Baker (2022) 3 SLR 0103

[2022] 3 SLR 0103.
fm Page 103 Thursday, February 17, 2022 5:05 PM
[2022] 3 SLR SINGAPORE LAW REPORTS 103
Baker, Michael A (executor of the estate of

Chantal Burnison, deceased)
v
BCS Business Consulting Services Pte Ltd and others
[2021] SGHC(I) 14
Singapore International Commercial Court — Suit No 3 of 2018 (Summons No 37

of 2021)
Quentin Loh JAD, Carolyn Berger IJ and Dominique Hascher IJ
23 September 2021; 19 November 2021
Civil Procedure — Injunctions — Anti-suit injunctions — Defendants making
arguments on illegality and public policy in Singapore on basis of testator’s
misrepresentations to US courts — Singapore court having dealt with and dismissed
defendants’ arguments in hearings on merit — Defendant making argument on
“judicial estoppel” in the US also based on testator’s misrepresentations — Whether
defendant seeking to re-litigate same issues before US courts — Whether argument on
judicial estoppel could, and should, have been raised before Singapore courts —
Whether defendant’s conduct in US proceedings amounted to collateral attack of
Singapore judgment — Whether balance of convenience justified granting anti-suit
injunction
Civil Procedure — Injunctions — Anti-suit injunctions — Plaintiff winning suit
against defendants in Singapore — Defendant commencing suit against plaintiff and
parties related to plaintiff in the US — US defendants including parties related to
plaintiff who were non-parties to Singapore proceedings — Whether Singapore courts
could grant anti-suit injunction in favour of non-parties to Singapore proceedings
Facts
The plaintiff, Michael Baker (“Baker”), was the executor of the estate of Chantal
Burnison (“the Estate”). Chantal was the co-inventor of a compound called
“Ethocyn” used in various cosmetic and anti-aging skin products. The
intellectual property rights in the Ethocyn (“the Ethocyn Rights”) were held by
companies controlled by Chantal, which entered into bankruptcy proceedings in
the US (“the US Bankruptcy Proceedings”) in February 1999. The Ethocyn
Rights were acquired by Renslade New Zealand with the approval of the US
Bankruptcy Court in October 1999, and subsequently transferred to Renslade
Singapore, sometime between 2000 and 2001 or 2002 and eventually to BCS on
1 April 2002.
In November 2017, the Estate commenced suit in SIC/S 3/2018 (“the Suit”)
against the defendants (BCS, Marcus Weber (“Weber”) and Renslade Holdings
Ltd (“Renslade (HK)”)) (collectively, “the Defendants”), alleging that the
Defendants were trustees of the Ethocyn Rights for the Estate, and had breached
their fiduciary duties. In August 2019, while the Suit was underway, BCS
commenced proceedings in the US District Court for the Central District of
California (“the Californian Proceedings”) against Baker and BCS Pharma Corp
(“BCS Pharma”), alleging that Baker had wrongfully diverted payment due to
[2022] 3 SLR 0103.fm Page 104 Thursday, February 17, 2022 5:05 PM
104 SINGAPORE LAW REPORTS [2022] 3 SLR
BCS to BCS Pharma (“the Intercepted Payment Claim”). The Californian

Proceedings were stayed in June 2020 because of the Singapore proceedings.
The Singapore International Commercial Court (“SICC”) rendered its judgment
in Baker, Michael A v BCS Business Consulting Services Pte Ltd [2020] 4 SLR 85
(“the Judgment”) on 29 April 2020. In the Judgment, the court held that there
was a valid and enforceable trust agreement governed by Singapore law as
between Weber and Chantal (“the Trust”). Chantal was the beneficial owner of
the Ethocyn Rights, and the moneys and income generated therefrom (“the
Trust Assets and Trust Moneys”). The bulk of the Trust Moneys were derived
from a supply and distribution agreement between the Defendants and one Nu
Skin International Inc (“Nu Skin”). In particular, the SICC rejected the defence
of illegality raised by the Defendants. The Trust remained valid and enforceable
in spite of Chantal’s false declaration to the US Bankruptcy Court to conceal her
interest in the transfer of the Ethocyn Rights from the Chantal companies to
Renslade New Zealand.
The Defendants’ appeal against the Judgment (“the Appeal”) was dismissed by
the Court of Appeal in January 2021.
In March 2021, the US District Court lifted the stay on the Californian
Proceedings. BCS then joined Chantal’s daughters (“the Daughters”) and two
companies incorporated by the Daughters, one Grey Pacific Labs LLC and Grey
Pacific Science, Inc (“Grey Pacific Companies”) as defendants to the Californian
Proceedings, and included further complaints against Baker, BCS Pharma, the
Daughters and Grey Pacific Companies (collectively, “the US Defendants”).
BCS’s complaints included, inter alia, that Baker wrongfully caused all
trade mark rights related to the Ethocyn Rights to be conveyed to the Grey
Pacific Labs LLC, cutting the Defendants out of business (“the Trade mark
Claim”), that Baker was “judicially estopped” from asserting the existence of the
Trust in the California courts (“the Judicial Estoppel Claim”), and that Baker
had wrongfully held himself out as a representative of BCS in reaching
a settlement agreement with Nu Skin (“the Wrongful Settlement Claims”), in
addition to the Intercepted Payment Claim.
On 16 June 2021, the plaintiff made the present application for an anti-suit
injunction (“the ASI Application”), on the basis that the Californian Proceedings
were a collateral attack on the Judgment, as BCS took the position in the
Californian Proceedings that BCS remained the absolute owner of the Ethocyn
Rights, contrary to the SICC’s findings affirming the existence of the Trust.
BCS’s conduct was therefore vexatious and oppressive, and an anti-suit
injunction (“ASI”) should be granted.
BCS, however, argued that it did not seek to undermine the Judgment, as the
causes of action in the Californian Proceedings were separate and distinct from
those adjudicated upon by the court. The Californian Proceedings also
concerned new facts discovered after the Appeal, including the new claims
against Baker in his personal capacity.
Held, allowing the application in part:

(1) The jurisdiction to grant an ASI was to be exercised when the “ends of
justice” required it. The court would consider factors such as the defendant’s
Baker, Michael A v
[2022] 3 SLR BCS Business Consulting Services Pte Ltd 105
amenability to the court’s jurisdiction, the natural forum of the resolution of the
dispute between the parties, and the alleged vexation or oppression to the
plaintiffs if the foreign proceedings were to continue. It would be vexatious and
oppressive for a defendant to re-litigate issues decided by the forum court in the
foreign proceedings. The court would also grant an ASI to prevent the abuse of
its processes and to protect the court’s own judgment from being undermined
by a defendant in the foreign proceedings: at [45], [46], [49] and [53].
(2) The Defendants were amenable to the court’s jurisdiction. The
Defendants did not object to the court’s jurisdiction, and willingly participated
in the Singapore proceedings, including those for the “Accounting Application”
heard together with the ASI Application. That the California court was the
natural forum was immaterial so long as the forum court had sufficient interest
with the case. The court had sufficient interest in protecting its judgment from
a collateral attack: at [62] and [65].
(3) The Intercepted Payment Claims were an attempt by the Defendants to
re-litigate matters already decided in the Judgment, contradicting its findings in
the Judgment that the Trust Assets and Trust Moneys belonged to the Estate
beneficially. But with respect to the Trade mark Claims, in so far as they
pertained to Baker’s holding out as the officer of BCS, that did not amount to
re-litigation: at [67] and [68].
(4) The Judicial Estoppel Claim was also an attempt to re-litigate the issue of
Chantal’s false declarations before the US Bankruptcy Courts. It was vexatious to
re-litigate issues that could and should have been brought before the forum
court. The Defendants failed to raise the Judicial Estoppel Claim at all, despite
having extensively raised issues as to the existence, validity and enforceability of
the Trust under Singapore and US laws, including the defence of illegality and
public policy; all of which arose from the same facts. It was therefore oppressive
for the Defendants to pursue the Judicial Estoppel Claim in the Californian
Proceedings and it was also an abuse of process: at [69], [70], [73] to [76] and
[81].
(5) The Wrongful Settlement Claims were not an attempt at re-litigation,
because the facts were uncovered after the Appeal concluded, and did not
concern the ownership of the Ethocyn Rights: at [82] and [83].
(6) As the Californian Proceedings were at an early stage with discovery yet to
be completed, there would be no wastage of resources; the balance of
convenience therefore pointed towards granting the ASI: at [84].
(7) The ASI further applied to the other US Defendants who were not parties
to this Suit. The claims against the US Defendants were based on BCS’s absolute
ownership of the Ethocyn Rights, which contradicted the court’s findings and
threatened to denude the Judgment of any real practical effect: at [86] and [89].
Case(s) referred to
Airbus Industrie GIE v Patel [1999] 1 AC 119 (refd)
Baker, Michael A v BCS Business Consulting Services Pte Ltd [2020] 4 SLR 85
(refd)
Beckkett Pte Ltd v Deutsche Bank AG [2011] 1 SLR 524, HC (refd)
Beckkett Pte Ltd v Deutsche Bank AG [2011] 2 SLR 96, CA (folld)
Crescendo Maritime Co v Bank of Communications [2016] 1 Lloyd’s Rep 414

(refd)
Goh Nellie v Goh Lian Teck [2007] 1 SLR(R) 453; [2007] 1 SLR 453 (folld)
Henderson v Henderson (1843) 3 Hare 100; [1843–1860] All ER Rep 378 (folld)
Koh Kay Yew v Inno-Pacific Holdings Ltd [1997] 2 SLR(R) 148; [1997] 3 SLR 121
(distd)
Lakshmi Anil Salgaocar v Jhaveri Darsan Jitendra [2019] 2 SLR 372 (folld)
Masri v Consolidated Contractors (No 3) [2009] QB 503 (refd)
Noble Assurance v Gerling-Konzern [2006] EWHC 253 (Comm) (refd)
Royal Bank of Scotland NV, The v TT International [2015] 5 SLR 1104 (folld)
Société Nationale Industrielle Aerospatiale v Lee Kui Jak [1987] AC 871 (folld)
Sun Travel & Tours Pvt Ltd v Hilton International Manage (Maldives) Pvt Ltd
[2019] 1 SLR 732 (folld)
VKC v VJZ [2021] 2 SLR 753 (distd)
Legislation referred to
Rules of Court (2014 Rev Ed) O 35 r 4(3), O 110 r 3(1)
Declaratory Judgments Act 28 USC (US) § 2201, § 2202
Racketeer Influenced and Corrupt Organizations Act 18 USC (US) § 1962(b),
§ 1962(c)
Woo Shu Yan, Tay Hong Zhi Gerald and Regina Lim (Drew & Napier LLC) for the
plaintiff;
Thio Shen Yi SC, Justin Ee and Kevin Elbert (TSMP Law Corporation) (instructed),
Chong Pao Lan Monica, Vithiya d/o Rajendra, Wong Zheng Hui Daryl, Wang Yufei
and Daryl Kwok Wai Tat (Guo Weide) (WongPartnership LLP) for the defendants.
[Editorial note: The defendants’ appeal in Civil Appeal No 70 of 2021 is scheduled

for hearing by the Court of Appeal in the week beginning 27 June 2022.
(The hearing date is subject to change. For the most updated hearing dates, please
refer to www.judiciary.gov.sg.)]
19 November 2021 Judgment reserved.

