Allenger, Shiona (trustee-in-bankruptcy of the estate of Pelletier, Richard Paul Joseph) v Pelletier, Olga and another [2020] SGHC 279

Introduction

The jurisdiction of the court refers to “its authority, however derived, to hear and determine a dispute that is brought before it”: Re Nalpon Zero Geraldo Mario [2013] 3 SLR 258 (“Nalpon Zero”). In this case, the Defendants challenge both aspects of that fundamental authority: subject-matter jurisdiction and in personam jurisdiction. The dispute thus presents an occasion to clarify the contours of the two notions of subject-matter jurisdiction and in personam jurisdiction, as well as the interface between these two doctrines. This case also presents an apposite occasion in Singapore jurisprudence to consider the law on Mareva injunctions, specifically the jurisdictional requirements that must be satisfied before such injunctions may be granted.

Background facts

The Plaintiff is the trustee-in-bankruptcy of the estate of Mr Richard Paul Joseph Pelletier (“Mr Pelletier”). The first Defendant, Ms Olga Pelletier, is the wife of Mr Pelletier and the director of the second defendant, PDP Holdings Inc, a company incorporated in the Cayman Islands. At all material times, Mr Pelletier was and continues to be the sole shareholder of Richard Pelletier Holdings Inc (“RPHI”), a company incorporated in Alberta, Canada.

In 2014, pursuant to a share purchase agreement (“SPA”), MasTec Inc (“MasTec”), a company incorporated in Florida, acquired a Canadian company, Pacer Construction Holdings Corporation (“Pacer”), and its related entities from Mr Pelletier, RPHI and various other sellers (“Other Sellers”). It was alleged that Mr Pelletier was the founder and former CEO of Pacer, and also that RPHI owned 47.09% of the shares in Pacer at the time the SPA was entered into, the remaining shares being owned by the Other Sellers. MasTec paid RPHI C$59,296,699.23 for its shares in Pacer.

After completion of the sale of Pacer to MasTec, it became apparent that Mr Pelletier had falsely represented the financial condition of Pacer and its related entities and that the purchase price for Pacer would have to be adjusted downwards substantially from what was provided for in the SPA. In addition, there was a breach of a representation in the SPA made jointly or severally by Mr Pelletier and RPHI, and severally (but not jointly) by the Other Sellers, that certain of Pacer’s related entities would not require or were not reasonably likely to require additional funding from Pacer to maintain their current or planned operations (the “No Additional Funding Representation”). This led to MasTec and Pacer commencing arbitral proceedings against Mr Pelletier RPHI and the Other Sellers in 2016.

The joint and several liability of Mr Pelletier and RPHI under these awards amounted to C$76,833,744.50. The Other Sellers having paid the amounts they were severally liable for, Mr Pelletier and RPHI remained liable to Pacer in the amount of C$33,556,822.50. The amount remains outstanding, save for a small amount of C$4,037.40.

Pacer then sought to enforce the arbitral awards through multiple applications in various jurisdictions. An application against Mr Pelletier was taken out in the courts of the Cayman Islands (the “Cayman courts”) for recognition of the principal award. An application against Mr Pelletier and RPHI was also taken out in the courts of Alberta for recognition and enforcement of all three awards. Applications were also taken in Alberta to bankrupt RPHI and also in the US District Court for the Southern District of California.

The efforts to enforce the awards against Mr Pelletier have not been successful because Mr Pelletier claims that he has no assets and is unable to repay his debt despite having received approximately C$59 million, through RPHI, for the sale of Pacer. Specifically, Mr Pelletier claims to have gifted a sum of between C$20 million and C$25 million to the first Defendant to fulfil a promise he made to split the proceeds with her if he sold Pacer (the “Olga Transfer”). This promise was purportedly made a decade prior to the present events.

The Plaintiff also alleges, based on its own investigations, that Mr Pelletier had subsequently engaged in further suspicious activities. It is alleged that in 2014, Mr Pelletier had incorporated PDP Corporation in the Cayman Islands, with himself as the sole shareholder and director. He also established a trust, STAR Trust, with Butterfield Bank (Cayman) Limited (“Butterfield Bank”) as the original trustee. Mr Pelletier then transferred US$4 million to PDP Corporation. Once this was done, Mr Pelletier then transferred his shares in PDP Corporation to Butterfield Bank. It is claimed that PDP Corporation had utilised the US$4 million to purchase a condominium in Grand Cayman.

That was not the end of it. It is further alleged that Mr Pelletier had then incorporated the second Defendant in the Cayman Islands in August 2015, again with himself as the sole shareholder and director. In a single month, in September 2015, Mr Pelletier then made a series of transfers from bank accounts in his name in Butterfield Bank to bank accounts held by the second Defendant (also with Butterfield Bank). These transfers totalled approximately US$15 million and included:

(a) C$12,798,522.71 transferred on 1 September 2015;

(b) US$4,735,074.03 transferred on 1 September 2015;

(c) US$264,925.97 transferred on 11 September 2015; and

(d) C$1,201,477.29 transferred on 15 September 2015.

The Olga Transfer, the transfers to PDP Corporation, and the transfers to the second Defendant (collectively, save for the transfer set out in [10(b)], the “Disputed Transfers”) were made in circumstances where Mr Pelletier admits he had dissipated the proceeds from the sale of Pacer.

In August 2019, Pacer applied to the clerk of the Cayman courts to issue a bankruptcy notice against Mr Pelletier. This notice was issued, allowing Pacer to subsequently commence bankruptcy proceedings. In November 2019, the Grand Court of the Cayman Islands granted an interim bankruptcy order against Mr Pelletier. This order was made absolute in March 2020.

The Plaintiff, as the trustee-in-bankruptcy of the estate of Mr Pelletier, then commenced proceedings in the Cayman court in January 2020, seeking to set aside the Disputed Transfers that Mr Pelletier had made. The proceedings were made pursuant to s 107(1) of the Cayman Bankruptcy Law. On 8 January 2020, the Plaintiff also obtained a worldwide Mareva injunction against the Defendants, as well as against three other related entities (the “Cayman worldwide injunction”). On 13 January 2020, the Cayman worldwide injunction was amended, allowing the Plaintiff to seek a similar order in Singapore.

On 14 January 2020, the Plaintiff then commenced the present Suit by filing a writ of summons. That writ was accompanied by three ex parte applications, namely:

(a) HC/SUM 212/2020, by which the Plaintiff sought an order for leave to serve the cause papers in the Suit on the Defendants out of jurisdiction and for the requirement for two prior attempts at personal service to be dispensed with (the “Leave Application”);

(b) HC/SUM 213/2020, by which the Plaintiff sought a stay of all proceedings in the Suit save for (c) below (the “Stay Application”);

(c) HC/SUM 203/2020, by which the Plaintiff sought a Mareva injunction in Singapore (the “Singapore Injunction”) against the Defendants to prohibit them from removing from Singapore assets up to the value of CAN$20m (for the first Defendant) and CAN$20,586,000 (for the second Defendant). Those assets included two Singapore bank accounts with LGT Singapore and Global Precious Metals (the “LGT Account” and “GPM Account” respectively).

I heard the ex parte applications on 16 January 2020 and granted all three applications. The orders of court and cause papers were thereafter served on the Defendants, and the first Defendant filed her first affidavit on 6 February 2020 in compliance with the disclosure requirements of the Singapore Injunction.

On 21 February 2020, the Defendants filed HC/SUM 884/2020 seeking clarification of the Singapore Injunction (the “Clarification Application”). In the Defendants’ view, this was necessitated by certain events, which I will elaborate upon further at [98]. I heard the Clarification Application on 20 April 2020 and dismissed it.

On 29 April 2020, the Defendants then filed HC/SUM 1859/2020, seeking leave to appeal against my decision in the Clarification Application (the “Leave to Appeal Application”). On 20 May 2020, the Plaintiff filed HC/SUM 2041/2020, seeking an order that the first Defendant, amongst other things, immediately transfer the sums which had been transferred to Priestleys, the Defendants’ Cayman lawyers, back to Singapore for the same to be paid into court (the “Application to Restore Funds”). I heard the Application to Restore Funds on 19 June 2020, where the parties agreed to the following:

(a) that the Defendants were to provide the Plaintiff with evidence of payments made from the GPM account since the Singapore Injunction was served on 23 January 2020;

(b) that the funds paid from the GPM Account, which had been repatriated to the client account of Shook Lin & Bok LLP (“Shook Lin & Bok”), be subjected to the Singapore Injunction; and

(c) that the Defendants would not deal with the funds mentioned above without the Plaintiff’s written agreement or an Order of Court until the discharge of variation of the Singapore Injunction.

In the proceedings referred to in [16] and [17] above, the Defendants were represented by Shook Lin & Bok.

The present application was filed on 9 June 2020. Under this application, in which Mr Harpreet Singh SC and Mr Jordan Tan appeared as instructed counsel, the Defendants seek the following orders:

(a) that the order granting the Leave Application be set aside;

(b) that the Singapore Injunction be discharged; and

(c) an order that the Stay Application be varied to allow the Defendants to apply for orders (a) and (b) above.

The Defendants make this application, challenging the jurisdiction of the Singapore court. In particular, they argue that the Singapore court has no subject-matter jurisdiction and/or that it does not have in personam jurisdiction over the Defendants. In the alternative, the Defendants ask that the Singapore Injunction be set aside as the requirements for granting a Mareva injunction have not been satisfied.

Whether the Singapore court has subject-matter jurisdiction

The subject-matter jurisdiction of the court refers to the court’s authority over the subject matter of that general class of cases: Harvey v Derrick [1995] 1 NZLR 314 at 326. Subject-matter jurisdiction is a concept that is distinct from in personam jurisdiction. This was recognised in Murakami Takako (executrix of the estate of Takashi Murakami Suroso, deceased) v Wiryadi Louise Maria and others [2009] 1 SLR(R) 508 (“Murakami Takako”) at [6] and [8], albeit in the context of the rule in The British South Africa Company v The Companhia de Moçambique [1893] AC 602 (the “Moçambique rule”), which I elaborate on at [54(b)] below. Similarly, this was underscored by the Court of Appeal in Burgundy Global Exploration Corp v Transocean Offshore International Ventures Ltd and another appeal [2014] 3 SLR 381 at [80], drawing on Hoffmann J’s observations in Mackinnon v Donaldson, Lufkin and Jenrette Securities Corporation [1986] Ch 482:

In arguing that the Singapore court has no subject-matter jurisdiction in the present dispute, the Defendants have three main strings to their bow:

(a) that the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) (the “SCJA”) does not grant the necessary jurisdiction over foreign legislation;

(b) that the adoption of the UNCITRAL Model Law on Cross-Border Insolvency (the “UNCITRAL Model Law”) into Singapore law supports this contention; and

(c) that s 107(1) of the Cayman Bankruptcy Law does not confer jurisdiction upon the Singapore court.

While the Plaintiff disputes all three assertions above, it further raises the argument that the doctrine of modified universalism calls upon the Singapore court to exercise jurisdiction. I will address each of these arguments in turn.

