Vishva Protech Pvt Ltd v Pacific Pharmaceuticals Pte Ltd
Jurisdiction | Singapore |
Judge | Jonathan Toh Jun Hian |
Judgment Date | 12 March 2021 |
Neutral Citation | [2021] SGDC 49 |
Court | District Court (Singapore) |
Docket Number | District Court Suit No 2314 of 2020 (Summons No 4379/2020) |
Year | 2021 |
Published date | 06 April 2021 |
Hearing Date | 22 February 2021,04 March 2021 |
Plaintiff Counsel | Gomez & Vasu LLC |
Defendant Counsel | Tan Peng Chin LLC |
Citation | [2021] SGDC 49 |
The Defendant applied by DC/SUM 4379/2020 (“SUM 4379”) for a stay of proceedings in favour of arbitration on the basis that parties are bound by the arbitration agreement found at clause 23 of their agreement dated 24 January 2018 (the “Agreement” and the “Arbitration Clause” respectively).
The main issue in this application was whether the Defendant was precluded from obtaining a stay because it took a step in the proceedings by making an earlier application in DC/SUM 3510/2020 (“SUM 3510”) to set aside the Writ of Summons filed on 29 September 2020 (the “Writ”). I found that it did not and granted the order to stay these proceedings in favour of arbitration. The Plaintiff also raised a number of other issues which I did not find meritorious.
The issues raised The Plaintiff made the following arguments resisting the Defendant’s application:
I deal quickly with one preliminary point. Prayer 1 of SUM 4379 purported to rely on both the International Arbitration Act (Cap 143A, 2002 Rev Ed) (“IAA”), s 6 and the Arbitration Act (Cap 10, 2002 Rev Ed), s 6 for the stay. Counsel for the Defendant, Mr Lin, acknowledged at the start of the hearing that IAA, s 6 was the applicable provision. Both parties proceeded with arguments solely on IAA, s 6. This was clearly correct. There was no dispute that the Plaintiff, one of the parties to the Agreement, is a foreign company registered in India with its place of business in India. The obligations under the Agreement related the sale, supply and delivery of various machinery or equipment by the Plaintiff to the Defendant in connection with a factory in Yangon, Myanmar. In the circumstances, the proposed arbitration was international as defined at IAA, s 5(2).
Whether the Defendant had taken a step in the proceedings Procedural history After the Defendant was served with the Writ of Summons and Statement of Claim both filed on 29 September 2020 (the “Writ” and “SOC” respectively), it applied in SUM 3510 to set aside the Writ. The following orders were prayed for:
…
The 1
SUM 3510 was fixed to be heard on 23 November 2020. Before the hearing, Messrs Gomez & Vasu LLC filed a Notice of Appointment of Solicitor on 12 November 2020 giving notice to the Defendant that they had been appointed to act for the Plaintiff.
At the hearing of SUM 3510 on 23 November 2020, the Defendant maintained that it was proceeding with the application on all three grounds. According to the notes of evidence, the Plaintiff did not contest the application. However, the Court did not grant the relief sought and gave brief reasons.
The court then gave case management directions for the Plaintiff to file and serve the amended SOC by 11 December 2020, and the Defendant to file and serve its Defence by 28 December 2020.
Before me, the Defendant maintained that at the hearing of SUM 3510, counsel for the Defendant had orally informed the court of the existence of the arbitration clause and that the Defendant intended to reserve its right to apply to stay the proceedings in favour of arbitration. Counsel for the Plaintiff took the opposite position and submitted that the alleged reservation was found neither in his own counsel’s notes nor the certified transcript of the notes of evidence of the hearing.
On this point, I was guided by
In the circumstances, I did not proceed on the basis that the Defendant had reserved its right to apply to stay proceedings in favour of arbitration at the hearing of SUM 3510. No such reservation is found the application papers, the contemporaneous correspondence prior to or immediately after the hearing of SUM 3510, or the record of proceedings of the hearing. I also noted that the Defendant did not seek any case management directions for it to make such an application, but instead accepted, without more, the directions to file its Defence.
The Plaintiff served its Statement of Claim (Amendment No. 1) on 11 December 2020. Thereafter the Defendant informed the Plaintiff by letter dated 21 December 2020 that it intended to apply for a stay of proceedings in favour of arbitration. The Plaintiff submitted that this was the first time a stay of proceedings in favour of arbitration was raised.
The Defendant filed the present application in SUM 4379 on 28 December 2020, the date that it was to have filed its Defence.
Legal principles governing what constitutes a “step” IAA, s 6(1) states:
Both parties relied on two Court of Appeal cases for the applicable legal principles governing what constitutes a “step” under
The Court of Appeal in
from a procedural point of view, beyond a mere acknowledgment of service of process by evincing an unequivocal intention to participate in the court proceedings in preference to arbitration.
In
First, where a party performs or carries out a significant act signifying that it is
submitting to the court’s jurisdiction rather than to arbitration to resolve the outstanding issues between the parties, that party will be deemed to have taken a step in the proceedings. Second, the act will be regarded as a step in proceedings if it is a step in furtherance of the action byadvancing the hearing of the matter in court in contrast to one that serves to smother the action and stop the proceedings dead in its tracks. Third, where a party does an act with the consent of the other party, this will not amount to taking a step in the proceedings. Finally, the courts usually take the position that parties should not blow hot and cold or equivocate. Instead, they should be...
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