer & Co (1882) 10 QBD 295 (refd)

Bahtera Offshore (M) Sdn Bhd v Sim Kok Beng [2009] 4 SLR (R) 365; [2009] 4 SLR 365 (folld)

Enactment No 10 of 1922, The Judgments (Reciprocity) Enactment, Re; Ho Hong Bank Ltd v Ho Kai Neo [1932] MLJ 76 (folld)

Lam Soon Cannery Co v H W Hooper & Co [1965] MLJ 135 (folld)

Lam Soon Cannery Co v Hooper & Co [1965-1967] SLR (R) 149; [1965-1968] SLR 76 (refd)

Liao Eng Kiat v Burswood Nominees Ltd [2004] 4 SLR (R) 690; [2004] 4 SLR 690 (refd)

Owens Bank Ltd v Bracco [1992] 2 AC 443 (refd)

Perwira Ariffin Bank Bhd v Lee Hai Pey [1997] 2 SLR (R) 498; [1998] 1 SLR 357 (refd)

Perwira Affin Bank Bhd v Lee Hai Pey [2007] 3 SLR (R) 218; [2007] 3 SLR 218 (refd)

Poh Soon Kiat v Desert Palace Inc [2010] 1 SLR 1129 (refd)

Vadala v Lawes (1890) 25 QBD 310 (refd)

Vasiliy Golovnin, The [2008] 4 SLR (R) 994; [2008] 4 SLR 994 (folld)

Westacre Investments Inc v The State-Owned Company Yugoimport SDPR [2009] 2 SLR (R) 166; [2009] 2 SLR 166 (refd)

Civil Law Act (Cap 43,1994 Rev Ed) s 5 (2)

Civil Law Act (Cap 43,1999 Rev Ed) s 5 (2)

Reciprocal Enforcement of Commonwealth Judgments Act (Cap 264, 1985 Rev Ed) ss 3 (1) , 3 (2) (consd) ;ss 3,3 (2) (a) ,3 (2) (c) ,3 (2) (d) ,3 (2) (e) ,3 (2) (f)

Rules of Court (Cap 322,R 5, 2006 Rev Ed) O 67 (consd) ; O 67 r 3, O 67 r 3 (1) (c) (iii) ,O 67 r 5 (2) , O 67 r 7 (3) , O 67 r 9 (1) , O 67 r 9 (3)

Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) s 80 (5)

Administration of Justice Act 1920 (c 81) (UK) ss 9, 9 (2)

Judgments Extension Act 1868 (c 54) (UK)

Reciprocal Enforcement of Judgments Enactment (Enactment No 2 of 1922) (FMS) s 3 (2) (c)

Fan Kin Ning (David Ong & Partners) for the second appellant

Chua Beng Chye and Ang Siok Hoon (Rajah & Tann LLP) for the respondent.

Quentin Loh J

1 The respondent, Sinesinga Sdn Bhd (‘SSB’), which is a transferee of the relevant part of the assets of United Merchant Finance Bhd (‘UMF’), obtained judgment of RM 5,078,368.03 together with interest and costs in the High Court in Kuala Lumpur, Malaysia against the first appellant, Madihill Development Sdn Bhd (‘MDS’), for moneys due and outstanding under a loan facility granted by UMF to it and against the second appellant, Dato' Rickie Tang Yong Kiat (‘RT’), pursuant to a guarantee furnished by RT to UMF in respect of the loan facility to MDS. On 18 February 2010, SSB successfully applied to register the Malaysian judgment as a judgment in Singapore under the Reciprocal Enforcement of Commonwealth Judgments Act (Cap 264, 1985 Rev Ed) (‘RECJA’), unless otherwise indicated, all references to statutory provisions are to those in the RECJA).

2 RT failed in his application on 27 June 2011 to set aside the order of court dated 18 February 2011 and appealed. I dismissed the appeal on 1 August 2011 and RT has appealed...