Judgment

[Please note that this case has not been edited in accordance with the current Singapore Law Reports house style.]

     Judgment reserved.

LP Thean JA (delivering the judgment of the court):

1           This is an appeal against the decision of Judith Prakash JC [as she then was] in which she allowed an application for an order that the action in relation to certain properties situate in Malaysia be stayed on the ground of forum non conveniens. The material facts that have given rise to the application and this appeal are as follows.

2           The appellant is the father of the respondent. Together with Eng Hwee Cheng (another of the appellant’s child) and Tan Sock Hian (the appellant’s wife) they have interests in various companies, including Sin Heng Chan (1960) Pte Ltd (SHCPL), a company incorporated in Singapore, Sin Heng Chan (Malaya) Sdn Bhd (SHC Malaya), a public listed company incorporated in Malaysia, and Eng Heng Holdings Sdn Bhd (EHSB), another company incorporated in Malaysia. On 9 April 1994, the respondent commenced oppression proceedings under s 216 of the Companies Act (Cap 50, 1994 Ed) naming, inter alios, the appellant as one of the parties, and alleging oppression against the respondent in respect of the affairs of SHCPL. On the same day, the respondent’s sister, Eng Hui Cheng, also commenced similar proceedings separately in relation to the affairs of SHCPL. Further, both the respondent and his sister jointly commenced legal proceedings in Malaysia under s 181(2)(e) of the Malaysian Companies Act 1965, alleging oppression against them in respect of the affairs of EHSB. Although the petition was filed on 13 April 1994, it has yet to be served on the appellant who is ordinarily resident outside Malaysia.

3           On 28 April 1994, the appellant commenced an action in the High Court claiming, inter alia, a declaration that the respondent holds on trust for him:

(a)       the shares in SHCPL, SHC (Malaya), EHSB and Finavest Ltd, a company incorporated in Hong Kong, all registered in the respondent’s name and/or held by him;

(b)      No 27 Victoria Park, Singapore, registered in the respondent’s name; and

(c)       the respondent’s interest in various parcels of land in West Malaysia.

4           Subsequently, the respondent applied by notice of motion in the High Court for an order that the claims in relation to the shares in SHC Malaya and EHSB as well as the various parcels of land in Malaysia be stayed on the ground that the Singapore court has no jurisdiction in relation to the claims for the immovable properties as they are situated abroad, or alternatively, on the ground of forum non conveniens.

Decision below

5           On the first ground the learned judge found that on the basis of the statement of claim, the appellant appeared to rely on an express trust, or alternatively, a resulting trust. Since the appellant’s claim arose in equity, the court had jurisdiction over the matter even though the proceedings were concerned with foreign immovable properties. The learned judge next went on to consider whether the lex situs would prohibit the enforcement of the decree. Counsel for the respondent pointed to two difficulties in the way, namely, compliance with the Malaysian National Land Code and the guidelines of the Foreign Investment Committee (FIC) of Malaysia. The learned judge saw some difficulties in the reliefs sought by the appellant as they had been drafted too widely and, if granted by the court, might require the respondent to do things which were impossible, thus putting him in eminent danger of contempt proceedings for non-compliance. However, she was of the view that this was a matter of pleadings which could easily be rectified either by the appellant seeking an amendment or by the court at the conclusion of the trial if it found in favour of the appellant. In any event, the main relief which the appellant sought was a declaration of his interest and there was no law in Singapore which made it impossible or illegal for such a declaration to be made. Accordingly, the learned judge held that the application failed on the jurisdictional ground. [See [1995] 1 SLR 577.]

6           As regards the alternative ground for the stay, the learned judge applied the principles as laid down in The Spiliada, Spiliada Maritime Corp v Cansulex Ltd and which was accepted by this court in Brinkerhoff Maritime Drilling Corp v PT Airfast Services Indonesia. The learned judge then directed her attention to factors connecting the action to the particular forum. The most important connecting factor, in her view, was that the parcels of land were situated in Malaysia and would automatically fall within the jurisdiction of the Malaysian court which was the only court competent to adjudicate all questions relating to their legal title or possession. In addition, the lex causae, the law governing the creation and existence of the trust over these lands, was Malaysian law. A Singapore court could only make an order in personam, whereas a Malaysian court would be in a position to make an order operating in rem against the properties themselves.

