JTrust Asia Pte Ltd v Group Lease Holdings Pte Ltd and others  SGCA 54 ("Jtrust")
To continue a Mareva injunction pending an appeal, an appellant must show that (i) it has a good arguable appeal (as opposed to a good arguable case); and (ii) there was a real risk of dissipation in the current circumstances. However, the question then arises, what is the difference between a good arguable case and a good arguable appeal?
In this landmark decision, the Court of Appeal has allowed an appellant's application to continue the Mareva Injunction against the first two respondents, but it also dismissed the appellant's application against the 3rd Respondent. In doing so, the Court of Appeal has clarified the difference between the good arguable case and the good arguable appeal thresholds. This is believed to be the first time it has done so.
Shook Lin & Bok LLP's Litigation Partner Daniel Tan and Associate Abhinav Ratan Mohan successfully resisted the appellant's application to reinstate the Mareva injunction against the 3rd Respondent, Cougar Pacific Pte Ltd ("CP").
Between 2015 and 2017, the appellant, JTrust Asia Pte Ltd ("JTA"), made several investments in Group Lease Public Company Limited ("GL Thailand") totaling US$210 million. GL Thailand is a Thai public company and the sole shareholder of the 1st Respondent, Group Lease Holdings Pte Ltd ("GLH"). The 2nd Respondent, Mr. Mitsuji Konoshita ("MK"), was at all material times the chairman of GL Thailand and a director of both GL Thailand and GLH. MK relinquished his office after the publication of an incriminating news release by the Securities and Exchange Commission of Thailand ("SEC"). In summary, the news release stated that GLH had issued sham loans the interest on which was repaid using the loan principals under a round-tripping scheme designed to inflate GL Thailand's operating results. The borrowers consisted of the third to seventh respondents (the "Borrowers"), who were alleged to be owned and controlled ultimately by MK. As a result, the SEC lodged a criminal complaint against GL Thailand and MK was banned from occupying directorships in Thai companies.
JTA commenced a lawsuit in Singapore against GLH, MK and the Borrowers, alleging deceit against MK and GLH, and a conspiracy against all the respondents. The crux of JTA's allegations was a conspiracy amongst the respondents to fabricate GL Thailand's accounting records and exaggerate GL Thailand's operating results in order to defraud JTA into believing GL Thailand's financial performance were better than it truly was.
Pending the trial in Singapore, JTA obtained a Mareva injunction from the Court of Appeal against GLH, MK and CP (see JTrust Asia Pte Ltd v Group Lease Holdings Pte Ltd and others  2 SLR 159 ("JTrust (CA)"). The Court of Appeal accepted that JTA had established (i) a good arguable case on the merits, as well as a risk of dissipation of assets.
JTA's claim was subsequently dismissed at trial and the Mareva injunction was discharged as a result. JTA appealed and applied for the Mareva injunction to be continued pending the appeal. The application was dismissed by the trial judge, and JTA made a further application to the Court of Appeal.
The Singapore Courts' two-pronged test for grant of Mareva relief pending appeal
It was common ground between the parties that JTA had to establish that (i) it had a good arguable appeal (as opposed to good arguable case) and (ii) there was a real risk of dissipation of assets under the circumstances. However, what does it mean for an applicant to have a "good arguable appeal"?
Understanding what it means by a "good arguable appeal" in Singapore
It is trite that a good arguable case is one which is more than barely capable of serious argument, but not necessarily one which a judge considers would have a better than 50% chance of success (see e.g. Bouvier, Yves Charles Edgar v Accent Delight International Ltd  5 SLR 558 at ).
The English position has generally been that the test for a good arguable appeal would "likely to be a more difficult test to satisfy" than a good arguable case and "if the case turns upon questions of fact which the judge has resolved against the plaintiff, [it] may well be insuperable" [emphasis added] (see Ketchum International plc v Group Public Relations Holdings Ltd and others  1 WLR 4 ("Ketchum"), affirmed in Novartis AG v Hospira UK Ltd  EWCA Civ 583).
MK and GLH relied on the decision of Ketchum, to assert that an applicant would need to show that it had a more than 50% chance of success in the appeal to establish a good arguable appeal. The Singapore Court of Appeal rejected this assertion as the court hearing the Mareva application would be effectively de the outcome of the substantive appeal before it is even heard (see JTrust at ).
So what is the Singapore courts' position on the "good arguable appeal" threshold? After careful consideration, the Court held that the threshold would be the same test as of a "good arguable case" unless there are factors that may raise the "good arguable case" threshold (see JTrust at ).
In this regard, the Court of Appeal identified and elaborated on two such factors which would raise the threshold:
- Findings of fact against the plaintiff made by the trial judge - the threshold for appellate intervention is high as it must be shown that the trial judge's assessment was "plainly wrong or against the weight of the evidence" (see Sandz Solutions (Singapore) Pte Ltd and others v Strategic Worldwide Assets Ltd and others  3 SLR 562 ("Sandz Solutions" at ); and
- Evidence which had or had not been proved at trial - the Court of Appeal when considering the good arguable appeal threshold should rely on evidence which was proved at the trial, it cannot rely on unproven evidence (unlike an interlocutory injunction pending trial which can be supported by evidence without formal proof).
