Sim Hok Khun @ Hadi Gunawan v Henry Budi Harsono @ Sim Hok Kiong

JurisdictionSingapore
JudgeJordan Tan AR
Judgment Date11 April 2012
Neutral Citation[2012] SGHCR 1
CourtHigh Court (Singapore)
Hearing Date09 April 2012
Docket NumberSuit No 8 of 2012/T (Summons No 642 of 2012/Q)
Plaintiff CounselVinodh Coomaraswamy SC, Terence Seah and Christine Ong (Shook Lin & Bok LLP)
Defendant CounselLin Shumin, Cavinder Bull SC, Lim Gerui, Lee Xin Jie (Drew & Napier LLC)
Subject MatterCivil Procedure
Published date12 April 2012
Jordan Tan AR: Introduction

The plaintiff and the defendant are the third and seventh brothers respectively in a family of seven brothers and three sisters. The plaintiff brought this suit against the defendant for breach of trust, seeking a declaration that, inter alia, the defendant held various shares in Jardine Matheson Holdings Limited (“the Jardine shares”), a company listed on the Singapore stock exchange (and previously listed on the Hong Kong stock exchange but was delisted), on trust for him and seeking an account of the shares.

The defendant applied for a stay of the proceedings on the ground of forum non conveniens, arguing that Hong Kong was clearly a more appropriate forum for the trial of the action. This is so, the defendant argued, because the reason for refusal to account for the proceeds of the Jardine shares, which have since been sold, is that there is a serious question as to whether the shares were part of what the defendant refers to as the “Sim Family Trust Fund” (“the Trust”) to which the defendant and his brothers are beneficiaries.

Having raised this issue of whether the shares are part of the Trust and stating that this is likely to form part of the defence in Singapore should the action proceed, the defendant’s counsel, Ms Lin Shumin proceeded to set out the connecting factors to Hong Kong under Stage One of the test laid down in Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460 (“Spiliada”). The plaintiff’s counsel, Mr Vinodh Coomaraswamy SC, dealt with these arguments but also raised a preliminary objection to the application on the ground that the defendant was precluded from making this stay application because he had applied for and obtained, albeit by consent, an extension of time to file his defence.

I deal with this preliminary objection first before addressing the substance of the application.

Is the defendant precluded from obtaining a stay having obtained an extension of time to file a defence?

The writ of summons was filed on 4 January 2012 and the defendant entered an appearance on 11 January 2012. On 20 January 2012, the defendant filed Summons 324 of 2012 (“Sums 324/2012”) for an extension of time to file his defence. The plaintiff consented and the consent order was recorded before an Assistant Registrar on 25 January 2012. Mr Coomaraswamy made the following argument:

[W]here a defendant served in Singapore as of right intends to seek to stay the action on grounds of forum non conveniens, he must make that application before taking any step other than filing an appearance, especially as here where the step which the defendant took is available only to a defendant who intends to defend the action on the merits in Singapore. [emphasis in original]

In making this argument, Mr Coomaraswamy referred to Yeoh Poh San and another v Won Siok Wan [2002] 2 SLR(R) 233 (“Yeoh Poh San”) in which the court stated at [14]:

The very reason why a defendant is required to apply for a stay of proceedings before taking any step other than filing an appearance is because such an other step may be construed as submission to the court’s jurisdiction.

Mr Coomaraswamy was quick to clarify that although Yeoh Poh San was concerned with a different application (one under O 12 r 7(1) of the Rules of Court (Cap 322, R 5, 2006 Rev Ed Sing) for stay of proceedings for want of jurisdiction and thus raised a separate issue of whether there was submission by the defendant to the jurisdiction of the court), by way of analogical reasoning, in an application for stay of proceedings on the ground of forum non conveniens under O 12 r 7(2), the defendant should not take steps which suggested that he had intended to defend the action as in doing so he had conceded that this matter ought to proceed to trial in Singapore. O 18 r 2 concerning the timelines for service of a defence provided as follows:

A defendant who enters an appearance in, and intends to defend, an action must, unless the Court gives leave to the contrary, serve a defence on the plaintiff before the expiration of 14 days after the time limited for appearing or after the statement of claim is served on him, whichever is the later. [emphasis added]

Mr Coomaraswamy argued that in seeking leave for more time to file the defence, the defendant had evinced an intention to defend the action.

I reject this argument. An application for a stay on the ground of forum non conveniens is different from an application for a stay for want of jurisdiction. The latter application is defeated where the applicant has submitted to the jurisdiction of the court as in so doing, the court has jurisdiction over the applicant. An application for a stay on the ground of forum non conveniens is quite different. In making such an application, the applicant is not arguing that the court has no jurisdiction but that the court should decline to exercise its jurisdiction (see Adrian Briggs, Civil Jurisdiction and Judgments (LLP, 4th Ed, 2005) at para 4.35).

The analogy drawn was thus erroneous. While the taking of a step in the proceedings apart from the entering of an appearance may be fatal to an application for a stay for want of jurisdiction under O 12 r 7(1) because it demonstrated submission to jurisdiction, it did not have the same effect where an application for a stay on the ground of forum non conveniens under O 12 r 7(2) was concerned. On this very point, the Court of Appeal in Chan Chin Cheung v Chan Fatt Cheung and others [2010] 1 SLR 1192 (“Chan Chin Cheung”) made it clear (at [22]) that even in a case where a defence has been filed, the defendant is still entitled to apply for a stay under O 12 r 7(2) although he would be disentitled from doing so under O 12 r 7(1).

Furthermore, it could hardly be said that the defendant evinced an intention to defend the action when one scrutinises the words of O 12 r 7(2). That provision reads as follows:

A defendant who wishes to contend that the Court should not assume jurisdiction over the action on ground that Singapore is not the proper forum for the dispute shall enter an appearance and, within the time limited for serving a defence, apply to court for an order staying the proceedings. [emphasis added]

Previously, O 12 r 7(2) contained no such time restriction on the making of an application under that provision. It was amended by Rules of Court (Amendment No 2)...

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