Cosmetic Care Asia Ltd v Sri Linarti Sasmito: Service Out of Jurisdiction Dispute

In Cosmetic Care Asia Ltd and others v Sri Linarti Sasmito, the General Division of the High Court of Singapore addressed the defendant's application to set aside the order granting the plaintiffs leave to serve the originating process out of jurisdiction. The plaintiffs, including Cosmetic Care Asia Ltd and its subsidiaries, sued the defendant, Sri Linarti Sasmito, for breach of an acknowledgement of debt. The court dismissed the defendant's summons, finding that the plaintiffs' claim had sufficient merit, Singapore was the appropriate forum, and there was no failure to make full and frank disclosure. The court also upheld the order for substituted service.

1. Case Overview

1.1 Court

General Division of the High Court

1.2 Outcome

Summons dismissed.

1.3 Case Type

Civil

1.4 Judgment Type

Grounds of Decision

1.5 Jurisdiction

Singapore

1.6 Description

Singapore court addresses service out of jurisdiction in a dispute between Cosmetic Care Asia and Sri Linarti Sasmito, focusing on forum and disclosure.

1.7 Decision Date

28 June 2021

2. Parties and Outcomes

Party Name	Role	Type	Outcome	Outcome Type	Counsels
Cosmetic Care Asia Ltd	Plaintiff	Corporation	Summons dismissed	Lost	Ng Ka Luon Eddee, Cha Mei Yin, Chan Michael Karfai
OBM (Technical Services) Pte Ltd	Plaintiff	Corporation	Summons dismissed	Lost	Ng Ka Luon Eddee, Cha Mei Yin, Chan Michael Karfai
Facial Care Services Pte Ltd	Plaintiff	Corporation	Summons dismissed	Lost	Ng Ka Luon Eddee, Cha Mei Yin, Chan Michael Karfai
Hair System Management Pte Ltd	Plaintiff	Corporation	Summons dismissed	Lost	Ng Ka Luon Eddee, Cha Mei Yin, Chan Michael Karfai
Sri Linarti Sasmito	Defendant	Individual	Summons dismissed	Won	Wong Soon Peng Adrian, Ng Tee Tze Allen, Timothy Ng Xin Zhan

3. Judges

Judge Name	Title	Delivered Judgment
S Mohan	Judicial Commissioner	Yes

4. Counsels

Counsel Name	Organization
Ng Ka Luon Eddee	Tan Kok Quan Partnership
Cha Mei Yin	Tan Kok Quan Partnership
Chan Michael Karfai	Tan Kok Quan Partnership
Wong Soon Peng Adrian	Rajah & Tann Singapore LLP
Ng Tee Tze Allen	Rajah & Tann Singapore LLP
Timothy Ng Xin Zhan	Rajah & Tann Singapore LLP

4. Facts

Cosmetic Care Asia Ltd is in the business of franchising and licensing trademarks.
OBM (Technical Services) Pte Ltd and others are in the business of specialized treatments and selling products.
Sri Linarti Sasmito is the co-founder of companies that are Indonesian franchisees of the plaintiffs.
A Term Sheet was entered into between the plaintiffs and the PT Entities.
An acknowledgement of debt was executed by the defendant.
The plaintiffs commenced S 617 against the defendant to enforce the AOD.
The defendant applied to set aside the order granting leave to serve the originating process out of jurisdiction.

