SETTING ASIDE REGISTRATION OF A FOREIGN JUDGMENT BY REASON OF “APPEAL”
In the decision of Tan Hock Keng v Malaysian Trustees Bhd and another matter [2021] SGHC(A) 18, the Appellate Division of the High Court dismissed the appeal to set aside the registration of a consent judgment granted in Malaysia on the basis that there was no “appeal” within the meaning of Section 3(2)(e) of the Reciprocal Enforcement of Commonwealth Judgments Act (Cap 264, 1985 Rev Ed) (“RECJA”).
Facts. This appeal concerned an application to set aside the registration of a consent judgment granted in Malaysia in November 2019 (“2019 Consent Judgment”) (at [1]). The registration of a foreign judgment under the RECJA can be set aside if “an appeal is pending” or if the party to the appeal “is entitled and intends to appeal” against the foreign judgment, pursuant to s 3(2)(e) RECJA, read with O 67 r 9(3) of the Rules of Court (2014 Rev Ed).
In proceedings below (“RA 83”), the appellant, Mr. Tan Hock Keng (“Mr. Tan”), relied on a Malaysian application (“Malaysia OS 455”), claiming that it was an appeal against the 2019 Consent Judgment. His arguments were rejected by the judge below (at [2]).
On appeal, the appellant then pointed to an entirely different set of proceedings filed in Malaysia (“Malaysia Suit 437”) as the “appeal” that should suffice to set aside the registration of the 2019 Consent Judgment. However, Malaysia Suit 437 was not before the judge in proceedings below as it was only commenced after the Appellant’s Case was filed, and evidence of its filing was sought to be admitted belatedly through an application made thereafter (“SUM 26”).
The Appellate Division of the High Court dismissed SUM 26, which was Mr. Tan’s attempts to rely on Malaysia Suit 437, as “[i]t is not for [the appellant] to come before an appellate court as if it were a second court hearing RA 83 on different facts to recast and advance an entirely different case.” (at [3])
The appeal against the decision below in respect of Malaysia OS 455 was also dismissed.
Issues. The Court identified two main issues on appeal: (at [8])
“(a) Should SUM 26 be allowed?
(b) Does OS 455 (including the appeal against its dismissal at first instance) qualify as a pending appeal for the purposes of s 3(2)(e) of the RECJA?”
SUM 26. As this article focuses on the second issue, it suffices to say that in considering whether to receive on appeal further evidence as to matters that have occurred after the date of the hearing below, the Court followed BNX v BOE and another appeal [2018] SGCA 29 and dismissed SUM 26 (at [9] – [16]).
Pending appeal. The second issue was analysed by the Court with reference to three sub questions: (at [17])
“(a) Does Malaysia OS 455 fall within the ordinary meaning of the word “appeal”?
(b) Given that RECJA does not have a statutory definition for “appeal”, can the Reciprocal Enforcement of Foreign Judgments Act (Cap 265, 2001 Rev Ed) (“REFJA”) definition of “appeal”, be imported for present purposes?
(c) Assuming that the REFJA definition of “appeal” applies, does Malaysia OS 455 fall within that definition?”
(emphasis in original)
Malaysia OS 455 was Mr. Tan’s application to the High Court of Malaya in Kuala Lumpur “seeking, amongst other things, a declaration that the 2019 Consent Judgment was valid and binding and an extension of time to comply with his obligations under the 2019 Consent Judgment.” (at [5])
Ordinary meaning of appeal. The RECJA had no statutory definition of “appeal”. So, the Court looked at the plain reading of the word and found that it “simply does not encompass Malaysia OS 455” (at [18]).
