Yuninshing v Edward Mondong

• Jurisdiction: Singapore
• Judge: Lai Siu Chiu J
• Judgment Date: 23 July 2001
• Neutral Citation: [2001] SGHC 194
• Docket Number: Suit No 595 of 2000 (Registrar's
• Date: 23 July 2001
• Published date: 19 September 2003
• Year: 2001
• Plaintiff Counsel: R Palakrishnan and Malathi Das (Palakrishnan & Partners)
• Citation: [2001] SGHC 194
• Defendant Counsel: Soh Gim Chuan (Soh Wong & Yap)
• Court: High Court (Singapore)
• Subject Matter: Natural forum,Defendant fugitive in Indonesia,Defendant revoking Indonesian action,Whether Indonesia more appropriate forum,Series of defences of overpayment,Action for defendant's failure to remit sum in US dollars into plaintiff's bank account in Singapore,Whether alleged illegal smuggling of Rupiahs out of Indonesia relevant,Defendant commencing action in Indonesia and seeking stay of Singapore action,Entry into foreign exchange agreement in Indonesia,Conflict of Laws,Parties Indonesian nationals,Plaintiff obtaining Mareva injunction against defendant's substantial assets in Singapore,Plaintiff remitting Rupiahs to defendant's bank account in Indonesia

: This was an appeal (in RA 56/2001) against the assistant registrar`s decision on 28 March 2001 in Suit 595/2000 refusing to grant a stay of proceedings on the ground of forum non conveniens. I dismissed the appeal on 17 April 2001 and the defendant has now appealed against my decision (in CA 600060/2001).

The facts

This was a claim by the plaintiff (`Yuninshing`) against the defendant (`Mondong`) for damages of US$530,000 arising from an alleged breach of a foreign exchange contract.

Both parties are Indonesian nationals; they are also related in that Mondong is the uncle of Yuninshing. The claim arose out of an oral agreement reached in a conversation between the parties sometime in June 1999, at the home of Yuninshing`s parents in Surabaya, Indonesia. At that time, Yuninshing desired to buy US dollars to deposit into her Singapore account, while Mondong wished to convert US dollars in Singapore to Indonesian Rupiahs in his Jakarta account. It struck them that by entering into a direct exchange agreement, they would save on the exchange rate in the open forex market.

The arrangement worked well initially and transactions took place between June 1999 to mid-November 1999 without any problems. During this period, Yuninshing remitted sums in Indonesian Rupiahs (`IR`) from her accounts with Bank Central Asia and Bank Danamon in Surabaya, to Mondong`s accounts in the Jakarta branches of the respective banks. In return, Mondong would usually fax her a telegraphic transfer application form showing the corresponding remittance in US dollars into her Singapore account with Republic Central Bank (`RCB`) or NM Rothschild & Sons (`Rothschild`). Such telegraphic transfers were done via Thomas Cook Travel Services Pte Ltd (`Thomas Cook`), HBZ International Exchange (`HBZ`), and Christiana Bank, Singapore (`Christiana Bank`), depending on which had the most attractive prevailing rate, and also via Dutair & Sea Cargo Services Pte Ltd (`Dutair Singapore`), a company controlled by Mondong. On certain occasions, when Mondong had bank notes to exchange, cash payments in US dollars would also be made to Yuninshing`s representive, Mr Ko Ahok, in Jakarta.

The subject of Yuninshing`s claim was the following two sums of moneys which were deposited into Mondong`s account:

(1) IR2,047,400,000 (equivalent to US$290,000), deposited on 25 November 1999; and

(2) IR1,722,000,000 (equivalent of US$240,000), deposited on 29 November 1999.

After these deposits were made, Mondong faxed to Yuninshing two telegraphic transfer application forms from Thomas Cook indicating the remittance of the sums into her Rothschild`s account. However, the plaintiff was later informed by Rothschild and Thomas Cook that no such remittances had been made. Yuninshing therefore claimed that Mondong had failed to remit to her account the sum of US$530,000, equivalent to IR3,769,400,000, which was the combined total of the two deposits.

Yuninshing filed this claim against Mondong on 7 August 2000. The first round of proceedings was, however, largely unfruitful. Mondong entered an appearance on 25 September 2000 and took out an application for, inter alia, a declaration that the Singapore courts had no jurisdiction to hear the matter. The application was allowed by the assistant registrar on 9 January 2001, but the order was subsequently set aside by consent on 30 January 2001 (in RA 9/2001).

In the second round of proceedings that followed, Mondong sought, inter alia, a stay of proceedings on the ground that Singapore was not the appropriate forum to try the matter. The application was heard by the assistant registrar on 28 March 2001. She refused to grant a stay on the ground of forum non conveniens and ordered costs against Mondong. It was against her decision (which I affirmed) that Mondong lodged the present appeal.

Preliminary issues

There were three preliminary issues which I took into consideration in determining this appeal:

(1) Firstly, Mondong had in the interim commenced legal proceedings in the District Court of Surabaya on 19 March 2001 (Register Case Number: 141/Pdt.G/2001/PN). In those proceedings, he claimed that he had overpaid Yuninshing and that it was the latter who in fact owed him IR1,250,450,000 from the series of transactions. The Surabaya action was, however, quite inexplicably revoked upon Mondong`s request on 11 April 2001.

(2) Secondly, it was noteworthy that the Surabaya proceedings constituted the conclusion of a series of vacillating defences advanced by Mondong. These defences were relevant as they indicated the type of evidence required in the main action itself.

Initially, Mondong claimed that he had made part payment of US$450,000 out of the US$530,000 in the following manner:

Date	Payment	Amount
25 November 1999	Cash payment to Mr Ko Ahok	US$100,000
30 November 1999	Cash payment to Mr Ko Ahok	US$30,000
30 November 1999	Deposit into bank	US$200,000
2 December 1999	Deposit into bank	US$100,000
2 December 1999	Deposit into bank	US$20,000

He admitted that he had failed to remit the remaining US$80,000 as his courier was apprehended by the Indonesian customs authorities and fined as a result.

Yuninshing, however, contended that these cash payments and deposits were in respect of previous remittances and not the present claim in question. Mondong subsequently revised his position and claimed that due to a miscalculation, he had actually made full payment of the US$530,000 and that he had in fact overpaid Yuninshing a nett amount of IR1,673,950,000 (in his third affidavit affirmed on 29 December 2000 at para 33). He later revised this figure to IR1,810,450,000 (in his fourth affidavit affirmed on 12 February 2001 at para 33). Finally, he adjusted the figure once more to IR1,250,450,000 (in his fifth affidavit affirmed on 22 March 2001 at para 77), which was the amount eventually claimed against Yuninshing in the Surabaya proceedings. In fact the IR figures which appeared in Mondong`s third and fourth affidavits are incorrect as they are in millions instead of billions.

It was clear from Mondong`s affidavits that the crux of the dispute did not lie with the remittances he received from Yuninshing in Jakarta. The contested issue is whether he had satisfied his contractual obligation to remit US dollars back to Yuninshing in Singapore. I also...