ST Group Co Ltd and others v Sanum Investments Ltd

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 14 January 2022
• Neutral Citation: [2022] SGCA 2
• Court: Court of Appeal (Singapore)
• Docket Number: Civil Appeal No 113 of 2018 (Summons No 44 of 2021)
• Year: 2022
• Published date: 20 January 2022
• Hearing Date: 02 September 2021
• Plaintiff Counsel: Francis Xavier s/o Subramaniam Xavier Augustine SC, Tan Hua Chong Edwin (Chen Huacong), Kristin Ng Wei Ting, Tay Bok Chong Alvin (Rajah & Tann Singapore LLP) (instructed), Tan Boon Yong Thomas (Haridass Ho & Partners)
• Defendant Counsel: Yeo Khirn Hai Alvin SC, Lin Weiqi Wendy, Chong Wan Yee Monica (Zhang Wanyu) and Teh Zi Ling Stephanie (Zheng Ziling) (WongPartnership LLP)
• Citation: [2022] SGCA 2

Quentin Loh JAD (delivering the judgment of the court): Introduction

In ST Group Co Ltd and others v Sanum Investments Ltd and another appeal [2020] 1 SLR 1 (“ST Group (CA)”), this court allowed the appeal in CA/CA 113/2018 (“CA 113”) and set aside an order granting leave for an arbitral award issued under the auspices of the Singapore International Arbitration Centre (“the SIAC Award”) to be enforced in Singapore as a judgment of the High Court. We issued our judgment on 18 November 2019. In CA/SUM 44/2021 (“SUM 44”), the appellants in CA 113, namely ST Group Co Ltd (“ST Group”), Mr Sithat Xaysoulivong (“Mr Sithat”) and ST Vegas Co Ltd (“ST Vegas”) (collectively, “the Lao Appellants”), now seek various consequential orders following our judgment.

Facts The parties

The respondent in CA 113 and SUM 44, Sanum Investments Limited (“Sanum”), is a company incorporated in Macau, and was the claimant in arbitration proceedings brought under the rules of the Singapore International Arbitration Centre (“the SIAC Arbitration”). The respondents to the SIAC Arbitration were the three Lao Appellants and ST Vegas Enterprise Ltd (“STV Enterprise”). Where necessary, we refer to all four respondents in the SIAC Arbitration as the “Lao Parties”. ST Group owned various business industries in Laos, while ST Vegas and STV Enterprise were affiliated with ST Group. Mr Sithat was the president of both ST Group and STV Enterprise.

The substantive dispute and SIAC Arbitration

The substantive dispute between the parties concerns arrangements relating to a slot machine club in Laos. In a bid to obtain relief against the Lao Parties for what it claimed were breaches of contract, Sanum commenced the SIAC Arbitration on 23 September 2015. For present purposes, it is sufficient to note here that a three-member tribunal was appointed, and that the tribunal determined that the seat of arbitration was Singapore. On 22 August 2016, Sanum obtained the SIAC Award against the Lao Parties.

Procedural history Enforcement proceedings

On 1 September 2016, Sanum commenced HC/OS 890/2016 (“OS 890/2016”) seeking leave to enforce the SIAC Award in the same manner as a judgment of the High Court or an order to that effect, pursuant to s 19 of the International Arbitration Act (Cap 143A, 2002 Rev Ed) and O 69A r 6 of the Rules of Court (2014 Rev Ed) (“ROC”). On 7 September 2016, leave was granted by the Assistant Registrar in HC/ORC 6107/2016 (“the Leave Order”).

On 16 September 2016, Sanum filed HC/SUM 4512/2016 for an order that, pursuant to O 69A r 6(4) of the ROC, the Lao Parties may apply to set aside the Leave Order within 14 days after service of the same or, if the Leave Order was served out of the jurisdiction, within 21 days of the same. This order was granted on 20 September 2016 in HC/ORC 6397/2016 (“ORC 6397/2016”). The 21-day period expired by 27 October 2016 at the latest with no application being brought.

On 23 November 2016, Sanum obtained HC/JUD 792/2016 (“the Judgment”) against the Lao Parties for the relief stated in the SIAC Award for, inter alia, US$200m as damages for breach of contract and interest at the rate of 6% per annum compounded annually from 12 April 2012.

On the basis of the Judgment, the following garnishee applications were made, with the respective final garnishee orders granted as follows:

S/N	Application	Final garnishee order	Garnishee	Sums garnished
1.	HC/SUM 5740/2016 (29 November 2016)	HC/ORC 477/2017 (18 January 2017)	United Overseas Bank Limited (“UOB”)	US$2,154,032.02 and S$216,270.49
2.	HC/SUM 2695/2017 (13 June 2017)	HC/ORC 4233/2017 (5 July 2017)	UOB	US$2,489.45 and S$1.81
3.	HC/SUM 3210/2017 (12 July 2017)	HC/ORC 4443/2017 (13 July 2017)	UOB	US$197,400.00

We refer to these three final garnishee orders, viz, HC/ORC 477/2017, HC/ORC 4233/2017 and HC/ORC 4443/2017, as the “FGOs”, and the sums garnished under the FGOs as the “Garnished Sums”. The Judgment, the FGOs and the Garnished Sums are the subject of the application in SUM 44. While there were other garnishee applications, they did not result in final garnishee orders and they do not concern us here. Other enforcement applications were also brought, resulting, inter alia, in a writ of seizure and sale, HC/WSS 77/2016 (“WSS 77/2016”) in respect of ST Group’s shares in S3T Pte Ltd, which were seized by the Sheriff on 27 December 2016.

