Recovery Vehicle 1 Pte Ltd v Industries Chimiques Du Senegal and another appeal and another matter

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 29 October 2020
• Neutral Citation: [2020] SGCA 107
• Docket Number: Civil Appeal No 31 of 2020, Civil Appeal No 32 of 2020 and Summons No 86 of 2020
• Date: 29 October 2020
• Published date: 03 November 2020
• Plaintiff Counsel: Chan Wai Kit Darren Dominic and Ng Yi Ming Daniel (Characterist LLC),Bull Cavinder SC, Kong Man Er and Tan Sih Si (Drew & Napier LLC)
• Court: Court of Appeal (Singapore)
• Hearing Date: 09 September 2020
• Subject Matter: Service,Natural Forum,Service of writ out of jurisdiction,Civil Procedure,Conflict of Laws

Steven Chong JA (delivering the judgment of the court): Introduction

These appeals arose from an application to, inter alia, set aside the service of a writ outside of jurisdiction. There was no controversy as to the requirements which a plaintiff has to satisfy to obtain leave for service outside of jurisdiction. Neither was there any dispute that the burden to satisfy each of the requirements rested with such a plaintiff.

In determining whether the burden for each of the requirement is satisfied, the court typically undertakes an analysis of each discrete requirement. However, it should not be overlooked that the analysis of any one of the requirements may have consequential impact on the other requirements.

Unfortunately, this was precisely what occurred in the court below. In determining whether Singapore was the forum conveniens for the resolution of the dispute, it was essential to examine whether there was any available competing jurisdiction. The High Judge below (“the Judge”), for the purposes of the forum non conveniens analysis, found that the claim was time-barred in the other competing jurisdiction, Senegal. The Judge went on rightly to find that as the plaintiff had not acted reasonably in failing to issue a protective writ in Senegal, it could not rely on the unavailability of Senegal to tilt the balance in favour of Singapore as the forum conveniens. However, the court below should have been mindful that the effect of a finding of time bar has a significant impact on the sufficiency of merits requirement for the purposes of obtaining leave for service outside of jurisdiction. After all, by definition, a time-barred claim would have no merit and consequently, such a finding would in itself establish that there was no sufficient degree of merit which would defeat any leave application for service outside of jurisdiction.

Similarly, when a party accepts a fact in aid of a specific legal argument, it may unwittingly cause consequential impact on other legal arguments. In this case, in its quest to establish that Senegal was not an available forum, it was conceded that the claims were time-barred in Senegal. However, that factual concession was made in tandem with the argument that the governing law was Singapore law notwithstanding the opposing party’s contention that it was Senegalese law. The Judge found that Senegalese law was the governing law. Such a finding gave rise to unintended consequences because under Senegalese law, the claims were time-barred. Under such circumstances, is it open to such party to resile from its factual concession on the basis that the concession was made in aid of a different legal argument? As explained below, this would not be permissible as it would constitute an abuse of process. In any event, the evidence before the court was consistent with the factual concession.

This judgment will serve to remind litigants and their legal advisors of the risks in adopting a pigeon-holed view when examining each of the legal requirements for service outside of jurisdiction. Quite often, the analysis is not static but dynamic in nature requiring parties to connect the dots after the analysis to consider and understand the ramifications prior to settling their legal submissions. An omission or failure to do so may give rise to unanticipated adverse consequences.

Facts

The appellant in Civil Appeal No 31 of 2020 (“CA 31”), Recovery Vehicle 1 Pte Ltd (“RV1”), is a Singapore company in the business of recovering stressed debts, and has been assigned the debts purportedly owed by Industries Chimiques Du Senegal (“ICS”) to Affert Resources Pte Ltd (“Affert”). ICS is the appellant in Civil Appeal No 32 of 2020 (“CA 32”).

Affert is a Singapore company which business includes the manufacturing and trading of fertilisers and mineral ores, as well as the charter of ships and barges. Its directors are Mr Syam Kumar Ampajalam (“Mr Syam”) and Ms Vandana Hanumanth Rao Bhounsle (“Ms Vandana”). Mr Syam was the sole shareholder of Affert. Ms Vandana is from the corporate secretarial firm of Crystalbiz Pte Limited and was not involved in the running of Affert. She was based in Singapore.

It is common ground that Affert was controlled by the Archean Group, which is a conglomerate managed from India by the Pendurthi family. Affert’s only active director, Mr Syam, was primarily based in Hong Kong during his conduct of Affert’s business. Both parties agreed that Affert had no active employees in Singapore.

ICS is a Senegal-incorporated company which business includes the production and export of phosphate fertiliser products. ICS was also related to the Archean Group in that 66% of its shares were owned by Senfer Africa Ltd (“Senfer”), which was controlled by the Archean Group. The remaining shares in ICS were held by the State of Senegal, the Government of India and the Indian Farmers Fertilisers Cooperative Ltd.