Subject-matter jurisdiction generally under the Supreme Court of Judicature Act

The Singapore High Court is a creature of statute, constituted under the SCJA. Its jurisdiction is statutorily conferred and circumscribed by that very same constitutive statute: see Nalpon Zero ([1] supra) at [14] and [20]. Such jurisdiction-conferring provisions must therefore be satisfied before the court has legal basis upon which it may hear the case: Indo Commercial Society (Pte) Ltd v Ebrahim and another [1992] 2 SLR(R) 667 at [48] (“Indo Commercial Society”); Ng Chye Huey and another v Public Prosecutor [2007] 2 SLR(R) 106 at [17]; Blenwel Agencies Pte Ltd v Tan Lee King [2008] 2 SLR(R) 529 at [23]; Law Society of Singapore v Top Ten Entertainment Pte Ltd [2011] 2 SLR 1279 at [42]; Yeo Tiong Min, “Jurisdiction of the Singapore court” in Kevin YL Tan, ed, The Singapore Legal System (Singapore University Press, 2nd Ed, 1999) (Kevin YL Tan, Gen Ed) (“Yeo’s Chapter”) at pp 255–256.

The basis for the Singapore High Court’s jurisdiction is found in ss 16 and 17 SCJA, which provide as follows:

The two questions we are concerned with at this point are (a) which provision of the SCJA deals with subject-matter jurisdiction; and (b) consequently, what the scope and nature of such subject-matter jurisdiction is, ie, whether it is generally unlimited or only exists when conferred by written law.

The Defendants initially advanced the argument that the provision pertinent to the general civil subject-matter jurisdiction was s 16(2) SCJA. They argued that under this section, the words “any other written law” [emphasis added] refer only to Singapore Acts and Ordinances and not foreign legislation. In their view, such an interpretation flows from two other separate pieces of legislation. First, from Art 93 of the Constitution of the Republic of Singapore, which provides that:

Secondly, the Interpretation Act, which provides a definition of “written law” as follows:

The Defendants sought to bolster this argument by relying on the court’s specific civil subject-matter jurisdiction under s 17(1)(c) SCJA. As the provision refers to “any written law relating to bankruptcy or to companies” [emphasis added], the Defendants argued that:

There are two ways in which the Defendant’s argument can be interpreted. The first is that the Singapore Court’s subject-matter jurisdiction is limited to only causes of action founded upon Singapore Acts and Ordinances. The argument, interpreted thus, would exclude the Singapore court’s subject-matter jurisdiction over common law causes of action, as well as over foreign causes of action. Such an argument would lead to extraordinary results and it is unlikely that the Defendants intended this to be their argument.

More likely, the Defendants intended the following interpretation: that the Singapore Court’s subject-matter jurisdiction is limited only to causes of action founded upon Singapore law generally (as opposed to Cayman law in this case). In my view, however, this is inconsistent with the well-established position under common law that the courts generally have jurisdiction over foreign causes of action: see Phrantzes v Argenti [1960] 2 QB 19 (“Phrantzes v Argenti”). I will elaborate on both these points below.

There is another crucial point: the Defendants’ arguments up to this point placed scant weight on s 16(1) SCJA. Indeed, at the first tranche of hearings before me, Mr Harpreet Singh SC remarked that this particular provision could be “skipped” over because the provision was concerned with in personam and not subject-matter jurisdiction of the court. This was picked up by the Plaintiff, who then argued at the second tranche of hearings that s 16(1) SCJA was, in fact, concerned with both in personam and subject-matter jurisdiction. On the Plaintiff’s reading, s 16(1) SCJA conferred unlimited subject matter jurisdiction, subject only to the requirements of s 16(1)(a) and s 16(1)(b) SCJA. In making this argument, Plaintiff’s counsel, Mr Danny Ong, placed great weight on several passages written by Professor Yeo in Yeo’s Chapter ([23] supra); it is to these that I now turn in addressing the first key area of dispute between the parties, ie, the scope of s 16(1) SCJA and whether it deals with subject-matter jurisdiction.

Whether s 16(1) SCJA deals with subject-matter jurisdiction

In Yeo’s Chapter on jurisdiction, Prof Yeo first sets out at least six different ways in which the word “jurisdiction” can be understood or has been employed. The learned author then deals with the jurisdiction of the Singapore High Court with reference to the then-current provisions of the Supreme Court of Judicature Act (Cap 322) (1993 Reprint) (the “1993 SCJA”), which provided as follows:

Section 16(2) of the 1993 SCJA was removed pursuant to the Administration of Muslim Law (Amendment) Act 1999 (Act 20 of 1999) (“1999 AMLA Amendments”). This was done to provide the High Court and the Syariah Court with concurrent jurisdiction over specified matters: Haniszah bte Atan v Zainordin bin Mohd [2016] SGHCF 5 at [6]. Consequently, the Administration of Muslim Law Act (Cap 3, 2009 Rev Ed) was also amended, while s 17A(1) SCJA was introduced. This is a point to which I will return at [56].

What is material at this juncture is the fact that ss 16(1) and 16(3) of the 1993 SCJA are identical with ss 16(1) and 16(2) SCJA respectively. Why this is crucial is because Prof Yeo then goes on to state that:

In making the statements underlined in the extract above, Prof Yeo relied on the case of Emilia Shipping Inc v State Enterprises for Pulp and Paper Industries [1991] 1 SLR(R) 411 (“Emilia Shipping”). Ironically, this case formed the basis of the Defendants’ next argument.

Mr Jordan Tan (as second instructed counsel for the Defendants) was quick to point out that in Emilia Shipping, Chan Sek Keong J (as he then was) had stated at [23]:

Emilia Shipping therefore, at first blush, appears to be directly at odds with Prof Yeo’s statement, in so far as that case expressly states that s 16 of the 1993 SCJA is “not concerned with jurisdiction in terms of subject matter”. Mr Tan attempted an explanation for this -– that Prof Yeo had referenced Emilia Shipping in order to make the point that certain aspects of s 16 SCJA had an impact on subject-matter jurisdiction as it “watered down” other subject-matter specific statutes. This did not translate to s 16(1) SCJA itself directly concerning subject-matter jurisdiction.

Notwithstanding the ingenuity in this argument, I am unable to agree with the Defendant’s reading of the case. The statement of Chan J must be seen in context bearing in mind the specific dispute considered in Emilia Shipping. In that case, the plaintiff, Emilia Shipping Inc (“Emilia”), had discharged its cargo in Singapore after economic sanctions were imposed against Iraq as a result of the Gulf War. The defendant, State Enterprise for Pulp and Paper Industries (“State Enterprise”) was the notify party of a cargo of wood pulp carried under bills of lading on board Emilia’s vessel. Emilia then commenced Admiralty in Rem No 422 against State Enterprise for freight, back freight and expenses incurred in connection therewith. The cargo was then arrested, and Emilia obtained default judgment. The cargo was advertised for sale and bids were obtained although State Enterprise objected to the sale. State Enterprise then applied to set aside the arrest on the grounds that the court had no in rem admiralty jurisdiction to hear the case (see The Ocean Jade [1991] 1 SLR(R) 354).

Emilia then obtained leave to commence the in personam action and to serve the writ out of jurisdiction. State Enterprise did not respond, and Emilia applied ex parte for an order to sell the cargo to the highest bidder. State Enterprise then entered conditional appearance and obtained a stay of the ex parte order for the sale of the cargo. This was pending its application to set aside Emilia’s in personam action and the court’s orders granting Emilia leave to serve the writ out of jurisdiction. Counsel for the plaintiff contended that once the court is seised of jurisdiction it could not decline to exercise it, citing Mohan Gopal’s article “The Original Civil Jurisdiction of the Singapore High Court – Some Issues” [1983] 2 MLJ lxiv (“Gopal’s article”).

In Gopal’s article, the author embarked on an analysis of the changes in the Singapore court’s jurisdiction at different points in history. This began from the “English past” pre-1964, to when Singapore became a part of the Federation of Malaysia, and finally to the jurisdiction post-1965 when Singapore separated from Malaysia. Through this historical examination, the learned author sought to demonstrate that Singapore had initially adopted the general, unlimited jurisdiction of the English High Court and that this had changed when Singapore became part of the Malaysian federal system, with the existence of jurisdiction being subject to “pre-conditions” that required the dispute to have a specific link (or “contacts” as the author termed it) with the territory. The reason for this was to prevent any “potential for inter-state jurisdictional conflict”: Gopal’s article at p lxviii. The author then argued that these limitations were maintained when Singapore left the Malaysian federation and the Supreme Court of Judicature Act (Cap. 15, Act 24 of 1969) was enacted. The thrust of his argument was therefore as follows at p lxvii:

Flowing from this, the author then went on to deal with what he regarded as the “implications of the demise of unlimited general jurisdiction”. One of these “implications” concerned the question whether the court was obliged to exercise jurisdiction if s 16 SCJA was satisfied. The author argued that it was, stating at p lxxi as follows:

It was this particular extract, specifically the issue whether the Singapore High Court has inherent discretion to decline jurisdiction, that was the subject of debate in Emilia Shipping ([35] supra). It was not, strictly speaking, whether s 16 SCJA concerned subject-matter jurisdiction.

Two further points must be emphasised from the analysis in Gopal’s article. First, as seen from the extract above at [40], what the author was truly concerned with was the bases upon which jurisdiction could be established. Secondly, throughout the article, the author appears to have been dealing solely with in personam jurisdiction. The question of “jurisdictional competence” was answered with reference to connections between the defendant, cause of action and the state. There was never any mention of subject-matter jurisdiction.

The first sentence in [23] of Emilia Shipping therefore cannot be read in vacuo. When seen in context, it is clear that Chan J was simply referencing the (now) trite proposition that one of the bases under s 16(1) SCJA must be satisfied before the High Court has in personam jurisdiction. The only specific meaning that should be ascribed to the phrase “not concerned with” is that s 16 SCJA is not concerned with limiting subject-matter jurisdiction. The prefatory words in s 16(2) SCJA “[w]ithout prejudice to the generality of subsection (1) …” confirm this.

In fact, the clear implication to be drawn from Gopal’s article is that the only “limitations” to the court’s previously unlimited jurisdiction are to be found in s 16 SCJA. In all other respects, the court’s unlimited jurisdiction remains. To put it another way, s 16(1) SCJA limits the extent to which in personam jurisdiction can be exercised. Section 16(1) SCJA, however, places no such fetters on the exercise of subject-matter jurisdiction of the High Court (I will further expand on the issue of the scope of the court’s subject-matter jurisdiction in the next section at [51] below). That is not to say that subject-matter jurisdiction is completely divorced from in personam jurisdiction and the limits imposed thereupon. It must be borne in mind that in jurisdictional proceedings, both aspects of jurisdiction must be satisfied for the court to be seised of the matter. The two heads of jurisdiction are in this sense intertwined. Accordingly, notwithstanding this absence of limitation to subject-matter jurisdiction within s 16(1), the High Court’s subject-matter jurisdiction is only material and relevant in so far as in personam jurisdiction exists. They are conjunctive and inseparable requirements. One is expressly circumscribed in s 16(1), while the other is not. Seen in this light, Prof Yeo’s statement that s 16(1) refers to both is perfectly explicable.

