Recovery Vehicle 1 v Industries Chimiques Du Senegal: Service Out of Jurisdiction & Forum Conveniens

Recovery Vehicle 1 Pte Ltd (RV1) sued Industries Chimiques Du Senegal (ICS) in the High Court of Singapore to recover a debt assigned to it by Affert Resources Pte Ltd. The debt arose from unpaid invoices for sulphur supplied by Affert to ICS. ICS argued that Affert had waived the debt as part of an acquisition agreement. RV1 appealed against the decision of the registrar who had set aside its writ and service of it out of jurisdiction on ICS. The High Court allowed RV1's appeal, finding that Singapore was the appropriate forum and granting leave for service out of jurisdiction.

1. Case Overview

1.1 Court

High Court of Singapore

1.2 Outcome

Recovery Vehicle 1 Pte Ltd’s appeal is allowed.

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 and forum conveniens in a dispute over an unpaid debt assigned to Recovery Vehicle 1.

1.7 Decision Date

2. Parties and Outcomes

Party NameRoleTypeOutcomeOutcome TypeCounsels
Industries Chimiques du SenegalDefendant, RespondentCorporationAppeal dismissedLost
Recovery Vehicle 1 Pte LtdPlaintiff, AppellantCorporationAppeal allowedWon

3. Judges

Judge NameTitleDelivered Judgment
Audrey LimJudgeYes

4. Counsels

Counsel NameOrganization
NicholasTSMP Law Corporation
Lim Wei Loong IanTSMP Law Corporation
Ngo ShuxiangTSMP Law Corporation
Li WanchunTSMP Law Corporation
Chan Wai Kit Darren DominicCharacterist LLC
Ng Yi Ming DanielCharacterist LLC

4. Facts

  1. Affert supplied six batches of sulphur to ICS between May 2012 and June 2013.
  2. Affert issued six invoices totaling US$22,298,264.60 to ICS.
  3. ICS made partial payments of US$5,291,000, leaving an outstanding balance of US$17,007,263.60.
  4. Affert assigned the ICS debt to RV1 on 17 September 2018.
  5. ICS claimed Affert waived the debt as part of Indorama's acquisition of ICS shares.
  6. The Liquidators applied to set aside the Waiver as an undervalue transaction.
  7. ICS obtained a default judgment in Senegal, holding that Affert had waived the ICS Debt.

5. Formal Citations

  1. Recovery Vehicle 1 Pte Ltd v Industries Chimiques Du Senegal, Suit No 724 of 2018 (Registrar’s Appeal No 179 of 2019), [2019] SGHC 289

6. Timeline

DateEvent
Affert supplied first batch of sulphur to ICS.
Affert supplied sixth batch of sulphur to ICS.
Senfer and Indorama entered into a Share Transfer Agreement.
Senfer, Indorama, Archean Industries Pte Ltd and Indorama Corporation Pte Ltd entered into an Assumption for Debt for Change in Control of ICS.
Senfer, Indorama, Archean Industries Pte Ltd and Indorama Corporation Pte Ltd executed a side letter.
Affert sent an email to Indorama regarding ICS dues.
Affert sent a letter to ICS waiving claims.
Deed of Termination executed among ICS, Affert and Transfert.
Affert placed itself into creditor’s voluntary winding up.
FKT sent a letter of demand to ICS.
ICS's Senegalese lawyers responded to FKT's letter.
FKT received ICS’s 3 July 2017 Letter.
Affert was compulsorily wound up by Solvadis.
The Liquidators sent a letter of demand to ICS.
The Liquidators filed the Suit against ICS.
Effective date of Deed of Assignment of Receivable.
Affert and RV1 entered into a Deed of Assignment of Receivable.
RV1 filed an amended writ.
RV1 applied for leave to serve the Amended Writ out of jurisdiction on ICS.
Leave was obtained to serve the Amended Writ out of jurisdiction on ICS.
ICS's Senegalese lawyers sent a letter to RV1.
RV1 received a letter from ICS's Senegalese lawyers.
The Amended Writ was served on ICS.
ICS entered appearance.
ICS applied to the Dakar Commercial Court for a “Declaration to Extinguish Debt”.
ICS took out Summons No 383 of 2019 to set aside the Amended Writ.
The Dakar Commercial Court rendered a default judgment.
The finalised default judgment was released.
ICS’s lawyers disclosed the summons and the Dakar Default Judgment to RV1.
ICS’s lawyers disclosed the summons and the Dakar Default Judgment to Affert and the Liquidators.
The Liquidators applied by Originating Summons No 544 of 2019 to set aside the Waiver as an undervalue transaction.
OS 544 was served on ICS in Senegal.
The Liquidators appealed against the Dakar Default Judgment to the Dakar Court of Appeal.
The registrar granted a stay of OS 544 pending the determination of the Senagelese proceedings.
Judgment was delivered.

