TUMPUAN MEGAH DEVELOPMENT SDN BHD 1. ) ING BANK N.V. 2. ) O.W. BUNKER FAR EAST (SINGAPORE) PTE LTD

TUMPUAN MEGAH DEVELOPMENT SDN BHD 1. ) ING BANK N.V. 2. ) O.W. BUNKER FAR EAST (SINGAPORE) PTE LTD

Where a registering High Court is faced with bona fide, particularised allegations that an arbitral tribunal lacked jurisdiction because the arbitration agreement was never formed (including allegations of fraud), the registering court must inquire independently and may order a de novo hearing with oral and expert evidence; the High Court below erred in refusing such a trial and in relying on comity/res judicata to bar the passive remedy; appeal allowed and order for trial under O.67 r.9(2) ROC granted.

Citation
W-02(IM)-66-01/2022 (Mahkamah Rayuan)
Parties
Appellant / Judgment Debtor: Tumpuan Megah Development Sdn Bhd; Respondent / Judgment Creditor: ING Bank N. V.; Respondent / Judgment Creditor: O.W. Bunker Far East (Singapore) Pte Ltd
Court
IM
Jurisdiction
Malaysia
Judgment Date
17 November 2023
Case Number
W-02(IM)-66-01/2022 (Mahkamah Rayuan)
Procedural Posture
Registration of Foreign Judgment Under REJA (enforcement of Arbitral Award) / Appeal to Court of Appeal Judgment on Interlocutory Application for Trial Under Order 67 R.9(2) ROC
Outcome
Appeal allowed in part; High Court's refusal to order a trial set aside; interlocutory application for trial allowed
Legal Topics
Recognition and Enforcement, Setting Aside Registered Judgment, Passive Remedy, Kompetenz Kompetenz, Fraud Affecting Jurisdiction, Trial of Jurisdictional Issues
Source Language
Malay/English
Arbitration Civil Procedure Private International Law Contract Law Judgment Enforcement Recognition and Enforcement Setting Aside Registered Judgment Passive Remedy +3 more

Case Brief

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Parties

Tumpuan Megah Development Sdn Bhd

Appellant / Judgment Debtor

ING Bank N. V.

Respondent / Judgment Creditor

O.W. Bunker Far East (Singapore) Pte Ltd

Respondent / Judgment Creditor

Procedural Posture

Registration of Foreign Judgment Under REJA (enforcement of Arbitral Award) / Appeal to Court of Appeal Judgment on Interlocutory Application for Trial Under Order 67 R.9(2) ROC

Legal Issues

  1. 1 Whether a judgment debtor may raise lack of jurisdiction of an arbitral tribunal (no arbitration agreement / fraud) in an application to set aside registration of a foreign judgment under the REJA where the award was not set aside at the seat
  2. 2 Whether the registering High Court must rehear jurisdictional issues de novo and permit oral evidence/trial when there are bona fide, particularised allegations of fraud going to formation of the arbitration agreement
  3. 3 Whether registration of a UK High Court judgment that derives from an arbitral award constitutes impermissible 'judgment laundering' bypassing AA 2005 enforcement regime

Ratio Decidendi

Where a registering High Court is faced with bona fide, particularised allegations that an arbitral tribunal lacked jurisdiction because the arbitration agreement was never formed (including allegations of fraud), the registering court must inquire independently and may order a de novo hearing with oral and expert evidence; the High Court below erred in refusing such a trial and in relying on comity/res judicata to bar the passive remedy; appeal allowed and order for trial under O.67 r.9(2) ROC granted.

Court Disposition

Appeal allowed in part; High Court's refusal to order a trial set aside; interlocutory application for trial allowed

Orders

  • Enclosure 24 (application under Order 67 r.9(2) ROC) granted: trial of jurisdictional issues with oral and documentary evidence and expert evidence permitted
  • High Court's order refusing trial set aside