| Bank of America National Trust & Savings Association v Djoni Widjaja [1994] 2 SLR 816; [1994] SGCA 89 |
| CA 83/1993 | |
| 30 Jun 1994 | |
| Court of Appeal | |
| Karthigesu JA, L P Thean JA, Yong Pung How CJ | |
| K Shanmugam and Maria Ho (Allen & Gledhill) for the appellants, Lim Chung Wei (Boey, Ng & Wan) for the respondent |
Judgment
[Please note that this case has not been edited in accordance with the current Singapore Law Reports house style.] LP Thean JA (delivering the grounds of judgment of the court): The facts 1 The appellants are a bank carrying on business in Singapore and elsewhere. The respondent was at the material time a customer of the appellants and is a resident in Indonesia. 2 On or about 17 September 1987, the respondent placed with the appellants a sum of US$3,427,562.81 on deposit for a period of one year and it matured on 19 September 1988. The respondent claimed that on maturity the appellants failed to pay him the sum together with accrued interest amounting to US$289,057.80. Accordingly, on 20 October 1988, the respondent instituted proceedings against the appellants in Suit No 2132 of 1988 in the High Court claiming a total sum of US$3,716,620.61 being the principal and accrued interest as at the date of maturity and claiming further interest as from 20 September 1988 until payment. 3 Soon thereafter, the respondent applied for summary judgment against the appellants. The application was resisted. In the affidavits filed on their behalf, the appellants admitted that the respondent had placed the sum of US$3,427,562.81 with them in a time deposit account but alleged that the respondent had, sometime on or about 7 March 1988, instructed the appellants’ branch in Jakarta, Indonesia, to terminate his account and remit a sum of US$2,200,000 to the account of one Ongky Widjaja and place the balance in a time deposit account. The instructions were given by a letter dated 7 March 1988 and handed to one Mrs Farina Kartasasmita, an officer of the appellants’ branch in Jakarta, on or about 7 March 1988. The appellants duly carried out the instructions and placed the balance sum of US$1,362,665.91 on deposit for one year in the name of the respondent maturing on 7 March 1989. No particulars of the account of Ongky Widjaja were provided as the appellants stated that they were precluded from divulging any such information under s 47 of the Banking Act (Cap 19). 4 The respondent, in the affidavits filed on his behalf by his solicitors, denied that he had ever given any such instructions to the appellants. He denied any knowledge of Ongky Widjaja. The respondent also relied on a police report issued by the Indonesian authority stating in effect that the signatures on the letter of instruction dated 7 March 1988 and the deposit withdrawal form authorizing the withdrawal of US$2,200,000 were ‘different from’ and ‘not identical with’ the genuine signature of the respondent. The respondent, therefore, alleged that the signatures on the letter and withdrawal form had been forged. 5 The application was heard on 13 March 1989. The assistant registrar gave unconditional leave to the appellants to defend the action. The respondent appealed to a judge-in-chambers. The appeal was heard and was dismissed on 7 August 1990. The appellants, accordingly, filed their defence on 15 October 1990. On 30 January 1991, the respondent’s solicitors requested for further and better particulars of the defence filed by the appellants. On 2 March 1991, the appellants filed the further and better particulars as requested. A reply was subsequently filed on 29 April 1991 by the respondent. 6 More than a year later, on 20 July 1992, the respondent applied under O 39 r 2 of the Rules of Supreme Court (‘RSC’) for an order to record the evidence of three witnesses in Indonesia, namely, Mr Robin Aritonang (‘Aritonang’), Dr IKP Suyasa (‘Suyasa’) and Mrs Farina Kartasasmita (‘Kartasasmita’). Based on a police report issued by the Indonesian authority, the respondent alleged that Aritonang was, in fact, the same person as the said Ongky Widjaja. The respondent contended that Aritonang would be a material witness in determining whether there had been a scheme to defraud the respondent. However, Aritonang was at the material time serving his sentence of imprisonment in Indonesia and thus was unable to leave the country to testify in Singapore. Suyasa, on the other hand, was the member of the Directorate of Investigation who reported that the signatures on the letter of instruction and withdrawal form were different from or not identical with the genuine signature of the respondent. As regards Kartasasmita, she was a material witness as she allegedly was the one who received the instructions from the respondent. However (so the respondent alleged), she repeatedly ignored the respondent’s solicitors’ letters enquiring whether she would be willing to attend trial in Singapore. The application made by the respondent was opposed by the appellants and was dismissed on 3 September 1992. An appeal against that dismissal was filed by the respondent. A further affidavit was filed on behalf of the respondent on 21 September 1992, exhibiting a letter from his Indonesian lawyers which stated that Aritonang had been released from prison on 18 January 1992 but both he and Suyasa could not attend trial in Singapore ‘for unclear reasons’. On 3 November 1992, the respondent withdrew his appeal. 