PT Bakrie Investindo v Global Distressed Alpha Fund 1 Ltd Partnership

• Jurisdiction: Singapore
• Judgment Date: 25 September 2013
• Date: 25 September 2013
• Docket Number: Civil Appeal No 1 of 2013
• Court: Court of Appeal (Singapore)

PT Bakrie Investindo

Plaintiff

and

Global Distressed Alpha Fund 1 Ltd Partnership

Defendant

[2013] SGCA 51

Sundaresh Menon CJ

,

Andrew Phang Boon Leong JA

and

Judith Prakash J

Civil Appeal No 1 of 2013

Court of Appeal

Civil Procedure—Judgments and orders—Enforcement—Reciprocal Enforcement of Commonwealth Judgments Act (Cap 322, R 5, 2006 Rev Ed) —Judgment creditor applying for examination of judgment debtor—Whether examination of judgment debtor order constituted ‘execution’ for purposes of O 67 r 10 (2) Rules of Court (Cap 322, R 5, 2006 Rev Ed)

The respondent (‘the Respondent’) obtained judgment against the appellant (‘the Appellant’) in the Commercial Court of England and Wales for the sum of US$2 m with interest to be assessed and for default costs totalling £205,327.98 (‘the UK Judgment’). The UK Judgment was registered as a judgment of the High Court of Singapore pursuant to s 3 of the Reciprocal Enforcement of Commonwealth Judgments Act (Cap 264, 1985 Rev Ed) (‘RECJA’) on 18 July 2011 (‘the Registration Order’). Following from this, the Respondent obtained an order to examine the former chairman of the Appellant's supervisory board as to the Appellant's assets (‘the EJD Order’). On 31 August 2012, the Appellant applied to set aside both the Registration Order and the EJD Order (‘the Setting Aside proceedings’). The present appeal arose from the Appellant's request for the execution of the EJD Order to be adjourned until the Setting Aside proceedings were finally disposed of by the Court of Appeal. This application for adjournment had been denied by both the assistant registrar and the judge below.

Held, dismissing the appeal:

(1) The application to adjourn the execution of the EJD Order was an interlocutory application within the meaning of para (e) of the Fifth Schedule to the Supreme Court of Judicature Act (Cap 32, 2007 Rev Ed), such that the Appellant required leave to bring an appeal to the Court of Appeal. Such leave not having been obtained, the Appellant's notice of appeal should have been struck out and the appeal would fail on this ground alone: at [13] .

(2) It was significant that the application for an EJD order, whilst implemented via O 48 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) (‘the Rules’), was not mentioned in O 45 which was a general rule specifying the various modes by which a judgment or order for the payment of money might be enforced. The reason for this was clear from the nature and functions of an EJD order, which was intended to aid the judgment creditor to garner additional information which might - or might not - result in the implementation of actualexecution of the judgment. An EJD order in and of itself was not therefore a mode of execution of a judgment: at [14] and [16] .

(3) An EJD order was also quite different from a bankruptcy notice, which was held in Re Cheah Theam Swee, ex parte Equiticorp Finance Group Ltd[1996] 1 SLR (R) 24 (‘Cheah Theam Swee’) as falling within the meaning of ‘execution’ under s 3 (3) (b) of the RECJA. This was because the predominant purpose of an EJD order was the garnering of additional information whereas a bankruptcy notice was the first step towards the enforcement of the judgment itself by way of a securing of the judgment debtor's assets: at [17] and [18] .

(4) Inasmuch as both the RECJA and the Reciprocal Enforcement of Foreign Judgments Act (Cap 265, 2001 Rev Ed) (‘REFJA’) were intended to give effect to the foreign judgment concerned and this could only be accomplished not by re-opening the substantive merits of the judgment but by proceedings which will lead to actual execution of the judgment itself, the purposive interpretation of ‘execution’ within O 67 r 10 (2) had to be the execution of the judgment in the traditional sense: at [27] .

(5)‘Execution’ should be construed in a broader sense even in the context of s 4 (4) of the REFJA as the precise nature and function of an EJD order admitted of only one clear approach which excluded it from the context of O 67 r 10 (2) of the Rules, s 4 (4) of the REFJA as well as s 3 (3) of the RECJA. Such an approach would not cause undue prejudice to the judgment debtor because he would always be free to apply to the court for a stay of the EJD proceeding: at [33] and [34] .

[Observation: The judge in Cheah Theam Swee, whilst correct in adopting a broad reading of the word ‘execution’ in s 3 (3) (b) of the RECJA, had stated that reading rather too broadly. It had to be qualified that the predominant purpose of proceedings which were purported to be ‘execution’ had to be to ultimately give effect to the enforcement of the judgment in the narrower sense which was encompassed within the more traditional modes of execution under O 45 of the Rules. This was buttressed by the reasoning of Lai Kew Chai J in the Singapore High Court decision of Re Tan Patrick, ex parte Walter Peak Resorts Ltd[1994] 2 SLR (R) 379: at [21] and [22] .

From an institutional perspective, the early conduct of an EJD proceeding would also be preferable as, even allowing for the delay incurred by the judgment creditor if such a proceeding was postponed until a setting aside application was finally determined, there was also the prospect of judicial time and court resources being wasted if it transpired upon such a postponed examination that the judgment debtor was a man of straw: at [27] .]