To complete the picture, I make a further observation as regards an even older edition of the SCJA and related (albeit vintage) jurisprudence. These authorities are pertinent in two respects: first, the significance of submission to the Singapore High Court’s jurisdiction, and second, the manner in which the SCJA has since evolved. I note that in stating that s 16 SCJA refers to both subject-matter jurisdiction and in personam jurisdiction, Prof Yeo also referred to Indo Commercial Society ([23] supra). In that case at [44], Hwang JC first referred to an unreported judgment dated 31 October 1986 where Wee Chong Jin CJ stated as follows:

Dealing with this quote by Wee CJ, Hwang JC stated as follows at [48]–[49]:

Hwang JC made the observations he did based on reference to the provisions of the Supreme Court of Judicature Act (Cap 322, 1985 Rev Ed) (the “1985 SCJA”). As the case was heard on 31 August 1992, that was the version of the Supreme Court of Judicature Act then in force. In that version, there was no provision for submission to jurisdiction. Instead, the 1985 SCJA provided as follows:

It was only in the 1993 SCJA that the proviso as to submission to jurisdiction was introduced. It is therefore clear that Hwang JC’s objections to Wee CJ’s reliance on submission as a basis for jurisdiction have been met by statutory amendment. That said, the observations in Indo Commercial Society that the court’s jurisdiction is founded on statute, and that the requirements in ss 16 and 17 SCJA must be satisfied, remain good law as I observed above at [23].

There is a separate gloss to the discussion above: as may be seen from the excerpt of the 1985 SCJA reproduced at [48] above, the Singapore High Court under s 16 had “jurisdiction to hear and try all civil proceedings”. This was amended in 1993 to reflect “jurisdiction to hear and try any action in personam”. This amendment had significant implications on the scope of subject-matter jurisdiction under the SCJA, which I discuss in the next section.

The scope of subject-matter jurisdiction under the SCJA

The question is whether the subject-matter jurisdiction under ss 16 and 17(1) SCJA encompasses the present situation involving a foreign bankruptcy statute. The wording under s 16(1) SCJA suggests that the subject-matter jurisdiction granted to the High Court is unlimited. I alluded to this earlier (see [45] above). In this regard, I agree with the observations made by Prof Yeo at Yeo’s Chapter ([23] supra) at pp 251 and 257 that:

Nevertheless, this unlimited subject-matter jurisdiction, specifically conferred under s 16(1) SCJA, can still be qualified. As Prof Yeo notes in Yeo’s Chapter at p 257:

Prof Yeo’s observations are corroborated by an examination of the legislative history of the SCJA. As noted above at [50], the phrasing of the s 16 SCJA was changed from “jurisdiction to try all civil proceedings” to “jurisdiction to hear and try any action in personam” in 1993. The rationale behind this amendment, according to the then-Minister for Law, Dr S Jayakumar, was so that the jurisdiction of the High Court of Singapore would be brought in line with that of the English High Court of Judicature (Parliamentary Debates Singapore: Official Report (12 April 1993) vol 61 at columns 94 and 95). As the English High Court possesses unlimited subject-matter jurisdiction (a point Prof Yeo also notes in the extract above at [51]), the Singapore High Court’s jurisdiction would now similarly be unlimited. This is a key difference between the 1985 SCJA and the 1993 SCJA.

It follows, from legislative intent as reflected in the amendments, that the limits to the general rule of unqualified subject-matter jurisdiction are a matter of common law, not statute. There are three broad categories of exceptions under common law, referred to also as areas of non-justiciability:

(a) It is well-established that disputes involving foreign revenue laws are deemed as non-justiciable for the reason that they are “an extension of sovereign power which imposed the taxes, and that an assertion of sovereign authority by one State within the territory of another, … is (treaty or convention apart) contrary to all concepts of independent sovereignties”: Relfo Ltd (in liquidation) v Bhimji Velji Jadva Varsani [2008] 4 SLR(R) 657 at [53], citing Government of India, Ministry of Finance (Revenue Division) v Taylor and another [1955] 1 AC 491 at 511.

(b) Similarly, areas such as foreign penal, land and public laws have been regarded as beyond the High Court’s jurisdiction. It has indeed been regarded as a long-standing rule of the common law – under the Moçambique rule – that the Singapore court does not have subject-matter jurisdiction over disputes concerning foreign immovable property: see Murakami Takako ([20] supra) at [9].

(c) In some jurisdictions, foreign intellectual property rights are deemed non-justiciable as a matter of subject-matter jurisdiction: see Tyburn Productions Ltd v Conan Doyle [1991] Ch 75; Potter v Broken Hill Pty Co Ltd (1906) 3 CLR 479. This area of law is still developing, but the UK Supreme Court has expressed caution (and rightly so) over whether foreign intellectual property rights would be justiciable before the UK courts: see Lucasfilm Limited and others v Ainsworth and another [2011] UKSC 39. This is because such issues, in particular patent rights, may involve sensitive subject matter that may be of great interest or commercial significance to the foreign state in which the intellectual property was created/invented/first registered.

In sum, the position is that: the Singapore court has unlimited subject-matter jurisdiction, unless or until prohibited either by legislation or case law. This interpretation is, in fact, borne out on a plain and ordinary reading of s 16(1) SCJA itself. I disagree with the Defendants’ contention that the Singapore court can only be seised of jurisdiction where such is conferred by some “written law”. Not only would requiring such an enabling statute fly in the face of the wording of s 16(1) SCJA, it raises the question why the common law exceptions were necessary in the first place. In other words, the Defendants’ argument erodes the fundamental dichotomy between a rule and an exception. Another problem is this: if we accept the Defendant’s argument that subject-matter jurisdiction is incrementally developed over time, does that mean the courts are precluded from being seised of jurisdiction over such matters until the legislature acts, even where such matters are linked to our jurisdiction? That cannot be.

In this connection, I note that the Defendants had rightly argued that ss 16(2) and 17 SCJA involved questions of subject-matter jurisdiction. Section 16(2) SCJA deals with both in personam and subject-matter jurisdiction. Section 17 deals in greater particularity with various aspects of jurisdiction, including over subject-matter, person, things and causes: Yeo’s Chapter ([23] supra) at p 256. Neither ss 16(2) nor 17(1)(c), however, serve to limit the subject-matter jurisdiction granted under s 16(1) SCJA. Sections 16(2) and 17(1) make clear that the provisions contained therein are without prejudice to the generality of ss 16(1) and 16 respectively.

The untenability of the Defendants’ position is apparent when one contrasts the language of ss 16(2) and 17(1) with that of s 17A(1) SCJA. As mentioned above at [33], the s 17A(1) SCJA was introduced to delineate the respective jurisdictions of the High Court and the Syariah Court. Section 17A(1) SCJA thus explicitly states:

This is an example of a limiting provision. In contrast, like s 16(1) SCJA, both ss 16(2) and 17(1) utilise the permissive language of “shall have jurisdiction”, and merely spell out with greater specificity instances in which the court has jurisdiction.

Accordingly, I find that as a starting point, the Singapore High Court does have general subject-matter jurisdiction by virtue of s 16(1) SCJA; and its specific subject-matter jurisdiction is in no way circumscribed by s 17(1) SCJA.

Subject-matter jurisdiction in the present dispute

The next step is to inquire whether there is any reason peculiar to the present subject-matter, ie, foreign insolvency laws, in respect of which the court should or should not be seised of jurisdiction. This takes me to the three arguments raised by parties noted above at [21]–[22].

The UNCITRAL Model Law on Cross-Border Insolvency

The Defendants first point to the developments leading up to the adoption of the UNCITRAL Model Law as showing that the Singapore court does not have jurisdiction to render assistance in aid of foreign bankruptcy proceedings. In order to reach their conclusion, the Defendants’ argument runs as follows:

(a) Under the UNCITRAL Model Law, as partially adopted by Singapore via s 354B of the Companies Act (Cap 50, 2006 Rev Ed) (“Companies Act”), a plaintiff is able to apply for an injunction in Singapore if this was in the context of corporate insolvency.

(b) The same legislative developments, however, have not occurred in relation to bankruptcy law. The relevant provisions under the UNCITRAL Model Law do not apply to the personal bankruptcy of individuals, which is the case at hand.

(c) The Singapore court can thus only have subject-matter jurisdiction if legislative amendments, similar to s 354B of the Companies Act, were made in relation to matters of personal bankruptcy. This is further bolstered by the fact that such legislative deliberations turn on “myriad factors including the question of reciprocity by the foreign state in recognising Singapore proceedings all of which are outside the purview of the [court]”.

To provide context, the UNCITRAL Model Law was introduced into Singapore by way of the 2017 amendments to the Companies Act. Under these amendments, s 354B of the Companies Act was enacted. This section provides that the UNCITRAL Model Law as set out in the Tenth Schedule to the Companies Act has force of law in Singapore. The UNCITRAL Model Law generally applies where “assistance is sought in Singapore by a foreign court or a foreign representative in connection with a foreign proceeding”: Art 1(1)(a) UNCITRAL Model Law. A “foreign representative” is then defined as being a representative appointed by a foreign court to control or supervise the affairs of a debtor: Art 2(1) UNCITRAL Model Law.

The preamble to the UNCITRAL Model Law itself clearly states its purpose to “provide effect mechanisms for dealing with cases of cross-border insolvency”; and to promote the objectives, inter alia, of “greater legal certainty for trade and investment” (UNCITRAL Model Law Preamble (b)) and “facilitation of the rescue of financially troubled businesses” (UNCITRAL Model Law Preamble (e)). This purpose behind the introduction of the UNCITRAL Model Law is also evident from the speech by Mr Edwin Tong at the second reading of the bill to amend the Companies Act (Parliamentary Debates Singapore: Official Report (10 March 2017) vol 94 (Edwin Tong Chun Fai, Member of Parliament for Marine Parade GRC). In Mr Tong’s speech, he stated as follows:

One of the amendments Mr Tong then went on to refer to was the adoption of the UNCITRAL Model Law. The Defendant thus correctly points out that the UNCITRAL Model Law was introduced into Singapore in aid of corporate insolvencies.

That, however, is as far as I can agree with the Defendants. The logical result of the Defendants’ argument would be that prior to the introduction of the UNCITRAL Model Law, the Singapore court did not have subject-matter jurisdiction to render assistance in aid of foreign corporate insolvencies. That simply cannot be the case.