7 Almost three weeks later, on 20 November 1992, the respondent made an application to have the action set down for trial as the time for setting down had long expired, and the application was granted on 13 January 1993. Barely a month later, however, the respondent filed an application, on 15 February 1992, for leave to discontinue the proceedings in Suit No 2132 of 1988. In the affidavit filed by his solicitor in support, it was stated that the respondent would be taking fresh proceedings in Indonesia in view of the fact that most of the relevant documentary evidence and witnesses were located there and that the matter could be adjudicated ‘in a more comprehensive manner’ there. The affidavit also referred to the unsuccessful application made for depositions of the three witnesses to be taken in Indonesia and further stated that it was his solicitors’ advice that he should have the matter adjudicated in Indonesia rather than in Singapore so that ‘the full weight of evidence can be made available for the court’s decision there’. The application was adjourned and, as of this date, is still pending. In the meanwhile, on or about 15 April 1993, the respondent commenced an action in Indonesia in relation to the same subject matter, and an unspecified hearing was scheduled in an Indonesian court for 28 June 1993. 8 On 16 June 1993, the appellants applied for an injunction restraining the respondent from commencing, or continuing the prosecution of, any proceedings in Indonesia in relation to the same subject matter. In support of the application, the appellants filed an affidavit deposed to by one of their officers, Tan Seng Tin. The deponent stated, among other things, that the respondent had already commenced proceedings against the appellants in Indonesia on or about 15 April 1993, that the subject matter of those proceedings were the same as that before the High Court in Suit No 2132 of 1988 and that some unspecified hearing was scheduled for 28 June 1993. The deponent then set out three grounds for the injunction; first, the Singapore court is the forum conveniens; second, the Indonesian proceedings are vexatious; and, third, that it would be unconscionable to allow the respondent to prosecute the Indonesian proceedings. The application 9 The appellants’ application was heard before Kan Ting Chiu JC on 23 June 1993. At the commencement of the hearing, counsel for the respondent applied for an adjournment as he had not been able to receive any instruction from his client. In view of the pending hearing in Indonesia, the learned judicial commissioner decided to proceed with the hearing. After hearing counsel for the appellants, the learned judicial commissioner adjourned the hearing to enable counsel for the respondent to obtain his client’s instructions. When the hearing resumed on 25 June 1993, counsel was still unable to obtain any instruction from the respondent. Nevertheless, he made his submissions. At the conclusion of the hearing, the learned judicial commissioner dismissed the application. Against his decision, this appeal was brought. [See Djoni Widjaja v Bank of America National Trust & Savings Association 10 The law relating to the grant of injunction to restrain a party to an action from instituting or pursuing foreign proceedings is well settled. The leading authority on the question is the Privy Council’s decision in Société Nationale Industrielle Aerospatiale v Lee Kui Jak, which was an appeal from the Court of Appeal in Brunei. In that case, one Yoong Joon San was killed in a helicopter crash in Brunei. The helicopter was manufactured by a French company, Société Nationale Industrielle Aerospatiale (‘SNIA’), and, at the material time, was owned by an English company, British and Commonwealth Shipping Co (Aviation) Ltd but operated by a Malaysian company, Bristow Helicopter Malaysian Sdn Bhd. The English company and the Malaysian company are related companies. Arising from the accident, proceedings were commenced by the widow of Yoong, Lee Kui Jak, on her own behalf as widow and (with another) as administrator of the estate of the deceased. They instituted (i) proceedings in Brunei against the Malaysian company and SNIA; (ii) proceedings in France against SNIA alone, which were subsequently discontinued; and (iii) proceedings in Texas against SNIA and its associate companies and the Malaysian company and its associate companies. In the proceedings in Brunei, plaintiffs subsequently came to a settlement with the Malaysian company and its associate companies. SNIA, however, was not involved in that settlement. Jurisdiction was asserted against SNIA in Texas on the ground that SNIA was carrying on business there. SNIA and its associates applied to the court in Texas for dismissal of the plaintiffs’ action but the application was unsuccessful. The plaintiffs’ attorney in Texas commenced a pre-trial discovery and the date for the trial was fixed. In the meanwhile, SNIA applied to the High Court in Brunei for an order restraining the plaintiffs