Malaysia Marine ABD Heavy Engineering Sdn Bhd v VLK Traders Singapore Pte Ltd

• Jurisdiction: Singapore
• Judgment Date: 22 November 2013
• Date: 22 November 2013
• Docket Number: Originating Summons No 593 of 2013 (Registrar's Appeal No 354 of 2013)
• Court: High Court (Singapore)

Malaysia Marine ABD Heavy Engineering Sdn Bhd

Plaintiff

and

VLK Traders Singapore Pte Ltd

Defendant

[2013] SGHC 253

Tan Siong Thye JC

Originating Summons No 593 of 2013 (Registrar's Appeal No 354 of 2013)

High Court

Conflict of Laws—Foreign judgments—Recognition—Appeal against setting aside of registration of judgment of High Court of Malaya at Johor Bahru—Whether s 3 (2) (b) Reciprocal Enforcement of Commonwealth Judgments Act (Cap 264, 1985 Rev Ed) applied to prevent registration of judgment—Whether s 3 (2) (b) applied to corporations—Section 3 (2) (b) Reciprocal Enforcement of Commonwealth Judgments Act (Cap 264, 1985 Rev Ed)

This was the plaintiff's appeal against the setting aside of the registration of a judgment of the High Court of Malaya at Johor Bahru (‘the Malaysian Judgment’) under which the defendant was liable to pay the plaintiff outstanding sums for the repair of the defendant's ships. The defendant had successfully applied to set aside the registration on the basis that s 3 (2) (b) of the Reciprocal Enforcement of Commonwealth Judgments Act (Cap 264, 1985 Rev Ed) (‘the RECJA’) prohibited the registration on the ground that the defendant, ‘being a person who was neither carrying on business nor ordinarily resident within the jurisdiction of the original court, did not voluntarily appear or otherwise submit or agree to submit to the jurisdiction of that court’. The plaintiff appealed on the basis that s 3 (2) (b) was inapplicable, in particular arguing that s 3 (2) (b) applied only to natural persons and not to corporations.

Held, dismissing the appeal:

(1) As the RECJA did not specify a definition of ‘person’, it was appropriate to seek guidance from the s 2 (1) of the Interpretation Act (Cap 1, 2002 Rev Ed), which provided that ‘person’ and ‘party’ include ‘any company or association or body of persons, corporate or unincorporated’. In the circumstances ‘judgment debtor’ under s 3 (2) (b) of the RECJA should be read to refer to the defendant, a body corporate. This approach was implicitly supported by both Singapore and UK case law: at [15] to [17] .

(2) On the present facts, the defendant had not at any time carried on business in Malaysia: at [22] .

(3) An inference of submission to the jurisdiction of the foreign court would be confined to actual agreements between the parties, dealings akin to agreement (ie, estoppel) or dealings between the parties in relation to the actual proceedings before the foreign court. An agreement to submit to the jurisdiction of a foreign court had to be express and would not be implied. Moreover, mere service out of jurisdiction was insufficient: at [24] and [26] .

(4) There was nothing to suggest that the defendant had voluntarily appeared or otherwise submitted or agreed to submit to the jurisdiction of the High Court of Malaya at Johor Bahru. The defendant did not enter an appearance; the Malaysian Judgment was in fact obtained by the plaintiff in default of appearance. Moreover, the contract for the repair of the ships was informally entered into through an exchange of e-mails and written correspondence. Finally, there was also no express jurisdiction clause amounting to an agreement to submit to the jurisdiction of the Malaysian court: at [27] .

[Observation: Section 3 (2) (c) of the RECJA was inapplicable as the defendant had been duly served with the originating process in the Malaysian proceedings. The defendant was moreover not ordinarily resident and not carrying on business within the jurisdiction of the Malaysian court: at [28] and [29] .]

Adams v Cape Industries plc [1990] Ch 433; [1991] 1 All ER 929 (refd)

Burswood Nominees Ltd v Liao Eng Kiat [2004] 2 SLR (R) 436; [2004] 2 SLR 436 (refd)

DHL Global Forwarding (Malaysia) Sdn Bhd v Mactus (Malaysia) Sdn Bhd [2013] 4 SLR 781 (refd)

Ho Hong Bank Ltd v Ho Kai Neo [1932] MLJ 76 (refd)

Sfeir & Co v National Insurance Co of New Zealand Ltd [1964] 1 Lloyd's Rep 330 (refd)

Sun-Line (Management) Ltd v Canpotex Shipping Services Ltd [1985-1986] SLR (R) 695; [1986] SLR 259 (refd)

United Malayan Banking Corp Bhd v Khoo Boo Hor [1995] 3 SLR (R) 839; [1996] 1 SLR 359 (refd)

United Overseas Bank Ltd v Tjong Tjui Njuk [1987] SLR (R) 275; [1987] SLR 299 (refd)

Tunku Abaidah v Tan Boon Hoe [1935] MLJ 214 (refd)

WSG Nimbus Pte Ltd v Board of Control for Cricket in Sri Lanka [2002] 1 SLR (R) 1088; [2002] 3 SLR 603 (refd)

Interpretation Act (Cap 1, 2002 Rev Ed) s 2 (1)

Reciprocal Enforcement of Commonwealth Judgments Act (Cap 264, 1985 Rev Ed) s 3 (2) (b) (consd) ;ss 2, 3, 3 (2) (c)

Rules of Court (Cap 322, R 5, 2006 Rev Ed) O 67 r 9

Administration of Justice Act 1920 (c 81) (UK) s 9 (2) (b)

PSuppiah and Elengovan s/o V Krishnan (P Suppiah & Co) for the plaintiff

Tan Boon Yong Thomas (Haridass Ho & Partners) for the defendant.

Judgment reserved.

Tan Siong Thye JC

Introduction

1 This is the plaintiff's appeal against the decision of the assistant registrar (‘Assistant Registrar’) in Summons No 4086 of 2013 (‘SUM 4086’) setting aside the registration of a judgment of the High Court of Malaya at Johor Bahru.

Background Facts

2 The defendant (‘the Defendant’) had entered into an informal agreement with the plaintiff (‘the Plaintiff’) via exchange of e-mail and written correspondence for the repair of two ships, namely, the White Cattleya 10 and the White Cattleya 12. The Plaintiff duly carried out the requested repairs. The total value of the repair works was S$1,1613,500. The Defendant paid the sum of S$873,074, leaving a balance of S$740,426 unpaid.

3 The Plaintiff sued the Defendant in the High Court of Malaya at Johor Bahru for the outstanding sum of S$740,426. The Defendant alleged that it was merely acting as an agent for the ships' owner and that the outstanding sum had been paid to another company, Koumi, which acted as the Plaintiff's agent.

4 On 11 September 2012, the High Court of Malaya at Johor Bahru granted a judgment in default of appearance in Civil Suit No 22 NCv C-277-06/2012 (‘the Malaysian Judgment’). The Defendant was accordingly liable under the Malaysian Judgment to pay the Plaintiff the sum of S$740,426 and interest at 4% per annum from 16 July 2012 to the date of settlement as well as costs of RM 225.

5 On 18 June 2013, the Plaintiff applied to register the Malaysian Judgment as a judgment of the High Court of Singapore pursuant to s 3 of the Reciprocal Enforcement of Commonwealth Judgments Act (Cap 264, 1985 Rev Ed) (‘the RECJA’). On the basis of an affidavit filed by the Plaintiff's acting Senior Manager, Mr Kishore A/L Kannan, the Singapore High Court (by way of...