PT Bakrie Investindo v Global Distressed Alpha Fund 1 Ltd Partnership

Andrew Phang Boon Leong JA (delivering the grounds of decision of the court):

[1] As the late Lord Denning MR aptly put it, “[w]ords are the lawyer’s tools of trade” (see Lord Denning, The Discipline of Law (Butterworths, London, 1979) (“The Discipline of Law”) at p 5). The reason for this is clear; as the learned Master of the Rolls proceeded to observe (ibid):

[2] However, words – or in the context of the present appeal, a word – might not always be clear. There are various reasons for this. The same word might – without even beginning to consider the context in which the word itself is used – have completely different meanings (take, for example, the word “toast” which may mean “bread in slices browned on both sides by radiant heat” or “a person … or thing in whose honour a company is requested to drink” or “a call to drink or an instance of drinking in this way” (see The Concise Oxford Dictionary of Current English (Clarendon Press, Oxford, 8th Ed, 1990) at p 1281)). In addition, a word with a certain specific meaning might nevertheless mean different things in different contexts. Again, Lord Denning put it well when he referred to difficulties stemming from what he termed “the infirmity of the words themselves” (The Discipline of Law at p 5). But courts must nevertheless arrive at considered (and definite as well as clear) decisions in accordance with logic, principle and context in the case at hand. They must, in this regard, utilise all relevant legal materials. And they must, of course, assiduously avoid the approach of Humpty Dumpty in Lewis Carroll’s Through the Looking-Glass (Macmillan & Co, London, 1871) (a sequel to the same author’s equally famous book, Alice’s Adventures in Wonderland (Macmillan & Co, London, 1865)); in particular, the court cannot make the word mean what it chooses it to mean. Again, to cite Lord Denning (albeit from another book, The Closing Chapter (Butterworths, London,1983) at p 58):

[3] However, as just mentioned, ascertaining the meaning of words is not always an easy task in practice. Indeed, the late Prof Glanville Williams wrote a famous article almost seven decades ago, which has stood the test of time and whose title is self-explanatory – “Language and the Law”. It is a veritable tour de force from both theoretical as well as practical points of view, exploring virtually every aspect of language and the law (including even the emotive function of words). However, the quantity as well as quality of the various difficulties resulted in an unprecedented five part article comprising a total of 87 pages and spanning two volumes of The Law Quarterly Review (see (1945) 61 LQR 71, 179, 293 and 384, as well as (1946) 62 LQR 387) – merely underscoring the immense difficulties concerned.

[4] The present appeal was another (albeit more specific as well as modest) instance of the difficulties encountered with the meaning of words (or rather, as already mentioned, a word). As we shall see, the sole issue in this appeal against the decision of the judge (“the Judge”) in Global Distressed Alpha Fund I Ltd Partnership v PT Bakrie Investindo [2013] 2 SLR 429 (“the GD”) centred on the meaning of the word “execution” in O 67 r 10(2) of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) (“the Rules”). In particular, do examination of judgment debtor proceedings (“EJD”) come within the meaning of the word “execution” for the purposes of O 67 r 10(2) of the Rules (“O 67 r 10(2)”)? Order 67 r 10 itself reads as follows:

[5] The Judge answered in the negative and an appeal was brought against this decision. We dismissed the appeal and now give the detailed grounds for our decision.

[7] The UK Judgment was registered as a judgment of the High Court of Singapore pursuant to s 3 of the Reciprocal Enforcement of Commonwealth Judgments Act (Cap 264, 1985 Rev Ed) (“RECJA”) on 18 July 2011 (“the Registration Order”). Following from this, the Respondent obtained an order to examine one Robertus Bismarka Kurniawan (“Mr Kurniawan”), the former Chairman of the Appellant’s Supervisory Board, as to the Appellant’s assets (“the EJD Order”). On 31 August 2012, the Appellant applied to set aside both the Registration Order and the EJD Order (“the Setting Aside proceedings”).

[8] The present appeal arose from the Appellant’s request for the examination of Mr Kurniawan to be adjourned until the Setting Aside proceedings were finally disposed of by the Court of Appeal. On 21 November 2012, the assistant registrar (“AR”) dismissed the Appellant’s application for the examination to be adjourned. On 17 December 2012, the Appellant’s appeal against the AR’s decision was dismissed by the Judge below. The GD was issued on 20 January 2013.

