Serafica Rogelio T and others v Transocean Offshore Ventures Limited

• Jurisdiction: Singapore
• Judge: Tay Yong Kwang J
• Judgment Date: 24 June 2013
• Neutral Citation: [2013] SGHC 118
• Court: High Court (Singapore)
• Docket Number: Suit No 87 of 2009 (Registrar’s Appeal No 80 of 2013)
• Published date: 26 June 2014
• Year: 2013
• Hearing Date: 04 April 2013
• Plaintiff Counsel: Ong Ying Ping and Susan Tay (OTP Law Corporation)
• Defendant Counsel: Ian Teo and Ting Yong Hong (Rajah & Tann LLP)
• Subject Matter: Civil Procedure,Service
• Citation: [2013] SGHC 118

Tay Yong Kwang J:

This was an appeal against an Assistant Registrar’s (“the AR”) order dismissing an application to set aside an order of court dated 4 January 2013 granting liberty to the respondent, Transocean Offshore Ventures Limited (“Transocean”), to effect substituted service of examination of judgment debtor orders on the appellants (hereafter referred to as “the Directors”), who are the directors of Burgundy Global Exploration Corporation (“Burgundy”). At the conclusion of the hearing, I dismissed the appeal. The Directors have filed an appeal against my decision and I now give my reasons.

Background facts

The history of the protracted legal proceedings between Transocean and Burgundy is set out in my grounds of decision for Burgundy’s appeal against Assistant Registrar Jordan Tan’s (“AR Tan”) assessment of damages awarding Transocean damages in the sum of US$105,536,922 plus interest following an order for summary judgment against Burgundy under O 14 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) (“the Rules”): see Transocean Offshore International Ventures Limited v Burgundy Global Exploration Corporation [2013] SGHC 117. I set out below only the facts and proceedings that are germane to the present appeal.

Following AR Tan’s decision, Transocean entered final judgment against Burgundy on 25 April 2012. Burgundy filed an appeal against the assessment of damages in Registrar’s Appeal No 158 of 2012, which I dismissed on 26 March 2013.

On 7 June 2012, Transocean filed an ex parte application in Summons No 2826 of 2012 for examination of judgment debtor orders (“the EJD Orders”) against the Directors as officers of Burgundy pursuant to O 48 r 1 of the Rules. The EJD Orders were granted and affixed with the following Notice under O 45 r 7:

NOTICE

(UNDER ORDER 45 RULE 7 OF THE RULES OF COURT)

If you, the within-named [the Directors], neglect to obey this Order, you will be liable to process of execution for the purpose of compelling you to obey the same.

Between June and November 2012, Transocean made four unsuccessful attempts to effect personal service of the EJD Orders on the Directors, who were ordinarily resident in the Republic of the Philippines (“the Philippines”), through a Philippines law firm.¹

On 3 October 2012, Transocean filed Summons No 5064 of 2012 which contained the following prayers:

1. [Transocean] be at liberty to effect Service of any Order for Examination of Judgment Debtor in SUM 2826/2012/A (the “EJD Order”) on the directors and/or officers of [Burgundy] as named herein by way of (i) service on [Burgundy’s] Singapore lawyers, Gomez & Vasu LLC and/or (ii) advertisement of the aforesaid the EJD Order ... in an English language newspaper with nation-wide circulation in the Republic of the Philippines for three consecutive days. ...

2. That such service and/or advertisement shall be deemed good and sufficient service of the said EJD Order on the said directors and/or officers of [Burgundy].

...

At the ex parte hearing on 4 January 2013, counsel for Transocean submitted that if the EJD Orders were served on Burgundy’s Singapore solicitors, Gomez & Vasu LLC, the Directors would probably be notified of the EJD Orders as Gomez & Vasu LLC was representing Burgundy in the ongoing appeal against AR Tan’s assessment of damages and would have continuing contact with the Directors. One of the Directors, Mr Rogelio T. Serafica, had also previously filed an affidavit dated 5 September 2012 for the main proceedings making reference to his knowledge of the EJD Orders. Assistant Registrar Ruth Yeo (“AR Yeo”) granted Prayer 1(i) (ie, substituted service of the EJD Orders by way of service on Gomez & Vasu LLC) and Prayer 2. No order was made on Prayer 1(ii).

