Case Details
- Citation: [2011] SGCA 40
- Title: Tjong Very Sumito and others v Chan Sing En and others
- Court: Court of Appeal of the Republic of Singapore
- Date: 15 August 2011
- Case Number: Civil Appeal No 234 of 2010
- Coram: Chao Hick Tin JA; Andrew Phang Boon Leong JA
- Judges: Chao Hick Tin JA; Andrew Phang Boon Leong JA
- Appellants / Plaintiffs in the main action: Tjong Very Sumito and others
- Respondents / Defendants in the main action: Chan Sing En and others
- Procedural posture: Appeal against the High Court judge’s order requiring security for costs
- High Court decision appealed from: Tjong Very Sumito and others v Chan Sing En and others [2011] 2 SLR 360
- Legal area: Civil Procedure – Interim orders – Security for costs
- Key procedural instruments: Summons for security for costs under O 23 r 1 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) (“ROC”); Registrar’s Appeal No 234 of 2010
- Representatives (counsel): Peter Gabriel and Shannon Ong (Gabriel Law Corporation) for the appellants; Nicholas Narayanan (Nicholas & Tan Partnership LLP) for the first respondent; Edwin Tong, Aaron Lee and Margaret Ling (Allen & Gledhill LLP) for the second and third respondents
- Judgment length: 21 pages, 12,418 words
- Reported in LawNet editorial note: The decision from which this appeal arose is reported at [2011] 2 SLR 360
Summary
This Court of Appeal decision concerns an interlocutory application for security for costs under O 23 r 1 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed). The appellants, who were Indonesian citizens, commenced a civil action in Singapore against multiple defendants. The first respondent sought security for costs on the basis that the appellants were ordinarily resident outside Singapore (and, in the case of certain plaintiffs, were nominal plaintiffs). The Assistant Registrar refused the application on the ground that the first appellant was ordinarily resident in Singapore, and also declined to order security against the second and third appellants.
On appeal, the High Court judge reversed the Assistant Registrar’s decision and ordered security for costs in substantial sums. The Court of Appeal upheld the High Court’s approach. In doing so, it affirmed that the court’s power to order security for costs is not confined to plaintiffs who are exclusively outside Singapore; it may extend to plaintiffs who are ordinarily resident both within and outside Singapore, provided the statutory jurisdictional requirements are satisfied. The Court of Appeal also emphasised that, once jurisdiction is established, the discretion to order security is informed by practical considerations such as the availability of assets within the jurisdiction to satisfy a costs order, and by the overall context of the litigation.
What Were the Facts of This Case?
The underlying dispute arose from a “main action” (Suit No 89 of 2010) commenced by the appellants, Tjong Very Sumito and others, against 11 defendants. The appellants were Indonesian citizens. The procedural controversy in this appeal did not concern the merits of the substantive claims; rather, it concerned whether the appellants should be required to provide security for the defendants’ costs of defending the action.
The first respondent applied for security for costs by Summons No 1720 of 2010. The application was brought under O 23 r 1 of the ROC. The Assistant Registrar dismissed the application as against the first appellant on the basis that he was ordinarily resident in Singapore. The Assistant Registrar also refused to order security against the second and third appellants, who were described as nominal plaintiffs (being nominee parties of the first appellant). The Assistant Registrar’s reasoning relied on a general principle reflected in Singapore Civil Procedure (2007) that security for costs will not normally be ordered against plaintiffs who have a co-plaintiff resident within the jurisdiction.
Unhappy with that outcome, the first respondent filed a Registrar’s Appeal (RA 234/2010) against the Assistant Registrar’s refusal. Separately, the second and third respondents applied for security for costs by Summons No 2961 of 2010. The High Court judge heard these applications together. At the conclusion of the hearings, the judge reversed the Assistant Registrar’s decision and ordered security for costs: $35,000 in favour of the first respondent and $40,000 in favour of the second and third respondents, in each case up to and including the date for filing the List of Documents in the main action.