[9] The Appellant appealed against the GD which dealt with the following issues:

(b) Whether an application to set aside a registration of a foreign judgment registered under the RECJA is considered “finally determined” for the purposes of O 67 r 10(2) if the application is pending hearing before the Court of Appeal (“Issue 2”).

[10] The main issue was Issue 1. Indeed, in the court below, as the Judge had resolved that particular issue in the Respondent’s favour, his decision on Issue 2 (as he acknowledged in the GD at [33]) was, strictly speaking, obiter dicta.

[11] Before proceeding to consider each of the issues seriatim, it is important – for reasons which will become apparent in a moment – to consider a preliminary procedural point.

[12] There was a preliminary procedural point which, as we shall see, was of crucial importance. This arose from the Respondent’s submission to this court that the Appellant’s appeal in the present case required leave from the Judge and that, in the circumstances, as no leave had in fact been obtained, the notice of appeal must be struck out. Whether the Respondent’s submission succeeded depended on whether the application to adjourn the EJD was an “interlocutory application”. Paragraph (e) of the Fifth Schedule to the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) provides that:

[13] The Respondent’s argument in this particular regard was a straightforward one: the Appellant had applied only for an adjournment of the EJD which had been granted in favour of the Respondent and the Appellant’s substantive argument against the EJD Order was, inter alia, the subject of a separate appeal before this court as part of the Setting Aside proceedings (which appeal was, in fact, also recently dismissed without any written grounds in Civil Appeal No 145 of 2012). In the circumstances, the Respondent argued that the dismissal of the application for an adjournment was an order made at the hearing of an interlocutory application – for which leave to appeal was required but not obtained. We found much force in this argument, having regard not only to the Judge’s own view in this case (see the GD at [1] and [7]) but also to the Setting Aside proceedings just mentioned. Indeed, it did not make sense that the Appellant would mount a similar (and substantive) attack on the EJD Order in two simultaneous sets of proceedings. It was then clear, in our view, that the application before the Judge was an interlocutory application which did not finally determine (as to which see the decisions of this court in Wellmix Organics (International) Pte Ltd v Lau Yu Man [2006] 2 SLR(R) 525 at [12]–[15] and Dorsey James Michael v World Sport Group Pte Ltd [2013] 3 SLR 354 (“Dorsey James Michael”) at [90] (the latter commenting on this court’s decision of OpenNet Pte Ltd v Info-Communications Development Authority of Singapore [2013] 2 SLR 880 (“OpenNet Pte Ltd”))) any of the Appellant’s claims under the Setting Aside proceedings. As such the notice of appeal in the present case ought to have been struck out and the Appellant’s appeal had to fail on this ground alone. However, as detailed arguments in both written and oral forms were presented to us and as the legal issues in question (in particular Issue 1) were significant ones, we will nevertheless proceed to address them accordingly.

[14] A point of some importance, in our view, was in fact referred to briefly by the Judge (see the GD at [31], also quoted below at [25]): that the application for an EJD order, whilst implemented via O 48 of the Rules, is not mentioned in O 45 of the Rules which is a general rule setting out the various modes by which a judgment or order for the payment of money may be enforced. In so far as a judgment or order for the payment of money (not being a judgment or order for payment of money into Court) is concerned, O 45 r 1(1) refers to the following modes of execution: writ of seizure and sale, garnishee proceedings, the appointment of a receiver as well as (where O 45 r 5 applies) an order of committal. And, in so far as a judgment or order for the payment of money into Court is concerned, O 45 r 1(2) refers to the following modes of execution: the appointment of a receiver and (where O 45 r 5 applies) an order of committal. Like the application for an EJD order (which, as mentioned, is implemented via O 48), all these various modes of execution are also elaborated upon in separate orders in the Rules themselves. However, as already mentioned, it is significant, in our view, that an EJD order is not included within the specific modes of execution mentioned in O 45 r 1(1)–(2). The reason for this is clear from the nature and functions of an EJD itself.

