Tjong Very Sumito and others v Chan Sing En and others

JurisdictionSingapore
JudgeChao Hick Tin JA
Judgment Date15 August 2011
Neutral Citation[2011] SGCA 40
CourtCourt of Appeal (Singapore)
Docket NumberCivil Appeal No 234 of 2010
Year2011
Published date22 August 2011
Hearing Date29 April 2011
Plaintiff CounselPeter Gabriel and Shannon Ong (Gabriel Law Corporation)
Defendant CounselNicholas Narayanan (Nicholas & Tan Partnership LLP),Edwin Tong, Aaron Lee and Margaret Ling (Allen & Gledhill LLP)
Subject MatterCivil Procedure,Interim orders,Security for costs
Citation[2011] SGCA 40
Chao Hick Tin JA (delivering the judgment of the court): Introduction

This is an appeal against the decision of the High Court judge (“the Judge”) made in Tjong Very Sumito and others v Chan Sing En and others [2011] 2 SLR 360 (“the Judgment”), where the Judge ordered that the appellants (the plaintiffs in Suit No 89 of 2010 (“the main action”)) be required to furnish security for costs in the sum of $35,000 in favour of the first respondent (the first defendant in the main action) and $40,000 in favour of the second and third respondents (the fifth and sixth defendants in the main action respectively).

Procedural background

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 Singapore Civil Procedure 2007 (G P Selvam gen ed) (Sweet & Maxwell, 2007) (“Singapore Civil Procedure”) at para 23/3/10 and the cases cited therein to the effect that security for costs will not normally be made against plaintiffs who have a co-plaintiff resident within the jurisdiction.1

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 [1].

Arguments below Respondents’ arguments below

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 [20] below). However, for clarity we have attempted to arrange their arguments according to such a distinction. The respondents’ arguments before the Judge that were relevant to the court’s jurisdiction to order security for costs were as follows. Firstly, the appellants were all ordinarily resident out of Singapore (under O 23 r 1(1)(a) of the ROC).2 In addition, the second and third appellants were nominal plaintiffs of Sumito (under O 23 r 1(1)(b) of the ROC).3 Finally, the respondents pointed out that the appellants were trying to evade the consequences of litigation by using multiple identities and multiple addresses (under O 23 r 1(1)(d) of the ROC).4 The applicable rules are set out at [20] below.

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 not ordinarily resident outside of Singapore for the purposes of O 23 r 1(1)(a).11 In addition, the second and third appellants were not nominal plaintiffs, nor were they proven unable to pay costs for the purposes of O 23 r 1(1)(b).12 As for his alleged changes in address (relevant under of O 23 r 1(1)(c)), Sumito argued that the last time that he had been proven to have changed his address was before the commencement of the main action.13

As concerning the exercise of the court’s discretion, the appellants argued that (a) as Sumito was ordinarily resident in Singapore, in any event the court should not order security for costs against him even if it found it had the jurisdiction to do so,14 (b) no security should be ordered against the second and third appellants as they are co-plaintiffs of Sumito, who was ordinarily resident in Singapore15 (the same ground relied upon by the AR), (c) they had a good arguable case in the main action,16 and (d) the respondents’ applications were intended to stifle their claim in the main action.17 The appellants also denied the allegations regarding Sumito’s supposedly questionable probity.18

Decision below

The Judge below first restated the law that the words “ordinarily resident” in O 23 r 1(1)(a) were to be given their natural meaning, and that cases outside the security for costs context could be relevant on this issue (see [11][12] of the Judgment). The Judge then addressed the question of whether a person could be found to be ordinarily resident in more than one place at a specific point in time. After reviewing Singapore and Commonwealth case law, he concluded that he was not precluded from making such a finding (see [19] of the Judgment).19

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)(a) of the ROC (see [21] and [24] of the Judgment).

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 [25] of the Judgment). He then held that a plaintiff found to be ordinarily resident both in Singapore as well as another jurisdiction could still have security for costs ordered against him (see [34] of the Judgment).

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 [38], [39], [45] and [46] of the Judgment). He therefore allowed the application of the second and third respondent and allowed the appeal of the first respondent, ordering the appellants to provide $40,000 as security for the costs of the second and third respondents and $35,000 as security for the costs of the first respondent, in all cases up to and including the date for filing the List of Documents in the main action (see [48] of the Judgment).

Although the Judge noted the AR’s findings that the second and third appellants were nominal plaintiffs (see [9] of the Judgment), he eventually stated that it was unnecessary to make any findings in relation to this issue under O 23 r 1(1)(b) as his jurisdiction had already been triggered under O 23 r 1(1)(a) (see [35] of the Judgment). We note that he also did not go on to address the argument that costs are not normally ordered against foreign parties with co-plaintiffs ordinarily resident in Singapore (see [7] above).

Appellants’ and respondents’ cases

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 cannot fall within the scope of O 23 r 1(1)(a) of the ROC, even if he is also ordinarily resident outside of Singapore. This was based on the premise that the rule only targets plaintiffs who are not amenable to the process of the court.20 In this connection they argued that the Judge had erred in not considering an Australian case, ie, Rivera v Australian Broadcasting Corporation [2005] FCA 661, (“Rivera”), which they asserted was an authority in their favour that was brought to the court’s attention below.21

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)(a) and/or did not actually result in a finding that a propositus was ordinarily resident in more than one place.23 On this premise, they sought to argue that Sumito must be found to be ordinarily resident in Singapore only.24 In any event, the appellants also argued that based on the objective facts Sumito is not ordinarily resident in Indonesia.25

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 (ie, Sumito) was ordinarily resident in Singapore (see [7] above).

In addition to the arguments mentioned, which were already raised at the hearing below,...

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1 cases
  • Tjong Very Sumito v Chan Sing En
    • Singapore
    • Court of Appeal (Singapore)
    • 15 August 2011
    ...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......

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