Civelli v. Mulacek: Forum Non Conveniens & Anti-Suit Injunction in Loan Dispute
In Civelli v. Mulacek, the High Court of Singapore addressed disputes arising from loans and share transfers between Carlo Giuseppe Civelli and Philippe Emanuel Mulacek. Civelli initially filed two suits in Singapore (Suit 676/2017 and Suit 1159/2017) concerning cash and share loans. Subsequently, Civelli commenced proceedings in Texas, leading Mulacek to seek an anti-suit injunction in Singapore. Civelli then applied for a stay of Mulacek's counterclaim in Suit 676/2017. The court, presided over by Valerie Thean J, dismissed Mulacek's anti-suit injunction application and granted Civelli's applications for a stay and extension of time, contingent on Civelli discontinuing the Singapore suits, finding Texas to be the more appropriate forum for resolving the complex claims and counterclaims.
1. Case Overview
1.1 Court
High Court of the Republic of Singapore1.2 Outcome
Mr Mulacek’s application for an anti-suit injunction to restrain the Texas proceedings is dismissed. Subject to Mr Civelli fulfilling his undertaking to discontinue both suits, Mr Civelli’s applications for an extension of time to apply for a stay of Mr Mulacek’s counterclaim, and for a stay of the same are granted.
1.3 Case Type
Civil
1.4 Judgment Type
Judgment
1.5 Jurisdiction
Singapore
1.6 Description
Singapore court dismisses anti-suit injunction and grants stay, finding Texas a more appropriate forum for complex loan and fiduciary duty claims.
1.7 Decision Date
2. Parties and Outcomes
| Party Name | Role | Type | Outcome | Outcome Type | Counsels |
|---|---|---|---|---|---|
| Carlo Giuseppe Civelli | Plaintiff | Individual | Applications for extension of time and stay of counterclaim granted | Partial | |
| Aster Capital SA (Ltd) Panama | Plaintiff | Corporation | Neutral | Neutral | |
| Philippe Emanuel Mulacek | Defendant | Individual | Application for anti-suit injunction dismissed | Lost | Toby Landau of Essex Court Chambers Duxton Calvin Liang of Essex Court Chambers Duxton |
3. Judges
| Judge Name | Title | Delivered Judgment |
|---|---|---|
| Valerie Thean | Judge | Yes |
4. Counsels
| Counsel Name | Organization |
|---|---|
| Cavinder Bull | Drew & Napier LLC |
| Tay Hong Zhi Gerald | Drew & Napier LLC |
| Woo Shu Yan | Drew & Napier LLC |
| Ho Wei Wen Daryl | Drew & Napier LLC |
| Charlene Wee Swee Ting | Salem Ibrahim LLC |
| Toby Landau | Essex Court Chambers Duxton |
| Calvin Liang | Essex Court Chambers Duxton |
| Salem Ibrahim | Salem Ibrahim LLC |
| Ashwin Singh Riar | Salem Ibrahim LLC |
4. Facts
- Civelli and Mulacek had a business relationship since 2002.
- Civelli loaned Mulacek US$3,691,250 in 2009 to pay legal fees.
- Civelli also loaned Mulacek InterOil shares to resolve a Texas lawsuit.
- Mulacek transferred 527,396 shares to Aster Brunei without Civelli's knowledge.
- Civelli sold the Beneficiaries’ interest in PRL-15 to Oil Search Limited in 2014.
- Civelli commenced suits in Singapore and Texas against Mulacek.
- Mulacek filed a counterclaim against Civelli for breach of fiduciary duty.
5. Formal Citations
- Civelli, Carlo Giuseppe v Mulacek, Philippe Emanuel and another matter, Suit Nos 676 of 2017 (Summons Nos 2384 of 2018 and 2622 of 2019) and 1159 of 2017 (Summons No 2036 of 2018), [2019] SGHC 182
6. Timeline
| Date | Event |
|---|---|
| Business relationship between Civelli and Mulacek began. | |
| Mulacek requested a cash loan from Civelli in Singapore. | |
| Mr. Dale A Dossey emailed Mr. Civelli, asking for 700,000 InterOil shares to be transferred to a JPMorgan Chase Bank, N.A. account. | |
| Aster Capital S.A. (LTD) Panama transferred 600,000 InterOil shares to the Chase Bank account. | |
| Aster Capital S.A. (LTD) Panama transferred 45,000 InterOil shares to the Chase Bank account. | |
| Surplus of 105,899 InterOil shares was returned to Mr Civelli. | |
| Civelli sold the Beneficiaries’ interest in PRL-15 to Oil Search Limited. | |
| Civelli met Mulacek in Singapore and demanded the return of the Cash Loan and the shares. | |
| Civelli commenced Suit 676/2017 for the Cash Loan of US$3,691,250. | |
| Civelli, together with Aster Panama, commenced Suit 1159/2017 for an account of the proceeds of the sale of the 539,101 InterOil shares. | |
| Civelli, together with Aster Panama, commenced proceedings against Chase Securities, Chase Bank, Mr Mulacek, Mr Jacquin and Aster Brunei in Texas. | |
| Mulacek was served in Texas with the writ and Statement of Claim for both Suit 676/2017 and 1159/2017. | |
| Mulacek filed his Defence and Counterclaim in Suit 676/2017. | |
| Civelli served Mulacek with the papers for the Texas proceedings by way of substituted service in Texas. | |
| Mulacek filed Summons No 2036 of 2018 in Suit 1159/2017, seeking an ASI to restrain Civelli from taking further steps in the Texas proceedings. | |
| Civelli filed a notice of change of solicitors and Summons No 2384 of 2018 to stay Mulacek’s Counterclaim in Suit 676/2017 on the basis of forum non conveniens. | |
| Civelli filed Summons No 2622 of 2019, seeking an extension of time to apply for his stay application. | |
| Hearing for Summons No 2622 of 2019. | |
| Hearing for Summons No 2622 of 2019. | |
| Hearing for Summons No 2622 of 2019. | |
| Judgment reserved. |
7. Legal Issues
- Forum Non Conveniens
- Outcome: The court found that Texas is the forum conveniens for the disputes between the parties.