Real risk of dissipation
It was also common ground amongst parties that the test of real risk of dissipation is essentially the same as that applicable to pre-trial, save that the appellate court should evaluate the risk by reference to current circumstances following the conclusion of the trial, though past events may be relevant if they serve to demonstrate the current risk of dissipation (see JTrust at ). The overarching test is whether there is objectively a real risk that a judgment may go unsatisfied because of a risk of unjustified dealing with assets (see JTrust at ).
The Court of Appeal's application of the principles to the facts
The Court of Appeal ultimately decided that the Mareva injunction ought to be preserved against MK and GLH pending the determination of JTA's appeal, but lifted as against CP.
Good arguable appeal: Findings of fact were not resolved against JTA / Evidence in JTA's favour
In its decision, the Court of Appeal held that the two factors which would make it more difficult to satisfy the "good arguable appeal" threshold did not come into play in the present application (see JTrust at ). The Court of Appeal noted that JTA's application was premised on the argument that (i) the trial judge had made errors of law and (ii) the trial judge's inferences were wrongly drawn from the facts (see JTrust at ). Pertinently the Court of Appeal noted at JTrust at  that (i) the findings of fact by the trial judge were resolved against the respondents and (ii) it can conduct a de novo review where inferences of fact are concerned (see Sandz Solutions at ).
With regard to the findings and inferences made by the trial judge, the Court of Appeal noted that it was arguable:
- that the trial judge's finding that GLH's financial statements were not prepared with the requisite dishonest intention was against the weight of the evidence before the court (see JTrust at  to );
- that JTA had relied on both MK's representations of the current and expected profitability of GL Thailand (see JTrust at  to );
- that the trial judge had drawn the wrong inferences in deciding that fraud was not established, particularly given that the trial judge had found that the loans were "undoubtedly unusual" and "suspicious (see JTrust at  to ); and
- that the acceptance of MK's and GLH's "goodwill" defence was premised on a wrong inference without any evidential basis (see JTrust at  to ).
The Court of Appeal also identified documentary evidence of round-tripping of funds back to GL Thailand which did not appear to have been considered by the trial judge (see JTrust at  to [79).
Real risk of dissipation: No contrary findings were made
In JTrust (CA), the Court of Appeal in granting the Mareva Injunction made observations as to (i) MK's dishonesty, (ii) the nature of the respondents' assets and (iii) the domicile and place of registration of MK. As the trial judge had not made any contrary findings in respect of any of these observations, the material facts which warranted the grant of the Mareva injunction were largely unchanged.
As the Court of Appeal had found that JTA has a good arguable appeal, GLH and MK could not simply rely on the dismissal of JTA's claim as evidence that there is no risk of dissipation of assets (see JTrust at ). Further, the Court of Appeal noted that the present evidence suggests a heightened risk of dissipation on the part of MK and GLH, in particular:
- Adverse remarks made against MK by the Eastern Caribbean Supreme Court in related BVI proceedings; and
- evidence that GLH had attempted to transfer money to GL Thailand, without informing JTA as required by the worldwide Mareva injunction.
As for CP, the Court of Appeal noted that (i) CP's management had been replaced after the initial grant of the Mareva injunctions and (ii) JTA's case is premised on the conduct of CP's former management. The Court of Appeal emphasized that the task is to evaluate the risk of dissipation with reference to present circumstances after the trial and not circumstances as they stood prior to the trial (see JTrust at ). The Court of Appeal agreed with CP's submissions that with the change of management, there was no evidence to show any real risk of dissipation.
Accordingly, the Mareva injunction was reinstated against MK and GLH, but lifted as against CP.
The Court of Appeal's clarification between the good arguable case and good arguable appeal thresholds is a welcome development to Singapore's burgeoning body of case law on the Mareva injunction. In considering whether to proceed with an application to reinstate a Mareva injunction, unsuccessful plaintiffs at first instance should be mindful of the following two key takeaways from the judgment.
First, an unsuccessful plaintiff should carefully review the first instance judgment and consider whether the judgment suffers from (i) pure errors of fact or (ii) errors of law or wrongly drawn inferences. The former presents an almost insuperable obstacle for applications to reinstate the Mareva injunction, as the applicant must show that the findings of fact were "plainly wrong or against the weight of the evidence".
Second, an application to reinstate the Mareva injunction will typically require sufficient evidence of a real risk of dissipation in the present circumstances. Past evidence is only relevant insofar as it supports the present risk of dissipation. Unsuccessful plaintiffs at the first instance should remain vigilant and ensure that any attempts to dissipate assets are promptly brought to the Court's attention.
Originally published June 2020.
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