Perry, Tamar v Esculier, Jacques Henri Georges

JudgeJudith Prakash JCA,Steven Chong JCA,Beverley Marian McLachlin IJ
Judgment Date19 October 2021
CourtCourt of Appeal (Singapore)
Docket NumberCivil Appeal No 12 of 2021 and Originating Summons No 16 of 2021
Perry, Tamar and another
Esculier, Jacques Henri Georges and another and another matter

Judith Prakash JCA, Steven Chong JCA and Beverley Marian McLachlin IJ

Civil Appeal No 12 of 2021 and Originating Summons No 16 of 2021

Court of Appeal

Civil Procedure — Amendments — Amendment of pleadings — Consequential relief — When consequential relief could be granted following one party's success on appeal — Sections 37(5) and 37(6) Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) — Order 57 r 13(3) and O 57 r 13(4) Rules of Court (2014 Rev Ed)

Civil Procedure — Interpleader — Principles — Setting aside — Actions in rem and in personam — What actions could be brought within scope of interpleader proceedings — Claims based upon s 73B Conveyancing and Law of Property Act (Cap 61, 1994 Rev Ed) and s 60 Conveyancing and Property Ordinance 1984 (Cap 219) (Hong Kong) — Order 17 Rules of Court (2014 Rev Ed) — Section 73B Conveyancing and Law of Property Act (Cap 61, 1994 Rev Ed) — Section 60 Conveyancing and Property Ordinance 1984 (Cap 219) (Hong Kong)

Held, dismissing the appeal:

(1) An action commenced as part of interpleader proceedings was not a freestanding action. Although it was in form an action between the rival claimants to particular property, it was in substance a proprietary dispute, the resolution of which was necessary to help the party applying for interpleader relief to determine who the liability (in the form of the property) was owed to. This was rightly conceded by the appellants on appeal: at [28] and [32].

(2) What was central to this appeal was determining whether the claims which the appellants sought to rely on were: (a) proprietary claims which related to the ownership or title to the assets in question and would be capable of establishing that the appellants had title to those assets; or (b) claims which did not provide the appellants an ownership claim to the assets themselves but simply gave the appellants the right to obtain a judgment against the respondents for an identical amount of money, and which were thus personal claims: at [34].

(3) The CPO claim, and by extension the CLPA claim, did not fall within the court's interpleader jurisdiction. Even taking the appellants' case at its very highest, and assuming for the sake of argument that the CPO and CLPA claims would operate as against the Moneys, neither claim would give the appellants title to the same. While the CPO and CLPA claims would have to be brought against the respondents (and, presumably, Lexinta Group Ltd as well), a successful claim would only render the transfer of the Moneys to the respondents voidable on the basis that they were sent out with intent to defraud Lexinta Group Ltd's creditors generally. The Moneys would then have to be returned to Lexinta Group Ltd's creditors or liquidators for general distribution. It could not be said that the CPO and CLPA claims would give rise to title in the Moneys for the appellants themselves: at [38].

(4) The precise orders made in OS 1016 fortified the conclusion above. ORC 1066 specifically stipulated at [2] that the interpleader proceedings would entail the first appellant and second respondent “hav[ing] their respective claims to the [Moneys] determined” [emphasis added in underlined bold]. It was also clear that the first appellant was to “state her claim to the monies” [emphasis added in underlined bold]. It was thus evident that even setting aside the precise legal ambit of interpleader proceedings generally, the specific interpleader proceedings authorised by OS 1016 did not permit claims which did not involve the parties asserting claims to the Moneys themselves: at [40].

(5) The appellants' alternative argument was that even if the CPO and CLPA claims were not proprietary claims for the purposes of the court's interpleader jurisdiction, they were nonetheless proprietary claims because they would allow the appellants to assert proprietary rights to the Moneys contingent upon the setting aside of the transfers by Lexinta Group Ltd to the second respondent. The sole case the appellants relied on for this proposition was Global Currency Exchange Network Ltd v Osage 1 Ltd[2019] 1 WLR 5865 (“Osage”). However, Osage was readily distinguishable, and even if the reasoning contained in Osage were applied to the present case, it did not provide support for the proposition the appellants attempted to rely on it for. The appellants' alternative argument, which relied solely on Osage as support, was thus wholly without basis: at [50] to [52].

(6) The court's interpleader jurisdiction was one which had to be carefully controlled. Considerations such as the extent of parties' submission to jurisdiction, and concern as to parties attempting to circumvent the rules on service out of jurisdiction by way of the court's interpleader jurisdiction, militated in favour of the interpleader jurisdiction being applied only within its prescribed bounds. Claims such as the CPO and CLPA claims, being claims which did not assert title on behalf of the appellants to the Moneys, fell outside those bounds. Accordingly, the appellants' appeal in relation to the CPO claim failed, and the appellants' applications for consequential relief fell away: at [53] and [55].