In the course of the interlocutory proceedings, the respondents advanced allegations and contextual facts to support both jurisdiction and discretion. These included claims that the appellants had obtained a Mareva injunction against the first respondent without good grounds and with fabricated documents and without full and frank disclosure. The respondents also alleged that the main action had been initiated vexatiously and that the appellants lacked ready assets in Singapore against which any costs award could be enforced. The respondents further contended that the first appellant’s probity could not be relied upon, including allegations relating to false identity documents.
What Were the Key Legal Issues?
The appeal raised issues that can be broadly grouped into two categories: (i) whether the court had jurisdiction under O 23 r 1(1) of the ROC to order security for costs against the appellants, and (ii) whether, assuming jurisdiction, the judge properly exercised the discretion to order security.
First, the appellants argued that the statutory phrase “ordinarily resident” in O 23 r 1(1)(a) should be interpreted so that a person who is ordinarily resident in Singapore cannot simultaneously fall within the rule’s scope, even if the person is also ordinarily resident outside Singapore. The appellants relied on an Australian authority, Rivera v Australian Broadcasting Corporation [2005] FCA 661, to support their contention that the rule targets plaintiffs who are not amenable to the process of the court.
Second, the appellants argued that a person cannot be ordinarily resident in more than one place at the same time for the purposes of O 23 r 1, except in exceptional circumstances. They sought to distinguish English cases that suggested otherwise, contending that those cases were not directly concerned with security for costs under a provision equivalent to O 23 r 1(1)(a), or that they did not actually result in a finding of ordinary residence in more than one place.
Third, even if jurisdiction existed, the appellants contended that the judge should not have ordered security because the first appellant was ordinarily resident in Singapore and the appellants had a good arguable case. They also maintained that the respondents’ application was intended to stifle their claim. Additionally, on appeal, the appellants sought to raise a new point that the second and third respondents had unduly delayed applying for security for costs, which they argued should justify dismissal.
How Did the Court Analyse the Issues?
The Court of Appeal began by restating the legal framework for security for costs under O 23 r 1. The provision confers jurisdiction on the court to order security for costs in specified circumstances, including where a plaintiff is “ordinarily resident” out of Singapore (O 23 r 1(1)(a)). The Court of Appeal accepted that the meaning of “ordinarily resident” is to be given its natural meaning, and that the inquiry is fact-sensitive. It also recognised that authorities outside the security-for-costs context may be relevant to the interpretation of “ordinarily resident”, because the concept is not unique to procedural law.
On the question whether a person can be ordinarily resident in more than one place, the Court of Appeal endorsed the High Court judge’s approach. The judge had considered Singapore and Commonwealth case law and concluded that there is no absolute legal bar to finding that a person is ordinarily resident in more than one place at a particular time. The Court of Appeal agreed that such a finding is not precluded as a matter of law, and that the court may examine the evidence to determine where the person’s ordinary residence lies, even if that results in concurrent ordinary residence in Singapore and another jurisdiction.
Applying that approach to the evidence, the High Court judge found that the first appellant was ordinarily resident in Indonesia. Importantly, the judge also concluded that he was simultaneously ordinarily resident in Singapore, although the High Court indicated that the necessity of that additional finding was not central to the jurisdictional conclusion. The Court of Appeal treated the key point as follows: once the jurisdictional trigger in O 23 r 1(1)(a) is satisfied—ie, where the plaintiff is ordinarily resident out of Singapore—the court may order security for costs even if the plaintiff is also ordinarily resident in Singapore. The Court of Appeal therefore rejected the appellants’ argument that the rule only targets plaintiffs who are exclusively outside Singapore.
In addressing the appellants’ reliance on Rivera, the Court of Appeal did not accept that the Australian authority compelled a different interpretation of O 23 r 1. The Court of Appeal’s reasoning was grounded in the statutory text and the practical rationale of security for costs. The rationale is to ensure that there is a fund within the jurisdiction to meet any costs order in favour of the defendant(s). That rationale applies with equal force where a plaintiff is ordinarily resident both inside and outside Singapore, because the existence of ordinary residence in Singapore does not necessarily guarantee that costs can be recovered in practice. The court’s concern is not merely theoretical amenability to process, but the real availability of assets to satisfy a costs award.
