Murakami Takako v Wiryadi Louise Maria and Others

• Judge: Andrew Ang J
• Judgment Date: 01 April 2008
• Neutral Citation: [2008] SGHC 47
• Citation: [2008] SGHC 47
• Defendant Counsel: Yeap Poh Leong Andre SC, Wong Soon Peng Adrian and Chan Wai Kit Darren Dominic (Rajah & Tann LLP)
• Published date: 03 April 2008
• Plaintiff Counsel: Devinder K Rai and Subramanian Pillai (Acies Law Corporation)
• Date: 01 April 2008
• Docket Number: Suit No 219 of 2008 (Summons in Chambers No 4366 of 2007)
• Court: High Court (Singapore)
• Subject Matter: Civil Procedure,Whether exception to rule that forum does not have jurisdiction over disputes relating to title of foreign land satisfied,Whether issue estoppel or cause of action estoppel barring amendments to statement of claim,Conflict of Laws,Whether Singapore natural forum for determination of disputes over foreign immovables that arose from ancillary divorce proceedings in Indonesia,Jurisdiction,Estoppel,Distinction between immovables and movables,Scope of exception,Natural forum,Amendments,Proceedings commenced in foreign court,Application to introduce foreign immovables into statement of claim

1 April 2008 Judgment reserved.

Andrew Ang J:

Introduction

1 By way of Summons No 4366 of 2007, the plaintiff sought to introduce amendments to her Statement of Claim. The proposed amendments enlarge the scope of the assets covered by the plaintiff’s claims. These claims are based on the assets of one Takashi Murakami Suroso situated in various parts of the world and I had earlier summarised these claims in Murakami Takako v Wiryadi Louise Maria [2007] 1 SLR 1119 at [5] (the appeal from which is reported in Murakami Takako v Wiryadi Louise Maria [2007] 4 SLR 565).

2 The proposed amendments introduce eight Australian properties, five Indonesian properties (or sale proceeds thereof where they have been sold) and moneys in two accounts with Westpac Bank in Australia. The Statement of Claim thus far only includes properties situated in Singapore as well as other movables.

3 Since the proposed amendments, if allowed, would involve foreign immovable property, I had asked parties to make further submissions on the applicability of the rule in The British South Africa Company v Companhia de Moçambique [1893] AC 602 (“the Moçambique rule”), viz, that the forum has no jurisdiction to determine the title to, or the right to the possession of, any immovable situate outside of the forum.

4 After careful consideration, I will allow the amendment to include the moneys in the two Westpac Bank accounts but not the Australian and Indonesian properties.

Issue and cause of action estoppel

5 The defendants’ key arguments focus on issue and cause of action estoppel. In relation to issue estoppel, they argue that in so far as the Australian properties are concerned, the plaintiff had commenced proceedings in Murakami v Wiryadi [2006] NSWSC 1354, where the Supreme Court of New South Wales granted the defendants a stay on grounds of forum non conveniens, viz, that Australia was a clearly inappropriate forum compared to Indonesia.

6 It is unnecessary for me to traverse the law on issue estoppel. Suffice it to say that I do not accept the defendants’ argument because I am not satisfied that the issue considered before the Supreme Court of New South Wales is identical to the issue before me.

7 The issue before the Supreme Court of New South Wales, following Oceanic Sun Line Special Shipping Company Inc v Fay (1987-1988) 165 CLR 197, was whether Australia, looking at itself as a focal point, was clearly an inappropriate forum such that a stay of proceedings should be granted. There was no doubt that the Australian court had jurisdiction at least over the Australian properties; the question was simply one of the exercise of such jurisdiction. The issue before me, however, is the a priori question of whether Singapore has jurisdiction over the foreign immovable properties and, if so, whether such jurisdiction ought not be exercised on the ground that “some other forum was the more appropriate forum”: Brinkerhoff Maritime Drilling Corp v PT Airfast Services Indonesia [1992] 2 SLR 776.

8 Similarly, I do not accept the defendants’ argument on cause of action estoppel. Specifically, they relied on Henderson v Henderson (1843) 3 Hare 100 (“Henderson v Henderson”) which held that, barring special circumstances, cause of action estoppel extends also to points which might have been but were not raised and decided in the earlier proceedings for the purpose of establishing or negativing the existence of a cause of action. The rationale for the rule in Henderson v Henderson is to place the onus on a party to put forth every point which properly belonged to the case. In the present case, the defendants argue that the plaintiff ought to have raised before the Supreme Court of New South Wales the point that in the event that Australia was not the most appropriate forum, Singapore was and that, accordingly, the plaintiff ought to be estopped from making the present argument that Singapore was the more appropriate forum.