[15] Indeed, in Form 99 of the Rules (relating to the affidavit in support of an application for an EJD order), it is stated at para 3 that the application is “[i]n order to enable the plaintiff to decide upon the methods to employ to enforce the said judgment” [emphasis added]. Indeed, as Prof Jeffrey Pinsler points out in his leading treatise on civil procedure in Singapore, Singapore Court Practice 2009 (LexisNexis, 2009), at para 48/1/1:

[17] In the circumstances, an EJD is quite different from the bankruptcy notice which was the focus of the Singapore High Court decision of Re Cheah Theam Swee, ex parte Equiticorp Finance Group Ltd and another [1996] 1 SLR(R) 24 (“Cheah Theam Swee”), wherein it was held that a bankruptcy notice did fall within the meaning of “execution” under s 3(3)(b) of the RECJA, which provides that:

[18] Indeed, unlike an EJD, a bankruptcy notice is the first legal step towards the enforcement of the judgment itself by way of a securing of the judgment debtor’s assets; viewed in this light, it is not unlike the modes of enforcement already referred to above at [14] (for example, a writ of seizure and sale as well as garnishee proceedings). Whilst, however, it is true that a bankruptcy notice would entail more than what is involved when the traditional modes of execution are concerned, this does not detract from the fact that the issuance of a bankruptcy notice includes the same purpose as the traditional modes of execution. This is a critical distinction, especially since the Appellant had relied almost solely on Cheah Theam Swee in attempting to make out its case in the context of the present appeal. Whilst it could be argued that an EJD might also lead ultimately to a securing of the judgment debtor’s assets, this is not its predominant purpose which is (as we have just noted) the garnering of additional information and which is, in our view, one prior step removed when compared to the issuance of a bankruptcy notice. Looked at in this light, it is our view that there is in fact a real distinction between an EJD on the one hand and the issuance of a bankruptcy notice on the other.

[20] However, in fairness to the Appellant, this is not the end of the matter in so far as this appeal is concerned because it could be argued that the analysis just set out is consistent with a narrow reading of the word “execution” in O 67 r 10(2), whereas the approach Warren L H Khoo J adopted in Cheah Theam Swee constituted a broad reading of the same word (albeit in the context of s 3(3) of the RECJA). The learned judge’s reasoning in this regard was as follows (at [20]–[26]):

[21] With respect, we are of the view that the judge in Cheah Theam Swee, whilst correct in adopting a broad reading of the word “execution” in s 3(3)(b) of the RECJA, had stated that reading rather too broadly. Consistent with the analysis set out above (at [16]–[18]), the predominant purpose of the proceedings concerned must be to ultimately achieve what the more traditional forms of execution mentioned in O 45 r 1(1)–(2) of the Rules (referred to above at [14]) would accomplish. This is not, in fact, inconsistent with Khoo J’s own conclusion (Cheah Theam Swee at [24], extracted in the preceding paragraph) to the effect that s 3(3)(b) of the RECJA was “to confer a jurisdiction on the registering court to carry out the terms of the registered judgment, once it has been registered, and to entertain all proceedings to that end, but not proceedings seeking to go back on the judgment” [emphasis added]. Put simply, the phrase “all proceedings” must have, as the final objective, the enforcement of the judgment concerned in the so-called narrower sense. Even allowing for the fact that certain proceedings might involve other matters, it is, in our view, clear that, at the very least, the predominant purpose of such proceedings must be to ultimately give effect to the enforcement of the judgment in the narrower sense which is encompassed within the more traditional modes of execution referred to above.

[22] If the less radical approach (from predominant purpose) set out in the preceding paragraph had been adopted by Khoo J in Cheah Theam Swee, the same result would have been arrived at by the court, albeit without the use of the much broader approach which the learned judge utilised in that case and which stretched unduly (or even, with respect, distorted) the meaning of “execution”. However, as just alluded to, we agree with Khoo J to the extent that, given the nature and function of not only the RECJA but also the Reciprocal Enforcement of Foreign Judgments Act (Cap 265, 2001 Rev Ed) (“REFJA”) as well as O 67 r 10(2), a slightly broader reading of “execution” in the manner just described would be appropriate. The need for a slightly broader reading is, in fact, buttressed by the reasoning of Lai Kew Chai J in the Singapore High Court decision of Re Tan Patrick, ex parte Walter Peak Resorts Ltd (in receivership) [1994] 2 SLR(R) 379 (“Re Patrick Tan”) where the learned judge had to consider the same issue (viz, whether a bankruptcy notice fell within the purview of the word “execution” in s 3(3) of the RECJA). In this regard, Lai J was of the view that the use of the more general word “proceedings” in s 4(2)(b) of the old Reciprocal Enforcement of Foreign Judgments Act (Cap 265, 1985 Rev Ed) (“the old REFJA”) (now s 4(4)(b) of the REFJA) (which would cover a bankruptcy notice) was to be read with s 4(2)(d) (now s 4(4)(d) of the REFJA) of the same Act, in which the phrase “so far as only as relates to execution” in s 3(3)(b) of the RECJA had been omitted. The learned judge arrived, in the circumstances, at the conclusion (at [14]) that there was nothing in s 4(2) of the old REFJA “which limits the jurisdiction of the courts over foreign judgments registered under the REFJA to matters relating to execution”. Lai J then proceeded to observe thus (at [16]):

Although Lai J utilised the above reasoning in arriving at his conclusion that a bankruptcy notice fell within the purview of s 3(3)(b) of the RECJA, we are respectfully of the view that, whilst such reasoning is helpful in the manner just outlined, it cannot – in and of itself – constitute the main (let alone sole) reason for the conclusion just mentioned.