Cheah Theam Swee, Re [1996] 1 SLR (R) 24; [1996] 2 SLR 76 (refd)

Dorsey James Michael v World Sport Group Pte Ltd [2013] 3 SLR 354 (refd)

Fagot v Gaches [1943] 1 KB 10 (refd)

Open Net Pte Ltd v Info-Communications Development Authority of Singapore [2013] 2 SLR 880 (refd)

PP v Low Kok Heng [2007] 4 SLR (R) 183; [2007] 4 SLR 183 (refd)

Republic of Costa Rica v Strousberg (1880) 16 Ch D 8 (refd)

Sassoon Ezekiel, Re [1933] MLJ 245 (refd)

Sucden Financial Ltd v Fluxo-Cane Overseas Ltd [2009] EWHC 3555 (QB) (refd)

Tan Patrick, Re [1994] 2 SLR (R) 379; [1994] 2 SLR 728 (refd)

United Overseas Bank Ltd v Thye Nam Loong (S) Pte Ltd [1994] SGHC 262 (refd)

Wellmix Organics (International) Pte Ltd v Lau Yu Man [2006] 2 SLR (R) 525; [2006] 2 SLR 525 (refd)

Bankruptcy Act (Cap 20, 2009 Rev Ed) s 83 (1)

Interpretation Act (Cap 1, 2002 Rev Ed) s 9 A

Reciprocal Enforcement of Commonwealth Judgments Act (Cap 264, 1985 Rev Ed) s 3 (3) (consd)

Reciprocal Enforcement of Foreign Judgments Act (Cap 265, 1985 Rev Ed) ss 4 (2) , 4 (2) (b) , 4 (2) (d)

Reciprocal Enforcement of Foreign Judgments Act (Cap 265, 2001 Rev Ed) ss 4 (4) (consd) ;ss 3 (3) , 3 (3) (b) , 4 (4) (b) , 4 (4) (d) , 4 (5)

Rules of Court (Cap 322, R 5, 2006 Rev Ed) O 67 r 10 (2) (consd) ;O 45 rr 1-2, O 45 r 5

Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) Fifth Schedule para (e)

Bankruptcy Court (England) Act 1831 (c 56) (UK)

Civil Procedure Rules 1998 (SI 1998 No 3132) (UK) Pt 71

Common Law Procedure Act 1854 (c 125) (UK) s 60

Debtors Act 1869 (c 62) (UK) s 5 (2)

Execution Act 1844 (c 96) (UK) s 5

Suresh Damodara (Damodara Hazra LLP) for the appellant

Hri Kumar Nair SC and Emmanuel Duncan Chua (Drew&Napier LLC) for the respondent.

Andrew Phang Boon Leong JA

(delivering the grounds of decision of thecourt):

Introduction

1 As the late Lord Denning MR aptly put it, ‘ [w] ords are the lawyer's tools of trade’ (see Lord Denning, The Discipline of Law(Butterworths, London, 1979) (‘The Discipline of Law’) at p 5). The reason for this is clear; as the learned Master of the Rolls proceeded to observe (at p 5):

The reason why words are so important is because words are the vehicle of thought. When you are working out a problem on your own - at your desk or walking home - you think in words, not in symbols or numbers. When you are advising your client - in writing or by word of mouth - you must use words. There is no other means available.

2 However, words - or in the context of the present appeal, a word - might not always be clear. There are various reasons for this. The same word might - without even beginning to consider the context in which the word itself is used - have completely different meanings (take, for example, the word ‘toast’ which may mean ‘bread in slices browned on both sides by radiant heat’or‘a person ... or thing in whose honour a company is requested to drink’or‘a call to drink or an instance of drinking in this way’ (see The Concise Oxford Dictionary of Current English(Clarendon Press, Oxford, 8th Ed, 1990) at p 1281)). In addition, a word with a certain specific meaning might nevertheless mean different things in different contexts. Again, Lord Denning put it well when he referred to difficulties stemming from what he termed ‘the infirmity of the words themselves’ (The Discipline of Law at p 5). But courts must nevertheless arrive at considered (and definite as well as clear) decisions in accordance with logic, principle and context in the case at hand. They must, in this regard, utilise all relevant legal materials. And they must, of course, assiduously avoid the approach of Humpty Dumpty in Lewis Carroll's Through the Looking-Glass(Macmillan&Co, London, 1871) (a sequel to the same author's equally famous book, Alice's Adventures in Wonderland(Macmillan&Co, London, 1865)); in particular, the court cannot make the word mean what it chooses it to mean. Again, to cite Lord Denning (albeit from another book, The Closing Chapter(Butterworths, London, 1983) at p 58):

So in the allegory Humpty Dumpty makes the word mean just what he chooses it to mean. When he does that, he is riding for a fall. He does fall and is broken in pieces. We all know the nursery rhyme ... [emphasis in original]

3 However, as just mentioned, ascertaining the meaning of words is not always an easy task in practice. Indeed, the late Prof Glanville Williams wrote a famous article almost seven decades ago, which has stood the test of time and whose title is self-explanatory -...