The existence of such jurisdiction was amply demonstrated in a decision pre-dating the introduction of the UNCITRAL Model Law, Beluga Chartering GmbH (in liquidation) and others v Beluga Projects (Singapore) Pte Ltd (in liquidation) and another (deugro (Singapore) Pte Ltd, non-party) [2014] 2 SLR 815 (“Beluga Chartering”). Beluga Chartering concerned a German-incorporated company, Beluga Chartering GmbH (in liquidation), that was initially wound-up in Germany, with a German liquidator appointed. The company was subsequently wound-up in Singapore, with a set of Singapore liquidators appointed. The company’s wholly owned subsidiaries, which were incorporated in Singapore (the “Subsidiaries”) brought a claim against Beluga Chartering GmbH (in liquidation) for agency work performed for the latter and obtained judgment in default. Beluga Chartering GmbH (in liquidation)’s only asset in Singapore was owed by the non-party deugro (Singapore) Pte Ltd to Beluga Chartering GmbH (in liquidation) (the “deugro Asset”). The Singapore liquidators thus filed an application to ascertain whether they were entitled to remit the deugro Asset to Germany, that being the seat of the principal liquidation, notwithstanding the existence of the Subsidiaries’ unsatisfied judgment debt.

What is relevant for present purposes is the Court of Appeal’s discussion of the common law ancillary liquidation doctrine at [56]–[60] as follows:

The extract above from Beluga Chartering makes several points clear. First, the ancillary liquidation doctrine encompasses a wide range of powers allowing the Singapore court to render assistance. This was alongside the power to grant recognition of the title of the foreign liquidator and recognition of the foreign liquidation proceedings: Beluga Chartering at [86]–[99]. The crucial point is that these powers are in relation to foreign insolvency proceedings, indicating that the court does have subject-matter jurisdiction.

Secondly, and more crucially, such powers were long-established as part of Singapore’s common law even before the adoption of the UNCITRAL Model Law. It thus cannot be said that the UNCITRAL Model Law conferred such jurisdiction on the Singapore court in respect of foreign liquidation proceedings. As the Plaintiff rightly notes, it was a jurisdiction that the Singapore court already had.

What then was the utility of introducing the UNCITRAL Model Law? To answer this, I refer once again to Mr Tong’s speech where he stated as follows:

The phrase of “supplement existing laws” where the “Companies Act [does] not assist in the facilitation of cross-border insolvencies” indicates that a lacuna previously existed under our insolvency regime. That lacuna, however, was not in relation to the court’s subject-matter jurisdiction, as evident from Re Pacific Andes Resources Development Ltd and other matters [2018] 5 SLR 125 (“Pacific Andes”), the same decision referred to by Mr Tong.

In Pacific Andes, Pacific Andes Resources Development Ltd (“PARD”), Parkmond Group Limited (“PGL”), Pacific Andes Enterprises (BVI) Limited (“PAE”) and Pacific Andes Food (Hong Kong) Limited (“PAF”) each filed applications under s 210(10) of the Companies act for moratoria against proceedings brought or to be brought against them by their creditors, both in Singapore and elsewhere. The court allowed the applications and granted two sets of orders, the “PARD orders” in relation to PARD, and the “Obligor Orders” in relation to PGL, PAE and PAF. Both sets of orders provided that the moratoria were as regards “actions or proceedings in Singapore or elsewhere”. A question thus arose as to whether the court had powers under s 210(10) of the Companies Act to restrain the commencement or continuation of proceedings elsewhere by creditors within and subject to the jurisdiction of the court. The court held that s 210(10) could not be construed as conferring extra-territorial jurisdiction. This was because “a scheme of arrangement is territorial in nature and therefore the protective relief that s 210(10) offers to facilitate a scheme ought to also be territorial”: Pacific Andes at [18]. Crucially, the court then went on to consider a counter argument raised by counsel, at [19]:

It is apparent from the extract above that the court did, in fact, possess subject-matter jurisdiction over the scheme proposed in Pacific Andes. It also had in personam jurisdiction over creditors who participated in the scheme, and whose debts were legitimately subject to the scheme. I have no reason to doubt the reasoning of Kannan Ramesh JC (as he then was) as to the powers that the court has under s 210(10) of the Companies Act. I note, however, that Ramesh JC noted that “[t]he court has subject matter jurisdiction by reason of s 210 [of the Companies Act]” [emphasis added]. In my view, Ramesh JC was not suggesting that subject-matter jurisdiction was statutorily conferred by the Companies Act. The Companies Act simply clarified or affirmed that the Singapore High Court had subject-matter jurisdiction in the specific context of schemes of arrangement under the Companies Act. This would be in line with the pre-existing unlimited subject-matter jurisdiction pursuant to s 16 SCJA (see [34], [45] and [55] above). This point is further bolstered by the fact that the common law ancillary liquidation doctrine is well-entrenched and exists beyond s 210 of the Companies Act.

The only limiting factor was that s 210(10) did not confer the power, or the extra-territorial jurisdiction, to restrain the commencement or continuation of proceedings elsewhere. This harks back to the distinction in the definitions drawn in Indo Commercial Society ([23] supra), between the authority of a court to hear a case (ie, jurisdiction) and the power of the court to grant particular reliefs claimed.

It was this power, or extra-territorial jurisdiction, conferred under the Companies Act that was sought to be expanded through the introduction of the UNCITRAL Model Law. Subject-matter jurisdiction, or the existence thereof, was never the target of the amendments; the courts always had such subject-matter jurisdiction in relation to foreign insolvency proceedings, as explained above at [65]–[69].

The Defendant has thus failed to even demonstrate that the UNCITRAL Model Law conferred subject-matter jurisdiction that did not already exist.

Accordingly, the Defendant’s argument in this regard again suffers from the same fundamental misconception of law. As stated above at [55], the Singapore court does not require enabling legislation in order to have jurisdiction in any particular subject-matter. Such subject-matter jurisdiction already exists by virtue of s 16(1) SCJA. The Defendant has not pointed to any particular article or provision within the UNCITRAL Model Law or elsewhere that indicates otherwise.

Section 107(1) of the Cayman Bankruptcy Law

Having decided as above, it is not strictly necessary for me to deal with this issue of s 107(1) of the Cayman Bankruptcy Law, as well as the doctrine of modified universalism. For completeness, however, I set out the arguments of parties and also my views on the matter.

The Defendants argue that s 107(1) of the Cayman Bankruptcy Law does not serve to confer subject-matter jurisdiction on the Singapore court to hear the matter for several reasons:

(a) First, only Singapore legislation can confer subject-matter jurisdiction upon the Singapore court.

(b) Secondly, the Plaintiff’s own Cayman Law expert Mr Henderson QC, accepts this in the expert report that he provided because he states at paragraph 14 that:

(c) Thirdly, the jurisdictional provisions under the Cayman Bankruptcy Law themselves only seek to confer jurisdiction on the Cayman courts and not to any foreign courts.

I agree with the Defendants in this respect. A foreign legislation such as s 107(1) of the Cayman Bankruptcy Law cannot be the basis upon which the Singapore court’s subject-matter jurisdiction is founded. Such jurisdiction must be grounded in Singapore legislation, in this case s 16(1) SCJA as stated above at [23]–[59].

This was not a point that the Plaintiff dealt with head-on at the hearing before me. Instead, the Plaintiff argued that the Singapore court is no stranger to adjudicating on matters relating foreign law, and that its powers are not limited simply because a claim or rule arose under a foreign statute. Heavy reliance was placed on the English decision of Phrantzes v Argenti ([29] supra).

In Phrantzes v Argenti, the plaintiff was a Greek national who had recently married in England. Having done so, she brought proceedings against her father, the defendant, seeking a declaration that he was obligated under Article 1495 of the Greek Civil Code to provide her with a dowry. Such a dowry was property granted to the husband and was constituted by a contract entered into with the husband by a notarial deed. Should a bride’s father fail to provide a dowry, the bride had a cause of action in the Greek courts to obtain an order requiring him to conclude a dowry contract with the groom. Counsel for the defendant mounted the argument, which Lord Parker CJ recorded as follows at 31–32:

This argument, however, was rejected by Lord Parker CJ, who stated at 33–34 that:

As a starting point, Lord Parker CJ thus regarded the English courts as having subject-matter jurisdiction, notwithstanding the fact that the claim was based on Greek legislation. This, in essence, was the reason for the Plaintiff’s reliance on the case: that the mere fact that the cause of action arises under a foreign legislation is no bar to it being adjudicated in Singapore. That surely must be correct. Going beyond this, in my view, Phrantzes v Argenti also demonstrates the point I made earlier at [55] that: the courts have unlimited subject-matter jurisdiction, unless or until that is precluded by some legislation or case law. That position is codified in Singapore by way of s 16(1) SCJA, retaining the general unlimited jurisdiction of the Singapore court: Yeo’s Chapter ([23] supra) at p 257.

It should be noted that ultimately, in Phrantzes v Argenti, Lord Parker CJ held that the Plaintiff was not entitled to the relief sought. This was because the right provided to the plaintiff was for an order requiring the father to instruct a notary public to draw up the contract in accordance with the directions of the court. In order to provide such directions, however, the court necessarily had to exercise a considerable amount of discretion that would appropriately have been the remit of the domestic Greek courts. On that basis, Lord Parker CJ declined to exercise jurisdiction over the matter at 34–35 as follows:

Additionally, English law did not provide for the relief sought by the plaintiff, to the extent that the English remedies did not “harmonise with the right according to its nature and extent as fixed by the foreign law”: Phrantzes v Argenti at 35.

These were extremely valid concerns before Lord Parker CJ, and once again emphasise the fact that certain matters have been regarded as non-justiciable (see above at [53]). The Defendants, however, have not demonstrated how rendering assistance in foreign avoidance claims violates any fundamental sense of justice, offends any public policy or involves such a large measure of discretion such that the court should decline to exercise jurisdiction in this instance. Further, unlike the situation in Phrantzes v Argenti, the power to set aside disputed disposal of assets in the context of bankruptcies is a familiar remedy available in Singapore.

The principle of modified universalism

The Plaintiff’s next argument was that the principle of modified universalism calls upon the Singapore court to hear claims involving foreign insolvency proceedings.

Modified universalism refers to the idea of “domestic courts acknowledging the effects and status of foreign insolvency proceedings in the place of a company’s incorporation [and] carries with it a further principle: that the courts will actively assist the foreign insolvency proceeding”: Richard Sheldon QC, Cross-Border Insolvency (4th Ed, Bloomsbury) at 6.11. This principle has been recognised and endorsed by the Singapore court in Beluga Chartering ([66] supra) at [99], Re Opti-Medix Ltd (in liquidation) and another matter [2016] 4 SLR 312 at [17], Re Taisoo Suk (as foreign representative of Hanjin Shipping Co Ltd) [2016] 5 SLR 787 (“Re Taisoo Suk”) at [15]–[18], Re Gulf Pacific Shipping Ltd (in creditors’ voluntary liquidation) and others [2016] SGHC 287 at [10] and Heince Tombak Simanjuntak and others v Paulus Tannos and others [2019] SGHC 216 (“Heince Tombak”) at [21]–[22].

This principle of assistance also applies as much to personal bankruptcies as to corporate insolvencies, as recognised by Aedit Abdullah J in Heince Tombak at [21].