[23] Returning to the issue at hand, although a slightly broader reading of the word “execution” in s 3(3)(b) of the RECJA is necessary (albeit not as broad as that suggested by Khoo J in Cheah Theam Swee), a balanced approach is nevertheless imperative and, to this end, the criterion ought, in our view (and for the reasons set out above), to be that centring on the predominant purpose of the proceedings concerned. Looked at in this light, it is clear that an EJD clearly does not fall within the ambit of “execution” as the predominant purpose of such proceedings is the garnering of additional information which might – or might not – result in the implementation of actual execution of the judgment concerned (see also above at [16]). In the circumstances, therefore, it follows that the word “execution” does not include an EJD for the purposes of O 67 r 10(2).

[24] However, in fairness to Khoo J in Cheah Theam Swee, to the extent that a bankruptcy notice does not lead immediately to the enforcement of the judgment concerned, it could be said that regarding a bankruptcy notice as falling within the ambit of “execution” is a “broader” reading of sorts. That having been said, as already explained above (at [17]), the situation in which a bankruptcy notice is issued is still quite distinct from an EJD which is (at best) much more distantly related to “execution” as it is traditionally conceived. However, this “distant” relationship is not wholly irrelevant and might yet raise an alternative argument for the actual approach adopted by Khoo J in Cheah Theam Swee. And it is to a consideration of that possible alternative argument that our attention must now turn.

[25] As alluded to at the outset of these grounds of decision, there remain (further) problems of language with regard to the word “execution”. Notwithstanding the analysis which we have just proffered, we do note that – from a strict linguistic (or perhaps, more appropriately, literal) perspective – it might also be (and has been) argued that the word “execution” might include any step taken pursuant to actual execution of the judgment concerned. Indeed, the Judge was alive to this possibility in the court below, but concluded thus (see the GD at [31]–[32]):

[26] Hence, the Judge arrived at the conclusion that this (literal) reading ought to be rejected by referring – as has this court – to the rather different nature of an EJD, compared to procedures which, in point of fact, effect actual execution of the judgment concerned. We would only add that the rejection of this (literal) reading is buttressed by a purposive reading of O 67 r 10(2) as well. It is, of course, true that, depending on the precise legislation (or part thereof) in question, the literal language could well coincide with the purpose of the same. However, where there is a conflict between the literal language on the one hand and the purpose of the legislation (or part thereof) on the other, it is clear that the latter must prevail (and see, for example, s 9A of the Interpretation Act (Cap 1, 2002 Rev Ed); the seminal Singapore High Court decision of PP v Low Kok Heng [2007] 4 SLR(R) 183 at [39]–[57]; as well as the recent decisions of this court in OpenNet Pte Ltd, especially at [15] and Dorsey James Michael at [16]–[20]).

[27] Turning then to broader considerations which are consistent with a purposive approach towards O 67 r 10(2), it is clear, in our view, that the predominant purpose of “execution” in this rule must (as we have explained above) have, as its ultimate objective, the execution of the judgment concerned in its traditional sense. Only then would the purpose of not only O 67 r 10(2) but also the RECJA and the REFJA be fulfilled. Any other interpretation would result in a failure of substantive purpose inasmuch as both the RECJA and the REFJA are intended to give effect to the foreign judgment concerned and this can only be accomplished by the Singapore court not (as Khoo J emphasised in Cheah Theam Swee) by re-opening the substantive merits of that judgment but, rather, by proceedings which will lead to actual execution of the judgment itself. Indeed, we would add that, even allowing for the delay incurred by the judgment creditor (the Respondent in the present appeal) if an EJD is postponed until a setting aside application is finally determined, there is also the prospect of judicial time and court resources being wasted if it transpires upon examination that the judgment debtor is a man of straw. Conversely, if the judgment creditor were permitted to examine the judgment debtor during the pendency of the setting aside proceedings, it might elect not to contest those proceedings if it becomes apparent that there are no worthwhile assets for execution in Singapore. From an institutional perspective, therefore, it is clear that the early conduct of an EJD would be preferable. However, it should be noted that there are some loose ends to be tied up.