Applications to set aside

We turn now to the steps that the Lao Parties took to challenge the Leave Order, the Judgment, and the orders founded on the Judgment. Three applications were initially filed as follows: On 13 January 2017, ST Group and Mr Sithat filed HC/SUM 202/2017 (“SUM 202/2017”), an application for extension of time to apply to set aside the Leave Order, for the setting aside of the Leave Order and the Judgment, and for various enforcement actions to be set aside. On 23 March 2017, ST Group and Mr Sithat filed HC/SUM 1331/2017, seeking leave to amend SUM 202/2017 to make it their primary position that the service of the Leave Order and ORC 6397/2016 was invalid. On 16 June 2017, ST Vegas and STV Enterprise filed an application in HC/SUM 2774/2017 for a declaration that service of the Leave Order and ORC 6397/2016 was invalid, or for an extension of time to apply to set aside the Leave Order.

In August 2017, Sanum agreed to the Lao Parties filing a separate application to set aside the Leave Order, pending disposal of the three applications referred to above.¹ This was filed as HC/SUM 4933/2017 (“SUM 4933/2017”) on 26 October 2017. SUM 4933/2017 was fixed to be heard with the three other applications in January 2018.

On the first day of the hearings in January 2018, the parties reached an agreement that (a) SUM 4933/2017 and any appeal therefrom would be heard and disposed of first without prejudice to Sanum’s position that SUM 4933/2017 was filed out of time and no extension of time should be granted to cure that defect (“the Primary Position”); and (b) if SUM 4933/2017 were to be granted, Sanum may (if it chose to do so) pursue the Primary Position, and if so, the Lao Parties may choose to pursue their requests for extensions of time and/or objections to the validity of service of the Leave Order and ORC 6397/2016.² The parties informed the High Court judge (“the Judge”) who was scheduled to hear the applications above, of this arrangement.³ Hence, the remaining three applications were adjourned pending the determination of SUM 4933/2017.

The relief sought in SUM 4933/2017 was as follows: 1. The Orders of Court dated 7 September 2016 (HC/ORC 6107/2016) and 20 September 2016 (HC/ORC 6397/2016) granting [Sanum] leave to enforce the Final Award dated 22 August 2016 in SIAC ARB No. 184 of 2015 (‘Award’) in the same manner as a Judgment of the High Court or an order to the same effect, be set aside; 2. The Judgment dated 23 November 2016 (HC/JUD 792/2016) in terms of the Award (and all other orders obtained by [Sanum] in enforcement (and in aid of enforcement) of the Award and / or the Judgment) be consequently set aside; 3. Costs of an incidental to and / or consequential to this application to be paid by [Sanum] to the [Lao Parties]; and 4. Such further and/or other relief as this Honourable Court deems fit.

[emphasis added]

In SUM 4933/2017, the Judge held that Macau was the correct seat of arbitration and that the appointment of a three-member tribunal was incorrect, but that the Lao Parties had not shown prejudice arising from these procedural irregularities (see Sanum Investments Ltd v ST Group Co, Ltd and others [2020] 3 SLR 225 at [106], [110] and [114]). STV Enterprise, however, was not a party to the relevant agreement and so was not properly a party to the SIAC Arbitration nor bound by the Award (at [107(c)]). Hence, the Judge dismissed the application in relation to the Lao Appellants but allowed the application in relation to STV Enterprise.

The appeals

CA 113 was the Lao Appellants’ appeal against the Judge’s dismissal of SUM 4933/2017 in relation to them, while CA/CA 114/2018 (“CA 114”) was Sanum’s cross-appeal against the Judge’s decision in relation to STV Enterprise. As noted above, we issued our judgment in these appeals on 18 November 2019. We dismissed CA 114, finding that the Judge was correct to find that STV Enterprise was not a party to the relevant agreement. Nothing turns on CA 114 in the present application.

Turning to CA 113, although SUM 4933/2017 had included a prayer for relief relating to the Judgment and all other orders obtained to enforce the Judgment (see [12] above), the Lao Appellants’ case in CA 113 only made reference to the setting aside of the Leave Order and ORC 6397/2016. The appeal, therefore, centred on that specific relief, and we were not addressed on any other consequential matters. We return to the significance of this fact below.

In CA 113, we found that the wrong choice of seat in Singapore as opposed to Macau was a sufficient basis on which to conclude that the SIAC Award could not be enforced, without there being need for proof of prejudice, and allowed the appeal. At [109] of ST Group (CA), our conclusion was stated as follows:

For the reasons given above, we allow CA 113 and set aside the Leave Order granted to Sanum. …

SUM 44 concerns, in essence, what else should be done as a consequence of this conclusion in CA 113. Post-appeal developments

There are four particular developments after our decision in CA 113 which are relevant to our determination of SUM 44. These pertain to: (a) the drafting of the order of court for CA 113; (b) the pending applications in OS 890/2016; (c) the application for the return of the Garnished Sums in the High Court; and (d) subsequent arbitral proceedings. We set out the material facts concerning each of these in turn.

Drafting of the

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