Zoom Communications Ltd v Broadcast Solutions Pte Ltd

CourtCourt of Appeal (Singapore)
Judgment Date20 August 2014
Docket NumberCivil Appeal No 119 of 2013
Date20 August 2014
Zoom Communications Ltd
Plaintiff
and
Broadcast Solutions Pte Ltd
Defendant

[2014] SGCA 44

Sundaresh Menon CJ

,

Andrew Phang Boon Leong JA

and

Tay Yong Kwang J

Civil Appeal No 119 of 2013

Court of Appeal

Civil Procedure—Stay of proceedings—Foreign defendant served out of jurisdiction—Foreign defendant applying to set aside order granting plaintiff leave to effect service of originating process overseas—Foreign defendant applying in same summons for stay of proceedings under O 12 r 7 (2) Rules of Court—Whether conduct of defendant amounting to submission to jurisdiction of Singapore courts—Order 12 r 7 (2) Rules of Court (Cap 322, R 5, 2006 Rev Ed)

Conflict of Laws—Jurisdiction—Natural forum—Whether plaintiff discharging its burden of showing that Singapore was proper forum for trial of action

The plaintiff, Broadcast Solutions Pte Ltd (‘the Respondent’), sued the defendant, Zoom Communications Ltd (‘the Appellant’), in Singapore for breach of contract. As the Appellant was based in India, the Respondent sought and obtained leave to serve the writ of summons overseas (‘the Leave Order’) under O 11 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) (‘the Rules of Court’). The Appellant entered an appearance in Singapore and duly filed a summons with two prayers: the first seeking the setting aside of the Leave Order; and the second for a stay of proceedings under O 12 r 7 (2) of the Rules of Court on the grounds that Singapore was not the proper forum for the hearing of the dispute.

The assistant registrar hearing the summons held that the second prayer for a stay of proceedings amounted to a submission to the jurisdiction of the Singapore courts, thereby precluding the setting aside of the Leave Order. The High Court affirmed the assistant registrar's ruling, holding that in seeking a stay of proceedings on improper forum grounds, and further in pressing its stay arguments in court, the Appellant had submitted to the jurisdiction of the Singapore courts and was therefore barred from contesting the existence of jurisdiction. Further, a stay of proceedings was not granted because the Appellant had failed to discharge its burden of showing that there was a more appropriate jurisdiction than Singapore for the hearing of the dispute. The Appellant appealed on the grounds that it had not submitted to the jurisdiction of the Singapore courts, and that in any event Singapore was not the proper forum.

Held, dismissing the appeal:

(1) The Appellant did not submit to the jurisdiction of the Singapore courts. While a foreign defendant who applied for a stay of proceedings on improper forum grounds without also contesting the existence of the Singapore courts' jurisdiction should ordinarily be taken to have submitted to jurisdiction, here, the Appellant applied to set aside the Leave Order, and as a fall-back, sought a stay of proceedings on improper forum grounds. In such circumstances, it should not be treated as having submitted to the jurisdiction of the Singapore courts. The key consideration was that the Appellant had not done anything, which, considered in the context and circumstances of the case, could be said to have amounted to a step that was only useful or only necessary if any objection to the existence of the Singapore courts' jurisdiction had been waived: at [32] , [33] and [45] .

(2) As a matter of fact, the Appellant's true position was that it had pursued the prayer for a stay of proceedings on improper forum grounds as a fall-back instead of as its primary position. Whilst it had muddied its position by presenting arguments for a stay first in the hearings below, it had done so as a matter of convenience and always maintained its objection to the existence of the Singapore courts' jurisdiction. It never meant to go so far as to waive that objection: at [59] and [65] .

(3) The Leave Order should not be set aside on the basis that the Respondent had failed to provide full and frank disclosure of material facts when it applied ex parte for the Leave Order, because those facts were not so material in all the circumstances as to warrant the setting aside of the Leave Order: at [68] and [69] .

(4) In the hearing of the Appellant's challenge to the existence of the Singapore courts' jurisdiction, the Respondent retained the burden of showing that Singapore was the proper forum for the hearing of the dispute, because this was the same burden that it had borne at the stage of making its ex parte application for leave to serve the originating process on the Appellant out of jurisdiction. But in the hearing of the Appellant's prayer for a stay of proceedings on improper forum grounds, the burden of showing that some forum other than Singapore was the more appropriate for the hearing of the dispute shifted to the Appellant: at [72] , [73] and [75] .