7           Further, a substantial portion of the facts on which the claim was based arose in Malaysia. It was alleged that most of the properties were bought from a Malaysian company by the appellant and given to the respondent, some of which were subsequently sold. There was also at least one property bought directly by the respondent himself. All the properties were paid for in Malaysian ringgit. There was evidence in Malaysia indicating how the proceeds of the sale were dealt with which would assist in determining whether the appellant actually made an outright gift. This evidence was in the hands of EHSB which could not be compelled by a Singapore court to release. On the other hand, the learned judge considered the factors connecting the claim to Singapore; and these were that both parties, who would be the main witnesses as well as other witnesses, were Singapore citizens who lived here and thus should be entitled to seek redress in their own courts. The place of residence, albeit a factor to be taken into account, was not the only factor.

8           Dealing then with the shares, the learned judge held that the factors which connected them with Malaysia were first, that their situs was in Malaysia, and secondly, that the lex causae, the law governing their creation, validity and transfer as well as the creation of a trust, was Malaysian law. There was also the fact that if the appellant’s claim in respect of the shares was true, then the appellant would be in breach of the Malaysian company law as well as a failure to comply with the listing requirements of The Kuala Lumpur Stock Exchange. The evidence which the respondent would need to support these allegations would be found in Malaysia as the officers of the companies to be called as witnesses would be in Malaysia and their compellability was an important question. Another factor which weighed in favour of Malaysia was the finality of determination of the dispute. The respondent’s locus standi in bringing an oppression petition in relation to the affairs in EHSB was that he was a shareholder, and if indeed he held the shares on trust for the appellant, that petition would fail.

9           Having considered all the factors the learned judge held that the respondent had discharged the burden of showing that Singapore was not the natural or appropriate forum for the trial of the claims involving the Malaysian lands and shares and that the Malaysian court was clearly the more appropriate forum. The learned judge also held that there were no circumstances by reason of which justice required that a stay of such claim should be refused. Accordingly, she allowed a stay.

The issues on appeal

10       Before us the appellant contended that the learned judge erred in granting a stay on the ground of forum non conveniens. The respondent in his case raised the issue of jurisdiction again and contended that the decision should be affirmed also on the ground that the court has no jurisdiction to determine the claims involving the Malaysian properties. Hence, the same issues are now before us as were raised before the learned judge.

Jurisdiction

11       It is not disputed that the appellant’s claim in relation to the Malaysian land is that of an express or alternatively a resulting trust. Rule 116 of Dicey & Morris on The Conflict of Laws (12th Ed) in Vol 2 at p 946 states the general and well-known rule that the court has no jurisdiction to entertain proceedings principally concerned with a question of the title to, or the right of possession of, immovable property situate out of England, except, inter alia, where the action is based on a contract or equity between the parties. This was also commonly known as the rule in Penn v Baltimore. Counsel for the respondent submitted that the exception should not be applied as it was a product of judicial chauvinism and has no place in modern jurisprudence based on judicial comity. The equitable jurisdiction is anomalous and, as stated by Lord Esher in Companhia de Mocambique v British South Africa Co, at pp 404–405:

… seems to be open to the strong objection that the court is doing indirectly what it dare not do directly.

