Tan v Lim - [2024] WASC 323

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   TAN -v- LIM & ORS [2024] WASC 323
CORAM:   MASTER RUSSELL
HEARD:   4 SEPTEMBER 2024
DELIVERED          :   4 SEPTEMBER 2024
PUBLISHED           :   10 SEPTEMBER 2024
FILE NO/S:   CIV 1626 of 2024
BETWEEN:   LEE LEE TAN
Plaintiff
AND
TIONG SOON LIM
First Defendant
CRISTO DEVELOPMENT PTY LTD (ACN 641 624 231)
Second Defendant
BERESHEET PTY LTD (ACN 643 668 008)
Third Defendant
EDPKB AUSTRALIA PTY LTD (ACN 167 395 486)
Fourth Defendant
LAMBDA (A) PTY LTD (ACN 167 402 691)
Fifth Defendant
CARINE & CARMEN PTY LTD (ACN 600 757 186)
Sixth Defendant

Catchwords:

Practice and procedure - Application to stay proceedings on grounds of forum non conveniens - Whether Supreme Court of Western Australia a clearly inappropriate forum - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA) O 12 r 6

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff	:	Mr J Ling
First Defendant	:	Mr C Ko
Second Defendant	:	Mr C Ko
Third Defendant	:	Mr C Ko
Fourth Defendant	:	Mr C Ko
Fifth Defendant	:	Mr C Ko
Sixth Defendant	:	Mr C Ko

Solicitors:

Plaintiff	:	Spyker Legal
First Defendant	:	Trinix Lawyers
Second Defendant	:	Trinix Lawyers
Third Defendant	:	Trinix Lawyers
Fourth Defendant	:	Trinix Lawyers
Fifth Defendant	:	Trinix Lawyers
Sixth Defendant	:	Trinix Lawyers

Case(s) referred to in decision(s):

Henry v Henry [1996] HCA 51; (1996) 185 CLR 571
Mallon & Co Lawyers Pty Ltd v GAM [2012] WASC 376
Oceanic Sun Line Special Shipping Co Inc v Fay [1988] HCA 32; (1988) 165 CLR 197
Purvis v Sakari Resources Ltd [2015] WASC 63
Regie Nationale des Usines Renault SA v Zhang [2002] HCA 10; (2002) 210 CLR 491
Singh v Singh [2009] WASCA 53
Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55; (1990) 171 CLR 538

MASTER RUSSELL:

(This judgment was delivered extemporaneously and has been edited from the transcript to correct matters of grammar, infelicity of expression and to add headings, full citations, references and footnotes.)

Introduction

The plaintiff, Lee Lee Tan, is a citizen of Singapore and a permanent resident of Australia. She commenced these proceedings against the defendants by writ of summons indorsed with a statement of claim on 27 May 2024.
The first defendant, Tiong Soon Lim, is a citizen and resident of Singapore. He is a director of three of the other five defendants:
(a)Cristo Development Pty Ltd, the second defendant;
(b)EDPKB Australia Pty Ltd, the fourth defendant; and
(c)LAMBDA (A) Pty Ltd, the fifth defendant.
The remaining defendants are:
(a)Beresheet Pty Ltd, the third defendant; and
(b)Carine & Carmen Pty Ltd, the sixth defendant.
Each of the second to sixth defendants are companies incorporated under the Corporations Act 2001 (Cth) and registered in Western Australia except for the third defendant, Beresheet Pty Ltd, which is registered in Victoria.
On 14 June 2024, a conditional appearance was entered on behalf of each of the defendants, pursuant to O 12 r 6 of the Rules of the Supreme Court 1971 (WA) (RSC) stating that:
The defendants contest the forum of the Supreme Court of Western Australia in this action on the grounds of forum non conveniens and enter a conditional appearance on the basis the Supreme Court of Western Australia is not the correct forum to deal with this claim.
By chamber summons filed on 28 June 2024, within 14 days of entering the conditional appearance, the defendants applied for an order that the proceedings be stayed on the grounds of forum non conveniens.
In essence, the defendants submit that the Supreme Court of Western Australia is not the correct forum for the claim and that the appropriate forum is Singapore. They do not identify a particular court as the appropriate forum in Singapore for determination of the claim the subject of the proceedings.
In support of the application, the defendants rely upon:
(a)affidavits affirmed by the first defendant, Tiong Soon Lim, on 27 June 2024 and 5 August 2024; and
(b)an outline of submissions filed on 14 August 2024.
The plaintiff opposes the defendants' application. She relies upon her affidavit sworn on 4 July 2024 and an outline of submissions filed on 28 August 2024. I upheld the defendants' objection to paragraph 10 of the plaintiff's affidavit, which was struck out and not read.

