Murakami Takako v Wiryadi Louise Maria and Others

• Jurisdiction: Singapore
• Judge: Andrew Ang J
• Judgment Date: 12 January 2007
• Neutral Citation: [2007] SGHC 6
• Date: 12 January 2007
• Subject Matter: Jurisdiction,Amendment,Civil Procedure,Recognition,Pleadings,Forum non conveniens,Conflict of Laws,Whether Singapore Court may enforce judgment in rem by Indonesian Supreme Court if subject matter of proceedings not situated in Indonesia when judgment given,Defendants applying to court to amend defence by including counterclaim,Whether amendments would cause injustice to plaintiff,Foreign judgments,Whether declaratory judgment by Indonesian court entitled to recognition wand giving rise to res judicata or issue estoppel,Whether defendants' proposed counterclaims time barred,Defendants applying to court to amend defence by including counterclaims and adding fourth defendant to proceedings,Whether Singapore most appropriate forum to deal with counterclaim,Whether court should allow application,Enforcement
• Docket Number: Suit No 291 of 2005 (Summons No 2966 of 2006)
• Published date: 11 April 2007
• Defendant Counsel: Wilfred Choo (W Choo & Co) and Andre Yeap Poh Leong SC, Adrian Wong Soon Peng and Dominic Chan (Rajah & Tann)
• Court: High Court (Singapore)
• Plaintiff Counsel: Devinder K Rai and Subramanian Pillai (Acies Law Corporation)

12 January 2007

Andrew Ang J:

1 The plaintiff, Takako Murakami, is the eldest daughter of Takashi Murakami Suroso, also known as Takashi Murakami (“the deceased”), and is the executrix of the deceased’s estate pursuant to the deceased’s last will dated 16 July 1993. The first defendant was the deceased’s wife whom he married in 1968 shortly after the death of the plaintiff’s mother (Yu Yun Hwa) with whom the first defendant were good friends. The deceased had two children, namely, the plaintiff and her brother, Takao Murakami, both of whom he formally adopted after the demise of Yu Yun Hwa.

2 From his marriage to the first defendant, the deceased also had two sons, one of whom was the second defendant, Ryuji Murakami, and the other being Ryuzo Murakami. The third defendant, Bahari Sjamsjur, was the brother-in-law of the first defendant.

3 The first defendant and the deceased commenced divorce proceedings in Indonesia in 1992. After the divorce between the deceased and the first defendant was formalised in 1994, the deceased commenced further proceedings in 1995 for the division of joint assets in the Indonesian courts (“the Property Proceedings”) but he died in 1996 after which the plaintiff, as sole executrix of the estate of the deceased, continued with the action. By way of Judgment No 203 (“Judgment 203”), the Indonesian Supreme Court declared, inter alia ([20] of the re-amended statement of claim):

(a) that the will made by the deceased was valid and that the plaintiff has been properly appointed as executrix of the deceased’s estate;

(b) that the doctrine of common property applied to the property acquired by the first defendant and the deceased during their marriage (ie, that both the deceased and the first defendant were entitled to an equal share in these properties) and that among other properties, the Faber Drive, Ardmore Park and Taman Serasi properties in Singapore formed part of the common property;

(c) that, among other deposits and bank accounts, the following bank deposits in Singapore are the common property of both the first defendant and the deceased:

(i) deposit confirmation from Daiwa Bank Ltd dated 30 December 1988; and

(ii) debit/credit advice from Banque Nationale de Paris dated 4 April 1994; and

(d) that the first defendant was to surrender to the plaintiff as executrix of the deceased’s estate, half of all the common properties mentioned in the Judgment including the abovementioned bank accounts, the Faber Drive, Ardmore Park and Taman Serasi properties.

4 The present dispute between the parties involves the assets in Singapore forming part of the estate of the deceased. The plaintiff’s claim was in relation to:

(a) five immovable properties situated in Singapore (including such proceeds of sale in so far as any of the said properties have been sold);

(b) rental income on any one or all of the said five immovable properties;

(c) moneys in various bank accounts;

(d) items of jewellery;

(e) a deposit held by the Singapore Economic Development Board; and

(f) any other asset(s) belonging to the estate of the deceased.

5 The plaintiff’s claim against the first defendant was founded principally on Judgment 203. The plaintiff also claimed damages in conspiracy against the first and second defendants (in relation to the Ardmore Park property) and the first and third defendants (in relation to the Taman Serasi property) on the basis that the second and third defendants had knowingly assisted the first defendant to commit breaches of trust by allowing the first defendant to transfer the properties to them. In so far as there are Singapore properties and assets not specifically covered by Judgment 203, the plaintiff avers that the Supreme Court of the Republic of Indonesia would have made an order in terms similar to Judgment 203 in respect of such Singapore properties and assets, had they been properly brought to the attention and notice of the Supreme Court. The plaintiff’s alternative claim against the second and third defendants is for a return of half of the legal interest in the properties (or an equivalent amount thereof in monetary value) pursuant to Judgment 203.

