Kiri Industries v Senda International Capital: Examination Order Dispute
In a dispute between Kiri Industries Ltd and Senda International Capital Ltd, the Singapore International Commercial Court, presided over by Roger Giles IJ, addressed the validity of an examination order against Senda's director, Ms. Fan Jing, and former director, Mr. Ruan Weixiang, both Chinese nationals residing out of jurisdiction. Kiri sought the order to examine Senda's means to satisfy costs orders. The court upheld the examination order but set aside the order granting leave to serve Ms. Fan out of jurisdiction, and consequently, the substituted service order. The court also set aside the order granting leave to serve Mr. Ruan out of jurisdiction, subject to any application made within 10 days by the parties or either of them to vary or discharge the order.
1. Case Overview
1.1 Court
Singapore International Commercial Court1.2 Outcome
The service out order is set aside so far as it concerns Ms Fan. It is also set aside so far as it concerns Mr Ruan, but subject to any application made within 10 days by the parties or either of them to vary or discharge the order; any such application may be made by letter to the Registry. It is not set aside so far as it concerns Senda. The substituted service order is set aside.
1.3 Case Type
Civil
1.4 Judgment Type
Judgment
1.5 Jurisdiction
Singapore
1.6 Description
Singapore court addresses the validity of an examination order against a foreign officer of a judgment debtor company. The court sets aside the service order.
1.7 Decision Date
2. Parties and Outcomes
| Party Name | Role | Type | Outcome | Outcome Type | Counsels |
|---|---|---|---|---|---|
| Kiri Industries Ltd | Plaintiff | Corporation | Partial | Partial | Rajan Sanjiv Kumar, Loong Tse Chuan, Wong Pei Ting, Prabu Devaraj s/o Raman |
| Senda International Capital Ltd | Defendant | Corporation | Partial | Partial | Toh Kian Sing, Cheng Wai Yuen Mark, Soh Yu Xian Priscilla, Lim Wee Teck Darren, Mao Zhichao @ Mao Zhihong |
| DyStar Global Holdings (Singapore) Pte Ltd | Defendant | Corporation | Neutral | Neutral | |
| Fan Jing | Other | Individual | Lost, Won | Lost, Won | Toh Kian Sing, Cheng Wai Yuen Mark, Soh Yu Xian Priscilla, Lim Wee Teck Darren, Mao Zhichao @ Mao Zhihong |
3. Judges
| Judge Name | Title | Delivered Judgment |
|---|---|---|
| Roger Giles | International Judge | Yes |
4. Counsels
| Counsel Name | Organization |
|---|---|
| Rajan Sanjiv Kumar | Allen & Gledhill LLP |
| Loong Tse Chuan | Allen & Gledhill LLP |
| Wong Pei Ting | Allen & Gledhill LLP |
| Prabu Devaraj s/o Raman | Allen & Gledhill LLP |
| Toh Kian Sing | Rajah & Tann Singapore LLP |
| Cheng Wai Yuen Mark | Rajah & Tann Singapore LLP |
| Soh Yu Xian Priscilla | Rajah & Tann Singapore LLP |
| Lim Wee Teck Darren | Rajah & Tann Singapore LLP |
| Mao Zhichao @ Mao Zhihong | Rajah & Tann Singapore LLP |
4. Facts
- Kiri and Senda were joint venturers in DyStar.
- Kiri held 37.57% of the shareholding in DyStar; Senda held 62.43%.
- In 2017, Kiri brought proceedings against Senda for oppression.
- A buy-out order was made that Senda purchase Kiri’s shareholding in DyStar.
- Senda is liable to Kiri in the amount of S$6,669,612.55 (excluding interest).
- Kiri obtained an order that Senda be examined by its director, Ms Fan, and its former director, Mr Ruan.
- Ms Fan and Mr Ruan are both Chinese nationals resident in China.
