STX Corporation v Jason Surjana Tanuwidjaja

• Jurisdiction: Singapore
• Judgment Date: 13 March 2014
• Date: 13 March 2014
• Docket Number: Suit No 960 of 2012 (Summonses Nos 2776, 2777 and 2778 of 2013)
• Court: High Court (Singapore)

STX Corp

Plaintiff

and

Jason Surjana Tanuwidjaja and others

Defendant

[2014] SGHC 45

Judith Prakash J

Suit No 960 of 2012 (Summonses Nos 2776, 2777 and 2778 of 2013)

High Court

Contempt of Court—Civil contempt—Freezing order or Mareva injunction—Meaning and scope of ‘all their assets’—Non-compliance with deadline and terms of freezing order—Order 52 r 1 Rules of Court (Cap 322, R 5, 2006 Rev Ed)

STX Corporation (‘the plaintiff’) was involved in an Indonesian coal mining operation with Jason Surjana Tanuwidjaja (‘JST’). Disputes arose and the plaintiff sued JST, his daughter, Bella Novita Kartika (‘BNK’), and son, Yan Pratama Adisaputra (‘YPA’) (collectively, ‘the defendants’) in three separate actions.

On 9 November 2012, the plaintiff obtained freezing orders against the defendants in Suit No 960 of 2012, Suit No 961 of 2012 and Originating Summons No 1066 of 2012. The orders prevented the defendants from dealing with their assets and required them to file affidavits disclosing ‘all their assets’ within a specified period. However, they did not comply as they filed their affidavits late and these affidavits omitted to disclose their ownership of several material assets.

The defendants admitted to breaching the specified deadlines for the filing of their affidavits of assets. They were also accused of not disclosing (a) their ownership of several properties in Singapore and Australia as well as beneficial ownership in an Indonesian company PT Adiperkasa Buana (‘PTAB’), (b) several bank accounts, salary received and a share in Misan Investments Pty Ltd (‘Misan Investments’) and (c) money obtained from the sale of shares. However they contended that they were not in contempt in respect of their late filing because they were travelling frequently or based overseas. They also contended they were not in contempt in respect of the non-disclosure of the various assets mainly because they did not believe they owned those assets beneficially.

Held, granting the application:

(1) The finding of contempt involved a two-step approach. First, it had to be decided what exactly the disclosure order required the respondent to do and next, it had to be determined whether such requirements had been fulfilled. In determining what the order required, the order had to be interpreted according to the plain meaning of the language used. Any ambiguity should be resolved in favour of the person who had to comply with the order: at [12] and [13] .

(2) The English Court of Appeal had held that the expression ‘his assets and/or funds’ referred to assets belonging to a defendant which he could use to satisfy a claim made against him. This was based on the plain meaning of the words under an order that sought to prevent assets that could be used to satisfy a judgment debt from being dissipated. Since the words in the freezing orders did not make it clear that they were intended to cover both legal and beneficial ownership, the phrase ‘all their assets’ only imposed an obligation on the defendants to disclose assets which were beneficially held by them: at [17] , [21] and [22] .

(3) JST, BNK and YPA were all in contempt for filing their affidavits late. There were modern facilities in place for communication to take place between Singapore, Indonesia and Australia, the three countries in which the defendants were travelling to or based in. They could have communicated with their solicitors via these means and prepared their affidavits earlier: at [28] to [31] , [55] and [70] .

(4) JST and BNK were not in contempt for failing to disclose their ownership of the several properties and PTAB. For JST, there was no reason to doubt that the Shelford Road property was owned by his wife, Madam Julianne Feng-Lian Xiao (alias Yanny Djelita Santosa) (‘Mdm Santosa’) since the transfer was made in 1985 and had nothing to do with these proceedings. Neither was there sufficient evidence to cast doubt on Mdm Santosa's ownership of the Matheson property. His alleged ownership of PTAB was also a matter governed by Indonesian law and there was insufficient evidence that JST was a or the beneficial owner of it. For BNK, she appeared to have no financial ability to buy the Mapleton property, hence there was no reason to doubt Mdm Santosa's legal ownership of it: at [37] , [49] , [50] and [60] .

(5) However, YPA was in contempt for failing to disclose his ownership of a piece of Indonesian land known as ‘the Banten land’. He had taken out Indonesian proceedings to cancel a pledge over the land in favour of the plaintiff. This showed that he believed the land belonged to him: at [74] .

(6) The defendants were in contempt for failing to disclose their bank accounts and the Misan Investments share. JST was in contempt because the lack of money in his bank accounts was not a good reason for their non-disclosure. He was also in contempt for failing to disclose the Misan Investments share as he neither produced evidence of it when he said he would. BNK had used her Australian bank account to fund her living expenses in Australia and her joint USD account with JST was also unexplained and seemingly unnecessary. These reasons necessitated the disclosure of both her bank accounts. Lastly, YPA had deposited his salary into his wife's bank account and he had access to his money as he wished. He should have disclosed his salary: at [43] to [46] , [61] , [62] , [65] and [77] .

