Regalindo Resources Pte Ltd v Seatrek Trans Pte Ltd

• Jurisdiction: Singapore
• Judgment Date: 16 May 2008
• Date: 16 May 2008
• Docket Number: Originating Summons No 246 of 2008
• Court: High Court (Singapore)

Regalindo Resources Pte Ltd

Plaintiff

and

Seatrek Trans Pte Ltd

Defendant

[2008] SGHC 74

Andrew Ang J

Originating Summons No 246 of 2008

High Court

Civil Procedure–Injunctions–Restraining foreign proceedings–Whether action to obtain security in foreign jurisdiction in breach of agreement to arbitrate–Whether action to obtain security in foreign jurisdiction vexatious or oppressive

The defendant in the present proceedings, Seatrek Trans Pte Ltd (“Seatrek”), commenced arbitration proceedings in Singapore against the plaintiff, Regalindo Resources Pte Ltd (“Regalindo”), over an alleged breach of a time charter agreement. Prior to the commencement of arbitration, Seatrek filed an action in the US District Court and obtained a Rule B attachment for security in the amount of US$3,777,200 on 23 January 2008.

On 5 February 2008, Regalindo sought to transfer a sum of US$249,975 from a bank account in Singapore to one of its suppliers in Indonesia. Pursuant to the Rule B attachment notice, the said sum was attached by the intermediary clearing bank, The Bank of New York. Regalindo then applied to the High Court to restrain Seatrek from continuing with the foreign proceedings and to release all moneys attached pursuant to the Rule B attachment notice.

Held, dismissing the application:

(1) The US courts were best positioned to interpret and apply their own laws. In the circumstances, the High Court would assume that the funds attached by the intermediary clearing bank had been attached in accordance with the laws of the US: at [10].

(2) In the absence of clear and unequivocal language, the retention of security per se in New York by the defendant would not be inconsistent with the agreement to arbitrate: at [16].

(3) The fact that the remedies sought in the foreign proceedings were not available in Singapore should not automatically mean that an anti-suit injunction ought to be granted. If a party could satisfy the court that there was good reason behind its institution of the foreign legal process, the court, in deciding whether to grant an anti-suit injunction, would have to balance the hardship caused to the plaintiff against the defendant's need to invoke the foreign process. On the present facts, the court was of the view that the balance favoured the defendant: at [21], [22] and [31].

Aqua Stoli Shipping Ltd v Gardner Smith Pty Ltd460 F 3d 434 (2nd Cir, 2006) (refd)

Bank of America National Trust and Savings Association v Djoni Widjaja [1994] 2 SLR (R) 898; [1994] 2 SLR 816 (folld)

Evergreen International SA v Volkswagen Group Singapore Pte Ltd [2004] 2 SLR (R) 457; [2004] 2 SLR 457 (refd)

General Tankers Pte Ltd v Kundan Rice Mills Ltd475 F Supp 2d 396 (SDNY, 2007) (refd)

Koh Kay Yew v Inno-Pacific Holdings Ltd [1997] 2 SLR (R) 148; [1997] 3 SLR 121 (refd)

Lisboa, The [1980] 2 Lloyd's Rep 546 (folld)

Q & M Enterprises Sdn Bhd v Poh Kiat [2005] 4 SLR (R) 494; [2005] 4 SLR 494 (refd)

Reibor International Limited v Cargo Carriers (KACZ-Co) Ltd759 F 2d 262 (2nd Cir, 1985) (refd)

Société Nationale Industrielle Aerospatiale v Lee Kui Jak [1987] AC 871 (folld)

Winter Storm Shipping, Ltd v TPI310 F 3d 263 (2nd Cir, 2002) (refd)

High Court (Admiralty Jurisdiction) Act (Cap 123, 2001 Rev Ed)

Tan Poh Ling Wendy and Fu Simin Charmaine (KhattarWong) for the plaintiff

Leong KahWah and Koh See Bin (Rajah & Tann LLP) for the defendant.

Judgment reserved.

Andrew Ang J

1 The defendant in this originating summons, Seatrek Trans Pte Ltd (“Seatrek”), had commenced arbitration proceedings in Singapore against the plaintiff, Regalindo Resources Pte Ltd (“Regalindo”), seeking damages for an alleged breach of a time charter dated on or about 21 November 2007. The alleged breach relates to Regalindo's failure to take delivery of the vessel Startec. Regalindo's position was that it did not enter into the said agreement with Seatrek.

2 Prior to the commencement of arbitration, Seatrek commenced an action in the United States District Court for the Southern District of New York (“the New York District Court”). The action filed on 22 January 2008 consisted of a complaint along with an ex parte application for the issuance of a Rule B attachment to obtain security in the amount of US$3,777,200 (“the New York Proceedings”). The Rule B attachment was granted on 23 January 2008 and was subsequently served on 12 major banks in New York, one of which was The Bank of New York.

3 On 5 February 2008, Regalindo sought to transfer a sum of US$249,975 from a Singapore bank account to the bank account of one of its suppliers in Jakarta, Indonesia. The Bank of New York, which stood as an intermediary bank for the transfer, attached the said sum pursuant to the Rule B attachment notice. It was only on 11 February 2008 that Regalindo was informed by the US solicitors of Seatrek, by way of a letter dated 6 February 2008, of the attachment and the New York Proceedings.

4 A week later, on 18 February 2008, Seatrek relied on an arbitration clause in the disputed time charter and served a notice of commencement of arbitration on Regalindo. The aforesaid arbitration clause provided for arbitration in Singapore in the event of any dispute and that the time charter would be governed by English law. At the same time, Seatrek also gave notice of appointment of its arbitrator and called on Regalindo to appoint its own arbitrator within seven days, failing which Seatrek's appointed arbitrator would be the sole arbitrator. On 25 February 2008, without prejudice to Regalindo's rights to challenge the existence of the alleged arbitration agreement and the jurisdiction of the arbitral tribunal, Regalindo appointed an arbitrator. A day later, Regalindo applied to this court seeking an order to restrain Seatrek from continuing with the New York Proceedings and to release all moneys attached pursuant to the Rule B attachment.

Rule B attachment

5 A Rule B attachment in aid of claims being pursued outside of the US is apparently of ancient origin in the US. According to Aqua Stoli Shipping Ltd v Gardner Smith Pty Ltd 460 F 3d 434 (2nd Cir, 2006) (“Aqua Stoli”) at 445, an attachment order could be obtained at anex parte hearing on demonstration that: (a) there is a valid prima facie admiralty claim against the respondent; (b) the respondent cannot be found within the court district; (c) the respondent's property may be found within the district; and (d) there is no statutory or maritime law bar to the attachment. In this regard, the United States Court of Appeals for the Second Circuit (“the Second...