- Category: Procedural
- Sub-Issues:
- Appropriateness of forum
- Real and substantial connection to dispute
- Convenience and expense
- Governing law
- Personal connections of parties
- Connections to relevant events and transactions
- Existence of other proceedings elsewhere
- Overall shape of the litigation
- Related Cases:
- [1987] AC 460
- [2008] 4 SLR(R) 543
- [2019] SGCA 42
- [2017] 2 SLR 265
- Anti-Suit Injunction
- Outcome: The court dismissed Mr Mulacek's application for an anti-suit injunction.
- Category: Procedural
- Sub-Issues:
- Amenability of defendants to jurisdiction
- Natural forum for resolution
- Vexation or oppression to plaintiffs
- Injustice to defendants
- Breach of agreement between parties
- Comity
- Related Cases:
- [2009] 4 SLR(R) 428
- [1997] 2 SLR(R) 148
- Extension of Time
- Outcome: The court granted Mr Civelli's application for an extension of time to apply for a stay of Mr Mulacek's counterclaim.
- Category: Procedural
- Sub-Issues:
- Prejudice to parties
- Justification for failure to abide by timelines
- Litigation strategy
- Viability of application
8. Remedies Sought
- Return of Loaned Money
- Account of Proceeds of Sale of Shares
- Damages
- Declaration of Trust
- Anti-Suit Injunction
- Stay of Proceedings
9. Cause of Actions
- Breach of Contract
- Breach of Trust
- Breach of Fiduciary Duty
- Negligence
- Conversion
- Conspiracy
- Promissory Estoppel
- Common Law Fraud
10. Practice Areas
- International Litigation
- Commercial Litigation
11. Industries
- No industries specified
12. Cited Cases
| Case Name | Court | Affirmed | Citation | Jurisdiction | Significance |
|---|---|---|---|---|---|
| John Reginald Stott Kirkham v Trane US Inc | Court of Appeal | Yes | [2009] 4 SLR(R) 428 | Singapore | Cited for the principles governing the grant of an anti-suit injunction, emphasizing the need for caution and consideration of various factors. |
| Koh Kay Yew v Inno-Pacific Holdings Ltd | High Court | Yes | [1997] 2 SLR(R) 148 | Singapore | Cited for the principle that foreign proceedings must be clearly vexatious or oppressive before an anti-suit injunction is granted. |
| Spiliada Maritime Corporation v Cansulex Ltd | House of Lords | Yes | [1987] AC 460 | United Kingdom | Cited for establishing the two-part test for granting a stay of proceedings based on forum non conveniens. |
| CIMB Bank Bhd v Dresdner Kleinwort Ltd | Court of Appeal | Yes | [2008] 4 SLR(R) 543 | Singapore | Cited for summarizing the principles of forum non conveniens as governed by the Spiliada test. |
| Lakshmi Anil Salgaocar v Jhaveri Darsan Jitendra | Court of Appeal | Yes | [2019] SGCA 42 | Singapore | Cited for summarizing the queries to be posed at the first stage of the Spiliada test. |
| Rappo, Tania v Accent Delight International Ltd | Court of Appeal | Yes | [2017] 2 SLR 265 | Singapore | Cited for cautioning against applying the five-fold framework of forum non conveniens in a mechanistic manner and emphasizing the quality of connecting factors. |
| La Société du Gaz de Paris v La Société Anonyme de Navigation “Les Armateurs Français” | House of Lords | Yes | (1926) Sess Cas (HL) 13 | United Kingdom | Cited for the principle that the object of forum non conveniens is to find the forum most suitable for the ends of justice. |
| 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 principle that the place of contracting is generally not important in determining the governing law of a contract, except where the contract is to be performed in that country. |
| Rickshaw Investments Ltd and another v Nicolai Baron von Uexkull | Court of Appeal | Yes | [2007] 1 SLR(R) 377 | Singapore | Cited for the principle that the governing law for a tortious claim is usually dependent on the place the tort occurred. |
| EFT Holdings, Inc and another v Marinteknik Shipbuilders (S) Pte ltd and another | Court of Appeal | Yes | [2014] 1 SLR 860 | Singapore | Cited for the principle that in order to determine the place where a tort occurred, the court is to apply the “substance of the tort” test. |
| Virsagi Management (S) Pte Ltd v Welltech Construction Pte Ltd and another | Court of Appeal | Yes | [2013] 4 SLR 1097 | Singapore | Cited for the principle that allowing two actions in two jurisdictions to proceed concurrently runs the risk that “the same issue be litigated twice”, with a possibility of having “two different results, each conflicting with the other”. |