from continuing the prosecution of the Texas proceedings. The application was dismissed and SNIA appealed. In the course of the hearing of the appeal, the plaintiffs gave the following undertakings to SNIA, namely, that the trial in Texas would be before a judge without a jury, that the law applicable would be the law of Brunei, and that no claim would be made against SNIA either in consequence of strict liability or for punitive damages. In turn, SNIA gave certain undertakings to the plaintiffs with reference to the Texas proceedings. Furthermore, at about that time, a contribution notice was served on the Malaysian company by SNIA. The Malaysian company intimated that it would accept service of a third-party notice issued by SNIA in Brunei but that it would not submit to the jurisdiction in Texas as it was not carrying on business there. The Court of Appeal in Brunei dismissed the appeal by SNIA. But, on further appeal, the Privy Council allowed it. It was held, inter alia, that the court in Brunei and not Texas was the natural forum for the dispute and that, having regard to all the relevant circumstances, it would be oppressive for the plaintiffs to continue the action in Texas because of the injustice to SNIA in not being able to claim in those proceedings an indemnity or contribution against the Malaysian company and that, in view of the undertakings given by the plaintiffs, no injustice would be caused to the plaintiffs by being restrained from continuing the proceedings in Texas. 11 In coming to this conclusion, the Privy Council restated and clarified the principles of law governing the grant of an injunction restraining a party from pursuing foreign proceedings. Lord Goff of Chieveley, who delivered the judgment of the Board, first identified four basic principles which, according to him, are beyond dispute. He said, at p 892: The law relating to injunctions restraining a party from commencing or pursuing legal proceedings in a foreign jurisdiction has a long history, stretching back at least as far as the early 19th century. From an early stage, certain basic principles emerged which are now beyond dispute. First, the jurisdiction is to be exercised when the ‘ends of justice’ require it: see Bushby v Munday (1821) 5 Madd 297 at p 307, per Sir John Leach VC; Carron Iron Co v Maclaren (1855) 5 HL Cas 416 at p 453, per Lord St. Leonards … This fundamental principle has been reasserted in recent years, notably by Lord Scarman in Castanho v Brown & Root (UK) Ltd 12 His Lordship next went on to consider a series of cases and opined that the principles applicable to a stay of proceedings on the ground of forum non conveniens and a grant of injunction to restrain foreign proceedings are not the same. His Lordship said, at p 895: … where the parties are in dispute on the point whether the action should proceed in an English or a foreign court, the English court would be prepared, not merely to decline to adjudicate by granting a stay of proceedings on the ground that the English court was forum non conveniens, but, if it concluded that England was the natural forum, to restrain a party from proceeding in the foreign court on the ground alone. Their Lordships cannot think that this is right. Not only does it conflict with the observation of Brett MR in Hyman v Helm 24 Ch D 531 at p 537, referred to above: but it leads to the conclusion that, in a case where there is simply a difference of view between the English court and the foreign court as to which is the natural forum, the English court can arrogate to itself, by the grant of an injunction, the power to resolve that dispute. … [W]ith all respect, such a conclusion appears to their Lordships to be inconsistent with comity, and indeed to disregard the fundamental requirement that an injunction will only be granted where the ends of justice so require. Furthermore, if it were right, it would lead to the remarkable conclusion that, in a case such as MacShannon v Rockware Glass Ltd 13 His Lordship further said that, after examining the American authorities, his Lordship could find ‘no trace of any suggestion that the principles applicable in cases of stay of proceedings and in cases of injunctions are the same’. 14 In that case, the court in Brunei was found to be the natural forum for the adjudication of the dispute. But that alone was held not to be sufficient. Lord Goff said, at p 896: In the opinion of their Lordships, in a case such as the present, where a remedy for a particular wrong is available both in the English (or, as here, the Brunei) court and in a foreign court, the English or Brunei court will, generally speaking, only restrain the plaintiff from pursuing proceedings in the foreign court if such pursuit would be vexatious or oppressive. This presupposes that, as a general rule, the English or Brunei must conclude that it provides the natural forum for the trial of the action; and further, since the court is concerned with the ends of justice, that account must be taken not only of injustice to the defendant if the plaintiff is allowed to pursue the foreign proceedings, but also of injustice to the plaintiff if he is not allowed to do so. So the court will not grant an injunction