EXAMINATION OF JUDGMENT DEBTOR
In the recent decision of Sun Travels & Tours Pvt Ltd v Hilton International Manage (Maldives) Pvt Ltd [2019] SGHC 291 (“Sun Travels v Hilton”), the High Court allowed the examination of judgment debtor in relation to assets in a jurisdiction where the judgment could not be enforced.
Background. Hilton had obtained an arbitration awards in its favour and sought to enforce the awards in the Maldivian courts. The enforcement attempts took a long time, and Sun Travels commenced separate legal proceedings against Hilton in the Maldives. Sun Travels obtained a judgment that held that the underlying contract was void and unenforceable. The Maldivian courts then declined to enforce the arbitration awards.
Subsequently, Hilton applied for and obtained leave to enforce the arbitration awards in Singapore. Hilton also obtained declarations from the Singapore court that the arbitration awards were final valid and binding on the parties.
Hilton then took out examination of judgment debtor proceedings against Sun Travels. Sun Travels objected to 2 categories of questions sought by Hilton: (a) questions relating to assets of corporate
entities related to the Sun Travels or Mr Siyam (an officer of Sun Travels) (“1st category”); and (b) questions relating to assets of the Sun Travels located in the Maldives (“2nd category”).
Before the assistant registrar. The assistant registrar disallowed the 1st category insofar as they did not pertain to assets owned by Sun Travels, and allowed the 2nd category. Sun Travels appealed against the decision on the 2nd category.
Sun Travels argued that there needs to be a nexus between the questions and potential enforcement of the Singapore judgment, and that Hilton needed to show that the Singapore judgment was enforceable in Maldives, relying on the case of Indian Overseas Bank v Sarabjit Singh [1990] 3 MLJ xxxi (“IOB”).
The High Court agreed with the assistant registrar and dismissed the appeal.
No requirement for judgment to be enforceable. The High Court started with the wording of O 48 R 1 of the Rules of Court, and considered that nothing in the wording of the rule and the Court forms limited the examination of judgment debtor to assets located in foreign jurisdiction where the judgment is recognized or enforceable. The High Court concluded (at [26] Sun Travels v Hilton):
“ It followed from the above that the EJD process under O 48 r 1 of the ROC is not constrained by the question whether the Singapore judgment sought to be enforced is in fact recognised in the overseas jurisdiction where the assets or judgment debtor are located. That is, once a Singapore judgment or order for payment is made, the court may order an oral examination be made on any property wheresoever located. The clear objective is thus to allow information to be obtained, with the aim of allowing the plaintiff to determine how to enforce the judgment or order made in her favour. Thus, nothing in O 48 r 1(1) of the ROC or Form 99 leads to the conclusion that recognition or enforceability of the judgment in a foreign jurisdiction should control or limit the extent of the examination.”
The High Court took guidance from the Court of Appeal case of PT Bakrie Investindo v Global Distressed Alpha Fund I Ltd Partnership [2013] 4 SLR 1116 (“PT Bakrie”), where the Court refused to adjourn EJD proceedings pending an application to set aside the registration of the foreign judgment. In that case, the Court of Appeal held that the purpose of examination of judgment debtor proceedings is to gather information, and it is not in itself an execution of the judgment.
The High Court noted that while the IOB case supported Sun Travels’ position and was long standing authority, it was a decision of an assistant registrar and was not binding on the High Court. The High Court stated that the IOB case may not have been correctly decided as it did not give sufficient weight to the possibility of information obtained pointing to other means of enforcement and highlighted that it was decided before PT Bakrie ([32] – [34] Sun Travels v Hilton).
Significance. Sun Travels v Hilton emphasizes that the purpose of examination of judgment debtor is for information gathering in order to allow the enforcement of judgment to be more effective.
As such, questions regarding assets located in a foreign jurisdiction are relevant even when the judgement is not enforceable the foreign jurisdiction.
Tags: Civil procedure; Examination of judgment debtor
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