RBG Resources plc (in liquidation) v Banque Cantonale Vaudoise and Others

Woo Bih Li J:

[1] In my judgment of 11 June 2004 ([2004] SGHC 123), I declared that the plaintiff, RBG Resources plc (“RBG”), remained the legal and beneficial owner of metals in certain warehouses which had been held for the account of RBG prior to any dealing of the metals between RBG and the second defendant Credit Lyonnais (“CL”), save for one drum of nickel identified as 519-W127 by SGS Testing & Control Services Singapore Pte Ltd. I also ordered that the sale proceeds of RBG’s metal be released to RBG or its solicitors.

[2] I further ordered CL to pay damages to RBG for conversion of nickel briquettes which CL had taken delivery of from one of the warehouses, such damages being the net purchase price or prices which CL had obtained for the briquettes as CL had sold the same.

[3] Consequently, CL’s counterclaim for the metals in the warehouses, which also formed the subject matter of RBG’s claim, was dismissed, save for the one drum of nickel identified as 519-W127. CL was consequently entitled to the sale proceeds of that one drum of nickel.

[10] If I were not inclined to grant leave to appeal on the Application Issue, the question was whether I should nevertheless grant such leave because of the Conditional Issue. It seemed to me that RBG could not raise the s 62(4) issue in an appeal proper. As mentioned above, the s 62(4) issue would be raised only in its respondent’s case.

[13] There is one other point I should mention. If I were to grant leave to appeal, RBG’s appeal would have a life of its own. RBG could carry on with it even if CL should withdraw its appeal. That would be contrary to a respondent’s case. If an order were to be made that RBG’s appeal would be deemed withdrawn upon the withdrawal of CL’s appeal, that would make RBG’s appeal, in substance, a respondent’s case.

[15] There is one other point I wish to mention. Order 57 r 9A(5) and (6) state:

[16] As limb (b) of r 9A(6) is connected with limb (a), it seems to me that limb (b) is intended to apply in a situation where a respondent is contending that the decision below should be varied in the event of the appeal being allowed in whole or in part, but not when the respondent is contending that the decision below should be affirmed on grounds other than those relied upon below. Nevertheless, I am of the view that there is an unintended lacuna and it must be implied that if a respondent succeeds in its contention that the decision below should be affirmed on grounds other than those relied upon below, the respondent is entitled to claim consequential relief from that contention. Hence, the relief sought by RBG under the Conditional Issue should be stated in its respondent’s case and should not be used to justify an application for leave to appeal on the Application Issue.