Westacre Investments Inc v Yugoimport-SDPR (also known as Jugoimport-SDPR)

• Jurisdiction: Singapore
• Judge: Kan Ting Chiu J
• Judgment Date: 28 November 2006
• Neutral Citation: [2006] SGHC 210
• Date: 28 November 2006
• Subject Matter: Civil Procedure,Foreign judgments,Registration,Section 3(3)(b) Reciprocal Enforcement of Commonwealth Judgments Act (Cap 264, 1985 Rev Ed),"In so far only as relates to execution",Whether foreign judgment that can no longer be sued on in country of origin may be registered in Singapore,Whether delay in enforcing judgment justified,Whether court having power to restrict method by which judgment to be registered may be enforced,"Just and convenient",Section 3(1) Reciprocal Enforcement of Commonwealth Judgments Act (Cap 264, 1985 Rev-Ed),Words and Phrases,Whether court having discretion to direct that foreign judgment to be registered may only be enforced by certain method,Inherent,Whether just and convenient for court to enforce foreign judgment in Singapore,Order 92 r 4, O 92 r 5 Rules of Court (Cap 322, R 5, 2006 Rev Ed),Enforcement,Jurisdiction,Sections 3(3)(a), 3(3)(b) Reciprocal Enforcement of Commonwealth Judgments Act (Cap 264, 1985 Rev Ed)
• Docket Number: Originating Summons No 1311 of 2004 (Registrar's Appeals Nos 8 and 61 of
• Published date: 30 November 2006
• Defendant Counsel: Lok Vi Ming SC, Kirindeep Singh and Govindarajalu Asokan (Rodyk & Davidson), Gabriel Peter and Calista Peter (Gabriel Law Corporation)
• Court: High Court (Singapore)
• Plaintiff Counsel: Khoo Boo Jin and Tan Hsuan Boon (Wee Swee Teow & Co)

28 November 2006 Judgment reserved.

Kan Ting Chiu J:

1 This is an interesting case arising from the registration in Singapore of an English judgment obtained by Westacre Investments Inc, a company incorporated in Panama (“the judgment creditor”) against Yugoimport SDPR (“the judgment debtor”), a state-owned company in the former Yugoslavia, now in Serbia.

2 There is an eventful background to the judgment creditor’s claim against the judgment debtor, the highlights of which are:

(1) In 28 February 1994, in an arbitration proceedings before the International Chamber of Commerce (“ICC”) held in Geneva, Switzerland, the ICC issued an award whereby the judgment debtor was held, jointly and severally with another party, a bank, to be liable to pay the judgment creditor US$50,010,093.36, £1,029,629.37 and interest.

(2) The judgment debtor and the bank appealed against the award, but the appeal was dismissed by the Swiss Federal Tribunal on 30 December 1994.

(3) In 1995 the judgment creditor commenced proceedings under the UK Arbitration Act 1975 and the UK Arbitration Act 1950 to enforce the award.

(4) In 1996 the judgment creditor filed an action in England at common law on the award itself, as distinct from seeking leave to enforce the award.

(5) The two actions were consolidated for hearing before the High Court of England. On 13 March 1998, the High Court ordered that judgment be entered against the judgment debtor and the bank jointly and severally for £41,584,488.86 but execution on the judgment was stayed pending appeal.

(6) The judgment debtor and the bank appealed against the order of the High Court, but the appeal was dismissed by the Court of Appeal on 12 May 1999, and the House of Lords refused leave to appeal on 20 October 1999.

(7) On 15 November 1999, the Court of Appeal lifted the stay of execution of the judgment.

3 After the stay was lifted, the judgment creditor took steps to enforce the English judgment in England. In enforcement proceedings between 1999 and 2004, it recovered a part of the judgment debt.

4 However the judgment creditor did nothing towards the enforcement of the English judgment in Singapore till 5 October 2004 when it applied for and obtained an order to have the judgment registered under s 3 of the Reciprocal Enforcement of Commonwealth Judgments Act (Cap 264, 1985 Rev Ed) (“RECJA”).

5 In December 2004, the judgment debtor received notice of the registration, and it applied to set aside the registration on 2 June 2005. The judgment debtor’s application was heard before an Assistant Registrar. The judgment debtor’s application proceeded on two main fronts, firstly, that the application to register the judgment was time-barred under s 6(1)(a) of the Limitation Act (Cap 163, 1996 Rev Ed) and secondly, the judgment creditor’s application to register the judgment was lacking in merits.

6 The judgment debtor’s arguments did not find favour with the Assistant Registrar who heard the application. The hearing proceeded in two parts. The limitation issue was argued as a preliminary point, and when that failed, the merits of the application were argued and the judgment debtor also failed on this issue. The judgment debtor filed separate appeals against each of the Assistant Registrar’s rulings. When the appeals came before me, the issues were vigorously argued again.

