Serafica Rogelio T v Transocean Offshore Ventures Ltd

• Jurisdiction: Singapore
• Judgment Date: 24 June 2013
• Date: 24 June 2013
• Docket Number: Suit No 87 of 2009 (Registrar's Appeal No 80 of 2013)
• Court: High Court (Singapore)

Serafica Rogelio T and others

Plaintiff

and

Transocean Offshore Ventures Ltd

Defendant

[2013] SGHC 118

Tay Yong Kwang J

Suit No 87 of 2009 (Registrar's Appeal No 80 of 2013)

High Court

Civil Procedure—Service—Plaintiff obtaining examination of judgment debtor orders against directors of defendant company who were resident out of jurisdiction—Plaintiff obtaining substituted service of examination of judgment debtor orders by means of service within jurisdiction on solicitors of defendant—Whether order for substituted service ought to be set aside as solicitors were not acting for directors personally—Whether plaintiff had to obtain leave for service out of jurisdiction before substituted service of examination of judgment debtor orders could be ordered

Transocean Offshore International Ventures Limited (‘Transocean’) entered final judgment against Burgundy Global Exploration Corporation (‘Burgundy’) following assessment of damages. Transocean then obtained examination of judgment debtor orders (‘the EJD Orders’) against the directors of Burgundy (‘the Directors’) and attempted to effect personal service of the EJD Orders in the Republic of the Philippines (‘the Philippines’), where the Directors were ordinarily resident. Following four unsuccessful attempts to serve the EJD Orders in the Philippines, Transocean applied for and was granted an order for substituted service by way of service on the solicitors acting for Burgundy in the main proceedings.

The Directors then filed a summons to set aside the order for substituted service, arguing that service could not be effected on solicitors who were not acting for the Directors personally and that substituted service could not be ordered as Transocean had not obtained leave under O 11 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) (‘the Rules’) for service out of jurisdiction of the EJD Orders. The Assistant Registrar dismissed the application and the Directors appealed against her decision in Registrar's Appeal No 80 of 2013.

Held, dismissing the appeal:

(1) Order 62 r 6 (2) (a) of the Rules, which provided that ordinary service could be effected at the business address of the solicitor who was acting for the party in the proceedings, did not apply to an order for substituted service where personal service was impractical. The only principle governing the court's discretion as to the method of substituted service in O 62 r 5 (3) was that the steps directed should bring the document to the notice of the person to be served. The Assistant Registrar had ordered substituted service on the law firm representing the defendant as a conduit to the Directors and not in the firm's capacity as the Directors' solicitors; there was nothing defective in the manner of service: at [14] and [15].

(2) The rule governing service out of jurisdiction of the EJD Orders was O 11 r 8 (1), which applied to service out of jurisdiction of any summons, notice or order. The EJD Orders against the Directors were not analogous to originating processes and the principles applicable to leave for service of an originating process, which were primarily concerned with the critical prior question of establishing jurisdiction, could not apply without modification to ancillary orders in the nature of the EJD Orders: at [20], [22] and [24].

(3) Order 11 r 8 (1) was phrased in ostensibly wide terms; any summons, notice or order issued in the course of the substantive proceedings required leave for service out of jurisdiction, but under the qualifying limb, leave was not required if leave had previously been granted for service of the originating process. There was nothing in O 11 r 8 (1) which stated that it applied only where the summons, notice or order was directed at a party to the substantive proceedings commenced by the originating process. The qualifying limb thus applied to the EJD Orders and leave to serve the orders out of jurisdiction on the Directors was not required under O 11 r 8 (1) as Transocean had previously obtained leave under O 11 to serve the writ of summons on Burgundy out of jurisdiction: at [25] and [26].

(4) The service of the EJD Orders was not contrary to O 38 r 18 (2) of the Rules, which stated that witness subpoenas could not be served on a person outside the jurisdiction. An order for the examination of a judgment debtor was specifically governed by O 48 and the rules in O 38 were not relevant: at [30].

Allport Alfred James v Wong Soon Lan [1988] 2 SLR (R) 520; [1988] SLR 987 (refd)

Consistel Pte Ltd v Farooq Nasir [2009] 3 SLR (R) 665; [2009] 3 SLR 665 (refd)

Masri v Consolidated Contractors International (UK) Ltd (No 4) [2010] 1 AC 90 (refd)

PT Makindo v Aperchance Co Ltd [2010] 4 SLR 954 (refd)

Transocean Offshore International Ventures Ltd v Burgundy Global Exploration Corp [2013] 3 SLR 1017 (refd)

Rules of Court (Cap 322, R 5, 2006 Rev Ed) O 11 r 1, O 11 r 8 (1) , O 38 r 18, O 48 r 1 (2) , O 62 r 5, , O 62 r 6 (2) (a) (consd) ;O 11, O 11 r 2, O 11 r 2 (2) , O 11 r 8, O 11 r 8 (2) , O 14, O 45 r 7, O 48 r 1, O 48 r 1 (1) , O 62 r 5 (3) , O 62 r 6, O 62 r 6 (2) (a)

Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) s 16 (1) (a) (ii)

Ong Ying Ping and Susan Tay (OTP Law Corporation) for the appellants

Ian Teo and Ting Yong Hong (Rajah & Tann LLP) for the respondent.

Tay Yong Kwang J

1 This was an appeal against an assistant registrar's 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

2 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 (‘ARTan’) 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 Ltd v Burgundy Global Exploration Corp[2013] 3 SLR 1017. I set out below only the facts and proceedings that are germane to the present appeal.

3 Following ARTan'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.

4 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.

5 Between June and November 2012, Transocean...