Quentin Loh JAD, Carolyn Berger IJ and Dominique Hascher IJ:
Introduction and the parties

1 This is an application, SIC/SUM 37/2021 (“SUM 37”), by the plaintiff,
Michael Baker (“Baker”), for an anti-suit injunction (“ASI”) against the
second defendant from pursuing proceedings in California and against all
the defendants from pursuing any further proceedings worldwide which
have the same or similar subject matter of the action in Singapore
comprised in SIC/S 3/2018 (“the Suit”).
2 Baker is the executor of the estate of Chantal Burnison, (“Chantal” or
“the Estate” as the case may be), who succumbed to cancer on 2 October
Baker, Michael A v
2016 in Los Angeles, United States of America (“US”). Chantal is survived

by her two daughters, Heika Burnison (“Heika”, born in 1987) and Birka
Burnison (“Birka”, born in 1990). They are the only beneficiaries of the
Estate.
3 The second defendant, Marcus Weber (“Weber”), is a Swiss national
who operated out of Zurich until 2002 when he obtained a work permit to
work in Singapore. Weber became a permanent resident of Singapore in
2003.
4 The first defendant, BCS Business Consulting Services Pte Ltd
(“BCS”), is a company incorporated in Singapore on 31 March 1999. Weber
is a director and the sole shareholder of BCS. The third defendant, Renslade
Holdings Ltd (“Renslade (HK)”) is a company incorporated in Hong Kong
on 5 November 2007 and Weber is its sole shareholder. It is not disputed
that Weber in effect owns and controls BCS and Renslade (HK). A
reference to the “Defendants” or “Singapore Defendants” includes
a reference to Weber, BCS and Renslade (HK) as the context so requires.
5 The present application arises in the context of a dispute between the
plaintiff and the Defendants over the beneficial ownership of intellectual
property rights in a compound called “Ethocyn” and the income and
proceeds generated by those rights (“the Trust Assets”, see [12] below).
Background facts
The underlying dispute

6 The facts, the issues, our findings and our grounds of decision can be
found in our judgment on liability reported in Baker, Michael A (executor of
the estate of Chantal Burnison, deceased) v BCS Business Consulting Services
Pte Ltd and others [2020] 4 SLR 85 (“the Judgment”). Although we only
refer to those facts, issues or findings as are necessary for the purposes of
this application, this judgment must be read in the context of and together
with the Judgment.
7 Chantal was the co-inventor of the compound, “Ethocyn”. Ethocyn
was used in various cosmetic and beauty products. The rights to the
inventions and patents of Ethocyn (“the Ethocyn Rights”) were initially
assigned to California-incorporated companies controlled by Chantal (“the
Chantal Companies”). The Chantal Companies entered bankruptcy
proceedings in February 1999. The Ethocyn Rights, among other assets,
were eventually sold to a New Zealand company, Renslade Holdings
Limited (“Renslade (NZ)”) on 19 October 1999 with the sanction of the US
Bankruptcy Court. Sometime between 2000 and 2001 or perhaps 2002, it is
not clear when (see the Judgment at [13]), the Ethocyn Rights were
transferred to a Singapore company, Renslade Singapore Pte Ltd
(“Renslade (S)”), and then finally to BCS on 1 April 2002.
8 Over the years, the Ethocyn Rights yielded a sizeable income and
profits. This was derived mainly from a supply and distribution agreement
(“SDA”) entered into between BCS and Nu Skin International Inc
(“Nu Skin”) in June 2003. Under the SDA, BCS agreed to supply Ethocyn to
Nu Skin for its usage and distribution. In return, Nu Skin would make
direct payments to BCS. These payments formed the bulk of moneys
generated from the Ethocyn Rights (referred to in the Judgment as the
“Trust Moneys” or “Trust Monies”). Sometime in or around 2007, the bulk
of the Trust Moneys were transferred from BCS to Renslade (HK).
9 In or around 2014, Weber withdrew a sum of 9.5m Swiss francs
(“CHF”) from the Trust Moneys. Baker alleged that Chantal agreed to loan
Weber CHF6m but that Weber withdrew the larger sum of CHF9.5m
without her knowledge. Weber denied this was a loan on the basis that he
was using money that belonged to him.
10 Chantal was diagnosed with metastatic colon cancer in September
2015. From May 2016, Chantal repeatedly sought an account of the Trust
Assets and Trust Moneys, but to no avail. We found that Weber and Dr Ralf
Wojtek (“Wojtek”), a lawyer representing BCS, as well as another lawyer,
Mr Urs Wehinger, delayed doing so on one pretext or another,
(see [157]–[186] of the Judgment). After Chantal passed away on 2 October
2016, Baker became the executor of the Estate. He sought to have the assets
of the trust and Trust Moneys transferred to the Estate. When this was not
done, Baker filed the present Suit in Singapore in November 2018.
11 Baker, as executor of the Estate, sued the Defendants for: (a) breach of
fiduciary duties as trustees under an oral trust or an oral agreement to hold
and manage assets, the Ethocyn Rights, and the income derived therefrom,
for Chantal; as well as (b) breach of a loan agreement of CHF9.5m with
3% per annum interest (“the Loan Agreement”). Renslade (HK) was sued
for dishonestly assisting BCS and Weber in their breach of fiduciary duties.
The Defendants are also sued for conspiring and acting together with the
intention of injuring Chantal and/or the Estate. Baker’s claims, on behalf of
the Estate, are set out at [32] and [33] of the Judgment.
12 Baker claimed, essentially, that Chantal was the beneficial owner of
the Ethocyn Rights. She had arranged for Renslade (NZ) to negotiate with
the Chantal Companies and the Creditors’ Committee in the bankruptcy
proceedings and reached an agreement to purchase the Ethocyn Rights.
There was no one else willing or interested to purchase the Ethocyn Rights
despite the efforts of the Creditors’ Committee, their merchant bankers, an
entity known as the Kriegsman Group and an experienced work out
specialist. Chantal was subsequently introduced to Weber and entered into
an agreement with Weber (“the Trust Agreement”) for Weber to acquire
the Ethocyn Rights from Renslade (NZ) and to hold any income or
proceeds generated from the Ethocyn Rights on trust for her (we refer to
the trust as “the Trust” and the assets held on trust as “the Trust Assets”).
Baker, Michael A v
Under this Trust Agreement, the Defendants were entitled to retain 5% of

the proceeds generated. Further, although Chantal had agreed to loan
Weber CHF6m, Weber then took the CHF9.5m from the Trust Moneys
without her knowledge or consent.
13 The Defendants’ defences are set out at [34]–[54] of the Judgment. In
gist, BCS and Weber denied that there was any trust as alleged, or any kind
of agreement between Chantal and Weber for the latter to acquire and hold
the Ethocyn Rights and/or any income or proceeds generated on trust, for
Chantal. Instead, BCS and Weber saw the acquisition of the Ethocyn Rights
as a good business opportunity and agreed to purchase the same from
Renslade (NZ), which had acquired the Ethocyn Rights from the bankrupt
Chantal Companies with the sanction of the US Bankruptcy Court. Weber
and BCS acquired the Ethocyn Rights using Renslade (S), and from 25 May
2000, until her death, Chantal worked for, and assisted Renslade (S) with
the exploitation of the Ethocyn Rights as a consultant. The Ethocyn Rights
were subsequently transferred to BCS because Nu Skin did not wish to deal
with Renslade (S), a shell company. Further, for tax reasons, the profits
generated from the Ethocyn products were transferred to Renslade (HK)
and only 5% (from 2007 to 2014) and 10% (from 2016) of the proceeds of
sale were retained by BCS in Singapore.
The course of proceedings

14 The parties agreed to bifurcate the trial into liability and quantum
tranches. In addition to their pleadings, the parties agreed upon an Agreed
List of Issues for the court’s decision (see the Judgment at [58] and [59]).
Some of the relevant agreed issues included:
(a) Was there a Trust Agreement between Chantal and Weber as pleaded
by the Estate … in the Statement of Claim (Amendment No.3)?
…
(f) If a Trust Agreement existed between Chantal and Weber, what is the
governing law of any alleged Trust (as defined in … the Defence
(Amendment No.4) …?
…
(g) If the Alleged Trust was invalid, are the Defendants nevertheless
holding the Trust Assets and/or Trust Moneys … and/or any other income
[or] proceeds generated from the Trust assets on a resulting trust and/or
constructive trust for Chantal’s Estate under California Law?
(h) If the Alleged Trust was valid under California law, can the assets
alleged to be held on trust be claimed by Chantal’s Estate?
(i) Are the Trust Agreement and/or Alleged Trust illegal, void, or
unenforceable as being contrary to the public policy of Singapore?
(j) If the Alleged Trust is illegal, void, or unenforceable as being contrary
to the public policy of Singapore, are the Defendants nevertheless holding the
Trust Assets and/or the Trust Moneys and/or any other income or proceeds
generated from the Trust Assets on a resulting trust for Chantal’s Estate
under Singapore law?
15 The parties were not able to agree the further issues framed by the
other. The Estate’s list of additional issues is set out at [60] of the Judgment.
For the purposes of this judgment, one of the relevant issues at [60] was:
(e) If the Trust and/or Trust Agreement pleaded by Chantal’s Estate is
governed by California law, was the Trust and/or Trust Agreement invalid
under California law?
16 From the Defendants’ list of additional issues set out at [61] of the
Judgment, one of the relevant issues was:
(c) If the Alleged Trust … is governed by California law, was the Alleged
Trust valid, legal and enforceable under California law?
17 The parties agreed that foreign law would be proved by way of

submissions from registered foreign lawyers. This is one of the advantages
of hearings before the Singapore International Commercial Court
(a separate division of the High Court, where, inter alia, foreign law can be
proved by legal submissions rather than through expert witnesses and
findings of fact). The parties also agree that the factual witnesses would give
their evidence first and the registered foreign lawyers’ submissions on
issues of California law would be made together with closing legal
submissions from the Singapore lawyers.
18 The trial of the liability tranche took place in Singapore from 11 to

16 November 2019. The trial was originally fixed for hearing from 11 to 15,
and 18 to 21 November 2019. At the joint request of counsel, this court sat,
in a special sitting, on a Saturday, 16 November 2019, as counsel informed
the court that they were concerned the evidence would not be completed
within the days allocated for the evidence tranche of the trial. Baker, Heika
and the Estate’s lawyer, one Mr Johnson, gave evidence. On that Saturday,
Baker closed his case at approximately 1.51pm, whereupon the Defendants
elected under O 35 r 4(3) and O 110 r 3(1) of the Rules of Court (2014 Rev
Ed) not to call evidence and submitted that they had no case to answer.
19 This therefore meant that the affidavits of evidence-in-chief of Weber

and Wojtek, Weber’s lawyer, were not admitted into the evidence and
consequently disregarded. This court therefore only heard the oral
testimony of Baker and his witnesses, who had been cross-examined by the
Defendants’ counsel, and considered the evidence contained in the
documents that had been admitted without formal proof (but not
necessarily as to the truth of their contents). This court did not have the
benefit of any evidence, whether by evidence-in-chief or oral testimony in
cross-examination from Weber and Wojtek.
Baker, Michael A v
20 The parties then filed their written submissions. The registered US

counsel duly filed their affidavits and submissions on California law. On
3 and 6 February 2020, we heard legal submissions by registered US counsel
on California law relating to bankruptcy, trusts and illegality. We also heard
closing submissions from Singapore counsel on the facts and on the law,
which included Singapore law on trusts, illegality (including the
unenforceability of a trust tainted by illegality), and public policy in relation
to, inter alia, the effect of a foreign illegality.
21 We reserved judgment and after deliberation, we handed down our
Judgment on 29 April 2020 and held as follows:
(a) There was a Trust Agreement between Chantal and Weber.
Renslade (NZ) had held the Ethocyn Rights on trust for Chantal.
When the Ethocyn Rights were transferred to Renslade (S), Chantal
remained the beneficial owner of those rights. This remained the case
when the Ethocyn Rights were assigned or transferred to BCS.
Therefore, Chantal had always been the beneficial owner of the
Ethocyn Rights, the Trust Moneys and the Trust Assets (see the
Judgment at [187] and [188]).
(b) Chantal had agreed to loan Weber the sum of CHF6m for three
years with interest at 3% per annum, but Weber had withdrawn
CHF9.5m from the profits made under the Nu Skin SDA without
Chantal’s knowledge or consent, and had not repaid that amount or
rendered an account of any interest as of the date of the Judgment
(see the Judgment at [199]).
(c) The Trust Agreement was governed by Singapore law (see the
Judgment at [214]). Under Singapore law, there was an express trust
(at [226]) and, in any event, a resulting trust would also arise on the
facts (at [230]). In the alternative, if the Trust Agreement were
governed by California law, a trust would also have arisen (at [240]).
This court rejected the claim that the trust was unenforceable for
illegality, finding that the Trust Agreement was enforceable under
both Singapore (at [258]–[269]) and California law (at [298]).
(d) As the Trust Agreement was valid and enforceable:
(i) the Defendants had breached their fiduciary duty to
Chantal by failing to provide an account of the Trust and the
Trust Moneys;
(ii) the Defendants had breached the Trust Agreement by
unilaterally increasing the commission from 5% to 10% from
2016 to 2017 without Chantal’s knowledge and consent;
(iii) Weber had breached his fiduciary duty by failing to
procure BCS or Renslade (HK) to return the Trust Assets, and
also breached his contractual obligation to return CHF9.5m

with the 3% annual interest; and
(iv) by claiming legal and beneficial ownership over the Trust
Assets and Trust Moneys, the Defendants had conspired with
the intention of injuring Chantal and/or the Estate.
22 We therefore made orders relating to the plaintiff’s claims for relief.
We ordered the taking of accounts. The parties have since extracted the
order of court in SIC/JUD 5/2020, the relevant portions of which are
produced below:
1. it is hereby declared that [BCS] and/or [Renslade (HK)] hold the
intellectual property rights to the inventions and patents of Ethocyn
(‘the Ethocyn Rights’) and 95% of any income or proceeds generated from
the Ethocyn Rights (‘the Trust Assets’) including 95% of the monies which
were paid by Nu Skin International Inc to [BCS] and any other income or
proceeds generated from the Trust Assets on trust for the Plaintiff (‘the Trust
Assets and Trust Monies’);
2. the Defendants are to provide a detailed account of all the transactions
which have taken place in respect of the Trust Assets and Trust Monies
within 14 days from the date of judgment;
3. the Defendants are to account to the Plaintiff the Trust Assets and
Trust Monies, and the Plaintiff is at liberty to trace and recover the Trust
Assets and Trust Monies, if necessary. The Defendants shall pay the Plaintiff
all sums due to the Plaintiff on the taking of the account of the Trust Assets
and Trust Monies;
4. Parties are at liberty to apply to the Court for any orders or directions
in relation to the taking of accounts of the Trust Assets and Trust Monies;
5. [Weber] is to pay to the Plaintiff CHF9.5 million plus interest at the
rate of 3% per annum calculated from the date the sum of CHF9.5 million
was loaned to [Weber] to the date of the judgment and the post judgment
interest rate of 5.33% calculated from the date of judgment until the said sum
of CHF9.5 million plus interest is repaid;
6. the sum of US$10,330,658.91 which was paid by [Renslade (HK)] into
Court pursuant to the Order of Court No. 2 of 2020 dated 11 January 2020,
shall be released to the Plaintiff, Michael A Baker, and/or his solicitors, Drew
& Napier LLC;
…
23 The Defendants appealed against this court’s Judgment in

