Humpuss Sea Transport v PT Humpuss: Inter-Company Loans & Restructuring

In Humpuss Sea Transport Pte Ltd (in compulsory liquidation) v PT Humpuss Intermoda Transportasi TBK and another, the High Court of Singapore addressed applications by the defendants, PT Humpuss Intermoda Transportasi TBK and PT Humpuss Transportasi Kimia, to strike out and stay an action commenced by the plaintiff's liquidators to recover inter-company loans and set aside restructuring transactions. Steven Chong J dismissed both applications, finding no merit in the striking out application based on res judicata and determining that Singapore was the natural forum for the claims. The plaintiff sought repayment of inter-company loans and to set aside restructuring transactions.

1. Case Overview

1.1 Court

High Court of the Republic of Singapore

1.2 Outcome

Striking out application dismissed with costs. Stay application dismissed in its entirety with costs.

1.3 Case Type

Civil

1.4 Judgment Type

Judgment

1.5 Jurisdiction

Singapore

1.6 Description

Singapore court addresses striking out and stay applications in a case involving inter-company loans and restructuring transactions within the Humpuss group.

1.7 Decision Date

17 October 2016

2. Parties and Outcomes

Party Name	Role	Type	Outcome	Outcome Type	Counsels
Humpuss Sea Transport Pte Ltd (in compulsory liquidation)	Plaintiff	Corporation	Applications Dismissed	Won	David Chan, Tan Aik Thong
PT Humpuss Intermoda Transportasi TBK	Defendant	Corporation	Applications Dismissed	Lost	Rakesh Kirpalani Gopal, Allen Lye, Wong Su Ann
PT Humpuss Transportasi Kimia	Defendant	Corporation	Applications Dismissed	Lost	Rakesh Kirpalani Gopal, Allen Lye, Wong Su Ann

3. Judges

Judge Name	Title	Delivered Judgment
Steven Chong	Judge	Yes

4. Counsels

Counsel Name	Organization
David Chan	Shook Lin & Bok LLP
Tan Aik Thong	Shook Lin & Bok LLP
Rakesh Kirpalani Gopal	Drew & Napier LLC
Allen Lye	Drew & Napier LLC
Wong Su Ann	Drew & Napier LLC

4. Facts

Plaintiff is a Singapore-incorporated company in compulsory liquidation.
Defendants are Indonesian-incorporated companies, part of the Humpuss group.
Plaintiff seeks repayment of inter-company loans from the defendants.
Plaintiff seeks to set aside restructuring transactions involving transfers of shares and vessels to the 2nd defendant.
The 1st defendant is in a court-assisted debt restructuring process in Indonesia (PKPU proceedings).
The former liquidators did not attend any of the meetings or the hearing.
The plaintiff was placed under sub-category 3.4, which was for creditors who did not present claims but whose debts were nevertheless recognised by the 1st defendant.

5. Formal Citations

Humpuss Sea Transport Pte Ltd (in compulsory liquidation)vPT Humpuss Intermoda Transportasi TBK and another, Suit No 896 of 2014, [2016] SGHC 229

6. Timeline

Date	Event
2012-01-20	Plaintiff placed in compulsory liquidation
2012-09-26	Creditor of the 1st defendant filed a PKPU petition against the 1st defendant in Indonesia
2012-10-12	Temporary PKPU order granted in respect of the 1st defendant
2013-08-06	Present liquidators appointed
2014-08-18	Statement of claim filed
2016-07-25	Judgment reserved
2016-10-18	Judgment issued

7. Legal Issues

Striking Out
- Outcome: The court dismissed the striking out application.
- Category: Procedural
- Sub-Issues:
  - Abuse of process
  - Extended doctrine of res judicata
Stay of Proceedings
- Outcome: The court dismissed the stay application in its entirety.
- Category: Procedural
- Sub-Issues:
  - Forum non conveniens
  - Partial stay
Recognition of Foreign Judgments
- Outcome: The court found that the Homologation Judgment is not capable of having any preclusive effect, based on the extended doctrine of res judicata.
- Category: Substantive