12       We are unable to accept counsel’s submission. The exception is generally well recognized today and given effect to. In Cook Industries v Galliher the plaintiffs, an assignee of a judgment debt arising from an action in New York, initiated an action in England against the debtor and his friend claiming that they had removed the debtor’s assets from New York to an apartment in Paris and that they held the assets in trust for the plaintiffs or alternatively they acted in fraud of the plaintiffs. The plaintiffs having obtained an injunction against the friend restraining him from disposing of the assets sought an order for discovery. A preliminary point was raised as to the jurisdiction of the court and it was held that the court had jurisdiction on the ground that there was an equity between the plaintiffs on the one hand and the debtor and the friend on the other. Templeman J said at p 443:

It is conceded that the court has no jurisdiction to entertain an action for the determination of the title to or right to possession of any immovable property situate out of England, with certain exceptions. One exception is where there is an equity between the parties, and it is Mr Weeks’s submission that there is no equity as between the plaintiffs and Mr Galliher [the friend]. …

It seems to me that, if the plaintiffs are right, there is a personal equity. There is clearly a personal equity between the plaintiffs and Mr Sarlie [the debtor] who, if the plaintiffs are right, has taken steps to defraud them of the benefit of their judgment debt, and has taken steps to hide his property which ought to be made available to the plaintiffs and ought to be there for the plaintiffs to be able to impose a charging order and to get an order for sale and satisfy their judgment debt.

13       The basis on which the court held that it had jurisdiction was that there was an equity between the parties, and the defendants were within the jurisdiction.

14       More recently in the case of Webb v Webb the court was again called to discuss this point but this time in relation to art 16(1) of the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters 1968. The court held that it had jurisdiction to make an order directing a person within its jurisdiction to carry out his fiduciary duties arising under a trust, notwithstanding that the order related to property abroad, since the order operated in personam and, as such, did not have as its object rights in rem in immovable property for the purposes of art 16(1) of the 1968 convention but rather the establishment of the person’s accountability as trustee to the party seeking the order. The trial judge said, at p 25:

Indeed it reflects the ancient equitable jurisdiction expressed by the maxim that equity acts in personam. One of the principal applications of that maxim is in relation to the court’s jurisdiction over property abroad as exemplified in Penn v Baltimore (1750) 1 Ves Sen 444, [1558–1774] All ER Rep 99 and in many subsequent cases. Where there is a defendant within a court’s jurisdiction, and there exists some relationship between him and the plaintiff arising out of contract, trust or fraud or other fiduciary bond, the court may make an order directed to the defendant to perform his contract, carry out his fiduciary duties or undo the effects of his fraud. Through the relationship, the defendant’s conscience is affected and bound. The sanctions for failure to carry out the order are commitment for contempt and sequestration of any assets of his to be found within the jurisdiction. It is no objection that the order relates to land abroad, save only this, that the order will not be made if the carrying of it out is illegal or impossible according to the lex situs.

15       Later, he said at p 26:

The plaintiff in the present case does not rely upon any contract for sale. He relies on a fiduciary relationship between him and his son. The son, he says, is his trustee. That is one of the foundations of equitable jurisdiction, and here again the main method of enforcement is an order in personam against the defendant. He can be required to execute the trust by transfers or rendering accounts. The relief claimed does not include any form of vesting order, or an order directing the rectification of some register of title, or even a declaration that the plaintiff is the legal owner of the property. What he claims is a declaration that the defendant holds the property and its contents on an express or resulting trust for him and an order to execute such deeds and documents as shall be required to vest the legal ownership in the plaintiff.

16       Counsel for the respondent pointed out that in the discussion on the exception in Dicey & Morris (at p 954) it was stated that the jurisdiction could not be exercised if the lex situs would prohibit the enforcement of the English court’s decree. In particular, counsel relied on the passage of Lord Cottenham in Re Courtney, Ex p. Pollard, [at p 250 (Mont & Ch), pp 417–418 All ER Rep] where his Lordship said:

If indeed the law of the country where the land is situate should not permit or not enable the defendant to do what the court might otherwise think it right to decree, it would be useless and unjust to direct him to do the act; but when there is no such impediment the courts of this country, in the exercise of their jurisdiction over contracts made here, or administering equities between parties residing here, act upon their own rules, and are not influenced by any consideration of what the effect of such contract might be in the country where the lands are situate, or of the manner in which the courts of such countries might deal with such equities.