(5) On the application of established principles of law, the connecting factors taken as a whole pointed to Singapore rather than to India as the proper forum for the hearing of the dispute. While there were proceedings in India between the same parties, those proceedings were not at all relevant to the action in Singapore. The Appellant made no attempt to present a draft defence to show how those proceedings in India would impact the Singapore proceedings if a stay of the latter were not granted. The other connecting factors were evenly balanced except for one: that whatever the governing law of the contracts under which the Respondent had sued the Appellant in Singapore, the alleged breach of those contracts occurred in Singapore and this was the factor that tilted the balance towards Singapore as the proper forum for the trial of the dispute: at [85] to [91] .

[Observation: An application to stay proceedings in a local court pending the outcome of proceedings in a foreign jurisdiction did not amount to submission to the local court where the outcome of the foreign proceedings had to be known before it could be determined whether the local court had jurisdiction over the foreign defendant. But this was only correct if and to the extent that the local court had the power to stay proceedings without first assuming jurisdiction over the foreign defendant. It was not clear whether the Singapore courts had such a power, either under para 9 of the First Schedule of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) or the High Court's inherent powers, and accordingly no concluded view was expressed on this point: at [39] and [54] .

As the timelines in the Rules of Court were the same, a foreign defendant who wished both to contest the existence of the Singapore courts' jurisdiction under O 12 r 7 (1), and also to seek a stay of proceedings on improper forum grounds under O 12 r 7 (2) as a fall-back, might well see an advantage in seeking both reliefs at the same time or even in the same application, but as alternative prayers. That was why such applications were frequently mounted together, but it was wholly unnecessary and likely counter-productive for a foreign defendant to do so based on the same material. If the local court declined to set aside the order granting leave to effect service on the defendant overseas, where the plaintiff had the burden to show that the local court was the proper forum for the hearing of the dispute, it was inconceivable that the position would change on what was essentially the identical issue in the foreign defendant's stay application, when the burden shifted to the defendant to show that the local court was not the proper forum. As a matter of practice the local court would collapse the issue of the proper forum into one question considered in the round: the defendant prevailed if it established that the proper forum was abroad, but the plaintiff succeeded if it showed that the proper forum was the local court: at [30] , [47] and [78] to [80] .]

Advent Capital plc v GNEllinas Imports-Exports Ltd [2005] EWHC 1242 (Comm) (refd)

Chan Chin Cheung v Chan Fatt Cheung [2010] 1 SLR 1192 (refd)

Dulles' Settlement (No 2) , Re [1951] Ch 842 (refd)

Jian He, The [1999] 3 SLR (R) 432; [2000] 1 SLR 8 (refd)

Lubbe v Cape plc [2000] 1 WLR 1545 (refd)

Oriental Insurance Co Ltd v Bhavani Stores Pte Ltd [1997] 3 SLR (R) 363; [1998] 1 SLR 253 (refd)

Rein v Stein [1892] 1 QB 753; 66 LT 469 (refd)

Republic of the Philippines v Maler Foundation [2008] 2 SLR (R) 857; [2008] 2 SLR 857 (refd)

Rubin v Eurofinance SA [2012] UKSC 46 (refd)

Siemens AG v Holdrich Investment Ltd [2010] 3 SLR 1007 (refd)

Société Générale de Paris v Dreyfus Brothers (1885) 29 Ch D 239 (refd)

Spiliada Maritime Corp v Cansulex Ltd (The Spiliada) [1987] AC 460 (folld)

Sydney Express, The [1988] 2 Lloyd's Rep 257 (refd)

Vasiliy Golovnin, The [2008] 4 SLR (R) 994; [2008] 4 SLR 994 (refd)

VTB Capital plc v Nutritek International Corp [2013] UKSC 5 (refd)

Williams & Glyn's Bank plc v Astro Dinamico Compania Naviera SA [1984] 1 WLR 438 (folld)

Rules of Court (Cap 322, R 5, 2006 Rev Ed) O 12 r 7 (1) , O 12 r 7 (2) (consd)

Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) First Schedule para 9

Supreme Court Act 1981 (c 54) (UK) s 49 (3)

Moiz Haider Sithawalla, Meilyna Lyn Poh and Chew Wei Lin (Tan Rajah & Cheah) for the appellant

SSuressh and Teo Teresa Kirsten (Harry Elias Partnership LLP) for the respondent.

Judgment reserved.

Sundaresh Menon CJ

(delivering the judgment of the court):

Introduction

1 The issues presented in this appeal arise with some frequency when a foreign defendant based out of the jurisdiction is sued here. If such a defendant does not wish the Singapore courts to hear the action brought against him, he may challenge the existence of the Singapore courts' jurisdiction. Jurisdiction is typically founded upon the court having made an order granting the plaintiff leave to serve the originating process on the foreign defendant abroad (an ‘overseas service leave...

