COURT OF APPEAL FOR ONTARIO
CITATION: PT ATPK Resources TBK (Indonesia) v. Hopaco Properties Limited, 2014 ONCA 466
DATE: 20140616
DOCKET: C57993
MacPherson, Simmons and Gillese JJ.A.
BETWEEN
PT ATPK Resources TBK (Indonesia)
Applicant (Respondent)
and
Hopaco Properties Limited
Respondent (Appellant)
Orie Niedzviecki, for the appellant
Brian Illion, for the respondent
Heard: June 9, 2014
On appeal from the judgment of Justice Frank J.C. Newbould of the Superior Court of Justice, dated September 24, 2013.
ENDORSEMENT
[1] PT ATPK Resources TBK (Indonesia) (“ATPK”) applied to the Ontario Superior Court of Justice to have two judgments of the High Court of the Republic of Singapore registered and enforced against Hopaco Properties Ltd. (“Hopaco”).
[2] The first judgment, dated June 18, 2010, declared that Hopaco held certain shares of ATPK in trust for ATPK and that ATPK had equitable title to the shares which were being held in nominee accounts in Singapore (the “share judgment”). The share judgment also ordered that the shares be reconstituted and delivered up to ATPK, and that Hopaco account to ATPK for all benefits obtained from their disposition and all profits or benefits derived from them, with interest.
[3] The share judgment was set aside but reinstated by order dated August 17, 2010. On January 6, 2011, a costs order was made against Hopaco, the amount outstanding of which is SGD 250,131.23 (approx. CAD $215,112).
[4] The second judgment, dated December 6, 2011, ordered Hopaco to pay to ATPK approximately 110 billion Indonesian rupiah (approx. CAD $10 million) (the “money judgment”). At the application, the appellant conceded that the money judgment should be registered in Ontario.
[5] By judgment dated September 24, 2013 (the “enforcement judgment”), the application judge ordered that both the share judgment and the money judgment be recognized and given full force and effect as against Hopaco, and that both judgments could be enforced against Hopaco as an Order of the Superior Court of Justice.
[6] The application judge also ordered Hopaco to pay “prejudgment interest”, representing the postjudgment interest that had accrued on the money judgment from the date it was entered to the date the enforcement judgment was entered and that postjudgment interest would continue to accrue at the same rate. Although the money judgment made no provision as to postjudgment interest, the application judge accepted the respondent’s evidence that the applicable post-judgment interest rate under Singapore law was 5.33% per annum.
[7] Hopaco appeals.
[8] While Hopaco set out some 12 grounds of appeal, they can be summarized as follows. Did the application judge err in:
finding that the share judgment was not superseded by the money judgment;
finding that paragraphs 2 and 3 of the share judgment were not inconsistent;
finding the share judgment sufficiently clear and unambiguous that it should be enforced;
ordering pre- and postjudgment interest when there was no evidence that the Singapore judgments awarded any interest to ATPK; and,
ordering the continuation of an interlocutory injunction preventing Hopaco from dealing with its assets or property in Ontario?
[9] We see no error in the decision below. On the contrary, we agree with the application judge and his reasons for decision. Consequently, the grounds of appeal can be dealt with in brief compass.
1. Was the share judgment superseded by the money judgment?
[10] The application judge found that the money judgment did not supersede the share judgment. The share judgment was a final equitable order whereas the money judgment arose out of an assessment conducted pursuant to the share judgment. That is, the money judgment simply fixed the money damages following the share judgment. A subsequent monetary order does not detract from the finality of a foreign equitable order, and hence does not prevent the foreign equitable order from being registered: Pro Swing Inc. v. Elta Golf Inc., 2009 SCC 52, [2006] 2 S.C.R. 612, at paras. 111-12.
