Vibrant Group Ltd v Tong Chi Ho: Jurisdiction & Forum Non Conveniens in Fraudulent Misrepresentation Claim
Vibrant Group Ltd, a Singapore-incorporated company, sued Tong Chi Ho, Peng Yuguo, and Findex (Aust) Pty Ltd in Singapore's General Division of the High Court, alleging fraudulent or negligent misrepresentations and negligence related to Vibrant Group's acquisition of Blackgold International Holdings Pty Ltd. Peng Yuguo and Findex separately applied to set aside orders granting Vibrant Group leave to serve its writ of summons out of jurisdiction. The Assistant Registrar dismissed Peng Yuguo's application but granted Findex's. Both Peng Yuguo and Vibrant Group appealed. The High Court dismissed both appeals, affirming Singapore as the appropriate forum for the claim against Peng Yuguo and setting aside the service out of jurisdiction order for Findex.
1. Case Overview
1.1 Court
General Division of the High Court of the Republic of Singapore1.2 Outcome
Appeals dismissed in their entirety.
1.3 Case Type
Civil
1.4 Judgment Type
Judgment
1.5 Jurisdiction
Singapore
1.6 Description
Singapore court dismisses appeals related to a fraudulent misrepresentation claim, affirming Singapore as the appropriate forum and setting aside service out of jurisdiction for one defendant.
1.7 Decision Date
2. Parties and Outcomes
| Party Name | Role | Type | Outcome | Outcome Type | Counsels |
|---|---|---|---|---|---|
| Vibrant Group Ltd | Plaintiff, Respondent | Corporation | Appeal dismissed in part | Partial | Thio Shen Yi, Chan Kah Keen Melvin, Ee Eng Yew Justin, Yong Wei Jie Timothy, Terence Yeo |
| Tong Chi Ho | Defendant | Individual | No specific outcome recorded | Neutral | |
| Peng Yuguo | Defendant, Appellant | Individual | Appeal dismissed | Lost | Cham Shan Jie Mark, Matthew Tan Jun Ye |
| Findex (Aust) Pty Ltd | Defendant | Corporation | Service out of jurisdiction order set aside | Won | Gary Leonard Low, Tan Wee Kio Terence, Tan Jia Yi |
3. Judges
| Judge Name | Title | Delivered Judgment |
|---|---|---|
| Teh Hwee Hwee | Judicial Commissioner | Yes |
4. Counsels
| Counsel Name | Organization |
|---|---|
| Thio Shen Yi | TSMP Law Corporation |
| Chan Kah Keen Melvin | TSMP Law Corporation |
| Ee Eng Yew Justin | TSMP Law Corporation |
| Yong Wei Jie Timothy | TSMP Law Corporation |
| Terence Yeo | TSMP Law Corporation |
| Cham Shan Jie Mark | Aquinas Law Alliance LLP |
| Matthew Tan Jun Ye | Aquinas Law Alliance LLP |
| Gary Leonard Low | Drew & Napier LLC |
| Tan Wee Kio Terence | Drew & Napier LLC |
| Tan Jia Yi | Drew & Napier LLC |
4. Facts
- Vibrant Group Ltd acquired Blackgold Australia.
- Vibrant Group alleged fraudulent or negligent misrepresentations by the first and second defendants.
- Vibrant Group claimed the third defendant was negligent in auditing Blackgold Australia.
- The second defendant applied to set aside orders for service out of jurisdiction.
- The third defendant applied to set aside an order for service out of jurisdiction.
- The Assistant Registrar dismissed the second defendant's application but granted the third defendant's.
- Both the second defendant and the plaintiff appealed the Assistant Registrar's decisions.
5. Formal Citations
- Vibrant Group Ltd v Tong Chi Ho and others, Suit No 1046 of 2020 (Registrar’s Appeal No 92 of 2022 and Registrar’s Appeal No 234 of 2022), [2022] SGHC 256
6. Timeline
| Date | Event |
|---|---|
| Blackgold Australia listed on the Australia Securities Exchange. | |
| Engagement Letter signed between Blackgold Australia and Crowe Horwath Perth. | |
| Vibrant Group Ltd and Blackgold Australia entered into a scheme implementation deed. | |
| Federal Court of Australia granted leave for Blackgold Australia to convene a scheme meeting. | |
| Letter of undertaking signed. | |
| Scheme meeting took place in Perth, Western Australia. | |
| Acquisition completed. | |
| Suit 1046 commenced against the first and second defendants. | |
| Leave granted to add the third defendant as a party. | |
| Assistant Registrar dismissed SUM 423/2022. | |
| Assistant Registrar granted the application in SUM 1361/2022. | |
| Appeals heard. | |
| Judgment reserved. |
7. Legal Issues
- Jurisdiction
- Outcome: The court determined that Singapore was the appropriate forum for the claim against the second defendant but not for the claim against the third defendant.