Having established jurisdiction, the Court of Appeal then considered the exercise of discretion. The High Court judge had taken into account several factors. These included the appellants’ lack of ready assets in Singapore, the absence of evidence that the security application was oppressive, and the fact that neither party’s case in the main action was obviously stronger. The Court of Appeal also noted that the judge’s discretion was informed by the overall litigation context, including the respondents’ allegations about the Mareva injunction and the manner in which the action had been pursued. While such allegations do not determine the merits of the main action, they may be relevant to whether it is appropriate to require security to protect defendants against the risk of being unable to recover costs.
On the specific argument that security should not be ordered against the second and third appellants because they were co-plaintiffs of the first appellant who was ordinarily resident in Singapore, the High Court judge had indicated that it was unnecessary to make findings under O 23 r 1(1)(b) given the jurisdiction already triggered under O 23 r 1(1)(a). The Court of Appeal’s analysis therefore focused on the sufficiency of the jurisdictional basis under O 23 r 1(1)(a), rather than requiring a separate determination of whether the second and third appellants were nominal plaintiffs or whether the “co-plaintiff resident within jurisdiction” principle should apply.
Finally, the Court of Appeal addressed the appellants’ attempt to raise an additional point on appeal regarding delay by the second and third respondents. The Court of Appeal’s treatment of this issue reflected the general appellate principle that new points should not ordinarily be introduced on appeal unless they can be fairly decided on the existing record and do not require further factual findings. In any event, the Court of Appeal did not find that the delay argument undermined the High Court judge’s discretionary decision to order security.
What Was the Outcome?
The Court of Appeal dismissed the appeal and upheld the High Court judge’s orders requiring the appellants to furnish security for costs. The practical effect was that the appellants had to provide $35,000 as security for the costs of the first respondent and $40,000 as security for the costs of the second and third respondents, up to and including the date for filing the List of Documents in the main action.
By confirming the High Court’s approach, the Court of Appeal reinforced that security for costs under O 23 r 1 can be ordered against plaintiffs who are ordinarily resident outside Singapore even if they are also ordinarily resident in Singapore. The decision therefore strengthens defendants’ ability to protect themselves against the risk of unrecoverable costs in multi-jurisdictional litigation.
Why Does This Case Matter?
This case is significant for practitioners because it clarifies the scope of the jurisdictional trigger under O 23 r 1(1)(a) of the ROC. The Court of Appeal’s endorsement of the possibility of concurrent ordinary residence in more than one place—and its acceptance that security may still be ordered where the plaintiff is ordinarily resident out of Singapore—reduces uncertainty for defendants seeking security in cross-border disputes.
For plaintiffs, the decision highlights that being ordinarily resident in Singapore does not automatically immunise them from security for costs. The court’s focus is on whether the statutory conditions are met and, crucially, on the practical rationale of ensuring a fund within the jurisdiction to satisfy costs orders. Plaintiffs who are connected to multiple jurisdictions should therefore expect security applications where evidence supports ordinary residence outside Singapore.
For law students and litigators, the case also illustrates how courts separate jurisdiction from discretion. Even where the “ordinarily resident” inquiry is contested, once jurisdiction is established, the discretionary decision will be guided by factors such as the availability of assets, the risk of non-recovery, and the litigation context. The decision also demonstrates the importance of raising all relevant arguments at the earliest stage, as appellate attempts to introduce new points (such as delay) may face procedural and evidential hurdles.
Legislation Referenced
- Rules of Court (Cap 322, R 5, 2006 Rev Ed), O 23 r 1(1) (security for costs)
Cases Cited
- [2011] SGCA 40 (reported as the present decision)
- Tjong Very Sumito and others v Chan Sing En and others [2011] 2 SLR 360 (High Court decision appealed from)
- Rivera v Australian Broadcasting Corporation [2005] FCA 661
Source Documents
This article analyses [2011] SGCA 40 for legal research and educational purposes. It does not constitute legal advice. Readers should consult the full judgment for the Court's complete reasoning.