The Star Pty Ltd v Guoxing C ui [2023] SGHC 16

Introduction

This was not the first time the court has had to consider the question of whether foreign judgments based upon gambling debts may be registered under the Reciprocal Enforcement of Commonwealth Judgments Act (Cap 264, 1985 Rev Ed) (“RECJA”). In Liao Eng Kiat v Burswood Nominees Ltd [2004] 4 SLR(R) 690 (“Burswood Nominees”), the Court of Appeal held that section 3(2)(f) of RECJA read together with section 5(2) of the Civil Law Act (Cap 43, 1999 Rev Ed) (“CLA”) did not preclude registration of such foreign judgments. In The Star Entertainment QLD Ltd v Yong Khong Yoong Mark [2022] 4 SLR 976 (“The Star Entertainment”), the High Court considered itself bound by the authority of Burswood to recognise a similar foreign judgment, notwithstanding obiter dicta by the Court of Appeal in Poh Soon Kiat v Desert Palace Inc [2010] 1 SLR 1119 (“Desert Palace”) suggesting that Burswood had been wrongly decided.

The present matter likewise concerned an application to register a foreign judgment based upon a gambling debt. As a result of his gambling activities at an Australian casino owned by The Star Pty Ltd (“the applicant”), Mr. Guoxing Cui (“the respondent”) had incurred debts which formed the basis of an Australian judgment which the applicant subsequently obtained against him (“the judgment”). When the applicant sought to have the judgment registered in Singapore, the respondent challenged its registration and sought to have it set aside on the basis of section 3(1) and 3(2) of the RECJA.

After considering the parties’ submissions, I too found myself bound by Burswood to dismiss the respondent’s appeal, and so declined to set aside the registration of the judgment. The respondent appealed, and I now give my reasons.

The parties

The applicant operates a casino known as “The Star Sydney”, which was licensed in New South Wales under the Casino Control Act 1992 (NSW) by the Casino, Liquor and Gaming Control Authority of New South Wales.

The respondent was a patron of The Star Sydney, who as a result of his gaming activities there incurred the debts which formed the basis of the judgment.

Procedural history

On 12 February 2021, the applicant obtained judgment against the respondent for a sum of $6,186,314.72 Australian Dollars from the Supreme Court of New South Wales. The applicant subsequently filed an application to register the judgment in Singapore, which was granted on 8 June 2021.

On 16 June 2022, the respondent filed an application to set aside registration of the judgment. This application was heard by the Assistant Registrar (“the AR”) on 14 October 2022, who declined to set aside the registration. I then heard the respondent’s appeal against the AR’s decision.

The respondent’s submissions

The respondent argued that the registration of the judgment ought to be set aside pursuant to Order 67 Rule 9(3) of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) (“ROC 2014”), which states:

As he relied on both the section 3(2) and the “not just or convenient” grounds as bases upon which to set aside the recognition of the judgment, I briefly lay out his arguments in respect of each.

Section 3(2) of the RECJA

Section 3(2)(f) of the RECJA provides that no foreign judgment shall be ordered to be registered if:

Where foreign judgments based on gambling debts are concerned, the relevant public policy is that captured in section 5(2) of the CLA, which provides that:

In short, as section 5(2) of the CLA precludes the court from entertaining any action brought to recover a debt arising out of gambling, section 3(2)(f) of the RECJA would in turn preclude the registration of any foreign judgment based on such a debt.

Additionally, Burswood’s holding that section 3(2)(f) of the RECJA did not preclude recognition of foreign judgments based on gambling debts should not be followed. The subsequent decision of Desert Palace had commented that Burswood was “unsound and should be reviewed”. Burswood’s imposition of a “higher threshold” of public policy which must be met for registration of a foreign judgment to be refused was inconsistent with the plain wording of section 3(2)(f) of the RECJA. Even if it was not, the statutory public policy as articulated in section 5(2) of the CLA should be considered “more fundamental” than common law public policy, and should be sufficient to meet any higher threshold necessary for registration to be refused or set aside.

