UBS AG v Telesto Investments Ltd and others and another matter
Jurisdiction | Singapore |
Judge | Steven Chong J |
Judgment Date | 14 July 2011 |
Neutral Citation | [2011] SGHC 170 |
Court | High Court (Singapore) |
Docket Number | Originating Summons No 1160 of 2010 (Registrar’s Appeal No 59 of 2011), Suit No 801/2010 (Registrar’s Appeal No 58 of 2011) |
Published date | 18 July 2011 |
Year | 2011 |
Hearing Date | 16 May 2011 |
Plaintiff Counsel | Hri Kumar SC, Shivani Retnam, James Low and Charmaine Chiu (Drew and Napier LLC) |
Defendant Counsel | Eddee Ng (Tan Kok Quan Partnership) |
Citation | [2011] SGHC 170 |
The two appeals before me (Registrar’s Appeal No 58 of 2011 and Registrar’s Appeal No 59 of 2011) relate to the issue as to which of the two jurisdictions,
The thrust of the plaintiff’s case in the Singapore proceedings lies in contract where it claims for payment due under various contracts entered with the first and second defendant respectively (see
This decision will,
The plaintiff in Suit No 801 of 2010 (“S 801/2010” or the “Singapore Proceedings”) and Originating Summons No 1160 of 2010 (“OS 1160/ 2010”) is UBS AG. Although UBS AG is named as the plaintiff in both S 801/2010 and OS 1160/2010, parties have made submissions by reference to UBS Singapore, which is the Singapore branch of UBS AG and carries on business in Singapore. For the avoidance of doubt, this judgment will employ the term “UBS AG (Singapore)” whenever the Singapore branch of UBS AG is referred to.
Telesto Investments Limited (“Telesto”) is an underlying company of the Dog Star Trust which is a purpose trust registered in Jersey, the Channel Islands. On 3 December 2007, Telesto opened an account,
Scott Francis Tyne (“Mr Tyne”), on the other hand, is a director and the controlling mind of Pole Star Funds Management Pte Ltd (“Pole Star”) which, at all material times, was in charge of Telesto’s discretionary investment. Mr Tyne was, at all material times, identified by Telesto (in the minutes of its directors’ meeting) as the sole beneficial owner of the assets in the account.1 He was also the guarantor of all the obligations and liabilities of Telesto owing to UBS AG (Singapore), pursuant to a continuing guarantee and indemnity dated 26 September 2008 (“the Guarantee”) in favour of UBS AG (Singapore).
Telesto and Mr Tyne are the first and second defendants of both S 801/2010 and OS 1160/2010.
ACN 074 971 109 Pty Ltd, the third defendant in OS 1160/2010, is the trustee of the Argot Unit Trust (“Argot”) which is also a customer of UBS AG, having opened an account,
As an application for a stay of proceedings and/or for an anti-suit injunction typically involves an examination of the connections that the
Telesto’s account and the relevant account documents
Telesto’s account was booked in Singapore and was serviced by UBS AG (Singapore). The account is subject to the terms and conditions (“T&Cs”) of the following documents, collectively referred to as the “Account Agreement”:
Documents (a) to (d) above were issued by UBS AG (Singapore) and were signed by the directors or authorised signatories of Telesto in Jersey. Documents (e) and (f) are the standard T&Cs as incorporated in the Account Agreement by,
Telesto’s facilities provided by UBS AG (Singapore)
UBS AG (Singapore) extended to Telesto, by way of a Credit Services Notification Letter (“CSNL”) dated 12 December 2007 which was subsequently revised by CSNLs dated 13 February 2008, 1 June 2008 and 1 August 2008, the following facilities:
It is not disputed that Telesto executed the CSNLs in respect of the above facilities (“the Facilities”) and is bound by the T&Cs set out therein.
The following are governed by Singapore law and contain (non-exclusive) jurisdiction clauses in favour of Singapore:
The events leading to the Standstill Agreement between UBS AG (Singapore) and Telesto
Pursuant to the CSNLs, Telesto utilised the facilities to,
It is undisputed that UBS AG (Singapore) had sent Telesto periodic statements and confirmations reflecting the purchase of the Investments and other transactions carried out under the Account Agreement. The periodic statements and confirmations were retained by UBS AG (Singapore) in Singapore at its Retained Mail unit pursuant to Telesto’s mailing instructions of 13 November 2007 when it signed the Account Mandate.4 Telesto did not dispute the statements or confirmations at any material time. Pursuant to cl 2.1 of the account T&Cs,5 Telesto undertook to inform UBS AG (Singapore) promptly and in any event, within 14 days from the date of such confirmation, and, within 90 days from the date of such statements (as applicable), of any discrepancies, omissions, credits or debits wrongly made to or inaccuracies or incorrect entries in the account or the contents of each confirmation or statement or the execution of any order. Failing which, upon the expiry of the 14 days, UBS AG (Singapore) may
In or about September 2008, the value of the Collateral decreased due to market deterioration. Consequently, a margin shortfall occurred in the account. In or around 24 September 2008, Mr Tyne travelled to Singapore to,
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UBS AG v Telesto Investments Ltd
...AG Plaintiff and Telesto Investments Ltd and others and another matter Defendant [2011] SGHC 170 Steven Chong J Originating Summons No 1160 of 2010 (Registrar's Appeal No 59 of 2011) and Suit No 801 of 2010 (Registrar's Appeal No 58 of 2011) High Court Conflict of Laws—Choice of jurisdictio......