Astro v Ayunda Prima: Inquiry into Damages for Mareva Injunctions & Tribunal Jurisdiction

In Astro Nusantara International BV and others v PT Ayunda Prima Mitra and others, the High Court of Singapore addressed applications by PT First Media TBK (FM) for an inquiry into damages related to worldwide Mareva injunctions obtained by Astro Nusantara International BV and others. The injunctions, meant to aid enforcement of arbitration awards, lapsed after a Court of Appeal decision that partially favored FM. The court, led by Belinda Ang Saw Ean J, dismissed FM's applications, finding that the injunctions were not wrongly asked for and that special circumstances existed, including FM's conduct and the risk of asset dissipation. The court dismissed FM's applications for an inquiry as to damages with costs.

1. Case Overview

1.1 Court

High Court of the Republic of Singapore

1.2 Outcome

FM's applications for an inquiry as to damages are dismissed with costs.

1.3 Case Type

Civil

1.4 Judgment Type

Judgment

1.5 Jurisdiction

Singapore

1.6 Description

Singapore court considers inquiry into damages for Mareva injunctions after appeal partially succeeds, focusing on asset dissipation risk.

1.7 Decision Date

10 March 2016

2. Parties and Outcomes

Party Name	Role	Type	Outcome	Outcome Type	Counsels
Astro Nusantara International BV	Plaintiff	Corporation	Application for inquiry as to damages dismissed	Lost	Lim Wei Lee, Chan Xiao Wei, Catherine Chan
Astro Nusantara Holdings BV	Plaintiff	Corporation	Application for inquiry as to damages dismissed	Lost	Lim Wei Lee, Chan Xiao Wei, Catherine Chan
Astro Multimedia Corporation NV	Plaintiff	Corporation	Application for inquiry as to damages dismissed	Lost	Lim Wei Lee, Chan Xiao Wei, Catherine Chan
Astro Multimedia NV	Plaintiff	Corporation	Application for inquiry as to damages dismissed	Lost	Lim Wei Lee, Chan Xiao Wei, Catherine Chan
Astro Overseas Limited (formerly known as AAAN (Bermuda) Limited)	Plaintiff	Corporation	Application for inquiry as to damages dismissed	Lost	Lim Wei Lee, Chan Xiao Wei, Catherine Chan
Astro All Asia Networks PLC	Plaintiff	Corporation	Application for inquiry as to damages dismissed	Lost	Lim Wei Lee, Chan Xiao Wei, Catherine Chan
Measat Broadcast Network Systems Sdn Bhd	Plaintiff	Corporation	Application for inquiry as to damages dismissed	Lost	Lim Wei Lee, Chan Xiao Wei, Catherine Chan
All Asia Multimedia Networks FZ-LLC	Plaintiff	Corporation	Application for inquiry as to damages dismissed	Lost	Lim Wei Lee, Chan Xiao Wei, Catherine Chan
PT Ayunda Prima Mitra	Defendant	Corporation	Application for inquiry as to damages dismissed	Neutral	Edmund Jerome Kronenburg, Lye Hui Xian, Alicia Xuang
PT First Media TBK (formerly known as PT Broadband Multimedia TBK)	Defendant	Corporation	Application for inquiry as to damages dismissed	Lost	Edmund Jerome Kronenburg, Lye Hui Xian, Alicia Xuang
PT Direct Vision	Defendant	Corporation	Application for inquiry as to damages dismissed	Neutral	Edmund Jerome Kronenburg, Lye Hui Xian, Alicia Xuang

3. Judges

Judge Name	Title	Delivered Judgment
Belinda Ang Saw Ean	Judge	Yes

4. Counsels

Counsel Name	Organization
Lim Wei Lee	WongPartnership LLP
Chan Xiao Wei	WongPartnership LLP
Catherine Chan	WongPartnership LLP
Edmund Jerome Kronenburg	Bradell Brothers LLP
Lye Hui Xian	Bradell Brothers LLP
Alicia Xuang	Bradell Brothers LLP

4. Facts

Plaintiffs obtained ex parte worldwide mareva injunctions on 8 July 2011.
The Mareva Orders lapsed on 31 October 2013.
The underlying dispute arose out of a failed joint venture between the Astro group and the Lippo group.
The dispute was sent to arbitration pursuant to an arbitration clause in the SSA.
Astro applied ex parte for leave to enforce the Five Awards in the same manner as a judgment in Singapore.
FM filed Summons No 6343 of 2013 in OS 807/2010 and Summons No 6344 of 2013 in OS 913/2010 to enforce Astro’s undertaking as to damages.
FM was only partially successful at the FM appeals.

