Tjong Very Sumito v Chan Sing En

• Jurisdiction: Singapore
• Judgment Date: 15 August 2011
• Date: 15 August 2011
• Docket Number: Civil Appeal No 234 of 2010
• Court: Court of Appeal (Singapore)

Tjong 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 outside of Singapore—First appellant arguing that he was ordinarily resident in Singapore—Whether court could find person to be ordinarily resident in more than one place for purposes of O 23 r 1 (1) (a) Rules of Court (Cap 322, R 5, 2006 Rev Ed) —Whether court had jurisdiction to order security for costs against person ordinarily resident both inside and outside jurisdiction under O 23 r 1 (1) (a) Rules of Court—Order 23 r 1 (1) (a) Rules of Court (Cap 322, R 5, 2006 Rev Ed)

The appellants were the plaintiffs in Suit No 89 of 2010 (‘the main action’) . The respondents were three of the defendants in the main action. The respondents applied for orders for security for costs against the appellants before a High Court judge (‘the Judge’) . Among other bases, the respondents relied on the fact that the appellants were all ordinarily resident out of Singapore, which was a relevant ground of jurisdiction under O 23 r 1 (1) (a) of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) (‘ROC’) . The appellants disputed this fact.

The Judge found that the appellants were ordinarily resident in Indonesia, triggering his jurisdiction to order security for costs under O 23 r 1 (1) (a) of the ROC. The Judge also concluded that the first appellant Tjong Very Sumito was simultaneously ordinarily resident in Singapore, and that a plaintiff ordinarily resident in Singapore as well as another jurisdiction could still have security for costs ordered against him. Taking 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 that the application for security was oppressive, he ordered the appellants to pay security for costs. The appellants appealed against this decision.

Held, dismissing the appeal:

(1) A person could be ordinarily resident in more than one jurisdiction if that person had voluntarily adopted more than one place as their residence with the necessary settled purpose: at [33].

(2) The clear express words of O 23 r 1 (1) (a) of the ROC gave a positive formulation, giving the court jurisdiction to order security for costs where the plaintiff was ordinarily resident out of Singapore's jurisdiction. The appellants' argument that jurisdiction to order security for costs under O 23 r 1 (1) (a) of the ROC was based on ensuring amenability to enforcement jurisdiction was therefore rejected. The corollary of that argument, which was that where a plaintiff was ordinarily resident in Singapore, the court should not have jurisdiction to order costs against him notwithstanding that he might also be ordinarily resident out of Singapore, was likewise rejected: at [35]and [36].

(3) While one of the rationale for jurisdiction under O 23 r 1 (1) (a) of the ROC was to create a fund within jurisdiction for ease of enforcement of any cost order in the defendant's favour, ease of enforcement was not a determinative factor in all questions arising under O 23 r 1 (1) . The rule might have more than one specific rationale. In questions of jurisdiction, recourse had to always be had first to the wording of the four grounds of jurisdiction under O 23 r 1 (1) : at [41] and [42].

(4) The court had the jurisdiction to order security for costs against a person ordinarily resident in Singapore if he or she was also ordinarily resident out of jurisdiction: at [50].

(5) Although ordinary residence in Singapore did not bar the court's jurisdiction in making an order for security for costs in respect of a plaintiff who was also ordinarily resident elsewhere, the fact of ordinary residence in Singapore was a strong factor in favour of the court refusing to exercise its discretion to order security for costs: at [51].

(6) On the facts, the appellants were ordinarily resident in Indonesia. The Judge had correctly found he had jurisdiction to order security for costs against them. The appellants had not shown they owned any meaningful assets within jurisdiction which the respondents could look to for the purposes of satisfying any costs order in their favour. The court would therefore not interfere with the Judge's exercise of discretion: at [50], [55] and [60].

(7) The appellants' new argument based on undue delay in the second and third respondents' application for security for costs could not be raised as the necessary facts to decide on that argument were not before the court. The respondents were also not given a chance to provide an explanation for the alleged delay. In any event, the appellants had not shown that they had been prejudiced by the lapse of time between the commencement of the main action and the filing of the application for security: at [63] and [64].