9 I do not think this was a point which properly belonged to the case before the Supreme Court of New South Wales. Even if it was, there is an exception to cause of action estoppel, which is the showing of special circumstance: Seah Peng Song v Seah Peng Koon [1992] SGHC 87. Such special circumstance is made out in the present case. The Supreme Court of New South Wales was fully cognisant that proceedings were ongoing in Singapore: Murakami v Wiryadi [2006] NSWSC 1354 at [35]. Even if the Supreme Court of New South Wales had pronounced that Singapore was the more appropriate forum, surely this is not a point that binds the parties or the Singapore courts. Moreover, the plaintiff was seeking to persuade the Supreme Court of New South Wales that Australia was not a clearly inappropriate forum; I would not have expected her to weaken her case by indicating that Singapore was a possible alternative forum.

10 In light of my finding that the estoppel arguments are not made out, there is nothing to prevent me from allowing the inclusion of the two Westpac accounts. However, in so far as the foreign immovables are concerned, the court will have to deal with the Moçambique rule.

The Moçambique rule and the special position of land

11 The second part of the plaintiff’s application is essentially an invitation to the Singapore court to exercise jurisdiction over foreign land. The traditional common law response has been, for reasons elucidated below, generally one of caution as witnessed in Moçambique.

12 In the present case, the plaintiff is invoking the exception to the Moçambique rule – that a forum has jurisdiction over a matter, even though the proceedings are concerned with foreign immovable property, if it is based on a contract or equity between the parties (“the exception”). This is embodied in Rule 122(3) exception (a) of Dicey, Morris & Collins, The Conflict of Laws, vol 2 (Sweet & Maxwell, 14th Ed, 2006) (“Dicey & Morris”), which cites, inter alia, Penn v Lord Baltimore (1750) 1 Ves Sen 444; Deschamps v Miller [1908] 1 Ch 856 (“Deschamps v Miller”); Griggs (R) Group Ltd v Evans (No. 2) [2004] EWHC 1088 (“Griggs v Evans”).

13 The exception has been explained in various forms. In Deschamps v Miller ([12] supra) at 863, Parker J described the obligation which the court will enforce as depending:

[O]n the existence between the parties to the suit of some personal obligation arising out of contract or implied contract, fiduciary relationship or fraud, or other conduct which, in the view of a Court of Equity in this country, would be unconscionable, and do not depend for their existence on the law of the locus of the immovable property.

14 Paul Baker QC in Webb v Webb [1991] 1 WLR 1410 at 1418 (“Webb v Webb”) explained the exception thus:

Where there is a defendant within the court’s jurisdiction, and there exists some relationship between him and the plaintiff arising out of contract, trust or fraud or other fiduciary bond, the court may make an order directed to the defendant to perform his contract, carry out his fiduciary duties or undo the effects of his fraud. Through the relationship, the defendant's conscience is affected and bound. The sanctions for failure to carry out the order are commitment for contempt and sequestration of any assets of his to be found within the jurisdiction. It is no objection that the order relates to land abroad, save only this, that the order will not be made if the carrying of it out is illegal or impossible according to the lex situs.

15 In attempting to apply the exception, one ought first to distil the rationale behind the Moçambique rule. Is the distinction drawn between movable and immovable property an artificial one? That the common law makes a distinction between movable and immovable property in conflict of laws is not without reason. TM Yeo in Choice of Law for Equitable Doctrines (Oxford, 2004) (“Yeo”) explained the rationale for respecting the lex situs at para 5.02:

Property choice of law rules seek to give effect to policies relevant to the protection of property rights, including the protection of the integrity and effectiveness of title recording systems, the protection of the expectations of the parties, security of vested rights, security of transactions, certainty and uniformity of results, and the ultimate control of the situs in the enforcement of court orders. … Additional considerations applying to immovable property are that the court of the situs has the ultimate control over interests in immovables, and respect for the interests of social and economic policies of the situs in the transmission of rights in immovables.

16 In relation to a contract between the parties for the sale and purchase of foreign land, the English court in Griggs v Evans had no difficulty in holding that the exception ought to apply. Judge Peter Prescott QC in Griggs v Evans explained the unique position with regards to foreign land cogently at [78] and [118]:

Even so, it is apparent that to litigate a title in rem to land situate abroad is regarded as a special case. Why is it a special case? It is partly because the court cannot enforce its judgment and partly because it is felt the local sovereign might object. But why might he object? Why can one bring a claim that says “According to the laws of the sovereign the chattel is mine”, but not “According to the laws of the sovereign the land is mine”? The answer must be that it is understood that in the case of land the sovereign is or may be asserting a double prerogative. It is not only a prerogative to make laws for his own country, but a prerogative to have those laws adjudicated in his own courts exclusively.

…

According to deeply held notions of mankind, land, the surface of the earth, has a very special, I am almost tempted to say, sacral character … Even as I write, there are men and women who are prepared to kill or maim innocent people, all because of what an outsider might call a tract of arid desert or mountain; yet who...