CA/CA 76/2020 (“the Appeal”). The defendants then applied, on 4 May
2020, for a stay pending the Appeal in HC/SUM 25/2020. We heard and
dismissed the application for a stay on 16 June 2020. The Defendants then
made a further application for stay of execution to the Court of Appeal, on
17 June 2020, in CA/SUM 70/2020 (“SUM 70”). The Court of Appeal heard
SUM 70 on 15 July 2020, and held, inter alia, that:
Baker, Michael A v
(a) There would be no stay for the payment of the CHF9.5m. The
payment shall be made to the plaintiff’s solicitors, Drew & Napier
LLC (“Drew & Napier”), pending the disposal of the Appeal.
(b) The sum of US$10.3m, which had previously been paid by
Renslade (HK) into court, shall remain with Drew & Napier pending
the disposal of the Appeal.
24 On 19 January 2021, the Court of Appeal heard the appeal, affirmed
the Judgment of this court and orders made and dismissed the Appeal with
costs, stating: “We agree with the comprehensive judgment of the court
below. In our view, we see no reason to disturb any of the findings made
therein, or the orders made.”
25 In the meanwhile, as there was no stay ordered for the taking of
accounts, that process commenced with Weber asking for time to file his
affidavit with an account of the Trust Assets and Trust Moneys. Following
the Court of Appeal’s dismissal of the application for stay of execution in
SUM 70, on 13 October 2020, Weber filed an affidavit on behalf of the
Defendants to account for the Trust Assets and Trust Moneys. Drew &
Napier replied in a letter with objections to the account and requested the
Defendants to file a further affidavit to address the deficiencies with the
account. The Defendants’ solicitors, WongPartnership LLP
(“WongPartnership”), replied with further accounts, which Drew & Napier
still did not find satisfactory. After further correspondence between the
solicitors from both sides, Baker’s lawyers eventually wrote to court to ask
for directions. Pursuant to the court’s directions, Weber filed a further
affidavit which provided a combined account of the Trust Assets and Trust
Moneys from 2000 to 2021. Baker filed an affidavit in reply, to give notice of
his objections to the combined account. Baker further demanded payment
from the Defendants. Baker’s objections to the combined accounts were
disputed in turn by WongPartnership, and no payments were made.
26 After much contention and delays, the taking of accounts has moved
into the final stages. Baker applied in SUM 25/2021 (“SUM 25”), for
payment of US$10,313,895.25 and CHF1,662,894.67, which Baker claims
are due on the accounts filed thus far, interest on the Trust Assets and Trust
Moneys found due, unredacted copies of certain documents, and costs.
27 The parties appeared before us on 23 and 24 September 2021 to make
their respective submissions on this SUM 37 and to make final submissions
on the taking of accounts in SUM 25 (ie, after the plaintiff had attempted to
falsify and surcharge the accounts submitted by the Defendants). This
judgment deals with SUM 37 and we have yet to deliver our judgment on
the taking of the accounts in SUM 25.
28 It is therefore important to note that these proceedings are ongoing
and have not been completed. It will be completed when we deliver
judgment on the taking of accounts. There may well be an appeal thereon to

the Court of Appeal as there may be on our decision in SUM 37.
SUM 37
29 We now set out the background to SUM 37. After the proceedings
were filed in Singapore in November 2017, BCS initiated a suit in the US
District Court for the Central District of California against Baker and one of
Chantal’s companies in the US, BCS Pharma Corp (“BCS Pharma”) on or
around 8 August 2019 (“the Californian Proceedings”). For context and
convenience, we summarise the following chronology of the relevant events
in Singapore (in bold) and the Californian Proceedings:
S/N Date Event

1. November 2017 SIC/S 3/2018 is filed by Baker in Singapore
2. 18 May 2018 The Suit is internally transferred from the General
Division of the High Court to the Singapore
International Commercial Court (“the SICC”)
3. 8 August 2019 The Californian Proceedings are commenced by
BCS against Baker and BCS Pharma by the filing of
an initial complaint (“the Initial Complaint”)
4. 3 October 2019 Baker and BCS Pharma apply for the Californian
Proceedings to be dismissed on the basis of forum
non conveniens
5. 11 to Evidential trial in the SICC
16 November
2019
6. 3 and Hearings of submissions by US counsel and
6 February 2020 Singapore counsel by the SICC
7. 17 April 2020 US District Court dismisses the forum non
conveniens application
8. 29 April 2020 The SICC issues the Judgment in favour of the
plaintiff
9. 8 May 2020 The Defendants file the Appeal
10. June 2020 The SICC dismisses the Defendants’ application to
stay execution pending the disposal of the Appeal
11. 24 June 2020 Baker, BCS Pharma and BCS agree that the
Californian Proceedings should be stayed pending
the Appeal and file a Joint Stipulation to Stay Case
(“Joint Stipulation”) and a Proposed Order on
Stipulation to Stay Case. The US District Court
orders the Californian Proceedings to be stayed
pending the resolution of the Appeal on 30 June
2020
Baker, Michael A v
12. July 2020 The Court of Appeal dismisses the Defendants’

application to stay execution pending the disposal
of the Appeal
13. 13 October Weber files his 19th affidavit on behalf of the
2020 Defendants to account for the Trust Assets and
Trust Moneys
14. 29 December The Defendants wrote in to provide further
2020 account
15. 19 January 2021 The Appeal is dismissed by the Singapore Court of
Appeal
16. 10 March 2021 Baker, BCS Pharma and BCS file a Joint Status
Report in the Californian Proceedings. On
19 March 2021, the parties file a joint report
proposing timelines for the Californian Proceedings
17. 26 March 2021 The US District Court lifts the stay on the
Californian Proceedings and sets the case schedule
18. 6 April 2021 Baker and BCS Pharma file their Answer to the
Initial Complaint
19. 27 April 2021 BCS files a “First Amended Complaint” adding
Heika, Birka, Grey Pacific Labs LLC (“Grey Pacific
Labs”) and Grey Pacific Science, Inc (“Grey Pacific
Science”) (Grey Pacific Labs and Grey Pacific
Science shall be referred to collectively as the “Grey
Pacific Companies”). We refer to these as the
“Additional Parties”.
20. 11 May 2021 Baker and BCS Pharma file their Answer to the First
Amended Complaint
21. 14 May 2021 Baker files SUM 25 for payment due on the taking
of the account
22. 11 June 2021 The Additional Parties file their Answer to the First
Amended Complaint
23. 16 June 2021 Baker files SUM 37 in this court and supporting
affidavit
24. 10 August 2021 Weber files his 21st affidavit on behalf of the
Defendants in reply to Baker’s application and
affidavit in SUM 25
25. 20 August 2021 Baker files his 27th affidavit in response to
Weber’s 21st affidavit
26. 27 August 2021 BCS applies to the California courts for leave to
amend its First Amended Complaint, and proceed
instead on a “Second Amended Complaint”
27. 24 September The US District Court allow BCS’s application to

2021 proceed on the Second Amended Complaint. The
California court also directs the US Defendants to
file their answers to the Second Amendment
Complaint by 5 November 2021, and that all
timelines in the Californian Proceedings to be
pushed back by six months so as to allow for
discovery
28. 24 September This court hears the application in SUM 25
2021
The Initial Complaint
30 In the Initial Complaint, BCS referred to the contract it had with Nu

Skin (see [8] above) to supply the Ethocyn compound. BCS claimed that
BCS Pharma and Baker had interfered with BCS’s contractual relationship
with Nu Skin. Specifically, under an amendment to the Nu Skin SDA, Nu
Skin was to pay US$2m to BCS by January 2018. However, Baker had
contacted Nu Skin and improperly instructed Nu Skin to make payment to
BCS Pharma. We refer to the claims arising from these alleged facts as the
“Intercepted Payment Claims”. In addition, BCS claimed that BCS Pharma
had lowered its production and operation costs, but did not reduce the
corresponding amounts that it claimed from BCS, resulting in
overpayments by BCS. On these alleged facts, BCS claimed in conversion
the amounts BCS paid in excess of BCS Pharma’s actual production and
operating costs, and punitive damages based on fraud and malice on the
part of BCS Pharma. We refer to this as “the Overpayment Claims”.
The First Amended Complaint
31 Subsequently, on 27 April 2021 (ie, after the Defendants’ Appeal was

heard and dismissed by the Court of Appeal), BCS filed the First Amended
Complaint. BCS added, as defendants, Heika, Birka (Chantal’s daughters,
hereinafter “the Daughters”) and the Grey Pacific Companies (both
Delaware-incorporated companies carrying on business in California). We
refer to the defendants in the Californian Proceedings, who did not appear
as a party to the current proceedings before us, collectively as the “US
Defendants”. These would include Heika, Burka, BCS Pharma, Baker in his
personal capacity, as well as the Grey Pacific Companies.
32 In the First Amended Complaint, BCS no longer pursued the

Overpayment Claims. It maintained its allegation that BCS Pharma had
overstated production and operating costs, but this allegation did not, in
and of itself, constitute any causes of action. Instead, this allegation,
together with new assertions, combined to support BCS’s new causes of
action in unfair competition and civil conspiracy.
Baker, Michael A v
33 The new assertions made were as follows:

(a) Chantal had made representations to the court during the
bankruptcy proceedings of the Chantal Companies that the buyer of
the Ethocyn Rights, Renslade (NZ), was a party at arm’s length, and
also later that she did not own the Ethocyn Rights when she declared
her net worth as less than US$350,000 as of 1 May 2001.
(b) BCS obtained the Ethocyn Rights from Renslade (S) on 1 April
2002:
All rights in Ethocyn were to be owned by [BCS] with no ownership
interest retained by [Chantal]. [BCS] did not hold the rights in trust for
[Chantal] or her estate. The Ethocyn Rights were held by [BCS], and
the proceeds from the exploitation of the Ethocyn Rights, after
deducting [BCS’s] share of the profits, were segregated in [Renslade
(HK)], an entity owned by Weber.
(c) Chantal had wanted her daughters to profit from the Ethocyn
business. On her directions, Weber incorporated the Amarillis
Foundation which was to own all the shares in Renslade (HK). Weber
was named as first beneficiary, and Heika and Birka as second
beneficiaries, who were (after an amendment to the Foundation’s
regulations) to benefit within 30 years and always after Weber’s death.
“Throughout these transactions, [Chantal] had no ownership interest
in the Ethocyn Rights or in the proceeds thereof.” However, Baker
defied Chantal’s instructions to Weber and sought to enlarge the
estate. Heika and Birka joined Baker to benefit from the Ethocyn
business without the restrictions placed by the structure of the
Amarillis Foundation.
(d) After Chantal’s death in October 2016, Baker, Heika and Birka
conspired to incorporate Grey Pacific Science and Grey Pacific Labs
on 27 October 2016. After Grey Pacific Labs was incorporated, Baker
signed a master trade mark agreement purporting to convey all the
Ethocyn Rights belonging to BCS to Grey Pacific Labs. On 30 January
2017, Grey Pacific Labs filed for a patent in the US Patent Office for a
method of synthesising Ethocyn and similar compounds (the “Patent
Filing”), which BCS discovered only in 2021. Grey Pacific Science has
marketed and distributed Ethocyn. This was concealed from the
Singapore court in the Suit. In doing so, Baker, BCS Pharma, Heika
and Birka have cut BCS out of business and contracts. We refer to the
claims relating to, and arising out of, this purported assignment of
trade mark rights as the “Trade mark Claims”.
(e) In November 2017, Baker initiated litigation in Singapore,
fraudulently alleging that the Ethocyn Rights were beneficially owned
by Chantal. Baker would have been “judicially estopped” from
making such assertions in the US, but as Singapore does not apply
that doctrine, Baker was allowed to proceed and succeeded against the
Defendants.
34 It is important to note that the Defendants ran the same defence and
case as stated at [33(a)]–[33(c)] above, in the Singapore proceedings.
Having failed before this court and the Court of Appeal, the defendants
now run the same case before another court in another jurisdiction. We
accept [33(d)] was not, for obvious reasons, an issue before us. Importantly,
however, the issue contained in the first sentence of [33(e)] was also the
case pleaded before us by the Defendants. Again, they had failed before us
and the Court of Appeal. The mischief contained in the second sentence of
[33(e)] above is that the Defendants never ran the argument of “judicial
estoppel” before us, despite being able to run all the other arguments under
California law in relation to bankruptcy, trusts, illegality, as well as the
public policy of Singapore where a person has obtained assets from a
foreign bankruptcy court by making false and misleading statements to the
foreign court. This is clearly an abuse of process and a breach of the rule in
Henderson v Henderson (1843) 3 Hare 100; [1843–1860] All ER Rep 378
(“Henderson v Henderson”), both of which we will deal with below (see [70]
and [79] below).
35 On the basis of these allegations, BCS made the following claims:
S/N Claim Against Relief Remarks