5. Formal Citations

Cosmetic Care Asia Ltd and others v Sri Linarti Sasmito, Suit No 617 of 2019 (Summons No 5867 of 2019), [2021] SGHC 157

6. Timeline

Date	Event
2014-04-23	Term Sheet dated
2018-05-18	Acknowledgement of debt executed
2018-09-28	Term Sheet terminated
2019-01-24	Indonesian Proceedings commenced
2019-03-06	Demand sent to defendant by plaintiffs' solicitors
2019-06-25	S 617 commenced against the defendant
2019-08-05	Plaintiffs obtained leave ex parte to serve Writ in Jakarta
2019-10-04	Plaintiffs obtained ex parte order for substituted service
2019-10-11	Substituted service effected on the defendant
2019-11-22	SUM 5867 filed by the defendant
2020-02-13	Plaintiffs’ Skeletal Submissions dated
2020-02-26	Hearing before the court concluded
2020-03-18	Defendant’s Reply Submissions dated
2020-03-31	SUM 5867 dismissed
2020-04-09	Plaintiffs’ Revised Further Submissions dated
2021-02-08	Defendant granted leave to appeal
2021-06-29	Full grounds for decision in SUM 5867 set out

7. Legal Issues

Service Out of Jurisdiction
- Outcome: The court found that the plaintiffs had met the requirements for service out of jurisdiction.
- Category: Procedural
- Related Cases:
  - [2020] 1 SLR 226
  - [2014] 4 SLR 500
Full and Frank Disclosure
- Outcome: The court found that there were some instances of material non-disclosure on the part of the plaintiffs, but exercised its discretion not to set aside the ex parte order.
- Category: Procedural
- Related Cases:
  - [2014] 3 SLR 1161
  - [2021] SGCA 36
  - [2019] 1 SLR 779
Appropriate Forum
- Outcome: The court found that Singapore was the clearly more appropriate forum for the trial of the action.
- Category: Procedural
- Related Cases:
  - [2011] 1 SLR 391
  - [2017] 2 SLR 265
  - [2019] 2 SLR 372
Governing Law of Contract
- Outcome: The court determined that Singapore law was the governing law of the AOD.
- Category: Substantive
- Related Cases:
  - [2008] 2 SLR(R) 491

