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

• Court: International Commercial Court (Singapore)
• Judge: Patricia Bergin IJ
• Judgment Date: 13 March 2017
• Neutral Citation: [2017] SGHC(I) 3
• Citation: [2017] SGHC(I) 3
• Published date: 16 March 2017
• Plaintiff Counsel: Paul Tan, Yam Wern-Jhien and Josephine Chee (Rajah & Tann Singapore LLP)
• 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
• Hearing Date: 07 March 2017
• Docket Number: Suit No 2 of 2015 (Summons No 3 of 2017)
• Subject Matter: Stay of execution,Civil Procedure

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 avoidance purposes and not for the purpose of operating a genuine business”. Mr Hartanto claims at paragraph 19(b) of his affidavit that Yuanta is a “shell” BVI company and that Mr Yeh “effectively accepted” this in his evidence during the trial. The transcript that Mr Hartanto exhibits to his affidavit in support of this claim does not amount to such acceptance. Rather, Mr Yeh accepted that Yuanta was a “new company” (Exhibit HH-5 at p 42 of Mr Hartono’s affidavit).

The facts that the individual parties reside out of the jurisdiction and that the corporate parties are foreign companies are matters to be taken into account in considering all the circumstances of the application.

Questionable transactions

The Defendants rely upon a Report prepared by Ernst & Young Advisory Pte Ltd (“EY”) dated 31 October 2014 titled “Factual investigation into certain matters of Next-Generation Satellite Communications Limited” (“the EY Report”) in support of Mr Yeh’s claims that Mr Hartanto was “implicated in past questionable transactions”.

Mr Yeh claims at paragraph 15 of his first affidavit that EY “released an audit investigation report”. However, it is made clear in the EY Report that it “does not amount to an internal audit and shall not be relied upon as the primary basis for assessing the adequacy of the system of internal controls” (at paragraph 1.3.3 of the EY Report). It was also made clear that there were limitations to EY’s work including that the documents that were available to them were “incomplete” (at paragraph 1.4.2 of the EY Report).

NexGen made an announcement on 5 July 2014 that certain NexGen funds deposited with Niaga Finance Company Limited (“Niaga”) did not reconcile with NexGen’s records and that there were concerns in relation to the discrepancy and restriction of funds held by Niaga (referred to in the EY Report as “the Matter”) (at paragraph 1.1.2 of the EY Report). EY was appointed on 25 July 2014 to investigate the Matter, including reviewing the processes and procedures in respect of the deposit of the funds and the movement of cash placed with Niaga and the restriction (at paragraph 1.1.3 of the EY Report).

Mr Yeh refers to observations made in the EY Report including: that on 20 January 2009, the NexGen Board of Directors (“BOD”) resolved to open a bank account; that an account was opened with Niaga; that Niaga was not a bank but a “money lender”; and that Mr Hartanto was a director of Niaga and a 19.7% shareholder in Niaga (at paragraphs 1.6.1; 1.6.2 and 1.6.39(h)). Mr Yeh claims at paragraph 16(a) of his first affidavit that EY “found that there was no documented basis for this inconsistency”. EY did not make such a finding. Rather, the EY Report included reference to the interview conducted with Mr Hartanto in which he advised EY that at the relevant time NexGen was under “debt restructuring” and it was difficult to identify a bank that would not compromise NexGen’s interest. The EY Report also recorded that Mr Hartanto advised that he was a director of Niaga at the time and that he was “more comfortable” to place NexGen’s funds with it (at paragraph 1.6.5). The EY Report recorded that these matters were “not documented in any of the...