6 Before proceeding any further, it would be necessary to trace the development of the entire proceedings. Suit No 291 of 2005 was initially scheduled for a ten-day trial before me commencing on 26 June 2006. On that day, I heard an application by counsel for the plaintiff in Summons No 2737 of 2006 for certain parts of the affidavit and opinion of the defendants’ expert on Indonesian law to be expunged. This was on the ground that those parts related to Indonesian law which had not been pleaded. Rather than allow the application, I stood it down for the defendants to seek leave to file a rejoinder out of time and/or to amend the defence as appropriate. The matter was adjourned to the next day for the defendants to submit their application.

7 On 27 June 2006, Mr Jimmy Yim of Drew & Napier LLC attended the hearing, having been briefed by the defendants to appear as counsel. He indicated that his firm had previously advised the plaintiff in regard to certain work and that he was happy to leave it to the plaintiff to decide whether or not to object. The next day, on 28 June 2006, Mr Andre Yeap of Rajah & Tann appeared before me on behalf of the defendants, Mr Jimmy Yim having failed to secure the plaintiff’s consent to his representing the defendants. Mr Yeap requested an adjournment for him to consider appropriate amendments to the pleadings.

8 I directed that the defendants’ application be filed and served on 3 July 2006 so that the plaintiff could consider consequential amendments (if any) to her pleadings and that the matter be heard on 4 July 2006, whereafter the trial could immediately proceed. The defendants not only sought to make amendments to the defence but also sought to add Ryuzo Murakami as the fourth defendant to these proceedings by way of Summons No 2966 of 2006. In the proposed amendments, the defendants also sought to mount counterclaims against the plaintiff. The proposed amendments included:

(a) a counterclaim against the plaintiff for, inter alia, an account of the assets of the estate of the deceased; and/or

(b) consequential orders that such assets be delivered to the second and/or proposed fourth defendants in accordance with their respective entitlements to the estate.

This applied especially to properties that the defendants contended had been declared as joint property under Judgment 203, and which the defendants alleged the plaintiff had not accounted for or delivered to the second and/or proposed fourth defendants in accordance with the Indonesian decisions which, they maintained, recognised the second and/or proposed fourth defendants’ entitlement to the deceased’s estate.

9 On 13 September 2006, I allowed the defendants’ application by way of Summons No 2966 of 2006 to amend their defence and to add Ryuzo Murakami as the fourth defendant. Being dissatisfied with my decision, the plaintiff appealed by way of Civil Appeal No 111 of 2006 against my decision. I now set out the reasons for my decision.

The decision

10 It is trite law that pleadings can be amended at any stage of an action [Order 20 r 5 of the Rules of Court (Cap 322, R5, 2006 Rev Ed) (“the Rules”)] and it is in the discretion of the court hearing the application to allow or dismiss it. The general principle is that all amendments as would permit the true issues in dispute between the parties to be raised or disposed of would be allowed provided that this can be done without injustice to the other party. As Choo Han Teck J in The Wishing Star Ltd v Jurong Town Corp [2006] SGHC 82 observed, whether amendments to the pleadings should be allowed is always determined by the question, “Would it be fair to allow the amendment?” Or, in other words, how might it result in an unfair trial to the applicant seeking the amendments if the application was refused?

11 The plaintiff objected to the addition of the counterclaim on the basis that it was a breach of an order of court made by the learned Senior Assistant Registrar Kwek Mean Luck (“SAR Kwek”) on 19 December 2005 (“Order of Court”). The original defence contained a counterclaim by the first and second defendants and they had applied for leave to amend the defence by deleting certain paragraphs of the defence and withdrawing their counterclaim.

12 The first defendant’s original counterclaim was based on Judgment 203 of the Indonesian Supreme Court which granted the first defendant a half share of the joint marital assets. On this basis, the first defendant claimed a half share of the time deposits in Daiwa Bank (Tokyo) and Daiwa Bank (New York). The first defendant also claimed a half share of the contents of a safe deposit box with PT Daiwa Perdania Bank which was allegedly valued at US$900,000.

13 The second defendant based his claim to the deceased’s estate on Indonesian Judgment No 2696 (“Judgment 2696”) where the court had apparently declared the second defendant and his brother as heirs and beneficiaries to the deceased’s estate. Based upon Judgment 2696, the second defendant claimed (for himself and the proposed fourth defendant) a two-eighths share of the time deposits with Daiwa Bank (Tokyo), Daiwa Bank (New York) and the US$900,000 in the safe deposit box at PT Daiwa Perdania Bank.

14 The defendants’ application to withdraw their counterclaim was allowed by SAR Kwek who imposed a condition that “the defendants are not to bring in Singapore in these or subsequent proceedings any action for the same, or substantially the same causes of action as those made in the counterclaim”. The plaintiff argued that in the light of the condition imposed by SAR Kwek, the defendants were in breach of the order of the court made and were in contempt of court since the defendants’ present application to add the counterclaim was clearly based on Judgment 203 (in respect of the...