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
- Coram: Andrew Ang J
- Case Number: Suit No 89 of 2010 (Registrar’s Appeal No 234 of 2010 and Summons No 2961 of 2010)
- Tribunal/Court: High Court
- Plaintiffs/Applicants: Tjong Very Sumito and others
- Defendants/Respondents: Chan Sing En and others
- Legal Area(s): Civil procedure – Costs – Security for costs
- 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)
- Procedural History: Registrar’s decision (27 May 2010) dismissed the first defendant’s application for security for costs; first defendant appealed (RA 234/2010); fifth and sixth defendants applied via Sum 2961/2010; High Court heard both together and granted security for costs on 12 October 2010, with further arguments on 26 October 2010.
- Reported Length: 13 pages, 8,041 words
- Key Statutory Provision Referenced (in extract): O 23 r 1 of the Rules of Court (Cap 322, R5, 2006 Rev Ed)
- Cases Cited (as provided): [2004] SGHC 102; [2010] SGHC 344
Summary
Tjong Very Sumito and others v Chan Sing En and others concerned applications for security for costs against the plaintiffs in a multi-defendant dispute arising from share sale and purchase agreements. The plaintiffs had commenced Suit No 89 of 2010 in February 2010, alleging fraud, conspiracy using unlawful means, and claims in trust and moneys had and received. The first defendant and the fifth and sixth defendants sought security for costs on the basis that the plaintiffs were ordinarily resident out of Singapore, or otherwise fell within the conditions for ordering security under O 23 r 1 of the Rules of Court.
The matter began before a Registrar who dismissed the first defendant’s application, holding that the first plaintiff was ordinarily resident in Singapore and, in addition, considering that a co-plaintiff resident within the jurisdiction would ordinarily preclude an order for security. On appeal and on the related summons, Andrew Ang J reversed the Registrar’s decision and ordered security for costs against the plaintiffs. The High Court’s written grounds clarified the meaning and application of “ordinarily resident” for the purposes of O 23 r 1, including whether a person can be ordinarily resident both within and outside the jurisdiction, and how that affects the court’s discretion to order security.
What Were the Facts of This Case?
The plaintiffs commenced the suit in February 2010 against the first to ninth defendants. Subsequently, by way of amendment to the statement of claim on 26 August 2010, the tenth defendant, Magnus Energy Group Ltd (“MEGL”), and the eleventh defendant, Antig Investments Pte Ltd (“Antig”), were added. Antig was described as a wholly-owned subsidiary of MEGL. The dispute centred on the plaintiffs’ alleged losses connected to share sale transactions involving Indonesian companies.
At the heart of the claim were three share sale and purchase agreements. The first was a share sale and purchase agreement dated 23 November 2004 (“the 1st S&PA”) under which the plaintiffs agreed to sell, in aggregate, 72% of the shares in PT Deefu Chemical Indonesia (“PT Deefu”) to Antig for US$18m. The payment structure under the 1st S&PA was to be satisfied by a combination of cash and shares in MEGL. The 1st S&PA was later varied by four supplemental agreements and a letter dated 31 May 2006 from Antig to the plaintiffs. The variations altered the payment terms so that, out of the US$18m sale price, US$6m was to be paid in cash to the first plaintiff, while the remaining US$12m was to be paid in cash to the second and fourth defendants, together with shares in MEGL.
Two additional transactions were implemented under a second share sale and purchase agreement dated 12 July 2007 (“the 2nd S&PA”). First, the first plaintiff sold 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. Second, the first plaintiff sold his remaining 28% interest in PT Deefu to the eighth defendant for US$1.68m. The plaintiffs alleged that, despite the contractual arrangements, they did not receive the full sale price as promised.
According to the extracted background, the plaintiffs had received directly approximately US$5.5m pursuant to the modified 1st S&PA, while the second and fourth defendants had received US$12m in total. The plaintiffs’ pleaded causes of action included: (a) fraudulent misrepresentation, allegedly made by the first and fifth defendants acting as agents for MEGL, that the sale price would be paid to the plaintiffs; (b) conspiracy using unlawful means, allegedly involving the first to sixth defendants and/or MEGL, to cause the plaintiffs to enter into the 1st S&PA on the basis of promised payment; and (c) claims for resulting and/or constructive trust and/or moneys had and received against various defendants for moneys allegedly wrongfully received in relation to the 1st and 2nd S&PAs.
What Were the Key Legal Issues?
The immediate legal issue was whether the court should order security for costs against the plaintiffs under O 23 r 1 of the Rules of Court. That provision permits the court, on application by a defendant, to order security where it appears to the court that, among other conditions, the plaintiff is ordinarily resident out of the jurisdiction. The court’s power is discretionary: even if a factual condition is satisfied, the court must decide whether it is “just” to order security having regard to all the circumstances.
A central issue in this case was the interpretation and application of “ordinarily resident” where a plaintiff’s life and presence may span more than one jurisdiction. The High Court had to address arguments about whether a person can be ordinarily resident both within and outside Singapore for the purposes of O 23 r 1. This issue mattered because the Registrar had concluded that the first plaintiff was ordinarily resident in Singapore, thereby refusing security. The defendants’ appeal required the High Court to revisit that conclusion and clarify the legal test.
Related to the “ordinarily resident” question was the court’s approach to co-plaintiffs and nominal plaintiffs. The Registrar had considered that the second and third plaintiffs were nominal plaintiffs and had also been “minded” to apply a principle from the White Book (Singapore Civil Procedure) that no order for security for costs will be made if there is a co-plaintiff resident within the jurisdiction. The High Court’s decision necessarily engaged with how such principles interact with the statutory conditions and the court’s discretion.
