1 Cars, books, wine and luxury watches – these are but, to name a few examples, highly sought-after items for collectors. For digital nomads, however, especially those steeped in the world of blockchain and cryptocurrencies, Non-Fungible Tokens (“NFTs”) have, in recent times, emerged as a highly sought-after collectors’ item. They are, to draw an analogy, the equivalent of a Rolex Daytona, or a F.P. Journe, to a horology enthusiast. Such is the hype around such NFTs that it is not uncommon to read about them being sold for sums of money that are puzzling to the unconverted. For fans of such NFTs, however, it seems that it is well worth the cost.

2 In the present case, the claimant was the proud owner of an NFT known as the Bored Ape Yacht Club (“BAYC”) ID #2162 (the “Bored Ape NFT”): ¹

3 The Bored Ape NFT was precious to the claimant. ² That was apparent from his affidavit. The claimant, however, had lost “possession” of the Bored Ape NFT – he therefore brought the present application for an injunction to restrain the defendant from dealing with it. ³

4 In the earlier case of CLM v CLN [2022] SGHC 46 (“CLM”), I had dealt with the question of whether stolen cryptocurrency assets, specifically Bitcoin and Ethereum, could be the subject of a proprietary injunction. Having considered the cases and the analysis in Ruscoe v Cryptopia Ltd (in liq) [2020] 2 NZLR 809 (“Ruscoe”), I was of the view (at [46]) that the claimant in that case was able to prove a serious arguable case that the stolen cryptocurrency assets were capable of giving rise to proprietary rights, which could be protected via a proprietary injunction.

5 The present application that was before me raised similar issues. This was unsurprising – given the rapid pace at which modern technology develops, disputes arising out of the application and deployment of such new technologies will become more common. The one pressing concern which most lawyers will encounter is whether the fabric of the common law can be extended, in a principled fashion, to cover disputes involving these technologies: see eg, Quoine Pte Ltd v B2C2 Ltd [2020] 2 SLR 20 (“B2C2 (CA)”) at [144]; Vincent Ooi, “Contracts Formed by Software: An Approach from the Law of Mistake” (2022) Journal of Business Law 97 at 112–113; Gary Chan Kok Yew and Yip Man (eds), AI, Data and Private Law: Translating Theory into Practice (Hart Publishing, 2021).

6 The claimant averred that the Bored Ape NFT was a unique and irreplaceable artwork. ⁴ The Bored Ape NFT was part of a collection of 10,000 other pieces of artwork depicting apes with different unique attributes. ⁵ The NFTs within the BAYC collection were hugely popular, and owned by a number of celebrities, including Justin Bieber who owned this particular NFT (reproduced below): ⁶

7 This, according to the claimant, spoke volumes as to the monetary value placed on NFTs within the BAYC collection, and the fact that such NFTs were also status symbols. ⁷

8 In relation to the technical aspects of such NFTs, each NFT within the BAYC collection was minted on the Ethereum blockchain with an individual, and unique hash number recorded on the blockchain together with a unique token ID which served as publicly verifiable proof of its provenance. ⁸ The Bored Ape NFT had the following hash number recorded on the blockchain: 11c6ce8133ae11a9008557dd1c0bdd4b81d‌88b9d1609ab4dac2‌7‌1‌6a‌4b3f14465. ⁹

9 In relation to the visual characteristics of the Bored Ape NFT, the claimant described it as being the only one of its kind in existence. ¹⁰ The Bored Ape NFT had, according to OpenSea – a marketplace for trading NFTs – the following special characteristics: ¹¹

(a) A “jovial mouth” – a trait which only 3% of BAYC NFTs had.

(b) “Red fur” – a trait which only 5% of BAYC NFTs had.

(c) A “beanie hat” – a trait which only 6% of BAYC NFTs had.

(d) “Bored Eyes” – a trait which only 17% of the BAYC NFTs had.

(e) A “Purple Background” – which only 13% of the BAYC NFTs had.