5. Formal Citations

Astro Nusantara International BV and others v PT Ayunda Prima Mitra and others and another matter, , [2016] SGHC 34

6. Timeline

Date	Event
2008-10-06	Arbitration commenced under SIAC Rules 2007.
2009-05-07	Tribunal issued award joining P6 to P8 to the Arbitration.
2010-08-05	Leave granted in OS 807/2010 to enforce four awards.
2010-09-03	Leave granted in OS 913/2010 to enforce the remaining award.
2011-03-24	Judgments entered against defendants in terms of the Five Awards.
2011-05-03	FM filed Summons No 1911 of 2011 in OS 807/2010 and Summons No 1912 of 2011 in OS 913/2010 to set aside the 2011 Judgments.
2011-07-08	Astro obtained the Mareva Orders.
2011-07-19	FM filed Summons No 3169 of 2011 in OS 913/2010 and Summons No 3170 of 2011 in OS 807/2010 to set aside or vary the Mareva Orders.
2011-08-16	FM’s applications to set aside or vary the Mareva Orders were dismissed.
2011-08-22	Assistant Registrar set aside the 2011 Judgments and granted FM leave to apply to set aside the Enforcement Orders.
2011-09-12	FM filed Summons No 4064 of 2011 in OS 913/2010 and Summons No 4065 of 2011 in OS 807/2010 seeking to resist the enforcement of the Five Awards.
2011-09-22	FM filed Summons No 4223 of 2011 in OS 807/2010 and Summons No 4230 of 2011 in OS 913/2010 for an extension of time to seek leave to appeal against the decision in SUM 3169/2011 and SUM 3170/2011.
2011-10-04	FM’s applications for extension of time were dismissed.
2012-10-22	High Court dismissed Astro’s appeals in RA 278/2011 and RA 279/2011 and FM’s applications in SUM 4064/2011 and SUM 4065/2011.
2013-10-31	Court of Appeal allowed the FM Appeals in part.
2013-10-31	Mareva Orders lapsed.
2013-12-09	FM filed Summons No 6343 of 2013 in OS 807/2010 and Summons No 6344 of 2013 in OS 913/2010 to enforce Astro’s undertaking as to damages.
2016-03-11	Judgment reserved.

7. Legal Issues

Enforcement of Undertaking as to Damages
- Outcome: The court dismissed FM's applications for an inquiry as to damages, finding that the injunctions were not wrongly asked for and that special circumstances existed.
- Category: Substantive
- Related Cases:
  - [1999] 1 SLR(R) 628
  - [1997] 2 SLR (R) 669
  - [1993] 1 WLR 1545
  - [2000] 2 SLR(R) 407
  - The Times, 14 January 1991
  - [2001] 2 Lloyd’s Rep 113
  - [1975] AC 295
  - [2015] EWHC 225 (Ch)
  - (1877) 7 Ch D 490
  - [2005] EWHC 2966 (QB)
  - (1981) 146 CLR 249
  - [2007] NSWSC 571
  - [2013] 2 All ER (Comm) 883
  - [2007] EWCA Civ 3
  - [1994] 2 Lloyd’s R 567
  - [2013] 2 AC 28
  - [1917] 1 K.B. 370
  - [1935] NZLR 17
  - [2006] EWCA Civ 430
  - [2001] 1 SLR (R) 762
  - [1995] 1 WLR 299
Jurisdiction of Arbitral Tribunal
- Outcome: The Court of Appeal held that FM’s obligations to P1 to P5 under the Five Awards were enforceable, whereas its obligations to P6 to P8 were not.
- Category: Jurisdictional

