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

Tjong Very Sumito and others appealed against the High Court's decision to order them to furnish security for costs to Chan Sing En and others. The Court of Appeal, with Chao Hick Tin JA delivering the judgment, dismissed the appeal, holding that a plaintiff can be ordinarily resident in more than one jurisdiction for the purpose of security for costs and that the judge had correctly exercised his discretion in ordering security for costs.

1. Case Overview

1.1 Court

Court of Appeal

1.2 Outcome

Appeal Dismissed

1.3 Case Type

Civil

1.4 Judgment Type

Grounds of Decision

1.5 Jurisdiction

Singapore

1.6 Description

Appeal regarding security for costs. The court considered whether a plaintiff can be ordinarily resident in multiple jurisdictions and its impact on security for costs.

1.7 Decision Date

2. Parties and Outcomes

Party NameRoleTypeOutcomeOutcome TypeCounsels
Tjong Very SumitoAppellantIndividualAppeal DismissedLost
Chan Sing EnRespondentIndividualAppeal DismissedWon

3. Judges

Judge NameTitleDelivered Judgment
Chao Hick TinJustice of the Court of AppealYes
Andrew Phang Boon LeongJustice of the Court of AppealNo

4. Counsels

Counsel NameOrganization
Peter GabrielGabriel Law Corporation
Shannon OngGabriel Law Corporation
Nicholas NarayananNicholas & Tan Partnership LLP

4. Facts

  1. The appellants, citizens of Indonesia, commenced an action against 11 defendants.
  2. The first respondent applied for security for costs against the appellants.
  3. The Assistant Registrar dismissed the application, finding the first appellant ordinarily resident in Singapore.
  4. The Judge reversed the AR's decision and ordered the appellants to provide security for costs.
  5. The appellants consistently provided their Indonesian addresses in various legal documents.
  6. The appellants lacked fixed assets in Singapore suitable for satisfying a possible order of costs against them.

5. Formal Citations

  1. Tjong Very Sumito and others v Chan Sing En and others, Civil Appeal No 234 of 2010, [2011] SGCA 40

6. Timeline

DateEvent
Main action commenced in Suit No 89 of 2010
Second and third respondents requested appellants to voluntarily provide security for costs.
Appellants refused to provide security for costs.
Second and third respondents applied for security for costs.
Sumito deposed an affidavit stating that a person can be ordinarily resident in more than one country.
Judgment reserved
Court of Appeal dismissed the appeal

7. Legal Issues

  1. Security for Costs
    • Outcome: The court upheld the order for security for costs.
    • Category: Procedural
  2. Ordinary Residence
    • Outcome: The court held that a person can be ordinarily resident in more than one jurisdiction.
    • Category: Jurisdictional