(f) It was a “virgin ape”. ¹² What this meant, in the claimant’s words, was that it was an ape that had not been “fed with any mutant serum” previously, and so the Bored Ape NFT retained its potential of producing another, unique piece of art. ¹³ This “mutant serum”, when applied to a NFT within the BAYC collection, produced a mutated version of the original ape – this was known as a Mutant Ape Yacht Club NFT (“MAYC NFT”). ¹⁴ This meant that each owner of an NFT in the BAYC collection could also own a MAYC NFT which was a unique asset, separate from the original ape. The claimant also stated that it was “very possible for BAYC to initiate more projects in the future to allow BAYC NFT owners to create more unique artwork, for example, those based on artificial intelligence and robots”. ¹⁵

10 The claimant acquired the Bored Ape NFT on 6 August 2021 when he purchased it for 15.99 ETH from a user operating under the pseudonym “victorjia_eth” on OpenSea. ¹⁶ The claimant was a regular user on NFTfi, which is a community platform functioning as an NFT-collateralised cryptocurrency lending marketplace. ¹⁷ He would often enter into loan transactions with other users to borrow cryptocurrencies with NFTs as collateral. ¹⁸ One NFT he would use as collateral was the Bored Ape NFT; its rarity and high value allowed him to obtain larger sums of cryptocurrency loans. ¹⁹

11 Because the Bored Ape NFT was extremely precious to the claimant, he would take special care when using it as collateral. ²⁰ For instance, he would generally only deal with reputable lenders which were highly ranked by NFTfi’s ranking system. Further, for every loan transaction in which he used the Bored Ape NFT as collateral, he was careful to specify the following terms as part of the loan agreement: ²¹

(a) The Bored Ape NFT would be transferred to NFTfi’s escrow account to be held until full repayment of the loan was effected.

(b) In the event that the claimant was unable to make full repayment of the loan on time, he would inform the lender who should provide reasonable extensions of time for repayment.

(c) At no point should the lender utilise the “foreclose” option of NFTfi’s Smart Program on the Bored Ape NFT without first granting the claimant reasonable opportunities to make full repayment of the loan and retrieve the Bored Ape NFT from the escrow account.

(d) At no point would the lender obtain ownership, nor any right to sell or dispose of the Bored Ape NFT. The lender could only, at best, hold on to the Bored Ape NFT, pending repayment of the loan.

The claimant would not, because the Bored Ape NFT was precious to him, enter into any loan agreement with lenders who were unwilling to agree on the aforementioned terms.

12 The claimant explained that the reason why he had to specify these terms was because NFTfi facilitated such loan agreements through smart contracts, which are computer programs that automatically carry out a given set of instructions upon the fulfilment of pre-set conditions (“NFTfi’s Smart Program”). ²² The NFTfi’s Smart Program allowed for the repayment of the loans as well as the unilateral “foreclosure” on the NFTs by the lender if the specified payment was not made by the stipulated date. ²³

13 The claimant, on the basis of these terms (set out above at [9]), had successfully borrowed and paid back numerous cryptocurrency loans using the Bored Ape NFT as collateral. The lenders complied with his terms, and at no point did they exercise, or purport to exercise the “foreclose” option on the NFTfi’s Smart Program, or attempt to remove the Bored Ape NFT from his possession. ²⁴

14 Things it seemed, were going swimmingly for the claimant – that is, until he began dealing with the defendant, whom he only knew by the pseudonym “chefpierre.eth”. ²⁵ Given the urgency in which the claimant took out the present application, exactly who was behind the pseudonym “chefpierre.eth” was unknown. However, it appeared that “chefpierre.eth” would post regularly on Twitter. ²⁶ And according to the claimant, it would be possible, given time, to obtain the identity of “chefpierre.eth”.

15 Sometime in or around early January 2022, the claimant reached out to “chefpierre.eth” to discuss the possibility of obtaining a loan. ²⁷ The claimant informed “chefpierre.eth” about his terms regarding the Bored Ape NFT (see [11] above), and made it abundantly clear that the Bored Ape NFT was extremely precious to him and that he did not wish to relinquish “possession” of it.

16 On 6 January 2022, having secured assurance from “chefpierre.eth” that the Bored Ape NFT would not be “foreclosed”, the claimant entered into a loan agreement with “chefpierre.eth” for 45 ETH. The loan was for a period of 90 days, with interest payable at 33% per annum. ²⁸ The claimant subsequently repaid this loan.

