Vibrant Group Ltd v Tong Chi Ho: Dispute over Jurisdiction in Negligence Claim
In Vibrant Group Ltd v Tong Chi Ho and others, the High Court of Singapore heard an application by Findex (Aust) Pty Ltd to set aside an order granting Vibrant Group Ltd leave to serve its Writ of Summons and Statement of Claim out of jurisdiction in Australia. The claim concerned negligence in auditing. The court, after considering connecting factors, determined that Australia was the more appropriate forum and set aside the Leave Order.
1. Case Overview
1.1 Court
General Division of the High Court1.2 Outcome
Leave Order set aside
1.3 Case Type
Civil
1.4 Judgment Type
Grounds of Decision
1.5 Jurisdiction
Singapore
1.6 Description
Singapore court sets aside order for service of process out of jurisdiction on Findex (Aust) Pty Ltd in a negligence claim, finding Australia to be the more appropriate forum.
1.7 Decision Date
2. Parties and Outcomes
| Party Name | Role | Type | Outcome | Outcome Type | Counsels |
|---|---|---|---|---|---|
| Tong Chi Ho | Defendant | Individual | Neutral | Neutral | |
| Peng Yuguo | Defendant | Individual | Neutral | Neutral | |
| Findex (Aust) Pty Ltd | Defendant | Corporation | Application granted | Won | |
| Vibrant Group Ltd | Plaintiff | Corporation | Leave Order set aside | Lost |
3. Judges
| Judge Name | Title | Delivered Judgment |
|---|---|---|
| Justin Yeo | Assistant Registrar | Yes |
4. Counsels
4. Facts
- Vibrant Group Ltd acquired Blackgold International Holdings Pty Ltd.
- Blackgold engaged Findex (Aust) Pty Ltd to audit its 2016 financial report.
- The audit was conducted in accordance with Australian Auditing Standards.
- Vibrant Group discovered falsifications in Blackgold's financial records after the acquisition.
- Vibrant Group commenced a suit against Tong Chi Ho and Peng Yuguo for fraudulent and negligent misrepresentation.
- Findex was added as a defendant, alleged to have been negligent in its audit.
- The contract between Blackgold and Findex contained an exclusive jurisdiction clause in favour of Australian courts.
5. Formal Citations
- Vibrant Group Ltd v Tong Chi Ho and others, Suit No 1046 of 2020 (Summons No 1361 of 2022), [2022] SGHCR 8
6. Timeline
| Date | Event |
|---|---|
| Plaintiff commenced suit against the 1st and 2nd Defendants | |
| The 3rd Defendant was added as a defendant | |
| Writ of Summons and Statement of Claim served on the 3rd Defendant in Australia | |
| Decision rendered in Vibrant Group | |
| The 3rd Defendant brought application to set aside the Leave Order | |
| Appeal filed against decision in Vibrant Group | |
| Application heard | |
| Judgment issued |
7. Legal Issues
- Jurisdiction
- Outcome: The court determined that Singapore was not the proper forum for the trial of the action against the 3rd Defendant.
- Category: Procedural
- Related Cases:
- [1987] AC 460
- [2017] 2 SLR 265
- [2014] 4 SLR 500
- Negligence
- Outcome: The court did not rule on the merits of the negligence claim, as it determined that Singapore was not the proper forum.
- Category: Substantive
- Full and Frank Disclosure
- Outcome: The court found that there was no material omission that would warrant the setting aside of the Leave Order.
