Tjong Very Sumito v Chan Sing En: Security for Costs & Ordinary Residence

In Tjong Very Sumito and others v Chan Sing En and others, the High Court of Singapore heard applications for security for costs against the plaintiffs. The first defendant appealed the assistant registrar's decision not to award security for costs, and the fifth and sixth defendants also applied for security for costs. The court allowed the appeal and granted the application, ordering security for costs against the plaintiffs. The court considered whether a plaintiff can be ordinarily resident both within and out of the jurisdiction for the purpose of ordering security for costs.

1. Case Overview

1.1 Court

High Court

1.2 Outcome

Appeal allowed and application granted; security for costs ordered against the plaintiffs.

1.3 Case Type

Civil

1.4 Judgment Type

Grounds of Decision

1.5 Jurisdiction

Singapore

1.6 Description

Applications for security for costs against plaintiffs. The court considered whether a plaintiff can be ordinarily resident both within and out of the jurisdiction.

1.7 Decision Date

2. Parties and Outcomes

Party NameRoleTypeOutcomeOutcome TypeCounsels
Magnus Energy Group LtdDefendantCorporationNeutralNeutral
Tjong Very SumitoPlaintiffIndividualSecurity for costs orderedLost
Chan Sing EnDefendantIndividualAppeal allowedWon
Antig Investments Pte LtdDefendantCorporationNeutralNeutral

3. Judges

Judge NameTitleDelivered Judgment
Andrew AngJudgeYes

4. Counsels

Counsel NameOrganization
Shannon OngGabriel Law Corporation
Nicholas NarayananNicholas & Tan LLP

4. Facts

  1. Plaintiffs commenced Suit No 89 of 2010 against the defendants.
  2. The suit related to a shares sale and purchase agreement dated 23 November 2004 and two other share sale agreements dated 12 July 2007.
  3. The plaintiffs claimed fraudulent misrepresentation, unlawful means conspiracy, and resulting/constructive trust.
  4. The first plaintiff has various businesses in Indonesia.
  5. The first plaintiff's wife and one of his daughters own a property in Singapore.
  6. The first plaintiff has spent a considerable amount of time in Singapore since 2007.
  7. The plaintiffs do not own any substantial property of a fixed and permanent nature in Singapore.

5. Formal Citations

  1. Tjong Very Sumito and others v Chan Sing En and others, Suit No 89 of 2010 (Registrar's Appeal No 234 of 2010 and Summons No 2961 of 2010), [2010] SGHC 344

6. Timeline

DateEvent
First share sale and purchase agreement signed
Letter from Antig to the plaintiffs varying the first share sale and purchase agreement
Second share sale agreements signed
Plaintiffs filed Suit No 348 of 2008 against Antig
Affidavits filed in relation to Suit No 348 of 2008 against Antig
Affidavits filed in relation to Suit No 348 of 2008 against Antig
Court of Appeal stayed proceedings in Suit No 348 of 2008 in favour of arbitration
Plaintiffs filed Suit No 89 of 2010
Mareva injunction set aside
Assistant Registrar dismissed the first defendant’s application for security for costs
Tenth and eleventh defendants added to the statement of claim
Hearing of applications for security for costs
Oral judgment awarding security for costs against the plaintiffs
Counsel for the plaintiffs requested further arguments
Further arguments heard
Judgment reserved

7. Legal Issues

  1. Security for Costs
    • Outcome: Security for costs was ordered against the plaintiffs.
    • Category: Procedural
    • Related Cases:
      • [2004] 2 SLR(R) 427
  2. Ordinary Residence
    • Outcome: The court found that an individual plaintiff can be ordinarily resident both within and out of the jurisdiction for the purposes of ordering security for costs.
    • Category: Jurisdictional
    • Related Cases:
      • [1983] 2 AC 309

8. Remedies Sought

  1. No remedies sought

9. Cause of Actions

  • Fraudulent Misrepresentation
  • Unlawful Means Conspiracy
  • Resulting Trust
  • Constructive Trust
  • Moneys Had and Received