5. Formal Citations
- Kiri Industries Ltd v Senda International Capital Ltd and another(Fan Jing, non-party), Suit No 4 of 2017 (Summons No 59 of 2023), [2024] SGHC(I) 7
6. Timeline
| Date | Event |
|---|---|
| Kiri brought proceedings against Senda for oppression. | |
| A buy-out order was made that Senda purchase Kiri’s shareholding in DyStar based on a valuation to be assessed. | |
| Senda declined to pay the costs amount. | |
| Final valuation judgment was issued. | |
| Mr. Ruan resigned as Senda’s sole director; Ms. Fan became Senda’s sole director. | |
| Kiri filed two Writs of Seizure and Sale. | |
| Kiri obtained an order that Senda be examined by its director, Ms Fan, and its former director, Mr Ruan. | |
| Kiri applied for alternative relief in respect of the buy-out order, and in default a winding-up of DyStar. | |
| Kiri obtained an order giving leave to serve the EJD order on Senda and Ms Fan in Hong Kong and on Mr Ruan in China. | |
| Kiri obtained an order for substituted service of the EJD order on Ms Fan. | |
| SIC/SUM 59/2023 application by Senda and Ms Fan was filed. | |
| SUM 24 was heard. | |
| Judgment reserved. | |
| Judgment issued. | |
| Examination hearing is presently fixed. |
7. Legal Issues
- Jurisdiction over Foreign Officers
- Outcome: The court held that it had the power to make an EJD order requiring the attendance of Ms Fan to be examined and the production by them of Senda’s books and documents, notwithstanding that they were foreign nationals and out of the jurisdiction. The court set aside the service out order so far as it concerns Ms Fan.
- Category: Jurisdictional
- Sub-Issues:
- Extraterritorial jurisdiction
- Service out of jurisdiction
- Infringement of sovereignty
- Service of Process
- Outcome: The court held that the substituted service order should be set aside as contrary to Chinese law.
- Category: Procedural
- Sub-Issues:
- Substituted service
- Personal service
- Treaty obligations
- Full and Frank Disclosure
- Outcome: The court held that there was material non-disclosure at the time of obtaining the service out order.
- Category: Procedural
- Sub-Issues:
- Material non-disclosure
- Ex parte applications
- Abuse of Process
- Outcome: The court declined to find a purpose of delay and frustration.
- Category: Procedural
- Sub-Issues:
- Collateral purpose
- Delay and frustration
8. Remedies Sought
- Examination of Judgment Debtor
- Setting Aside Orders
9. Cause of Actions
- Oppression
- Enforcement of Costs Orders
10. Practice Areas
- Commercial Litigation
- Civil Litigation
11. Industries
- No industries specified
12. Cited Cases
| Case Name | Court | Affirmed | Citation | Jurisdiction | Significance |
|---|---|---|---|---|---|
| DyStar Global Holdings (Singapore) Pte Ltd v Kiri Industries Ltd and others and another suit | Singapore High Court | Yes | [2018] 5 SLR 1 | Singapore | Cited for the initial buy-out order made against Senda. |
| Kiri Industries Ltd v Senda International Capital Ltd and another | Singapore International Commercial Court | Yes | [2023] SGHC(I) 4 | Singapore | Cited for the final valuation judgment issued on 3 March 2023. |
| R.D. Harbottle (Mercantile) Ltd v National Westminster Bank Ltd | Queen's Bench | Yes | [1978] QB 146 | England and Wales | Cited in relation to the discharge of an injunction. |
| Tay Long Kee Impex Pte Ltd v Tan Beng Huwah (trading as Sin Kwang Wah) | Court of Appeal | Yes | [2000] 1 SLR(R) 786 | Singapore | Cited for the principle that an application to set aside an ex parte order is not an appeal. |
| CIMC Raffles Offshore (Singapore) PTS Ltd v Schahin Holding SA | High Court of Justice | Yes | [2014] EWHC 1742 (Comm) | England and Wales | Cited regarding the court's discretion to postpone an officer's attendance for examination. |