That said, as the Plaintiff candidly acknowledges, the principle of modified universalism only operates as a broad statement of principle. This was explicitly recognised in Beluga Chartering, where the Court of Appeal stated at [99] as follows:

The existence and adoption of the principle in Singapore’s insolvency and bankruptcy laws hence only serves as a general indication that the courts will be less inclined to find that it has no subject-matter jurisdiction. Logically, the existence of such subject-matter jurisdiction is a distinct, and indeed anterior, question that must be answered. The court would be getting ahead of itself by utilising the principle of modified universalism to find such subject-matter jurisdiction. This issue is, in any event, moot in the present case given my findings in the preceding sections of this Judgment.

Whether the Defendants have submitted to the Singapore court’s jurisdiction

As its primary line of argument on in personam jurisdiction, the Plaintiff argues that the Defendants have submitted to the Singapore Court’s jurisdiction for the following reasons:

(a) The Defendants did not object to the Court’s jurisdiction for about four and a half months from the time when they were served with the Singapore injunction until the setting-aside application.

(b) The Defendants invoked the Singapore court’s jurisdiction on multiple occasions.

(c) The application to vary the injunction in this case should uniquely be taken as submission to the court’s jurisdiction as the Defendants specifically chose the Singapore court and made the application without a concurrent jurisdictional challenge.

The Defendants have met the Plaintiff’s arguments head-on, and argue that they have not submitted to the court’s jurisdiction because:

(a) They expressly reserved their right to challenge the Singapore court’s jurisdiction. The burden is thus on the Plaintiff to demonstrate how the Defendants can be considered as having submitted to the Singapore court’s jurisdiction.

(b) Apart from mere silence or inaction being insufficient to amount to submission, there were good reasons for the delay in filing the jurisdictional objections.

(c) In any case, the period of delay was within the time limits of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) (“Rules of Court”) for mounting a jurisdictional challenge as the Suit had been stayed by the Plaintiff’s own application.

(d) The Defendants cannot be taken to have submitted to the jurisdiction of the Singapore court based on the lack of any objection raised before the Cayman courts.

(e) The application to vary the injunction did not amount to submission as it was consistent with the Defendant’s earlier reservation of rights.

(f) The Plaintiff would not suffer any prejudice should the Defendants be allowed to pursue the jurisdictional challenge.

The principles 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 summarised thus:

(a) Whether a party is taken to have submitted to the court’s jurisdiction is a question of fact in each case: Zoom Communications at [32]; Shanghai Turbo at [32].

(b) A defendant is taken to submit to jurisdiction when he takes a step in the proceedings that is incompatible with the position that the Singapore court has no jurisdiction. This test has been succinctly summarised as follows:

(i) Such submission may be inferred through a “step that is ‘only necessary or only useful’ if: (a) any objection to the existence of the local court’s jurisdiction has been waived; or (b) no such objection has ever been entertained at all”: Zoom Communications at [43]; see also Shanghai Turbo at [44] and Dicey, Morris and Collins on the Conflict of Laws (Lord Collins of Mapesbury gen ed) (Sweet & Maxwell, 15th Ed, 2012) at paras 11-129 to 11-130.

(ii) Phrased differently, a party’s conduct only amounts to a submission where it “cannot be explained, except on the assumption that the party in question accepts that the court should be given jurisdiction”: Shanghai Turbo at [37], citing Global Multimedia International Ltd v Ara Media Services [2007] 1 All ER (Comm) 1160 at [27].

(c) Consequently, any conduct amounting to submission must be clear and unequivocal: Zoom Communications at [44]; Shanghai Turbo at [37]–[38].

Having heard parties’ submissions on the matter, I find that the Defendants had indeed submitted to the court’s jurisdiction, for two cumulative reasons: the failure of the Defendants to file a formal jurisdictional challenge until 9 June 2020, coupled with the steps they have taken in these proceedings.

The Defendants’ failure to file a prompt jurisdictional challenge

I note at the outset that the Defendants had reserved their position to challenge the court’s jurisdiction. This was done extremely early in the proceedings, in the first Defendant’s first affidavit filed on 6 February 2020. It was thus clear that by this point in time, the Defendants were aware that it was open to them to object to the court’s jurisdiction, should they choose to do so. This objection, however, did not materialise for nearly four and a half months, when the present jurisdictional challenge was filed on 9 June 2020.

The Defendants explain that there were “good reasons” for this delay, and it was not that they had sat on their hands for the entire period. They claim that at the time, they needed funds for their Singapore lawyers’ advice and representation. As a result, the first defendant directed a funds transfer to the Defendants’ solicitors, Shook Lin & Bok. This transfer was objected to by the Plaintiff, who alleged that it was an improper transfer in breach of the Singapore Injunction. The Defendants thus claim that they were “left with no choice” but to file the Clarification Application. The Clarification Application was only heard on 20 April 2020. In May 2020, the Defendants thus sought counsel’s advice and filed the present application to challenge the Singapore court’s jurisdiction.

This account of impecuniosity and a rush to secure funding for the sole purpose of challenging the Singapore court’s jurisdiction suffers from several defects. First, if the Defendants truly had in mind the aim of challenging the Singapore court’s jurisdiction, the natural course of action would have been to apply to discharge the Singapore Injunction on the ground that the court lacked jurisdiction. There was simply no need to take the roundabout route of filing the Clarification Application, purportedly to obtain funds, so that they could then commence the present application.

Secondly, as was rightly pointed out by Mr Ong, the Plaintiff had consented to the payment of US$20,000 to the Defendants’ solicitors on 3 March 2020. Such funds would have been sufficient for the Defendants to bring a jurisdictional challenge before the courts slightly over a month after filing the first Defendant’s 6 February 2020 affidavit.

Thirdly, having personally heard the Clarification Application, I did not believe that the Defendants simply had no access to other funds for their expenses. Indeed, as I held at the Clarification Application, it appeared that apart from the Singapore assets subject to the Singapore Injunction, there were also trust assets outside of Singapore that could be used for the Defendants’ needs despite the first Defendant’s protestation that this was subject to the discretion of the trustee whom she herself appointed. At that time, as I had also considered the possibility that such assets might be subject to the Cayman Injunction, I had provided the Defendants an opportunity to address me on that. Unfortunately, they did not provide any information. My observations in this regard have since been proven to be correct. In the present application, the Plaintiff has exhibited a document indicating that the Defendants had, on 25 May 2020, obtained substantial funds from the Pelletier Family Trust. While this was after the hearing on 20 April 2020, it brings into question the Defendants’ assertion of insufficient funding to meet expenses. When seen in totality, the Defendants’ account of events is far from the cri de coeur that they make it out to be.

The Defendants also argue, in this connection, that they should not be taken to have submitted to the court’s jurisdiction because the present application was within the time limit under the Rules of Court. Specifically, O 12 r 7(1) of the Rules of Court provides as follows:

The relevant sub-provisions are (a), (c), (f) and (g), which are all applications that the Defendants presently seek. In this regard, the Defendants argue that the timelines for the relevant applications have been extended by virtue of the stay granted in the Stay Application (as canvassed above at [14(b)]). As a result, the present applications do not fall afoul of O 12 r 7(1) of the Rules of Court.

This argument misses the point. Order 12 r 7(1) stipulates the time limits for challenging the court’s jurisdiction; its effect is to disallow challenges made beyond such limits, unless an extension has been granted: Singapore Civil Procedure 2020 vol 1 (Chua Lee Ming gen ed) (Sweet & Maxwell, 2020) (“Singapore Civil Procedure”) at para 12/7/4. Contrary to the Defendants’ submission, O 12 r 7(1) does not have the added effect of negating any submission to jurisdiction simply because challenges are subsequently brought within the time limits. It is accordingly irrelevant vis-à-vis the issue of submission.

Assuming, for the sake of argument, that O 12 r 7 of the Rules of Court is relevant, the Defendants’ argument – that the timelines for the relevant applications have been extended by virtue of the stay granted (see [103] above) – still would gain no traction. The order granted pursuant to the Stay Application expressly stated that the Plaintiff’s action was stayed save for “the application for injunction prohibiting disposal of assets against the [Defendants], and service out of jurisdiction on the [Defendants]” [emphasis added]. If the application for leave to serve out of jurisdiction was not stayed, there is no reason why the timeline for any potential challenge to the grant thereof would be extended. The fact that the timelines for defence had been extended is irrelevant and does not, in any way, grant a right to extension of time to object to the grant of leave for service out of jurisdiction.

Steps taken by the Defendants in the proceedings

Further, and importantly, the policy underlying O 12 r 7 of the Rules of Court is to ensure that a defendant should not be regarded as having submitted to jurisdiction simply because he entered appearance, inter alia, to contest that jurisdiction or seek a stay of proceedings: Singapore Civil Procedure at para 12/7/1. It is for that very policy that, as stated in Singapore Civil Procedure at para 12/7/3(3):

The central question is whether the Defendants had taken a step or steps inconsistent with objecting to the court’s jurisdiction. On balance, I find that the Defendants had taken such steps that were inconsistent with their reservation or challenge to jurisdiction.

First, the Defendants’ failure to raise a formal challenge constituted more than mere inaction. I have alluded to this above. The Defendants had reserved their own rights to challenge the court’s jurisdiction, but failed to exercise the rights in prompt fashion and (as explained) have not offered any good reason why they did not do so. Thus, in my view, there is no other explanation than that they had accepted the court’s jurisdiction at the time.

Beyond their inaction, the Defendants had, in fact, taken an active step in the proceedings, through the Clarification Application. Through that application, the Defendants had sought the court’s determination on, inter alia, (a) the appropriate limit of the first Defendant’s living expenses; (b) whether the Defendants were at liberty to utilise the Singapore assets to pay for legal representation in other jurisdiction; (c) whether the first Defendant could pay for the legal expenses of other parties; and (d) whether the first Defendant could be permitted to pay any future sums of money due to various third parties from funds in her Singapore bank account. The variations sought were wide-ranging and encompassed various issues but the inference to be drawn is clear: they all spoke to an acceptance that the Singapore Injunction would remain in place and that the Defendants were only trying to determine the limits that they could work around. These are acts evincing, in these circumstances, acceptance of the court’s jurisdiction.

The Defendants point to the case of Shanghai Turbo ([95] supra) in support of their case. In Shanghai Turbo, the plaintiff sued the defendant for breach of a service agreement, obtaining leave to serve out of jurisdiction on the defendant in China. The plaintiff also sought, and was granted, two injunctions, one against the defendant and another against two non-parties. The non-parties filed a summons to vary the injunction granted against them, in which the defendant participated, arguing for the injunction to be varied despite not being a party. An issue thus arose as to whether the defendant had submitted to the court’s jurisdiction despite his express reservation of rights. The Court of Appeal held that he had submitted to jurisdiction. This was because the application to vary the injunction brought by the non-parties was, in substance, an application for an injunction against the plaintiff; and the defendant had participated in this despite not being compelled to do so (Shanghai Turbo at [33]). Crucially, the court thus concluded that the defendant’s conduct was not merely defensive and amounted to an invocation of the court’s jurisdiction (Shanghai Turbo at [42]).

