VKC v VJZ and another

• Jurisdiction: Singapore
• Judge: Judith Prakash JCA
• Judgment Date: 29 July 2021
• Neutral Citation: [2021] SGCA 72
• Published date: 03 August 2021
• Docket Number: Civil Appeal No 102 of 2020
• Year: 2021
• Hearing Date: 11 March 2021
• Plaintiff Counsel: Devinder Kumar s/o Ram Sakal Rai and Leong Wen Jia Nicholas (ACIES Law Corporation)
• Citation: [2021] SGCA 72
• Defendant Counsel: Ong Min-Tse Paul, Afzal Ali and Marrissa Miralini Karuna (Allen & Gledhill LLP)
• Court: Court of Appeal (Singapore)
• Subject Matter: Anti-suit injunction,Civil Procedure,Injunctions

Belinda Ang Saw Ean JAD (delivering the grounds of decision of the court): Introduction

Civil Appeal No 102/2020 (“CA 102/2020”) was an appeal against the High Court Judge’s (the “Judge”) decision in VJZ & another v VKB & others [2020] SGHCF 11 (the “HC Judgment”), granting an anti-suit injunction against the appellant [VKC] (the “appellant”). The sole issue that arose in this appeal was whether the anti-suit injunction should have been granted. The appeal was dismissed with costs on 11 March 2021. We now publish our full grounds of decision.

This court upheld the Judge’s grant of an anti-suit injunction to restrain proceedings that were brought by the appellant in Indonesia. However, with respect, we disagreed with the Judge on the main ground relied upon by him for the grant of an anti-suit injunction, and in particular with his conclusions that the respondents were entitled to the benefit of an exclusive jurisdiction in a settlement agreement and that the proceedings in Indonesia constituted a breach of the exclusive jurisdiction clause. We upheld the grant of the anti-suit injunction because we found that the Indonesian proceedings were otherwise vexatious or oppressive. This ground was advanced by the respondents in this appeal relying, inter alia, on the Judge’s view on natural forum and his finding that the Indonesian proceedings were vexatious and oppressive to them. This ground required us to be satisfied that Singapore was clearly the more appropriate forum and that it was necessary for the ends of justice to grant the anti-suit injunction taking into account considerations of comity, if necessary. As the categories of factors which indicate vexation or oppression are not closed, this court’s consideration of other factors taken in the round will be explained in this decision. We will also discuss whether the appellant’s conduct in instituting and continuing with litigation in Indonesia manifested bad faith.

Background to the anti-suit injunction application and the underlying dispute

The background facts and events leading to the anti-suit application are helpfully summarised in the HC Judgment. In brief, the appellant was one of 15 beneficiaries of an estate (the “Estate”), while the respondents, [VJZ] and [VKA] (collectively, the “respondents”) were appointed as the joint and several administrators of the Estate (later varied to joint administrators) on 1 February 2018. The Grant of Letters of Administration was granted to the respondents on 25 April 2018 and issued on 26 July 2018.

The Estate was that of the deceased testator (the “Deceased”) who passed away on 31 October 2012, leaving behind a last will and testament dated 24 November 1995 (“the 1995 Will”). Later, the Estate became embroiled in the conflict amongst the beneficiaries who ended up suing in various jurisdictions such as Indonesia and Singapore.

As regards legal proceedings in Singapore, pursuant to an order of court dated 8 May 2017 and made in HCF/OSP 10/2016, the beneficiaries participated in mediation on 16 and 17 April 2018 and a mediation settlement was reached. All 15 beneficiaries duly executed a settlement agreement dated 18 April 2018 (the “2018 SA”).

The provisions in the 2018 SA reflected the parties’ understanding, arrangement and collective agreement as to the respondents’ role in the administration of the Estate including their function, responsibilities and obligations in and about the distribution of the assets in the Estate together with the performance and discharge of the terms of the 2018 SA. For ease of reference, the Judge categorised the beneficiaries (apart from the 15th beneficiary which was a Singapore-incorporated company wholly owned by the Deceased prior to his death) into three groups: five of them including the appellant belong to “Family [A]”; another five belong to “Family [B]”, and the rest were “unrepresented beneficiaries”.

The 2018 SA provided for Singapore law and exclusive jurisdiction. In particular, cl 19 of the 2018 SA provides:¹

The Parties hereby submit to the exclusive jurisdiction of the Courts of Singapore. The Parties agree that in respect of all disputes, controversies, claims or disagreements arising out of or in connection with this Agreement, including but not limited to its existence, validity, breach and enforcement, shall be first submitted to mediation at the Singapore International Mediation Centre and the mediator shall be Mr [xxx]. The Parties further agree that only if the Parties have in good faith carried out the mediation and they have not been able to resolve their dispute, controversy, claim and/or disagreement, then, and in that event only, the Parties shall commence legal proceedings in Singapore.