The plaintiff's claim

The plaintiff claims that:
1.At the material time, she held 100% of the shares in the fourth, fifth and sixth defendants with the total number of shares issued in each of those companies being 100.
2.On 13 May 2020, she agreed to sell 19 shares in each of the fourth, fifth and sixth defendants to the first defendant at a price of AUD $1 per share, a total of AUD $57.00.
3.On 14 May 2020, share transfer forms for the 19 shares in each of the fourth, fifth and sixth defendants were lodged and the shares were transferred to the first defendant.
4.On 12 June 2020, a Share Sale and Purchase Agreement was entered into between the plaintiff and the second defendant, Cristo Development Pty Ltd, for the sale of the remaining 81 shares in the fourth, fifth and sixth defendants to the second defendant at the following price:
(a)AUD $67,392 for the fourth defendant, EDPKB Australia Pty Ltd;
(b)AUD $9,720 for the fifth defendant, LAMBDA (A) Pty Ltd; and
(c)AUD $198,450 for the sixth defendant, Carine & Carmen Pty Ltd,
a total of AUD $275,562.
5.On 16 September 2020 and 14 October 2020, the share transfer forms for transfer of the 81 shares in each of the fourth, fifth and sixth defendants were lodged and the shares were transferred to the second defendant.
6.The plaintiff did not receive payment of the amounts of AUD $57 from the first defendant or AUD $275,562 from the second defendant.
7.On 14 October 2020, the first and second defendants dealt with the shares in the sixth defendant by transferring 51 shares to the third defendant, Beresheet Pty Ltd.
8.On 16 and 20 February 2023, the plaintiff, through her solicitors, issued a notice of termination of the Share Sale and Purchase Agreement to the first and second defendants on grounds of a total failure of consideration.
9.On 23 February 2023, the first defendant's shareholding in the fourth defendant was increased from 19 shares to 499,919 shares and, on 27 February 2023, the first defendant's shareholding in the fifth defendant increased from 19 shares to 99,919 shares.
10.On 10 August 2023, the plaintiff, through her solicitors, issued a letter of objection to the first defendant's increased shareholdings and the transfer of 51 shares in the sixth defendant to the third defendant.
The plaintiff claims the following relief:
1.Declarations that each of the following are invalid and void ab initio:
(a)the share transfer forms purporting to transfer:
(i)19 shares in the fourth, fifth and sixth defendants from the plaintiff to the first defendant; and
(ii)81 shares in the fourth, fifth and sixth defendants from the plaintiff to the second defendant;
(b)the increase of the first defendant's shareholdings in the fourth and fifth defendants; and
(c)the transfer of the shares in the sixth defendant to the third defendant.
2.A declaration that the plaintiff is the beneficial owner of all shares in the fourth, fifth and sixth defendants.
3.An order that the fourth, fifth and sixth defendants amend their share registers to record that the plaintiff is, in each case, the owner of all issued shares.
4.An order that any existing share certificates inconsistent with the declarations and orders made be returned to the fourth, fifth and sixth defendants, or destroyed.
5.An order pursuant to s 1322(4)(b) of the Corporations Act 2001 (Cth) that the Australian Securities and Investments Commission (ASIC)'s registers be rectified by deleting the entries made pursuant to the documents lodged, as pleaded.