8. Remedies Sought

Inquiry as to damages
Enforcement of Undertaking as to Damages

9. Cause of Actions

Enforcement of Arbitration Award
Breach of Contract

10. Practice Areas

Commercial Litigation
Arbitration

11. Industries

Media
Telecommunications

12. Cited Cases

Case Name	Court	Affirmed	Citation	Jurisdiction	Significance
Canadian Pacific (Bermuda) Ltd v Nederkoorn Pte Ltd and another	Singapore Court of Appeal	Yes	[1999] 1 SLR(R) 628	Singapore	Cited for the principle that a defendant can recover damages based on the plaintiff’s undertaking in damages if the injunction was “wrongly asked for” and there was no “special circumstance”.
Heng Holdings SEA (Pte) Ltd v Tomongo Shipping Co Ltd	Singapore Court of Appeal	Yes	[1997] 2 SLR (R) 669	Singapore	Cited for the principle that the true ground of the mareva injunction is to address the real risk of dissipation of assets.
Cheltenham & Gloucester Building Society (formerly Portsmouth Building Society) v Ricketts	England and Wales Court of Appeal	Yes	[1993] 1 WLR 1545	England and Wales	Cited for the principle that the court has a discretion whether or not to enforce the undertaking at all and that discretion is not limited in any way.
Tribune Investment Trust Inc v Soosan Trading Co Ltd	Singapore Court of Appeal	Yes	[2000] 2 SLR(R) 407	Singapore	Cited for the principle that the court has a discretion in deciding whether or not to enforce a plaintiff’s undertaking as to damages, and that the discretion is to be exercised by reference to all the circumstances of the case.
Financiera Avenida S.A. v Basil Mutei Shiblaq	England and Wales Court of Appeal	Yes	The Times, 14 January 1991	England and Wales	Cited for the principle that the discretion is to be exercised in accordance with equitable principles, taking into account the circumstances in which the injunction was obtained, the success or otherwise of the plaintiff on the merits at trial, the subsequent conduct of the defendant and all the other circumstances of the case.
Yukong Line Ltd. v Rendsburg Investments Corporation and others	England and Wales High Court	Yes	[2001] 2 Lloyd’s Rep 113	England and Wales	Cited for the principle that the order for an inquiry as to damages is discretionary, such discretion being exercised in accordance with equitable principles.
F. Hoffmann-La Roche & Co. A.G. and others v Secretary of State for Trade and Industry	House of Lords	Yes	[1975] AC 295	United Kingdom	Cited for the principle that the court retains a discretion not to enforce the undertaking as to damages in circumstances where it is inequitable to do so.
Abbey Forwarding Limited (in liquidation) v Her Majesty’s Revenue & Customs	England and Wales High Court	Yes	[2015] EWHC 225 (Ch)	England and Wales	Cited for the principle that whether an order was “wrongly” made is judged retrospectively, with the benefit of hindsight.
Graham v Campbell	England and Wales High Court	Yes	(1877) 7 Ch D 490	England and Wales	Cited for the principle that it would be inequitable to enforce the undertaking if there exist “special circumstances”.
Panos Eliades and others v Lennox Lewis	England and Wales High Court	Yes	[2005] EWHC 2966 (QB)	England and Wales	Cited for the explanation of the phrase “special circumstances”.
Air Express Ltd v Ansett Transport Industries (Operations) Pty Ltd	High Court of Australia	Yes	(1981) 146 CLR 249	Australia	Cited for the principle that the defendant’s loss has to be due to the grant of injunction.
Rail Corporation New South Wales v Leduva Pty Limited	Supreme Court of New South Wales	Yes	[2007] NSWSC 571	Australia	Cited for the principle that there is always a discretion to refuse to enforce the undertaking, and that each case must be decided on its particular facts.
PT First Media TBK (formerly known as PT Broadband Multimedia TBK) v Astro Nusantara International BV and others and another appeal	Singapore Court of Appeal	No	[2014] 1 SLR 372	Singapore	The Court of Appeal allowed the FM Appeals in part, holding, essentially, that FM’s obligations to P1 to P5 under the Five Awards were enforceable, whereas its obligations to P6 to P8 were not.
