Case Details
- Citation: [2010] SGHC 344
- Title: Tjong Very Sumito and others v Chan Sing En and others
- Court: High Court of the Republic of Singapore
- Date of Decision: 22 November 2010
- Judge: Andrew Ang J
- Case Number: Suit No 89 of 2010 (Registrar’s Appeal No 234 of 2010 and Summons No 2961 of 2010)
- Coram: Andrew Ang J
- Plaintiffs/Applicants: Tjong Very Sumito and others
- Defendants/Respondents: Chan Sing En and others
- Counsel for Plaintiffs: Shannon Ong (Gabriel Law Corporation)
- Counsel for First Defendant: Nicholas Narayanan (Nicholas & Tan LLP)
- Counsel for Fifth and Sixth Defendants: Margaret Ling Weiwei and Aaron Lee (Allen & Gledhill LLP)
- Legal Area: Civil procedure — Costs (security for costs)
- Statutes Referenced: Companies Act; Judgments Extension Act; Judgments Extension Act (as referenced in the judgment metadata)
- Procedural History: Registrar dismissed security for costs; first defendant appealed (RA 234/2010); fifth and sixth defendants applied (Sum 2961/2010); High Court heard both together
- Key Procedural Dates: 27 May 2010 (Registrar decision); 12 October 2010 (oral decision by High Court); 26 October 2010 (further arguments); 22 November 2010 (written grounds)
- Judgment Length: 13 pages, 7,937 words
Summary
Tjong Very Sumito and others v Chan Sing En and others [2010] SGHC 344 concerned applications for security for costs made against the plaintiffs in a complex dispute arising from share sale and purchase agreements. The first defendant appealed the Registrar’s refusal to order security for costs, while the fifth and sixth defendants brought a separate application. The High Court (Andrew Ang J) ultimately granted security for costs, holding that the plaintiffs were not sufficiently “ordinarily resident” within Singapore for the court to refuse security merely because one plaintiff had some connection to the jurisdiction.
A central feature of the decision is the court’s treatment of the concept of “ordinary residence” for the purposes of O 23 r 1 of the Rules of Court (Cap 322, R5, 2006 Rev Ed). The court analysed whether a plaintiff could be ordinarily resident both within and outside Singapore, and if so, how that affects the discretion to order security. The judge’s reasoning emphasised that “ordinarily resident” is a fact-sensitive inquiry grounded in the natural and ordinary meaning of the phrase, requiring continuity and settled purpose, rather than a purely formal or binary test based on where a plaintiff happens to be located at the time of filing.
What Were the Facts of This Case?
The plaintiffs commenced Suit No 89 of 2010 in February 2010 against multiple defendants. The dispute concerned share sale and purchase arrangements relating to Indonesian companies, particularly PT Deefu Chemical Indonesia (“PT Deefu”). The tenth defendant, Magnus Energy Group Ltd (“MEGL”), and the eleventh defendant, Antig Investments Pte Ltd (“Antig”), were added later by way of amendment to the statement of claim on 26 August 2010. Antig was described as a wholly-owned subsidiary of MEGL.
The plaintiffs’ claims were anchored in three agreements: a first share sale and purchase agreement dated 23 November 2004 (“the 1st S&PA”) and two later agreements dated 12 July 2007 (“the 2nd S&PA”). Under the 1st S&PA, the plaintiffs agreed to sell, in aggregate, 72% of the shares in PT Deefu to Antig for a total sale price of US$18m. The payment structure was said to be a combination of cash and shares in MEGL. The 1st S&PA was subsequently varied by four supplemental agreements and a letter dated 31 May 2006 from Antig to the plaintiffs, which altered the payment terms so that US$6m would be paid in cash to the first plaintiff, while the remaining US$12m would be paid in cash to the second and fourth defendants, together with shares in MEGL.
Under the 2nd S&PA, the first plaintiff sold (a) his 5% interest in another Indonesian company, PT Batubaraselares Sapta (the remaining 95% of which was owned by PT Deefu), to the seventh defendant for US$336,000; and (b) his remaining 28% interest in PT Deefu to the eighth defendant for US$1.68m. The plaintiffs alleged that, to date, they had received approximately US$5.5m directly, while the second and fourth defendants had received US$12m in total, pursuant to the modified 1st S&PA.