1. Tortious All Actual and In addition to the Intercepted
interference defendants punitive Payment Claims, additionally that the
with contract damages defendants have entered into business
with Nu Skin to the exclusion of BCS
2. Conversion Baker and Actual and Part of the Intercepted Payment
BCS punitive Claims
Pharma damages
3. Money had Baker and Actual and Part of the Intercepted Payment
and received BCS punitive Claims
Pharma damages
4. Unjust Baker and Actual and Part of the Intercepted Payment
enrichment BCS punitive Claims
Pharma damages
5. Fraud Baker and Actual and Part of the Intercepted Payment
BCS punitive Claims
Pharma damages
6. Conversion Baker, Grey Damages Part of the Trade mark Claims
of trade mark Pacific Labs and
to Ethocyn and Heika punitive
damages
Baker, Michael A v
7. Breach of Baker Damages Part of the Trade mark Claims

fiduciary and
duty punitive
damages
8. Unfair All Injunctive Unlawful business practices including
competition defendants relief to stop intercepting the payment from Nu
under the defendants Skin, misrepresenting production and
California from using operating costs, and assigning
Business & Ethocyn trade mark rights without BCS’s
Professions trade mark knowledge or approval
Code § 17200 rights
Restitution
Damages
9. Civil All Damages Wrongful acts of intercepting
conspiracy defendants and payments, misrepresenting
punitive production and operating costs, and
damages fraudulently assigning trade mark
rights
10. Racketeer Baker, Damages BCS relies on various acts of the US
Influenced Heika and (triple Defendants
And Corrupt Birka actual
Organization damages)
s Act 18 USC
(US)
§ 1962(b)
11. Racketeer All Damages BCS relies on various acts of the US
Influenced defendants (triple Defendants
And Corrupt actual
Organization damages)
s Act 18 USC
(US)
§ 1962(c)
12. Declaratory All Declaration On the basis of the representations
judgment defendants that Chantal had made during the
estopping bankruptcy proceedings of the
defendants Chantal Companies, declaratory
from judgment that “[the] [US] Defendants
asserting are judicially estopped from asserting
existence of a the existence of a trust, that the sale of
trust under the Ethocyn rights in the bankruptcy
Declaratory action was anything other than an
Judgments arms-length transaction, and that
Act 28 USC [Chantal] retained any rights in
(US) Ethocyn after the sale”.
§§ 2201, 2202
36 Baker and BCS Pharma, as well as the remaining US Defendants, have

filed Answers to the First Amended Complaint. Relevantly, Baker and BCS
Pharma have pleaded that the First Amended Complaint and the claims
therein are:
… barred by the doctrines of collateral estoppel and/or res judicata, in light of
the final judgment of the SICC in Case No SIC/S 3/2018 which was affirmed
by the Singapore Court of Appeal in Case No CA/CA 76/2020. The Singapore
Court of Appeal’s decision is final and non-appealable.
Baker and BCS Pharma have also referred to the Judgment ([6] supra) as
constituting a money judgment against Weber, BCS and Renslade (HK),
and further, that the claim for declaratory judgment fails as there is no
actual controversy given that any such controversy has been barred by
estoppel. The Additional Parties have also pleaded “collateral estoppel
and/or res judicata” on the basis of the Judgment and the decision in the
Appeal.
The Second Amended Complaint

37 As the Californian Proceedings progressed and entered the discovery
phase, BCS served a third-party subpoena on Nu Skin on 22 June 2021. On
6 July 2021, Nu Skin replied and objected to the subpoena on the ground
that it had entered into a settlement agreement dated 28 May 2020 with
BCS (“the Settlement Agreement”). Under the Settlement Agreement,
BCS’s claims against Nu Skin were settled and discovery regarding these
claims was barred, in exchange for payment from Nu Skin (“the Settlement
Sum”).
38 BCS then allegedly found out that the Settlement Agreement was
entered into by Baker, who held himself out as a representative of BCS. It was
subsequently discovered that Baker’s counsel in the Californian
Proceedings did not know about the Settlement Agreement. Nor did the
counsel instructed by Baker in Utah in relation to the settlement
negotiations with Nu Skin know about the Californian Proceedings.
39 BCS was unable to obtain a copy of the Settlement Agreement. Nu
Skin’s Utah counsel refused to provide a copy of the Settlement Agreement,
partly for fear of further litigation from Baker. Baker’s Utah counsel
similarly represented that Baker’s instruction was to not disclose the
Settlement Agreement.
40 BCS thus applied for leave from the California court on 27 August
2021 to amend its complaint a second time. In its proposed Second
Amended Complaint, BCS made further allegations that Baker had:
(a) instructed and retained counsel in Utah, US, purportedly on
behalf of BCS to assert and/or threaten to assert claims against a third
party, Nu Skin;
Baker, Michael A v
(b) concealed from Nu Skin the existence of the Californian

Proceedings;
(c) fraudulently induced Nu Skin to enter into the Settlement
Agreement;
(d) concealed the negotiations with Nu Skin and the Settlement
Agreement from BCS and the California court; and
(e) misappropriated and/or failed to remit the “Settlement Monies”
to BCS despite purporting to settle claims on BCS’s behalf.
On the basis of these allegations, BCS added three further claims against
Baker in his personal capacity, in: (a) conversion; (b) money had and
received; and (c) unfair competition. We refer to the claims relating to, and
arising out of, the Settlement Agreement as the “Wrongful Settlement
Claims”.
41 On 3 September 2021, Baker filed his opposition to BCS’s application
for leave to amend its complaint. In his opposition, Baker argued that BCS’s
new allegations raised in the Second Amended Complaint, even if true,
would simply mean that the Settlement Agreement would be invalid. The
invalidity of the Settlement Agreement means that BCS would be free to
commence proceedings against Nu Skin and the Settlement Sum would also
be returned to Nu Skin. This would, in turn, render BCS’s claims against
Baker redundant. Additionally, given that BCS’s rights under the SDA, and
any claims arising therefrom, are held on trust for the Estate, it is difficult to
see what loss or damage BCS has suffered.
42 On 24 September 2021, the California court allowed, in full, BCS’s
application to proceed with the Second Amended Complaint. The timelines
for the Californian Proceedings have also been pushed back for six months,
so as to allow for discovery to take place.
Parties’ arguments
43 Baker complains that the Californian Proceedings are a collateral
attack on the Judgment ([6] supra) and the Appeal. This court found, and
the Court of Appeal affirmed, that there is a valid and binding Trust over
the Ethocyn Rights in favour of the Estate. In contradiction of this, BCS
takes the position in the Californian Proceedings, that absolute ownership
of the Ethocyn Rights belonged to it (and subsequently Renslade (HK)).
This, on Baker’s view, clearly amounts to vexatious and oppressive conduct
on the part of BCS, which justifies the grant of an ASI.
44 In response, BCS argues that it is not seeking to undermine this
court’s Judgment. The causes of action raised in the Californian
Proceedings are separate and distinct from those that have been adjudicated
upon by this court, and the Californian Proceedings also concern facts
which were only discovered by BCS after the conclusion of the Appeal. BCS
insists that it should be entitled to formulate and pursue its claims in

a manner most advantageous to it.
The legal principles

45 The general principles relating to the granting of an ASI were stated
by the Court of Appeal in Lakshmi Anil Salgaocar v Jhaveri Darsan Jitendra
[2019] 2 SLR 372 (“Lakshmi”) at [49]:
(a) The jurisdiction is to be exercised when the ‘ends of justice’ require it.
(b) Where the court decides to grant an anti-suit injunction, its order is
directed not against the foreign court but against the parties so proceeding or
threatening to proceed.
(c) An injunction will only be issued to restrain a party who is amenable to
the jurisdiction of the court, against whom an injunction will be an effective
remedy.
(d) Since such an order indirectly affects the foreign court, the jurisdiction
is one which must be exercised with caution.
It will be seen that these principles have been derived from the Privy
Council’s decision in Société Nationale Industrielle Aerospatiale v Lee Kui
Jak [1987] AC 871:
First, the jurisdiction is to be exercised when the ‘ends of justice’ require it …
Second, where the court decides to grant an injunction restraining
proceedings in a foreign court, its order is directed not against the foreign
court but against the parties so proceeding or threatening to proceed.
…
Third, it follows that an injunction will only be issued restraining a party who
is amenable to the jurisdiction of the court against whom an injunction will
be an effective remedy: see eg Re North Carolina Estate Co (1889) 5 TLR 328
per Chitty J. Fourth, it has been emphasised on many occasions that, since
such an order indirectly affects the foreign court, the jurisdiction is one
which must be exercised with caution …
46 These general principles include, importantly, the reminder that since
such an order indirectly affects the foreign court, comity requires that this
jurisdiction is one that must be exercised with caution. The authorities have
identified five non-exhaustive key factors that the court will consider in
deciding whether to grant such an injunction (Lakshmi at [50]):
(a) whether the defendants are amenable to the jurisdiction of the
Singapore court;
(b) the natural forum for resolution of the dispute between the parties;
(c) the alleged vexation or oppression to the plaintiffs if the foreign
proceedings are to continue;
(d) the alleged injustice to the defendants as an injunction would deprive
the defendants of the advantages sought in the foreign proceedings; and
Baker, Michael A v
(e) whether the institution of the foreign proceedings is in breach of any

agreement between the parties.
47 The reference in Lakshmi (at [50(e)]) to an “agreement between the

parties” explains the distinction drawn in the authorities between
contractual and non-contractual ASIs (see Halsbury’s Laws of Singapore –
Conflict of Laws vol 6(2) (LexisNexis, 2020 Reissue) (“Halsbury”) at
para 75.125). Contractual ASIs refer to those granted to restrain the ASI
defendant, from breaching a contractual obligation to commence
proceedings in a specific forum. The ASI sought by Baker in this case is not
contractual in nature, seeing that there is no such obligation on BCS to sue
in any particular forum.
48 Instead, Baker is asking for a non-contractual ASI. The hallmark of
non-contractual ASIs is vexatious and oppressive conduct on the part of the
ASI defendant (Halsbury at paras 75.127 and 75.128). Whether the ASI
defendant’s conduct in instituting foreign proceedings is vexatious and
oppressive, is an objective issue to be answered with reference to the facts of
each case (Koh Kay Yew v Inno-Pacific Holdings Ltd [1997] 2 SLR(R) 148
(“Koh Kay Yew”) at [19]).
49 Within the category of non-contractual ASIs, a further distinction can
be drawn between cases of consecutive and concurrent proceedings.
Consecutive proceedings cases differ from concurrent proceedings cases
because in the former situation, the forum court has already issued a
judgment. It would be vexatious and oppressive for an ASI defendant to
commence foreign proceedings, so as to relitigate issues that have been
decided by the forum court and thus undermine a judgment with res
judicata effect: Thomas Raphael, The Anti-Suit Injunction (Oxford
University Press, 2nd Ed, 2019) (“Raphael”) at para 5.18.The same point
was made in Steven Gee, Commercial Injunctions (Sweet & Maxwell,
7th Ed, 2021) (“Gee”) at para 14-094:
The English court may grant an injunction to prevent a party bound by the
res judicata or issue estoppel effect of an English judgment relitigating the
underlying dispute or issue abroad. This extends to litigating abroad matters
which could and should have been litigated as part of the original action.
Granting an anti-suit injunction for this purpose both forwards an important
English public policy of preventing collateral attack on a final judgment by
a disappointed litigant, prevents relitigation of determined issues, and gives
effect to a substantive right not to be sued which has been created by the
relevant judgment. [emphasis added in bold italics]
50 We accept that in situations of consecutive proceedings, there may

sometimes be a fine line between a party arguing in the foreign court that a
prior judgment should not be enforced or recognised in a foreign
jurisdiction, and vexatious and oppressive conduct which needs to be
enjoined. The former is generally an issue for the foreign court to
determine, according to its own rules on the enforcement and recognition
of foreign judgments. A court would be slow to interfere with the foreign

court’s determination of how its judgment should be treated.
Notwithstanding this, however, there remains the possibility that, in certain
circumstances, mounting a challenge against a court’s judgment in foreign
jurisdictions would amount to clearly vexatious and oppressive conduct
which must be restrained. An important point of distinction lies in whether
the defendant is merely resisting an enforcement proceeding brought by the
successful plaintiff in the foreign court, or whether the defendant has pre-
emptively decided, on its own accord, to launch a collateral attack of the
court’s judgment in a foreign jurisdiction. Further, it bears repeating that
an ASI operates against the ASI defendant in personam, and is not directed
at the foreign court. Indeed, in the final analysis, the need to account for the
foreign court’s own jurisdiction to determine its own matters for itself is
simply a reflection of the established principle that the jurisdiction to grant
an ASI is one to be “exercised with caution”: Lakshmi at [49(d)].
51 A paradigm example of a case involving consecutive proceedings,

which justified an ASI, can be seen in Masri v Consolidated Contractors
(No 3) [2009] QB 503 (“Masri”). In Masri, the claimant commenced an
action in London against the defendants in respect of an agreement reached
in 1992. The claimant obtained judgment against the defendants, in which
the English court declared, inter alia, that the 1992 agreement had not been
terminated. The defendants then commenced an action in Yemen for
declarations that, inter alia, the agreement had been terminated and that
the defendants were not liable to the claimant. As noted above, this was not
a case where the defendant was resisting enforcement per se – there was no
attempt by the claimant to commence enforcement proceedings in Yemen.
The claimant applied for an ASI, which was granted by the English High
Court. The defendant appealed.
52 The English Court of Appeal dismissed the defendant’s appeal.

