Chang Chee Kheo v Fatfish Investment Partners Pte. Ltd. & 2 Ors

Facts

Chang Chee Kheo, a Malaysian citizen living in Johor Bahru, sued Fatfish Investment Partners Pte Ltd (FIPL), a Singapore company, together with its Australian-listed parent Fatfish Group Limited (FGL) and a British Virgin Islands sister company, Fatfish Capital Limited (FCL), in HC/OC 163/2023. His claim was to recover money lent to FIPL under three promissory loan notes, each extended on maturity, with FGL and later FCL named as guarantors of FIPL's repayment. It was undisputed that the money was remitted in ringgit from his Malaysian bank account to a Malaysian group company, Fatfish Ventures Sdn Bhd. The notes chose Singapore law and provided for SIAC arbitration in Singapore.

Chang said he was never repaid. He first began a SIAC arbitration, but the defendants did not respond, and when he stopped paying the deposit the arbitration was deemed withdrawn. He then filed OC 163 on 14 March 2023. The defendants filed SUM 1517 and SUM 1518 asking for a stay on the ground of forum non conveniens, saying Malaysia was the more appropriate forum because the deals were struck and documents signed there and because Chang's brokers, Tay and Chai, lived and were compellable only in Malaysia. An Assistant Registrar heard the applications.

Issues

1. Whether the personal connections of the parties and witnesses and the location of events and transactions pointed to Malaysia as the more appropriate forum
2. Whether the court could rely on counsel's submissions, rather than only the affidavits, to find a material dispute of fact making the brokers critical witnesses
3. Whether an arbitration agreement naming Singapore as the seat could be a connecting factor pointing to Singapore
4. Whether the Singapore governing law clause pointed to Singapore as the more appropriate forum

Holding

The Assistant Registrar dismissed both stay applications. The defendants failed at the first stage of the Spiliada analysis to show that Malaysia was clearly or distinctly more appropriate than Singapore, and that alone decided the applications. The views on the arbitration clause and governing law were expressed as obiter, and costs were left to a later hearing.

Reasoning

On the parties' connections, a bare assertion that FIPL, a Singapore-incorporated company, did business in Malaysia was not enough to show its place of business was there. Even if accepted, the parties were spread across Malaysia, Australia and the BVI, so their connections did not single out any jurisdiction, and the connection carried little weight anyway.

On the witnesses, the court held that whether a material dispute of fact exists, and whether a foreign witness's evidence is critical to a defence, are facts the stay applicant must prove, so they must be stated on oath; matters raised only in counsel's submissions could not be relied on. The affidavits showed FGL's and FCL's defences to be largely legal, and FIPL gave no detail of the facts behind its intended defences. The defendants had not shown they needed the brokers' evidence, since the parties themselves were privy to the transactions. Chang's evidence that the brokers would willingly testify in Singapore also fell short.

The location of events did not help the defendants either: the affidavits did not identify the documents said to be in Malaysia, did not explain why they were critical, and such records, mostly electronic, could be moved.

Although not needed, the court considered the arbitration clause. It reasoned that an arbitration agreement, like an exclusive jurisdiction agreement, deselects other venues and so can identify the seat as the more appropriate forum, deserving significant weight, provided the dispute falls within it and it was not repudiated when the court action began. Chang had not repudiated it: he started arbitration first and stopped only when the defendants did not take part, and their claim not to have received the notices was rejected. The governing law clause on its own carried little weight, because Malaysian law was presumed to be the same as Singapore law, but read with the arbitration clause it also pointed to Singapore.

From the judgment