17 On 18 March 2022, “chefpierre.eth” offered the claimant another loan. Given their prior dealings, the claimant felt comfortable transacting with “chefpierre.eth”. Both parties entered into another loan agreement on 19 March 2022 (the “19th March Loan”), subject to the claimant’s usual terms (see [11] above) for 150,000 DAI. DAI is another cryptocurrency and 150,000 DAI was equivalent to USD$150,000. ²⁹ The loan period was 30 days, with interest payable at 45% per annum. ³⁰

18 On 17 April 2022, the claimant told “chefpierre.eth” that he would require a short extension of time to repay the 19th March Loan. In response, “chefpierre.eth” agreed to the extension, and reassured the claimant that the Bored Ape NFT would be returned to him once the loan was repaid in full. ³¹

19 Two days later, on 19 April 2022, the claimant informed “chefpierre.eth” that he had reached out to another user under the pseudonym, “homer”, for a loan to repay the outstanding amount owed under the 19th March Loan. ³² After some discussion, “chefpierre.eth” agreed to enter into a refinancing loan with the claimant. Under this new agreement, the claimant would take out a new loan with “chefpierre.eth”, with the Bored Ape NFT as collateral. “chefpierre.eth” would then deduct the outstanding amount owed in the 19th March Loan from the fresh funds provided to the claimant. ³³

20 “chefpierre.eth”, however, later changed his mind and issued an ultimatum, stating that he would not extend any refinancing loan and that he would exercise the “foreclose” option of the NFTfi’s Smart Program if the 19th March Loan was not fully repaid by 21 April 2022, 5 a.m Singapore time. ³⁴

21 Caught flat footed, the claimant was unable to find sufficient funds to repay the 19th March Loan. ³⁵ “chefpierre.eth” exercised the “foreclose” option of the NFTfi’s Smart Program and the Bored Ape NFT was transferred from NFTfi’s escrow account into his cryptocurrency wallet. ³⁶

22 The claimant said that he was devastated by this. But he still clung to the hope that “chefpierre.eth” would return the Bored Ape NFT once full payment was made. He therefore made part-payment of the 19th March Loan and reminded “chefpierre.eth” of the terms of their agreement. ³⁷ “chefpierre.eth”, however refused to discuss the matter further and informed the claimant that he would be keeping the Bored Ape NFT for himself. Thereafter, “chefpierre.eth” returned the part-payment which the claimant had made and prevented the claimant from making any further payments. ³⁸

23 Since then, the claimant discovered that “chefpierre.eth” had listed the Bored Ape NFT for sale on OpenSea (an online NFT marketplace). There were, according to the claimant, a number of offers made for the Bored Ape NFT. ³⁹

24 The claimant therefore filed a suit against the defendant, “chefpierre.eth”, and claimed that:

(a) He had an “equitable proprietary claim” over the Bored Ape NFT. ⁴⁰

(b) The defendant was liable to him in the tort of conversion, ⁴¹ breach of contract, ⁴² and unjust enrichment. ⁴³

25 Given the real risk of dissipation and disposal of the Bored Ape NFT, ⁴⁴ the claimant made an urgent application to court in summons no 1800 of 2022 (“SUM 1800”) for the following orders:

(a) A proprietary injunction prohibiting the defendant from in any way dealing with the Bored Ape NFT, until after the trial of originating claim no 41 of 2022 (“OC 41”). OC 41 was filed in the General Division of the Singapore High Court by the claimant against the defendant on the same date as SUM 1800. The injunction would apply to any appeals arising therefrom, such dealings including but not limited to selling or disposing of the Bored Ape NFT and using the Bored Ape NFT as collateral in transaction with any third party.

(b) Leave be granted for the claimant to serve (i) a copy of the originating claim and statement of claim; and (ii) a copy of the summons for injunction and any order(s) made therein (collectively, the “Court Documents”) on the defendant by the following means:

(c) The time for entry of an appearance in this action by the defendant be twenty-one (21) days after service of the court documents on him, inclusive of the day of service.

(d) Liberty to apply.

(e) The costs of and occasioned by this application be in the cause.

(f) Such further or other relief as the court deems fit.

26 I heard counsel for the claimant on 13 May 2022 and allowed the application. These are the reasons for my decision.

27 The claimant argued that, notwithstanding the fact that the domicile, residence and present location of the defendant was unknown, the Singapore court was the appropriate court to hear the application for the injunction on the basis that: ⁴⁵

(a) There was sufficient nexus to Singapore. The claimant is a Singapore citizen who carried on business from Singapore and owned property in Singapore. ⁴⁶ Further, he entered the transactions concerning the Bored Ape NFT in Singapore. ⁴⁷

(b) There was a serious question to be tried on the merits of the claim.

