United Malayan Banking Corp v Khoo Boo Hor

• Jurisdiction: Singapore
• Judge: T S Sinnathuray J
• Judgment Date: 22 November 1995
• Neutral Citation: [1995] SGHC 282
• Docket Number: Originating Summons No 5 of 1993 (Summons in Chambers No 296 of 1994)
• Date: 22 November 1995
• Published date: 19 September 2003
• Year: 1995
• Plaintiff Counsel: Kenneth Tan (Shook Lin & Bok)
• Citation: [1995] SGHC 282
• Defendant Counsel: Victor Koh Koon Hor (Victor Koh & Co)
• Court: High Court (Singapore)
• Subject Matter: Whether entering into guarantee agreement in foreign jurisdiction constituted submission,Submission to jurisdiction,s 3(2)(b) Reciprocal Enforcement of Commonwealth Judgments Act (Cap 264),Application to set aside,Words and Phrases,Whether submission could be implied,Whether holding shares in and being director of foreign company sufficient to constitute 'carrying on business',Civil Procedure,Foreign judgment,Judgments and orders,Registration,'Carrying on business',Whether applicant was 'carrying on business' in foreign jurisdiction

This was an application by the judgment debtor to set aside the registration of a judgment of the High Court of Malaya at Kuala Lumpur (Commercial Division) (the original court) in Civil Suit No Company 2500 of 1983 dated 14 January 1988 (the judgment), registered pursuant to the provisions of the Reciprocal Enforcement of Commonwealth Judgments Act (Cap 264) (the Act). On 4 July 1995, I allowed the application and now give my reasons for doing so.

These are the material facts. On 21 September 1983, the judgment creditors commenced proceedings in the original court against a company registered in Malaysia known as Usiaemas Industries Sdn Bhd (the company), one Abdul Rahman bin Yusuf, one Poon Song Kuang and the judgment debtor. The claim against the company was for payment under overdraft facilities granted by the judgment creditors. The other defendants were sued as joint and several guarantors.

Subsequently, the judgment creditors obtained judgments in default of appearance against the company, Abdul Rahman bin Yusuf and Poon Song Kuang. On 16 August 1985, the judgment creditors obtained leave to serve the writ out of jurisdiction on the judgment debtor, a Singapore citizen, at 46 Bournemouth Road, Singapore. However, attempts to serve at the address failed. On 14 December 1987, the judgment creditors effected substituted service on the judgment debtor by posting the writ at the door of 46 Bournemouth Road and on the notice board of the original court. On 14 January 1988, the judgment creditors obtained judgment in default of appearance against the judgment debtor. The judgment is in the following terms:

No appearance having been entered by the fourth defendant [the judgment debtor] herein, it is this day adjudged that the fourth defendant do pay the plaintiff:

(a) The sum of $22,406.47 (Ringgit ...) under outstanding overdraft (as at 25 May 1983) together with interest thereon at 9% pa with monthly rests from 26 May 1983 till date of full settlement;

(b) The sum of $37,431.70 (Ringgit ...) under LC No JM 811317 (as at 6 January 1983) together with interest thereon at 16% pa with monthly rests from 6 June 1983 till date of full settlement;

(c) The sum of $12,162.96 (Ringgit ...) under LC No JM 811476 (as at 6 June 1983) together with interest thereon at 16% pa with monthly rests from 6 June 1983 till date of full settlement and $385.00 as costs.

After a delay of almost five years, the judgment creditors applied on 4 January 1993 to the High Court of Singapore to register the judgment. On 12 February 1993, the ex parte application was granted. The judgment debtor was given liberty to apply to set aside the registration of the judgment within 21 days after service of the notice of registration of the foreign judgment on him.

On 25 May 1993, the notice of registration of the foreign judgment was served on the judgment debtor by way of substituted service effected by advertisements in both The Straits Times and the Lianhe Zaobao . The judgment debtor filed the present application to set aside the registration of the judgment on 14 January 1994. He was out of time. In his affidavit, the judgment debtor explained that his family had moved out of 46 Bournemouth Road before June 1983. He only found out about the proceedings both in Malaysia and in Singapore in August 1993 when he saw an advertisement in The Straits Times of a bankruptcy notice against him pursuant to the registered judgment. Since then, he has had great difficulty obtaining the relevant papers of the proceedings. He has also tried to negotiate a settlement with the judgment creditors. On 15 March 1994, I granted the judgment debtor an extension of time for his application after considering the reasons for the delay. I proceeded to hear the merits of the application to set aside, to which I shall now turn.

Section 3(2) of the Act provides several restrictions on registration. Counsel for the judgment debtor, Mr Kenneth Tan, relied, inter alia, on s 3(2)(b) which states:

No judgment shall be ordered to be registered under this section if -

(b) the judgment debtor, being a person who was neither carrying on business nor ordinarily resident within the jurisdiction of the original court, did not voluntarily appear or otherwise submit or agree to submit to the jurisdiction of that court; [Emphasis added.]

By 2(1) of the Interpretation Act (Cap 1), any reference to a person found in every written law, shall `include any company or association or body of persons, corporate or unincorporate.`

It was not in dispute that the judgment debtor, a Singapore citizen, was ordinarily resident in Singapore and did not appear voluntarily before the original court. However, the remaining conditions within s 3(2)(b) were disputed. Mr Tan contended that the judgment was not registrable because the judgment debtor was not carrying on business within the jurisdiction of the original court. Furthermore, the judgment debtor did not submit or agree to submit to its jurisdiction. Counsel for the judgment creditors, Mr Victor Koh, contended otherwise.

A preliminary question which the parties addressed is whether `carrying on business` within s 3(2)(b) applies both to bodies corporate and to individuals. An important prerequisite for the enforcement of a foreign judgment at common law is the competence or jurisdiction of the foreign court in the foreign country. Either the residence, or sometimes mere presence, of the judgment debtor in the foreign country is sufficient as a basis of jurisdiction: see Adams & Ors v Cape Industries plc & Anor [1991] 1 All ER 929. In relation to corporations, residence or presence has little...