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

• Jurisdiction: Singapore
• Judge: Tan Siong Thye JC
• Judgment Date: 22 November 2013
• Neutral Citation: [2013] SGHC 253
• Court: High Court (Singapore)
• Hearing Date: 05 November 2013
• Docket Number: Originating Summons No 593 of 2013 (Registrar’s Appeal No 354 of 2013)
• Plaintiff Counsel: P. Suppiah and Elengovan s/o V Krishnan (P Suppiah & Co)
• Defendant Counsel: Tan Boon Yong Thomas (Haridass Ho & Partners)
• Subject Matter: Conflict of Laws,Foreign Judgments,Recognition
• Published date: 21 February 2014

Tan Siong Thye JC: Introduction

This is the Plaintiff’s appeal against the decision of the 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

The Defendant had entered into an informal agreement with 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.

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.

On 11 September 2012, the High Court of Malaya at Johor Bahru granted a judgment in default of appearance in Civil Suit No 22NCvC-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 RM225.

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 an order of court dated 4 July 2013 (“the Registering Order”)) ordered that the Malaysian Judgment be so registered.

On 6 August 2013, the Defendant filed SUM 4086 to set aside the Registering Order pursuant to Order 67, Rule 9 of the Rules of Court. SUM 4086 was heard by the learned Assistant Registrar on 9 October 2013. After hearing arguments, the Assistant Registrar allowed the application and set aside the registration on the basis that s 3(2)(b) of the RECJA prohibited the registration of the Malaysian judgement 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 was dissatisfied with the Assistant Registrar’s decision and filed the present appeal on 21 October 2013.

The Plaintiff’s Submissions on Appeal

The learned counsel for the Plaintiff appealed on the basis that s 3(2)(b) of RECJA does not apply to this case. According to the learned counsel, s 3(2)(b) of the RECJA does not apply to corporations. He referred me to s 2 of RECJA which defines “judgment debtor” as “the person against whom the judgment was given, and includes any person whom the judgment is enforceable in the place where it was given”. Hence, he submitted that s 3(2)(b) of the RECJA is not applicable where the judgment sought to be registered lies against a company as opposed to a natural person. The learned Plaintiff’s counsel also referred me to Black’s Law Dictionary, 9th Ed, which defines person as a “human being – also termed natural person”. In the circumstances, he submitted that s 3(2)(b) of the RECJA does not apply in the present circumstances. This point was not canvassed before the learned Assistant Registrar.

The learned Plaintiff’s counsel further submitted that the Defendant cannot invoke s 3(2)(b) for the following reasons:- The writ and statement of claim in Civil Suit No 22NCvC-277-06/2012 had been lawfully served on the Defendant out of jurisdiction and the Defendant had failed to enter an appearance to defend the action, resulting in a judgment in default of appearance being entered against the Defendant. The Defendant had agreed to submit to the jurisdiction of the Malaysian court when it brought the two ships to Johor Bahru for repairs. The Defendant must have known that if the repairs were not paid for, the Defendant would be sued in Johor Bahru. The operative subsection the Defendant should have proceeded on was s 3(2)(c) and not s 3(2)(b) of the RECJA. This was because the former provision refers to “judgment debtor, being a defendant in the proceedings”. The reference to “defendant” in s 3(2)(c) is a general and wide term that can include a corporate entity like the Defendant. S 3(2)(b) on the other hand refers to “judgment debtor, being a person”, which denotes a natural person. However, s 3(2)(c) did not in fact apply to restrict registration of the Malaysian Judgment as the writ had been properly and duly served on the Defendant.

The Defendant’s Submissions on Appeal

The learned Defendant’s counsel submitted that the Malaysian Judgment cannot be registered as a foreign judgment under the RECJA by virtue of s 3(2)(b). It was submitted that notwithstanding the Defendant being a corporation, s 3(2)(b) is applicable in this case for the following reasons: It was not disputed that the Defendant neither carried on business nor had a place of business in Malaysia; and The Defendant did not voluntarily appear or otherwise submit or agree to submit to the jurisdiction of the Malaysian court.

Decision of this court

Singapore law permits foreign judgments to be registered in accordance with the relevant provisions of the law. I agree with the observations of the Singapore High Court in DHL Global Forwarding (Malaysia) Sdn Bhd v Mactus (Malaysia) Sdn Bhd and others [2013] SGHC 170 (“DHL Global”) at [4] that “[t]he court’s approach toward registration is a light touch approach. In practice, the default is to permit registration of foreign judgments unless certain formal features are missing.” The statutory provisions applicable in this case are the s 3(2) of the RECJA and Order 67, Rule 9 of the Rules of Court. Order 67, Rule 9 of the Rules of Court provides that:

Where the Court hearing an application to set aside the registration of a judgment registered under the [RECJA] is satisfied that the judgment falls within any of the cases in which a judgment may not be ordered to be registered under section 3 (2) of that Act or that it is not just or convenient that the judgment should be enforced in Singapore or that there is some other sufficient reason for setting aside the registration, it may order the registration of the judgment to be set aside on such terms as it thinks fit. [emphasis added]

The crux of this appeal is whether the present case comes within one of the six instances specified in s 3(2) of the RECJA, which constitute separate (as opposed to cumulative) grounds for resisting registration. If it does, the Malaysian Judgment cannot be registered as a judgment of the High Court of Singapore pursuant to s 3 of the RECJA. S 3(2) of the RECJA reads as follows: Restrictions on registration (2) No judgment shall be ordered to be registered under this section if — (a) the original court acted without jurisdiction; (b) the judgment debtor, 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; (c) the judgment debtor, being the defendant in the...