PT Bakrie Investindo v Global Distressed Alpha Fund 1 Ltd Partnership

• Judge: Sundaresh Menon CJ
• Judgment Date: 25 September 2013
• Neutral Citation: [2013] SGCA 51
• Citation: [2013] SGCA 51
• Court: Court of Appeal (Singapore)
• Published date: 02 December 2013
• Docket Number: Civil Appeal No 1 of 2013
• Plaintiff Counsel: Suresh Damodara (Damodara Hazra LLP)
• Defendant Counsel: Hri Kumar Nair SC and Emmanuel Duncan Chua (Drew & Napier LLC)
• Subject Matter: Civil procedure,Judgments and orders,Enforcement
• Hearing Date: 23 July 2013

Andrew Phang Boon Leong JA (delivering the grounds of decision of the court): Introduction

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 (ibid):

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.

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]

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 – “Language and the Law”. It is a veritable tour de force from both theoretical as well as practical points of view, exploring virtually every aspect of language and the law (including even the emotive function of words). However, the quantity as well as quality of the various difficulties resulted in an unprecedented five part article comprising a total of 87 pages and spanning two volumes of The Law Quarterly Review (see (1945) 61 LQR 71, 179, 293 and 384, as well as (1946) 62 LQR 387) – merely underscoring the immense difficulties concerned.

The present appeal was another (albeit more specific as well as modest) instance of the difficulties encountered with the meaning of words (or rather, as already mentioned, a word). As we shall see, the sole issue in this appeal against the decision of the judge (“the Judge”) in Global Distressed Alpha Fund I Ltd Partnership v PT Bakrie Investindo [2013] 2 SLR 429 (“the GD”) centred on the meaning of the word “execution” in O 67 r 10(2) of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) (“the Rules”). In particular, do examination of judgment debtor proceedings (“EJD”) come within the meaning of the word “execution” for the purposes of O 67 r 10(2) of the Rules (“O 67 r 10(2)”)? Order 67 r 10 itself reads as follows:

(1) Execution shall not issue on a judgment registered under the [Reciprocal Enforcement of Commonwealth Judgments Act (Cap 264)] or [Reciprocal Enforcement of Foreign Judgments Act (Cap 265)] until after the expiration of the period which, in accordance with Rule 5(2), is specified in the order for registration as the period within which an application may be made to set aside the registration or, if that period has been extended by the Court, until after the expiration of that period as so extended.

(2) If an application is made to set aside the registration of a judgment, execution on the judgment shall not issue until after such application is finally determined.

(3) Any party wishing to issue execution on a judgment registered under the [Reciprocal Enforcement of Commonwealth Judgments Act (Cap 264)] or [Reciprocal Enforcement of Foreign Judgments Act (Cap 265)] must produce to the Sheriff an affidavit of service of the notice of registration of the judgment and any order made by the Court in relation to the judgment.

[emphasis added in italics and bold italics]

The Judge answered in the negative and an appeal was brought against this decision. We dismissed the appeal and now give the detailed grounds for our decision.

The proceedings below

The Appellant is an investment holding company incorporated in the Republic of Indonesia. In 1996, it underwrote US$50m worth of guaranteed notes issued by one of its subsidiaries. When the subsidiary was unable to make good on those notes at maturity, the Appellant entered into a composition plan with the creditors which was ratified by the courts in Jakarta. On 16 November 2009, the Respondent purchased US$2m of the distressed notes from a prior holder and commenced proceedings on the Appellant’s guarantee on 14 December 2009 in the Commercial Court of England and Wales. Judgment was entered in the Respondent’s favour on 17 February 2011 for the sum of US$2m with interest to be assessed. Default costs totalling £205,327.98 were also awarded on 10 June 2011. These two orders are collectively referred to herein as “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 one Robertus Bismarka Kurniawan (“Mr Kurniawan”), 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 examination of Mr Kurniawan to be adjourned until the Setting Aside proceedings were finally disposed of by the Court of Appeal. On 21 November 2012, the assistant registrar (“AR”) dismissed the Appellant’s application for the examination to be adjourned. On 17 December 2012, the Appellant’s appeal against the AR’s decision was dismissed by the Judge below. The GD was issued on 20 January 2013.

The issues

The Appellant appealed against the GD which dealt with the following issues: Whether an EJD comes within the meaning of the word “execution” for the purposes of O 67 r 10(2) (“Issue 1”)? Whether an application to set aside a registration of a foreign judgment registered under the RECJA is considered “finally determined” for the purposes of O 67 r 10(2) if the application is pending hearing before the Court of Appeal (“Issue 2”).

The main issue was Issue 1. Indeed, in the court below, as the Judge had resolved that particular issue in the Respondent’s favour, his decision on Issue 2 (as he acknowledged in the GD at [33]) was, strictly speaking, obiter dicta.

Before proceeding to consider each of the issues seriatim, it is important – for reasons which will become apparent in a moment – to consider a preliminary procedural point.

A preliminary procedural point

There was a preliminary procedural point which, as we shall see, was of crucial importance. This arose from the Respondent’s submission to this court that the Appellant’s appeal in the present case required leave from the Judge and that, in the circumstances, as no leave had in fact been obtained, the notice of appeal must be struck out. Whether the Respondent’s submission succeeded depended on whether the application to adjourn the EJD was an “interlocutory application”. Paragraph (e) of the Fifth Schedule to the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) provides that:

Except with the leave of a Judge, no appeal shall be brought to the Court of Appeal in any of the following cases:

… (e) where a Judge makes an order at the hearing of any interlocutory application other than an application for any of the following matters: (i) for summary judgment; (ii) to set aside a default judgment; (iii) to strike out an action or a matter commenced by a writ of summons or by any other originating process, a pleading or a part of a pleading; (iv) to dismiss an action or a matter commenced by a writ of summons or by any other originating process; (v) for further and better particulars; (vi) for leave to amend a pleading; (vii) for security for costs; (viii) for discovery or inspection of documents; (ix) for interrogatories to be varied or withdrawn, or for leave to serve interrogatories; (x) for a stay of proceedings.

[emphasis added]

The Respondent’s argument in this particular regard was a straightforward one: the Appellant had applied only for an adjournment of the EJD which had been granted in favour of the Respondent and the Appellant’s substantive argument against the EJD Order was, inter alia, the subject of a separate appeal before this court as part of the...