The Court stated that “The common understanding of an appeal is that it is a proceeding involving a relationship of superior and inferior court intended to correct an error made in the inferior court. This accords not just with common sensibilities and experience but the same meaning is gleaned from the various legal dictionaries as well…” (at [19])
Therefore, Malaysia OS 455 was not an appeal because: (at [21])
“There was no attempt to bring the 2019 Consent Judgment to a court of superior jurisdiction. And there was no challenge against the RM60m consent judgment. Neither was there any attempt to correct anything about the 2019 Consent Judgment. If anything, Malaysia OS 455 sought to affirm the 2019 Consent Judgment and Mr Tan’s commitment to the order is renewed in this application (see prayer 1 of Malaysia OS 455). The only difference is that Mr Tan seeks more time to comply with a judgment that he plainly agrees with.”
(emphasis in original)
REFJA’s definition. The REFJA contained a definition of appeal in s 2(1) which “includes any proceedings by way of discharging or setting aside a judgment or an application for a new trial or stay of execution…” (at [22])
The Court acknowledged that “As a starting point, statutory definitions from one statute can be borrowed and applied to another if the two acts are in pari materia …” (at [23]; emphasis added by Court) and that “statutory meanings for the same words may be borrowed from other statutes if used in the same sense in both statutes…” (at [24])
But the Court found that RECJA and REFJA did not use the word “appeal” in the same sense when setting aside the registration of a foreign judgment (at [25]). The Court stated as follows: (at [25] – [27])
“…when it comes to the registration of judgments, RECJA and REFJA are animated by different concerns: RECJA, by what a court considers “just and convenient” (see s 3(1) RECJA); REFJA, by “substantial reciprocity of treatment” from the foreign country and whether the foreign judgment is “final and conclusive” (see ss 3(1) and 3(2) REFJA). In that context, the REFJA’s definition of “appeal” appears to inform what the statute means by “final and conclusive” (see s 3(5) REFJA). The word “appeal” in RECJA does not do the same. The general requirement for registration under s 3(1) RECJA is that the court must consider it “just and convenient”; reference to “appeal” under s 3(2)(e) RECJA ultimately serves that larger inquiry. In that regard, the word “appeal” in the RECJA and REFJA is couched in two very different inquiries, even as the context (setting aside the registration of a foreign judgment) remains the same.
… The real question is whether the similar subject matter is presently treated in the same way in these separate statutes. As we have stated above, they are not.
… Notably, a foreign judgment that is under appeal can still be registered under the REFJA if it is final and conclusive. In contrast, a foreign judgment that is under appeal cannot be registered under RECJA.”
(emphasis in original)
Therefore, the Court affirmed the judge’s decision below to decline to import the REFJA’s definition of “appeal” into the RECJA (at [28]).
Malaysia OS 455 and REFJA’s definition. In any event, the Court found that even if the REFJA’s definition of “appeal” was imported to help interpret the RECJA’s s 3(2)(e), it did not help the appellant’s case (at [29]).
This was because REFJA’s definition of “appeal” was an inclusive definition (as opposed to an exhaustive one) which did not displace the natural meaning of the word defined (at [30]). Therefore, the natural meaning of appeal still applied to RECJA.
The Court stated that: (at [31])
“… all that the REFJA’s definition of appeal does is to expand the definition of “appeal” to include those listed in that statutory definition. It does not evince some wider, broader understanding of “appeal” and certainly does not invite the court to conjure a larger notion of appeals in the abstract. Mr Tan’s argument, which seeks to rarefy the idea of “appeal” through abstraction, is ultimately unrealistic and more importantly, too far removed from both the statutory language and the ordinary meaning of the word “appeal” …”
(emphasis in original)
Therefore, even applying the REFJA’s definition of “appeal”, the Court found that the term could not possibly encompass applications like Malaysia OS 455.
Significance. The Appellate Division of the High Court reiterated the position in Tan Cheng Bock v Attorney-General [2017] 2 SLR 850 at [43] that “Primacy should be accorded to the text of the provision and its statutory context over any extraneous material” (at [18]).
In the context of determining when the registration of a foreign judgment under the RECJA can be set aside, this decision is helpful as it clarifies that when there is no statutory definition and no appropriate statutory definition to borrow, the word “appeal” in the RECJA is to be given its ordinary meaning.
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