Westacre Investments Inc v The State-Owned Company Yugoimport SDPR (also known as Jugoimport-SDPR)
| Judge | Chan Sek Keong CJ |
| Judgment Date | 30 December 2008 |
| Neutral Citation | [2008] SGCA 48 |
| Court | Court of Three Judges (Singapore) |
| Subject Matter | Section 3(1) Reciprocal Enforcement of Commonwealth Judgments Act (Cap 264, 1985 Rev Ed),Section 3(3)(b) Reciprocal Enforcement of Commonwealth Judgments Act (Cap 264, 1985 Rev Ed),"In so far only as relates to execution",Sections 3(1), 3(3)(a), 3(3)(b) Reciprocal Enforcement of Commonwealth Judgments Act (Cap 264, 1985 Rev Ed),Whether Commonwealth judgment that was no longer fully enforceable in country of origin might be registered in Singapore,Enforcement,"Just and convenient",Applicable principles,Civil Procedure,Whether delay in enforcing judgment justified,Registration,Foreign judgments,Words and Phrases,Whether just and convenient for court to enforce Commonwealth judgment in Singapore |
| Defendant Counsel | Lok Vi Ming SC, Kirindeep Singh and Govindarajalu Asokan (Rodyk & Davidson LLP) and Gabriel Peter, Kelvin David Tan and Calista Peter (Gabriel Law Corporation) |
| Published date | 02 January 2009 |
| Plaintiff Counsel | Khoo Boo Jin, Tan Hsuan Boon and Peter Chia (Wee Swee Teow & Co) |
| 30 December 2008 |
Judgment reserved. |
Introduction
1 The present appeal has a long and convoluted history. Sometime prior to 1990, Westacre Investments Inc (“the Appellant”) entered into a consultancy agreement with Yugoimport SDPR (“the Respondent”), a state-owned company in what is now the Republic of Serbia (“Serbia”), with respect to the sale of certain equipment in Kuwait. Pursuant to the agreement, Beogradska Banka DD (“Beogradska”) guaranteed the payment of all fees due to the Appellant. The agreement was governed by Swiss law and expressly provided that all disputes were to be settled in accordance with the Rules of Arbitration of the International Chamber of Commerce (“ICC”). The Respondent subsequently repudiated the agreement and, as a result, the Appellant commenced arbitration proceedings against the Respondent and Beogradska. An ICC arbitral tribunal made an award dated 28 February 1994 in the Appellant’s favour (“the Award”). The Award determined that the Respondent and Beogradska were jointly and severally liable to pay the Appellant the sum of US$50,010,093.36 and £1,029,629.37 plus interest accruing at 5% per annum. After the Award was issued, the Respondent and Beogradska appealed to the Swiss Federal Tribunal to review the Award on public law grounds. The appeal failed.
2 In August 1995, the Appellant commenced proceedings in England under s 26 of the Arbitration Act 1950 (c 27) (UK) and s 3 of the Arbitration Act 1975 (c 3) (UK) for leave to enforce the Award. A common law action on the Award itself (as distinct from the proceedings for leave to enforce the Award) was also commenced in April 1996 (both actions were eventually consolidated). In December 1997, the English High Court ruled in favour of the Appellant. Judgment was entered in favour of the Appellant against the Respondent and Beogradska in the sum of £41,584,488.86 on 13 March 1998 (“the English Judgment”). At the same time, execution of the English Judgment was stayed pending an appeal by the Respondent and Beogradska to the English Court of Appeal. On 12 May 1999, that appeal was dismissed. The Respondent and Beogradska then petitioned the House of Lords for leave to appeal. On 20 October 1999, the House of Lords refused to grant leave to appeal, and, on 10 November 1999, an order was made by the English Court of Appeal lifting the stay of execution. Over the next few years, the Appellant vigorously pursued a number of legal remedies in England in a bid to enforce the English Judgment there (see [41] below), but to no avail.