17       But the lex situs here does not prohibit the enforcement of a court order, and it seems to us that the National Land Code, the legislation governing title to land in Malaysia, does recognize trust over land in certain situations. It is true that the existence and creation of a trust over land in Malaysia would be best dealt with by the Malaysian court. But that is another matter which we shall address in a moment. On the question of jurisdiction, the respondent has not shown that the Malaysian court would not under any circumstances recognize a trust that is declared by a court other than its own and give effect to that order.

18       As to the problems faced under the FIC guidelines, we are disposed to agree with the learned judge that they do not prohibit or nullify the actual act of executing the transfers but are directed at the effect of the transfers executed by the respondent. After all, even if a Malaysian court declares a trust in favour of the appellant, any transfer of title to the Malaysian land from one non-resident to another would still be subject to FIC approval. In any event the main relief which the appellant is seeking is a declaration of his interest. There is nothing in Singapore law which makes it impossible or illegal for such a declaration to be made or which would be an impediment to the relief sought.

19       Accordingly, we are in entire agreement with the learned judge and reject the contention of the respondent that the court has no jurisdiction to determine the claims of the appellant involving the immovable properties in Malaysia.

Forum non conveniens

20       We now turn to consider the second main issue, and that is whether the jurisdiction to determine the claims involving the Malaysian properties (both lands and shares) should be declined on the ground of forum non conveniens. In relation to this issue there are two tests that have been laid down. The first is that as set out in Spiliada Maritime Corp v Cansulex Ltd, pp 476–478, which has been adopted by this court in Brinkerhoff Maritime Drilling Corp & Anor v PT Airfast Services Indonesia. The principles governing the application of such test have been fully discussed and set out in the speech of Lord Goff of Chieveley, and we hope we would not be doing an injustice to the very clear and learned exposition there, if we set them out in a compressed form as follows (adopting substantially the words used by his Lordship with necessary modifications in Singapore context). A stay will only be granted on the ground of forum non conveniens, where the court is satisfied that there is some other available and appropriate forum for the trial of the action. The burden of proof rests on the defendant, and the burden is not just to show that Singapore is not the natural or appropriate forum but to establish that there is another available forum which is clearly or distinctly more appropriate than the Singapore forum. The natural forum is that with which the action has the most real and substantial connection, and the court will consider what factors there are which point in that direction. If the court concludes at that stage that there is no other available forum which is clearly more appropriate for the trial of the action, it will ordinarily refuse a stay. If, however, the court concludes at that stage that there is some other available forum which prima facie is clearly more appropriate for the trial of the action it will ordinarily grant a stay, unless there are circumstances by reason of which justice requires that a stay should nevertheless be refused. The court in this respect will consider all the circumstances of the case.

21       The other test is that propounded in the judgment of Deane J of the High Court of Australia in Oceanic Sun Lines Special Shipping Co Inc v Fay, at p 241. Deane J at the commencement of his judgment said:

A party who has regularly invoked the jurisdiction of a competent court has a prima facie right to insist upon its exercise and to have his claim heard and determined. … The common law itself has traditionally recognized certain special categories of case in which the exercise of jurisdiction must or may be refused in circumstances where diplomatic custom, international comity, public policy or considerations of justice require or may support that course. In this country, those special categories of case have not traditionally encompassed a general judicial discretion to dismiss or stay proceedings  in a case within jurisdiction merely on the ground that the local court is persuaded that some tribunal in another country would be a more appropriate forum.