(c) Singapore was the forum conveniens. If the Singapore courts did not hear the case, there was no other appropriate forum. This was because the Bored Ape NFT existed as code stored on the Ethereum blockchain, which is essentially a decentralised network of ledgers maintained in computers around the world. ⁴⁸

28 The claimant also referred me to the case of Tulip Trading v Bitcoin Association for BSV & Ors [2022] EWHC 667 (“Tulip Trading”). The claimant in that case, Tulip Trading Limited (“TTL”), was the subject of a hack which rendered it unable to control, or use, a very substantial amount of Bitcoin which it claimed to own. TTL’s case was that the defendants, none of whom were within the jurisdiction, were the core developers and/or otherwise controlled the software in respect of the relevant digital asset networks. TTL filed a claim, alleging that the defendants owed it a fiduciary and/or tortious duties, and applied for service out of jurisdiction. Permission to serve out of jurisdiction was granted on 7 May 2021. However, several of the defendants challenged the court’s jurisdiction. This meant that the court had to reconsider whether, effectively by rehearing, permission to serve out should be given: Tulip Trading at [47]. The question then, which Justice Falk had to decide, was whether the requirements to obtain leave for service out of jurisdiction as summarised in VTB Capital plc v Nutritek International Corp & Ors [2012] EWCA Civ 808 at [99]–[101] were satisfied, namely:

(a) Was there a serious issue to be tried on the merits of the claim?

(b) Was there a good arguable case that the claim fell within one or more of the classes for which leave may be given set out in paragraph 3.1 of Practice Direction 6B (which supplements Part 6 of the Civil Procedure Rules on the service of documents, and sets out guidelines on service out of jurisdiction).

(c) That in all the circumstances, England was clearly or distinctly the appropriate forum for the trial of the dispute, and the court ought to exercise its discretion to permit service of the proceedings out of the jurisdiction.

29 Justice Falk set aside the order granting permission for service out of jurisdiction on the basis that TTL had not established a serious issue to be tried on the merits of the claim. But if there had been a serious issue to be tried (Tulip Trading at [167]), Justice Falk took the view that England was the appropriate forum for the trial of the dispute, and that the court ought to exercise its discretion to permit service of the proceedings out of the jurisdiction. In her view, the primary connecting factors were TTL’s presence in the jurisdiction, including that of its agent and primary witness, Dr Wright, who had lived in the jurisdiction since 2015 and intended to apply for citizenship. TTL also had the better of the arguments that the digital assets were located in the jurisdiction and that damage has been or will be sustained here.

30 In the present case, I was satisfied that the court had the jurisdiction to hear the present application. While the decentralised nature of blockchains may pose difficulties when it comes to establishing jurisdiction, to my mind, there had to be a court which had the jurisdiction to hear the dispute. In the present case, based on the available facts before me, that court was the Singapore court. The primary connecting factor was the fact that the claimant was located in Singapore, and carried on his business here.

31 The identity of the person behind the pseudonym “chefpierre.eth” was unknown. In their skeletal submissions, the claimant relied on the case of Bloomsbury Publishing Group Ltd v News Group Newspapers Ltd [2003] 1 WLR 1633 for the proposition that an injunction could be granted against unknown persons provided the description of these unknown persons was sufficiently certain to identify the persons falling within and outside of that description. ⁴⁹ The claimant also relied on my decision in CLM where I had concluded (at [31]) that the court had the jurisdiction to grant interim orders against the first defendants in that case, who were also persons unknown.

32 The application in CLM, however, was brought under the old Rules of Court (Cap 322, R5, 2014 Rev Ed) (“ROC 2014”). I had found that the ROC 2014 did not require the defendant to be specifically named (CLM at [28]). The application before me, however, being brought after the 1st of April 2022, was therefore subject to the new Rules of Court (Cap 322, Rules of Court 2021) (“ROC 2021”). Here, the claimant submitted that nothing in the ROC 2021 required a defendant to be specifically named. ⁵⁰

33 Under the ROC 2021, a writ of summons is now called an originating claim. The originating claim must be in Form 8: O 6 r 5(1) ROC 2021. Similarly, what was formerly referred to as an originating summons is now referred to, under the ROC 2021, as an originating application, which must be in either Form 15 (where the originating application must be served) or 16 (where service may be dispensed with): O 6 r 11(1). A glance at both Forms 8 and 15 reveals that the claimant’s name and identification number, as well as that of the defendant must be stated. O 3 r 6, however, states that the practice directions, which contains the relevant forms, “must be used with such variations as the circumstances require”.

34 As I noted in CLM (at [29]), in relation to O 2 r 1 of the ROC 2014:

35 However, under the ROC 2021, O 3 r 2(4)–(5) states:

36 It is apparent from the ROC 2021 that where there has been non-compliance with the Rules, the court has the power, the scope of which is set out under O 3 r 2(4) to deal with such non-compliance. In contrast, under O 2 r 1 of the ROC 2014, non-compliance with the requirements under the Rules was treated as an irregularity which would not nullify the proceedings or any order therein.