With respect, Shanghai Turbo does not support the Defendants’ case here. While that case makes clear that a clearly offensive step in the proceedings will usually be construed as invoking the court’s jurisdiction, that does not mean that that such step is essential for a finding of submission to jurisdiction. The principal inquiry still remains as that set out above in [95(b)(i)]–[95(b)(ii)], as well as the scrutiny of any steps taken by the Defendant, as explained at [107] above.

Relevant, also, is the Application to Restore Funds (see [17] above). This application would not be in and of itself dispositive. But in context, it is clear that the actions of the parties pursuant to that application buttress my finding that the Defendants have submitted to the court’s jurisdiction. It must be remembered that in the Application to Restore Funds, the parties agreed that the Defendants were to, inter alia, provide the Plaintiff with evidence of payments made from the GPM account since the Singapore Injunction was served on 23 January 2020. These matters pertaining to the GPM account, and the parties’ agreement in regard thereto, are substantive matters that are at the heart of the Singapore Injunction, which was issued in exercise of this court’s jurisdiction. One would have expected the Defendants to have adopted an entirely different course of action if they intended to challenge the court’s jurisdiction; they would not have substantively participated in the Application to Restore Funds, or even if they did, they ought not to have given their agreement to facilitate the Plaintiff’s investigation of funds falling within the scope of the Singapore Injunction. Their conduct speaks to their having submitted to the court’s jurisdiction.

In my view, the various steps earlier taken by the Defendants in these proceedings collectively indicate that this challenge to jurisdiction was a much-belated afterthought, after they had already submitted to the court’s jurisdiction. This is perhaps best illustrated by the fact that immediately following the Clarification Application, the Defendants’ first recourse was still not to challenge the court’s jurisdiction. Instead, as mentioned above at [16], they filed the Leave to Appeal Application. That, if anything, was the clearest indication that the Defendants submitted to the court’s jurisdiction, the exercise of which they sought to invoke. In their submissions, the Defendants note that they will be withdrawing the Leave to Appeal Application, indicating that the Singapore Injunction “will stand, or fall” depending on my finding here. In this vein, they have also written to the Plaintiff’s solicitors on 13 July 2020, indicating the same. This belated volte-face does not assist them for the Defendants have now been hoisted by their own petard and have submitted to the court’s jurisdiction.

Whether the Singapore court has in personam jurisdiction over the defendants: forum non conveniens

As a result of the Defendants’ submission to the Singapore court’s jurisdiction, the courts have in personam jurisdiction over the Defendants under s 16(1)(b) SCJA. There however remains a further issue in relation to in personam jurisdiction: that of the proper forum. Where a foreign defendant is sued in Singapore, the issue of proper forum arises at two different stages of the proceedings. The first stage is when the plaintiff applies for leave to serve the defendant out of jurisdiction under O 11 r 1 of the Rules of Court. To obtain such leave, three requirements must be satisfied, namely that:

These requirements are well-established and endorsed in various decisions including Zoom Communications ([95] supra) at [26], Siemens AG v Holdrich Investment Ltd [2010] 3 SLR 1007 (“Siemens AG”) and PT Gunung Madu Plantations v Muhammad Jimmy Goh Mashun [2018] 4 SLR 1420 (“PT Gunung”) at [29].

At the second stage, after a foreign defendant has been served with the originating process, the issue of a proper forum arises again should that defendant seek a stay of proceedings on the ground of improper forum, albeit if the issue was dealt with in the first stage (in an application for service out of jurisdiction), there may not strictly be a need to rehash the issue in the second stage. This is subject of course to any fresh points raised by the foreign defendant, given that as a matter of practicality, applications under the first stage are often heard ex parte.

It is generally accepted that the same test applies at both of these stages, namely, the two-stage test enunciated in Spiliada Maritime Corporation v Cansulex Ltd (The Spiliada) [1987] AC 460 (the “Spiliada test”). Under the Spiliada test the court will first determine whether, prima facie, there is some other available forum that is clearly or distinctly more appropriate for the case to be tried in. If the court concludes that that there is, the court will deny leave to serve outside jurisdiction or (as the case may be) grant a stay unless there are circumstances by reason of which the justice of the case requires that a stay should nonetheless not be granted: Rappo, Tania v Accent Delight International Ltd and another and another appeal [2017] 2 SLR 265 at [68]–[69]; Rickshaw Investments Ltd v Nicolai Baron von Uexkull [2007] 1 SLR(R) 377; Best Soar Ltd v Praxis Energy Agents Pte Ltd [2018] 3 SLR 423 at [15].

The rare common ground between the parties to this hearing is that Singapore is forum non conveniens in respect of the Plaintiff’s claim under s 107(1) of the Cayman Bankruptcy Act. This was rightly, in my view, conceded by the Plaintiff early in the proceedings where in support of the Singapore Injunction, it stated as follows:

Under stage one of the Spiliada test, the Cayman Islands thus constitute the other forum that is more appropriate for the case to be tried, as per the Plaintiff’s concession. It is at this point that the parties’ arguments diverge.

The Defendants argue that as a result of such concession, the Plaintiff is unable to satisfy the requirements in Zoom Communications ([95] supra). Interpreting the language used by the Plaintiff as an application of the Spiliada test, the Defendants argue that stage two of the Spiliada test does not apply in the context of a Mareva injunction so as to confer jurisdiction on the court. In any event, there is no substantial injustice to the Plaintiff that would result from having the case heard in the Cayman courts.

On the other hand, the Plaintiff contends that in cases such as the present, where the court’s jurisdiction is invoked to obtain a Mareva injunction in aid of foreign proceedings, the forum conveniens requirement should not apply as it is “inherently ill-suited” to such situations. The fact that the Mareva injunction is to support foreign proceedings must of necessity mean that the foreign court, rather than the Singapore court, is forum conveniens.

There are thus two issues for me to deal with at this juncture, where Singapore is forum non conveniens:

(a) Whether the forum conveniens requirement may be dispensed with where a Mareva injunction is sought in aid of foreign proceedings; and

(b) Assuming the first issue is answered in the negative, whether stage two of the Spiliada test applies nevertheless so as to enable the Singapore court to assume jurisdiction in the interests of justice.

Before moving to these issues, I observe the unique circumstances at present, given my finding that the Defendants have submitted to the court’s jurisdiction by way of the steps (or lack thereof) they have taken in these proceedings (see [93]–[113] above). On its face, this situation presents an anomaly in so far as, on the one hand, the Defendants have submitted to the court’s jurisdiction (implying that the court has in personam jurisdiction), whereas on the other, the parties agree that Singapore is prima facie not the natural forum (suggesting that the court should decline to exercise jurisdiction).

In my view, this is no insurmountable hurdle. First, the apparent contradiction arises from the interface between my findings (on submission) and the parties’ arguments on forum non conveniens; the Defendants have maintained a consistent position (ie, submission is absent, and Singapore is not the natural forum). Secondly, there is a fine but real distinction between the existence of jurisdiction and the court’s willingness to exercise this jurisdiction (I elaborate below at [158]). Thirdly, and flowing from the second point, notwithstanding the submission of a party to the court’s jurisdiction, the court may proprio motu refuse to exercise its jurisdiction if the issue of natural forum arises and the court is not satisfied that Singapore is the natural forum. This arises from considerations of comity that undergird the doctrine of forum non conveniens as a principle of private international law. Consider the situation where parties submit to the Singapore court’s jurisdiction to determine a dispute which is clearly and indisputably connected to a foreign jurisdiction, and the justice of the case does not warrant resolution of the same in the Singapore court. In such cases, it would run against the tenor of international comity, and indeed the basal notion of reaching a fair and just resolution to the dispute, for the Singapore court to insist on exercising its jurisdiction in the face of a separate forum in which it would be clearly more suitable and just to hear the dispute. Accordingly, even though I have found for the Plaintiff on the issue of submission, the forum non conveniens issue merits serious consideration.

Whether the forum conveniens requirement may be dispensed with

The Mareva injunction, termed after the eponymous case of Mareva Compania Naviera SA v International Bulkcarriers SA; The Mareva [1980] 1 All ER 213, seeks to restrain a defendant from dissipating his assets to frustrate the enforcement of a plaintiff’s claim. It is a “potent tool” that has become “firmly entrenched in our legal system”: Bi Xiaoqiong (in her personal capacity and as trustee of the Xiao Qiong Bi Trust and the Alisa Wu Irrevocable Trust) v China Medical Technologies, Inc (in liquidation) and another [2019] 2 SLR 595 (“Bi Xiaoqiong”) at [1].

Despite its drastic effects, it should not be forgotten that the Mareva injunction remains, at its very core, ancillary to a main substantive cause of action. Its role is entirely supportive in function to that main action. Owing to this ancillary nature, the court’s jurisdiction to grant a Mareva is thus less clear when the justiciability of the main action is brought into question.

In Multi-Code Electronics Industries (M) Bhd and another v Toh Chun Toh Gordon and others [2009] 1 SLR(R) 1000 (“Multi-Code”), the plaintiffs had commenced an action in Malaysia against the five defendants over disputes concerning several escrow and share agreements. The plaintiffs also managed to obtain a worldwide Mareva injunction in Malaysia against the first and fourth defendants. The plaintiffs then commenced an action in Singapore against the first, third and fourth defendant seeking almost identical relief as that in the Malaysian action, and also obtained a Mareva injunction preventing them from disposing of their Singapore assets. The first, third and fourth defendants applied for the Singapore proceedings to be stayed, inter alia, on the ground of forum non conveniens. They also applied for the discharge of the Mareva injunctions against them.

Chan Seng Onn J found, on balance, that Malaysia was clearly the more appropriate forum as the dispute had much more to do with Malaysia. A stay of the Singapore proceedings was thus granted on the ground of forum non conveniens. Concurrently, Chan J also held that the court could maintain the Mareva injunction in aid of foreign proceedings under s 4(10) of the Civil Law Act (Cap 43, 1999 Rev Ed) (“CLA”) notwithstanding that the Singapore proceedings were stayed, stating at [112] as follows:

I acknowledge that in Multi-Code, the in personam jurisdiction over the defendants was never in doubt. The first and third defendants were Singapore citizens resident in Singapore and the fourth defendant was a company registered in Singapore: Multi-Code at [57]. Nevertheless, Chan J made clear that the court must first have in personam jurisdiction over a defendant before it can consider granting a Mareva injunction pursuant to s 4(10) of the CLA. In fact, Chan J specifically stated that the existence of in personam jurisdiction was a pre-requisite to the grant of the Mareva injunction (see Multi-Code at [85] and [99]). At [85] of his judgment, the learned judge specifically stated as follows:

A situation more analogous to the present facts arose in PT Gunung ([114] supra), where the plaintiff company commenced an action against the defendant, an ex-employee, alleging that the latter had breached several duties owed as director and employee. The plaintiff purported to serve the writ of summons on the defendant in Indonesia, subsequently obtaining a judgment in default of appearance against the defendant and a garnishee order to show cause in respect of the defendant’s three bank accounts in Singapore. When the defendant came to learn of the garnishee orders, he filed various applications in Singapore seeking, inter alia, an order that the court had no jurisdiction over him. In response, the plaintiff filed an application for a Mareva injunction in respect of the Defendant’s assets in Singapore. At the hearing before Woo Bih Li J, the plaintiff did not attempt to argue that Singapore was the forum conveniens when compared to Indonesia; and neither did it argue that it would be deprived of substantial justice if it was allowed to continue with the action in Singapore: PT Gunung at [31], [34] and [41]. The question thus arose whether the court had jurisdiction or power to grant a Mareva injunction in aid of foreign proceedings notwithstanding that Singapore was not the forum conveniens.