22       His Honour then considered the various authorities and concluded with a summary of his views, at pp 247–248:

In the light of the foregoing and at the cost of some repetition, it is possible to identify in summary form what I see as the modern content of the traditional principles governing the power of a court in this country to order that proceedings which have been regularly instituted within jurisdiction should be dismissed or stayed on inappropriate forum grounds. That power is a discretionary one in the sense that its exercise involves a subjective balancing process in which the relevant factors will vary and in which both the question of the comparative weight to be given to particular factors in the circumstances of a particular case and the decision whether the power should be exercised are matters for individual judgment and, to a significant extent, matters of impression. The power should only be exercised in a clear case and the onus lies upon the defendant to satisfy the local court in which the particular proceedings have been instituted that it is so inappropriate a forum for their determination that their continuation would be oppressive and vexatious to him. Ordinarily, a defendant will be unable to discharge that onus unless he can identify some appropriate foreign tribunal to whose jurisdiction the defendant is amenable and which would entertain the particular proceedings at the suit of the plaintiff. Otherwise, that onus will ordinarily be discharged by a defendant who applies promptly for a stay or dismissal if he persuades the local court that, having regard to the circumstances of the particular case and the availability of the foreign tribunal, it is a clearly inappropriate forum for the determination of the dispute between the parties.

23       Both the tests were examined in some detail in a subsequent decision of the Australian High Court in Voth v Manildra Flour Mills Pty Ltd & Anor. The majority of the Court (consisting of Mason CJ, Dean, Dawson and Gaudron JJ) compared the test in Oceanic Sun (which they referred to as ‘clearly inappropriate forum’ test) with the Spiliada test (which they referred to as ‘clearly more appropriate forum’ test). They held that in most cases there was little practical difference between the two. They said at p 558:

The ‘clearly inappropriate forum’ test [Oceanic Sun test] is similar to and, for that reason, is likely to yield the same result as the ‘more appropriate forum’ test [Spiliada test] in the majority of cases. The difference between the two tests will be of critical significance only in those cases — probably rare — in which it is held that an available foreign tribunal is the natural or more appropriate forum but in which it cannot be said that the local tribunal is a clearly inappropriate one. But the question which the former test presents is slightly different in that it focuses on the advantages and disadvantages arising from a continuation of the proceedings in the selected forum rather than on the need to make a comparative judgment between the two forums. That is not to deny that considerations relating to the suitability of the alternative forum are relevant to the examination of the appropriateness or inappropriateness of the selected forum. The important point is that, in those cases in which the ascertainment of the natural forum is a complex and finely balanced question, the court may more readily conclude that it is not a clearly inappropriate forum.

24       They then expressed their preference for the ‘clearly inappropriate forum’ test. They said at pp 559–560:

In a context where the relevant test will fall to be applied in accordance with the individual perception of a primary judge, the courts of this country are better adapted to apply a test which focuses upon the inappropriateness of the local court of which the local judge will have both knowledge and experience than to a test which focuses upon the appropriateness or comparative appropriateness of a particular foreign tribunal of which he or she is likely to have little knowledge and no experience.

…

As Deane J pointed in Oceanic Sun, principle and authority (in the form of the decision in Maritime Insurance) favour the test adopted by his Honour. The selected forum’s conclusion that it is a clearly inappropriate forum is a persuasive justification for the court refraining from exercising its jurisdiction. Granted that there is an obligation on the domestic courts of this country to exercise jurisdiction which is conferred upon them — a matter on which the majority in Oceanic Sun was united — it does not extend to cases where it is established that the forum is clearly inappropriate. To say, in line with the Spiliada approach, that the selected forum is justified in refraining from exercising its jurisdiction when it concludes no more than that another available and competent forum is more appropriate is to acknowledge that a court can decline to perform its obligation to exercise jurisdiction even though it is an appropriate or not inappropriate court. That proposition is by no means easy to sustain as a matter of legal principle, though we acknowledge that the argument deriving from the obligation to exercise jurisdiction has less force in its application to cases falling within the extended jurisdiction where the plaintiff is required to obtain leave to serve outside the jurisdiction. The court then has a discretion to exercise and in exercising that discretion it may have regard to appropriate forum considerations.