8. Remedies Sought

Repayment of loans
Restoring the position to what it would have been if the plaintiff had not entered into the restructuring transactions

9. Cause of Actions

Recovery of inter-company loans
Setting aside transactions at an undervalue
Conveyances intended to defraud creditors

10. Practice Areas

Commercial Litigation
Insolvency Litigation

11. Industries

Shipping
Transportation

12. Cited Cases

Case Name	Court	Affirmed	Citation	Jurisdiction	Significance
Humpuss Sea Transport Pte Ltd (in compulsory liquidation) v PT Humpuss Intermoda Transportasi TBK and another	High Court	Yes	[2015] 4 SLR 625	Singapore	Cited for a previous attempt by the defendants to halt the action commenced by the plaintiff’s present liquidators in Singapore.
Gabriel Peter & Partners (suing as a firm) v Wee Chong Jin and others	Court of Appeal	Yes	[1997] 3 SLR(R) 649	Singapore	Cited for the principle that the power to strike out an action is a draconian one and ought not to be exercised save in plain and obvious cases.
Greenhalgh v Mallard	Unknown	Yes	[1947] 2 All ER 255	England and Wales	Cited for the principle that the extended doctrine of res judicata extends cause of action estoppel and issue estoppel to claims or issues which were so clearly part of the subject matter of the litigation and so clearly could have been raised that it would be an abuse of the process of the court to allow a new proceeding to be started in respect of them.
The Royal Bank of Scotland NV (formerly known as ABN Amro Bank NV) and others v TT International Ltd (nTan Corporate Advisory Pte Ltd and others, other parties) and another appeal	Court of Appeal	Yes	[2015] 5 SLR 1104	Singapore	Cited for the general principles of res judicata.
Ching Mun Fong (executrix of the estate of Tan Geok Tee, deceased) v Liu Cho Chit and another appeal	Unknown	Yes	[2000] 1 SLR(R) 53	Singapore	Cited for the principle that the extended doctrine of res judicata extends cause of action estoppel and issue estoppel to claims or issues which were so clearly part of the subject matter of the litigation and so clearly could have been raised that it would be an abuse of the process of the court to allow a new proceeding to be started in respect of them.
Johnson v Gore Wood & Co (a firm)	House of Lords	Yes	[2002] 2 AC 1	United Kingdom	Cited for the public interest underlying cause of action estoppel, issue estoppel, and the extended doctrine of res judicata: that there should be finality in litigation and that a party should not be twice vexed in the same matter.
Henderson v Henderson	Unknown	Yes	(1843) 3 Hare 100	England and Wales	Cited as the origin of the extended doctrine of res judicata.
Bradford & Bingley Building Society v Seddon Hancock and others (Third Parties)	Unknown	Yes	[1999] 1 WLR 1482	England and Wales	Cited for the principle that a plaintiff may be precluded from suing a defendant who should have been sued in previous proceedings.
Kwa Ban Cheong v Kuah Boon Sek and others	Unknown	Yes	[2003] 3 SLR(R) 664	Singapore	Cited for the principle that a defendant may invoke the extended doctrine to preclude a plaintiff who could have brought a claim against him in previous proceedings, but who did not, from now doing so.
Goh Nellie v Goh Lian Teck	Unknown	Yes	[2007] 1 SLR(R) 453	Singapore	Cited for the factors the court may consider in determining whether there is an abuse of process.
Low Heng Leon Andy v Low Kian Beng Lawrence (administrator of the estate of Tan Ah Kng, deceased)	Unknown	Yes	[2013] 3 SLR 710	Singapore	Cited for the factors the court may consider in determining whether there is an abuse of process.
EFT Holdings, Inc and another v Marinteknik Shipbuilders (S) Pte Ltd and others	High Court	Yes	[2013] 1 SLR 1254	Singapore	Cited for the principle that a prerequisite is that the foreign judgment must be recognised within the forum of Singapore for it to have any effect.