Woo J held that the court had no power in those circumstances. The decision in Multi-Code ([126] supra) was affirmed for the proposition that the court must first have in personam jurisdiction against a defendant before the power under s 4(10) of the CLA could be invoked: PT Gunung at [46]. Woo J’s observations at [49]–[50] are apposite in this regard:

While recognising the holdings in PT Gunung, the Plaintiff argued that parties there had not in fact contended or suggested that the requirement of forum conveniens was inapplicable or should not be read into O 11 r 2(2) of the Rules of Court as a pre-requisite for the grant of service out when the plaintiff applied for Mareva relief in support of foreign proceedings. Woo J thus did not have the benefit of full arguments on this point.

Even so, in my view, that is not a sufficient basis to depart from PT Gunung. In fact, it would appear that Woo J had specifically directed his mind to the interplay between a Mareva injunction and the forum conveniens requirement, making the following observations at [61]–[63]:

To further bolster their argument, the Plaintiff cited an article written by the Defendants’ own instructing counsel, Mr Probin Dass, “Singapore – Mareva Injunctions in Aid of Foreign Court Proceedings” (published 12 March 2019 on conventuslaw.com/report/Singapore-mareva-injunctions-in-aid-of-foreign/). Commenting on PT Gunung ([114] supra), Mr Dass writes that:

Preliminarily, I concur with the observations made by Woo J in PT Gunung at [30] that the legal basis for the forum conveniens requirement (as above at [114(c)]) appears to be O 11 r 2(2) of the Rules of Court. With due respect to Mr Dass, however, I am unable to agree that the open texture in the expression “proper one for service out of jurisdiction” facilitates doing away with the forum conveniens requirement. First, to do so would fly in the face of the weight of authorities that have long accepted the forum conveniens requirement as necessary for service out of jurisdiction, and as having its provenance in the expression “proper one for service out of jurisdiction”.

Secondly, as the law presently stands, the argument here conflates and impermissibly “telescopes” s 4(10) of the CLA into the requirements for service out of jurisdiction, borrowing the terms used by Woo J (PT Gunung at [50]). Logically, the need to establish in personam jurisdiction is anterior to any question involving a grant of Mareva injunction. It would be putting the cart before the horse to modify the requirements for in personam jurisdiction in order to accommodate a subsequent application for a Mareva injunction.

Faced with the weight of the authorities, the Plaintiff submitted that the requirement in O 11 r 2(2) of the Rules of Court that “the case is a proper one for service out of Singapore” requires re-interpretation where the Singapore court’s jurisdiction is invoked for the purpose of obtaining ancillary relief in support of foreign proceedings. A number of points were raised in support of this, which are worth canvassing in detail.

First, the Plaintiff pointed out that the commonly accepted understanding that Singapore must be forum conveniens traditionally utilised in accordance with the Spiliada test is not found in the language of O 11 r 2(2) of the Rules of Court but has its origins in pronouncements by the courts. Indeed, as was noted in Spiliada itself at 480–481, in the context of applications for service ex juris under Order 11:

Secondly, it was argued that the requirement that the case must be a “proper one” for service out of Singapore had never been considered or interpreted by the Court of Appeal in the context of a case where the jurisdiction of the Singapore Court had been invoked for the purposes of obtaining Mareva relief in support of foreign proceedings. For instance, Siemens AG ([114] supra), where the Court of Appeal accepted that the third requirement for leave for service out of jurisdiction was that Singapore must be forum conveniens, was not a case involving Mareva relief in support of foreign proceedings. I note that Zoom Communications ([95] supra) was also not such a case.

Thirdly, as a matter of principle, the court’s circumspect approach for service out of jurisdiction is partly due to the traditional notion that a foreigner having nothing to do with the local jurisdiction should not be inconvenienced by having to defend his rights in a foreign country. Reference was made to Ocean Steamship Co Ltd v Queensland State Wheat Board [1941] 1 KB 402 at 417, which states as follows:

In the Plaintiff’s view, these considerations play a lesser role in today’s interconnected and borderless world (referring to Multi-Code ([126] supra) at [117]). This was particularly so where the need for Mareva relief in Singapore was precisely because the Defendants had made a concerted effort to disperse their assets across various jurisdictions.

Lastly, it was submitted that the Spiliada test was developed to constrain judicial discretion in the context of selection between competing jurisdictions. Such constraint was necessary in the interests of comity between jurisdictions: Amin Rasheed Shipping Corporation v Kuwait Insurance Co [1984] 1 AC 50 at 65. In circumstances such as the present, where the court’s jurisdiction was invoked in aid and support of foreign proceedings, comity instead would dictate a more permissive approach allowing the court to deal with situations such as international fraud (relying on observations made in Multi-Code at [154]).

Having considered the submissions and authorities at great length, I find these arguments advanced by the Plaintiff to be eminently persuasive. I would have been inclined to adopt its submission that the requirement for forum conveniens would not be necessary in situations such as the present, in particular where transnational fraud is alleged and the principles of territoriality are, as it were, being exploited by the alleged fraudster. The obstacle to that, however, is that the change advocated for by the Plaintiff is one that is directly at odds with the observations of the Court of Appeal in Bi Xiaoqiong ([124] supra).

In Bi Xiaoqiong, the liquidator of China Medical Technologies, Inc and CMED Technologies Ltd (the “Companies”) commenced proceedings in Hong Kong and Singapore against several members of the former management. The principal allegation was that as much as US$521.8m has been fraudulently misappropriated by these members of the former management. Two separate suits were commenced in Hong Kong in August 2013 and December 2016. On 11 December 2017, the Hong Kong High Court also granted the Companies a worldwide Mareva injunction. On 13 December 2017, the Companies commenced Suit No 1180 of 2017 (“Suit 1180”) in the High Court of Singapore and also applied by way of Summons No 5689 of 2017 (“SUM 5689”) for a series of Mareva injunctions, to prevent the dissipation of assets in Singapore only. On 20 February 2018, the Companies applied to stay Suit 1180, save for proceedings in SUM 5689, pending the final determination of the Hong Kong suits. The Judge in the High Court heard both applications together, granting the Mareva injunction and allowing the application to stay Suit 1180. The appellant appealed the Judge’s decision on the grant of the Mareva injunction arguing, inter alia, that it was a pre-requisite to the exercise of the court’s power to grant interlocutory relief that the plaintiff have a cause of action that could terminate in a judgment in Singapore. Consequently, once a case was stayed, the court did not have the power to grant interlocutory relief.

The Court of Appeal rejected this argument, holding that the court retained a residual jurisdiction over the underlying cause of action such that a Mareva injunction could be granted even where a stay of that action was sought (at [104]). It was also critical that the temporary nature of a stay implied the possibility that the matter would be revived and fully dealt with, indicating that the action “remain[ed] on the court’s record, and [was] alive though asleep” (at [107]). A further reason for the Court of Appeal’s finding was that the Mareva injunction, regardless of how it was used, was premised on, and in support of, proceedings in Singapore (at [112]–[114]). This was also made clear in the observations at [118] as follows:

I am cognisant that Bi Xiaoqiong, like Multi-Code ([126] supra), involved a situation where the court already had in personam jurisdiction over the defendants. Nevertheless, the Court of Appeal made clear that the court should not grant a free-standing injunction in situations where the plaintiff has no intention, or indeed is unable, to pursue an action in Singapore. The natural implication of this was that the Singapore court would first have to have in personam jurisdiction over a defendant before it could even grant a Mareva injunction. This was observed by the Court of Appeal at [119] as follows:

These pronouncements in Bi Xiaoqiong therefore make clear that before any inquiry on injunction can be undertaken, the Singapore court must already possess jurisdiction over the defendant. As a consequence, Singapore would already need to be forum conveniens before a Mareva injunction can be granted.

By virtue of the holding in Bi Xiaoqiong, I do not accept the Plaintiff’s submission that in situations where Singapore is not forum conveniens, that requirement should be dispensed with to allow a Mareva injunction sought in aid of foreign proceedings. For completeness, I would note that the situation in the present case is not one in which a free-standing injunction was granted. There is a Singapore action for the injunction to latch on to, as analysed below at [160]–[162]. This Singapore action is distinct from the Plaintiff’s claim under s 107(1) of the Cayman Bankruptcy Act, for which Singapore is not the natural forum – this is critical to my eventual conclusion and must be borne in mind.

Several observations

Notwithstanding my conclusion above that the forum conveniens requirement remains a part of Singapore law, I pause to make several observations here. The ancillary, supportive, function of a Mareva injunction (as noted above at [125]) by very definition mandates the existence of a main action in which substantive rights are vindicated. Where jurisdiction already exists as of right, but the action is merely stayed, no issue arises because the action remains justiciable and able to ground a Mareva injunction.

As in this case, difficulties with the forum conveniens requirement arise where jurisdiction can only be established by leave of court allowing service out of jurisdiction. An anticipated or putative cause of action cannot be the basis for a Mareva injunction. Such difficulties may also arise where Singapore is not the natural forum even though a theoretical action falls within one of the heads of O 11 r 1 of the Rules of Court. In such cases, leave to serve out of jurisdiction would still not be granted and there would be no basis for a Mareva injunction.

In my view, the concerns raised by Mr Ong and Mr Dass (in his article) are extremely valid, from a practical point of view. The gridlock caused by the forum conveniens requirement has the potential to create a legal quandary for which the present state of the law proffers no elegant solution. As pithily put by Lord Nicholls of Birkenhead in his dissent in Mercedes Benz AG v Leiduck [1996] 1 AC 284 at 305:

This state of the law becomes more untenable when one considers that it may be allowing more instances of cross-border fraud and easy dissipation of assets to occur today. I have alluded to this in my observations above on the “exploitation” of the principle of territoriality by perpetrators of international frauds. These observations were also made by Prof Yeo in his paper “Private International Law: Law Reform in Miscellaneous Matters”, presented for consideration of the Law Reform Division of the Attorney-General’s Chambers (“Recommendations for Reform”). Advocating for reform of the jurisdictional rules to allow the courts to assume jurisdiction in instances where the substantive cause of action was not heard in Singapore, Prof Yeo stated at paragraph 49 as follows:

There is therefore, in my view, much force in the argument to allow the courts power to grant Mareva injunctions even where the substantive dispute may not be heard Singapore. This path forward is not an untrodden one. In fact, as recognised by Woo J in PT Gunung ([114] supra) at [55]–[56], at least two options are available:

Additionally, a move in this direction would bring us in line with s 12A of the International Arbitration Act (Cap 143, 2002 Rev Ed) where judicial remedies may be sought in aid of foreign arbitrations: PT Gunung at [60]; see also Recommendations for Reform at paragraph 41. It would make little sense if the courts are less equipped than arbitral tribunals to prevent injustices occasioned by international fraud.