- Category: Procedural
- Related Cases:
- [2008] 4 SLR(R) 994
8. Remedies Sought
- Monetary Damages
9. Cause of Actions
- Negligence
10. Practice Areas
- Commercial Litigation
11. Industries
- Accounting
- Financial Services
12. Cited Cases
| Case Name | Court | Affirmed | Citation | Jurisdiction | Significance |
|---|---|---|---|---|---|
| Spiliada Maritime Corporation v Cansulex Ltd | House of Lords | Yes | [1987] AC 460 | England and Wales | Cited for the two-stage test applied when considering a stay on the grounds of forum non conveniens. |
| Rappo, Tania v Accent Delight International Ltd | Court of Appeal | Yes | [2017] 2 SLR 265 | Singapore | Cited for the analysis of connecting factors in determining the proper forum. |
| Zoom Communications Ltd v Broadcast Solutions Pte Ltd | High Court | Yes | [2014] 4 SLR 500 | Singapore | Cited for the burden of proof on the plaintiff to prove that Singapore is the proper forum. |
| Rickshaw Investments Ltd v Nicolai Baron von Uexkull | High Court | Yes | [2007] 1 SLR(R) 377 | Singapore | Cited for the significance of the convenience and compellability of witnesses. |
| Lakshmi Anil Salgaocar v Jhaveri Darsan Jitendra | Court of Appeal | Yes | [2019] 2 SLR 372 | Singapore | Cited for the importance of third-party witnesses over whom the party to the dispute has no control. |
| Sinopec International (Singapore) Pte Ltd v Bank of Communications Co Ltd | High Court | Yes | [2021] SGHC 245 | Singapore | Cited for the physical location of a witness has become less significant given the proliferation of evidence taking by video-link. |
| Bunge SA and another v Shrikant Bhasi and other appeals | Court of Appeal | Yes | [2020] 2 SLR 1223 | Singapore | Cited for the physical location of a witness has become less significant given the proliferation of evidence taking by video-link. |
| JIO Minerals FZC v Mineral Enterprises Ltd | High Court | Yes | [2011] 1 SLR 391 | Singapore | Cited for the compellability of a foreign witness remains an important consideration. |
| MAN Diesel & Turbo SE v IM Skaugen SE | Court of Appeal | Yes | [2020] 1 SLR 327 | Singapore | Cited for the compellability of a foreign witness remains an important consideration. |
| Ivanishvili Bidzina v Credit Suisse Trust Ltd | Court of Appeal | Yes | [2020] 2 SLR 638 | Singapore | Cited for the potential prejudice to the 3rd Defendant in running its defence is likely to be more significant for the purposes of the analysis. |
| UBS AG v Telesto Investments | High Court | Yes | [2011] 4 SLR 503 | Singapore | Cited for taking evidence by deposition through mutual judicial assistance may not be suitable where the witness in question is a critical witness in relation to whom an assessment of credibility may be important in assisting the trial court’s determination of the truth of the matter. |
| TMT Co Ltd v The Royal Bank of Scotland plc (trading as RBS Greenwich Futures) | Court of Appeal | Yes | [2018] 3 SLR 70 | Singapore | Cited for the witnesses were in England. |
| Good Earth Agricultural Co Ltd v Novus International Pte Ltd | High Court | Yes | [2008] 2 SLR(R) 711 | Singapore | Cited for the witnesses were in Hong Kong. |
| Nippon Catalyst Pte Ltd v PT Trans-Pacific Petrochemical Indotama and another | High Court | Yes | [2018] SGHC 126 | Singapore | Cited for the “double actionability rule” is conceptually distinct from the question of whether Singapore is the proper forum and is not intended to assist the court in determining the proper forum. |
| The “Vasiliy Golovnin” | Court of Appeal | Yes | [2008] 4 SLR(R) 994 | Singapore | Cited for the relevant legal principles for an ex parte application. |
| Vibrant Group Ltd v Tong Chi Ho and others | High Court | Yes | [2022] SGHCR 4 | Singapore | The court dismissed the application by Peng Yuguo to set aside orders granting Vibrant Group Limited leave to serve its Writ of Summons and Statement of Claim out of jurisdiction on him in the People’s Republic of China. |
| Australian Securities and Investments Commission (ASIC) v Rich | Supreme Court of New South Wales | Yes | [2004] NSWSC 467 | Australia | Cited by the Plaintiff to support the argument that Tin and the officers from Ernst & Young cannot be compelled to give evidence in Australian proceedings. |
| Re Samsung C&T Corporation | Federal Court of Australia | Yes | [2017] FCA 1169 | Australia | Cited by the Plaintiff to support the applicability and availability of the Hague Evidence Convention between Singapore and Australian parties. |
13. Applicable Rules
| Rule Name |
|---|
| O 12 r 7(1)(c) of the revoked Rules of Court |
| O 11 r 1 of the Rules of Court |
| O 15 r 6 of the Rules of Court |
| O 38 r 18(2) of the Rules of Court |
14. Applicable Statutes
| Statute Name | Jurisdiction |
|---|---|
| Australian Corporations Act 2001 (Cth) | Australia |
| Choice of Court Agreements Act 2016 (Cap 39A, 2020 Rev Ed) | Singapore |
15. Key Terms and Keywords
15.1 Key Terms
- Leave Order
- Proper Forum
- Forum non conveniens
- Spiliada test
- Connecting factors
- Witness compellability
- Hague Evidence Convention
- Double actionability rule
- Exclusive jurisdiction clause
- Audit Report
- Australian Auditing Standards
15.2 Keywords
- jurisdiction
- conflict of laws
- negligence
- audit
- Singapore
- Australia
- forum non conveniens
17. Areas of Law
| Area Name | Relevance Score |
|---|---|
| Jurisdiction | 75 |
| Civil Procedure | 60 |
| Negligence | 50 |
| Misrepresentation | 50 |
| Auditing Standards | 40 |
| Accounting Services | 30 |
| Financial Advisory | 30 |
| Contract Law | 30 |
16. Subjects
- Conflict of Laws
- Civil Procedure
- Jurisdiction
- Negligence
- Auditing