PT Garuda Indonesia v Birgen Air

• Jurisdiction: Singapore
• Judge: Woo Bih Li JC
• Judgment Date: 11 September 2001
• Neutral Citation: [2001] SGHC 262
• Citation: [2001] SGHC 262
• Court: High Court (Singapore)
• Plaintiff Counsel: K S Rajah SC, Lawrence Quahe and Michelle Elias (Harry Elias Partnership)
• Defendant Counsel: Vangat Ramayah (Wee Ramayah & Partners)
• Published date: 09 April 2013

Judgment:

BACKGROUND

1. In this application PT Garuda Indonesia ('Garuda'), a company organised under the laws of Indonesia, is the Plaintiff. Birgen Air, a company incorporated under the laws of the Republic of Turkey, is the Defendant.

2. By an Aircraft Lease Agreement dated 20 January 1996 between Birgen Air and Garuda, Birgen Air agreed to lease one DC10-30 aircraft to Garuda ('the Lease Agreement').

3. Subsequently, a dispute arose between the parties arising from Birgen Air's intention to substitute the aircraft that was to be leased to Garuda.

4. The dispute was referred to arbitration in which Garuda was the Claimant and Birgen Air was the Defendant.

5. The venue of the hearing of the arbitration was Singapore. The hearing was on 4, 5 and 6 August 1999.

6. Subsequently a final award called the Award Sentence dated 15 February 2000 was rendered ('the Award'). The Award was signed by two members of the tribunal i.e Dr Croft (from Australia) and Professor Inan (from Turkey). The third member, Dr Abdurrasyid (from Indonesia), declined to sign it.

7. Later, the majority of the tribunal rendered an Addendum to Final Award dated 18 May 2000 ('the Addendum').

8. The majority of the tribunal also rendered a Decision With Respect to Final Award on 21 November 2000 ('the Decision').

9. Garuda then filed a Notice of Originating Motion on 3 January 2001 in the High Court of the Republic of Singapore to set aside the Award and/or the Addendum and/or the Decision and for various relief.

10. On 27 March 2001, Garuda applied ex-parte for leave to serve the Notice of Originating Motion on Birgen Air out of Singapore and also for leave to serve by substituted service within Singapore.

11. The application was filed pursuant to O 69A r 4 read with O 11, and O 62 r 5 of the Rules of Court. I was informed that Garuda had dropped its reliance on Order 11 at the ex parte hearing of its application.

12. On 30 March 2001, an Order of Court was made by an assistant registrar in terms substantially, but not entirely, as prayed for in Garuda's application.

13. Paragraphs 3 and 4 of the Order state:

'3. Leave be given to the Plaintiff to effect service of the Notice of Originating Motion on the Defendant, Birgen Air, by sending a copy of the Notice of Originating Motion together with a copy of the Order of Court dated this 30th day of March 2001, by express courier, to the Defendant's solicitors at:

Donald H. Bunker and Associates Suite 1606 Al Reem Tower Al Maktoum Road P.O. Box 29726 Dubai United Arab Emirates

and also by posting similar copies of the Notice of Originating Motion and Order of Court on the Notice Board of this Honourable Court and such service shall be deemed good and sufficient service of the said Notice of Originating Motion on the Defendant; 4. Leave be given to the Plaintiff to effect service of the Notice of Originating Motion on the Defendant, Birgen Air, by serving a copy of the Notice of Originating Motion together with a copy of the Order of court dated this 30th day of March 200 (sic), on the Defendant's solicitors in Singapore at: M/s Wee Ramayah & Partners 5 Shenton Way #23-01 UIC Building Singapore 068808

and such service shall be deemed good and sufficient service of the said Notice of Originating Motion on the Defendant.'

14. On 7 April 2001, Birgen Air applied, inter alia, to set aside the Order and all other subsequent proceedings including services of the Notice of Originating Motion and other documents.

15. On 26 July 2001, after hearing arguments, I set aside the Order and all other subsequent proceedings including services of the Notice of Originating Motion and other documents pursuant to the Order with costs.

16. Garuda has appealed against my decision.

17. In the application by Birgen Air, Mr Vangat Ramayah for Birgen Air raised various arguments.

18. As I was able to reach a decision without going into all of Mr Ramayah's arguments, my Grounds will be in respect of some of his arguments only.

MATERIAL NON-DISCLOSURE

19. Mr Ramayah submitted that Garuda had a duty to make full and frank disclosure in its application for leave under O 69A r 4. He relied on a decision by Kan Ting Chiu J in Transniko Pte Ltd v Communication Technology Sdn Bhd [1996] 1 SLR 580 for this proposition. That was a case for leave to serve a writ out of jurisdiction under O 11. Kan J said, at p 583G, 'The duty on the applicant is onerous, and if he fails to discharge it, the leave granted may be set aside even if the non-disclosure is innocent'.

