Ooi Ching Ling Shirley v Just Gems Inc

JurisdictionSingapore
CourtCourt of Three Judges (Singapore)
JudgeChao Hick Tin JA
Subject MatterCosts,O 57 r 3(4) Rules of Court,'Fit',Words and Phrases,Applicable test and considerations in granting such applications,Application for further security for costs,Civil Procedure,Whether circumstances warrant making order for further security,Security for costs
Published date19 September 2003
Defendant CounselPhilip Ling (instructed) and Mohamed Gul (Peter Low, Tang & Belinda Ang)
Plaintiff CounselBenjamin Goh (Arthur Loke Bernard Rada & Lee)
Docket NumberCivil Appeal No 15 of 2002
Date11 October 2002

Finance [1999] 3 SLR 229 meant that enforcing a judgment for costs against the appellant’s property would entail undue delay and expense.

Held,

granting the respondents’ application

(1) The power granted to the court by O 57 r 3(4) confers an unfettered discretion to the court to make orders as it deems "fit". This concept of "fit" must encompass the notion of what is just in all the circumstances (see 17-18)

(2) Foreign residency is a ground warranting the imposition of further security for costs if there would be undue delay and expense in enforcing an order for costs, since the whole point of ordering a foreign plaintiff or appellant to furnish security is to ensure that a fund would be available within the jurisdiction of this court against which a successful defendant or respondent could enforce the order for costs (see 19, 27), De Bry v Fitzgerald [1990] 1 All ER 560 and Porzelack KG v Porzelack (UK) Ltd [1987] 1 WLR 420 followed.

(3) The merits of the appeal are also a valid factor for consideration in determining whether it is just to order that further security be furnished. Here, it had been assumed that there could be some merits in the appeal. (see 29)

(4) Another factor to be considered is if the application is so late that the bulk of the costs have already been incurred by the appellant. The court would look at whether there was a satisfactory explanation by the appellant, in the absence of which the application may be refused. (see 20)

(5) In the present case, the appellant’s previous conduct evidenced an intention to resist vigorously an order for costs if made against her and it was likely that she would make it difficult for any enforcement of such order to take place. It was notable that in her affidavit filed to oppose the application, she was silent concerning the respondents’ allegations that she did not intend to satisfy the judgement debt and/or costs awarded against her. In addition, her conduct in relation to the attempts by the respondents’ to satisfy their judgment debt gave the impression that she was trying to evade enforcement action. (see 14, 24-25)

(6) The respondents had only made their application when it became clear from the appellant’s conduct that she was likely to resist enforcement of an order for costs against her; hence, there could not be said to be a delay in the making of the application (see 21,22)

(7) Enforcement of an order for costs against the appellant was also likely to give rise to undue delay and expense for two reasons: Firstly, there is no arrangement for reciprocal enforcement of judgments between Singapore and USA, where the appellant is resident; secondly, the ruling in Malayan Banking meant that the fact that the appellant was a joint tenant of a private residential property in Singapore would not obviate there from being difficulties in enforcement of an order for costs (see 26)

(8) It was also clear that the appellant was a person with means, hence there was no danger of her appeal being stifled by an order to furnish security. In view of all the circumstances, an order to the appellants to furnish further security of $30,000 was appropriate and just. (see 27-28)

Case(s) referred to

De Bry v Fitzgerald

[1990] 1 All ER 560 (folld)

Lek Swee Hua v American Express International Inc

[1991] 2 MLJ 151 (refd)

Malayan Banking Bhd v Focal Finance Ltd

[1999] 3 SLR 229 (refd)

Porzelack KG v Porzelack (UK) Ltd

[1987] 1 WLR 420 (folld)

Legislation referred to

Rules of Court O 57 r 3(4)

Rules of the Supreme Court (1965) [UK] O 59 r 10(5)

Judgment

GROUNDS OF DECISION

1 This was an application by way of a motion, filed by the respondent, in Civil Appeal No. 15/2002 for an order to require the appellant to furnish further security for the costs of the appeal. After hearing the parties, we allowed the motion by ordering that a further security of $30,000 be furnished by the appellant. The standard security of $10,000 was already furnished when the notice of appeal was filed. We now give our reasons.

Background

2 The appellant, Shirley Ooi Ching Ling (Shirley Ooi), is a substantial shareholder in a British Virgin Island company, Pacific Rim Trading Ltd (Pacific Rim). It is an investment company. Pacific Rim, in turn, held shares of a Californian company, Agate Technologies Inc (Agate), which is involved in the development of software technology. Shirley Ooi is a shareholder of Pacific Rim and a director of both Pacific Rim and Agate.

3 In June 1996, Shirley Ooi offered to sell to one Jamilah Binti Abu Bakar (Jamilah) 750,000 shares in Agate. The respondent company, Just Gems Inc (JGI), was incorporated by Jamilah also in British Virgin Island to hold the Agate shares for Jamilah. Some two months later, Shirley Ooi offered to Jamilah about 22% of Pacific Rim shares (or the equivalent of 1,000,000 Agate shares) for a sum of US$500,000. This latter offer was accepted. Payment was to be by instalments. Jamilah claimed that on 16 September 1996, she paid US$200,000...

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8 cases
  • Pacific Integrated Logistics Pte Ltd v Gorman Vernel International Freight Ltd
    • Singapore
    • High Court (Singapore)
    • 3 janvier 2007
    ...the time and expense involved in enforcing such orders. As stated by our Court of Appeal in Ooi Ching Ling Shirley v Just Gems Inc [2002] 3 SLR 538 at [19], one of the rationales for granting security against a foreign plaintiff is “the delay or expense that will arise in enforcing the cost......
  • Singapore Tourism Board v Children's Media Ltd and Others
    • Singapore
    • High Court (Singapore)
    • 27 mai 2008
    ...... Development Pte Ltd [2007] SGHC 93 (refd) Ooi Ching Ling v Just Gems Inc [2003] 1 SLR (R) 14; [2003] 1 SLR 14 ......
  • Tjong Very Sumito v Chan Sing En
    • Singapore
    • Court of Three Judges (Singapore)
    • 15 août 2011
    ...Each Ways Ltd, Re [1995] 1 WLR 560 (refd) Logue v Hansen Technologies Ltd [2003] FCA 81 (folld) Ooi Ching Ling Shirley v Just Gems Inc [2002] 2 SLR (R) 738; [2002] 3 SLR 538 (refd) Pacific Integrated Logistics Pte Ltd v Gorman Vernel International Freight Ltd [2007] 1 SLR (R) 1017; [2007] 1......
  • Tjong Very
    • Singapore
    • High Court (Singapore)
    • 22 novembre 2010
    ...(folld) Ong Jane Rebecca v Pricewaterhousecoopers [2009] 2 SLR (R) 796; [2009] 2 SLR 796 (refd) Ooi Ching Ling Shirley v Just Gems Inc [2002] 2 SLR (R) 738; [2002] 3 SLR 538 (refd) Parkinson v Myer Wolff and Manley (a firm) (23 April 1985; CA (Eng) ) (refd) Porzelack KG v Porzelack (UK) Ltd......
  • Request a trial to view additional results
1 books & journal articles
  • Civil Procedure
    • Singapore
    • Singapore Academy of Law Annual Review Nbr. 2002, December 2002
    • 1 décembre 2002
    ...for the delay and the other party had been notified that an appeal was being filed. 6.79 In Ooi Ching Ling Shirley v Just Gems Inc[2002] 3 SLR 538, the Court of Appeal dealt with a motion for the appellant to provide further security for costs pursuant to O 57 r 3(4) of the Rules of Court. ......

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