To continue reading

Request your trial
35 cases
  • Allenger, Shiona (trustee-in-bankruptcy of the estate of Pelletier, Richard Paul Joseph) v Pelletier, Olga and another
    • Singapore
    • High Court (Singapore)
    • 22 December 2020
    ...on submission to jurisdiction have been well-canvassed by the Court of Appeal in Zoom Communications Ltd v Broadcast Solutions Pte Ltd [2014] 4 SLR 500 (“Zoom Communications”) and Shanghai Turbo Enterprises Ltd v Liu Ming [2019] 1 SLR 779 (“Shanghai Turbo”). The general principles may be su......
  • William Jacks & Co (Singapore) Pte Ltd v Nelson Honey & Marketing (NZ) Ltd
    • Singapore
    • High Court (Singapore)
    • 16 September 2015
    ...and final Singapore case I shall be analysing is the Court of Appeal decision of Zoom Communications Ltd v Broadcast Solutions Pte Ltd [2014] 4 SLR 500 (“Zoom v Broadcast”). Similar to Re Dulles, the decision does not technically pertain to the enforcement or recognition of foreign judgment......
  • 6DM (S) Pte Ltd v AE Brands Korea Ltd
    • Singapore
    • High Court (Singapore)
    • 16 November 2021
    ...[2018] 2 SLR 1271 (refd) Yap Shirley Kathreyn v Tan Peng Quee [2011] SGHC 5 (refd) Zoom Communications Ltd v Broadcast Solutions Pte Ltd [2014] 4 SLR 500 (folld) Facts The plaintiff, 6DM (S) Pte Ltd (“6DM”) was a Singapore incorporated company in the business of, inter alia, the wholesale o......
  • Li Shengwu v The Attorney-General
    • Singapore
    • Court of Appeal (Singapore)
    • 1 April 2019
    ...one falling within one of the heads of claim in O 11 is not by itself enough. In Zoom Communications Ltd v Broadcast Solutions Pte Ltd [2014] 4 SLR 500 (“Zoom”), this Court held that the requirements for valid service out of jurisdiction are well established, namely (at [26]): the plaintiff......
  • Request a trial to view additional results
11 books & journal articles
  • Conflict of Laws
    • Singapore
    • Singapore Academy of Law Annual Review No. 2021, December 2021
    • 1 December 2021
    ...v Industries Chimiques Du Senegal [2021] 1 SLR 342 at [50], per Steven Chong JA. 8 Zoom Communications Ltd v Broadcast Solutions Pte Ltd [2014] 4 SLR 500 at [28], per Sundaresh Menon CJ. 9 Lakshmi Anil Salgaocar v Jhaveri Darsan Jitendra [2019] 2 SLR 372 at [53], per Steven Chong JA. 10 [20......
  • Civil Procedure
    • Singapore
    • Singapore Academy of Law Annual Review No. 2014, December 2014
    • 1 December 2014
    ...8.57 Important observations were made for the first time by the Court of Appeal in Zoom Communications Ltd v Broadcast Solutions Pte Ltd[2014] 4 SLR 500 on whether a foreign defendant should be inferred to have submitted to the Singapore courts' jurisdiction if the application for a stay of......
  • Case Note
    • Singapore
    • Singapore Academy of Law Journal No. 2016, December 2016
    • 1 December 2016
    ...Rev Ed) s 18M. 9“Judges” 10[2016] SGHCR 6. 11[1987] 1 AC 460. 12(1990) 171 CLR 538. 13 Zoom Communications Ltd v Broadcast Solutions Ltd [2014] 4 SLR 500; JIO MineralsFZC v Mineral Enterprises[2011] 1 SLR 391 at [38]–[44]; Rickshaw InvestmentsLtd v Nicolai Baron von Uexkull[2007] 1 SLR(R) 3......
  • Conflict of Laws
    • Singapore
    • Singapore Academy of Law Annual Review No. 2020, December 2020
    • 1 December 2020
    ...all views expressed herein are the authors' alone. 2 Cap 322, R 5, 2014 Rev Ed. 3 Zoom Communications Ltd v Broadcast Solutions Pte Ltd [2014] 4 SLR 500 at [28], per Sundaresh Menon CJ. 4 [2021] 1 SLR 342. 5 See (2019) 20 SAL Ann Rev 251 at 288–291. 6 Recovery Vehicle 1 Pte Ltd v Industries......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT