Q & M Enterprises Sdn Bhd v Poh Kiat: Forum Non Conveniens & Summary Judgment

In Q & M Enterprises Sdn Bhd v Poh Kiat, the High Court of Singapore, on 2005-08-31, addressed the issue of whether an action commenced in Singapore should be stayed on the ground of forum non conveniens, specifically considering if Malaysian courts were a more appropriate forum. Q & M Enterprises Sdn Bhd, the plaintiff, brought an action against Poh Kiat, the defendant, for payment due on a written guarantee. The court dismissed the plaintiff's appeal, affirming the decision to stay the proceedings in Singapore, prioritizing international comity.

1. Case Overview

1.1 Court

High Court

1.2 Outcome

Appeal dismissed.

1.3 Case Type

Civil

1.4 Judgment Type

Grounds of Decision

1.5 Jurisdiction

Singapore

1.6 Description

Singapore court considers stay of action based on forum non conveniens, balancing international comity with summary judgment availability. Appeal dismissed.

1.7 Decision Date

2. Parties and Outcomes

Party NameRoleTypeOutcomeOutcome TypeCounsels
Q & M Enterprises Sdn BhdPlaintiffCorporationAppeal dismissedLost
Poh KiatDefendantIndividualAppeal dismissedWon

3. Judges

Judge NameTitleDelivered Judgment
Andrew Phang Boon LeongJudicial CommissionerYes

4. Counsels

Counsel NameOrganization
Lim Soo PengLim Soo Peng and Co
Tan Siak HeeS H Tan and Associates

4. Facts

  1. Plaintiff sued defendant for payment on a written guarantee.
  2. Guarantee was allegedly signed by the defendant.
  3. Defendant claimed he signed the guarantee in Johor Baru, Malaysia.
  4. Plaintiff's operations and assets are located in Singapore.
  5. Defendant is a Singaporean residing in Singapore.
  6. Plaintiff is a Malaysian registered company selling industrial plating chemicals.
  7. Relevant transactions and payments were entered into in Malaysia.
  8. ACT was wound up by the Malaysian High Court.

5. Formal Citations

  1. Q & M Enterprises Sdn Bhd v Poh Kiat, Suit 35/2005, RA 75/2005, [2005] SGHC 155

6. Timeline

DateEvent
Guarantee dated
Settlement Agreement dated
First payment due under Settlement Agreement
Teamsphere Limited sold shares in Fine Components Pte Ltd
Plaintiff claimed ACT failed to pay monthly installments
ACT wound up by Malaysian High Court
Judgment issued

7. Legal Issues

  1. Forum Non Conveniens
    • Outcome: The court found that the Malaysian courts were clearly more appropriate for the trial of the action.
    • Category: Procedural
    • Sub-Issues:
      • Appropriateness of forum
      • International comity
  2. Summary Judgment
    • Outcome: The court found that it was probably the case that the defendant had raised sufficient triable issues and that the plaintiff was, consequently, probably not entitled to summary judgment under O 14 in the first instance.
    • Category: Procedural
    • Sub-Issues:
      • Arguable defense
      • Triable issues