7. Legal Issues

  1. Service out of jurisdiction
    • Outcome: The court found that RV1 had not made full and frank disclosure but exercised its discretion to grant leave for service out of jurisdiction.
    • Category: Procedural
    • Sub-Issues:
      • Full and frank disclosure
      • Compliance with Order 11 Rule 1 of the Rules of Court
  2. Forum conveniens
    • Outcome: The court found that Singapore was the forum conveniens.
    • Category: Jurisdictional
    • Sub-Issues:
      • Proper forum for the trial
      • Connecting factors to Singapore and Senegal
      • Law governing the Waiver
  3. Breach of Contract
    • Outcome: The court found that RV1 had made out a good arguable case under O 11 r 1(e) of the ROC and that RV1’s claim in this regard has sufficient merit.
    • Category: Substantive
    • Sub-Issues:
      • Failure to pay for goods delivered
      • Place of payment

8. Remedies Sought

  1. Monetary Damages

9. Cause of Actions

  • Breach of Contract
  • Debt Recovery

10. Practice Areas

  • Service of Writ
  • Forum Conveniens

11. Industries

  • Chemicals
  • Debt Recovery

12. Cited Cases

Case NameCourtAffirmedCitationJurisdictionSignificance
Zoom Communications Ltd v Broadcast Solutions Pte LtdHigh CourtYes[2014] 4 SLR 500SingaporeCited for the principles that the plaintiff must show that the claim comes within the scope of O 11 r 1 of the ROC, the claim has a sufficient degree of merit, and Singapore is the forum conveniens.
Li Shengwu v Attorney-GeneralHigh CourtYes[2019] 1 SLR 1081SingaporeCited for the principle that there must be a good arguable case made out on one of the heads of claims under O 11 r 1.
Siemens AG v Holdrich Investment LtdHigh CourtYes[2010] 3 SLR 1007SingaporeCited for the principle that the plaintiff must prove that Singapore is the proper forum.
Manharlal Trikamdas Mody and another v Sumikin Bussan International (HK) LtdHigh CourtYes[2014] 3 SLR 1161SingaporeCited for the principle that the plaintiff has a duty to make full and frank disclosure in an ex parte application for leave to serve out of jurisdiction, and this includes facts that are unfavourable to his case.
Lee Hsien Loong v Review Publishing Co Ltd and another and another suitHigh CourtYes[2007] 2 SLR(R) 453SingaporeCited for the principle that the court’s power to set aside leave granted to serve out of jurisdiction is a discretionary one and it is entitled to examine all the circumstances of the case to determine whether that is to be exercised.
Pacific Recreation Pte Ltd v S Y Technology Inc and another appealCourt of AppealYes[2008] 2 SLR(R) 491SingaporeCited for the principle that the fact that the invoices were issued in English is neutral.
The EiderAdmiralty DivisionYes[1893] P 119England and WalesCited for the principle that the debtor must seek out his creditor at the creditor’s place of business and pay him there.
Bell & Co v Antwerp, London and Brazil LineQueen's Bench DivisionYes[1891] 1 QB 103England and WalesCited for the principle that the debtor must seek out his creditor at the creditor’s place of business and pay him there.
Komaia Deccof and Co SA and others v Perusahaan Pertambangan Minyik dan Gas Bumi NegaraHong Kong Court of AppealYes[1982] HKCA 253Hong KongCited for the principle that the debtor must seek out his creditor at the creditor’s place of business and pay him there.
Thompson v PalmerQueen's Bench DivisionYes[1893] 2 QB 80England and WalesCited for the principle that the implication was that the plaintiff would be paid at Newcastle where he generally carried on business and the plaintiff had a right to be paid there.
Drexel v DrexelChancery DivisionYes[1916] 1 Ch 251England and WalesCited for the principle that the allowance was payable to her wherever she might be living and that she had a right to be paid in England if she so desired.
Cuban Atlantic Sugar Sales Corporation v Compania De Vapores San Elefterio LimitadaCourt of AppealYes[1960] 1 QB 187England and WalesCited to show that the contract could be performed in the UK or elsewhere, that until the nomination of a port had been made, it could not be said that there was a contract to be performed within the UK, and that there was no breach within the UK because the time of nomination never arrived.