Transocean subsequently served the EJD Orders on Gomez & Vasu LLC on 14 January 2013. On 18 February 2013, the Directors filed Summons No 851 of 2013 to set aside AR Yeo’s order for substituted service. The summons was dismissed on 4 March 2013.

The AR’s decision

The AR held that service of the EJD Orders was governed by O 11 r 8, O 48 r 1(2) and O 62 r 5 of the Rules (read cumulatively) and that these requirements had been satisfied by the order for substituted service of the EJD Orders on Gomez & Vasu LLC.

The AR also emphasised that counsel for Transocean had informed AR Yeo that Gomez & Vasu LLC did not have express instructions to accept service on behalf of the Directors and that AR Yeo must have been aware of this fact when the order for substituted service was made. The order for substituted service was not improper or inadequate as it sufficed to bring the EJD Orders to the attention of the Directors following the extensive but futile attempts by Transocean to effect personal service on the Directors in the Philippines.

The parties’ submissions on appeal

The Directors submitted that Gomez & Vasu LLC did not represent or act for the Directors in their personal capacities; service of the EJD Orders on Gomez & Vasu LLC was therefore improper service under O 62 r 6(2)(a) of the Rules. The Directors also relied on the cases of Consistel Pte Ltd and another v Farooq Nasir and another [2009] 3 SLR(R) 665 (“Consistel”) and P T Makindo (formerly known as PT Makindo TBK) v Aperchance Co Ltd and others [2010] 4 SLR 954 (“PT Makindo”) as authorities for the proposition that the proper course was for Transocean to seek leave to serve the EJD Orders out of jurisdiction under O 11 before applying for substituted service. It was argued that as the Directors were not parties to the substantive proceedings, by obtaining the order for substituted service for service within Singapore, Transocean had effectively evaded the requirements of O 11 of the Rules. O 11 r 8(1) did not apply to the EJD Orders as the EJD Orders were “in truth and substance” the originating processes where the Directors were concerned. The Directors further contended that service out of jurisdiction of the EJD Orders was contrary “in effect and substance” to O 38 r 18, which prohibits the service of a subpoena on a witness outside the jurisdiction.

In response, Transocean submitted that it was not a necessary precondition under the Rules for Transocean to have obtained leave to serve out of jurisdiction under O 11 as leave was “not required in any proceedings in which leave for service of the originating process [had] already been granted” pursuant to O 11 r 8(1). Both Consistel and PT Makindo were clearly distinguishable from the facts of the present case. Transocean also submitted that O 38 dealt only with witness subpoenas and was irrelevant.

The decision of the court The specific provisions for service of an order for the examination of a judgment debtor

The service of orders for the examination of a judgment debtor is governed by O 48 r 1(2), which provides as follows:

An order under this Rule must be in Form 100 and must be served personally on the judgment debtor and on any officer of a body corporate ordered to attend for examination. [emphasis added]

Under O 62 r 5, substituted service may be ordered where any provision of the Rules directs that a document is to be served personally:

5. Substituted service (O. 62, r. 5) (1) If, in the case of any document which by virtue of any provision of these Rules is required to be served personally on any person, it appears to the Court that it is impracticable for any reason to serve that document personally on that person, the Court may make an order in Form 136 for substituted service of that document.

(2) An application for an order for substituted service must be made by summons supported by an affidavit in Form 137 stating the facts on which the application is founded.

(3) Substituted service of a document, in relation to which an order is made under this Rule, is effected by taking such steps as the Court may direct to bring the document to the notice of the person to be served.

...

[emphasis added]

Whether the substituted service was improper because Gomez & Vasu LLC did not act for the Directors

The Directors’ first objection was that service was improper because Gomez & Vasu LLC did not act for them in their personal capacities. The Directors relied on O 62 r 6(2)(a) as the basis for the submission that documents could only be properly served at the address of the solicitors who were acting for them. Order 62 r 6(2)(a) provides as follows:

6. Ordinary service: How effected (O. 62, r. 6) ....

(2) For the purpose of this Rule, and of section 2 of the Interpretation Act (Chapter 1), in its application to this Rule, the proper address of any person on whom a document is to be served in accordance with this Rule shall be the address for service of that person, but if at the time when service is effected that person has no address for service his proper address for the purpose...