- Category: Jurisdictional
- Sub-Issues:
- Service out of jurisdiction
- Forum non conveniens
- Fraudulent Misrepresentation
- Outcome: The court considered the elements of fraudulent misrepresentation in the context of determining the appropriate forum.
- Category: Substantive
- Negligence
- Outcome: The court considered the elements of negligence in the context of determining the appropriate forum.
- Category: Substantive
8. Remedies Sought
- Monetary Damages
9. Cause of Actions
- Fraudulent Misrepresentation
- Negligent Misrepresentation
- Negligence
10. Practice Areas
- Litigation
- Commercial Litigation
11. Industries
- Financial Services
- Accounting
12. Cited Cases
| Case Name | Court | Affirmed | Citation | Jurisdiction | Significance |
|---|---|---|---|---|---|
| PT Gunung Madu Plantations v Muhammad Jimmy Goh Mashun | Singapore Court of Appeal | Yes | [2018] 4 SLR 1420 | Singapore | Cited for the principle that in personam jurisdiction is founded on proper service of originating process. |
| 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) | Singapore Court of Appeal | Yes | [2020] 1 SLR 226 | Singapore | Cited for the three requirements to obtain leave to serve originating processes out of jurisdiction and the requirement of full and frank disclosure. |
| Zoom Communications Ltd v Broadcast Solutions Pte Ltd | Singapore Court of Appeal | Yes | [2014] 4 SLR 500 | Singapore | Cited for the three requirements to obtain leave to serve originating processes out of jurisdiction and the requirement of full and frank disclosure. |
| MAN Diesel & Turbo SE and another v IM Skaugen SE and another | Singapore Court of Appeal | Yes | [2020] 1 SLR 327 | Singapore | Cited for the principle that the plaintiff bears the burden of showing that all three requirements for service out of jurisdiction are met. |
| The “Vasiliy Golovnin” | Singapore High Court | Yes | [2008] 4 SLR(R) 994 | Singapore | Cited for the principle that failure to make full and frank disclosure may be a ground to set aside an order granting leave for service out of jurisdiction. |
| Rappo, Tania v Accent Delight International Ltd and another and another appeal | Singapore Court of Appeal | Yes | [2017] 2 SLR 265 | Singapore | Cited for the principle that the court should weigh the connecting factors that have the most relevant and substantial associations with the dispute. |
| JIO Minerals FZC and others v Mineral Enterprises Ltd | Singapore Court of Appeal | Yes | [2011] 1 SLR 391 | Singapore | Cited for indicators for consideration at the first stage of the Spiliada test and the substance test for determining the place of the tort. |
| Rickshaw Investments Ltd and another v Nicolai Baron von Uexkull | Singapore High Court | Yes | [2007] 1 SLR(R) 377 | Singapore | Cited for the principle that the place of the tort is a significant factor in the forum conveniens analysis. |
| Vibrant Group Ltd v Tong Chi Ho and others | Singapore High Court (Registrar's Appeal) | Yes | [2022] SGHCR 4 | Singapore | Refers to the Assistant Registrar's decision being appealed. |
| Tay Long Kee Impex Pte Ltd v Tan Beng Huwah (trading as Sin Kwang Wah) | Singapore Court of Appeal | Yes | [2000] 1 SLR(R) 786 | Singapore | Cited for the principle that suppression of material facts in an ex parte application may justify setting aside the remedy granted. |
| Vibrant Group Ltd v Tong Chi Ho and others | Singapore High Court (Registrar's Appeal) | Yes | [2022] SGHCR 8 | Singapore | Refers to the Assistant Registrar's decision being appealed. |
| NTUC Foodfare Co-operative Ltd v SIA Engineering Co Ltd and another | Singapore High Court | Yes | [2018] 4 SLR 762 | Singapore | Cited for the principle that a duty of care would generally arise where the defendant has voluntarily assumed responsibility to the plaintiff and/or the plaintiff has reasonably relied on the defendant to take care to avoid such loss. |