Applicable legal principles

The principles that apply to an application to stay proceedings on the grounds of forum non conveniens were not in dispute. Nor was it disputed that the court has inherent power to order such a stay.
The relevant principles were considered by the High Court in Oceanic Sun Line Special Shipping Co Inc v Fay[1] and in Voth v Manildra Flour Mills Pty Ltd.[2]
[1] Oceanic Sun Line Special Shipping Co Inc v Fay [1988] HCA 32; (1988) 165 CLR 197 (Oceanic Sun).
[2] Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55; (1990) 171 CLR 538 (Voth).
The power to order a stay is discretionary and is to be exercised by reference to the facts and circumstances of each case. As stated by Deane J in Oceanic Sun, having reviewed the earlier authorities:[3]
… it is possible to identify in summary form what I see as the modern content of the traditional principles governing the power of a court in this country to order that proceedings which have been regularly instituted within jurisdiction should be dismissed or stayed on inappropriate forum grounds. That power is a discretionary one in the sense that its exercise involves a subjective balancing process in which the relevant factors will vary and in which both the question of the comparative weight to be given to particular factors in the circumstances of a particular case and the decision whether the power should be exercised are matters for individual judgment and, to a significant extent, matters of impression. The power should only be exercised in a clear case and the onus lies upon the defendant to satisfy the local court in which the particular proceedings have been instituted that it is so inappropriate a forum for their determination that their continuation would be oppressive and vexatious to him. Ordinarily, a defendant will be unable to discharge that onus unless he can identify some appropriate foreign tribunal to whose jurisdiction the defendant is amenable and which would entertain the particular proceedings at the suit of the plaintiff. Otherwise, that onus will ordinarily be discharged by a defendant who applies promptly for a stay or dismissal if he persuades the local court that, having regard to the circumstances of the particular case and the availability of the foreign tribunal, it is a clearly inappropriate forum for the determination of the dispute between the parties. The reason why that is so is that, once it is accepted that the adjectives "oppressive" and "vexatious" are not to be narrowly or rigidly construed and are to be applied in relation to the effect of the continuation of proceedings in a tribunal which is a clearly inappropriate forum would, in the absence of special circumstances being established by the plaintiff … be oppressive or vexatious to such a defendant if there is some available and appropriate tribunal in another country. …
[3] Oceanic Sun, 247 - 248.
In Oceanic Sun,[4] Deane J stated that "oppressive" should be understood, in this context, as meaning 'seriously and unfairly burdensome, prejudicial or damaging' while "vexatious" should be understood as meaning 'productive of serious and unjustified trouble and harassment'.
[4] Oceanic Sun, 247.
In Voth, after considering the differing views expressed in Oceanic Sun and other authorities, the High Court concluded that the principles to be applied in applications for a stay on inappropriate forum grounds are those stated by Deane J in Oceanic Sun:[5]
A defendant would ordinarily be entitled to an order for a stay or the dismissal of an action if he persuades the local court that, having regard to the circumstances of the particular case and the availability of a foreign tribunal to whose jurisdiction the defendant is amenable and which would entertain the matter, it is a clearly inappropriate forum for the determination of the dispute. The question whether the local court is a clearly inappropriate forum requires attention to be directed to the inappropriateness of the local court and not the appropriateness or comparative appropriateness of the suggested foreign forum.
[5] Voth, applying Oceanic Sun, 247 ‑ 248 (Mason CJ, Brennan, Deane, Dawson and Gaudron JJ).
I also refer to the observations of Master Sanderson in Mallon & Co Lawyers Pty Ltd v GAM[6] and in Purvis v Sakari Resources Ltd.[7] In Purvis, Master Sanderson, referring to Voth; Henry v Henry;[8] RegieNationale des Usines Renault SA v Zhang[9] and, in this jurisdiction, Singh v Singh,[10] summarised the relevant principles as follows:
First, a court will consider a range of connecting factors in deciding whether a court is a clearly inappropriate forum including the domicile and residency of the parties, the subject matter of the suit, the place where the transactions occurred, the location of the evidence and the presence or absence of an alternative forum. Second, the court will consider as a material factor whether the proper law is that of the forum. Third, a court will not weigh or balance all of the factors but rather assess whether there are sufficient factors indicating that the forum is clearly inappropriate. Fourth, the onus lies on the defendant to satisfy the court that the court is a clearly inappropriate forum. Finally, the stay of proceedings on the grounds of forum non conveniens is only made in a clear case.
[6] Mallon & Co Lawyers Pty Ltd v GAM [2012] WASC 376 [17].
[7] Purvis v Sakari Resources Ltd [2015] WASC 63 (Purvis) [19] - [20].
[8] Henry v Henry [1996] HCA 51; (1996) 185 CLR 571.
[9] RegieNationale des Usines Renault SA v Zhang [2002] HCA 10; (2002) 210 CLR 491.
[10] Singh v Singh [2009] WASCA 53 [78] - [79].

Defendants' submissions in support of the application

The defendants acknowledge that the defendants are companies incorporated in Australia and submit that does not have any bearing on the claim and determining the issues in dispute. They say the dispute revolves around the alleged non‑payment of monies relating to share transactions that were negotiated, agreed upon and executed in Singapore.
Mr Lim deposes that he provided financial assistance and investment loans to the plaintiff and her husband, Lian Foo Kuan David (Mr Lian) in 2019 through Mr Lim's 'sole proprietorship' registered in Singapore, LTS Capital. It is unclear on the evidence adduced but it appears LTS Capital is an entity registered in Singapore and owned solely by Mr Lim.
It was submitted on behalf of the defendants, by reference to the matters deposed to in Mr Lim's affidavit, that he has a counterclaim against the plaintiff in relation to the financial assistance and investment loans that he made to her and Mr Lian.
Mr Lim deposes that it was agreed that Mr Lian's interests in the fourth, fifth and sixth defendants that were being held by the plaintiff, would be divested to Mr Lim and the second defendant. Mr Lim deposes that he was asked (though does not say by whom) to take over the interests of:
(a)the fourth defendant, which owned the development project of 7 Lena Street, Beckenham in Western Australia;
(b)the fifth defendant, which owned the development project of 7 Morgan Street, Cannington in Western Australia; and
(c)the sixth defendant, which owned the development project of 72 Fryer Road, Harvey in Western Australia.
These appear to relate to property development projects in Western Australia. Mr Lim says he has claims in relation to his dealings with Mr Lian. He refers to the total amount of financial assistance and investment loans provided to Mr Lian and the plaintiff being about SGD $1 million (defined as a Loan Amount). He deposes that the Loan Amount includes payment for the shares in the fourth, fifth and sixth defendants, which was used for the development projects undertaken by those companies. However, there is little further evidence in relation to those matters or the developments referred to.
Mr Lian was declared bankrupt on 29 April 2021. He is not a party to these proceedings.
The defendants also rely upon what are described as two letters of undertaking signed by Mr Lian on 26 December 2019 and by the plaintiff and Mr Lian on 19 February 2020, said to be relevant to the claims in the proceedings and which state 'the letter shall be governed by and construed in accordance with the law of Singapore and Australia whichever favors (sic) LTS Capital'.
Mr Lim deposes in his second affidavit that he is the sole proprietor of LTS Capital and, on behalf of LTS Capital, has designated Singapore as the favoured forum for the proceedings.
It was submitted on behalf of the defendants that the letters to LTS Capital, and other evidence of Mr Lim, demonstrate that the plaintiff's claim is part of a much more complex dispute between the parties.
The defendants say that the Supreme Court of Western Australia is a forum with minimal connection to the dispute, and Singapore is the more appropriate forum as it has the 'most real and substantial connection to the parties and the subject matter of the proceedings'.
The defendants also submit that Mr Lim, as the first defendant, and the shareholders and controlling directors of each of the other defendants, are all residents of Singapore. It is submitted that they each had a significant involvement in the matters the subject of the proceedings and will be required to give evidence. However, limited information is provided in that regard.
The defendants contend that the plaintiff's claim essentially arises from a breach of an alleged contract and does not hinge on any specific issues of Australian law or corporate governance. Rather, it is submitted that the core of the dispute concerns the validity of agreements and financial transactions that took place entirely in Singapore and there is little or no connection between the subject matter of the dispute and the 'exclusive jurisdiction of Western Australia'.
The defendants say that continuing the proceedings in Western Australia and forcing them to litigate in Australia would be oppressive, vexatious and costly. They submit it would impose an unfair burden on them because the majority of the parties and witnesses are located in Singapore. They say the defendants would face significant logistical challenges and costs defending the claim in a foreign jurisdiction.
The defendants also submit that for the proceedings to continue in this court would:
(a)constitute an abuse of process by the plaintiff taking four years to decide to litigate the matter in Western Australia; and
(b)not cause any injustice to the plaintiff given she is a citizen of, and resident in, Singapore.
The defendants challenged the plaintiff's evidence that she resides in Western Australia by reference to the matters deposed to by Mr Lim and attached to his 27 June 2024 affidavit, which they say demonstrate that she is resident in Singapore.
Ultimately, the defendants submit that it would be significantly more convenient for the matter to be dealt with in Singapore than in Western Australia.

