Tan Hock Keng v Malaysian Trustees Bhd

• Jurisdiction: Singapore
• Judge: Andrew Phang Boon Leong JCA
• Judgment Date: 23 February 2022
• Neutral Citation: [2022] SGCA 14
• Court: Court of Appeal (Singapore)
• Docket Number: Originating Summons No 32 of 2021
• Year: 2022
• Published date: 26 February 2022
• Hearing Date: 14 December 2021
• Plaintiff Counsel: Raeza Khaled Salem Ibrahim and Ammani Mathivanan (Salem Ibrahim LLC)
• Defendant Counsel: Ng Yeow Khoon, Claudia Marianne Frankie Khoo and Tham Xue Yi Fiona (Shook Lin & Bok LLP)
• Citation: [2022] SGCA 14

Andrew Phang Boon Leong JCA (delivering the judgment of the court): Introduction

In UJM v UJL [2021] SGCA 117 (“UJM”), we emphasised that the Appellate Division of the High Court (“AD”) will, in the vast majority of cases, serve as the final appellate court and that an application for leave to appeal from a decision of the AD (“AD/CA Leave Application”) will be subject to searching scrutiny, with leave to bring a further appeal granted only in rare and exceptional cases (at [129]). UJM, which was also the first AD/CA Leave Application before this court, presented us with an opportunity to consider the statutory scheme governing AD/CA Leave Applications as contained in s 47 of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) (“SCJA”) and O 57 r 2A(3) of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) (“Rules of Court”). The application before us (“OS 32”) is yet another AD/CA Leave Application which presents us with an opportunity to apply those principles which we have set out in UJM.

Background

OS 32 is an application by Mr Tan Hock Keng (“Mr Tan”) for leave to appeal from the decision of the AD in Tan Hock Keng v Malaysian Trustees Bhd and another matter [2021] SGHC(A) 18 (“the Judgment”). In the Judgment, the AD upheld the decision of a judge in the General Division of the High Court (“the Judge”) in Malaysian Trustees Bhd v Tan Hock Keng [2021] SGHC 162 (“the GD”) on a Registrar’s Appeal. The background facts have been set out in the Judgment and the GD and we only summarise the main points in so far as they are relevant for present purposes.

Mr Tan had entered into a settlement agreement with the respondent, Malaysian Trustees Bhd (“MTB”), in connection with disputes between MTB and another Malaysian company, Pilecon Engineering Bhd (“PEB”). Mr Tan is a director of PEB and he had provided a guarantee in respect of PEB’s debts to MTB in 2015. On 8 November 2019, the Kuala Lumpur High Court (“KLHC”) granted a consent judgment pursuant to a settlement agreement between Mr Tan and MTB for the sum of RM 60m with interest thereon (“the Consent Judgment”). The Consent Judgment provided that its enforcement was to be withheld on terms.

In the event, those terms were not fully performed. In August 2020, MTB filed an application in the KLHC (which was allowed) for certification of a true copy of the Consent Judgment under the Malaysian Reciprocal Enforcement of Judgments Act 1958. In September 2020, Mr Tan filed an application (“Malaysia OS 455”) in the KLHC, seeking, amongst other things, a declaration that the Consent Judgment is “valid and binding” on the parties and a reasonable extension of time for himself and the other parties to the Consent Judgment to comply with their obligations under the Consent Judgment.

In November 2020, MTB registered the Consent Judgment in the Singapore courts under the Reciprocal Enforcement of Commonwealth Judgments Act (Cap 264, 1985 Rev Ed) (“RECJA”). In December 2020, Mr Tan applied to set aside MTB’s registration on the grounds of there being, inter alia, an “appeal” within the terms of s 3(2)(e) of the RECJA, citing Malaysia OS 455. The assistant registrar (“AR”) allowed Mr Tan’s application.

