PT Bumi International Tankers v Man B&W Diesel S E Asia Pte Ltd and Another (No 2)

• Jurisdiction: Singapore
• Judge: Choo Han Teck J
• Judgment Date: 14 May 2004
• Neutral Citation: [2004] SGHC 99
• Citation: [2004] SGHC 99
• Date: 14 May 2004
• Published date: 19 May 2004
• Plaintiff Counsel: Philip Tay (Rajah and Tann)
• Docket Number: Suit No 149 of 2001 (Registrar's Appeal No 367 of 2003)
• Defendant Counsel: Charles Lin (Donaldson and Burkinshaw)
• Court: High Court (Singapore)
• Year: 2004

14 May 2004

Choo Han Teck J:

1 This was an appeal by the defendants against an order by the assistant registrar discharging two undertakings given by the plaintiffs’ solicitors to the defendants in respect of security for costs. The plaintiffs were required to provide security for costs pursuant to an application by the defendants on the ground that the plaintiffs were foreign plaintiffs. The order for security was not an issue. However, instead of providing security in the more conventional way by payment into court or in the form of a banker’s guarantee, the plaintiffs provided security by way of undertakings given by their solicitors to the defendants in the terms set out in their letters of 12 March 2002 and 18 June 2002. The wording is identical in both letters. The total amount of security in the two letters of undertaking was $250,000. The first letter of undertaking provided as follows:

LETTER OF UNDERTAKING FOR PROVISION OF SECURITY FOR COSTS PURSUANT TO ORDER OF COURT DATED 19 FEBRUARY 2002 FOR DEFENDANTS IN SUIT NO 149 OF 2001Y

Whereas pursuant to an Order of Court dated 19 February 2002 in the captioned Suit, the Plaintiffs were ordered to provide security for the Defendants’ costs in the Suit in the sum of S$150,000.00.

We, Rajah & Tann, Solicitors for the Plaintiffs in High Court Suit No 149 of 2001Y, hereby undertake to pay to Man B & W Diesel S E Asia Pte Ltd and Mirlees Blackstone Ltd, the Defendants in the aforesaid Suit such sum of costs which the said Plaintiffs may be ordered to pay to Man B & W Diesel S E Asia Pte Ltd and Mirlees Blackstone Ltd as taxed or fixed by the High Court in the Suit and/or such costs which may be payable pursuant to any agreement between the parties in relation to the Suit PROVIDED ALWAYS that the total payable hereunder shall not exceed the sum of SINGAPORE DOLLARS ONE HUNDRED AND FIFTY THOUSAND ONLY (S$150,000)

This undertaking shall be discharged and be of no further effect upon payment of the sum above and/or if the Defendants are paid all their costs without having to call on this undertaking, whichever is earlier.

2 The plaintiffs succeeded in their claim at trial and judgment was handed down in their favour on 18 July 2003. The defendants filed an appeal against that judgment, but in the meantime, on 15 October 2003, the plaintiffs applied to the assistant registrar to be released from their undertakings in respect of security for costs. The assistant registrar discharged the undertakings and also disallowed the defendants’ application for a stay of execution of her order. The defendants appealed against the assistant registrar’s orders, and the appeal was heard in this court on 29 October 2003 and dismissed. The defendants subsequently asked to present further arguments. They were notified on 17 November 2003 that the court would hear further arguments.

3 The parties appeared and made further arguments on 9 January 2004. The defendants’ counsel presented an enlarged argument based on Hawkins Hill Consolidated Gold Mining Company Limited v Want, Johnson, and Co (1893) 69 LT 297. In the course of arguments, counsel indicated that the argument would require time and a special date was then given for the hearing. At the...