Lawrence Collins LJ concluded that the fact that the respondent was
seeking to relitigate in a foreign jurisdiction (ie, Yemen) matters which
were already res judicata between himself and the claimant by reason of the
English judgment, could be sufficient ground for the grant of an ASI. He
described a case “in which the judgment debtors are seeking to relitigate
abroad the merits of a case which, after a long trial, they have lost in
England” as “a classic case of vexation and oppression”: Masri at [82],
[86]–[95], and [100]. The English court has powers to make such an
ancillary order in protection of its jurisdiction and its processes, including
the integrity of its judgments, as well as the underlying rights of the
successful claimant.
53 Hence, besides restraining vexatious and oppressive conduct, the

court will also intervene by way of an injunction to prevent an abuse of its
processes. The protection of a court’s own judgment and processes is a
Baker, Michael A v
matter properly for that court to determine. As the Court of Appeal stated
in Beckkett Pte Ltd v Deutsche Bank AG [2011] 2 SLR 96 at [19]:
… In our view, the issue was very simply this. As stated by Lord Hobhouse of
Woodborough in Turner v Grovit [2002] 1 WLR 107 at [24] (the facts of that
case are not directly relevant), a court may issue an anti-suit injunction to
restrain an individual from continuing to prosecute foreign proceedings
which amount to an abuse of its (ie, the aforesaid court’s) process because of
their effect on pending litigation in that court. Such abuse is a species of
unconscionability and wrongful conduct justifying the grant of an injunction.
We should add that once there is an abuse of the court’s process, the matter
ceases to be a case involving only the competing interests of the parties
concerned – the public interest in ensuring that the judicial process is not
abused is engaged, and the court must intervene, where it is able to do so, to
prevent its process from being abused.
In referring to the specific instance where the continued prosecution of

foreign proceedings may have an impact on pending litigation in the court
issuing the ASI, we do not understand the Court of Appeal to be restricting
such ASIs to that specific situation – it is clear instead that the Court of
Appeal was referring to just one instance where the abuse would justify an
injunction. The principle remains that a court will intervene to prevent its
process from being abused.
54 This principle was also referred to in Masri and approved by the High
Court in Beckkett Pte Ltd v Deutsche Bank AG and another [2011]
1 SLR 524 at [34]. It suffices for us to quote from Masri at [100]:
It is consistent with principle for an English court to restrain relitigation
abroad of a claim which has already been subject of an English judgment.
There is long-established authority that protection of the jurisdiction of the
English court, its process and its judgments by injunction is a legitimate
ground for the grant of an anti-suit injunction.
55 The key question, therefore, is whether the Californian Proceedings

amount to a relitigation of the issues that we have already decided in the
Suit, which Judgment ([6] supra) has been affirmed by the Court of Appeal.
As we will go on to explain, many (but not all) of the claims raised by BCS
in the Californian Proceedings are contradictory to the findings made in the
Judgment. These allegations, including the key allegations relating to the
doctrine of judicial estoppel, therefore amount to an attempt by BCS to
relitigate issues already decided by this court. This is thus both vexatious
and oppressive to the Estate and also an abuse of this court’s process, and it
warrants the grant of an ASI. However, BCS should be allowed to pursue
those claims which do not contradict our findings, in the Californian
Proceedings.
56 We have set out the claims being made by BCS in California from
[30]–[42] above. In our judgment, these claims clearly proceed on the
following factual premises: (a) that there is no Trust in favour of the Estate
over the Ethocyn Rights, or in the alternative the said Trust is not
enforceable; (b) because of Chantal’s false statements to the US Bankruptcy
Courts, the Estate is judicially estopped from asserting the existence of the
Trust; (c) that the sale of the Ethocyn Rights in the bankruptcy action was
anything other than an arms-length transaction; and (d) that Chantal did
not retain any rights in Ethocyn after the sale. However, the existence,
validity and enforceability of the Trust were two of the key issues decided
by us in these proceedings. We have earlier referenced the parties’ lists of
agreed, as well as non-agreed issues, all of which raised the existence,
validity and enforceability of the Trust (see [14]–[16] above), both under
Singapore law as well as California law.
57 As we noted at [63] of the Judgment, the existence, validity and

enforceability of the Trust formed the “heart of the dispute” between the
parties:
63 At the heart of this dispute are two underlying issues:
(a) Was there a Trust Agreement between Chantal and Weber and
his companies (BCS and Renslade (HK)) to hold the Ethocyn Rights
and all income and proceeds therefrom on trust for Chantal (‘Trust
Agreement’) or did Weber purchase the Ethocyn Rights for his own
investment in his own right?
(b) If there was a valid Trust Agreement, was it unenforceable or
void as a result of an illegality under Singapore law and/or California
law?
Having considered the evidence put before us and after considering the
legal and factual closing submissions, including submissions on US law
from registered US lawyers, we found as a fact (see [21] above) that there
was a Trust Agreement between Chantal and Weber, which gave rise to the
Trust, and the Trust was valid and enforceable, whether its governing law
was Singapore law or California law. As noted above, we also ruled on
illegality and public policy whether Singapore law or California law was
applied.
58 Therefore, the factual premise on which the Californian Proceedings

are predicated clearly and directly contradicts and seeks to undermine the
findings of this court. Indeed, this is clear from our questions to the
Defendants’ counsel, Mr Thio Shen Yi SC (“Mr Thio SC”), and his replies
during oral submissions on 23 September 2021:
Berger, IJ: Yes, I---I’m having a problem with this because you did
raise various questions [in this Suit] that US law on
bankruptcy and trusts and you did argue that the trust
was illegal or unenforceable for a variety of reasons …
…
Baker, Michael A v
Loh, JAD: … Was it not argued before us that we certainly shouldn’t

be allowing a party to make a statement on oath to a US
Court, mislead the US Court, and now come to us and
say, ‘Well, please forget all about that’? Now, that
argument was made before us.
Thio: Yes, but the preclusive effect of … that statement is a little
different. Because it goes to either credibility or it’s
something to persuade Your Honour that, look, the trust
cannot exist … because Chantal said something directly
opposite to what she’s asserting here …
…
Loh, JAD: But I’m having difficulty with that, Mr Thio, because
what I just said was clearly said to us in the context of
public policy and illegality. ‘You shouldn’t allow a party
to go on oath and say these things’. And it was pointed
out to us in no uncertain terms that this paragraph, that
paragraph, et cetera, of what Chantal had filed in the
bankruptcy proceedings were lies. And therefore, as a
matter of public policy, we shouldn’t let somebody disavow
what she said.
Thio: Well, Your Honour, … Like, … they [ie, Chantal] did a
bad thing. You ought not to countenance this behaviour.
And therefore, we wrap it up and try to bring it under the
doctrine of illegality … but that failed. And illegality is
a complex issue which has different requirements and it
has different consequences.
So … it’s not the same doctrine, Your Honour. [I]t’s
closely related on the facts but they are legally distinct.
I think that’s the best answer that I can offer.
…
Berger, IJ: Wouldn’t you have to agree that if the trust, as this Court
has determined, if there is a trust, that all of your claims
[in the Californian Proceedings] would have to fail?
…
Thio: But the declaration is that they are judicially estopped
from asserting that there is a trust. So that’s different from
the question of whether there is a trust or not …
…
Loh, JAD: Alright. So let’s leave that to one side. Your learned friend
has read out parts of your client’s current statement of
claim or points of claim [in the Californian Proceedings].
And it seems to say that you’re disavowing there’s any
trust …
Thio: … Well, the---of course, in the original complaint, you

will find that they are this the original complaint, which
was running, I suppose, in parallel to the Singapore
proceedings, does disavow the trust. But with the
(indistinct) complaint, as you can see from the remedy
that has been sought, where the remedy is that they are
judicially estopped from asserting the … trust from
arising, then the pleadings makes sense in that context …
[emphasis added in italics, bold italics and underlined]
59 Mr Thio SC was unable to answer Justice Berger’s second question

referenced above; the transcript does not show the almost resigned shrug of
his shoulders that was evident to us and followed by, with respect, a lame
attempt not to answer the question but to try and draw a distinction when
there was none. In these exchanges, Mr Thio SC conceded that the
Californian Proceedings, as commenced by the Initial Complaint, was
initially premised on the position that there was no trust, in direct
contradiction of this court’s findings in the Judgment. He qualified his
position by saying that the claim in judicial estoppel, as first raised in the
First Amended Complaint, no longer required the position that there was
no trust, but instead that the plaintiff was prevented from asserting a trust.
As we will explain later (see [72]–[78] below), this is, in substance, if not in
form, an attack on the enforceability of the Trust, which is another matter
expressly considered, and rejected, in the Judgment. With respect,
Mr Thio SC’s attempt to draw the difference between “judicial estoppel”
and its preclusive effect on the one hand, and claiming there was no trust or
no enforceable trust on the other, is a distinction without any difference.
This is clear from the pleadings in the Californian Proceedings and Weber’s
23rd affidavit filed on 22 September 2021, where he exhibits the Second
Amended Complaint at paras 21 and 23:
21. On May 24, 2000, Renslade Holdings Pte Ltd, a Singapore
Incorporated Company (‘Renslade SG’) acquired all rights transferred under
the Asset Purchase Agreement from Renslade NZ and, in 2002, transferred
these rights to the Plaintiff [BCS]. Renslade SG was, at that time, owned by
Marcus Weber (‘Weber’), who was also the owner of the Plaintiff [BCS].
…
23. By Deed of April 1, 2002, [BCS] obtained the rights to Ethocyn from
Renslade SG. All rights in Ethocyn were to be owned by [BCS] with no
ownership interest retained by Burnison. [BCS] did not hold the rights in
trust for Burnison or her estate. The Ethocyn Rights were held by [BCS], and
the proceeds from the exploitation of the [Ethocyn] Rights, after deducting
[BCS’s] share of the profits, were segregated in Renslade Holdings Hong
Kong (‘Renslade HK’), an entity owned by Weber.
60 In our judgment, the Defendants are attacking the existence or

enforceability of the Trust in the Californian Proceedings. This was
Baker, Michael A v
something they put in issue before us, but Baker has prevailed, and they
have failed. It is very clear to us that the Defendants are now pursuing this
same line of factual and legal allegations – which they have failed to
establish before us in Singapore – in the Californian Proceedings, and
trying to dress it up with an argument on “judicial estoppel” which they
alleged was a rule of procedure that would not apply in Singapore.
Amenability to jurisdiction and natural forum