[11] Moreover, as the application judge noted, the proper venue for Hopaco to have asserted this argument (i.e. that the money judgment superseded the share judgment) was before the Singapore court. In making this comment, we do not accept that the application judge was “rubberstamping” the foreign judgments. In our view, the application judge was explaining that he would not effectively engraft a provision to the effect that the share judgment superseded the money judgment when the face of the share judgment did not state that. Had the appellant wished to see such a provision, it ought to have argued for the same before the Singapore court and the Singapore court, if persuaded by this argument, could have included a term in the money judgment stating that it superseded the share judgment.
2. Are paras. 2 and 3 of the share judgment inconsistent?
[12] The application judge found that the parties understood what the judgment meant, pointing to the fact that a large portion of the shares in issue were recovered pursuant to the share judgment in Singapore. Accordingly, he found that paragraphs 2 and 3 were not inconsistent. We agree.
3. Is the share judgment so ambiguous that it should not be enforced?
[13] Hopaco argued that the geographical scope of the share judgment is unclear, as is its effect on unnamed third parties and whether it is solely injunctive. We do not accept this characterization of the share judgment.
[14] As the application judge found, the scope of the share judgment is clearly defined. So too is the property to which the obligations in the share judgment apply. Also, the declaration of equitable title is clear as it affects Hopaco. The terms, meaning and requirements of the share judgment are clear and capable of enforcement. They are also sufficiently clear that Hopaco will know what is expected of it.
4. Was it an error to award pre- and postjudgment interest?
[15] Hopaco argues that the issue of interest was not raised at the oral hearing of the application nor was it addressed in the application judge’s reasons. Thus, it is contended, Hopaco does not know why pre- and postjudgment interest were ordered or how the amounts were calculated.
[16] Although the enforcement judgment refers to the interest awarded as “prejudgment interest” and “postjudgment interest”, both awards are better characterized as postjudgment interest. The “prejudgment interest” award covers postjudgment interest running from the date of the money judgment to the date of the enforcement judgment, with the “postjudgment interest” award covering any postjudgment interest that accrues thereafter.
[17] Having clarified this matter, this ground of appeal may be addressed briefly. The form of the order was settled by counsel at an appointment before the application judge. This appears to fully dispose of this ground of appeal.
[18] Further and in any event, the notice of application specifically sought an order for post-judgment interest and s. 129(3) of the Courts of Justice Act, R.S.O. 1990, c. C-43, provides that postjudgment interest on a foreign judgment registered in Ontario accrues at the rate applicable under the law of the place in which the foreign judgment was given. This court has held that interest accrues at this rate from the date the foreign judgment was entered and, in the absence of any direction in the terms of the foreign judgment on postjudgment interest, the court is entitled to consider evidence submitted by the parties of the applicable postjudgment interest rate under the law of place where the foreign judgment was made: Patterson v. Vacation Brokers Inc. (1997), 1997 CanLII 1380 (ON CA), 103 O.A.C. 1 (C.A.), at pp. 3-4; and Boardwalk Regency Corp. v. Maalouf (1992), 1992 CanLII 7573 (ON CA), 6 O.R. (3d) 758 (C.A.), at pp. 758-59. Accordingly, the application judge was entitled to accept the respondent’s evidence that the applicable rate of postjudgment interest under Singapore law was 5.33% per annum, and the application judge was entitled to apply that rate of interest from the date of the money judgment.
5. Was it an error to continue the interlocutory injunction?
[19] Hopaco submits that the interlocutory injunction should not have been continued because this matter was not sought in the application and was raised only during the appointment to settle the form of the order. It contends that it amounts to a permanent injunction.
[20] We disagree. The continuation of the order for an interlocutory injunction was necessary to ensure that Hopaco did not remove its assets from Ontario pending the determination of this appeal. There was no error in ordering its continuation.
DISPOSITION
[21] Accordingly, the appeal is dismissed with costs to ATPK fixed at $14,400, all inclusive.
“J.C. MacPherson J.A.”
“Janet Simmons J.A.”
“E.E. Gillese J.A.”