7 At this stage, it is useful to set out the main statutory provisions which have to be considered. Section 3(1), (2) and (3) of the RECJA provide that:

3. - (1) Where a judgment has been obtained in a superior court of the United Kingdom of Great Britain and Northern Ireland the judgment creditor may apply to the High Court at any time within 12 months after the date of the judgment, or such longer period as may be allowed by the Court, to have the judgment registered in the Court, and on any such application the High Court may, if in all the circumstances of the case it thinks it is just and convenient that the judgment should be enforced in Singapore, and subject to this section, order the judgment to be registered accordingly.

Restrictions on registration.

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

(a) the original court acted without jurisdiction;

(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;

(c) the judgment debtor, being the defendant in the proceedings, was not duly served with the process of the original court and did not appear, notwithstanding that he was ordinarily resident or was carrying on business within the jurisdiction of that court or agreed to submit to the jurisdiction of that court;

(d) the judgment was obtained by fraud;

(e) the judgment debtor satisfies the registering court either that an appeal is pending, or that he is entitled and intends to appeal, against the judgment; or

(f) the judgment was in respect of a cause of action which for reasons of public policy or for some other similar reason could not have been entertained by the registering court.

(3) Where a judgment is registered under this section –

(a) the judgment shall, as from the date of registration, be of the same force and effect, and proceedings may be taken thereon, as if it had been a judgment originally obtained or entered upon the date of registration in the registering court;

(b) the registering court shall have the same control and jurisdiction over the judgment as it has over similar judgments given by itself, but in so far only as relates to execution under this section;

(c) the reasonable costs of and incidental to the registration of the judgment (including the costs of obtaining a certified copy thereof from the original court and of the application for registration) shall be recoverable in like manner as if they were sums payable under the judgment.

8 On the question of limitation, s 6(1)(a) of the Limitation Act stipulates that:

6.- (1) Subject to this Act, the following actions shall not be brought after the expiration of 6 years from the date on which the cause of action accrued:

(a) actions founded on a contract or on tort;

…

and s 24(1) of the Limitation Act 1980 of England states that:

(1) An action shall not be brought upon any judgment after the expiration of six years from the date on which the judgment became enforceable.

9 Counsel for the judgment debtor made the following arguments in the appeal:

(a) the application for registration was out of time,

(b) the English judgment is, by the judgment debtor’s term, dead, because “(u)nder section 24(1) [of the Limitation Act 1980] an action upon a judgment (or, in this case, an application to register a foreign judgment) must be brought within six (6) years”,

(c) the English judgment constituted an implied debt under Singapore law, and an action on the implied debt is time-barred under s 6(1)(a) of the Limitation Act,

(d) if the English judgment was not time-barred for enforcement, the judgment creditor needed leave from the English courts to enforce the judgment before seeking registration in Singapore, and

(e) even if the English judgment is not dead or time-barred, and no leave is required from the English courts, it was not just and convenient that it be registered in Singapore.[note: 1]

The first four arguments raised limitation issues, and the fifth argument addressed the merits of the judgment creditor’s application to register the judgment.

10 The judgment debtor based its “dead judgment” argument on the proposition that the right to sue on a judgment is distinct from the right to enforce execution on a judgment. This proposition derives its authority from the decision of the English Court of Appeal in W.T. Lamb & Sons v Rider [1948] 2 All ER 402 (“Lamb”). Scott LJ considered the effect of s 2(4) of the Limitation Act 1939 (the precursor of s 24(1) of the Limitation Act 1980) and concluded at 407 that:

… the right to sue on a judgment has always been regarded as a matter quite distinct from the right to issue execution under it and that the two conceptions have been the subject of different treatment. Execution is essentially a matter of procedure – machinery which the court can, subject to the rules from time to time in force, operate for the purpose of enforcing its judgments or orders.

and in the House of Lords’ decision in Lowsley v Forbes [1999] 1 AC 329 (“Lowsley”), Lord Lloyd of Berwick stated expressly in the context of the Limitation Act 1980 that:

“Action” in section 24(1) means a fresh action and does not include proceedings by way of execution.

11 Further explanation on the effect of s 24(1) is found in Andrew McGee’s Limitation Periods (London: Sweet & Maxwell, 4^th Ed, 2002) where the author explained in para 17.003:

Section 24 of the 1980 Act provides that no action shall be brought upon a judgment more than six years after the date on which it became enforceable. The practice of bringing an action on a judgment was common in the days when the common law presumption was that a judgment was satisfied after a year and a day if no execution had been issued. In such cases the only way to “enforce” the judgment was by an action of debt upon it. Even today bringing a second action in this way is a matter of right, although the court may decline to give judgment in the second action if it regards it as an abuse of process. In determining whether it is an abuse of process, the availability of execution is a relevant factor.

and in para 17.005:

It is essential to understand that this section applies only to the process of bringing an action upon a judgment. It does not extend to seeking execution of a judgment: the latter is a purely procedural step, and is not an “action” within the meaning of the 1980 Act. The provision is of only very limited importance at the present day, since the bringing of an...