| Amchem Products Incorporated v British Columbia (Workers’ Compensation Board) | Supreme Court | Yes | [1993] 1 SCR 897 | Canada | Cited for the principle that if the foreign court could reasonably have concluded that there was no alternative forum that was clearly more appropriate, the domestic court should respect that decision. |
| The “Reecon Wolf” | High Court | Yes | [2012] 2 SLR 289 | Singapore | Cited for the manifest concern for international comity in forum non conveniens principles. |
| The Abidin Daver | House of Lords | Yes | [1984] AC 398 | United Kingdom | Cited for the principle that comity demands that such a situation should not be permitted to occur as between court of two civilised and friendly states. |
| Chan Chin Cheung | High Court | Yes | [2010] 1 SLR 1192 | Singapore | Cited for the principle that there were parallel proceedings in Singapore and Malaysia and the Singapore proceedings were stayed in the interest of international comity. |
| Vinmar Overseas (Singapore) Pte Ltd v PTT International Trading Pte Ltd | Court of Appeal | Yes | [2018] 2 SLR 1271 | Singapore | Cited for the concern arising from fragmentation of legal proceedings is legitimate. |
| HM Attorney-General v Arthur Andersen & Co (United Kingdom) and others | Unknown | Yes | [1989] ECC 224 | England and Wales | Cited for the principle that having put his hand to the plough he should continue to the end of the furrow. |
| Shanghai Turbo Enterprises Ltd v Liu Ming | Court of Appeal | Yes | [2019] 1 SLR 779 | Singapore | Cited for the principle that the defendant’s participation in the suit was not merely defensive, but amounted to an invocation of the court’s jurisdiction and an implied acceptance that the court had jurisdiction. |
| Sun Jin Engineering Pte Ltd v Hwang Jae Woo | Court of Appeal | Yes | [2011] 2 SLR 196 | Singapore | Cited for the principle that a “lengthy delay” in making a stay application “may be treated as a waiver of any objections which might have been raised”. |
| Ledra Fisheries Ltd & others v Turner & others | High Court | Yes | [2003] EWHC 1049 (Ch) | England and Wales | Cited for the proposition that where a plaintiff seeking a stay must be refused but for the limited exception where proceedings were started purely to protect the claimant’s limitation period. |
| The Insurance Company of the State of Pennsylvania v Equitas Insurance Limited | High Court | Yes | [2013] EWHC 3713 (Comm) | England and Wales | Cited for the proposition that where a plaintiff seeking a stay must be refused but for the limited exception where proceedings were started purely to protect the claimant’s limitation period. |
| Excalibur Ventures LLC v Texas Keystone Inc & ors | Unknown | Yes | [2012] All ER (Comm) 933 | England and Wales | Cited for the proposition that where a plaintiff seeking a stay must be refused but for the limited exception where proceedings were started purely to protect the claimant’s limitation period. |
| Balkan Bank v Taher and others (no 2) | Unknown | Yes | [1995] 1 WLR 1067 | England and Wales | Cited for the principle that Order 15, r 2 ROC allows any defendant to bring a counterclaim, and therefore, any plaintiff who brings suit must expect that a defendant may bring a counterclaim in response. |
| Metal Scrap Trading Corporation Ltd v Kate Shipping Co Ltd | Unknown | Yes | [1990] 1 WLR 115 | England and Wales | Cited for the principle that a defendant has the right to bring a counterclaim notwithstanding that Singapore may not be the clearly more appropriate forum. |
13. Applicable Rules
| Rule Name |
|---|
| Rule 45(c) of the Federal Rules of Civil Procedure |
| O 12 r 7(2) of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) |
14. Applicable Statutes
| Statute Name | Jurisdiction |
|---|---|
| Texas Uniform Fraudulent Transfer Act, Tex. Bus. & Com. Code §§ 24.005(a)(1) and 24.005(a)(2) | Texas |
| Texas Civil Practice and Remedies Code § 134.001 | Texas |
15. Key Terms and Keywords
15.1 Key Terms
- Forum Non Conveniens
- Anti-Suit Injunction
- Cash Loan
- Share Loan Agreement
- Complex Arrangements
- Settling Up Promise
- Beneficiaries
- IPI Agreements
- PRL-15
- Oil Search Sale
15.2 Keywords
- Forum Non Conveniens
- Anti-Suit Injunction
- Loan Dispute
- Singapore
- Texas
- Civil Procedure
- Conflict of Laws
17. Areas of Law
16. Subjects
- Civil Procedure
- Conflict of Laws
- International Litigation
- Commercial Disputes
- Loans
- Fiduciary Duty