MTB filed an appeal (“RA 83”) against the AR’s decision. For RA 83, Mr Tan similarly relied on Malaysia OS 455 as the “appeal”. He also argued that the word “appeal” in s 3(2)(e) of the RECJA should be given an extended definition like that found in s 2(1) of the Reciprocal Enforcement of Foreign Judgments Act (Cap 265, 2001 Rev Ed) (“REFJA”), as including “any proceedings by way of discharging or setting aside a judgment or an application for a new trial or stay of execution” (“the Extended Meaning”). The Judge held that Malaysia OS 455, which affirmed the validity and binding nature of the Consent Judgment, could not amount to an “appeal”, even if that word were given the Extended Meaning contended for by Mr Tan (see the GD at [16]). The Judge therefore allowed RA 83 and upheld the registration of the Consent Judgment. In the circumstances, it was unnecessary for the Judge to decide if the word “appeal” should indeed be given the Extended Meaning, but he considered that it should not (see the GD at [17]).

After RA 83 was allowed in MTB’s favour, Mr Tan filed a suit (“Malaysia Suit 437”) in the KLHC against MTB seeking, inter alia, rectification of the Consent Judgment so that it properly reflected the intention of the parties. Mr Tan also filed an appeal (“CA 54”) against the Judge’s decision, which was heard by the AD. For CA 54, Mr Tan relied, not on Malaysia OS 455, but on Malaysia Suit 437, as the proceeding constituting an “appeal” within s 3(2)(e) of the RECJA. In connection with his attempt to rely on Malaysia Suit 437, Mr Tan also filed an application (“SUM 26”) to adduce in evidence before the AD the cause papers relating to Malaysia Suit 437.

At the outset, the AD dismissed SUM 26. It considered that the requirements in BNX v BOE and another appeal [2018] 2 SLR 215 (“BNX”) for receiving further evidence on appeal as to matters occurring after the date of the hearing below were not satisfied. The AD held that it was not sufficient that the further evidence notionally affects the basis of the decision of the court below; it must “at the very least relate to the decision that is appealed against” (see the Judgment at [11]). The AD considered that evidence of Malaysia Suit 437 did not relate to the Judge’s decision at all because the Judge’s decision had been entirely premised on Malaysia OS 455 and not on Malaysia Suit 437, which offered an entirely new basis for the legal inquiry into what would qualify as an “appeal” for the purposes of s 3(2)(e) of the RECJA (see the Judgment at [12]).

With the dismissal of SUM 26, the only question remaining before the AD was whether Malaysia OS 455 constituted an “appeal”. The AD held that it did not. That was because Malaysia OS 455, which only sought to affirm the Consent Judgment rather than challenge or correct anything about that judgment before a court of superior jurisdiction, did not amount to an “appeal” within the ordinary meaning of the word (see the Judgment at [19]‒[21]). The AD also affirmed the Judge’s decision and considered that the word “appeal” in s 3(2)(e) of the RECJA should not be given the Extended Meaning, because while the word “appeal” appears in both the RECJA and REFJA, they are respectively couched in a different inquiry unique to the concerns animating the registration regime underlying each statute, and are not used in the same sense even though the context in both statutes are identical, namely, the setting aside of the registration of a foreign judgment (see the Judgment at [25] and [28]). The AD also considered that, even if the Extended Meaning applied, that did not assist Mr Tan, because any extended meaning associated with the word “appeal” cannot displace the natural meaning of the word (see the Judgment at [30]). Therefore, Malaysia OS 455 would still not amount to an “appeal” within s 3(2)(e) of the RECJA, even if the Extended Meaning applied (see the Judgment at [31]).

Mr Tan’s application in OS 32

Mr Tan submits that OS 32 ought to be allowed as his appeal raises two points of law of public importance. The first point of law is the interpretation of the word “appeal” in s 3(2)(e) of the RECJA, and whether it should be given the Extended Meaning (“the RECJA Point”). The second point of law is the AD’s imposition of a requirement that the further evidence must relate to issue(s) considered by the court below before it can be “potentially material” to the issues in the appeal (“the Further Evidence Point”). We refer to the appeal which Mr Tan seeks leave to bring as the “Intended Appeal”.

Most of the arguments advanced by Mr Tan in support of OS 32 deal with why the AD’s decision on the RECJA Point and the Further Evidence Point was wrong. Since these arguments pertain to the substantive merits of the Intended Appeal, we do not consider them for the purposes of OS 32. The remaining points raised by Mr Tan, which are relevant to the question of whether leave should be granted, are as follows: In connection with the RECJA Point, Mr Tan says this is the first time the Singapore courts have been asked to interpret the word “appeal” in the RECJA and consider whether...