Astro Nusantara International BV and others v PT Ayunda Prima Mitra and others	Singapore High Court	No	[2013] 1 SLR 636	Singapore	The grounds of the High Court decision that was appealed in PT First Media TBK (formerly known as PT Broadband Multimedia TBK) v Astro Nusantara International BV and others and another appeal [2014] 1 SLR 372.
Thai-Lao Lignite (Thailand) Co. Ltd and another v Government of The Lao People’s Democratic Republic	England and Wales High Court	Yes	[2013] 2 All ER (Comm) 883	England and Wales	Cited for the principle that the evidence of loss put forward for the application for an inquiry as to damages must have the degree of credibility and cogency to show that the inquiry is not an exercise in futility.
Aerospace Publishing Ltd and another v Thames Water Utilities Ltd	England and Wales Court of Appeal	Yes	[2007] EWCA Civ 3	England and Wales	Undertook a comprehensive survey of the authorities dealing with claims for “staff costs”.
Bowling & Co (Insurance) Limited v Corsi Partners Limited	England and Wales High Court	Yes	[1994] 2 Lloyd’s R 567	England and Wales	The phrase “special circumstances” used in Graham v Campball and repeated in Bowling & Co (Insurance) Limited v Corsi Partners Limited [1994] 2 Lloyd’s R 567 means in my judgment no more than the test set out by Lord Diplock in Hoffmann La-Roche, namely whether the conduct of the defendant in relation to the obtaining or continuing of the injunction or the enforcement of the undertaking makes it inequitable to enforce that undertaking.
Financial Services Authority v Sinoloa Gold plc and others (Barclays Bank plc intervening)	United Kingdom Supreme Court	Yes	[2013] 2 AC 28	United Kingdom	The court retains a discretion not to enforce the undertaking if the defendant's conduct makes it inequitable to enforce.
Modern Transport Co. Ltd. v. Duneric Steamship Co	England and Wales Court of Appeal	Yes	[1917] 1 K.B. 370	England and Wales	Swinfen Eady L.J. said that inequitable conduct by the defendant constituted special circumstances such that no inquiry as to damages was to be granted even if the claim for an injunction could not be sustained at the trial; but that was a case where he held that the plaintiffs were justified in applying for an interlocutory injunction.
Newman Brothers, Limited v Allum S.O.S. Motors, Limited (in liquidation), and others (No. 2)	New Zealand Court of Appeal	Yes	[1935] NZLR 17	New Zealand	If it appears that no damage is proved occasioned by the injunction as distinct from the detriment arising from the litigation, the [defendant is] not entitled to an inquiry as to damages.
Lunn Poly Limited and another v Liverpool & Lancashire Properties Limited and another	England and Wales Court of Appeal	Yes	[2006] EWCA Civ 430	England and Wales	Another type of special case would be where the court is quite satisfied that no damages have been suffered.
Hitachi Leasing (Singapore) Pte Ltd v Vincent Ambrose and another	Singapore High Court	Yes	[2001] 1 SLR (R) 762	Singapore	Applications for the Mareva Orders were made in good faith. The merits of the underlying dispute over the SSA had already been adjudicated in favor of Astro.
Gidrxslme Shipping Co. Ltd. v Tantomar-Transportes Maritimos Lda.	England and Wales Court of Appeal	Yes	[1995] 1 WLR 299	England and Wales	The court noted that a mareva injunction in aid of enforcement of an arbitral award could be granted before the award was converted into a judgment.

13. Applicable Rules

Rule Name
Order 56 rule 3(1) of the Rules of Court (Cap 322, R 5, 2006 Rev Ed)

14. Applicable Statutes

Statute Name	Jurisdiction
No applicable statutes

15. Key Terms and Keywords

15.1 Key Terms

Mareva Injunctions
Undertaking as to damages
Inquiry as to damages
Arbitration
Dissipation of assets
Special circumstances
Enforcement Orders
Subscription and Shareholders Agreement
Five Awards
Real risk of dissipation

15.2 Keywords

Mareva injunction
undertaking as to damages
arbitration
dissipation of assets
Singapore High Court
Astro
First Media

16. Subjects

Injunctions
Damages
Arbitration
Civil Procedure

17. Areas of Law

Injunctions
Civil Procedure
Arbitration Law