Rickshaw Investments Ltd and Another v Nicolai Baron von Uexkull

CourtCourt of Appeal (Singapore)
JudgeChan Sek Keong CJ
Judgment Date03 November 2006
Neutral Citation[2006] SGCA 39
Citation[2006] SGCA 39
Defendant CounselLeung Wing Wah and Lim Tiek Beng Jonathan (Sim & Wong LLC)
Plaintiff CounselCavinder Bull and Lim Gerui (Drew & Napier LLC)
Published date10 November 2006
Docket NumberCivil Appeal No 30 of 2006 and Summons No 2929 of 2006
Date03 November 2006
Subject MatterForum non conveniens,Natural forum,Appellants commencing claim in tort in Singapore,Equity,Tort,Whether exception to application of double actionability rule existing,Choice of law rules governing equitable claims,Whether such exception applicable to torts committed in Singapore,Whether appellants' claim amounting to illegitimate attempt to undermine jurisdiction clause and choice of law clause in employment agreement,Choice of law,Conflict of Laws,Whether Singapore natural forum to hear dispute,Whether claims in equity subject to automatic and blanket application of lex fori as lex causae,Whether danger of conflicting judgments warranting stay of Singapore proceedings,Respondent commencing action in Germany based on employment agreement

3 November 2006

Judgment reserved.

Andrew Phang Boon Leong JA (delivering the judgment of the court):


1 This is an appeal by Rickshaw Investments Limited (“the first appellant”) and Seabed Explorations GBR (“the second appellant”), collectively known as “the appellants”, against the decision of the judge below (“the Judge”) that the appellants’ action against one Nicolai Baron von Uexkull (“the respondent”) be stayed on the ground of forum non conveniens (see Rickshaw Investments Ltd v Nicolai Baron Von Uexkull [2006] 2 SLR 850 (“the GD”)).

2 Before us, counsel for the appellants made an application to adduce fresh evidence in the form of an affidavit filed by one Mahesh Narayan (“Narayan”). We allowed the application, pending the filing of the respondent’s reply. The respondent filed its reply on 11 August 2006.

The facts

3 Sometime in 2001, the second appellant hired the respondent to market Tang dynasty artefacts (“the Tang Cargo”) that had been salvaged from Indonesian waters. The respondent is a Singapore permanent resident, and was based in Singapore at the time. The second appellant orally appointed the respondent as a freelance marketing agent to find buyers in Singapore for the Tang Cargo. While the appellants contend that the respondent only marketed the Tang Cargo in Singapore, the respondent states that he marketed the Tang Cargo in various countries, including Singapore, Brunei, China, Hong Kong, Taiwan, Malaysia and the United States. The respondent was to be paid DM8,000 per month, in addition to any reimbursements for marketing expenses incurred, as well as a 4% commission of the sale price of the Tang Cargo.

4 The oral arrangement was terminated by the second appellant via a letter dated 28 August 2002, and was to take effect on 31 October 2002 (“the first termination letter”). On 1 December 2002, the second appellant revived the agency agreement. This was supposed to continue until 28 February 2003, but the respondent continued to act as the second appellant’s agent even after this date. On 30 June 2003, the second appellant executed a document prepared by the respondent’s lawyer which stated that the second appellant and the respondent had agreed on freelance employment (“the Employment Agreement”). The Employment Agreement contained a composite jurisdiction and choice of law clause, which read as follows:

The Parties agree on German law for this contract and the competence of the German courts.

5 On 6 October 2003, the second appellant transferred its business, rights, assets, contract and engagements to the first appellant. The first appellant asked the respondent to cease all marketing activities on 31 March 2004. The first appellant finally terminated the respondent’s services via a termination letter (“the second termination letter”) on 9 June 2004.

6 The respondent commenced proceedings in Germany against the first appellant (“the German proceedings”). His claim was in contract, based on the Employment Agreement, and he sought:

(a) salary and expenses accruing to him from 2001 to 2003 amounting to €242,867.40;

(b) a declaration that the second termination letter did not terminate the agency; and

(c) disclosure of information about the sale of the Tang Cargo.

7 A statement of claim was filed on 8 September 2004 in the German court, and a statement of defence was filed on 21 November 2004. The parties attended court on 9 December 2004 and consent judgment was entered into for €151,700.10. To date, only partial payment has been made by the first appellant. On 28 April 2005, the German court heard the testimony of one witness, Mr Matthias Draeger, who was a partner of the second appellant. Mr Draeger is a German national residing in Germany. On 22 December 2005, the German court released a decision for parties to reply to pleadings and to schedule an oral hearing. The German judge held, inter alia, that because the plaintiff in that case (the respondent in the present case) disputed the evidence in the affidavit of one Mr Koh Seow Chuan (“Mr Koh”), who was the chief negotiator from the Singapore Tourism Board (“STB”) for the Tang Cargo, Mr Koh’s presence was required so that he could be questioned. The oral hearing before the German court was scheduled for 16 February 2006; it is not clear from the evidence before us whether the hearing went ahead. There is also a motion to dismiss the claim filed by the defendant in that case (the first appellant in the present case) which is still pending.