25       Counsel for the appellant sought to set out the basis for the Spiliada test and submitted that it was formulated at the time to prevent ‘forum shopping’ when the parties had little or no connection with the forum in which the case was brought. On the strength of the Australian authorities counsel submitted that the test in Oceanic Sun and approved in Voth should apply and urged this court to depart from the principles enunciated in Spiliada Maritime Corp v Cansulex Ltd.

26       On authority and on principle we cannot agree. The Spiliada1 has been considered and approved in Brinkerhoff and we can see no reason for departing from that authority. The underlying basis in this test is whether the local court is clearly an appropriate forum or not and whether there is another forum which is distinctly and clearly more appropriate. It has a more liberal approach which cut down local parochialism as regards judicial adjudication and attaches greater importance to consideration of international comity.

27       Reverting now to the present case, we consider first the factors relating to the appellant’s claim involving the lands. There are a number of factors relied upon by the respondent. First, the landed properties are situated in Malaysia and fall within the jurisdiction of the Malaysian courts. Secondly, the lex causae was clearly Malaysian; the creation, existence and validity of a trust over the immovable property are governed by the lex situs. On the other hand, counsel for the appellant contended that the lex causae would not necessarily be Malaysian. In support, he cited Dicey & Morris on The Conflict of Laws (11th Ed) at p 1077:

… If the trust property consists solely of immovables situated in one country, there may be good reason for applying that country’s law to these questions … But if the trust property comprises immovables situated in different countries, or if it comprises both immovables and movables, a strong counter-argument can be made that it is desirable that the trust should be treated as a unit and that the trusts of all the property comprised therein should be governed by a single law, ie the proper law of the trust. In Re Fitzgerald, the Court of Appeal held that a marriage settlement in Scottish form made by a lady domiciled in Scotland before her marriage to a domiciled Englishman was governed by Scots law. Most of the settled property (to the amount of $13,200) was invested in Scottish heritable bonds, ie in immovables; the only movable was a sum of $500 in cash. One reason for holding that Scots law was the proper law was the following: ‘It can scarcely be denied that the lex loci — ie the law of Scotland — must apply to the extent of the $13,200. There was $500 cash belonging to the lady which was paid over to the trustees for investment. It seems to me that this sum cannot fairly be treated as intended to be subject to a different law from that which is applicable to the bulk of the property.’ But if the trust property had consisted of $13,200 worth of movables and a cottage in England worth $500, the same reasoning inverted would have led to the conclusion that the land in England was subject to the same law as the movables, ie Scots law.

28       Re Fitzgerald, Surman v Fitzgerald clearly can be distinguished. The proper law of the trust is, to a great extent, determined by the location of a substantial portion of the property, and in that case most of the properties were in Scotland. This seems to be supported by Dicey & Morris as well. In the case at hand, the trust properties in both Singapore and Malaysia are substantial and the same reasoning cannot be applicable here.

29       Thirdly, although a declaration of trust could be made by the court here it could only act in personam. A Malaysian court, on the other hand, would be in a position to make an order in rem affecting the properties themselves.

30       Lastly, the respondent said that a substantial portion of the facts relating to the transfer of the trust properties took place in Malaysia. It was alleged that many of the properties were bought by the appellant from SHC (Malaya) in Malaysia and transferred to the respondent and all of them were paid for in Malaysian ringgit, and that at least one of the properties was bought directly by the respondent. There was also evidence in Malaysia indicating how the proceeds of sale were dealt with which would assist in determining whether the appellant did actually make an outright gift or not. This evidence was, according to the respondent, in the hands of EHSB which could not be compelled by a Singapore court to release.

31       As for the shares, the respondent submitted that the lex causae in respect of the claim is clearly Malaysian law. The shares are those of companies incorporated in Malaysia and accordingly Malaysian law governs their creation, validity and transfer: Dicey & Morris (12th Ed) rr 113 and 114. The law governing the creation of the trust is also Malaysian law. Again, many of the relevant facts took place in Malaysia. The shares were issued and paid for there. All the accounts and relevant records relating to the shareholdings of the respondent are kept in Malaysia, and as the witnesses available (who are not members of the parties’ family) are in Malaysia, there may be difficulty in compelling them to attend court in Singapore.