10. Practice Areas

  • Litigation

11. Industries

  • No industries specified

12. Cited Cases

Case NameCourtAffirmedCitationJurisdictionSignificance
Regina v Barnet London Borough Council, Ex parte Nilish ShahHouse of LordsYes[1983] 2 AC 309United KingdomCited for the definition of 'ordinarily resident' as a man's abode adopted voluntarily and for settled purposes.
Levene v Commissioners of Inland RevenueN/AYes[1928] AC 217N/ACited to elucidate the natural and ordinary meaning of the words 'ordinary residence'.
Commissioners of Inland Revenue v LysaghtN/AYes[1928] AC 234N/ACited to elucidate the natural and ordinary meaning of the words 'ordinary residence'.
In re Little Olympian Each Ways LtdN/AYes[1995] 1 WLR 560N/ADiscussed in relation to whether a corporation can be ordinarily resident in more than one place.
Wishing Star Ltd v Jurong Town CorpHigh CourtYes[2004] 1 SLR(R) 1SingaporeDiscussed in relation to whether a company can be ordinarily resident in a jurisdiction where its branches are located.
Jurong Town Corp v Wishing Star LtdCourt of AppealYes[2004] 2 SLR(R) 427SingaporeCited for the principle that the court has complete discretion in the matter of security for costs.
Sir Lindsay Parkinson & Co Ltd v Triplan LtdN/AYes[1973] QB 609N/ACited for factors to consider when ordering security for costs, including whether the claim is bona fide and whether the application is oppressive.
Creative Elegance (M) Sdn Bhd v Puay Kim SengN/AYes[1999] 1 SLR(R) 112N/ACited for factors to consider when ordering security for costs, including whether the claim is bona fide and whether the application is oppressive.
Leyvand v Barasch and othersN/AYes(2000) The Times 23 March (Transcript)N/ACited for the principle that a claimant may have two ordinary residences, one within the jurisdiction and one outside, and the court has jurisdiction to order security.
Logue v Hansen Technologies LtdN/AYes[2003] FCA 81AustraliaCited for accepting the suggestion that a person can have two ordinary residences and the court has power to order security for costs.
Corbett v Nguyen and othersN/AYes[2008] NSWSC 1265AustraliaCited for the view that a person may be resident and ordinarily resident in more than one place at a time.
Raeburn v AndrewsN/AYes[1874] LR 9 QB 118N/ACited for the reason that a plaintiff resident abroad was compelled to give security for costs because he was not in reach of the law.
Wilson Vehicle Distributions Ltd v The Colt Car Co LtdN/AYes[1984] BCLC 93N/ACited for the historical reason for ordering security for costs against a foreign resident.
DSQ Property Co Ltd v Lotus Cars LtdN/AYes[1987] 1 WLR 127N/ADiscussed in relation to the application of Raeburn v Andrews to an insolvent company.
Ooi Ching Ling Shirley v Just Gems IncCourt of AppealYes[2002] 2 SLR(R) 738SingaporeCited for the rationale for ordering security for costs against a plaintiff ordinarily resident abroad.
Ong Jane Rebecca v PricewaterhousecoopersN/AYes[2009] 2 SLR(R) 796N/ACited for the principle that public policy leans towards encouraging access to the courts.
Porzelack KG v Porzelack (UK) LtdN/AYes[1987] 1 WLR 420N/ACited for the principle that the court has a general discretion to award or refuse security, and it is normally just to order security against a non-resident plaintiff.
Sumio Sakata v Fuminori Paul NaruseHigh CourtYes[2004] SGHC 102SingaporeCited for the principle that the amount of security awarded is in the complete discretion of the court.

13. Applicable Rules

Rule Name
No applicable rules

14. Applicable Statutes

Statute NameJurisdiction
Rules of Court (Cap 322, R5, 2006 Rev Ed) O 23 r 1Singapore
Companies Act (Cap 50, 2006 Rev Ed) sub-ss 173(2) and (6)Singapore

15. Key Terms and Keywords

15.1 Key Terms

  • Security for costs
  • Ordinarily resident
  • Jurisdiction
  • Shares sale and purchase agreement
  • Fraudulent misrepresentation
  • Unlawful means conspiracy
  • Resulting trust
  • Constructive trust
  • Mareva injunction

15.2 Keywords

  • Security for costs
  • Ordinary residence
  • Singapore
  • High Court
  • Civil Procedure

17. Areas of Law

Area NameRelevance Score
Security for Costs95
Civil Practice70
Contract Law30
Fraud and Deceit25
Company Law20
Trust Law20
Estoppel15

16. Subjects

  • Civil Procedure
  • Conflict of Laws
  • Security for Costs
  • Jurisdiction