Case(s) referred to

Commissioner of Taxation v Oswal (No 6) [2016] FCA 762 (refd)

Commonwealth of Australia v Peacekeeper International FZC UAE [2008] EWHC 1220 (QB) (refd)

De La Rue v Hernu, Peron & Stockwell, Ltd [1936] 2 KB 164 (refd)

Eschger Co v Morrison, Kekewich Co (1890) 6 TLR 145 (refd)

Global Currency Exchange Network Ltd v Osage 1 Ltd [2019] 1 WLR 5865 (distd)

Precious Shipping Public Co Ltd v OW Bunker Far East (Singapore) Pte Ltd [2015] 4 SLR 1229 (folld)

Regal Castings Ltd v Lightbody [2009] 2 NZLR 433; [2008] NZSC 87 (refd)

Skandinaviska Enskilda Banken AB (Publ) v Conway [2020] 1 AC 1111 (distd)

Stephenson Harwood LLP v Medien Patentverwaltung AG [2021] 1 WLR 1775 (refd)

Wong Ser Wan v Ng Bok Eng Holdings Pte Ltd [2004] 4 SLR(R) 365; [2004] 4 SLR 365 (folld)


The dispute in this case centred on competing claims by the parties to a sum of approximately US$10.24m (the “Moneys”) in an account with DBS BankLtd (“DBS”) in Singapore held in the name of the second respondent (the “DBS Account”). The appellants' claim to the Moneys arose out of an alleged Ponzi scheme, which was said to have been operated by one Bismark Badilla (“Badilla”) using companies forming the Lexintra Group. The appellants claimed to have transferred money to the Lexinta Group pursuant to what were now said to have been fraudulent asset management agreements. By contrast, the respondents contended that Badilla and the Lexinta Group had held themselves out as providers of investment and asset management services, and that they had availed themselves of these services pursuant to various asset management agreements entered into with Lexinta Group entities. The Moneys were said to have been the respondents' returns on their investments with the Lexinta Group.

Sometime in early 2019, the appellants and respondents both gave instructions to DBS concerning the Moneys held in the DBS Account. Faced with competing claims to the Moneys, DBS commenced an interpleader action (“OS 1016”) on 8 August 2019 with, inter alia, the second respondent and first appellant named as defendants.

Following the hearing of OS 1016, the court made a number of orders, as set out in HC/ORC 1066/2020 (“ORC 1066”). ORC 1066 provided for the Moneys to continue to be held in the DBS Account so as to continue generating interest, and also set out timelines for a trial of the contest over title to the Moneys between the first appellant and second respondent.

On 19 March 2020, the appellants commenced a suit in the High Court in line with ORC 1066, with themselves as the plaintiffs and the first and second respondents as the defendants. In their amended Statement of Claim, the appellants based their claims to the Moneys on two causes of action:

  • (a) First, the appellants asserted that the respondents' investments with the Lexinta Group were not genuine, and that the respondents' initial investments would have been dissipated long before. Accordingly, any returns on the investment were fake and “could only have come from monies sent [to the Lexinta Group] by the [appellants]”. The appellants thus asserted that the Moneys had been paid by the Lexinta Group in breach of fiduciary duties owed to the appellants as beneficial owners thereof or in breach of trust and that they therefore had continuing equitable property rights in the Moneys.

  • (b) Second, the appellants made a claim in unjust enrichment against the respondents.

On 19 June 2020, the respondents' counsel wrote to the appellants indicating that the respondents intended to amend their Defence and Counterclaim to specifically plead that the law applicable to the dispute was Swiss law and that, under Swiss law, which “does not know the institution of the common law trust or equitable proprietary rights over bank account balances”, the appellants' claims were arid. In response, the appellants proposed a number of further amendments to the Writ and Statement of Claim, as follows:

  • (a) the joinder of Lexinta Group Ltd as an additional defendant;

  • (b) the addition of claims under s 73B of the Conveyancing and Law of Property Act (Cap 61, 1994 Rev Ed) (the “CLPA claim”) or upon the equivalent provision in Hong Kong, being s 60 of the Conveyancing and Property Ordinance 1984 (Cap 219) (Hong Kong) (the “CPO claim”); and

  • (c) the inclusion of an averment that the governing law of the dispute was Hong Kong law (and not Swiss law) because it was “the law most closely connected” to the dispute.

These amendments were sought on the basis that SIC/S 4/2020 (“Suit 4”) was a “freestanding” action independent of the court's interpleader jurisdiction and which “proceed[ed] under the general procedural...

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1 cases
  • Perry, Tamar and another v Esculier, Bonnet Servane Michele Thais and another
    • Singapore
    • International Commercial Court (Singapore)
    • 15 July 2022
    ...from the Court of Appeal’s earlier decision in Perry, Tamar and another v Esculier, Jacques Henri Georges and another and another matter [2022] 1 SLR 107, where the Plaintiffs were denied leave to amend their SOC to include alternative claims which were not proprietary. Simply put, personal......

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