Allergan, Inc and another v Ferlandz Nutra Pte Ltd

JudgeGeorge Wei JC
Judgment Date13 January 2015
Neutral Citation[2015] SGHC 5
Citation[2015] SGHC 5
Docket NumberSuit No 34 of 2013 (Summons No 5175 of 2014)
Published date14 January 2015
Hearing Date10 November 2014,27 October 2014,17 November 2014
Plaintiff CounselAlban Kang Choon Hwee and Oh Pin-Ping (ATMD Bird & Bird LLP)
Date13 January 2015
Defendant CounselThe defendant in person.
CourtHigh Court (Singapore)
Subject MatterOrder 1 rule 9,Representation of companies,Civil Procedure
George Wei JC: Introduction

This is an application by the defendant for leave under O 1 r 9(2) of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) (“the Rules of Court”) for its officer, Mr Lee Boon Guan (“Mr Lee”) (who is the sole director and shareholder of the defendant), to act on the defendant’s behalf in Suit No 34 of 2013 (“the Suit”). This application raises two main issues. First, whether the procedural requirements for an O 1 r 9(2) application have been complied with; and second, whether the court should exercise its discretion to grant leave for Mr Lee to act on behalf of the defendant in the Suit.

The Suit concerns an action against the defendant for trade mark infringement, passing off and injurious falsehood. The first plaintiff is an American pharmaceuticals corporation. It manufactures an eyelash-growth product that is used to treat a medical condition known as hypotrichosis, which causes inadequate hair growth. The product is marketed under the LATISSE trademark. The LATISSE trademark is registered in Singapore under the Trade Marks Act (Cap 332, 2005 Rev Ed) (“the TMA”) in Class 5 in respect of “pharmaceutical preparations used to treat eyelashes”. The first plaintiff is the registered proprietor of the trade mark. The second plaintiff is a subsidiary of the first plaintiff and the distributor of the product in Singapore. The plaintiffs claim to have been using the LATISSE trademark in Singapore since January 2011.

The defendant is a limited exempt private company incorporated in Singapore carrying on the business of distributing “cosmeticeutical and neutraceutical” products. One of the defendant’s products is an eyelash-growth product distributed under the LASSEZ trade mark.

The plaintiffs claim that the defendant’s product under the LASSEZ trade mark infringes the registered LATISSE trade mark and also amounts to passing off. The claim for injurious falsehood against the defendant arises in connection with the defendant’s alleged distribution of a letter from the United States Food and Drug Administration (“the FDA”). The letter is said to create the impression that the plaintiffs’ product was considered risky, hazardous and unsafe. The plaintiffs’ position is that the issue over safety had long been resolved with the FDA, and that the product is the only FDA-approved product for the treatment of hypotrichosis.

The defendant denies registered trade mark infringement and passing off on the basis, amongst others, that the plaintiffs’ trade mark and the alleged offending trade mark are dissimilar and conceptually different. The defendant has also raised certain statutory defences to registered trade mark infringement, connected with alleged fair use and comparative advertising. The defendant also denies the existence of any injurious association, dilution or tarnishment of the plaintiffs’ trade mark. In the case of the claim for injurious falsehood, the defendant denies distribution of the FDA letter and the alleged injurious meaning. The defendant has also counterclaimed against the plaintiffs for making a groundless threat of suit for trade mark infringement under s 35 of the TMA.

The application before the court

The writ in the Suit was issued on 14 January 2013 with an endorsed statement of claim. The defence and counterclaim was filed on 6 February 2013. Prior to the present application under O 1 r 9(2) of the Rules of Court, there have been various interlocutory matters, and the parties had already filed their affidavits of evidence-in-chief in preparation for the trial which was fixed for end-November 2014.

The pleadings, affidavits of evidence-in-chief and interlocutory matters were filed or conducted by the defendant’s former solicitors. These solicitors discharged themselves from acting for the defendant on 22 August 2014.

After the defendant’s solicitors discharged themselves, the defendant filed Summons No 5175 of 2014, seeking leave under O 1 r 9(2) of the Rules of Court for Mr Lee to act on behalf of the defendant in the Suit. Mr Lee swore an affidavit in support of the application dated 8 October 2014 (“the First Affidavit”).

The First Affidavit stated that Mr Lee was a director of the defendant and that he was duly authorised to make the affidavit on behalf of the defendant. The affidavit also stated that Mr Lee was authorised to make an affidavit in support of the application for him to represent the defendant in the Suit. The First Affidavit did not, however, state why leave should be granted for Mr Lee to represent the defendant. The only relevant exhibit was a copy of an Accounting and Corporate Regulatory Authority (“ACRA”) report dated 14 September 2014 (“the ACRA Report”).1 The ACRA Report stated that the defendant had an issued share capital of 5,000 shares, and that Mr Lee was the sole shareholder and the only named director. The corporate secretary was named as Goh Bee Kwan. The rest of the First Affidavit set out various allegations relating to the merits of the plaintiffs’ claim in the Suit, which were of little or no relevance to the O 1 r 9(2) application.

