Portcullis Escrow Pte Ltd v Astrata (Singapore) Pte Ltd and another

• Jurisdiction: Singapore
• Judge: Philip Pillai J
• Judgment Date: 12 October 2010
• Neutral Citation: [2010] SGHC 302
• Court: High Court (Singapore)
• Docket Number: Originating Summons No 690 of 2010 (Summons No 4174 of 2010)
• Published date: 13 October 2010
• Year: 2010
• Hearing Date: 17 September 2010
• Plaintiff Counsel: Ang Siok Hoon (Rajah & Tann LLP)
• Defendant Counsel: Andy Leck (Wong & Leow LLC),Jaikanth Shankar (Drew & Napier LLC)
• Citation: [2010] SGHC 302

Philip Pillai J:

This is an application by the first defendant (“Astrata”) for leave to appeal under s 34(2) of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) (“SCJA”) against the judgment in Originating Summons No 690 of 2010 (“OS 690”) of 26 August 2010 declaring that: The conditions set out in the Escrow Agreement dated 23 October 2007 (in particular, clauses 7(i)(c) and 7(ii)(b)) have been satisfied and the second defendant (“Tridex”) is entitled to demand the release of: the Comprehensive Source Code underlying the system supplied to Tridex; and the Comprehensive Engineering Diagrams as defined in the Escrow Agreement (collectively, “the Escrow Documents”). The Plaintiff (“the Escrow Agent”) is entitled to recover its costs of its application from the defendants to be agreed or taxed (“the Declaration”).

The grounds for this application for leave to appeal upon which Astrata relies are as stated in Lee Kuan Yew v Tang Liang Hong and another [1997] 2 SLR(R) 862 at [16]: (a) prima facie case of error; (b) a question of general principle decided for the first time; and (c) a question of importance upon which further argument and a decision of a higher tribunal would be to the public advantage. The three grounds in Lee Kuan Yew v Tang Liang Hong were affirmed by the Court of Appeal in Virtual Map (Singapore) Pte Ltd v Singapore Land Authority and another application [2009] 2 SLR(R) 558 at [32].

The three parties had under a consent order agreed that, notwithstanding the Declaration, Tridex would not demand or call for the release of the Escrow Documents and the Escrow Agent would not release the same pending the final disposal of the related judgments under appeal. The upshot of this consent order is that there would be no risk of the release of the Escrow Documents until after the final disposal of these appeals by the Court of Appeal. Astrata’s counsel explained the objective of this particular leave application as being to protect Astrata’s interests in the event those appeals were unsuccessful. In the event those appeals were successful, an injunction would be in place and/or the related litigation would be stayed pending arbitration.

The pivotal question resulting in the Declaration turned on the construction under Singapore law, of a standard form precedent contractual clause, and in particular the word “reconstruction” in a trilateral Escrow Agreement which operated as a trigger event to entitle the customer to obtain delivery of the Escrow Documents from the Escrow Agent. Astrata’s written submission at para 12 sets out seven arguments which it submits reveal prima facie cases of errors by the Court in granting the Declaration. Apart from reciting these seven arguments, all of which were fully raised, argued and considered by the Court, Astrata has furnished no arguments before me as to why any of these arguments disclosed any prima facie case of error. Astrata explained that it had...