Plaintiff's submissions in opposition to the application

As a preliminary objection to the defendants' application for a stay of the proceedings, the plaintiff submits there is no provision for a stay under O 12 r 6 RSC, and to the extent the application is made under that provision, it should be dismissed.
To the extent the application is made under the inherent powers of the court, the plaintiff opposes the defendants' application for a stay of the proceedings.
The plaintiff deposes that she is a citizen of Singapore but has been a permanent resident of Australia since 2008 and resides in Western Australia. The plaintiff referred to the ASIC extract relating to the second defendant, Cristo Development Pty Ltd, in which the plaintiff is recorded as a director and her address as an address in Western Australia. It is not unusual for a person who is a citizen of one country and a permanent resident of another to reside in, or have residential addresses in, both countries.

The plaintiff submits that this court is the appropriate forum for these proceedings because:
(a)the sales of shares of the fourth, fifth and sixth defendants between the plaintiff and the first defendant relates to Australian companies and share transfer forms lodged with ASIC;
(b)the companies' secretarial services and company records required for any trial are located in Australia;
(c)the development projects owned by the defendant companies are located in Western Australia;
(d)to the extent they are relevant, the investments made by the first defendant and other investors for the development projects undertaken by the defendants related to projects in Western Australia; and
(e)there is no hardship demonstrated or injustice caused to the first defendant of the proceedings continuing in Western Australia.
As to the defendants' submissions to the effect that all of the witnesses reside in Singapore, the plaintiff submitted that, from the little information given by Mr Lim as to the evidence they are likely to give, seven of the 14 witnesses referred to are said to have invested in the fourth, fifth and sixth defendants, or have lost money in connection with investments or business ventures with Mr Lian. The plaintiff submits that such post-date the share transactions and are not relevant to the matters the subject of the proceedings, or any counterclaim.
As to the defendants' submissions to the effect that she has agreed to any dispute being determined in Singapore, the plaintiff submits, and I accept, that the letters of undertaking dated 26 December 2019 and 19 February 2020 to LTS Capital do not refer to any amount to be paid by the first defendant to the plaintiff. Nor do they refer to the sale of shares in May or June 2020, the subject of the plaintiff's claim.
The letter dated 26 December 2019 appears to be from Mr Lian, not the plaintiff and refers to financial support provided by LTS Capital to Mr Lian and his company, which is not identified.
It is not immediately apparent what connection, if any, the letter dated 19 February 2020 has to the claim the subject of the proceedings. The plaintiff deposes that Mark Lim, who the letter is addressed to, is the first defendant's son. Neither Mark Lim nor LTS Capital are parties to the proceedings the subject of the application.

