Tjong Very Sumito and others v Chan Sing En and others
Jurisdiction | Singapore |
Judge | Chao Hick Tin JA |
Judgment Date | 15 August 2011 |
Neutral Citation | [2011] SGCA 40 |
Court | Court of Appeal (Singapore) |
Docket Number | Civil Appeal No 234 of 2010 |
Year | 2011 |
Published date | 22 August 2011 |
Hearing Date | 29 April 2011 |
Plaintiff Counsel | Peter Gabriel and Shannon Ong (Gabriel Law Corporation) |
Defendant Counsel | Nicholas Narayanan (Nicholas & Tan Partnership LLP),Edwin Tong, Aaron Lee and Margaret Ling (Allen & Gledhill LLP) |
Subject Matter | Civil Procedure,Interim orders,Security for costs |
Citation | [2011] SGCA 40 |
This is an appeal against the decision of the High Court judge (“the Judge”) made in
The appellants, who are citizens of Indonesia, commenced the main action against a total of 11 defendants. The first respondent applied by way of Summons No 1720 of 2010 under O 23 r 1 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) (“the ROC”) for an order for security for costs against the appellants. This application was dismissed by an Assistant Registrar (“the AR”) on the ground that the first appellant (“Sumito”) was ordinarily resident in Singapore. The AR also refused to order security for costs against the second and third appellants (who are nominal plaintiffs, being nominee parties of Sumito). This part of his decision was based on the principle set out in
The first respondent filed an appeal, Registrar’s Appeal No 234 of 2010 (“RA 234/2010”), against the AR’s refusal to order security for costs. The second and third respondents also applied for security for costs against the appellants by way of Summons No 2961 of 2010. The Judge heard this application together with RA 234/2010. At the end of the hearings, the Judge reversed the AR’s decision and made the orders mentioned above at
In their submissions below the respondents did not strictly distinguish between arguments relevant to jurisdiction and those relevant to the exercise of the Judge’s discretion under O 23 r 1(1) of the ROC (see
The respondents argued that the court should exercise its discretion to grant security for costs for the reasons mentioned above in support of a finding of jurisdiction as well as the fact that the appellants (a) had obtained a Mareva injunction against the first respondent without good grounds,5 (b) had done so on the basis of fabricated documents and without full and frank disclosure,6 (c) had initiated the main action against the respondents vexatiously,7 and (d) had no ready assets in Singapore against which the respondents could enforce any judgment obtained in their favour.8 In addition, the second and third respondents stated that Sumito was using false identity documents and that his probity could not be relied upon.9 The second and third respondents further highlighted the fact that their defence in the main action was likely to succeed.10
Appellants’ arguments below As against the respondents’ submissions on the court’s jurisdiction to order security for costs, the appellants argued below that they were
As concerning the exercise of the court’s discretion, the appellants argued that (a) as Sumito
The Judge below first restated the law that the words “ordinarily resident” in O 23 r 1(1)(
The Judge then addressed the evidence concerning Sumito’s ordinary residence, finding that Sumito was ordinarily resident in Indonesia. He found that this sufficed to trigger his jurisdiction to order security for costs under O 23 r 1(1)(
The Judge also concluded that in addition to being ordinarily resident in Indonesia, Sumito was simultaneously also ordinarily resident in Singapore, although he added a qualification that this was not a necessary finding for his purposes (see
Having found that he had jurisdiction to order security for costs, the Judge took note of the fact that the appellants lacked assets in Singapore, the fact that neither parties’ case in the main action was obviously stronger, and the fact that no evidence was produced to prove the application for security was oppressive (see
Although the Judge noted the AR’s findings that the second and third appellants were nominal plaintiffs (see
The Appellants’ arguments essentially focused on the fact that Sumito is ordinarily resident in Singapore. They contended that any individual who is ordinarily resident in Singapore
The appellants also argued in the alternative that, in any event, a person cannot be ordinarily resident in more than one place at any one moment for the purposes of O 23 r 1 of the ROC except in exceptional circumstances.22 They sought to distinguish certain English cases that stated otherwise on the ground that those cases did not concern the question of security for costs under any equivalent of O 23 r 1(1)(
The appellants finally argued that even if jurisdiction to order security for costs was found, the discretion to do so ought not to have been exercised. This was because the appellants were ordinarily resident within Singapore and had a good arguable case in the main action.26 We note that the appellants did not seek to revisit the argument made below that no security should be ordered against the second and third appellants as a co-plaintiff of theirs (
In addition to the arguments mentioned, which were already raised at the hearing below,...
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Tjong Very Sumito v Chan Sing En
...Very Sumito and others Plaintiff and Chan Sing En and others Defendant [2011] SGCA 40 Chao Hick Tin JA and Andrew Phang Boon Leong JA Civil Appeal No 234 of 2010 Court of Appeal Civil Procedure—Interim orders—Security for costs—Respondents alleging that appellants were ordinarily resident o......