8. Remedies Sought

  1. Payment of Sum Due

9. Cause of Actions

  • Breach of Guarantee

10. Practice Areas

  • Forum Non Conveniens
  • Summary Judgment

11. Industries

  • No industries specified

12. Cited Cases

Case NameCourtAffirmedCitationJurisdictionSignificance
Spiliada Maritime Corporation v Cansulex LtdHouse of LordsYes[1987] AC 460England and WalesGoverning decision regarding forum non conveniens and stay of proceedings.
Brinkerhoff Maritime Drilling Corp v PT Airfast Services IndonesiaSingapore Court of AppealYes[1992] 2 SLR 776SingaporeConfirmed the principles in Spiliada case are firmly part of the Singapore legal landscape.
Oriental Insurance Co Ltd v Bhavani Stores Pte LtdSingapore Court of AppealYes[1998] 1 SLR 253SingaporeConfirmed the principles in Spiliada case.
PT Hutan Domas Raya v Yue Xiu Enterprises (Holdings) LtdSingapore Court of AppealYes[2001] 2SLR 49SingaporeConfirmed the principles in Spiliada case.
Oceanic Sun Lines Special Shipping Co Inc v FayAustralian High CourtYes(1988) 165 CLR 197AustraliaDecision containing a wide spectrum of views and was in fact decided by a bare three to two majority of the court itself.
Voth v Manildra Flour Mills Proprietary LimitedAustralian High CourtYes(1990) 171 CLR 538AustraliaAustralian position has since been confirmed by subsequent Australian High Court decisions.
Regie Nationale des Usines Renault SA v ZhangAustralian High CourtYes(2002) 210 CLR 491AustraliaAustralian position has only, it appears, been more firmly entrenched.
Eng Liat Kiang v Eng Bak HernSingapore Court of AppealYes[1995] 3 SLR 97SingaporeRejected the argument that the principles in the Spiliada case should be disregarded and those in the Oceanic Sun Lines case be adopted instead.
Amin Rasheed Shipping Corporation v Kuwait Insurance CoHouse of LordsYes[1984] AC 50England and WalesView against local parochialism is firmly established in the case law of other jurisdictions as well.
The Abidin DaverHouse of LordsYes[1984] AC 398England and WalesView against local parochialism is firmly established in the case law of other jurisdictions as well.
Connelly v RTZ Corporation PlcHouse of LordsYes[1998] AC 854England and WalesConfirmed the principles in Spiliada case.
Golden Shore Transportation Pte Ltd v UCO BankSingapore Court of AppealYes[2004] 1 SLR 6SingaporeThe principles applicable to a case involving an exclusive jurisdiction clause are different from those applicable to determining forum non conveniens.
The Rainbow JoySingapore Court of AppealYes[2005] SGCA 36SingaporeConfirmed its views set out in the preceding paragraph and therefore negatives the argument tendered by counsel for the plaintiff in no uncertain terms.
The Rainbow JoySingapore High CourtYes[2005] 1 SLR 589SingaporeAffirmed by Singapore Court of Appeal.
United Engineers (Singapore) Pte Ltd v Lee Lip HiongSingapore High CourtYes[2004] 4 SLR 305SingaporeExplained the rationale behind the amendment as turning on the need to facilitate the litigation workflow by allowing plaintiffs to “pinpoint the specific defences of defendants”
Samsung Corp v Chinese Chamber Realty Pte LtdSingapore Court of AppealYes[2004] 1 SLR 382SingaporeIt was emphatically confirmed that while a stay application is pending, no application under O 14 should be made.
The Jarguh SawitSingapore Court of AppealYes[1998] 1 SLR 648SingaporeWhether or not a court has jurisdiction is, of necessity, a question logically prior to the substantive dispute of the parties.
Yeoh Poh San v Won Siok WanSingapore High CourtYes[2002] 4 SLR 91SingaporeThe issue as to whether or not proceedings in an action should be stayed deals with jurisdiction and is logically prior to that dealing with the substantive merits
Bayer Polymers Co Ltd v The Industrial and Commercial Bank of China, Hong Kong BranchHigh Court of Hong KongYes[2000] 1 HKC 805Hong KongConcerned a fact situation similar to that which one might find in England in so far as an application under O 14 is concerned.