Shortly after the 2018 SA was entered into, the respondents applied to court on 23 April 2019 vide Originating Summons Probate No 3 of 2019 (“OSP 3/2019”) seeking several orders to give effect to their appointment and indemnification in relation to their administration of the Estate in accordance with the terms of the 2018 SA, and in respect of various terms in the 2018 SA to be performed and discharged by the respondents. On 13 August 2019, various orders of court which we identify as HCF/ORC 253/2019 (“ORC 253”) were granted to the respondents. As the Judge rightly observed, as the respondents were non-parties to the 2018 SA, ORC 253 was the means by which they were able, and became compelled, to implement the 2018 SA. To illustrate, we set out a selection of orders covered by ORC 253 (for the avoidance of doubt, references to the “Administrators” in ORC 253 pertain to the respondents in this appeal, while references to the “respondents” in ORC 253 pertain to the beneficiaries of the Estate): 1. The [Administrators] shall as far as reasonably practicable administer the estate of [the Deceased] (the “Estate”), including any distributions of assets of the Estate to the beneficiaries of the Estate in all jurisdictions, including but not limited to Singapore, Malaysia, Indonesia, Hong Kong and the People’s Republic of China (in a manner consistent with the laws of the respective jurisdictions), in accordance with the Settlement Agreement between the Respondents dated 18 April 2018 (the “Settlement Agreement”). Should the [Administrators] decide to depart from the Settlement Agreement, they shall notify the Respondents within 14 days of their decision to do so. 2. The [Administrators] shall be indemnified out of the Estate from any and all Losses which the [Administrators] may at any time and from time to time sustain, incur or suffer (whether to the Respondents or otherwise) by reason of the [Administrators] administering the Estate in accordance with the Settlement Agreement as set out in Order (1), provided that at all times the [Administrators] have acted in good faith in administering the Estate. “Losses” means all losses, liabilities, costs (including legal costs and experts’ and consultants’ fees), charges, expenses, actions, proceedings, claims and demands. 3. Following the distribution of the US$87,175,000.00 (the “Payment Sum") to the 1st to 5th Respondents in accordance with the Settlement Agreement, the 6th to 14th Respondent shall be wholly entitled to the remainder of the Estate in accordance with each of their relative entitlements under the Last Will of the Deceased dated 24 November 1995. The 15th Respondent shall not be entitled to any distribution of assets of the Estate.

4. The [Administrators] shall be at liberty to pay any part of the Payment Sum, as and when distributions are made, to the 1st Respondent and this shall constitute a good discharge of any obligations that the Administrators may have in relation to the Payment Sum to be paid to the 1st to 5th Respondents.

…

13A. If the [Administrators] do not make any distributions of assets within six months from 1 August 2019, the [Administrators] will provide, within 14 days thereafter, reasons to the beneficiaries as to why no distributions were made, and if no distributions of assets are made in any subsequent six month period thereafter, the [Administrators] will provide, within 14 days from the end of the said period of six months, reasons to the beneficiaries as to why no distributions were made.

[emphasis in original]

On 13 June 2019, the respondents published notices in two newspapers in Indonesia (the “Notices”). One of the Notices² was in English and the other in Indonesian. It was not disputed that the Notices contained the same content. The Notice in English reads:

NOTICE

[The Deceased] passed away on 31 October 2012. Pursuant to orders made by the High Court of the Republic of Singapore on 1 February 2018 and 19 March 2018, [VJZ] and [VKA], all care of [Firm and Firm’s address] (the “Administrators”) were appointed as the joint administrators of the Estate of [the Deceased] (“the Estate”).

TAKE NOTICE that assets of the Estate should not be dealt with in any manner whatsoever without proper sanction from the Administrators. If any person is aware of any dealings or have information in respect of assets belonging to the Estate, please inform the Administrators of the same at [email address] immediately.

All creditors or next-of-kin interested in or having claims against the Estate should give particulars in writing their claims or interest to the above contact details.

Dated this 13th day of June 2019

[VJZ] and [VKA]

Joint Administrators

[emphasis in original]

The appellant commenced proceedings in Indonesia (“Indonesian Proceedings”) in respect of these Notices. Based on documents annexed to the first respondent’s affidavit filed in Summons 96 of 2020 (“SUM 96/2020”),³ the Indonesian Proceedings appear to have been commenced on 15 August 2019. The appellant’s counsel having conduct of the proceedings in Indonesia, Ms Sarmauli Simangunsong (“Ms Sarmauli”), affirmed in her affidavit filed in SUM...