8 The appellants commenced the current action against the respondent in Singapore on 10 June 2005. The appellants have stated four causes of action (“the substantive actions”), as follows:

(a) conversion of 25 pieces of the Tang Cargo by the respondent;

(b) breach of the respondent’s equitable duty of confidentiality towards the appellants;

(c) breach of the respondent’s fiduciary duties as agent of the appellants; and

(d) deceit arising from the respondent’s misrepresentations.

9 The respondent filed his memorandum of appearance in the Singapore proceedings on 27 July 2005 and subsequently made the current application for a stay on 8 August 2005.

10 It is at this point appropriate to summarise the facts surrounding the contentions made by the appellants in the substantive claims. According to the appellants, sometime in late 2002, the respondent represented to the second appellant that he had found an interested buyer for the Tang Cargo at a price of US$48m. This buyer was STB. On or about February 2003, in breach of his duties, the respondent falsely represented that STB was willing to purchase the Tang Cargo for US$48m. In fact, STB had not given such an indication. The second appellant relied on this to grant a two-month period of exclusivity to STB, during which time the second appellant agreed not to enter into commercial negotiations with any other party in respect of the Tang Cargo.

11 On 21 October 2003, after the second appellant had transferred its rights and business over to the first appellant, STB informed the first appellant that it had never agreed to purchase the Tang Cargo and had never agreed to a purchase price of US$48m. The respondent continued to state that STB had made such an offer, and that the latter’s denial was merely a negotiation tactic. The appellants allege that on or about 10 May 2004, the respondent met with STB representatives and disclosed to them that the first appellant needed to conclude a sale urgently and was likely to conduct a public auction. However, if STB offered US$32m for the Tang Cargo, the first appellant would consider selling it to STB. The respondent further told STB to act as if the meeting had never taken place. The first appellant was unaware of this meeting. In August 2004, the first appellant and STB negotiated for the sale and purchase of the Tang Cargo. STB would not agree to any price above US$32m. As the first appellant was running short of funds, it was compelled to agree to the sale.

The approach

12 The governing principle in natural forum cases is that articulated in the seminal House of Lords decision of Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460 (“Spiliada”), which has been approved by the Singapore Court of Appeal on many occasions as being part of our local law (see, for example, the Singapore Court of Appeal decisions of Brinkerhoff Maritime Drilling Corp v PT Airfast Services Indonesia [1992] 2 SLR 776 (“Brinkerhoff”) and PT Hutan Domas Raya v Yue Xiu Enterprises (Holdings) Limited [2001] 2 SLR 49).

13 In Brinkerhoff, Chao Hick Tin J (as he then was), delivering the judgment of the court, observed as follows (at 784, [35]):

Lord Goff, who delivered the judgment of the House [in the Spiliada case], to which the other four Law Lords agreed, restated the law (and in so restating, took into account the Scottish authorities as well) which is summarized in the third cumulative supplement to Dicey & Morris on Conflict of Laws (11th Ed) at para[s] 393–395 as follows:

(a) the basic principle is that a stay will only be granted on the ground of forum non conveniens where the court is satisfied that there is some other available forum, having competent jurisdiction, which is the appropriate forum for the trial of the action, ie in which the case may be tried more suitably for the interest of all the parties and the ends of justice;

(b) the legal burden of proof is on the defendant, but the evidential burden will rest on the party who asserts the existence of a relevant factor;

(c) the burden is on the defendant to show both that England is not the natural or appropriate forum, and also that there is another available forum which is clearly or distinctly more appropriate than the English forum;

(d) the court will look to see what factors there are which point to the direction of another forum, as being the forum with which the action has the most real and substantial connection, eg factors affecting convenience or expense (such as availability of witnesses), the law governing the transaction, and the places where the parties reside or carry on business;

(e) if at that stage the court concludes that there is no other available forum which is clearly more appropriate it will ordinarily refuse a stay;

(f) if there is another forum which prima facie is clearly more appropriate the court will ordinarily grant a stay unless there are circumstances by reason of which justice requires that a stay should not be granted, and, in this inquiry the court will consider all the circumstances of the case. But the mere fact that the plaintiff has a legitimate personal or juridical advantage in proceeding in England is not decisive; regard must be had to the interests of all the parties and the ends of justice.

14 In a similar vein, in the Singapore Court of Appeal decision of Eng Liat Kiang v Eng Bak Hern [1995] 3 SLR 97, L P Thean JA, delivering the judgment of the court, summarised the Spiliada test as...

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