20. Mr K S Rajah SC and Mr Lawrence Quahe who appeared for Garuda did not dispute the duty to make full and frank disclosure nor that the leave granted could be set aside even if the non-disclosure is innocent. Neither was it disputed that this proposition equally applies to an ex parte application for leave to serve out of jurisdiction under O 69A r 4.

21. However, Mr Quahe submitted that I also had the discretion not to set aside the leave granted if there was material, but innocent, non-disclosure, citing Brink's-MAT Ltd v Elcombe & others [1988] 3 All ER 188 which was a case involving an ex parte application for a Mareva Injunction. In any event, Mr Ramayah did not dispute that I had the discretion not to set aside the leave granted even if there was material, but innocent, non-disclosure.

Was there material non-disclosure?

22. Order 69A r 4 states:

'Service out of jurisdiction of originating process (O.69A, r.4)

4(1) Service out of the jurisdiction of the notice of an originating motion or the originating summons or of any order made on such motion or summons under this Order is permissible with leave of the Court whether or not the arbitration was held or the award was made within the jurisdiction.

(2) An application for the grant of leave under this Rule must be supported by an affidavit stating the ground on which the application is made and showing in what place or country the person to be served is, or probably may be found; and no such leave shall be granted unless it shall be made sufficiently to appear to the Court that the case is a proper one for service out of the jurisdiction under this Rule.

(3) ….' [Emphasis added.]

23. Mr Ramayah submitted that although the requirements under O 69A r 4(1) and (2) are not identical with O 11 r 2(1) and (2), they are similar and hence the case-law on what constitutes a proper case for service out of jurisdiction under O 11 r 2(2) should likewise apply to O 69A r 4(2).

24. Order 11 r 2(1) and (2) states:

'Manner of application (O.11, r.2)

2. (1) An application for the grant of leave under Rule 1 must be made by an ex parte summons in chambers supported by an affidavit in Form 12 stating -

(a) the grounds on which the application is made;

(b) that in the deponent's belief the plaintiff has a good cause of action;

(c) in what place or country the defendant is, or probably may be found;

(d) where the application is made under Rule 1(c), the grounds for the deponent's belief that there is between the plaintiff and the person on whom an originating process has been served a real issue which the plaintiff may reasonably ask the Court to try; and (e) whether it is necessary to extend the validity of the writ.

(2) No such leave shall be granted unless it shall be made sufficiently to appear to the Court that the case is a proper one for service out of Singapore under this Order.' [Emphasis added.]

25. As can be seen, the requirements of O 11 r 2(1)(a) and (c) are similar to those in O 69A r 4(1). More importantly, both O 11 r 2(2) and O 69A r 4(2) require the Court to be satisfied that the case is a proper one for service out of jurisdiction.

26. However, Mr Quahe disagreed with Mr Ramayah. Mr Quahe submitted that O 11 r 2(1) and (2) was prohibitive whereas O 69A r 4(1) and (2) was discretionary. Also, O 11 dealt with writs issued within Singapore unlike O 69A. He submitted that the authorities on a proper case under O 11 r 2(2) do not apply as regards a proper case under O 69A r 4(2).

27. Mr Quahe submitted that so long as the supporting affidavit contains the material mentioned in O 69A r 4(2), the application would be a proper case for service out of jurisdiction. That is why the supporting affidavit for Garuda sought to establish the address of Birgen Air only as that was the requirement under O 69A r 4(2). Mr Quahe cited Overseas Union Insurance Ltd v Incorporated General Insurance Ltd [1992] 1 Lloyd's Law Report 439 ('the OUI case') to support his submissions. However that is a case on the English equivalent of our O 11 and not O 69A. It seemed to me that Mr Quahe was blowing hot and cold.

28. Interestingly, the passage that Mr Quahe was relying on in the OUI case was also the passage which Mr Ramayah was relying on.

29. The passage is at p 447 to 448 of the report where Parker LJ said: 'Where then does all this lead? It leads in my view to this, that there is only one requirement, namely that it shall be made sufficiently to appear that the case is a proper one. There is one overall scheme of which the elements are a case on the merits, fulfilment of one or more of the qualifying conditions, and England being the most appropriate forum in the sense that England is the forum in which the case can most suitably be tried in the interests of all the parties and for the ends of justice. As to the last see Spiliada Maritime Corporation v Cansulex Ltd., [1987] 1 Lloyd's Rep. 1; [1987] A.C. 460.'

30. I was of the view that this passage did not support Mr Quahe's submissions. It did not say that so long as the other requirements in O 69A r 4(2) were satisfied, the Notice of Motion would be one that is a proper case for service out of jurisdiction.

31. Furthermore the sentence which states that there is only one requirement should be read in the context of the entire passage. The one requirement pertains to the requirement of a...