Tan Wei Heng, Kelvin and another v Tok Beng Tong and another

Tan Wei Heng Kelvin, a Singapore citizen, and his father-in-law Langgeng Sugiarto, an Indonesian, made an oral agreement on 8 October 2012 with Tok Beng Tong (Mr Jonathan Tok), a Malaysian citizen and Singapore permanent resident, and his father Hendro Tok, a Malaysian, to invest in Phase Two of the Permas City Development in Johor Bahru. It was not disputed that RM2,307,744.74 was paid that day to Buana Tunggal Sdn Bhd, the Malaysian developer of which Jonathan Tok is a director and majority shareholder. The project then suffered contractor insolvencies, pandemic movement controls and thefts.

In Originating Claim No 385 of 2023 the claimants alleged that the defendants breached the agreement, including by failing to secure a profitable completion, pay a 20% share of profits or repay the investment sum, and alternatively that they negligently represented the project as a safe investment with guaranteed profits. The defendants disputed the terms, said the claimants' stake was to be pro-rated against actual costs, and signalled a counterclaim for a share of losses. They applied for a stay in favour of Malaysia on the ground of forum non conveniens. An Assistant Registrar dismissed the application, and the defendants appealed by Registrar's Appeal No 193 of 2023, heard by Lee Seiu Kin J.

1. Whether Malaysia was clearly or distinctly a more appropriate forum than Singapore at the first stage of the Spiliada test.
2. What weight to give the meetings in Singapore, the governing law, the place of the alleged tort, and the location of witnesses and documents.
3. Whether there were special circumstances requiring that a stay nonetheless be refused.

Applying Spiliada as explained in Rappo, Tania v Accent Delight International Ltd and another and another appeal [2017] 2 SLR 265, the judge looked at the quality of connections. The investment was paid in ringgit to a Malaysian developer for a project in Johor Bahru, which was a clear connection to Malaysia. Meetings between the two younger men in Singapore counted for little: the parties lived in different countries, there was some suggestion that the fathers were the key decision makers, and those two were not shown to have been in Singapore. Unsubstantiated past dealings and damage suffered in Singapore, which presupposes a breach, carried little weight.

Using the approach in Pacific Recreation Pte Ltd v S Y Technology Inc and another appeal [2008] 2 SLR(R) 491, the commercial purpose and currency pointed to Malaysian law as the implied governing law, though the issues were largely factual and both systems are common law. The place of the alleged negligence was neutral, as representations were also said to have been made during visits to Malaysia.

The Malaysian witnesses on the delays were arguably relevant once the claimants put the management of the project in issue. Malaysian procedure for taking evidence for foreign courts reduced the compellability concern, but convenience still favoured Malaysia. Documents were likely electronic and accessible, and the parties' personal connections were neutral. Overall Malaysia was clearly the more appropriate forum, and the claimants raised no advantage or injustice that would justify refusing a stay.

The court allowed the appeal and ordered all proceedings in Originating Claim No 385 of 2023 to be stayed. The costs order below was reversed, so the claimants were to pay the defendants S$9,000 (all-in) for the stay application, and S$12,000 (all-in) for the appeal.