Manharlal Trikamdas Mody and another v Sumikin Bussan International (HK) Ltd	High Court	Yes	[2014] 3 SLR 1161	Singapore	Cited for the principle that the doctrine of res judicata applies to foreign judgments entitled to recognition is well established and undoubtedly part of Singapore law.
Giant Light Metal Technology (Kunshan) Co Ltd v Aksa Far East Pte Ltd	Unknown	Yes	[2014] 2 SLR 545	Singapore	Cited for the common law rule that a foreign judgment will be recognised if it is the final and conclusive judgment of a court which, according to the private international law of Singapore, had jurisdiction to grant that judgment, and if there is no defence to its recognition.
Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2)	House of Lords	Yes	[1967] 1 AC 853	United Kingdom	Cited for the principle that the party who seeks to rely on the judgment has the burden of proving that it is final.
The “Bunga Melati 5”	Court of Appeal	Yes	[2012] 4 SLR 546	Singapore	Cited for the principle that the judgment must be conclusive of the merits of the case.
Rubin and another v Eurofinance SA and others	Supreme Court	Yes	[2013] 1 AC 236	United Kingdom	Cited for the principle that Rule 43 applies equally to judgments in foreign insolvency proceedings.
Spiliada Maritime Corporation v Cansulex Ltd	House of Lords	Yes	[1987] AC 460	United Kingdom	Cited for the applicable test for a stay of proceedings on the ground of forum non conveniens.
Rickshaw Investments Ltd and another v Nicolai Baron von Uexkull	Court of Appeal	Yes	[2007] 1 SLR(R) 377	Singapore	Cited for the principles of the Spiliada test.
CIMB Bank v Dresdner Kleinwort Ltd	Court of Appeal	Yes	[2008] 4 SLR(R) 543	Singapore	Cited for the principles of the Spiliada test.
JIO Minerals FZC and others v Mineral Enterprises Ltd	Court of Appeal	Yes	[2011] 1 SLR 391	Singapore	Cited for the principles of the Spiliada test.
Itochu Steel Asia Pte Ltd v C V Wira Mustika Indah and others	High Court	Yes	[1999] SGHC 321	Singapore	Cited as a case where a partial stay was granted.
PT Hutan Domas Raya v Yue Xiu Enterprises (Holdings) Ltd and another	Court of Appeal	Yes	[2001] 1 SLR(R) 104	Singapore	Cited for the principle that it would not be in the interests of justice to grant a partial stay if the case against the defendants raises the same issues and relies on the same evidence.
Hyslop v Society of Lloyd’s	Unknown	Yes	(1992) 6 PRNZ 204	New Zealand	Cited as an example where the forum is eminently the natural forum for deciding on one claim but not the others.
Scottish Air International Inc v British Caledonian Group, PLC	United States Court of Appeals, Second Circuit	Yes	81 F 3d 1224 (2nd Cir 1996)	United States	Cited as an example of the propriety of granting a partial stay if the forum is eminently the appropriate forum for one claim but not others.
Transtech Electronics Pte Ltd v Choe Jerry and others	High Court	Yes	[1998] 1 SLR(R) 1014	Singapore	Cited for the principle that the action was based on a Singapore statute which concerns a Singapore company subject to that statute.
Fan Heli v Zhang Shujing and others	High Court	Yes	[2016] 1 SLR 1457	Singapore	Cited for the principle that the “predisposition” should be to regard the Singapore court as the natural forum.
Siemens AG v Holdrich Investment Ltd	Court of Appeal	Yes	[2010] 3 SLR 1007	Singapore	Cited for the principle that the Spiliada test is not an exercise in comparing the sheer number of connecting factors which point to this or that jurisdiction.
UBS AG v Telesto Investments Ltd and others and another matter	Court of Appeal	Yes	[2011] 4 SLR 503	Singapore	Cited for the principle that the connecting factors themselves cannot be analysed in a vacuum but must be examined, and weighed, in the context of the issues in dispute between the parties.
