TMT Asia Ltd v BHP Billiton: Striking Out Claim for Abuse of Process

In TMT Asia Ltd v BHP Billiton Marketing AG (Singapore Branch) and BHP Billiton Marketing Asia Pte Ltd, the High Court of Singapore, on 26 September 2018, struck out TMT Asia Limited's claim against BHP Billiton for US$81,500, alleging manipulation of freight prices. The court found that continuing the claim was an abuse of process, given an open offer made by BHP Billiton to settle the claim, which TMT Asia had refused. The claim was initially commenced in the District Court on 22 February 2013 and transferred to the High Court on 12 June 2013.

1. Case Overview

1.1 Court

High Court of Singapore

1.2 Outcome

Claim struck out

1.3 Case Type

Civil

1.4 Judgment Type

Grounds of Decision

1.5 Jurisdiction

Singapore

1.6 Description

The High Court struck out TMT Asia's claim against BHP Billiton for abuse of process, due to an open offer made by BHP Billiton.

1.7 Decision Date

2. Parties and Outcomes

Party NameRoleTypeOutcomeOutcome TypeCounsels
TMT Asia LimitedPlaintiffCorporationClaim Struck OutLost
BHP Billiton Marketing AG (Singapore Branch)DefendantCorporationJudgment for DefendantWon
BHP Billiton Marketing Asia Pte LtdDefendantCorporationJudgment for DefendantWon

3. Judges

Judge NameTitleDelivered Judgment
Woo Bih LiJudgeYes

4. Counsels

Counsel NameOrganization
Deborah Evaline BarkerKhattarWong LLP
Hewage Ushan Saminda PremaratneKhattarWong LLP
Poon Kin Mun KelvinRajah & Tann Singapore LLP
Ang Tze PhernRajah & Tann Singapore LLP
On Wee Chun DerekRajah & Tann Singapore LLP

4. Facts

  1. TMTA claimed the defendants manipulated freight prices, causing losses of US$81,500.
  2. The defendants made an open offer to pay TMTA the principal sum with interest and costs.
  3. TMTA refused the open offer, seeking a finding of liability against the defendants.
  4. The defendants argued TMTA's continuation of the action served no useful purpose.
  5. TMTA had a judgment debt to BHPB exceeding US$100 million in England.
  6. The open offer involved a set-off against the judgment sum owed by TMTA to BHPB.
  7. TMTA raised concerns about the open offer being subject to contract and uncertainty regarding costs.

5. Formal Citations

  1. TMT Asia Ltd v BHP Billiton Marketing AG (Singapore Branch) and another, Suit No 580 of 2013, [2018] SGHC 228

6. Timeline

DateEvent
Action commenced in the District Court
Defendants filed Originating Summons to transfer the action to the High Court
High Court allowed the application to transfer the action to the High Court
Order of registration made in Originating Summons No 729 of 2015
Defendants made an open offer to settle TMTA’s claim
Assistant Registrar dismissed the defendants' application to strike out TMTA’s claim
Defendants filed Summons No 2853 of 2017 for an order that they need not disclose any of their emails at the general discovery stage
TMTA filed Summons No 2397 of 2018 for discovery of various documents
Defendants filed Summons No 2887 of 2018 to strike out TMTA’s claim
Court struck out TMTA’s claim

7. Legal Issues

  1. Abuse of Process
    • Outcome: The court held that continuing the claim in the face of the open offer was an abuse of process.
    • Category: Procedural
    • Sub-Issues:
      • Continuing claim despite open offer
      • Collateral purpose of action
  2. Issue Estoppel
    • Outcome: The court held that the Assistant Registrar's decision was not final and conclusive and did not preclude the court from considering the preliminary point.
    • Category: Procedural

8. Remedies Sought

  1. Monetary Damages
  2. Interest
  3. Costs

9. Cause of Actions

  • Manipulation of freight prices
  • Fraudulent misrepresentation of iron ore prices and/or freight prices

10. Practice Areas

  • Commercial Litigation

11. Industries

  • Shipping
  • Commodities
  • Financial Industry

12. Cited Cases

Case NameCourtAffirmedCitationJurisdictionSignificance
TMT Asia Ltd v BHP Billiton Marketing AG (Singapore Branch) and anotherHigh CourtYes[2015] 2 SLR 540SingaporeCited for the court's previous decision to decline striking out the claim because it raised issues of public importance and required factual findings.
Lee Tat Development Pte Ltd v MCST Plan No 301Court of AppealYes[2005] 3 SLR (R) 157SingaporeCited for the elements of issue estoppel.
Transpac Capital Pte Ltd v Lam Soon (Thailand) Co LtdUnknownYes[1999] 3 SLR(R) 454SingaporeCited regarding whether an application decided on an interlocutory basis could be made and heard again.
Balk v Otkritie International Investment Management Ltd and othersEnglish Court of AppealYes[2017] EWCA Civ 134EnglandCited as a precedent for striking out a claim as an abuse of process when the claimant refuses an open offer that provides all the relief sought.

13. Applicable Rules

Rule Name
Order 18 r 19 of the Rules of Court (Cap 322, R5, 2006 Rev Ed)
Order 14 r 12 of the Rules of Court
Order 33 r 2 of the Rules of Court

14. Applicable Statutes

Statute NameJurisdiction
Securities and Futures Act (Cap 289, 2006 Rev Ed)Singapore
Rules of Court (Cap 322, R5, 2006 Rev Ed)Singapore

15. Key Terms and Keywords

15.1 Key Terms

  • Open Offer
  • Abuse of Process
  • Set-off
  • Forward Freight Agreements
  • Baltic Capesize Index
  • Collateral Purpose
  • Issue Estoppel

15.2 Keywords

  • abuse of process
  • open offer
  • striking out
  • civil procedure
  • freight prices
  • TMT Asia
  • BHP Billiton

17. Areas of Law

Area NameRelevance Score
Civil Practice75
Business Litigation25
Contract Law20
Fraud and Deceit15
Arbitration10

16. Subjects

  • Civil Procedure
  • Abuse of Process
  • Settlement Offers