if, by doing so, it will deprive the plaintiff of advantages in the foreign forum of which it would be unjust to deprive him. The appeal 15 Applying the principles here, if in this case the court in Singapore is the natural forum for the determination of the dispute, an injunction should only be granted if the pursuit of the proceedings by the respondent in Indonesia would be vexatious or oppressive and, in this connection, account must be taken of any injustice to the appellants if the respondent was allowed to pursue those proceedings and also of any injustice to the respondent if he was not allowed to do so. With these principles in mind, we now turn to the appeal before us. In dealing with the application before him, the learned judicial commissioner adverted to the four basic principles enunciated by Lord Goff and considered two questions of fact, namely: (i) whether the respondent was amenable to the jurisdiction of the court here, and (ii) whether the Indonesian proceedings were vexatious or oppressive. On the first question, it was submitted before him on behalf of the respondent that the respondent should not be restrained from prosecuting the proceedings in Indonesia because he was not amenable to the jurisdiction of the court here as he was not physically present in Singapore. The learned judicial commissioner, having reviewed the authorities, rejected this submission and held that the court’s jurisdiction to make a restraining order was not limited to situations where the parties to be restrained were physically within the jurisdiction. He said: In the light of these authorities, it is clear that a court’s jurisdiction to make a restraining order is not limited to situations where the parties to be restrained are physically within its jurisdiction. The plaintiff’s bank account with the defendants was in Singapore and he filed and pursued his claim against the defendants here since 1988. He submitted himself and his claim to the jurisdiction of our courts in seeking his remedy. He cannot say that there is no sufficient connection or that he is not within the jurisdiction when it comes to the question whether our courts can entertain the application to restrain him from pursuing the Indonesian action. 16 We are in entire agreement with him. A person such as the respondent, who has submitted himself to the jurisdiction of the court by seeking relief, can hardly be heard to say that he is not amenable to the court’s jurisdiction. 17 On the second question, the learned judicial commissioner said that the test to be followed is this: whether the foreign proceedings are so vexatious or oppressive that justice requires that the respondent be restrained from proceeding with them, and he held that, in so determining that issue, the court should consider the injustice each party might suffer. Having considered at length the facts before him, he came to the conclusion that the appellants had not shown that those proceedings were so vexatious or oppressive. It was this conclusion which was challenged before us. 18 We first turn to his analysis of the facts. He held that the court in Singapore is the natural forum for the dispute. That undoubtedly is correct. The respondent’s account was opened and maintained in Singapore. The disputed instructions, though allegedly given in Indonesia, were carried out in Singapore. The account in the name of Ongky Widjaja was opened in Singapore. Most of the relevant documents relating to the respondent’s account, if not all of them, are in Singapore, and if they are not they could be easily made available in Singapore. The applicable law for determining the dispute is the law of Singapore. The respondent himself has accepted the court in Singapore as the natural forum: he commenced proceedings here and continued the prosecution of these proceedings for over four years. The only factor suggesting that the court in Indonesia might be an appropriate forum was the presence of the witnesses such as Aritonang and Suyasa in Indonesia; this factor by itself does not make the court in Indonesia a more appropriate forum for determination of the dispute. 19 The learned judicial commissioner did not accept the appellants’ complaint that the respondent was using the Singapore court to obtain evidence for the proceedings in Indonesia. He found it improbable that the suit initiated in 1988 was for the purpose of gathering evidence for proceedings filed five years later in Indonesia. In any event, no discovery had been made at any time. We entirely agreed with the learned judicial commissioner’s reasoning on this point. 20 The learned judicial commissioner then held that the age of the Singapore proceedings is a neutral factor. With respect, we were unable to agree. The various stages of the proceedings have been described earlier in detail and it is unnecessary to repeat them. Suffice it to say that as at the date when the Indonesian proceedings were commenced, four and a half years had elapsed since the respondent started the action and the action had progressed very far. In fact the parties were getting ready for trial. The respondent’s solicitors, pursuant to Practice Direction No 3 of 1987, had forwarded to the appellants the chronology of events, list of issues of fact and law and the propositions of law. The appellants said that they had already begun the preparation of their case for trial in Singapore: documents which were not in Singapore had been forwarded to Singapore from Jakarta and witnesses were being interviewed. We were inclined to accept what they said. There would certainly be disadvantages, procedural or otherwise, to the appellants if this action is now discontinued and the respondent is allowed to continue the proceedings in Indonesia. 