Q&M Enterprises Sdn Bhd v Poh Kiat	Court of Appeal	Yes	[2005] 4 SLR 494	Singapore	Cited for the principle that the court should consider both the anticipated defence and the claim.
John Reginald Stott Kirkham and others v Trane US Inc and others	Court of Appeal	Yes	[2009] 4 SLR(R) 428	Singapore	Cited for the principle that documentary evidence is, in this modern age, easily transportable between jurisdictions.
VTB Capital plc v Nutritek International Corporation	Supreme Court	Yes	[2013] 2 AC 337	United Kingdom	Cited for the principle that the governing law is always an important factor in determining the natural forum.
Overseas Union Insurance Ltd v Turegum Insurance Co	Unknown	Yes	[2001] 2 SLR(R) 285	Singapore	Cited for the three-step test for determining the governing law of a contract.
Pacific Recreation Pte Ltd v S Y Technology Inc and another appeal	Court of Appeal	Yes	[2008] 2 SLR(R) 491	Singapore	Cited for the three-step test for determining the governing law of a contract.
Macmillan Inc v Bishopsgate Investment Trust plc (No 3)	Unknown	Yes	[1996] WLR 387	England and Wales	Cited for the principle that the court must characterise “the true issue or issues thrown up by the claim and defence” before forming a view of the governing law of any claim.
OCBC Capital Investment Asia Ltd v Wong Hua Choon	Court of Appeal	Yes	[2010] 4 SLR 904	Singapore	Cited for the principle that where the competing fora have domestic laws which are substantially similar, or if the legal issues in a case are straightforward, the identity of the governing law will be a factor of little significance.
Bayerische Landesbank Girozentrale v Kong Kok Keong and another action	High Court	Yes	[2002] 1 SLR(R) 485	Singapore	Cited for the principle that it was the bank’s choice where it wanted to sue; it was not for the defendant to complain that enforcement would be more difficult.
Ang Ming Chuang v Singapore Airlines Ltd (Civil Aeronautics Administration, third party)	High Court	Yes	[2005] 1 SLR(R) 409	Singapore	Cited for the principle that any difficulty in enforcement was a problem for the plaintiff and not for a defendant to raise in a stay application.
Imagis Technologies Inc v Red Herring Communications Inc	British Columbia Supreme Court	Yes	2003 BCSC 366	Canada	Cited for the principle that difficulties in enforcement cannot per se be a factor in an application for a stay of proceedings.
Linden Gardens Trust Ltd v Lenesta Sludge Disposals Ltd	House of Lords	Yes	[1994] 1 AC 85	United Kingdom	Cited for the principle that the obligations under a contract cannot be assigned without the express consent of the other party; if such consent is given, it would then constitute a novation of the original contract.
Cassa di Risparmio di Parma e Piacenza SpA v Rals International Pte Ltd	Court of Appeal	Yes	[2016] 1 SLR 79	Singapore	Cited for the principle that the obligations under a contract cannot be assigned without the express consent of the other party; if such consent is given, it would then constitute a novation of the original contract.

13. Applicable Rules

Rule Name
No applicable rules

14. Applicable Statutes

Statute Name	Jurisdiction
Bankruptcy Act (Cap 20, 2009 Rev Ed) s 98	Singapore
Companies Act (Cap 50, 2006 Rev Ed) s 329(1)	Singapore
Conveyancing and Law of Property Act (Cap 61, 1994 Rev Ed) s 73B	Singapore
Rules of Court (Cap 322, R5, 2014 Rev Ed) O 18 r 19(1)(d)	Singapore
Law No 37 of 2004 on Bankruptcy and Suspension of Obligation for Payment of Debts	Indonesia

15. Key Terms and Keywords

15.1 Key Terms

Inter-company loans
Restructuring transactions
Liquidation
PKPU proceedings
Homologation Judgment
Forum non conveniens
Res judicata
Actio Pauliana

15.2 Keywords

Humpuss
Inter-company loans
Restructuring
Liquidation
Singapore
Indonesia
Forum non conveniens
Res judicata

16. Subjects

Civil Procedure
Conflict of Laws
Insolvency Law
Restructuring

17. Areas of Law

Civil Procedure
Conflict of Laws
Insolvency Law