Determination

No issue has been taken by the first defendant as to service of the writ of summons on him, and none of the defendants have raised any issue that the proceedings were not regularly entered or commenced in this court.
The relief sought by the plaintiff is for declarations in relation to certain share transactions, as outlined. The plaintiff seeks declarations that the transactions, the subject of the declarations sought, are void ab initio and invalid. She also seeks orders for rectification of the share registers of the relevant defendant companies and of ASIC.
On the evidence adduced, I am not persuaded that this is a clear case in which this court is an inappropriate forum in the sense provided by the authorities I have referred to. This is not a case in which proceedings are on foot in two separate jurisdictions and a decision is called for as to which forum the matters in dispute should be determined, or whether one action should be stayed temporarily pending the determination of a proceeding in another forum.
The defendants are asking the court to permanently stay these proceedings because they submit the more appropriate forum is Singapore. The defendants have not identified which particular court in Singapore is said to be the appropriate forum.
As stated, it is not a contest between which forum is most convenient. The defendants must satisfy the court that this court is a clearly inappropriate forum. I am not satisfied on the material before me that is the case.
The defendants rely, among other things, on the burden, cost and inconvenience to them because the first defendant and some of the directors and shareholders of the other defendants reside in Singapore.
In his affidavit affirmed on 27 June 2024, Mr Lim lists a number of witnesses, including himself, who he deposes reside in Singapore who 'will have to give evidence' in the proceedings. It is not necessary that I identify them in these reasons. They are all stated to reside in Singapore.
It is unclear at this stage whether all or any of them will be required to give evidence. This will of course depend upon the issues in dispute. It is premature to state, at this stage, what evidence may be relevant and what witnesses may be required to give evidence. However, as was submitted by the plaintiff, it is unlikely that evidence of investors or people who bought shares in the fourth, fifth or sixth defendants after the impugned share transactions, or who lost money in business ventures with Mr Lian, would be relevant.
To the extent witnesses who reside in Singapore are required to give evidence, and to the extent those involved in the companies who reside in Singapore are required to give instructions in relation to the proceedings, those are matters which, to a large degree, can be dealt with by using available technology, including that often used in this court.
It is not immediately apparent how any counterclaim against the plaintiff arises in the context of an application for declarations and whether any such claim lies against the plaintiff. It is not necessary, nor appropriate, that I make any determination of the merits of any such claim for the purpose of the application. However, on the limited information provided, the disputes between the first defendant and Mr Lian and the plaintiff include matters concerning investments in companies and development projects in Western Australia.
As to the parties who are natural persons, the plaintiff and the first defendant, on the evidence adduced, the first defendant resides in Singapore. The plaintiff is a citizen of Singapore. She deposes that she is an Australian permanent resident and resides in Western Australia. The ASIC records relating to the second defendant record her as having an address in Western Australia. There is no reason for me not to accept the evidence of the plaintiff that she resides in Western Australia.
On the material before me, I am satisfied that there is a clear connection to Australia, and Western Australia in particular. The share transactions the subject of the plaintiff's claim relate to Australian companies. The orders sought, if granted, are to be directed at companies incorporated and registered in Australia and, in relation to all but one of the defendant companies, in Western Australia.
The plaintiff also seeks orders under s 1322 of the Corporations Act requiring ASIC to rectify its registers relating to the defendant companies. That is a matter within the jurisdiction of a Supreme Court or the Federal Court of Australia. It was submitted on behalf of the defendants that such orders could be sought in this jurisdiction following a determination by a Singapore Court. However, that was not elaborated on in counsel's submissions. Such would involve two separate proceedings.
As to the defendants' contention that the proceeding is an abuse of process, the only matter addressed in this regard was the plaintiff's delay in bringing the proceeding. That is not a matter of itself that grounds an abuse of process and there is no other evidence to support that contention.
In the circumstances of this case, as outlined, in my view, there is no basis for concluding that a permanent stay ought to be granted on the basis that Western Australia is a clearly inappropriate jurisdiction. When all of the matters raised by the defendants are taken into account, no such conclusion can be reached. What I have to determine is whether there are sufficient factors indicating the forum is clearly inappropriate. In my view, there are not sufficient factors to reach that conclusion and a stay would not be justified.
As such, the defendants' application should be and is dismissed. The appearance entered on behalf of the defendants will become unconditional.
I will hear from the parties in relation to final orders and costs. However, my preliminary view is that there is no reason why costs should not follow the event, and the defendants be ordered to pay the plaintiff's costs of the application.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AM
Associate to Master Russell
10 SEPTEMBER 2024