8. Remedies Sought

Monetary Damages

9. Cause of Actions

Breach of Contract
Enforcement of Guarantee

10. Practice Areas

Commercial Litigation

11. Industries

Cosmetics
Franchising

12. Cited Cases

Case Name	Court	Affirmed	Citation	Jurisdiction	Significance
Oro Negro Drilling Pte Ltd and others v Integradora de Servicios Petroleros Oro Negro SAPI de CV and others and another appeal (Jesus Angel Guerra Mendez, non-party)	Court of Appeal	Yes	[2020] 1 SLR 226	Singapore	Reiterated the requirements for obtaining leave to serve originating process out of Singapore.
Zoom Communications Ltd v Broadcast Solutions Pte Ltd	Court of Appeal	Yes	[2014] 4 SLR 500	Singapore	Summarized the requirements that must be met before a plaintiff may obtain leave to serve originating process out of Singapore.
Bradley Lomas Electrolok Ltd v Colt Ventilation East Asia	Court of Appeal	Yes	[1999] 3 SLR(R) 1156	Singapore	Discussed the threshold for the merits of the claim when relying on a jurisdictional gateway.
Kernel Oil Pte Ltd v Iman Djuniardi	High Court	No	[2020] SGHC 52	Singapore	Addressed the threshold a plaintiff must meet regarding the merits of their case when O 11 r 1(d) ROC is the jurisdictional gateway.
MAN Diesel & Turbo SE and another v IM Skaugen SE and another	Court of Appeal	Yes	[2020] 1 SLR 327	Singapore	Explained the 'good arguable case' standard for establishing a jurisdictional gateway.
Seaconsar Far East Ltd v Bank Markazi Jomhouri Islami Iran	House of Lords	Yes	[1994] 1 AC 438	England	Explained the distinction between the 'good arguable case' standard and the 'serious issue to be tried' standard.
Chemische Fabrik vormals Sandoz v Badische Anilin und Soda Fabriks	Unknown	Yes	(1904) 90 LT 733	Unknown	Discussed the standard of proof required for the merits of a case in service out applications.
American Cyanamid Co v Ethicon Ltd	House of Lords	Yes	[1975] AC 396	England	Set out the test for seeking an interlocutory injunction, including the requirement of a 'serious issue to be tried'.
Eng Mee Yong v V Letchumanan	Unknown	Yes	[1979] 2 MLJ 212	Malaysia	Discussed the assessment of affidavit evidence in determining if a conflict of evidence merits further investigation.
Chuan Hong Petrol Station Pte Ltd v Shell Singapore (Pte) Ltd	High Court	Yes	[1992] 2 S.L.R.(R.) 1	Singapore	Discussed the assessment of affidavit evidence in determining if a conflict of evidence merits further investigation.
Max-Sun Trading Ltd and another v Tang Mun Kit and another (Tan Siew Moi, third party)	High Court	No	[2016] 5 SLR 815	Singapore	Addressed the issue of uncertainty of parties in a contract.
CIMB Bank Bhd v Dresdner Kleinwort Ltd	High Court	No	[2008] 4 SLR(R) 543	Singapore	Discussed the relevance of choice of law considerations in determining the natural forum.
Rickshaw Investments Ltd and another v Nicolai Baron von Uexkull	High Court	Yes	[2007] 1 SLR(R) 377	Singapore	Discussed the relevance of choice of law considerations in determining the natural forum.
Pacific Recreation Pte Ltd v S Y Technology Inc and another appeal	Court of Appeal	Yes	[2008] 2 SLR(R) 491	Singapore	Set out the three-stage test for determining the governing law of a contract.
Las Vegas Hilton Corp (trading as Las Vegas Hilton) v Khoo Teng Hock Sunny	High Court	Yes	[1996] 2 SLR(R) 589	Singapore	Identified factors to consider in determining which governing law has the closest and most real connection to a contract.
BNA v BNB	Court of Appeal	No	[2020] 1 SLR 456	Singapore	Addressed the argument that parties could not have intended a particular seat of arbitration if the arbitration agreement would be void under that jurisdiction's law.
The Eider	Unknown	Yes	[1893] P 119	England	Established the general rule that a debtor must follow his creditor and pay where the creditor is.
EFG Bank AG, Singapore Branch v Teng Wen-Chung	High Court	Yes	[2017] SGHC 318	Singapore	Held that the place of performance of a loan agreement is where payment is to take place.
BNP Paribas SA v Jacob Agam and another	Singapore International Commercial Court	Yes	[2018] 4 SLR 57	Singapore	Adopted the reasoning in EFG Bank regarding the place of payment under guarantees.
Arab Bank Ltd v Barclays Bank (Dominion, Colonial and Overseas)	House of Lords	Yes	[1954] AC 495	England	Affirmed the general duty of a debtor to seek out his creditor.
Coates v Charles Porter & Sons Pty Ltd	Supreme Court of Western Australia	Yes	(1990) 2 ACSR 733	Australia	Found that it was an implied term of a quasi-contract that payments were to be paid to the liquidator at his ordinary place of business.