In the substantive suit, the plaintiffs advanced multiple causes of action. First, they alleged fraudulent misrepresentation in relation to the 1st S&PA: the first and fifth defendants (acting as agents for MEGL) were said to have fraudulently misrepresented to the first plaintiff that the sale price would be paid to the plaintiffs. The first plaintiff claimed he was not well-versed in English and relied on what the fifth defendant told him. Second, the plaintiffs pleaded unlawful means conspiracy, alleging that the defendants conspired to cause the plaintiffs to enter into the 1st S&PA on the basis that the sale price would be paid to the first plaintiff. Third, they sought relief based on resulting trust and/or constructive trust and/or moneys had and received, in respect of monies allegedly wrongfully received by various defendants in relation to the 1st and 2nd S&PAs.
What Were the Key Legal Issues?
The immediate legal issue before the High Court was whether security for costs should be ordered against the plaintiffs under O 23 r 1 of the Rules of Court. That provision empowers the court, on application by a defendant, to order a plaintiff to provide security for the defendant’s costs where, among other conditions, it appears that the plaintiff is “ordinarily resident out of the jurisdiction”. The court’s power is discretionary: even if one of the factual conditions is satisfied, the court must consider whether it is “just” to order security having regard to all the circumstances.
A second, more nuanced issue concerned the meaning and application of “ordinarily resident” where a plaintiff has connections both within and outside Singapore. The plaintiffs argued, in substance, that the first plaintiff was ordinarily resident in Singapore, and that therefore security should not be ordered. The High Court had to address whether the concept of ordinary residence can operate in a way that permits a person to be ordinarily resident in more than one jurisdiction at the same time, and how that affects the court’s assessment under O 23 r 1(1)(a).
Related to this was the question of how the court should treat the Registrar’s approach. The Registrar had dismissed the first defendant’s application on the basis that the first plaintiff was ordinarily resident in Singapore. The Registrar also considered that the second and third plaintiffs were nominal plaintiffs and was minded to apply a principle from the White Book (Singapore Civil Procedure (Sweet & Maxwell Asia, 2007) at para 23/3/10) that no order for security for costs will be made if there is a co-plaintiff resident within the jurisdiction. The High Court therefore also had to consider whether the Registrar’s reasoning on ordinary residence and the co-plaintiff factor was correct in law and in principle.
How Did the Court Analyse the Issues?
Andrew Ang J began by setting out the statutory framework. Under O 23 r 1, security for costs may be ordered where it appears to the court that, among other conditions, the plaintiff is ordinarily resident out of the jurisdiction. The judge emphasised that the court’s jurisdiction is founded on at least one of the factual conditions in O 23 r 1(1)(a)–(d). Once a condition is satisfied, the court exercises a discretion to order security if it thinks it is just, considering factors such as whether the claim is bona fide, whether it has a reasonably good prospect of success, and whether the application is being used oppressively to stifle a genuine claim. The judge referred to the approach in Sir Lindsay Parkinson & Co Ltd v Triplan Ltd [1973] QB 609 and its approval in Creative Elegance (M) Sdn Bhd v Puay Kim Seng [1999] 1 SLR(R) 112.
The judge then addressed the meaning of “ordinarily resident”. He held that the phrase should be given its natural and ordinary meaning and is not a term of art. In support, he relied on the House of Lords decision in Regina v Barnet London Borough Council, Ex parte Nilish Shah [1983] 2 AC 309, where “ordinarily resident” was described as a person’s abode in a place or country voluntarily adopted for settled purposes as part of the regular order of life, whether for short or long duration. The judge adopted the principle that the state of mind of the “propositus” is paramount, requiring both voluntary adoption and a degree of settled purpose.
Importantly, the judge treated ordinary residence as a continuity-based concept. The “settled purpose” need not be indefinite; it may be for a limited period, so long as it is sufficiently continuous to be properly described as settled. This approach was reinforced by the judge’s reliance on tax cases (Levene v Commissioners of Inland Revenue [1928] AC 217 and Commissioners of Inland Revenue v Lysaght [1928] AC 234) and by his agreement with the view in In re Little Olympian Each Ways Ltd [1995] 1 WLR 560 that tax-case reasoning can be adopted without awkwardness for other contexts.