| NTUC Foodfare Co-operative Ltd v SIA Engineering Co Ltd and another | Singapore Court of Appeal | Yes | [2018] 2 SLR 588 | Singapore | Cited for the principle that in cases of pure economic loss, there may be sufficient legal proximity between the parties even if the defendant does not voluntarily assume responsibility to the plaintiff and the latter does not specifically rely on the former not to cause it loss. |
| Base Metal Trading Ltd v Shamurin | England and Wales Court of Appeal | Yes | [2005] 1 WLR 1157 | England and Wales | Cited for guidance on applying the substance test in respect of the tort of negligence. |
| Distillers Co (Biochemicals) Ltd v Laura Anne Thompson | Privy Council | Yes | [1971] AC 458 | United Kingdom | Cited as authority for the substance test. |
| Dow Jones & Company Inc v Gutnick | High Court of Australia | Yes | [2002] 194 ALR 433 | Australia | Cited for the principle that the place where the alleged wrongful act was committed is to be given greater significance in a case involving the tort of negligence. |
| Voth v Manildra Flour Mills Pty Ltd | High Court of Australia | Yes | (1990) 97 ALR 124 | Australia | Cited for the reasoning adopted in respect of identifying the place of the tort, given the similarities in the fact patterns in Voth and the present case. |
| Siemens AG v Holdrich Investment Ltd | Singapore Court of Appeal | Yes | [2010] 3 SLR 1007 | Singapore | Cited for the principle that Singapore is forum non conveniens only if there is a more appropriate forum than Singapore. |
| PT Hutan Domas Raya v Yue Xiu Enterprises (Holdings) Ltd and another | Singapore High Court | Yes | [2001] 1 SLR(R) 104 | Singapore | Cited for the principle that the existence of parallel proceedings and the consequent undesirability of two actions raising common issues being tried in two jurisdictions is relevant in determining the proper forum. |
| Virsagi Management (S) Pte Ltd v Welltech Construction Pte Ltd and another appeal | Singapore Court of Appeal | Yes | [2013] 4 SLR 1097 | Singapore | Cited for the principle that the weight to be given to the existence of parallel proceedings depends on the circumstances. |
| Panatron Pte Ltd and another v Lee Cheow Lee and another | Singapore High Court | Yes | [2001] 2 SLR(R) 435 | Singapore | Cited for the requirements for fraudulent misrepresentation. |
| Yong Khong Yoong Mark and others v Ting Choon Meng and another | Singapore High Court | Yes | [2021] SGHC 246 | Singapore | Cited for the elements of negligent misrepresentation. |
| Spandeck Engineering (S) Pte Ltd v Defence Science & Technology Agency | Singapore Court of Appeal | Yes | [2007] 4 SLR(R) 100 | Singapore | Cited for the elements of negligence. |
| PlanAssure PAC (formerly known as Patrick Lee PAC) v Gaelic Inns Pte Ltd | Singapore High Court | Yes | [2007] 4 SLR(R) 513 | Singapore | Cited for the inquiry in dealing with the plaintiff’s claim against the third defendant for professional negligence in its role as auditor. |
| JSI Shipping (S) Pte Ltd v Teofoongwonglcloong (a firm) | Singapore High Court | Yes | [2007] 4 SLR(R) 460 | Singapore | Cited for the inquiry in dealing with the plaintiff’s claim against the third defendant for professional negligence in its role as auditor. |
13. Applicable Rules
| Rule Name |
|---|
| Rules of Court (Cap 322, R 5, 2014 Rev Ed) |
14. Applicable Statutes
| Statute Name | Jurisdiction |
|---|---|
| Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) | Singapore |
| Australia Corporations Act 2001 (Cth) | Australia |
15. Key Terms and Keywords
15.1 Key Terms
- Service out of jurisdiction
- Forum non conveniens
- Fraudulent misrepresentation
- Negligent misrepresentation
- Audit
- Financial reports
- Acquisition
- Scheme implementation deed
- Letter of undertaking
- Irregularities
15.2 Keywords
- Jurisdiction
- Forum non conveniens
- Fraudulent misrepresentation
- Negligence
- Singapore
- Australia
- Vibrant Group
- Findex
- Tong Chi Ho
- Peng Yuguo
- Blackgold Australia
16. Subjects
- Conflict of Laws
- Civil Procedure
- Torts
- Auditing
- Corporate Law
17. Areas of Law
- Conflict of Laws
- Jurisdiction
- Natural forum
- Civil Procedure
- Service
- Tort Law
- Negligence
- Fraudulent Misrepresentation