Pacific Harbor Advisors Pte Ltd and another v Tiny Tantono (representative of the estate of Lim Susanto, deceased) and another suit

• Jurisdiction: Singapore
• Judge: Tan Teck Ping Karen AR
• Judgment Date: 19 January 2015
• Neutral Citation: [2015] SGHCR 3
• Court: High Court (Singapore)
• Docket Number: Suit No 795 of 2012 (Summons No 2527 of 2014) and Suit No 863 of 2012 (Summons No 3387 of 2014)
• Published date: 29 January 2015
• Year: 2015
• Hearing Date: 10 October 2014,10 November 2014,28 October 2014,22 September 2014,04 August 2014
• Plaintiff Counsel: Mr Gregory Vijayendran, Mr Benjamin Smith and Mr Ronald Wong (Rajah & Tann LLP)
• Defendant Counsel: Ms Monica Chong, Mr Edmund Koh and Mr Oh Sheng Loong (Wong Partnership LLP)
• Subject Matter: Civil Procedure,Examination of Judgment Debtor,Scope of Examination
• Citation: [2015] SGHCR 3

Tan Teck Ping Karen AR: Factual Background

The late Mr Susanto Lim (“Lim”) passed away on 15 October 2009. Madam Tiny Tantono is Lim’s widow.

Prior to his death, Lim provided a personal guarantee to the Pacific Harbour Advisors Pte Ltd (“Pacific”) and Credit Suisse AG, Singapore Branch (“Credit Suisse”) as well as LIM Asia Multi-Strategy Fund Inc (“LIM Asia”) in respect of loans granted to PT Batanghari Sawit Lestari (“BSL”). BSL fell in default of the loans. As no payments were received, Pacific and Credit Suisse commenced Suit No. 795 of 2012 against Lim’s estate. This was followed by LIM Asia who commenced Suit No. 863 of 2012 against Lim’s estate.

As no Grant of Probate or Letters of Administration was taken out in respect of Lim’s estate, Madam Tiny Tantono was appointed the litigation representative of Lim’s estate in respect of the two suits.

On 28 March 2014, final judgment was entered in favour of the Plaintiffs in respectively in Suit No. 795 of 2012 and Suit No. 863 of 2012. Pursuant to the final judgments , the Plaintiffs in both suits (“Judgment Creditors”) each obtained an order for the examination of judgment debtors. The examination of Madam Tiny Tantono, in her capacity as litigation representative of Lim’s estate (“Judgment Debtor”), in both suits was fixed before me.

The issue and further arguments

At the outset of the examination on 4 August 2014, an issue arose over the scope of the examination. The Judgment Creditors raised the issue of whether the Judgment Debtor should answer questions in respect of the “historical aspect” of Lim’s estate i.e. questions concerning the estate’s property from the date of Lim’s death in 2009 to date. After hearing the submissions of the Judgment Creditors and the Judgment Debtor, I decided that no questions on the historical aspect of the property of Lim’s estate would be allowed. I observed that under Order 48 rule 1(1) of the Rules of Court, which provide for the order for examination of judgment debtor (“EJD”), the matters on which the Judgment Debtor may be examined on are limited to property which the Judgment Debtor has. It is not provided that the Judgment Debtor is to be examined on property that it had. I, therefore, limited questions on the property of Lim’s estate to the period commencing from the date of the final judgment, i.e. 28 March 2014.

At the subsequent examination on 22 September 2014, the Judgment Creditors sought to make further arguments, which I agreed to hear, on the issue which was framed as follows:

Would the Judgment Creditor be permitted to ask questions on the historical aspect of the estate of the deceased if such questions have a nexus to the property that the estate has wheresoever situated i.e. assets post judgment?

The relevant provision

Order 48 rule 1(1) of the Rules of Court reads as follows:

(1) Where a person has obtained a judgment or order for the payment by some other person (referred to in this Order as the judgment debtor) of money, the Court may, on an application made by ex parte summons supported by affidavit in Form 99 by the person entitled to enforce the judgment or order, order the judgment debtor, or, if the judgment debtor is a body corporate, an officer thereof, to attend before the Registrar, and be orally examined on whatever property the judgment debtor has and wheresoever situated, and the Court may also order the judgment debtor or officer to produce any books or documents in the possession of the judgment debtor relevant to the questions aforesaid at the time and place appointed for the examination. [Emphasis added]

Is a judgment creditor permitted to ask questions on the historical aspect of the property of a judgment debtor? The parties’ submissions

Counsel for Pacific and Credit Suisse, Mr Gregory Vijayendran, urged the Court to take a purposive interpretation of Order 48 rule 1(1). Relying on United Overseas Bank Ltd v Thye Nam Loong (S) Pte Ltd and Others [1994] SGHC 262 (“UOB”), Mr Vijayendran highlighted that the purpose of the EJD is to enable the judgment creditor to obtain the necessary information from the judgment debtor in order to enforce a judgment. The examination is “not only intended to be an examination but to be a cross-examination and that of the severest kind.” Flowing from this, the judgment creditor should be entitled to pose any question as far as possible to ascertain the judgment debtor’s property and to receive from the judgment debtor all necessary particulars in respect of the same.

Agreeing that a purposive approach should be taken, Ms Monica Chong, counsel for LIM Asia, argued that there is no prohibition on the judgment creditor asking questions about the assets owned by the judgment debtor in the period before the date of the judgment, as long as the questions are “fairly pertinent” to the recovery of the debt. Such questions would be limited by ensuring they had a “nexus” to the current property held by the judgment debtor.

On the other side, Mr Ramesh Kirpalani, counsel for the judgment debtor, argued that a plain and purposive reading of Order 48 rule 1(1) meant that only questions regarding the current assets of the judgment debtor should be allowed.

The scope of questions that may be asked during an EJD

As there is no local case on whether questions may be asked on the historical aspect of a judgment debtor’s property, assistance was sought from English, Australian and Hong Kong cases.

As a preliminary point, it should be noted that there are slight differences in the wordings of the relevant EJD provisions in England, Australia and Hong Kong....