(7) YPA was in contempt for failing to disclose money received from the sale of shares by International Ferro. Indonesian court proceedings in relation to the sale of shares by International Ferro were taken out in his name. As a university graduate, he could not be unaware of it: at [79] .

(8) The defendants had undermined the administration of justice through their lateness and their omissions, some on specious grounds. JST's culpability was also higher since BNK and YPA testified that he was the mastermind behind the arrangement of the family's financial affairs. His attitude towards court orders was also cavalier and minimalist. In the circumstances, fines of $18,000, $10,000 and $12,000 were imposed on JST, BNK and YPA respectively with a jail term of two weeks, five days and ten days on JST, BNK and YPA in the event they default on payment: at [84] and [87] .

Cartier International BV v Lee Hock Lee [1992] 3 SLR (R) 340; [1993] 1 SLR 616 (refd)

Federal Bank of the Middle East Ltd v Hadkinson [2000] 1 WLR 1695 (folld)

Global Distressed Alpha Fund I Ltd Partnership v PT Bakrie Investindo [2013] SGHC 105 (refd)

JSC BTA Bank v Solodchenko [2011] 1 WLR 888; [2010] EWCA Civ 1436 (refd)

Monex Group (Singapore) Pte Ltd v E-Clearing (Singapore) Pte Ltd [2012] 4 SLR 1169 (folld)

OCM Opportunities Fund II, LP v Burhan Uray [2004] 4 SLR (R) 74; [2004] 4 SLR 74 (refd)

P J Holdings Inc v Ariel Singapore Pte Ltd [2009] 3 SLR (R) 582; [2009] 3 SLR 582 (refd)

Pertamina Energy Trading Ltd v Karaha Bodas Co LLC [2007] 2 SLR (R) 518; [2007] 2 SLR 518 (refd)

Shadrake Alan v AG [2011] 3 SLR 778 (refd)

Tan Beow Hiong v Tan Boon Aik [2010] 4 SLR 870 (refd)

Christopher Anand s/o Daniel, Ganga d/o Avadiar and Foo Li Chuan Arlene (Advocatus Law LLP) for the plaintiff

Suresh s/o Damodara (Damodara Hazra LLP) for the first defendant

Subashini d/o Narayanasamy and Yogarajah Yoga Sharmini (Haridass Ho & Partners) for the second and third defendants.

Judgment reserved.

Judith Prakash J

Introduction: Contempt proceedings against the defendants

1 This judgment contains my reasons for conclusions I have come to in respect of seven applications for committal filed in three sets of proceedings.

2 STX Corporation, the plaintiff in each of the proceedings, is a Korean corporation which became involved in a coal mining operation in Indonesia. In that connection, it dealt with Jason Surjana Tanuwidjaja (‘JST’) and Tan Beng Phiau Dick (‘Dick Tan’). The plaintiff alleges that it was wrongfully dispossessed of the coal mine. This dispute is being dealt with in arbitration proceedings. At the same time, litigation was started in the Singapore courts primarily against JST and Dick Tan. However, JST’s daughter Bella Novitia Kartika (‘BNK’) and his son Yan Pratama Adisaputra (‘YPA’) have also been sued. In this judgment, I shall sometimes call JST, BNK and YPA ‘the defendants’.

3 The various actions are as follows: Suit No 960/2012 (‘Suit 960’) against JST, Dick Tan, BNK and YPA, Suit No 961/2012 (‘Suit 961’) against JST and Dick Tan and Originating Summons No 1066/2012 (‘OS 1066’) against JST, BNK, YPA and two others. OS 1066 was brought as an ancillary proceeding to obtain the court's assistance with regard to the arbitration proceedings.

4 On 9 November 2012, the plaintiff obtained freezing orders against JST in all three actions and against BNK and YPA in Suit 960 and OS 1066. Besides preventing the defendants from dealing with their assets, the orders required the defendants to file affidavits disclosing all their assets within a specified period. The applications for committal assert that each of the defendants failed to comply with those orders and were therefore in contempt of court.

5 The defendants admit that they breached the specified deadlines for filing of their affidavits of assets. They deny the further assertion that they did not give full disclosure of all their assets. If they were ever in contempt, they say this contempt has been purged.

6 Given that the case involves three defendants, I will discuss the law on civil contempt before considering the individual complaints.

Civil contempt in Singapore

7 An action for civil contempt is directed at a party who is bound by an order of court but is alleged to have breached the terms of that order. It is directed at securing compliance with the said order and typically falls under one of the following categories:

(a) disobedience of an order requiring an act to be done;

(b)...