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
- Decision Type: Written grounds following an earlier oral decision and subsequent further arguments
- Plaintiffs/Applicants: Tjong Very Sumito and others
- Defendants/Respondents: Chan Sing En and others
- Procedural Posture: Registrar’s decision on security for costs appealed by the first defendant; separate security-for-costs application by the fifth and sixth defendants heard together
- Key Procedural Dates: 27 May 2010 (AR dismisses security application); 29 September 2010 (submissions heard); 12 October 2010 (oral decision awarding security); 26 October 2010 (further arguments)
- 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
- Statutes Referenced: Rules of Court (Cap 322, R5, 2006 Rev Ed), in particular O 23 r 1
- Cases Cited: [2004] SGHC 102; [2010] SGHC 344 (as the present case); plus authorities quoted in the extract (including 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))
- Judgment Length: 13 pages, 8,041 words
Summary
Tjong Very Sumito and others v Chan Sing En and others [2010] SGHC 344 concerned applications for security for costs under O 23 r 1 of the Rules of Court. The first defendant appealed against the Assistant Registrar’s refusal to order security, while the fifth and sixth defendants brought a separate summons for similar relief. The High Court (Andrew Ang J) ultimately granted security for costs against the plaintiffs, clarifying the approach to “ordinary residence” for the purposes of O 23 r 1(1)(a).
The central issue was whether a plaintiff could be “ordinarily resident” both within and outside Singapore, and if so, whether that affects the court’s power to order security. The court treated “ordinarily resident” as a fact-sensitive concept grounded in the natural and ordinary meaning of the phrase, drawing on authorities concerning ordinary residence in other contexts. Applying those principles, the court held that the plaintiffs’ residence status for security-for-costs purposes warranted an order for security, notwithstanding arguments that the existence of a residence within jurisdiction should preclude such an order.
What Were the Facts of This Case?
The plaintiffs commenced Suit No 89 of 2010 in February 2010 against multiple defendants. The dispute arose from a series of share sale and purchase transactions involving Indonesian companies. The tenth defendant, Magnus Energy Group Ltd (“MEGL”), and the eleventh defendant, Antig Investments Pte Ltd (“Antig”), were added by 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 a shares sale and purchase agreement dated 23 November 2004 (the “1st S&PA”) and two other share sale 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 Chemical Indonesia (“PT Deefu”) to Antig for US$18m. The sale price was to be paid by Antig in 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, which altered the payment allocation: 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 as well as shares in MEGL.
Under the 2nd S&PA, the first plaintiff sold (a) his 5% interest in 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, despite the contractual arrangements, the sale price was not paid to them as represented.
As to the pleaded causes of action, the plaintiffs alleged, inter alia, fraudulent misrepresentation (against the first and fifth defendants and MEGL), unlawful means conspiracy (against the first to sixth defendants and/or MEGL), and resulting or constructive trust and/or moneys had and received in relation to sums allegedly wrongfully received in connection with the 1st and 2nd S&PAs. The security-for-costs applications arose against this substantive background, but the High Court’s decision focused on procedural risk: whether the plaintiffs would be unable to pay the defendants’ costs if ordered to do so.
What Were the Key Legal Issues?
The first legal issue was the proper construction and application of O 23 r 1 of the Rules of Court, particularly the condition that “it appears to the Court that the plaintiff is ordinarily resident out of the jurisdiction” (O 23 r 1(1)(a)). The court had to determine what “ordinarily resident” means in this procedural context and how it should be assessed on the evidence.
The second issue was whether a plaintiff can be “ordinarily resident” in more than one jurisdiction at the same time, and whether the existence of ordinary residence within Singapore necessarily prevents an order for security for costs. This issue was sharpened by conflicting submissions: the plaintiffs initially argued that a person can be ordinarily resident in more than one place, but later contended that if a person is ordinarily resident within Singapore, he cannot simultaneously be ordinarily resident elsewhere for O 23 r 1 purposes.
Third, the court had to consider the interaction between the “ordinarily resident” inquiry and the court’s discretion once a factual condition under O 23 r 1(1)(a)–(d) is satisfied. Even where the statutory threshold is met, the court must still decide whether it is “just” to order security, taking into account factors such as the bona fides of the claim and whether the application is being used oppressively to stifle a genuine action.
How Did the Court Analyse the Issues?
Andrew Ang J began by setting out the procedural history. The first defendant had applied to the Assistant Registrar for security for costs (Sum 1720/2010). The AR dismissed the application on 27 May 2010, reasoning that the first plaintiff was ordinarily resident in Singapore. The AR also treated the second and third plaintiffs as nominal plaintiffs and considered the “co-plaintiff resident within the jurisdiction” principle, as reflected in the White Book (Singapore Civil Procedure (Sweet & Maxwell Asia, 2007) at para 23/3/10), which suggests that security will not ordinarily be ordered where there is a co-plaintiff resident within the jurisdiction.