That said, I accept that the court is, at present, bound by the weight of authorities such as Bi Xiaoqiong ([124] supra). Such change can come about only by amendment to legislation (as Woo J also recognised in PT Gunung at [51]), or by the Court of Appeal if it deems fit.

Whether stage two of the Spiliada test can nevertheless confer jurisdiction

Having found that, in the present state of the law, the forum conveniens requirement is still necessary, I deal now with the question whether the second stage of the Spiliada test can confer jurisdiction (or more precisely, warrant an exercise of jurisdiction), notwithstanding that Singapore is forum non conveniens.

As stated above at [116], it is generally accepted that the same two-stage Spiliada test applies to (a) leave applications for service outside of jurisdiction; and (b) applications to stay proceedings. The question whether the second stage of the Spilida test applies to leave applications for service outside of jurisdiction was left open in Oro Negro Drilling Pte Ltd and others v Integradora de Servicios Petroleros Oro Negro SAPI de CV and others and another appeal (Jesus Angel Guerra Mendez, non-party) [2020] 1 SLR 226, where the Court of Appeal stated at [80(d)] as follows:

In Konamaneni v Rolls Royce Industrial Power (India) Ltd [2002] 1 WLR 1269, the minority shareholders in a company incorporated in India brought a derivative action on its behalf against two English companies. These shareholders essentially alleged that the English companies had bribed the Indian company’s managing director in order to procure specific favours. Although the claim was therefore that they were victims of fraud, they argued that there would be no remedy since the Indian company was in effect controlled by the wrongdoers. The shareholders sought and obtained permission to serve the proceedings out of jurisdiction on the Indian company. The defendants then applied to set aside that order on the ground that the court had no jurisdiction and for a stay of proceedings on the ground of forum non conveniens. Collins J found that India was the more appropriate forum in that case. However, he went on to consider the issue whether there was substantial injustice, stating at [175]–[176] as follows:

I agree with the observations made by Collin J in the extract above. The inquiry that the court undertakes at the stage of the stay application is quite distinct from the inquiry for leave for service outside jurisdiction. In applications for stay on the grounds of forum non conveniens, the defendant accepts the court’s jurisdiction, but is asking the court to exercise its discretion to decline exercise of jurisdiction. Similar to my observations above at [134], however, in an application for leave for service outside of jurisdiction, the court is concerned with the logically anterior question whether it even has jurisdiction in the first place (see Zoom Communications ([95] supra) at [32]). It would be difficult to see how the court can have such broad discretion to allow a party to litigate in Singapore when its jurisdiction has yet to be established. That is why an argument on injustice still has to be targeted towards the issue as to where the appropriate forum lies.

In any case, after conceding that Singapore was not forum conveniens, the Plaintiff has not put forth further arguments as to why substantial injustice would result if it were not allowed to litigate its claim under s 107(1) of the Cayman Bankruptcy Act in Singapore. The issue here is thus largely academic, and I see no basis to find in favour of the Plaintiff in this regard. That, of course, does not render Singapore forum non conveniens as regards the entirety of the Plaintiff’s claim. As alluded to at [147], the analysis above on forum non conveniens is restricted to the Plaintiff’s claim under s 107(1) of the Cayman Bankruptcy Act. The court will decline to exercise its jurisdiction as regards this aspect of the claim, but not in regard to the Plaintiff’s claim grounded in Singapore legislation, which I consider in the next section.

Whether the Singapore injunction should have been granted

The final argument that the Defendants raise is that the Singapore Injunction should not have been granted as the Plaintiff had no intention of pursuing an action in Singapore and merely wanted a free-standing injunction. I agree with the Defendants that the law is clear in this regard. A collateral or ulterior purpose in seeking a Mareva injunction is sufficient to deny a plaintiff such relief; this is so even where the plaintiff establishes a good arguable case and a real risk of dissipation of assets: JTrust Asia Pte Ltd v Group Lease Holdings Pte Ltd and others [2018] 2 SLR 159 at [98]–[102]; Bi Xiaoqiong ([124] supra) at [118]–[120].

As stated above at [147], however, I find that the injunction sought in this case was not a free-standing one. The basis for the Defendants’ argument here is that at the time that the injunction was sought, it was primarily in support of the Cayman proceedings that were already under way at the time. This is made clear from the first affidavit of Margot MacInnis’s, one of the appointed agents of Plaintiff. In this affidavit, Ms MacInnis stated that the “key purpose” for the suit was to “obtain the urgent ancillary reliefs herein in support and aid of the Cayman Avoidance Proceedings”. It was reiterated at multiple points that the suit was filed for the “purpose” or “primary purpose” or “key purpose” of supporting the Cayman proceedings.

I accept that if that had remained the only purpose for which the suit was brought, then the injunction should not have been granted. That, however, is not the case here. At the latest tranche of the hearings, the Plaintiff clarified that the claims asserted in the Writ of Summons were also premised on s 73B of the Conveyancing and Law of Property Act (Cap 61, 1994 Rev Ed) (“CLPA”), which provides that:

It appears that this is indeed an applicable provision for the Plaintiff to bring its claim under. The Plaintiff has constantly maintained that certain conveyances, gifts or transfers of property from Mr Pelletier to the Defendants should be set aside on the basis that they had been wrongfully conveyed. I make this observation, of course, without going fully into the merits of this claim, which is more appropriately done at trial.

The Defendants raise two objections in relation to the CLPA claim. First, they argue that this claim had not been sufficiently pleaded and therefore should not be allowed. In the Endorsement of Claim, annexed to the Writ of Summons, the Plaintiff had stated that:

It might have been better if the Plaintiff had expressly stated a Singapore cause of action in addition to the claim under s 107 of the Cayman Bankruptcy Law. It is also difficult to fathom why counsel had not taken out an application to amend the Endorsement of Claim earlier. In my view, however, that is not fatal to their case as the emphasised words in the extract above are sufficiently broad to encompass the claim under s 73B of the CLPA. While Mr Singh did not dispute this, he noted that “speaking from [his] experience”, a claim based on a statutory cause of action required the statute to be expressly pleaded. It is quite unnecessary for a level of specificity to be mandated in all situations where a statute is relied upon. The circumstances and the facts leading up to the present dispute are reasonably clear in this case and should be adequate basis for the Defendants to formulate their responses.

Mr Singh further argues that the words “applicable law” should be construed using a conflict of laws analysis to determine “the applicable law”. In his submission, since there are no connecting factors with Singapore, the applicable law cannot be Singapore; therefore, the claim under s 73B of the CLPA, being a Singapore claim does not fall within “the applicable law”. This, however, is an unnecessarily strained reading of the terms in the Endorsement of Claim. In my view, the words “under applicable law” of a claim brought in Singapore are just simply that – the applicable law is Singapore law.

It would have avoided argument if the Plaintiff had specified the CLPA claim within the Endorsement of Claim. That, however, is not strictly necessary. Endorsements of Claim need only contain a “concise statement of the nature of the claim made”, such that the defendant is informed of the nature of the suit and the reasons for the legal action: Singapore Civil Procedure at para 6/2/1. This point is made even clearer when one looks at the requirements for pleadings, provided in Singapore Civil Procedure at para 18/7/8 as follows:

This therefore indicates that it is not necessary for a statute to be expressly invoked in pleadings, much less in an endorsement of claim.

Further, given the nascent stage of the proceedings for this dispute, it suffices that the claim has now been stated. This is in line with the recent Court of Appeal decision of Ma Hongjin v SCP Holdings Pte Ltd [2020] SGCA 106 (“Ma Hongjin”), where the court permitted the appellant to raise her arguments notwithstanding the fact that they had previously not been pleaded. In doing so, the court noted that the respondent had not been caught by surprise and that the respondent was also unable to particularise any prejudice that it suffered as a result of the failure to plead the arguments: Ma Hongjin at [35]; see also Fan Ren Ray and others v Toh Fong Peng and others [2020] SGCA 117 at [12]. The following observations of the Court of Appeal (Ma Hongjin at [35]) also bear repeating:

The second objection raised was that the Plaintiff did not have any standing to bring the claim under s 73B of the CLPA, as a “person thereby prejudiced” referred specifically to a “creditor or a contingent creditor”. A trustee, such as the Plaintiff, therefore did not have standing to bring the claim.

This specific issue of locus standi under s 73B of the CLPA was considered in Wong Ser Wan v Ng Bok Eng Holdings Pte Ltd and another [2004] 4 SLR(R) 464 (“Wong Ser Wan”). The defendant in that case submitted that once a debtor had been made bankrupt, any challenge mounted against any disposition of property by that debtor had to be taken by the trustee-in-bankruptcy. Judith Prakash J (as she then was) reviewed a series of English cases before concluding at [22]–[23] that:

Prakash J therefore held that in addition to the trustee-in-bankruptcy, an individual creditor also had standing to bring such a claim. The upshot of this is that as a starting point, a trustee-in-bankruptcy always has locus standi to bring a claim under s 73B of the CLPA. This is underscored by the eventual holding in Wong Ser Wan, where the plaintiff there was granted leave to bring an action in her own name precisely because the former trustee-in-bankruptcy had done nothing to commence such proceedings.

This position must surely be correct. Mr Singh’s suggestion that only an individual creditor can bring the claim would take things from the sublime to the ridiculous, resulting in an incredible outcome that is divorced from reality. As I noted in the course of the hearing, it is usually more appropriate for a trustee, who acts on behalf of the creditors who have an interest, to bring the claim on their behalf. This is infinitely sensible and avoids the problem, noted in Wong Ser Wan at [23], of an individual creditor seeking to keep the fruits of the litigation to himself.

Based on the foregoing, I find that the Plaintiff is not seeking a free-standing Mareva injunction; the Plaintiff has a substantive claim under s 73B of the CLPA. As regards this claim, I see no reason to find that Singapore is forum non conveniens. The Defendants have not made any persuasive arguments to this effect. Accordingly, the claim under the CLPA is sufficient to tether the present dispute to Singapore, and there is no reason for the court to refrain from exercising its validly founded jurisdiction.

Accordingly, I find that the Singapore Injunction was properly granted. The court possesses the requisite subject-matter jurisdiction and in personam jurisdiction, and there is a substantive dispute in Singapore to which the Singapore Injunction is ancillary.

Conclusion