The Hung Vuong-2Singapore Court of AppealYes[2001] 3 SLR 146SingaporeIt is not for this court or any court in Singapore to pass judgment on the competence or independence of the judiciary of another country, all the more so of a friendly country.
The Jian HeSingapore Court of AppealYes[2000] 1 SLR 8SingaporeRelated to a situation concerning an exclusive jurisdiction clause.
The Hyundai FortuneSingapore Court of AppealYes[2004] 4 SLR 548SingaporeRelated to a situation concerning an exclusive jurisdiction clause.
Lubbe v Cape PlcHouse of LordsYes[2000] 1 WLR 1545England and WalesThe second limb in the Spiliada case has invariably centred on injustice in the quite different context where the plaintiff or plaintiffs would otherwise fail to establish an otherwise valid claim because of the lack of financial assistance as well as expert scientific evidence in a complex case in the foreign court
Devaynes v NobleN/AYes(1816) 1 Mer 572N/AAlso known as the rule in Clayton’s case.
Barlow Clowes International Ltd v VaughanEnglish Court of AppealYes[1992] 4 All ER 22England and WalesThe rule in Clayton’s case was not applicable outside a banker-customer relationship.
In re DiplockN/AYes[1948] Ch 465N/AThe rule in Clayton’s case has invariably been applied in the context of bank accounts.
Deeley v Lloyd’s Bank, LimitedEnglish House of LordsYes[1912] AC 756England and WalesThis rule is not a substantive rule of law as such but, rather, an evidential presumption and no more.
Re French Caledonia Travel Service Pty LtdNew South Wales Supreme CourtYes(2003) 204 ALR 353AustraliaExtremely comprehensive survey and analysis by Campbell J.
Commerzbank Aktiengesellschaft v IMB Morgan PlcEnglish High CourtYes[2004] EWHC 2771England and WalesExtremely comprehensive survey and analysis by Campbell J.
Re Ontario Securities Commission and Greymac Credit CorpOntario Court of AppealYes(1987) 30 DLR (4th) 1CanadaExtremely comprehensive survey and analysis by Campbell J.
The Firm of A M K M K v M Rm Perianan ChettiarPrivy CouncilYes[1955] MLJ 32MalaysiaLocal Privy Council decision where the rule in Clayton’s case was in fact canvassed in a non-banking context.
The Firm of A M K M K v M Rm Perianan ChettiarCourt of Appeal of the Federation of MalayaYes[1952] MLJ 195MalaysiaAffirmed by Privy Council.
The Firm of A M K M K v M Rm Perianan ChettiarN/AYes[1951] MLJ 182N/AAffirmed by Court of Appeal of the Federation of Malaya.
Cory Brothers and Company, Limited v The Owners of the Turkish Steamship “Mecca”(The Mecca)House of LordsYes[1897] AC 286England and WalesThe rule has been embodied, statutorily, in s 62 of the Malaysian Contracts Act.
In re Sherry, London and County Banking Company v TerryEnglish Court of AppealYes(1884) 25 Ch D 692England and WalesThe rule has been embodied, statutorily, in s 62 of the Malaysian Contracts Act.
In re British Red Cross Balkan Fund, British Red Cross Society v JohnsonEnglish High CourtYes[1914] 2 Ch 419England and WalesThe rule has been embodied, statutorily, in s 62 of the Malaysian Contracts Act.
Heng Cheng Swee v Bangkok Bank LtdMalaysian Federal CourtYes[1976] 1 MLJ 267MalaysiaThe rule has been embodied, statutorily, in s 62 of the Malaysian Contracts Act.

13. Applicable Rules

Rule Name
No applicable rules

14. Applicable Statutes

Statute NameJurisdiction
Order 14 Rules of CourtSingapore

15. Key Terms and Keywords

15.1 Key Terms

  • Forum non conveniens
  • Summary judgment
  • International comity
  • Guarantee
  • Settlement agreement
  • Clayton's case
  • Triable issues
  • Jurisdiction
  • Stay of proceedings

15.2 Keywords

  • forum non conveniens
  • summary judgment
  • guarantee
  • singapore
  • malaysia
  • conflict of laws

17. Areas of Law

Area NameRelevance Score
Natural forum90
Forum Non Conveniens80
International Comity75
Jurisdiction70
Summary Judgement60
Civil Procedure50
Contract Law30

16. Subjects

  • Conflict of Laws
  • Civil Procedure
  • Contract Law