32       The respondent has in his defence, stated that should the appellant’s claim in respect of the EHSB and SHC (Malaya) shares be true, the appellant would have committed a breach of Malaysian company law and also a breach of the listing requirements of The Kuala Lumpur Stock Exchange (KLSE). Under s 135 read with s 134 of the Malaysian Companies Act, a Malaysian company must keep a register giving particulars of the interest which each director of the company has in the shares of the company. In turn, the director is also obliged to give the company notice in writing of such interest. As the appellant was and is a director of the relevant companies, he would have been obliged to give notice to EHSB and SHC (Malaya) of the interests which he now claims in the shares, but such notice has not been given. As for the listing requirements of the KLSE, under regulation 32 thereof an announcement has to be made to the KLSE of any notice of substantial shareholdings or changes received by the company and the details thereof. No such announcement has been made. Both these breaches involve a question of public policy in Malaysia. If the appellant’s claim is true, then he would have committed some offences or breaches of the listing requirements and the Malaysian courts would have to decide as a matter of public policy whether to enforce the appellant’s claim. An issue of Malaysian public policy is best left to be determined by the Malaysian court.

33       In response, the appellant submitted that as the Malaysian Companies Act and the KLSE listing requirements were both codified, there would be no difficulty for a Singapore court to adjudicate whether a breach has been committed. To examine the provisions of the Malaysian Companies Act and the KLSE listing requirements and determine whether or not the appellant has committed a breach or breaches is not an insuperable problem to the court here. But the difficulty is that having done that, the court then has to decide whether it is against public policy to enforce the trust, and the public policy is that in Malaysia, and that issue the court in Singapore cannot determine.

34       We turn to other factors connecting the claim to Singapore. First, both the appellant and respondent, who would be the main witnesses, are Singapore citizens and resident here, although they have substantial business in Malaysia. Other witnesses who may be called are members of the family of the appellant who are also resident here. Another major factor was that the appellant would, in any event, continue with this suit as there are also properties in Singapore in which he claimed a beneficial interest vis-a-vis the respondent. This would result in the same or similar issues being litigated in two different forums with a consequent risk of inconsistent or contradictory findings made in the two jurisdictions. Thirdly, the appellant was merely seeking relief in personam against the respondent by virtue of a declaration of trust over the immovables, which the court can clearly make. Lastly, if the claim involving the lands situate in Malaysia was tried there, there would be a possible delay of four years, whereas here the disputes between the parties could possibly be resolved within a year or thereabout.

35       Although the nationality and place of residence of the parties are relevant, they are not the only factors to be taken into account in deciding whether Singapore is the appropriate forum. The jurisdiction of the court is not based on the nationality and residence of the parties alone. Great weight should also be attached to the location of the subject matters in dispute and the undesirability of a Singapore court in deciding issues involving ownership of land in Malaysia. In addition, there may be complexities involved in the enforcement of the trust in Malaysia, should we declare there to be one. In any event, the respondent would be carrying on with the proceedings in Malaysia in relation to the Malaysian lands even if we refuse to grant a stay of proceedings in Singapore and there would inevitably be some duplication of proceedings.

36       Having considered the factors, we are of the opinion that the respondent has discharged the burden of showing that Singapore is not the natural or appropriate forum and that the Malaysian court is clearly the more appropriate forum for the trial of the claims involving the Malaysian properties. In the result, we dismiss the appeal.

37       We now come to the question of costs. Two principal issues have been raised before us: one by the appellant and one by the respondent. The appellant has succeeded in one but failed in the other. It would be unfair in these circumstances to order the appellant to bear the entire costs of the appeal. Accordingly, we order that the appellant pay only half of the costs of this appeal. The deposit in court as security for costs be paid to the respondent or his solicitors to account of costs.

Appeal dismissed.

Reported by Audrey Lim