3 Sometime in late July 2004, the Appellant ascertained that there was a bank account in Singapore which contained funds of about US$14.8m allegedly belonging to the Respondent. The ownership of these funds (“the Disputed Funds”) is disputed by the Respondent. The Disputed Funds are held in the name of Deuteron (Asia) Pte Ltd (“Deuteron”), a company in which the Respondent appeared to hold 49% of the paid-up capital as at 2004. On 5 October 2004, the Appellant applied ex parte via Originating Summons No 1311 of 2004 to register the English Judgment in Singapore pursuant to the Reciprocal Enforcement of Commonwealth Judgments Act (Cap 264, 1985 Rev Ed) (“RECJA”). The application was allowed, and an order of court was made on the same day (ie, 5 October 2004) directing that the English Judgment be registered under the RECJA (“the 5 October 2004 court order”). On 2 June 2005, the Respondent applied to the High Court via Summons in Chambers No 2744 of 2005 to set aside the registration. The setting-aside application was heard by an assistant registrar (“the AR”), who dismissed it with costs. The Respondent then appealed against the AR’s decision. The judge who heard the appeal (“the Judge”) disagreed with the AR and determined that “it [was] not just or convenient that the [English] [J]udgment be registered” (see Westacre Investments Inc v Yugoimport-SDPR
Preliminary issues
CA 145/2006
4 On 9 May 2007, we heard the Respondent’s appeal on the limitation issue (ie, CA 145/2006). Two substantial points were raised by the Respondent in this regard. The first was that the English Judgment constituted in substance an implied contract and, since more than six years had passed since the date on which that judgment was delivered, an action founded on it was time-barred by s 6(1) of the Limitation Act (Cap 163, 1996 Rev Ed). In our view, this argument was entirely and fundamentally misconceived as it unhappily conflated a distinct statutory right conferred by Parliament (ie, the right to register a Commonwealth judgment in Singapore) with a common law action for a debt. In this regard, we found the following excerpt from Re Cheah Theam Swee
At English common law, [a judgment] for the payment of money of a foreign court only creates a debt between the parties. It cannot be enforced as a judgment; it only provides a cause of action on which the debtor can be sued in England. It is the judgment obtained in the fresh suit in England, not the judgment originally obtained in the foreign court, which is enforceable as a judgment in England. For this purpose, judgments obtained in those parts of the United Kingdom outside England, ie Northern Ireland and Scotland, were regarded as foreign judgments.
To overcome the inconvenience of this rule, the Judgments Extension Act of 1868 [(c 54) (UK)] was enacted. It provided and provides for the registration in any part of the United Kingdom of judgments for any debt damages and costs obtained in any other part. It provides that upon the registration of the certificate of judgment, the certificate should be of the same force and effect and all proceedings shall and may be had and taken on such certificate as if the judgment certified was a judgment of the registering court. Section 4 then provides that the registering court shall have and exercise the same control and jurisdiction over the registered judgment as it has and exercises over any of its own judgment[s] ‘but in so far only as relates to execution under this Act … .’
In 1911, as a result of deliberations at the Imperial Conference, a scheme for the mutual recognition and enforcement of judgments rendered by the superior courts of countries of the then British dominions was agreed upon. This resulted in the enactment in the United Kingdom of Part II of the Administration of Justice Act 1920 [(c 81) (UK)]. This was followed in the Straits Settlements by the enactment of the Reciprocal Enforcement of Commonwealth Judgments Ordinance in 1921 (No 34 of 1921) in similar terms. That Ordinance is now an Act bearing the same name.
…
It is the evident object and purpose of the [RECJA] to facilitate the enforcement of judgments obtained in the superior courts of the United Kingdom and other Commonwealth countries to which the [RECJA] is extended. Together with the United Kingdom, the [RECJA] applies to no less than 20 countries and territories in the Commonwealth. The object of the [RECJA] was obviously to do away with the necessity of a judgment creditor having to sue a debtor again in Singapore when he seeks to enforce a money judgment [that] he has obtained in another Commonwealth country to which the [RECJA] has been extended.
[emphasis added]
5 The other rather obvious difficulty which we had with the line of argument advanced by the Respondent was the stark fact that, under s 3(1) of the RECJA, an application to register a Commonwealth judgment in Singapore (referred to hereafter as a “RECJA application”) could be made “at any time within 12 months after the date of the judgment, or such longer period as [might] be allowed by the Court” [emphasis added]. If Parliament had intended to impose a definitive time limit for making a RECJA application, it could have easily provided for this, as can be seen from s 4(1) of the Reciprocal Enforcement of Foreign Judgments Act (Cap 265, 2001 Rev Ed) (“REFJA”), which states that an application to register a judgment obtained in a “foreign country” (as defined in s 2(1) of the REFJA) must be made “within 6 years after the date of the judgment” (see s 4(1)(a) of the REFJA). We need say no more.
6 The second substantial point raised by the Respondent related to the applicability of the Limitation Act 1980 (c 58) (UK) (“the UK Limitation Act”). According to the Respondent, registration of the English Judgment under the RECJA involved the exercise of a substantive right and this was time-barred under s 24(1) of the UK Limitation Act, which provided that no action should be brought upon any judgment after the expiration of six years from the date on which the judgment became enforceable. This submission was likewise without substance as, if it were correct, it would have meant that a Singapore court would have to apply English law in determining whether to allow an English judgment to be registered under the RECJA. In our view, this was clearly wrong. We agreed with the Judge that (see [14] of the Judgment):
The defect in this argument is that it is confused over whether English law or Singapore law governs the...
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