61 We briefly address the Singapore Defendants’ amenability to this
court’s jurisdiction, as well as the question of which is the natural forum to
hear the claims being pursued in the Californian Proceedings, which are
relevant factors to be considered in deciding whether to grant the ASI.
62 The point on amenability to this court’s jurisdiction can be disposed
of briefly. As referenced at [3] and [4] above, BCS is a Singapore
corporation and Weber is a permanent resident in Singapore and carries
out at least some of his business in Singapore and Hong Kong. He is the sole
shareholder and director of BCS and the sole shareholder of Renslade (HK).
The Singapore Defendants submitted to this court’s jurisdiction by
appearing in these proceedings without objecting to the jurisdiction of the
Singapore courts or otherwise challenging the jurisdiction of the Singapore
courts. The importance of this fact cannot be overstated in this context,
which will become relevant when we consider the Defendants’ vexatious
and oppressive, as well as procedurally abusive, conduct. This is a case
where the Singapore Defendants have willingly participated in these
proceedings, filed and responded to various applications, and proceeded on
the basis that they would defend the action in Singapore. Although the
Defendants eventually decided to argue that there was no case to answer
after the plaintiff’s case at trial had closed, this does not change the fact that
the Defendants were (and continue to be) participants in the Singapore
court’s processes. The proceedings in relation to the taking of accounts has
not been completed. This is how they have conducted themselves for the
almost four years since they first entered their respective appearances in
this matter.
63 Turning to the question of natural forum, BCS now argues before us
that California is the natural forum to hear the claims pursued in the
Californian Proceedings, in so far that these claims are founded on facts
which occurred in the US, and are likely governed by US and not Singapore
law. We agree with BCS that its claims in the Californian Proceedings are
founded on facts which occurred in the US. We are also prepared to accept
that these claims could be governed by US law. However, even assuming
that California is the natural forum to hear the claims being pursued in the
Californian Proceedings, this is not a bar to Baker’s prayer for an ASI. First
and foremost, as we have noted earlier, the defendants never challenged the
jurisdiction of the Singapore courts. Secondly, many of the business aspects
in this case, as is more common nowadays, also span across Switzerland,

parts of Europe in the early days of setting up the Ethocyn business, New
Zealand, Singapore and Hong Kong. The evidence shows the parties
communicating from different parts of the world and also meeting in
different parts of the world. Beyond this, however, there are other factors
and legal principles that require discussion.
64 We begin by distinguishing the authorities which have stated that it is
a necessary condition that Singapore is the natural and proper forum for an
ASI to be granted on the ground that the foreign proceedings are vexatious
and oppressive: see Koh Kay Yew ([48] supra) at [19] and VKC v VJZ and
another [2021] 2 SLR 753 at [18]. Those cases address the usual case of
concurrent proceedings, and the question of consecutive proceedings was
not considered. We have already explained the nature of this distinction
and why it is necessary to bear this in mind when approaching the exercise
of the discretion to grant an ASI (see [49]–[54] above).
65 The requirement of natural forum stems from the underlying need for
the forum to have sufficient interest with the case before an ASI is granted. It
also follows that the natural forum requirement is not an invariable one,
and the court may grant an anti-suit injunction even though it is not the
natural forum if it otherwise has sufficient interest with the matter: Halsbury
at para 75.129 (for instance, in single forum cases where the action is only
justiciable abroad, the forum court may act notwithstanding that it is not
the natural forum: see Airbus Industrie GIE v Patel [1999] 1 AC 119 at 139).
In a consecutive proceedings case, the forum court’s sufficient interest
would arise from the need to protect its judgment from a collateral attack,
occasioned by the commencement of proceedings abroad by the ASI
defendant: Masri ([51] supra) at [96], per Lawrence Collins LJ. Therefore, if
the claims pursued by BCS do amount to relitigation of issues already
decided by this court, we will have no reservation in issuing an ASI, even if
California may be the natural forum when considering some aspects of this
case. This court has an interest in protecting its judgment and preventing
an abuse of its own processes. In any event, in so far that the claims raised
by BCS in California concern issues already decided by this court, in the
circumstances of this case, the consideration of the natural forum is strictly
speaking immaterial.
BCS’s claims as an attempt at relitigating matters already decided in the

Judgment
66 As referenced by our comments above, we start by noting that the
claims pursued by BCS, as reflected in the Second Amended Complaint, fall
into four categories, which correspond to four series of events:
(a) the Intercepted Payment Claims, which pertain to BCS
Pharma’s interception of the US$2m which Nu Skin was supposed to
pay to BCS;
Baker, Michael A v
(b) the Trade mark Claims, which pertain to the purported

assignment of trade mark rights from BCS to Grey Pacific Labs and
Grey Pacific Science’s subsequent exploitation of the same;
(c) the claim in judicial estoppel, which pertains to Chantal’s
declaration to the US Bankruptcy Courts that the sale of the Ethocyn
Rights to Renslade (NZ) was above board; and
(d) the Wrongful Settlement Claims, which pertain to the
negotiation and conclusion of the Settlement Agreement.
Intercepted Payment Claims and Trade mark Claims

67 We agree with Baker that the Intercepted Payment Claims and the
Trade mark Claims are an attempt by BCS to relitigate matters that were
put in issue before this court and have been decided by this court. As noted,
perhaps ad nauseum, the Defendants were unsuccessful in trying to appeal
the findings and Judgment ([6] supra) against them. In the Second
Amended Complaint, BCS asserts that it is the proper owner of the Ethocyn
Rights and the US$2m. BCS alleged, in the Californian Proceedings, that
“no ownership interest [was] retained by [Chantal]” and BCS “did not hold
the rights in trust for [Chantal] or her estate”. This assertion, that it owns
the Ethocyn Rights and the proceeds therefrom absolutely, is a repeat of the
Singapore Defendants’ defence in the Suit. This assertion further
contradicts the finding of this court that the Ethocyn Rights and all
proceeds therefrom belong to the Estate beneficially. More egregiously, the
reliefs prayed for by BCS in the Second Amended Complaint include, inter
alia, restitution of the US$2m and the trade mark rights that were
wrongfully assigned. These prayers for relief also contradict the orders from
this court for the Singapore Defendants to account for the Trust Assets. As
pointed out by the plaintiff, by accounting for the Trust Assets and Trust
Moneys in SUM 25, the Defendants must be taken to have accepted that the
Trust Assets and Trust Moneys belong to the Estate. They have even gone
as far as seeking deductions for work done as trustee in relation to the Trust
Assets, including the intercepted US$2m.
68 However, in relation to the Trade mark Claims, we note that BCS’s
complaints do not just relate to the ownership of the Ethocyn Rights (which
amounted to relitigation of issues already decided by this court), but also
with Baker’s fraudulently holding out that he was an officer of BCS. This
aspect, in our view, does not amount to relitigation. Legal title to the
Ethocyn Rights remained with BCS, and to that extent any divesting of said
legal title should be properly done by BCS. It was not for Baker to “short-
circuit” the process and pretend to be an officer of BCS, a party against
whom he was embroiled in bitter litigation. Put another way, there is
nothing to stop BCS proceeding against Baker in his personal capacity, for
lying about his affiliation to BCS. In the same vein, in so far that Heika, as
an officer of Grey Pacific Labs, willingly entered into the assignment
agreement for the trade mark rights knowing that Baker is not an officer of
BCS, BCS should also be allowed to claim against her (and also Grey Pacific
Labs, if Heika’s state of mind can be attributed back to it). In this regard, we
note the characterisation of these claims put forward by Mr Thio SC:
Thio: … I mean, the easier example, I suppose, are the IP rights.

For example, I mean, if I have a third party’s property in
my house and I refuse to return that property, wrongfully
refuse to return that property, that third party cannot
break into my house or can’t pick the lock, take out the
prop---take the property and leave. Now, no damage has
been caused to me. … the locks were picked but they are
intact. I have suffered no financial loss. But there is
trespass. And that’s a rot that is a wrong that I am entitled
to seek redress against, even though I am not entitled to
any redress in relation to the property that was moved.
So, for example, the IP rights, if you fraudulently
masquerade as a[n] officer of the company, that is
a breach of well, that’s a tort. That tortious the company
the proper process of company the organisation of
companies is engaged. Now, trust law isn’t engaged.
…
… But if we do not succeed on judicial estoppel, and they
can said and they are allowed to say that this is a or wha--
-they prove to the---or they can rely on the judgment of
the Singapore Court to say all this is on trust, there are
still claims that well, there are still wrongs to be
addressed. We have genuine grievances that we are
entitled to seek … redress for. I heard---if either
company, I’m the legal owner of the company, I’m the
legal owner of or the company is a legal owner of
intellectual property rights at that point of time, there is a
proper way of transferring these, either by way of a court
order or by way of an agreement. But you don’t
masquerade, you don’t pretend to be my officer and take
those. You don’t come into my house and take my sta---
take your stuff without my permission.
We will address this in terms of the scope of the ASI that could be granted,
if we were so minded.
Judicial estoppel claim

69 We are also of the view that the claim in judicial estoppel is an attempt
by BCS to relitigate the issue of Chantal’s declaration to the US Bankruptcy
Courts. In oral arguments before us, Mr Thio SC emphasised that BCS did
not raise, and thus this court did not have to decide, the claim in judicial
estoppel. In response, Baker’s counsel, Ms Woo Shu Yan (“Ms Woo”),
argued that BCS could, and should, have raised the claim in judicial
Baker, Michael A v
estoppel before this court. As a result, having failed to raise the claim in
judicial estoppel earlier, BCS could not now be allowed a second bite at the
cherry.
70 We agree with Ms Woo. It is vexatious and oppressive for an ASI
defendant not just to relitigate issues which has been decided by the forum
court, but also issues which could, and should, have been brought before the
forum court (but were not): Raphael at para 5.19; Gee at para 14-094; Noble
Assurance v Gerling-Konzern [2006] EWHC 253 (Comm) (“Noble
Assurance”) at [95] (this principle can be analogised to the extended
doctrine of res judicata as pronounced in the seminal decision of
Henderson v Henderson ([34] supra)). This principle is expressed in
Raphael at para 5.19 in the following terms:
When a matter was not decided in the original … proceedings, but could and
should have been raised in those proceedings, it has been held that in
appropriate circumstances it can be an ‘abuse of process’ and thus vexatious
and oppressive, to seek to raise those matters in subsequent foreign litigation.
71 In our judgment, the claim in judicial estoppel could, and should, have
been raised by the defendants before this court, in the Suit. Mr Thio SC
argued otherwise, and there were, broadly speaking, two planks to his
arguments: (a) first, that the claim in judicial estoppel is not an attack on the
findings of this court such that it did not matter whether or not judicial
estoppel was raised before us in the Suit; and (b) secondly, that the claim in
judicial estoppel could not have been raised in Singapore. We find neither
of these planks convincing, and address them in turn.
72 We begin with Mr Thio SC’s argument that the claim in judicial
estoppel does not amount to an attack on the findings of this court. We find
it important to set out again, in a fair bit of detail, our exchanges with
Mr Thio SC on this point:
Loh, JAD: Alright. So let me ask you this. Was it not argued before
us that we certainly shouldn’t be allowing a party to make
a statement on oath to a US Court, mislead the US Court,
and now come to us and say, ‘Well, please forget all about
that’? Now, that argument was made before us.
Thio: Yes, but the preclusive effect of that ar---with the effect of
that statement is a little different. Because it goes to either
credibility or it’s something to persuade Your Honour
that, look, the trust cannot exist because you have to
make the---because Chantal said something directly
opposite to what she’s asserting here. But--- …
Loh, JAD: But I’m having difficulty with that, Mr Thio, because
what I just said was clearly said to us in the context of
public policy and illegality. ‘You shouldn’t allow a party
to go on oath and say these things’. And it was pointed
out to us in no uncertain terms that this paragraph, that
paragraph, et cetera, of what Chantal had filed in the
bankruptcy proceedings were lies. And therefore, as a
matter of public policy, we shouldn’t let somebody
disavow what she said. Now, I can’t see, I think that is the
point Justice Berger was bringing up, counsel also say, ‘By
the way, the United States, if they try to do this, there’s
judicial estoppel. And there’s no way they would be
allowed to disavow what they told the Court. And here
are the authorities.’
…
Loh, JAD: But the question is, you are now, no doubt to me in my
mind and speaking for myself, having a second bite of the
cherry on an issue that should have been raised here.
Thio: … In Singapore, the argument that was thought most
likely to succeed or to persuade Your Honours, which
failed eventually, was the public policy and illegality
argument.
But that is not the same as a judicial estoppel argument,
which is a distinct or a defined doctrine under US law. It
appears explicitly in the text of the decision cited. But---
and not in Singapore. It doesn’t appear here. So we couch
it in different terms. Like, we---they did a bad thing. You
ought not to countenance this behaviour. And therefore,
we wrap it up and try to bring it under the doctrine of
illegality. At---but that failed. And illegality is a complex
issue which has different requirements and it has
different consequences.
So it---it’s not the same doctrine, Your Honour. It---it’s
closely related on the facts but they are legally distinct.
I think that’s the best answer that I can offer
Berger, IJ: Wouldn’t you have to agree that if the trust, as this Court
has determined, if there is a trust, that all of your claims
would have to fail? … If there is a trust, then your clients
don’t have any interest in what’s been transpiring since
the existence of the trust has been decided. And even if
there were misrepresentations made to obtain a transfer
of the trademark or whatever, it’s of no consequence and
of no interest in terms of standing for your clients to
complain about it. Unless you can convince the Court
that it should ignore the existence of the trust.
Baker, Michael A v
Thio: Well, I think that is one reason why that---why