37 The question, therefore, was whether the failure to name the defendant, in the precise manner as stipulated in the relevant forms, meant that there was non-compliance with the Rules. In my view, this did not amount to non-compliance. Here, O 3 r 1 states:

38 As is made clear by O 3 r 1, the ROC 2021 is to be interpreted purposively, and the Court must seek to achieve the Ideals in all its orders and directions. To my mind, requiring strict compliance with the formality requirements of an originating application or claim may well restrict access to justice. As the present case has demonstrated, it is perfectly possible to have concluded a contract with someone else online, where both parties have concealed their true identities using pseudonyms. Should a claimant be barred from seeking interim relief, or bringing a claim, unless he is able to name the defendant, instead of using his pseudonym? I think not.

39 That said, this does not mean that the formality requirements may be dispensed of in their entirety. That would make a mockery of the Rules. Here, I would reiterate what I had earlier said in CLM (at [32]) – the description of the defendant must be sufficiently certain so as to identify both those who are included and those who are not. In CLM (at [34]), I was satisfied that the following description which had been used sufficed:

40 In the present case, the defendant was described as follows: ⁵¹

(a) The defendant was identified as the user behind the account “chefpierre.eth” on Twitter and Discord as of the date of filing of this Application.

41 I was satisfied that the present description had, with sufficient certainty, described persons falling within and outside that description. In the alternative, even if the Rules required the defendant to be named, and that the failure to do so meant that there was non-compliance with the form requirements set out under O 6 r 5(1) and O 6 r 11(1) of the ROC 2021, I was prepared to waive this instance of non-compliance.

42 The court therefore had, in my view, the jurisdiction to grant the interim orders sought against the defendant, who is an unknown person in this case, notwithstanding the introduction of the ROC 2021.

43 The General Division of the High Court has the power, pursuant to s 18(2) read with para 5(a) of the First Schedule of the Supreme Court of Judicature Act 1969 (2020 Rev Ed), to grant interim proprietary injunctions. To obtain such an injunction, however, the applicant must establish the following requirements (Bouvier, Yves Charles Edgar and another v Accent Delight International Ltd and another and another appeal [2015] 5 SLR 558 (“Bouvier”) at [143]–[164]):

(a) There is a serious question to be tried; and

(b) The balance of convenience lies in favour of granting the injunction.

44 The claimant argued that the requirements in Bouvier were satisfied. There was a serious question to be tried as the facts “deposed to by the Claimant [were] well-supported by contemporaneous written conversation[s] between the Claimant and the Defendant as well as actions taken by both parties in relation to [Bored Ape NFT] and the utilisation of NFTfi’s Smart Programs” ⁵² . Further, because the assets in this case were blockchain-based, there was a public and irrefutable record of the transactions and actions undertaken with regards to the Bored Ape NFT and the exchange of cryptocurrency. ⁵³ The claimant also argued that the balance of convenience lay in favour of granting the injunction: without it, the defendant would be able to dispose of the Bored Ape NFT. If that happened, the loss suffered by the claimant could not be compensated by an award of damages as the Bored Ape NFT was a unique and irreplaceable artwork. ⁵⁴

45 I turn now to deal with the first requirement set out in Bouvier. As I noted in CLM (at [39]):

46 The claimant therefore had to show that he had a seriously arguable case that he had a proprietary interest in the Bored Ape NFT. Naturally, this rested on the assumption that the Bored Ape NFT, or NFTs in general were capable of giving rise to proprietary rights which could be protected via a proprietary injunction.

47 The following issues therefore arose for consideration:

(a) Was the Bored Ape NFT, or NFTs in general, capable of giving rise to proprietary rights which could be protected by an injunction?

(b) Was it seriously arguable that the claimant had a proprietary interest in the Bored Ape NFT (bearing in mind that the court does not consider complex questions of fact or law at the interlocutory stage)?

48 I turn now to consider each issue, seriatim.

49 It is perhaps apposite, at this juncture, to delve a little into the technology behind NFTs. It should be noted that NFTs are associated not only with digital artwork, music and writing, but also contractual assets such as tickets to event as well as physical assets such as cars and yachts. Since the property in question is a digital artwork, I shall limit the discourse to such NFTs and use the very first NFT, of an artwork created by an artist going by the pseudonym “Beeple”, as an example.

50 Beeple created an artwork called “Everydays: The First 5000 Days” (“Beeple’s Artwork”) (a thumbnail of which is reproduced below):