| Burgundy Global Exploration Corp v Transocean Offshore International Ventures Ltd and another appeal | Court of Appeal | Yes | [2014] 3 SLR 381 | Singapore | Extensively cited regarding the court's jurisdiction to make an EJD order against a foreign officer. |
| Masri v Consolidated Contractors International (UK) Ltd (No 4) | House of Lords | Yes | [2010] 1 AC 90 | United Kingdom | Discussed in relation to whether a court can make an EJD order against an officer of a corporate judgment debtor who is ordinarily resident abroad. |
| PT Bakrie Investindo v Global Distressed Alpha Fund 1 Ltd Partnership | Singapore High Court | Yes | [2013] 4 SLR 1116 | Singapore | Cited regarding the purpose of an EJD order. |
| Changfeng Shipping Holdings Ltd v Sinoriches Enterprises Co Ltd | Hong Kong Court of First Instance | Yes | [2021] 2 HKC 472 | Hong Kong | Cited for adopting the approach of the Singapore Court of Appeal and applying a slightly modified sufficiently close connection test. |
| Mackinnon v Donaldson, Lufkin and Jenrette Securities Corp | Chancery Division | Yes | [1986] Ch 482 | England and Wales | Cited regarding the principle that a state should refrain from demanding obedience to its sovereign authority by foreigners in respect of their conduct outside the jurisdiction. |
| Nix v Emerdata Ltd | High Court of Justice | Yes | [2022] EWHC 718 (Comm) | England and Wales | Cited regarding the letter of request regime as the proper method of obtaining evidence within a foreign jurisdiction. |
| Gorbachev v Guriev | Court of Appeal | Yes | [2023] KB 1 | England and Wales | Cited regarding the letter of request procedure as the proper, courteous, respectful method of obtaining evidence within a foreign jurisdiction from a foreign party. |
| Bahtera Offshore (M) Sdn Bhd v Sim Kok Beng and another | High Court | Yes | [2009] 4 SLR(R) 365 | Singapore | Cited regarding the principles governing disclosure in an ex parte application. |
| Humpuss Sea Transport Pte Ltd (in compulsory liquidation) v PT Humpuss Intermoda Transportasi TBK and another | High Court | Yes | [2015] 4 SLR 625 | Singapore | Cited regarding the methods of service available irrespective of where the defendant resided. |
| Maughan v Wilmot (No 2) | Unknown | Yes | [2016] 1 WLR 2200 | Unknown | Cited regarding where a document is received by a person. |
| The Norglimpt | Queen's Bench | Yes | [1988] QB 183 | England and Wales | Cited regarding the failure to file a supplementary affidavit to make voluntarily disclosure. |
13. Applicable Rules
| Rule Name |
|---|
| Rules of Court (2014 Rev Ed) O 11 r 2 |
| Rules of Court (2014 Rev Ed) O 11 r 3 |
| Rules of Court (2014 Rev Ed) O 11 r 6 |
| Rules of Court (2014 Rev Ed) O 11 r 8 |
| Rules of Court (2014 Rev Ed) O 32 r 6 |
| Rules of Court (2014 Rev Ed) O 48 r 1(1) |
| Rules of Court (2014 Rev Ed) O 48 r 1(2) |
| Rules of Court (2014 Rev Ed) O 62 r 5(1) |
14. Applicable Statutes
| Statute Name | Jurisdiction |
|---|---|
| Companies Act (Cap 50, 2006 Rev Ed) s 216 | Singapore |
15. Key Terms and Keywords
15.1 Key Terms
- Examination of Judgment Debtor
- Service Out of Jurisdiction
- Substituted Service
- Full and Frank Disclosure
- Treaty on Judicial Assistance
- Close Connection Test
- Abuse of Process
- Extraterritorial Jurisdiction
15.2 Keywords
- Examination Order
- Service Out of Jurisdiction
- Foreign Officer
- Chinese Law
- Singapore International Commercial Court
16. Subjects
- Civil Procedure
- Jurisdiction
- Service of Process
- International Law
- Conflict of Laws
17. Areas of Law
- Civil Procedure
- International Law
- Conflict of Laws