How Did the Court Analyse the Issues?
Andrew Ang J began by setting out the structure of O 23 r 1. The court’s jurisdiction to order security for costs is founded on at least one of the factual conditions listed in O 23 r 1(1)(a)–(d). Once one condition is satisfied, the court may exercise its discretion to order security if it thinks it just, considering all the circumstances. The judgment also reiterated that factors commonly taken into account include 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. In support of these principles, the court referred to authorities such as Sir Lindsay Parkinson & Co Ltd v Triplan Ltd and Creative Elegance (M) Sdn Bhd v Puay Kim Seng.
On the meaning of “ordinarily resident”, the court adopted the natural and ordinary meaning rather than treating the phrase as a term of art. The High Court relied on the House of Lords decision in Regina v Barnet London Borough Council, Ex parte Nilish Shah, where “ordinarily resident” was described as referring to a person’s abode in a particular place or country which the person has adopted voluntarily and for settled purposes as part of the regular order of life for the time being. The court emphasised that ordinary residence turns on the state of mind of the “propositus” and requires both voluntary adoption and a degree of settled purpose. Importantly, the purpose need not be indefinite; it may be for a limited period so long as it is settled and has sufficient continuity.
The court further explained that tax cases such as Levene v Commissioners of Inland Revenue and Commissioners of Inland Revenue v Lysaght had been used to elucidate the ordinary meaning of “ordinary residence”, and that the approach in Shah could be applied beyond tax contexts. The High Court also cited In re Little Olympian Each Ways Ltd for the proposition that there is no “awkwardness” in adopting the tax-case test for other purposes, including security for costs. This analytical step was significant because it anchored the court’s interpretation in established precedent and in the conceptual focus on continuity and settled purpose.
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, citing an unreported Court of Appeal decision (Parkinson v Myer Wolff and Manley). However, in further arguments, counsel took the opposite position: if a person is ordinarily resident within Singapore, that same person cannot be ordinarily resident in another jurisdiction. The plaintiffs relied on Wishing Star Ltd v Jurong Town Corp, where Choo Han Teck J expressed the view 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 the analogy that one may set up more than one residence but a house is not a home.
Andrew Ang J’s reasoning, as reflected in the extract, indicates that the court treated this as an “interesting issue” requiring clarification. The court’s approach would have been to reconcile the conceptual test of ordinary residence (settled purpose and continuity) with the practical realities of modern mobility. While the extract truncates the later part of the judgment, the framing suggests that the court was prepared to determine whether the statutory phrase permits overlapping ordinary residence, or whether the test is inherently exclusive. The court’s reliance on Shah and on the continuity requirement would likely have been used to assess whether the plaintiff’s connections to Singapore and to another jurisdiction were sufficiently settled and continuous to amount to ordinary residence in both places, or whether the evidence supported only one settled centre of life.
Finally, the High Court’s decision to award security for costs despite the Registrar’s view indicates that the court found the statutory condition(s) for ordering security to be satisfied on the evidence. Even where the claim may be bona fide, the discretion to order security is exercised in light of the plaintiff’s ability to meet costs if unsuccessful. The court’s analysis therefore would have integrated the “ordinarily resident” findings with the broader discretionary considerations, including the risk that the plaintiffs would be unable to pay costs and whether ordering security was just in the circumstances.
What Was the Outcome?
After hearing submissions and granting security for costs in an oral judgment on 12 October 2010, Andrew Ang J maintained the decision following further arguments on 26 October 2010. The High Court allowed the appeal in Registrar’s Appeal No 234 of 2010 and granted security for costs against the plaintiffs, thereby overturning the Registrar’s earlier refusal.
Practically, the effect of the decision was that the plaintiffs were required to provide security for the defendants’ costs. This would have served to protect the defendants against the risk of being unable to recover costs if the plaintiffs’ claims failed, and it also signalled that the High Court would scrutinise carefully the factual basis for “ordinary residence” determinations under O 23 r 1.
Why Does This Case Matter?
Tjong Very Sumito v Chan Sing En is important for practitioners because it clarifies how Singapore courts interpret “ordinarily resident” in the security-for-costs context. By grounding the analysis in Shah and in the continuity-and-settled-purpose approach, the case provides a structured framework for assessing ordinary residence. Lawyers advising plaintiffs facing security applications can use this framework to evaluate whether the evidence demonstrates a settled centre of life in Singapore or elsewhere.
The case also matters because it addresses a recurring litigation problem: plaintiffs who maintain connections to multiple jurisdictions. The High Court’s engagement with whether ordinary residence can exist in more than one place helps litigants anticipate how courts may treat cross-border living, business travel, and fluctuating presence. This is particularly relevant for international commercial disputes where parties may have homes, employment, or family ties in different countries.
From a procedural standpoint, the decision also illustrates the appellate willingness to correct Registrar-level determinations on ordinary residence and to apply the statutory discretion afresh. For defendants, it supports the strategic use of security for costs where there is a credible basis to argue that the plaintiff is ordinarily resident out of jurisdiction (or otherwise falls within O 23 r 1). For plaintiffs, it underscores the need to present detailed and persuasive evidence on residence, continuity, and settled purpose, rather than relying on formal or partial indicators.
Legislation Referenced
- Rules of Court (Cap 322, R5, 2006 Rev Ed), Order 23 Rule 1 (Security for costs of action, etc.)
Cases Cited
- 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
- 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
- Wishing Star Ltd v Jurong Town Corp [2004] 1 SLR(R) 1
- Parkinson v Myer Wolff and Manley (a firm) (23 April 1985, Court of Appeal, unreported)
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.