TMT Asia v BHP Billiton: Abuse of Process & Offer to Settle in Freight Trading Dispute
TMT Asia Limited appealed against the High Court's decision to strike out its claim against BHP Billiton Marketing AG (Singapore Branch) and BHP Billiton Marketing Asia Pte Ltd. The High Court found that TMT Asia's continued prosecution of its claim, in light of BHP Billiton's offer to settle, was an abuse of process. The Court of Appeal dismissed the appeal, holding that while the issue was not res judicata due to amendments in the Securities and Futures Act, TMT Asia's continuation of the action was indeed an abuse of the court's process.
1. Case Overview
1.1 Court
Court of Appeal of the Republic of Singapore1.2 Outcome
Appeal Dismissed
1.3 Case Type
Civil
1.4 Judgment Type
Grounds of Decision
1.5 Jurisdiction
Singapore
1.6 Description
Appeal regarding abuse of process in a freight trading dispute. The court found TMT Asia's continuation of action an abuse of process.
1.7 Decision Date
2. Parties and Outcomes
| Party Name | Role | Type | Outcome | Outcome Type | Counsels |
|---|---|---|---|---|---|
| TMT Asia Limited | Appellant, Plaintiff | Corporation | Appeal Dismissed | Lost | |
| BHP Billiton Marketing AG (Singapore Branch) | Respondent, Defendant | Corporation | Appeal upheld | Won | |
| BHP Billiton Marketing Asia Pte Ltd | Respondent, Defendant | Corporation | Appeal upheld | Won |
3. Judges
| Judge Name | Title | Delivered Judgment |
|---|---|---|
| Tay Yong Kwang | Judge of Appeal | Yes |
| Steven Chong | Judge of Appeal | No |
4. Counsels
4. Facts
- TMTA commenced an action against BHPM in the District Court, which was transferred to the High Court.
- BHPM made a settlement offer to TMTA to pay US$81,500 plus interest and costs.
- TMTA refused the offer, seeking a finding on BHPM's liability.
- BHPM applied to strike out TMTA's claim on account of the offer.
- An assistant registrar declined to strike out TMTA’s claim.
- Amendments were made to the SFA, repealing s 208 and replacing it with s 201B.
- The Judge determined that TMTA’s continuance of the action was an abuse of process and struck out the claim.
5. Formal Citations
- TMT Asia Limited v BHP Billiton Marketing AG (Singapore Branch) and another, Civil Appeal No 200 of 2018, [2019] SGCA 60
6. Timeline
| Date | Event |
|---|---|
| TMTA commenced its action against BHPM in the District Court. | |
| The suit was transferred to the High Court as Suit 580. | |
| BHPM applied under O 14 r 12 of the ROC for determination of questions of law. | |
| The 1st Striking Out Application was heard at first instance by an assistant registrar. | |
| Prakash J allowed TMTA’s appeals and declined to strike out TMTA’s claim. | |
| BHPM registered in Singapore a judgment of the English High Court given in its favour against TMTA. | |
| Rajah & Tann Singapore LLP communicated a settlement offer to KhattarWong LLP. | |
| TMTA responded to the Offer. | |
| BHPM applied to strike out TMTA’s claim on account of the Offer. | |
| An assistant registrar declined to strike out TMTA’s claim. | |
| The Securities and Futures (Amendment) Act 2017 was passed. | |
| BHPM applied by way of Summons No 2887 of 2018 to strike out TMTA’s claim under O 18 r 19 of the ROC. | |
| SUM 2887 was heard before the Judge. | |
| The Securities and Futures (Amendment) Act 2017 came into operation. | |
| The parties returned before the Judge for the hearing of the preliminary issue. | |
| The Court of Appeal heard the matter and dismissed the appeal. | |
| The Court of Appeal gave the reasons for its decision. |
7. Legal Issues
- Abuse of Process
- Outcome: The court held that TMTA's continuation of the action was an abuse of process.
- Category: Procedural
- Sub-Issues:
- Continuation of action despite settlement offer
- Commencement of proceedings for collateral purpose
- Related Cases:
- [2017] EWCA Civ 134
- Res Judicata
- Outcome: The court held that the issue of abuse of process was not res judicata because there was no complete identity of subject matter.
- Category: Procedural
- Sub-Issues:
- Final and conclusive judgment on the merits
- Identity of subject matter
- Related Cases:
- [2005] 3 SLR(R) 157
- [2007] 1 SLR(R) 453
8. Remedies Sought
- Damages
- Compensation
- Interest
- Costs
9. Cause of Actions
- Breach of s 208(a) of the Securities and Futures Act
10. Practice Areas
- Commercial Litigation
- Arbitration
11. Industries
- Shipping
- Finance
12. Cited Cases
| Case Name | Court | Affirmed | Citation | Jurisdiction | Significance |
|---|---|---|---|---|---|
| Lee Tat Development Pte Ltd v Management Corporation of Strata Title Plan No 301 | High Court | Yes | [2005] 3 SLR(R) 157 | Singapore | Cited for the four cumulative elements that must be satisfied before an issue estoppel arises. |
| Balk v Otkritie International Investment Management Ltd and others | English Court of Appeal | Yes | [2017] EWCA Civ 134 | England and Wales | Applied to support the holding that the continuance of TMTA’s claim would be an abuse of the court’s process because it would serve no useful purpose in the light of the Offer. |
| Goh Nellie v Goh Lian Teck and others | High Court | Yes | [2007] 1 SLR(R) 453 | Singapore | Cited for the general principle that there will not be identity of subject matter if the prior decision cannot be said to have traversed the same ground as the subsequent proceeding owing to a change in the facts and circumstances which gave rise to the earlier decision. |
13. Applicable Rules
| Rule Name |
|---|
| Rules of Court (Cap 322, R 5, 2014 Rev Ed) O 18 r 19 |
| Rules of Court (Cap 322, R 5, 2014 Rev Ed) O 14 r 12 |
| Rules of Court (Cap 322, R 5, 2014 Rev Ed) O 33 r 2 |
| Rules of Court (Cap 322, R 5, 2014 Rev Ed) O 33 r 5 |
14. Applicable Statutes
| Statute Name | Jurisdiction |
|---|---|
| Securities and Futures Act (Cap 289, 2006 Rev Ed) s 208(a) | Singapore |
| Securities and Futures (Amendment) Act 2017 (No 4 of 2017) | Singapore |
15. Key Terms and Keywords
15.1 Key Terms
- Forward freight agreements
- Baltic Capesize Index Time Charter Basket Average
- Futures contract
- Settlement offer
- Abuse of process
- Res judicata
- Issue estoppel
- Collateral purpose
- Securities and Futures Act
- Derivatives contract
- Organised market
15.2 Keywords
- abuse of process
- settlement offer
- res judicata
- freight trading
- securities and futures act
17. Areas of Law
| Area Name | Relevance Score |
|---|---|
| Civil Procedure | 80 |
| Civil Practice | 75 |
| Offer to Settle | 70 |
| Striking out | 65 |
| Res Judicata | 60 |
16. Subjects
- Civil Procedure
- Shipping Law
- Financial Law