PT Makindo (formerly known as PT Makindo TBK) v Aperchance Co Ltd and others

• Jurisdiction: Singapore
• Judge: Chan Sek Keong CJ
• Judgment Date: 27 April 2011
• Neutral Citation: [2011] SGCA 19
• Date: 27 April 2011
• Docket Number: Civil Appeal No 137 of 2010
• Published date: 28 April 2011
• Plaintiff Counsel: Chandra Mohan s/o Rethnam, Mabelle Tay Jiahui and Gillian Hauw (Rajah & Tann LLP)
• Hearing Date: 10 February 2011
• Defendant Counsel: Davinder Singh SC, Alecia Quah and Nabil Mustafiz (Drew & Napier LLC)
• Court: Court of Appeal (Singapore)
• Subject Matter: Contempt of Court

Chan Sek Keong CJ (delivering the grounds of decision of the court):

This is an appeal against the decision of the High Court judge (“the Judge”) dismissing the Appellant’s application to cite the Respondents for contempt of court (see PT Makindo (formerly known as PT Makindo TBK) v Aperchance Co Ltd and others [2010] 4 SLR 954 (“the GD”)).

At the conclusion of the hearing, we dismissed the appeal with costs. We now give our reasons.

The Appellant is an Indonesian investment bank. The 1st Respondent is a company incorporated in Hong Kong. The 2nd and 3rd Respondents are the only directors and shareholders of the 1st Respondent. Both of them are based in Singapore.

Background to the dispute The previous proceedings

On 22 November 2003, the 1st Respondent commenced Suit No 1149 of 2003 (“Suit 1149/2003”) against the Appellant and three other parties (“the 3 Defendants in Suit 1149/2003”) for repayment of US$126m. On 24 November 2003, the 1st Respondent obtained an ex parte worldwide Mareva injunction against the Appellant (“the worldwide Mareva injunction”). On 27 February 2004, the worldwide Mareva injunction was set aside by the High Court on the ground that it had no jurisdiction over the Appellant and the 3 Defendants in Suit 1149/2003 (collectively, “the Defendants in Suit 1149/2003”). The 1st Respondent was ordered to pay the costs of the Defendants in Suit 1149/2003 and to serve the court order (“the 27 February 2004 Court Order”) on all parties who had earlier been notified of the worldwide Mareva injunction.

The 1st Respondent did not appeal against the 27 February 2004 Court Order, and subsequently complied with its terms by informing, on 5 March 2004, all the relevant parties of the setting aside of the worldwide Mareva injunction as well as by paying the costs of the Defendants in Suit 1149/2003 in September 2009.

The advertisements

Between 7 and 11 January 2010, the 1st Respondent placed an advertisement in five major Indonesian newspapers, including Bisnis Indonesia, Kompas and Kontan (“the Advertisements”). The relevant part of the Advertisements (translated into English from Bahasa Indonesia) reads:

IMPEDING AND BLOCKAGE

THE ENTIRE ASSETS/CAPITAL OF PT. MAKINDO. TBK., RACHMIWATY JUSUF, GUNAWAN JUSUF AND CLAUDINE JUSUF ALL OVER THE WORLD PURSUANT TO THE JUDGMENT OF THE SINGAPORE HIGH COURT NO. S. 1149/2003/H DATED 24TH NOVEMBER 2003

IN THE CASE BETWEEN: APERCHANCE COMPANY LIMITED (the “PLAINTIFF”) AGAINST PT. MAKINDO. TBK., RACHMIWATY JUSUF, GUNAWAN JUSUF AND CLAUDINE JUSUF (the “DEFENDANTS”)

The information in the Advertisements may have been correct as at 24 November 2003, but it was false and misleading as at the date of their publication as the “IMPEDING AND BLOCKAGE” order had been discharged on 27 February 2004. The Advertisements were placed by the 1st Respondent in response to certain advertisements placed in December 2009 and January 2010 by the Appellant in the same Indonesian newspapers, in which the Appellant had claimed, falsely, that the 1st Respondent’s claim against the Defendants in Suit 1149/2003 had been dismissed by the Singapore High Court on the merits.

On learning about the Advertisements, the Appellant, through its solicitors, wrote on 11 and 20 January 2010 to each of the Respondents protesting against the publication of the Advertisements, and stating that it would seek to “recover substantial damages and reliefs”. The Appellant also requested the Respondents to confirm whether they had authorised the publication of the Advertisements. The Respondents ignored the Appellant’s requests.

The Appellant’s application for leave to commence committal proceedings

This led the Appellant to apply, ex parte, in Originating Summons No 190 of 2010 for leave of court to commence committal proceedings against the Respondents for contempt of court. Leave was granted. The Appellant filed a statement pursuant to O 52 r 2(2) of the Rules of Court (Cap 322, R 5, 2006 Rev Ed), in which it was stated: [18] However, nowhere in the advertisements was it mentioned that the worldwide Mareva Injunction had been set aside on 27 February 2004 or that the service of the Writ of Summons and Statement of Claim in Suit 1149 of 2003/H by the 1st Respondent on the Plaintiffs in Suit 1149 has [sic] been similarly set aside. [19] This is a blatant disregard for and willful [sic] disobedience of the Order of Court dated 27 February 2004. The advertisements are utterly untrue and amount to a contempt of court. They wholly fail to mention that the worldwide Mareva Injunction has [sic] been set aside and is no longer in force. Additionally, the advertisements are in breach of the Order of Court dated 27 February 2004 requiring the 1st Respondent to serve copies of Orders of Court dated 27 February 2004 on parties who were notified of...