[Observation: Parties and courts should always be careful to avoid conflating arguments relevant to the court's finding of jurisdiction to order security for costs under O 23 r 1 (1) with arguments relevant to the exercise of discretion to order such security after such jurisdiction was found. Some arguments might be relevant to both questions but not all would be: at [37] and [40].]

Akbarali v Brent London Borough Council [1983] 2 AC 309 (folld)

Berkeley Administration Inc v Mc Clelland [1990] 2 QB 407 (distd)

Corbett v Nguyen [2008] NSWSC 1265 (folld)

Fitzgerald v Williams [1996] QB 657 (distd)

Ho Wing On Christopher v ECRC Land Pte Ltd [2006] 4 SLR (R) 817; [2006] 4 SLR 817 (refd)

Jones v The Scottish Accident Insurance Co Ltd (1886) 17 QBD 421 (distd)

Kenneth Dudley Taylor, Re; Ex parte Natwest Australia Bank Ltd (1992) 37 FCR 194 (refd)

Levene v CIR [1928] AC 217 (folld)

Leyvand v Barasch The Times (23 March 2000) (folld)

Lian Soon Construction Pte Ltd v Guan Qian Realty Pte Ltd [1999] 1 SLR (R) 1053; [1999] 2 SLR 233 (folld)

Little Olympian Each Ways Ltd, Re [1995] 1 WLR 560 (refd)

Logue v Hansen Technologies Ltd [2003] FCA 81 (folld)

Ooi Ching Ling Shirley v Just Gems Inc [2002] 2 SLR (R) 738; [2002] 3 SLR 538 (refd)

Pacific Integrated Logistics Pte Ltd v Gorman Vernel International Freight Ltd [2007] 1 SLR (R) 1017; [2007] 1 SLR 1017 (refd)

Panwah Steel Pte Ltd v Koh Brothers Building & Civil Engineering Contractor (Pte) Ltd [2006] 4 SLR (R) 571; [2006] 4 SLR 571 (folld)

Rivera v Australian Broadcasting Corp [2005] FCA 661 (refd)

Robson v Robson [2010] QSC 378 (folld)

Westacre Investments Inc v The State-Owned Company Yugoimport SDPR [2009] 2 SLR (R) 166; [2009] 2 SLR 166 (folld)

Wishing Star Ltd v Jurong Town Corp [2004] 1 SLR (R) 1; [2004] 1 SLR 1 (refd)

Companies Act (Cap 50, 2006 Rev Ed) ss 173 (2) , 173 (6)

Rules of Court (Cap 322, R 5, 2006 Rev Ed) O 23 r 1 (1) (a) (consd) ;O 11, O 23 r 1, O 23 r 1 (1) , O 23 r 1 (1) (b) , O 23 r 1 (1) (c) , O 23 r 1 (1) (d)

Federal Court Rules (as at 26 November 2002) (Cth) O 28 r 3 (1) (a)

Federal Court Rules (as at 23 December 2004) (Cth) O 28 r 3

Uniform Civil Procedure Rules 1999 (Qld) r 671 (e)

Uniform Civil Procedure Rules 2005 (NSW) r 42.21 (1) (a)

Peter Gabriel and Shannon Ong (Gabriel Law Corporation) for the appellants

Nicholas Narayanan (Nicholas & Tan Partnership LLP) for the first respondent

Edwin Tong, Aaron Lee and Margaret Ling (Allen & Gledhill LLP) for the second and third respondents.

Judgment reserved.

Chao Hick Tin JA

(delivering the judgment of the court) :

Introduction

1 This is an appeal against the decision of the High Court judge (‘the Judge’) made in Tjong Very Sumito v Chan Sing En [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

2 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 inSingapore Civil Procedure 2007(GP Selvam gened) (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.

3 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

4 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...