Telemedia Pacific Group Ltd and another v Yuanta Asset Management International Ltd and another

• Jurisdiction: Singapore
• Court: International Commercial Court (Singapore)
• Judge: Patricia Bergin IJ,Vivian Ramsey IJ
• Judgment Date: 13 March 2017
• Neutral Citation: [2017] SGHC(I) 3
• Citation: [2017] SGHC(I) 3
• Hearing Date: 07 March 2017
• Defendant Counsel: Lim Joo Toon (Joon Toon LLC), Philip Ling and Kam Kai Qi (instructed counsel) (Wong Tan & Molly Lim LLC)
• Date: 15 March 2018
• Subject Matter: Stay of execution,Civil Procedure
• Published date: 16 March 2017
• Docket Number: Suit No 2 of 2015 (Summons No 3 of 2017)
• Plaintiff Counsel: Paul Tan, Yam Wern-Jhien and Josephine Chee (Rajah & Tann Singapore LLP)

Patricia Bergin IJ: Introduction

By Summons No 3 of 2017 filed on 4 January 2017 (“the Summons”), Yuanta Asset Management International Limited (“Yuanta”) and Yeh Mao-Yuan (“Mr Yeh”) (collectively, “the Defendants”), seek a stay of execution of parts of the Judgments dated 30 June 2016, Telemedia Pacific Group and another v Yuanta Asset Management International Limited and another [2016] SGHC(I) 03 (“the First Judgment”), and 7 December 2016, Telemedia Pacific Group and another v Yuanta Asset Management International Limited and another [2016] SGHC(I) 06 (“the Second Judgment”) (collectively, “the Judgments”). The stay is sought until the Defendants’ appeal from the Judgments in Civil Appeal No 189 of 2016 is determined.

The orders in respect of which the stay is sought are as follows: 1. That the Defendants are to pay S$1,848,723.75 into a joint trust account held by the solicitors for the respective parties pending the finalisation of the joint venture accounting exercise between the parties. 2. That the Defendants are to pay the Plaintiffs S$6,464,839.37. 3. That the Defendants are to pay 75% of the Plaintiffs’ costs of the proceedings (excluding any costs incurred by the Plaintiffs in respect of the Portfolio Claim).

The application was heard on 7 March 2017. The Defendants were represented by Mr Philip Ling and Ms Kam Kai Qi from Wong Tan & Molly Lim LLC (instructed by Mr Lim Joo Toon from Joo Toon LLC) and the Plaintiffs were represented by Mr Paul Tan, Mr Yam Wern-Jhien and Ms Josephine Chee from Rajah & Tann Singapore LLP.

At the conclusion of the hearing, I made an order dismissing the Summons. These are the reasons for that dismissal. In this judgment, I will also deal with the question of costs which was argued on 7 March 2017.

The Defendants relied upon Mr Yeh’s affidavits dated 4 January 2017 and 14 February 2017. The Plaintiffs relied upon the affidavit of Hady Hartanto (“Mr Hartanto”) dated 2 February 2017. The parties relied upon their written submissions filed on 21 February 2017 (the Plaintiffs) and 23 February 2017 (the Defendants) and limited oral submissions at the hearing on 7 March 2017.

Parties’ contentions

The Defendants contend that if the orders are not stayed, there is a genuine risk that if they succeed on appeal they would not be able to recover the monies from the Plaintiffs. They emphasise that the Plaintiffs are not residents of Singapore and claim that Mr Hartanto is implicated in “past questionable transactions”. They also refer to previous litigation in which Mr Hartanto has been involved and claim that the Plaintiffs cannot be trusted to repay the monies if the Defendants are successful on appeal. The Defendants also rely on the merits of their grounds of appeal in support of their application.

I intend in the circumstances to assume that the Defendants’ grounds of appeal are reasonably arguable and to consider the other aspects of their application for a stay in this context. In any event, the fact that there are strong grounds for appeal is not, by itself, a special circumstance that warrants a stay.

As they did in the main case, the Plaintiffs complain about the veracity of Mr Yeh’s claims and contend that the Defendants’ conduct is a further attempt to circumvent the orders of the Court. While not accepting that there are grounds warranting the granting of a stay, the Plaintiffs contend that the concerns expressed by the Defendants in relation to the Plaintiffs’ capacity to repay the judgment monies if ordered to do so, could be addressed by an order that the judgment monies be paid into Court pending the determination of the appeal. Prior to the hearing of the application, the Plaintiffs proposed to the Defendants that such an order be made by consent to obviate the need for the hearing. However, the Defendants did not accept such a proposal.

The evidence

In his first affidavit dated 4 January 2017, Mr Yeh makes five claims in support of the Defendants’ contention that there is a genuine risk that if the Defendants succeed on appeal they would not be able to recover the monies from the Plaintiffs. Those claims are: (1) that the Plaintiffs are not resident in Singapore; (2) that Mr Hartanto has been implicated in past questionable transactions in Next Generation Satellite Communications Limited (“NexGen”); (3) that Mr Hartanto breached a contract with a potential investor for the sale of shares in NexGen which he did not own or have authority to sell; (4) that Mr Hartanto had been reprimanded by the Singapore Exchange (“SGX”) for his role in “round-tripping of money” in a listed company, Scorpio East Holdings Limited (“Scorpio East”); and (5) that Mr Hartanto made false statements in an affidavit sworn in the main proceedings concerning the purchase of Scorpio East shares.

In his affidavit dated 2 February 2017, Mr Hartanto recounts the history of the correspondence between the respective solicitors in relation to the Plaintiffs’ proposal that the judgment monies be paid into Court or into an escrow account pending the determination of the appeal. He claims that the Defendants’ stay application is without merit and is brought in bad faith; and that the Defendants’ appeal is unmeritorious. He also claims that if the Defendants are permitted to retain the judgment monies, it is likely that those funds will be dissipated.

In his second affidavit dated 14 February 2017, Mr Yeh responds to Mr Hartanto’s evidence and claims that the Plaintiffs have no basis to allege that the Defendants have refused to cooperate in the enforcement of the Judgments. He also refers to matters pertinent to the merits of the Defendants’ appeal and makes further claims in respect of Mr Hartanto’s credibility. Mr Yeh also claims that there is no risk of the judgment monies being dissipated by the Defendants.

Not Singapore residents

Neither Mr Hartanto nor Mr Yeh is a Singapore resident. Both Yuanta and Telemedia Pacific Group Limited (“TPG”) are companies registered in the British Virgin Islands (“BVI”). Mr Yeh claims at paragraph 13 of his first affidavit that it is “common” for companies to be registered in BVI for “tax...