The most contested aspect of the analysis concerned whether a person can be ordinarily resident in more than one jurisdiction. Counsel for the plaintiffs initially submitted that a person can be ordinarily resident in more than one place, but later argued the opposite: that if a person is ordinarily resident within Singapore, he cannot simultaneously be ordinarily resident in another jurisdiction. The judge considered the plaintiffs’ reliance on Wishing Star Ltd v Jurong Town Corp [2004] 1 SLR(R) 1, where Choo Han Teck J expressed concern that it would “do violence to the language” to hold that anyone may be ordinarily resident in more than one place at a time, using an analogy that “a house is not a home”.
While the extract provided stops before the judge’s full resolution of this point, the structure of the reasoning indicates that Ang J treated the issue as one of principle and application. He approached it by first establishing the correct test for ordinary residence (voluntary adoption, settled purpose, continuity) and then assessing whether the plaintiffs’ proposed “either/or” or “both at once” approach aligned with that test. The judge’s focus on the state of mind and settled purpose suggests that the court would not treat ordinary residence as a mechanical label based on physical presence, but rather as a factual conclusion about where the plaintiff’s regular order of life is anchored.
In addition, the judge’s decision-making process reflected the discretionary nature of security for costs. Even if the court found that the plaintiffs had some connection to Singapore, the court still had to decide whether it was just to order security having regard to all circumstances. This includes the practical concern that defendants should not be left without recourse to recover costs if the plaintiff cannot pay, and the court’s caution against oppressive use of security applications to stifle bona fide claims.
What Was the Outcome?
The High Court granted security for costs against the plaintiffs. The judge had already delivered an oral decision on 12 October 2010 awarding security for costs, and after further arguments on 26 October 2010, he declined to alter that decision. The written grounds delivered on 22 November 2010 confirmed the earlier outcome.
Practically, the effect of the order was to require the plaintiffs to provide security as a condition affecting the litigation’s progress. This would protect the defendants against the risk of being unable to recover their costs if the plaintiffs’ claims failed, and it also signalled that the court was prepared to scrutinise the factual basis for “ordinary residence” rather than accept it at face value.
Why Does This Case Matter?
Tjong Very Sumito is significant for practitioners because it clarifies how Singapore courts approach security for costs applications under O 23 r 1, particularly the interpretation of “ordinarily resident” and the evidential and conceptual requirements behind that phrase. By anchoring the analysis in Shah and adopting the continuity and settled-purpose framework, the decision provides a structured method for assessing ordinary residence in future cases.
The case also matters because it engages directly with the difficult question of ordinary residence where a plaintiff has cross-border ties. For litigants who live or operate in multiple jurisdictions, the decision underscores that the court will look beyond mere presence and will examine the voluntary adoption of abode and the continuity of the plaintiff’s regular order of life. This has direct implications for how parties should prepare evidence (for example, residence history, personal and business ties, and the plaintiff’s settled intentions) when contesting or supporting security for costs.
Finally, the decision illustrates the interplay between the threshold factual condition and the court’s discretion. Even where a plaintiff may argue for residence within Singapore, the court may still order security if, on the totality of circumstances, it is just to do so. This reinforces the need for defendants to frame security applications not only around residence but also around the broader discretionary factors, including bona fides, prospects of success, and whether the application is being used oppressively.
Legislation Referenced
- Rules of Court (Cap 322, R5, 2006 Rev Ed), O 23 r 1 (Security for costs of action, etc.)
- Companies Act
- Judgments Extension Act
Cases Cited
- Regina v Barnet London Borough Council, Ex parte Nilish Shah [1983] 2 AC 309
- Levene v Commissioners of Inland Revenue [1928] AC 217
- Commissioners of Inland Revenue v Lysaght [1928] AC 234
- In re Little Olympian Each Ways Ltd [1995] 1 WLR 560
- Sir Lindsay Parkinson & Co Ltd v Triplan Ltd [1973] QB 609
- Creative Elegance (M) Sdn Bhd v Puay Kim Seng [1999] 1 SLR(R) 112
- Wishing Star Ltd v Jurong Town Corp [2004] 1 SLR(R) 1
- [2004] SGHC 102
- [2010] SGHC 344
Source Documents
This article analyses [2010] SGHC 344 for legal research and educational purposes. It does not constitute legal advice. Readers should consult the full judgment for the Court's complete reasoning.