a declaration is being sought. Because the---my learned
friend says that the declaration goes completely contrary
to the finding of this Court. I beg to differ. Because what
the declaration says is that you cannot---I mean, the
Singapore Court’s jurisdiction is not being challenged.
You the---they can’t take a US Court decision saying the
exact opposite and come to Singapore and say the
Singapore Court should change its position. No, it’s
enforceable. BCS is a Singapore company. It’s enfor---
that decision is enforceable against them. They can’t run
away from it.
Well---and in a world where we have multiple cate---you
have multiple suits with a possibility of inconsistent
decisions, that’s something that we accept. We deal with
it, …
But the declaration is that they are judicially estopped
from asserting that there is a trust. So that’s different from
the question of whether there is a trust or not. It is
a preclusionary---it’s a preclusion. They are precluded …
Berger, IJ: No, I understand that the judicial estoppel position or
claim, if you were successful in the United States, would
mean that the client in Singapore would be unable to rely
on there being a trust because the plaintiff would be
estopped from bringing it up. So you could proceed as if
there’s been no determination of that trust because of
estoppel. And as we have discussed a minute ago, that’s
something that could have been presented to this Court
as another reason why the California Court would not
find this to be a valid trust on the basis that you cannot
raise this, having previously taken a contrary position.
But as things stand right now, where it wasn’t raised in
Singapore, you’re asking the US Court to ignore it on the
basis of judicial estoppel.
…
Thio: … I mean, of course, this is assuming, and this is still in
answer to Justice Berger’s point that, if we do not succeed
on the trust issue and that we and they---and that the---
everything is held on trust for the estate, I mean, is there
anything left?
…
Loh, JAD: Alright. So let’s leave that to one side. Your learned friend
has read out parts of your client’s current statement of
claim or points of claim. And it seems to say that you’re
disavowing there’s any trust.
Thio: Well, the---of course, in the original complaint, you will

find that they are this---the original complaint, which was
running, I suppose, in parallel to the Singapore
proceedings, does disavow the trust. But with the
(indistinct) complaint, as you can see from the remedy
that has been sought, where the remedy is that they are
judicially estopped from asserting the---a trust from
arising …
[emphasis added]
73 To begin with, Mr Thio SC conceded that the claims in illegality and
public policy on one hand, and judicial estoppel on the other, are “closely
related”. We do not think these claims are “closely related”, but instead are
the same facets or aspects which fall within the overlapping area of two
intersecting circles. In the Suit, the Defendants’ case, on illegality and public
policy, was that Chantal orchestrated Renslade (NZ) to purchase the
Ethocyn Rights, and made false declarations in the US bankruptcy
proceedings to approve the sale of the Ethocyn Rights to Renslade (NZ). To
that extent, the Trust Agreement, and by extension the Trust, would be
unenforceable (see Judgment at [242]–[245]). We have dealt with this issue
extensively in the Judgment at [258]–[269], having found that the
declarations by Chantal were false. In particular, we highlight that
arguments were made before us not only on illegality under Singapore law,
but also under California law, which pertained to both illegality and public
policy, as well as going to whether the trust was constituted for a valid
purpose. We note in particular the Defendants’ argument, as we
summarised at [283] of the Judgment, was that: “because Chantal’s false
statements to the Bankruptcy Court constituted a fraud on the court, public
policy prohibits enforcement of the Trust”. Having considered these
various submissions and having heard US counsel, we concluded that the
Trust was enforceable under Singapore and California law.
74 Turning to the judicial estoppel claim, BCS again relies on Chantal’s
false statements or misrepresentations to the US Bankruptcy Court to argue
that the Estate cannot assert the Trust as against the Defendants. As we
noted in the oral hearing, the Defendants could have easily added judicial
estoppel as another ground on which the Trust could not be enforced in
their arguments before us in the Suit. They had already put forward a litany
of complaints on the same factual basis, and we do not see any reason why
they could not have included judicial estoppel as well. In fact, the phrase
“illegality and public policy” could have very well been replaced with the
phrase “judicial estoppel”, and the Defendants’ arguments before us would
have remained the same (albeit buttressed by further submissions on the
legal aspects of judicial estoppel). As an illustration, the Defendants had
submitted in their reply submissions dated 27 December 2019 at para 227:
Baker, Michael A v
If the Plaintiff’s Allegations are true, then the statements made by

Ms Burnison in the US proceedings under penalty of perjury which
disavowed any interest in Renslade NZ or the Ethocyn Rights would have
been false, and made deliberately with the knowledge that they were false.
Ms Burnison’s fraudulent statements constituted clear breaches of US law,
including (a) perjury, (b) fraud on the court, (c) violation of 18 U.S.C. s 152,
and (d) violation of 18 U.S.C. s 157. [emphasis in original]
It would not have been surprising or out of place if the Defendants had
simply added a further argument that the same also gave rise to judicial
estoppel under California law that prevented Baker from asserting the
existence of the Trust.
75 Facing this hurdle, Mr Thio SC attempted to draw a distinction

between the argument on illegality and public policy, which answers the
question of “whether there is a trust or not”, and the argument on judicial
estoppel, which would preclude the plaintiffs from “asserting that there is a
trust”. As we have stated above (see [59]), we find this a distinction without
any difference and totally unconvincing. Both of these arguments stem
from the same fact, ie, that “Chantal said something [before the US
Bankruptcy Courts] directly opposite to what she’s asserting here [in the
Suit]”. Furthermore, this distinction suggests that the only thing that the
court is concerned with in terms of illegality and public policy is the
existence of the trust, whereas, in truth, this argument can also be
characterised as an issue of enforceability of the trust, which overlaps
significantly with what a plaintiff can or cannot assert in proceedings based
on the trust.
76 More importantly, however one characterised these various defences,

both of the arguments on illegality/public policy and judicial estoppel go
towards the existence and enforceability of the Trust as a matter of
substance, which are matters already canvassed in the Judgment. The
weakness of Mr Thio SC’s distinction is most clearly shown through his
exchanges with Berger IJ. When asked whether “if there is a trust … all of
[BCS’s] claims [in the Californian Proceedings] would have to fail”,
Mr Thio SC conceded that all of BCS’s claims would fail. But the existence
of the Trust was clearly a finding made by this court. Further, Mr Thio SC
also conceded that BCS would not have standing in any of the claims
brought in the Californian Proceedings unless “[BCS] can convince the
[Californian] Court that it should ignore the existence of the trust”. In the
same vein, Mr Thio SC accepted that “in answer to [Berger IJ’s] point that,
if we do not succeed on the trust issue and that … everything is held on
trust for the estate, I mean, is there anything left?” Put differently, the claim
in judicial estopped aims to achieve the substantial result that the Trust
Assets and Trust Moneys are not held on Trust for the Estate. But this court
clearly found to the contrary (see references cited at [21] above). Put
another way, it is clear from Mr Thio SC’s arguments, that the judicial
estoppel claim is a necessary step for BCS in the Californian Proceedings

because it would circumvent our findings concerning the Trust.
77 We make one further point on the timing of the judicial estoppel
claim. BCS only added this claim in the First Amended Complaint after the
Appeal was dismissed by the Court of Appeal. The timing suggests that the
claim in judicial estoppel was strategically concealed by BCS, to be deployed
in the event that the Appeal did not end in its favour.
78 For the reasons stated in [73]–[77] above, the claim in judicial
estoppel was an attack on the Judgment of this court, because it was, in
substance, seeking to establish that the Trust Assets and Trust Moneys were
not held on Trust for the benefit of the Estate. It therefore follows that this
claim should have been raised before this court in the Suit, where the issue
of the existence and enforceability of the Trust was exhaustively canvassed,
unless there is any reason why this claim could not have been heard in the
Suit.
79 This brings us to the second plank of Mr Thio SC’s argument, that
judicial estoppel could not have been raised in Singapore. We agree that if
there were legitimate reasons to not have pursued the claim in judicial
estoppel, then BCS should not be penalised for failing to raise the same
before us during the Suit. If, however, there is no legitimate reason, then
BCS would not be allowed to drip-feed issues in multiple fora, which would
be vexatious and oppressive. This is in line with the Henderson v Henderson
doctrine referenced above at [34]. In Henderson v Henderson ([34] supra)
at 382, Wigram VC observed:
[W]here a given matter becomes the subject of litigation in, and of
adjudication by, a court of competent jurisdiction, the court requires the
parties to that litigation to bring forward their whole case, and will not
(except under special circumstances) permit the same parties to open the
same subject of litigation in respect of a matter which might have been
brought forward as part of the subject in contest, but which was not brought
forward only because they have, from negligence, inadvertence, or even
accident, omitted part of their case. The plea of res judicata applies, except in
special case[s], not only to points upon which the court was actually required
by the parties to form an opinion and pronounce a judgment, but to every point
which properly belonged to the subject of litigation and which the parties,
exercising reasonable diligence, might have brought forward at the time.
[emphasis added]
80 This principle was elaborated in Goh Nellie v Goh Lian Teck and
others [2007] 1 SLR(R) 453 (“Nellie Goh”) at [53]:
… To put it shortly, a court should determine whether there is an abuse of
process by looking at all the circumstances of the case, including whether the
later proceedings in substance is nothing more than a collateral attack upon
the previous decision; whether there is fresh evidence that might warrant
re-litigation; whether there are bona fide reasons why an issue that ought to
Baker, Michael A v
have been raised in the earlier action was not; and whether there are some
other special circumstances that might justify allowing the case to proceed.
The absence or existence of these enumerated factors (which are not intended
to be exhaustive) is not decisive. In determining whether the ambient
circumstances of the case give rise to an abuse of process, the court should
not adopt an inflexible or unyielding attitude but should remain guided by
the balance to be found in the tension between the demands of ensuring that
a litigant who has a genuine claim is allowed to press his case in court and
recognising that there is a point beyond which repeated litigation would be
unduly oppressive to the defendant. In the context of cases such as the present,
the inquiry is directed not at the theoretical possibility that the issue raised in
the later proceedings could conceivably have been taken in the earlier but
rather at whether, having regard to the substance and reality of the earlier
action, it reasonably ought to have been. … [emphasis added]
These principles as laid down in Nellie Goh were subsequently approved by

the Court of Appeal in The Royal Bank of Scotland NV (formerly known as
ABN Amro Bank NV) and others v TT International Ltd (nTan Corporate
Advisory Pte Ltd and others, other parties) and another appeal [2015]
5 SLR 1104 at [102].
81 Here, Mr Thio SC explained that judicial estoppel was not raised

before this court as estoppel would be a matter of procedure governed by
the lex fori, ie, Singapore law, and Singapore law does not recognise judicial
estoppel. In this regard, Mr Thio SC relied upon the leading English treatise
on conflict of laws, Dicey, Morris & Collins on the Conflict of Laws vol 1
(Lawrence Collins gen ed) (Sweet & Maxwell, 15th Ed, 2012) (“Dicey”), for
the characterisation of the existing categories of estoppel as being
procedural. We do not think that Mr Thio SC’s explanation here passes
muster. Whether a rule of law is substantive or procedural in nature is to be
decided by the process of characterisation undertaken by the forum courts.
While the existing categories of estoppel recognised by English law are
procedural, this does not mean that judicial estoppel must necessarily be
procedural under Singapore law. In fact, Dicey expressly recognises that
whether a specific specie of estoppel can be characterised as a rule of
substance or procedure “may well vary with the type of estoppel under
consideration” (Dicey at para 7-038, citing Yeo Tiong Min, Choice of Law
for Equitable Doctrines (Oxford University Press, 2004) at 134–136). It was
thus open to the Defendants to raise the facts relating to the judicial
estoppel claim, and to raise the question of characterisation before us. The
fact is that they failed to do so at all, preventing this court from even
considering the proper characterisation of judicial estoppel.
82 In the circumstances, this was entirely unsatisfactory, given that the

Defendants had also made extensive submissions to this court during the
Suit about California law through their US counsel. In so far that the
Californian courts would have considered the claim in judicial estoppel,
there was no reason why this claim “could [not] have been presented to this
Court as another reason why the California Court would not find this to be
a valid trust” (see [72] above). Indeed, we have already observed at
[74] above that the claim of judicial estoppel would neatly fall in place
together with the other bases on which the Defendants sought to contest the
enforceability of the Trust. As a matter of substance and reality, we find that
the issue of judicial estoppel ought to have been raised before us (see Nellie
Goh at [53]), and that it “properly belonged to the subject of litigation”
(Henderson v Henderson at 382). To allow the Defendants to pursue this in
the Californian Proceedings, in the light of our view that those proceedings
amount in substance to a collateral attack on a Singapore judgment, would
be oppressive as well as an abuse of process and warrants this court’s
intervention. Raphael aptly states (at para 19.44, footnote 81) that:
In this regard, the Singapore courts have adopted the remark in the first
edition of this work that ‘the greater the positive and voluntary involvement
of the injunction respondent in the local proceedings, and the longer the local
suit has been allowed to proceed before the commencement of the parallel
proceedings, the stronger the case for an injunction’ (see PT Sandipala
Arthaputra v STMicroelectronics Asia Pacific [2015] 5 SLR 873 at [137]).
Wrongful Settlement Claims

