Global Distressed Alpha Fund I Ltd Partnership v Integrated Financial Advisory Ltd

Philip Pillai J:

[1] The applicant, a Bermuda-incorporated company known as Global Distressed Alpha Fund I Limited Partnership (“GDAF”), had obtained judgment from a United Kingdom court (“Principal UK Judgment”) against an Indonesian incorporated company, PT Bakrie Investido (“PT Bakrie”), which was the guarantor of notes issued by Bakrie Indonesia BV, a special purpose vehicle (“SPV”) incorporated in the Netherlands. (The court proceedings leading up to the Principal UK Judgement are referred to hereinafter as the Principal UK Proceedings.) GDAF subsequently attempted to enforce the Principal UK Judgment against PT Bakrie and discovered that it was then dormant.

[3] The factual matrix that surrounds this application was briefly described in the affidavit filed by GDAF’s Singapore legal counsel in support of its application (“Affidavit”). It was recounted that in 1999, Bakrie Indonesia BV, a Dutch SPV in the Bakrie group, defaulted on sums due on its US$ 50 million guaranteed notes with interest of 9.625% (“B I Notes”). PT Bakrie was the guarantor of the B I Notes under a guarantee governed by English law (“Guarantee”). Following Bakrie Indonesia BV’s default on the B I Notes, PT Bakrie entered into an arrangement with some but not all of its creditors for certain B I noteholder creditors to swap their claims under the Guarantee for shares in a new company under a composition plan (“Composition Plan”). The Composition Plan was ratified by the Commercial Court of the Central Jakarta District Court and under Indonesian law, thereupon effectively releasing all creditor claims against PT Bakrie including those under the Guarantee.

[8] GDAF now seeks to register the UK Order against IFAL in Singapore under s 3 of the RECJA. The RECJA enables Commonwealth judgments to be enforced in Singapore through the simple process of registration. Thereafter, under s 3(3) of the RECJA, such registered judgments have the same force and effect for the purposes of execution as if they had been originally obtained from the Singapore courts. Section 3(1) of the RECJA provides that a judgment creditor who has obtained a judgment (including an order) in a superior court of the United Kingdom or other Commonwealth country may apply to the High Court to register it and that the High Court may, if it thinks it just and convenient in all the circumstances of the case that the judgment be enforced in Singapore, register such judgment. However, s 3(2) of RECJA provides the circumstances in which such judgment shall not be registered. Of relevance in the present application is s 3(2)(b) of the RECJA which provides that no judgment shall be ordered to be registered if “the judgment debtor, being a person who was neither carrying on business nor ordinarily resident within the jurisdiction of the original court, did not voluntarily appear or otherwise submit or agree to submit to the jurisdiction of that court”.

[10] The first obstacle to this application is presented by the clear text of s 3(2) RECJA which requires that IFAL voluntarily appeared or otherwise submitted or agreed to submit to the jurisdiction of the UK court. In the face of this clear text, the evidence submitted to establish that IFAL otherwise submitted or agreed to submit to such jurisdiction is thin. In any event, I would be slow to conclude, in light of the real purpose of this application and in these circumstances alone, that it would be just and convenient to enforce the UK Order by registration in Singapore pursuant to s 3(1) of RECJA.

[11] For these reasons, I dismissed the Originating Summons.