“Not just or convenient” under Order 67 Rule 9(3) of the ROC

The respondent also relied on the phrase “not just or convenient” for enforcement as a ground for setting aside under Order 67 Rule 9(3) of the ROC 2014. The opposite phrase “just and convenient” for enforcement and ordering of registration is used in section 3(1) of the RECJA:

As section 5(2) of the CLA clearly articulates a policy prohibiting the recovery of gambling debts, allowing enforcement of the judgment would create a “backdoor” for casinos to enforce such debts. It would create an “unprincipled” distinction between situations in which creditors directly bring claims for foreign gambling debts in the Singaporean courts, which the courts are bound to reject by the Court of Appeal decision of Star City Pty Ltd (formerly known as Sydney Harbour Casino Pty Ltd) v Tan Hong Woon [2002] 1 SLR(R) 306, and those in which a creditor seeks recognition of a foreign judgment based on the same gambling debt, which must be recognised as per Burswood. The fact that Burswood was wrongly decided would mean that following it would subject the respondent to an erroneous application of the law. In view of these reasons, recognising the judgment would visit significant injustice and inconvenience upon the respondent.

Crucially, the court is not bound by Burswood to reject such an argument. Burswood was decided on the basis that section 3(2)(f) of RECJA did not preclude the registration of a foreign gambling debt. Counsel in Burswood made no argument on the “not just or convenient” ground, and Burswood had merely observed that section 3(1) of the RECJA was “an apt provision in resolving the case”, and found on the facts that the defendant there had failed to make out that ground.

Analysis

I found that I remained bound by the authority of Burswood to reject the respondent’s submissions, in respect of both section 3(2)(f) and section 3(1) of the RECJA.

Section 3(2) of the RECJA

Burswood’s holding that section 3(2)(f) of the RECJA read with section 5(2) of the CLA does not preclude registration of foreign judgments based on gambling debts remains binding precedent under the doctrine of stare decisis. As noted by The Star Entertainment at [15], Desert Palace was concerned with the registration of a foreign judgment not under RECJA but at common law. Its observations that Burswood was “unsound”, had “no legal basis” to impose a higher public policy threshold into section 3(2)(f) of the RECJA, and should have been decided differently, were therefore all ultimately obiter. I also echo The Star Entertainment’s observation at [15], that Desert Palace, in commenting that Burswood “should be reviewed if a similar issue were to come before this court in the future” (at [114]), made clear that it was not overruling Burswood. Like the court in The Star Entertainment, I was therefore bound to reject the respondent’s attempt to set aside the registration of the judgment on the basis of section 3(2)(f) of the RECJA.

“Just and convenient” under s 3(1) of the RECJA

It is clear from the wording of section 3(1) of the RECJA that the court only has discretion to register a foreign judgment if it thinks it “just and convenient” that the judgment should be enforced in Singapore. Thus, while Burswood was largely concerned with section 3(2)(f) of the RECJA, it also had regard to s 3(1) of the RECJA and made the following finding on whether it would not be just and convenient to register the judgment with which it was concerned (at [47]):

This inquiry was one to which the court in Burswood would have had to apply its mind before finding that the judgment with which it was concerned should be registered, and so forms part of its ratio. Given that it did so find despite clearly being cognisant of the public policy against gambling captured in section 5(2) of the CLA, it was not open to me to find that the very same public policy rendered it not just or convenient to enforce and hence register the judgment for the purposes of its enforcement, which was similar to if not legally indistinguishable from those whose recognition was at issue in Burswood and The Star Entertainment. To have held otherwise would be to read the “not just or convenient” ground as license for the High Court to freely depart from the binding authority of the Court of Appeal, whenever it might feel that the equities of the instant case warrant doing so.

Conclusion

For the reasons above, I found myself bound by the authority of Burswood to find that neither section 3(2)(f) nor section 3(1) barred the registration of a judgment based on a foreign gambling debt. Being so bound, I dismissed the respondent’s appeal, and declined to set aside the registration of the judgment under the RECJA.