[28] At this juncture, we have some comments on the Judge’s observation that the Appellant had “used the wrong starting point” inasmuch as it (the Appellant) ought to have compared O 67 r 10(2) with s 4(5) of the REFJA instead as the former had “[adopted] the wording” of the latter (see the GD at [21]). The following (and further) observations by the Judge (at [20]–[22]), which will figure in the analysis that follows, might also be usefully set out at this point:

[29] The Judge was of the view that the meaning of the word “execution” should have been analysed by reference to the REFJA instead of the RECJA (see the GD at [20]). Adopting such an approach, he was of the further view (citing Re Patrick Tan) that s 4(5) of the REFJA (and, correspondingly, O 67 r 10(2)) dealt with “purely procedural matters” (see the GD at [22]) – whereas s 3(3) of the RECJA (which was, it will be recalled, interpreted in Cheah Theam Swee) and s 4(4) of the REFJA dealt with “the scope of the Singapore court’s jurisdiction over a foreign judgment” [emphasis in original] (see ibid). The Judge then reasoned that, because of the distinction just mentioned, the word “execution” in s 4(5) of the REFJA (and, correspondingly, in O 67 r 10(2)) would not necessarily bear the same meaning as that in s 3(3) of the RECJA (which, it will be recalled, was given a broad reading by Khoo J in Cheah Theam Swee).

[30] He then proceeded (see the GD at [24]) to demonstrate that whilst s 4(4)(d) referred to “execution”, s 4(4)(b) of the REFJA referred to “proceedings” and that in Re Patrick Tan, Lai J had (as noted above at [22]) held that the word “proceedings” in what is now s 4(4)(b) of the REFJA “encompasses bankruptcy proceedings”. The Judge then proceeded to observe as follows (see ibid):

[31] We would respectfully note that there is no reason in principle why, even in s 4(4) of the REFJA, the word “execution” should not be construed in a somewhat broader sense (as explained above at [21]–[23]).

[32] We also note the following observations by the Judge in the court below (see the GD at [25]):

[33] With respect, the observations set out in the preceding paragraph – to a large extent – assume what precisely needs to be proved. In our view, that proof finds its source in ascertaining (as we have above at [21]–[23]) the precise nature and function of “execution” which, as we have sought to demonstrate, admits of only one clear approach and which therefore excludes an EJD in the context of, inter alia, O 67 r 10(2). It is also significant that the Judge, again in the observations set out in the preceding paragraph, refers (in the final sentence) to the nature of an EJD, which is the central topic of the next part of his judgment and which centres precisely around the nature and function of “execution” itself. Put simply, both sets of observations by the Judge (quoted above at [28] and [32]) are, with great respect, unpersuasive and disregarding them does not detract – in any way – from the Judge’s own analysis and (more importantly) conclusion to the effect that the word “execution” does not include an EJD for the purposes of O 67 r 10(2) (see the GD at [26]–[32]). Indeed, we are in total agreement with the Judge to the extent that he relies, in the main at least, on the nature and function of “execution” as explored in its legislative context (see ibid) as it is consistent with our own analysis above (at [21]–[23]).

[34] The (more general) issue remains as to whether undue prejudice to the judgment debtor (here, the Appellant) would ensue if the approach set out above is adopted. This issue is not an unimportant one since it brings into focus the question of fairness to the judgment debtor as the Judge’s conclusion on Issue 1 has been affirmed. In our view, there would be no such prejudice because the judgment debtor would always be free to apply to the court for a stay of the EJD.

[35] It is clear, therefore, that, based on logic and principle as well as a purposive approach, the word “execution” (as demonstrated in our analysis of Issue 1) does not include an EJD for the purposes of O 67 r 10(2), and we therefore found in favour of the Respondent in so far as Issue 1 was concerned.

[36] As in the court below, in the light of our decision on Issue 1 above, it was unnecessary to decide Issue 2. This was particularly the case because the Appellant had – correctly, in our view – focused on Issue 1. It also seems to us that a definitive ruling with regard to this particular issue would be more appropriate in a later case, although we would observe that the Judge’s reasoning and conclusion on this issue (see the GD at [33]–[44]) seem to us to be quite persuasive.