21 The learned judicial commissioner held that the respondent had not acted unreasonably when he started the action in Singapore in 1988 and ‘the difficulties in pursuing the matter in Singapore became apparent’ when he failed to obtain leave to record the evidence of the three Indonesian witnesses. With respect, we were unable to agree with this conclusion. First, there was no evidence that the respondent had any difficulty really in pursuing the matter in Singapore notwithstanding his unsuccessful attempt in obtaining leave to take evidence of the three witnesses in Indonesia. In his application for leave to discontinue the action he had not said that he had any substantial or serious difficulty in pursuing the matter in Singapore; his main reason was that the relevant documentary evidence and witnesses were located in Indonesia. There was no evidence that the three witnesses were in any way compellable to give evidence in Indonesia for the purpose of the proceedings in Singapore. Secondly, it seems to us any such difficulty relating to calling such witnesses was apparent, at the latest, in early 1989, when the respondent was seeking to obtain summary judgment. He knew at the time that the witnesses he wished to call were in Indonesia. Notwithstanding this, the respondent evinced no intention whatsoever at any time prior to 15 February 1993 that he would discontinue the proceedings here. In fact, as late as 13 January 1993, when the matter was set down for trial on his application, he gave every appearance that he was proceeding with the action here. 22 In considering the grant of the injunction restraining the respondent from continuing with the proceedings in Indonesia, we had also considered whether any injustice might be suffered by the respondent. The respondent had not shown any. Neither he nor his solicitor has filed any affidavit deposing to any juridical or other advantage he has with the proceedings in Indonesia which he would not have in Singapore. This is all the more significant when, before the learned judicial commissioner, an adjournment was given specifically for him to take the necessary step and to give his solicitor necessary instruction to oppose the application. For some inexplicable reasons, he had not given any instruction to his solicitor in relation to the application before the learned judicial commissioner and also the appeal before us. 23 If at all any injustice to the respondent, it is in relation to the three witnesses in Indonesia. So far as Kartasasmita is concerned, there would be no injustice or difficulty to the respondent as counsel for the appellants had said that she would be called to testify. She is certainly a material witness of the appellants. As for Suyasa, she was an expert witness and, as we have said, there was no evidence why she would not give evidence for the respondent in Singapore. Also there was nothing which would prevent the respondent from engaging another expert who would be willing to testify in Singapore. The only problem, if at all, was Aritonang. Essentially, the respondent sought to prove that Aritonang had committed forgery and that the instructions were not given by the respondent. Again, there was no evidence that Aritonang was unable to attend trial in Singapore or that his attendance could not be secured. Be that as it may, if what the respondent sought to prove was the fact that he had not given the instructions, then it was not really crucial, though admittedly it would be helpful, to prove that Aritonang was the forger. It was sufficient that forgery was proved: that he did not sign the letter of instruction and the withdrawal form and that someone else did. In our judgment, it would not be an injustice to the respondent if he was unable to avail to himself the benefit of the evidence of Aritonang. 24 Taking into account all the relevant circumstances of the case, including the very belated commencement of the proceedings in Indonesia, the tenuous reason for such proceedings at that stage, and his deliberate omission to oppose the application by the appellants for the injunction, we came irresistibly to the conclusion that the proceedings commenced in Indonesia were vexatious, or were instituted for an improper purpose or with an ulterior motive, eg to bring pressure on and harass the appellants in Indonesia. For all these reasons, the ends of justice required that an injunction be granted restraining the respondent from continuing the prosecution of the proceedings in Indonesia. We accordingly so ordered. The injunction was directed against the respondent personally and not against the court in Indonesia. Appeal allowed. Reported by James Chee-Hau Tan