The Sulphur Contracts

The crux of this dispute concerns six contracts made between Affert and ICS from 11 May 2012 to 10 June 2013 for the purchase of sulphur. We refer to these as the “Sulphur Contracts”. It is undisputed that the Sulphur Contracts were not written. The key details of the Sulphur Contracts may be found in six invoices dated from 11 May 2012 to 10 June 2013 (“the Six Invoices”). We briefly recount the material information as stated in the Six Invoices. An invoice dated 11 May 2012 for US$1,573,000 issued by Affert to ICS for the delivery of Sulphur from Canada to Senegal (“the MV Xenia Shipment”): In respect of this invoice, RV1 claims the sum of US$962,000, after taking into account a part payment made by ICS to Affert’s bank account in Hong Kong on 12 June 2012. Payment for this shipment was to be made within 90 days of the Bill of Lading (“BL”) date (ie, by 19 July 2012). The shipper was listed as Primary Resources, Inc (“Primary Resources”). The BL was endorsed in blank by the Bank of India (Singapore Branch). An invoice dated 6 August 2012 for US$5,800,837 issued by Affert to ICS for the delivery of sulphur from the United Arab Emirates (“the UAE”) to Senegal (“the Transfert Shipment”): In respect of this invoice, RV1 claims the sum of US$1,120,837, after deducting part payments that ICS made in Hong Kong on 7 December 2012, 20 February 2013, 15 April 2013 and 9 January 2014 although payment was to be made within 60 days from the BL date (ie, by 27 September 2012). Affert purchased this shipment from Transfert FZCO (“Transfert”) for US$5,674,313.09. Affert, however, did not make any payment to Transfert. This subsequently led to a dispute between Transfert and Affert, with Transfert commencing Suit No 1072 of 2014 against Affert on 9 October 2014. On 30 March 2015, Transfert filed a Notice of Discontinuance after payment was made to Transfert. An invoice dated 27 September 2012 for US$6,475,350 issued by Affert to ICS for the delivery of Sulphur from Poland to Senegal (“the Solvadis Shipment”): RV1 claims the full price of US$6,475,350. Payment was to be made at sight of the cargo. Affert’s Ledger Account for the period from 1 January 2012 to 31 December 2012 indicated that Solvadis Commodity Chemicals Gmbh (“Solvadis”) had charged Affert US$5,761,740 for this shipment. Presumably, Affert intended to make the difference of US$713,610 as profit by on-selling the sulphur to ICS. An invoice dated 7 March 2013 for US$6,012,500 issued by Affert to ICS for the delivery of sulphur from Ukraine to Senegal (“the MV Amanda C Shipment”): RV1 claims the full price of US$6,012,500. Payment was to be made at sight of the cargo. The shipper named in the BL was Tengizchevroil International (Bermuda) Limited, a Bermuda company. The consignee was named as the Bank of India (Singapore Branch), and the notify party was ICS. An invoice dated 7 May 2013 for US$1,247,077.60 issued by Affert to ICS for the delivery of sulphur from Canada to Senegal (“the MV Beauforte Shipment”): RV1 claims the full price of US$1,247,077.60. Payment was to be made within 60 days from the BL date (ie, by 5 July 2013). This shipment was purchased by Affert from the Mineral Trade Group based in Dubai. The shipper named in the BL was Primary Resources and the notify party was ICS. The BL was endorsed in blank by Mashreqbank, Dubai. An invoice dated 10 June 2013 for US$1,189,500 issued by Affert to ICS for the delivery of sulphur from Spain to Senegal (“the MV Lena Shipment”): RV1 claims the full price of US$1,189,500. Payment was to be made within 60 days from the BL date by 29 June 2013. According to RV1, Affert purchased this shipment from Mineral Trade Group. The named shipper was Primary Resources and the notify party was ICS. The BL was endorsed in blank by Mashreqbank, Dubai.

In total, RV1 claims the sum of US$17,007,263.60 from ICS (“the ICS Debt”).

Apart from the issue of payment, there was also a dispute between ICS and Affert concerning the quality of the Solvadis Shipment. According to ICS, it informed Affert in 2012 and 2013 that the sub-standard quality of the Solvadis Shipment sulphur had led to the closure of one its plants. Affert had, in a letter to the Inland Revenue Authority dated on 14 June 2016, recorded the sum of US$6,475,350 (the sum due pursuant to the Solvadis Shipment) as a “doubtful debt” for the 2014 Year of Assessment. RV1’s representative, Mr Damian John Prentice (“Mr Prentice”) exhibited in his affidavit certain answers provided by Ms Vandana in Examination of Judgment Debtor proceedings commenced by Solvadis against Affert. There, Ms Vandana stated that Affert had not pursued ICS for the Solvadis Shipment as it did not have the funds to “fight” ICS and that it did not wish to provoke a counter-claim by ICS for damage to ICS’s plant, which purportedly came up to US$22.4 million.

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