Tsu Soo Sin nee Oei Karen v Ng Yee HoonHigh CourtYes[2008] SGHC 30SingaporeCited for the principle that consideration must move from the promisee, there is no requirement for the consideration to move to the promisor but may move to a third party.
Wartsila Singapore Pte Ltd v Lau Yew Choong and another suitHigh CourtYes[2017] 5 SLR 268SingaporeCited for the principle that consideration may move to a third party.
Gay Choon Ing v Loh Sze Ti Terence Peter and another appealCourt of AppealYes[2009] 2 SLR(R) 322SingaporeCited for the principle that for a compromise to be enforceable, there must be: (a) an identifiable agreement between Affert and ICS that was complete and certain; (b) consideration; and (c) an intention to create legal relations.
Virsagi Management (S) Pte Ltd v Welltech Construction Pte Ltd and another appealCourt of AppealYes[2013] 4 SLR 1097SingaporeCited for the principle that where there appears to be related or parallel proceedings, the factors to be considered would include the degree to which the respective proceedings have advanced, the degree of overlap of issues and parties, and the risk of conflicting judgments.
MAN Diesel & Turbo SE and another v IM Skaugen SE and anotherCourt of AppealYes[2019] SGCA 80SingaporeCited for the principle that the possibility of a transfer of the Suit to the SICC may be a relevant factor to be considered in determining whether Singapore is the more appropriate forum.
Rappo, Tania v Accent Delight International Ltd and another and another appealCourt of AppealYes[2017] 2 SLR 265SingaporeCited for the principle that RV1 must articulate the particular quality or feature of the SICC that would make it more appropriate for this dispute to be heard by the SICC and prove that the dispute is of a nature that lends itself to the SICC’s capabilities.
JIO Minerals FZC and others v Mineral Enterprises LtdHigh CourtYes[2011] 1 SLR 391SingaporeCited for the principle that only connections relevant to the dispute in the Suit should be considered.
The Jian HeHigh CourtYes[1999] 3 SLR(R) 432SingaporeCited for the principle that to rely on the time-bar factor, the plaintiff must show that it did not act unreasonably in failing to commence proceedings within time in the alternative forum, such as by issuing a protective writ there.
Vinmar Overseas (Singapore) Pte Ltd v PTT International Trading Pte LtdHigh CourtYes[2018] 2 SLR 1271SingaporeCited for the principle that to rely on the time-bar factor, the plaintiff must show that it did not act unreasonably in failing to commence proceedings within time in the alternative forum, such as by issuing a protective writ there.
Rex International Holding Ltd and another v Gulf Hibiscus LtdCourt of AppealYes[2019] SGCA 56SingaporeCited for the principle that for case management concerns to be relevant at all, there must be the existence or a real risk of overlapping issues.
Chan Chin Cheung v Chan Fatt Cheung and othersHigh CourtYes[2010] 1 SLR 1192SingaporeCited for the principle that the court has the full discretion to stay any proceedings before it.
BNP Paribas Wealth Management v Jacob Agam and anotherHigh CourtYes[2017] 3 SLR 27SingaporeCited for the principle that the underlying concern is the need to ensure the efficient and fair resolution of the dispute.

13. Applicable Rules

Rule Name
No applicable rules

14. Applicable Statutes

Statute NameJurisdiction
Rules of CourtSingapore
Companies ActSingapore
Bankruptcy ActSingapore
Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed)Singapore

15. Key Terms and Keywords

15.1 Key Terms

  • Service out of jurisdiction
  • Forum conveniens
  • Waiver
  • ICS Debt
  • Sulphur Contracts
  • Deed of Assignment
  • Dakar Default Judgment
  • Liquidators
  • Undervalue transaction
  • Full and frank disclosure

15.2 Keywords

  • Service out of jurisdiction
  • Forum conveniens
  • Debt recovery
  • Singapore
  • Contract
  • Waiver

17. Areas of Law

Area NameRelevance Score
Service out of jurisdiction90
Natural forum90
Conflict of Laws85
Civil Practice75
Appeal30
Contract Law30
Corporate Law20
Asset Recovery20

16. Subjects

  • Civil Procedure
  • Conflict of Laws
  • Contract Law
  • Debt Recovery