Sino-Add applied to discharge the injunction on the following grounds:
Sino-Add also applied to stay the action on the ground that there was an arbitration agreement. There were two relevant clauses in the Gencon charterparty. Clause 32 of the charter-party provided for "General Average and arbitration if any to be settled and adjusted in London, English law to apply." Clause 11 read as follows: "General average to be settled according to York-Antwerp Rules, 1974. Proprietors of cargo to pay the cargo’s share in the general expenses even if same have been necessitated through neglect or default of the Owners’ servants."
Although Sino-Add were a company incorporated in Singapore, the only three shareholders and directors were Chinese citizens, who had no residential address in Singapore. There was no evidence that the directors were physically present in Singapore on a regular basis.
Sino-Add only had a legal presence and did not appear to have a commercial presence in Singapore. They had used the address of an accounting firm as its registered address and had no staff, no office, not even a telephone or a fax number in Singapore.
2. The court then held that Transfield had made full and frank disclosure of all material facts and circumstances. Transfield had disclosed copies of their Registry of Companies searches that provided sufficient information about Sino-Add, such as the information pertaining to the shareholding, the directors, authorised, issued and paid-up capital.
That Sino-Add had engaged in substantial business transactions was a neutral factor that did not warrant disclosure, since Sino-Add could just as easily transfer the monies out of jurisdiction, or conduct their business from outside the jurisdiction.
Transfield had also disclosed the fact that their English solicitors had invited Sino-Add to proceed with arbitration in London.
The notice of arbitration issued by the Transfield’s English solicitors was merely an invitation to Sino-Add to settle the dispute by arbitration in London, and this invitation had lapsed or was revoked by their commencement of legal proceedings in Singapore.
Sino-Add had not responded to the Transfield invitation in any way prior to the present proceedings, and only did so after the present proceedings were under way. They therefore did not have any grounds to apply for a stay.
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