On appeal (RA 234/2010), the High Court heard submissions and, after an initial oral decision on 12 October 2010, awarded security for costs. The plaintiffs then requested further arguments and clarification. The court heard further arguments on 26 October 2010 but remained unpersuaded to alter its earlier decision. The written grounds therefore addressed the “interesting issue” of whether ordinary residence can be both within and outside the jurisdiction for security-for-costs purposes, and how that affects the court’s power to order security.
On the meaning of “ordinarily resident”, the court adopted the natural and ordinary meaning rather than treating the phrase as a technical term. The judgment relied on Regina v Barnet London Borough Council, Ex parte Nilish Shah [1983] 2 AC 309, where the House of Lords explained that “ordinarily resident” refers to a person’s abode in a place or country adopted voluntarily and for settled purposes as part of the regular order of life. The court emphasised that the “state of mind of the propositus” is paramount, and that there must be both voluntary adoption and a degree of settled purpose, even if the purpose is for a limited period.
To support the approach, the court also drew on tax authorities (Levene v Commissioners of Inland Revenue [1928] AC 217 and Commissioners of Inland Revenue v Lysaght [1928] AC 234) that had been used in Shah to elucidate ordinary residence. Although those cases were tax-related, the court accepted the reasoning in In re Little Olympian Each Ways Ltd [1995] 1 WLR 560 that the test can be adopted for other contexts without injustice. This reinforced the court’s view that “ordinary residence” is inherently fact-driven and should be assessed by reference to continuity and settled purpose.
Turning to the possibility of ordinary residence in more than one jurisdiction, the court addressed the competing submissions. Counsel for the plaintiffs cited an unreported Court of Appeal decision (Parkinson v Myer Wolff and Manley (a firm), 23 April 1985) for the proposition that a person can be ordinarily resident in more than one place. However, the plaintiffs later argued the opposite, relying 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. The court also considered the observations in Little Olympian about the added significance of the word “ordinarily”, which connotes continuity in the way things are usually or habitually ordered.
Although the extract provided is truncated after the discussion of the “ordinarily” adverb, the court’s overall direction is clear: it treated ordinary residence as a question of fact and continuity, and it rejected an overly rigid approach that would prevent the concept from applying where a person’s life is genuinely organised across jurisdictions. The court’s reasoning proceeded from the statutory purpose of O 23 r 1: to protect defendants from the risk of being unable to recover costs from plaintiffs who are outside the jurisdiction, while still preserving the court’s discretion to avoid oppressive or stifling applications.
Finally, the court reiterated that once one of the factual conditions in O 23 r 1(1)(a)–(d) is satisfied, the court may order security if it thinks it just, having regard to all circumstances. The judgment referenced the general principles that security should not be ordered oppressively to stifle a bona fide claim, and it cited authorities such as Sir Lindsay Parkinson & Co Ltd v Triplan Ltd [1973] QB 609 and Creative Elegance (M) Sdn Bhd v Puay Kim Seng [1999] 1 SLR(R) 112 for the discretionary factors commonly considered, including bona fides and prospects of success.
What Was the Outcome?
The High Court allowed the first defendant’s appeal in RA 234/2010 and granted security for costs against the plaintiffs. The court also allowed the fifth and sixth defendants’ application in Sum 2961/2010. In practical terms, the decision meant that the plaintiffs were required to provide security to protect the defendants’ ability to recover costs if the plaintiffs’ claims failed.
The court’s orders followed its earlier oral decision on 12 October 2010, and the subsequent written grounds confirmed that the court was not persuaded to alter its decision after further arguments and requests for clarification. The outcome therefore turned on the court’s assessment of ordinary residence for O 23 r 1 purposes and its conclusion that, in the circumstances, it was just to order security.
Why Does This Case Matter?
Tjong Very Sumito v Chan Sing En [2010] SGHC 344 is significant for practitioners because it clarifies how Singapore courts should interpret “ordinarily resident” in the context of security for costs. By anchoring the concept in the natural and ordinary meaning and the settled-purpose test from Shah, the decision provides a structured framework for evidence gathering and argumentation: parties should focus on voluntary adoption of abode, continuity, and the propositus’s settled intentions.
More importantly, the case addresses the practical litigation problem that arises where plaintiffs have connections to multiple jurisdictions. The court’s engagement with the question whether ordinary residence can exist in more than one place helps lawyers anticipate how residence evidence will be evaluated. This is particularly relevant for cross-border commercial disputes, where plaintiffs may maintain homes, businesses, or family ties in more than one country.
For defendants, the decision supports the strategic use of O 23 r 1 to manage cost recovery risk. For plaintiffs, it underscores that simply pointing to some connection with Singapore may not be sufficient to defeat an application for security if the evidence shows that the plaintiff’s ordinary life is not settled within Singapore in the relevant sense. The case therefore has direct implications for how both sides should present evidence on residence and ability to pay costs, and for how courts will balance the protective purpose of security orders against the need to avoid stifling genuine claims.
Legislation Referenced
- Rules of Court (Cap 322, R5, 2006 Rev Ed), Order 23 rule 1 (Security for costs of action, etc.)
Cases Cited
- [2004] SGHC 102
- [2010] SGHC 344
- 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.