83 However, we recognise that the Wrongful Settlement Claims does not
amount to an attempt at relitigating issues that we have already decided.
First, the facts giving rise to the Wrongful Settlement Claims were only
uncovered by BCS after the Appeal concluded. Baker did not dispute this.
More significantly, Baker also did not contend that these facts could have
been discovered by BCS with reasonable diligence. This court clearly did not
deal with the issue of the Wrongful Settlement Claims.
84 Secondly, the crux of the Wrongful Settlement Claims does not rest
with the ownership of the Ethocyn Rights, but rather with Baker’s
misrepresentation to Nu Skin that he was a representative of BCS. As far as
Nu Skin was concerned, its counterparty was BCS, who held legal title to the
Ethocyn Rights. To that extent, BCS was the proper party who should deal
with Nu Skin, even if BCS was only holding to the Ethocyn Rights on trust
for the Estate. Again, if the Estate wanted to deal with Nu Skin directly, the
proper course of action was for BCS to first divest legal title in the Ethocyn
Rights to the Estate. Baker was not entitled to “short-circuit” the process by
lying about his affiliation with BCS. Therefore, BCS would be entitled to
pursue the Wrongful Settlement Claims against Baker in his personal
capacity.
The Californian Proceedings are still at an early stage

85 For completeness, we are mindful of the principle that an ASI should
not be granted if foreign proceedings have proceeded to an advanced stage
because of considerations of comity: Sun Travel & Tours Pvt Ltd v Hilton
Baker, Michael A v
International Manage (Maldives) Pvt Ltd [2019] 1 SLR 732 at [82]. In this
case, the Californian Proceedings are still at an early stage, with BCS still
being able to amend its pleadings and discovery yet to begin. This is not a
situation where the Californian Proceedings have advanced to the trial stage
such that there would be a wastage of resources if BCS is restrained from
continuing with the proceedings, nor has the US court made any findings
which may be undermined by the ASI. The balance of convenience,
therefore, points towards the grant of the ASI.
86 A related consideration is that of delay. In this regard, we note that
SUM 37 was filed only on June 2021, almost two years after the Californian
Proceedings were commenced (see [29] above). However, we do not find
this to be fatal. As Ms Woo explained, instead of applying before this court
for an ASI, the plaintiff decided to apply in California for a stay of the
Californian Proceedings (even though we note that the plaintiff initially
applied to dismiss the Californian Proceedings on the ground of forum non
conveniens in October 2019 but failed, and the Californian Proceedings
were only stayed by consent in June 2020). Ms Woo further reminded this
court that there was another action in the US commenced by Dev Service
SA, a company owned and controlled by Weber, against a property at Lake
Arrowhead (“Arrowhead Property”) which was bought using the Trust
Moneys (“Arrowhead Litigation”). According to Ms Woo, the Arrowhead
Litigation was withdrawn after the Appeal was dismissed. For that reason,
the plaintiff expected that the Californian Proceedings would also be
withdrawn. But they were surprised when they were not. We accept
Ms Woo’s explanation as to why SUM 37 was not filed earlier, and on that
basis find that there is no delay sufficient to defeat the plaintiff’s application
for the ASI.
BCS should not be allowed to claim against the US Defendants

87 For the foregoing reasons, BCS should not be allowed to continue the
Californian Proceedings against the Estate. However, in the Californian
Proceedings, BCS is also claiming against the US Defendants. A question
thus arises as to whether BCS should also be restrained from claiming
against the US Defendants, notwithstanding that they did not appear as
parties to the Suit.
88 We are of the view that this question should be answered in the
affirmative. The forum court has the power to enjoin an ASI defendant
from litigating, in foreign proceedings, against those who are not parties to
the proceedings before the forum court: Gee at para 14-094; Noble Assurance
([70] supra) at [95]–[97]; Crescendo Maritime Co v Bank of
Communications [2016] 1 Lloyd’s Rep 414 (“Crescendo”) at [54]–[56].
89 In Noble Assurance, a London reinsurer commenced proceedings
abroad attempting to nullify the result of a London arbitration award
against the reinsured, who was party to the arbitration, as well as the
ultimate reinsured, who was not party to the arbitration. The English High
Court found that it was vexatious of the reinsurer to commence foreign
proceedings against the reinsured. Further, and more importantly, in so far
that the reinsurer joined the ultimate reinsured in the foreign proceedings
on the basis that they shared the same legal position, it was equally
vexatious of the reinsurer to claim against the ultimate reinsured as well. To
that extent, the English High Court found that it had jurisdiction to grant
a temporary injunction enjoining the reinsurer from claiming against both
the reinsured and ultimate reinsured. In Crescendo, the position in Noble
Assurance was accepted as part of the ratio of the latter case.
90 In our view, the reasoning in Noble Assurance applies with equal
(or even greater) force to the present case. Many claims against the US
Defendants are also premised on the footing that BCS/Renslade (HK) own
the Ethocyn Rights absolutely, which is contrary to the findings of this
court in the Suit. Further, the Daughters and the Grey Pacific Companies,
while not parties to the Singapore proceedings, are inextricably linked to
the Trust. Heika and Burka are the beneficiaries of the Estate, the latter of
which is the only beneficiary of the Trust. Heika gave evidence before us.
BCS Pharma and Grey Pacific Companies were incorporated to serve as
vehicles for Baker and the Daughters. Put another way, the US Defendants
are clearly parties who should have the benefit of the Singapore judgment
even if they are not, strictly speaking, privy to the same. The attempt to
make these claims against the US Defendants, in our view, clearly amount
to an attempt to denude our judgment of any real practical effect, since, if
successful, BCS’s argument would suggest that Chantal’s daughters, the
beneficiaries of the Estate, cannot then rely on our findings that the Estate
was the beneficiary of the Trust. To that extent, this court would be justified
in enjoining BCS from suing the US Defendants.
The ambit of the ASI

91 For the reasons set out above, we are of the view that many of the
claims pursued by BCS in the Californian Proceedings amount to an
attempt at relitigating matters already decided by this court, and thus
vexatious and oppressive and amount to an abuse of process. We also find
that BCS’s claims are vexatious and oppressive towards the Estate.
Moreover, these claims relitigating the same issues that have been decided
by this court amount to a collateral attack of this court’s Judgment
([6] supra). This justifies the issuance of an ASI against BCS, to restrain
BCS from relitigating the subject matter of the Suit against the Estate and
the US Defendants through the Californian Proceedings.
92 However, we have also noted that not all of the claims pursued by
BCS are attempts at relitigating issues already decided by this court. To that
extent, BCS is allowed to pursue these claims, which do not impinge on any
findings and rulings contained in the Judgment of this court.
Baker, Michael A v
93 In relation to Prayer 1 of SUM 37, we hereby grant the order as

follows:
(a) The first defendant, BCS, is hereby restrained, whether acting by
itself, its officers, its servants or agents or otherwise, from prosecuting
or continuing to prosecute proceedings under Case No. 2:19-cv-
06914-JWH-PR, commenced by BCS in the United States District
Court for the Central District of California in the United States of
America on 8 August 2019, against Baker both in his individual and
personal capacity and as well as his capacity as the Executor of the
Estate of Chantal Burnison, deceased, and against BCS Pharma,
Heika, Birka and the Grey Pacific Companies, in so far as such
proceedings relate to the existence, validity and/or enforceability of
the Trust in the Ethocyn Rights and assets held on behalf of Chantal
Burnison, and now, her estate, and any issues relating to the reliance
on and/or assertion of the said trust or any issues litigated before the
Singapore courts in SIC/S 3/2018, the Judgment dated 29 April 2020
and CA/CA 76/2020.
(b) For the avoidance of doubt, BCS shall not be restrained in Case
No. 2:19-cv-06914-JWH-PR, commenced by BCS in the United States
District Court for the Central District of California in the United
States of America on 8 August 2019, from pursuing claims against
Baker, BCS Pharma, Heika, Birka Burnison, and Grey Pacific
Companies for claims against Baker for allegedly holding himself out
as an officer of or for signing of the assignment agreement
transferring the trade mark rights, and the settlement agreement with
Nu Skin, and for claims against Heika, as an officer of Grey Pacific
Labs, for allegedly willingly entering into the assignment agreement
for the trade mark rights knowing that Baker is not an officer of BCS,
or for claims related thereto provided always that they do not relate to
the existence, validity and/or enforceability of the Trust in the
Ethocyn Rights and assets held on behalf of Chantal Burnison, and
now, her Estate, and any issues relating to the reliance on and/or
assertion of the said Trust or any issues litigated before the Singapore
courts in SIC/S 3/2018, the Judgment dated 29 April 2020 and
CA/CA 76/2020.
94 In relation to Prayer 2 of SUM 37, we hereby grant the following
order:
(a) The Defendants, BCS, and Renslade (HK) are hereby restrained,
whether acting by themselves, their officers, their servants or agents
or otherwise, and Weber is hereby restrained, whether acting by
himself, his servants or agents or as a director, officer or servant or
agent or shareholder of BCS and Renslade (HK) or otherwise, from
prosecuting or continuing to prosecute proceedings in the United
States of America or anywhere else in the world against Baker,
whether in his personal capacity and/or his capacity as Executor of the

Estate of Chantal Burnison, deceased, Heika and/or Birka in so far as
any such proceedings relate to the existence, validity and/or
enforceability of the Trust in the Ethocyn Rights and assets held on
behalf of Chantal Burnison, and now, her Estate, and any issues
relating to the reliance on and/or assertion of the said Trust or any
issues litigated before the Singapore courts in SIC/S 3/2018, the
Judgment dated 29 April 2020 and CA/CA 76/2020.
95 In relation to Prayer 3, costs shall follow the event. Costs are awarded
to the plaintiff to be borne by the Defendants, jointly and severally. If the
parties are unable to agree on costs, they are to file written submissions of
no more than five pages each, excluding authorities and any necessary
annexes, within one week from the date of this judgment.
96 There shall be liberty to apply, and generally.
Reported by Violet Huang Qianwei, Wu Yu Jie and Nguyen Sinh Vuong.

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[2022] 3 SLR 0103.

fm Page 103 Thursday, February 17, 2022 5:05 PM

[2022] 3 SLR SINGAPORE LAW REPORTS 103

Baker, Michael A (executor of the estate of

Singapore International Commercial Court — Suit No 3 of 2018 (Summons No 37

104 SINGAPORE LAW REPORTS [2022] 3 SLR

BCS to BCS Pharma (“the Intercepted Payment Claim”). The Californian

Held, allowing the application in part:

106 SINGAPORE LAW REPORTS [2022] 3 SLR

Crescendo Maritime Co v Bank of Communications [2016] 1 Lloyd’s Rep 414

[Editorial note: The defendants’ appeal in Civil Appeal No 70 of 2021 is scheduled

19 November 2021 Judgment reserved.

Introduction and the parties

2016 in Los Angeles, United States of America (“US”). Chantal is survived

The underlying dispute

108 SINGAPORE LAW REPORTS [2022] 3 SLR

Under this Trust Agreement, the Defendants were entitled to retain 5% of

The course of proceedings

110 SINGAPORE LAW REPORTS [2022] 3 SLR

17 The parties agreed that foreign law would be proved by way of

18 The trial of the liability tranche took place in Singapore from 11 to

19 This therefore meant that the affidavits of evidence-in-chief of Weber

20 The parties then filed their written submissions. The registered US

112 SINGAPORE LAW REPORTS [2022] 3 SLR

also breached his contractual obligation to return CHF9.5m

23 The Defendants appealed against this court’s Judgment in

114 SINGAPORE LAW REPORTS [2022] 3 SLR

judgment on the taking of accounts. There may well be an appeal thereon to

S/N Date Event

12. July 2020 The Court of Appeal dismisses the Defendants’

116 SINGAPORE LAW REPORTS [2022] 3 SLR

27. 24 September The US District Court allow BCS’s application to

The Initial Complaint

30 In the Initial Complaint, BCS referred to the contract it had with Nu

The First Amended Complaint

31 Subsequently, on 27 April 2021 (ie, after the Defendants’ Appeal was

32 In the First Amended Complaint, BCS no longer pursued the

33 The new assertions made were as follows:

118 SINGAPORE LAW REPORTS [2022] 3 SLR

S/N Claim Against Relief Remarks

7. Breach of Baker Damages Part of the Trade mark Claims

120 SINGAPORE LAW REPORTS [2022] 3 SLR

36 Baker and BCS Pharma, as well as the remaining US Defendants, have

The Second Amended Complaint

(b) concealed from Nu Skin the existence of the Californian

122 SINGAPORE LAW REPORTS [2022] 3 SLR

insists that it should be entitled to formulate and pursue its claims in

The legal principles

(e) whether the institution of the foreign proceedings is in breach of any

47 The reference in Lakshmi (at [50(e)]) to an “agreement between the

50 We accept that in situations of consecutive proceedings, there may

124 SINGAPORE LAW REPORTS [2022] 3 SLR

of foreign judgments. A court would be slow to interfere with the foreign

51 A paradigm example of a case involving consecutive proceedings,

52 The English Court of Appeal dismissed the defendant’s appeal.

53 Hence, besides restraining vexatious and oppressive conduct, the

In referring to the specific instance where the continued prosecution of

55 The key question, therefore, is whether the Californian Proceedings

126 SINGAPORE LAW REPORTS [2022] 3 SLR