8. Remedies Sought

  1. No remedies sought

9. Cause of Actions

  • No cause of actions

10. Practice Areas

  • Commercial Litigation
  • Appeals

11. Industries

  • No industries specified

12. Cited Cases

Case NameCourtAffirmedCitationJurisdictionSignificance
Tjong Very Sumito and others v Chan Sing En and othersHigh CourtYes[2011] 2 SLR 360SingaporeThe appeal was against the decision of the High Court judge in this case.
Akbarali v Brent London Borough CouncilHouse of LordsYes[1983] 2 AC 309England and WalesCited for the definition of 'ordinarily resident'.
Wishing Star Ltd v Jurong Town CorpHigh CourtYes[2004] 1 SLR(R) 1SingaporeDiscussed in relation to whether a company can be ordinarily resident in more than one place.
Jones v The Scottish Accident Insurance Company, LimitedQueen's Bench DivisionYes(1886) 17 QBD 421England and WalesDiscussed in relation to the analogy between individual and corporate parties regarding ordinary residence.
Levene v Commissioners of Inland RevenueHouse of LordsYes[1928] AC 217England and WalesCited for the proposition that ordinary residence connotes residence in a place with some degree of continuity.
In re Little Olympian Each Ways LtdUnknownYes[1995] 1 WLR 560England and WalesDiscussed in relation to determining where a corporation ordinarily resides.
Leyvand v Barasch and othersUnknownYes(2000) The Times 23 March 2000England and WalesCited for the proposition that a claimant may have two ordinary residences, one within the jurisdiction and one outside.
Logue v Hansen Technologies LtdFederal Court of AustraliaYes[2003] FCA 81AustraliaEndorsed Leyvand and applied in relation to security for costs.
Corbett v Nguyen & OrsNew South Wales Supreme CourtYes[2008] NSWSC 1265AustraliaApplied Leyvand and Logue, finding that the plaintiff was ordinarily resident both in Vietnam and in New South Wales, Australia, simultaneously.
Re Kenneth Dudley Taylor; Ex parte Natwest Australia Bank LtdFederal Court of AustraliaYes(1992) 37 FCR 194AustraliaCited for accepting that a person could be ordinarily resident in more than one country.
Rivera v Australian Broadcasting CorporationFederal Court of AustraliaYes[2005] FCA 661AustraliaDiscussed in relation to whether the court takes into account ordinary residence outside Australia as proof that the applicant is not resident ordinarily in Australia.
Fitzgerald and Others v Williams and OthersUnknownYes[1996] QB 657England and WalesDistinguished as not considering the case of a plaintiff ordinarily resident both within and out of jurisdiction.
Berkeley Administration Inc and Others v McClelland and OthersUnknownYes[1990] 2 QB 407England and WalesDistinguished as not considering the case of a plaintiff ordinarily resident both within and out of jurisdiction.
Ooi Ching Ling Shirley v Just Gems IncCourt of AppealYes[2002] 2 SLR(R) 738SingaporeCited for the proposition that the whole point of ordering a foreign plaintiff or appellant to furnish security is to ensure that a fund would be available within the jurisdiction of this court against which the successful defendant or respondent could enforce the judgment for costs.
Pacific Integrated Logistics Pte Ltd v Gorman Vernel International Freight LtdHigh CourtYes[2007] 1 SLR(R) 1017SingaporeCited for the purpose behind O 23 r 1(1)(a) is not limited to protecting a defendant in the extreme situation where an order of costs would otherwise be a “paper judgment”.
Ho Wing On Christopher and others v ECRC Land Pte Ltd (in liquidation)UnknownYes[2006] 4 SLR(R) 817SingaporeCited for the proposition that the impecuniosity of a plaintiff who is a natural person cannot of itself found jurisdiction to give security for costs.
Westacre Investments Inc v The State-Owned Company Yugoimport SDPR (also known as Jugoimport-SDPR)Court of AppealYes[2009] 2 SLR(R) 166SingaporeCited for the principle that an appeal against the exercise of a judge’s discretion will not be entertained unless it be shown that he exercised his discretion under a mistake of law, in disregard of principle, under a misapprehension as to the facts, or that he took account of irrelevant matters.
Lian Soon Construction Pte Ltd v Guan Qian Realty Pte LtdCourt of AppealYes[1999] 1 SLR(R) 1053SingaporeCited for the principle that an appeal against the exercise of a judge’s discretion will not be entertained unless it be shown that he exercised his discretion under a mistake of law, in disregard of principle, under a misapprehension as to the facts, or that he took account of irrelevant matters.
Robson & Ors v RobsonQueensland Supreme CourtYes[2010] QSC 378AustraliaCited Logue and Corbett for the proposition that the court had jurisdiction to order security for costs against plaintiffs both ordinarily resident in and out of jurisdiction.
The Owners of the Ship “Tasmania” and the Owners of the Freight v Smith and others, The Owners of the Ship “City of Corinth” (The “Tasmania”)House of LordsYes(1890) 15 App Cas 223England and WalesCited for the principle that a point not taken at the trial, and presented for the first time in the Court of Appeal, ought to be most jealously scrutinised.
Panwah Steel Pte Ltd v Koh Brothers Building & Civil Engineering Contractor (Pte) LtdCourt of AppealYes[2006] 4 SLR(R) 571SingaporeCited for the test for allowing a new argument to be canvassed in the appellate court.

13. Applicable Rules

Rule Name
No applicable rules

14. Applicable Statutes

Statute NameJurisdiction
Rules of Court (Cap 322, R 5, 2006 Rev Ed)Singapore
Order 23 r 1(1) of the Rules of CourtSingapore
Companies Act (Cap 50, 2006 Rev Ed)Singapore
ss 173(2) and (6) of the Companies Act (Cap 50, 2006 Rev Ed)Singapore

15. Key Terms and Keywords

15.1 Key Terms

  • Security for costs
  • Ordinary residence
  • Jurisdiction
  • Discretion
  • Amenability to process
  • Availability of funds
  • Multiple residences

15.2 Keywords

  • Security for costs
  • Ordinary residence
  • Singapore
  • Civil procedure
  • Jurisdiction

17. Areas of Law

Area NameRelevance Score
Security for Costs95
Civil Practice70
Civil Procedure60
Asset Recovery30

16. Subjects

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