Bunge SA and another v Indian Bank	High Court	Yes	[2015] SGHC 330	Singapore	Considered the place of performance of an asserted contractual obligation in assessing the objective choice of law of that contract.
Recovery Vehicle 1 Pte Ltd v Industries Chimiques Du Senegal and another appeal and another matter	Court of Appeal	Yes	[2021] 1 SLR 342	Singapore	Supports the conclusion that the place of performance is significant in determining the governing law.
Manharlal Trikamdas Mody and another v Sumikin Bussan International (HK) Ltd	High Court	Yes	[2014] 3 SLR 1161	Singapore	Stated that a plaintiff applying ex parte for leave to serve originating process on a defendant out of jurisdiction is subject to a duty of full and frank disclosure.
Tecnomar & Associates Pte Ltd v SBM Offshore NV	Court of Appeal	Yes	[2021] SGCA 36	Singapore	Reiterated the duty of full and frank disclosure in ex parte applications for service out of jurisdiction.
Shanghai Turbo Enterprises Ltd v Liu Ming	Court of Appeal	Yes	[2019] 1 SLR 779	Singapore	Explained the test of materiality in the context of the duty of full and frank disclosure.
The Vasiliy Golovnin	Court of Appeal	Yes	[2008] 4 SLR(R) 994	Singapore	Explained the test of materiality in the context of the duty of full and frank disclosure.
Steep Rise Ltd v Attorney-General	Court of Appeal	Yes	[2020] 1 SLR 872	Singapore	Stated that the ex parte applicant must disclose defences that may be reasonably raised by the defendant.
Tay Long Kee Impex Pte Ltd v Tan Beng Huwah (trading as Sin Kwang Wah)	High Court	Yes	[2000] 1 SLR(R) 786	Singapore	Stated that the duty to make full and frank disclosure requires the applicant to also disclose such additional facts which he would have known if he had made proper inquiries.
The “Eagle Prestige”	High Court	No	[2010] 3 SLR 294	Singapore	Addressed the issue of whether it had admiralty in rem jurisdiction.
Bahtera Offshore (M) Sdn Bhd v Sim Kok Beng and another	High Court	Yes	[2009] 4 SLR(R) 365	Singapore	Discussed the court's discretion not to set aside the ex parte order even in the absence of full and frank disclosure.
Brink’s-Mat Ltd v Elcombe	Unknown	Yes	[1988] 3 All ER 188	England	Discussed the court's discretion not to set aside the ex parte order even in the absence of full and frank disclosure.
Raffles Education Corp Ltd and others v Shantanu Prakash and another	High Court	Yes	[2020] SGHC 83	Singapore	Discussed witness compellability in determining the natural forum.
JIO Minerals FZC and others v Mineral Enterprises Ltd	High Court	Yes	[2011] 1 SLR 391	Singapore	Identified broad categories of relevant connecting factors to guide a court in its identification of the natural forum.
Rappo, Tania v Accent Delight International Ltd and another and another appeal	Court of Appeal	Yes	[2017] 2 SLR 265	Singapore	Re-emphasized that the court is concerned with the quality rather than quantity of the connecting factors.
Lakshmi Anil Salgaocar v Jhaveri Darsan Jitendra	Court of Appeal	Yes	[2019] 2 SLR 372	Singapore	Re-emphasized that the court is concerned with the quality rather than quantity of the connecting factors.
Humpuss Sea Transport Pte Ltd (in compulsory liquidation) v PT Humpuss Intermoda Transportasi TBK and another	High Court	Yes	[2015] 4 SLR 625	Singapore	Addressed similar issues regarding service of foreign process in Indonesia.
IM Skaugen SE and another v MAN Diesel & Turbo SE and another	High Court	No	[2018] SGHC 123	Singapore	Addressed the court's discretion not to set aside the ex parte order even in the absence of full and frank disclosure.

13. Applicable Rules

Rule Name
Order 11 Rule 1 of the Rules of Court
Order 11 Rule 3(2) of the Rules of Court
Order 11 Rule 4(2)(b) of the Rules of Court

14. Applicable Statutes

Statute Name	Jurisdiction
Rules of Court (Cap 322, R5, 2014 Rev Ed)	Singapore
High Court (Admiralty Jurisdiction) Act (Cap 123, 2001 Rev Ed)	Singapore

15. Key Terms and Keywords

15.1 Key Terms

Service out of jurisdiction
Full and frank disclosure
Appropriate forum
Acknowledgement of debt
Term Sheet
PT Entities
Governing law
Operational commencement
New PT entity

15.2 Keywords

service out of jurisdiction
material non-disclosure
appropriate forum
acknowledgement of debt
contract law
civil procedure

16. Subjects

Civil Procedure
Contract Law
Jurisdiction

17. Areas of Law

Civil Procedure
Service Out of Jurisdiction
Material Non-Disclosure