I first heard the application in chambers on 27 October 2014. I adjourned the hearing to enable the defendant to file a further affidavit in support of the O 1 r 9(2) application that complied with the requirements set out in O 1 r 9(4) of the Rules of Court. I will examine these requirements in further detail below. It is sufficient to state at this juncture that the First Affidavit did not set out any reasons why Mr Lee should be allowed to act on behalf of the defendant. The First Affidavit was also sworn by Mr Lee, the very person for whom leave was sought by the defendant under O 1 r 9(2) of the Rules of Court.

On 31 October 2014, a further affidavit in support of the defendant’s O 1 r 9(2) application (“the Second Affidavit”) was affirmed and filed by Ms Lee Lay Hong (“Ms Lee”). The Second Affidavit stated that Ms Lee was the corporate secretary of the defendant, and that she was authorised to make the affidavit on behalf of the defendant.

The Second Affidavit was brief. It stated that Mr Lee was the sole director and business manager of the defendant since its incorporation in 2005. He had vast experience working in pharmaceutical companies and he had the necessary knowledge to act on behalf of the defendant in the Suit. The Second Affidavit also stated that the defendant had depleted its financial resources due to heavy legal expenses. The time spent on the proceedings was said to have affected the defendant’s business operations and revenue.

The Second Affidavit referred to an exhibit that was purportedly a copy of the defendant’s financial statement.2 The exhibit, however, was not a financial statement as such. It was a bank statement for a bank account maintained by the defendant with United Overseas Bank (“UOB”). The bank statement indicated that the defendant held only $3,420.40 in its UOB account as at 31 August 2014.3 There was no other information about the defendant’s financial position. There was also no other information about when Ms Lee had been appointed as the defendant’s corporate secretary. The only other information available on affidavit was Ms Lee’s address, which was stated to be the same as that of Mr Lee. Indeed, it will be recalled that in the ACRA Report referred to above at [9], the defendant’s corporate secretary was named as Goh Bee Kwan.

On 10 November 2014, the hearing resumed before me in chambers. After brief submissions, the hearing was again adjourned to provide the defendant with another opportunity to file an affidavit to explain Ms Lee’s position as the corporate secretary of the defendant, and to provide evidence of the defendant’s impecuniosity and reasons for the application.

On 14 November 2014, Mr Lee filed a supplemental affidavit in support of the application (“the Third Affidavit”). The Third Affidavit stated that Ms Lee was appointed as the corporate secretary of the defendant on 1 November 2014. A copy of her appointment letter was exhibited under the defendant’s letterhead and signed by Mr Lee.4

The Third Affidavit also asserted that the defendant had depleted its financial resources due to the incurrence of heavy legal expenses. It exhibited interim bills and discharge requests from the defendant’s former solicitors.5 Some of the correspondence from the defendant’s former solicitors to the defendant was heavily redacted. The Third Affidavit did not, however, exhibit any letter or correspondence in response from the defendant. In particular, there was no communication explaining why the defendant was not putting its former solicitors into funds; whether it was due to a lack of funds or other reasons.

Much of the Third Affidavit dealt with matters irrelevant to the application before me. These included issues concerning witnesses and the discovery of documents. At the second hearing, Mr Lee was keen to raise issues concerning the conduct of the plaintiffs’ counsel in respect of the disclosure of some documents. Those allegations had no relevance to the issues before me.

The plaintiffs have maintained a neutral position in the defendant’s O 1 r 9(2) application. While they did not object in principle to the application, counsel for the plaintiffs nevertheless pointed out that the affidavits filed in support of the O 1 r 9(2) application were non-compliant with the Rules of Court.

Although the application was not opposed, the decision of whether to grant leave under O 1 r 9(2) of the Rules of Court lies with the court. It therefore does not follow that leave will be granted as a matter of course when parties consent. In view of the novelty of O 1 r 9(2), and the absence of local authorities on the applicable principles, on 17 November 2014, I directed that the trial dates which had been fixed for end-November 2014 were to be vacated pending my decision on the application.

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3 cases
  • Offshoreworks Global (L) Ltd v POSH Semco Pte Ltd
    • Singapore
    • Court of Appeal (Singapore)
    • 22 September 2020
    ...observations of the High Court in relation to the amendments to O 1 r 9 of the Rules in 2014 in Allergan, Inc v Ferlandz Nutra Pte Ltd [2015] 2 SLR 94 (at [31]): The current wording found in O 1 r 9(2) of the Rules of Court was introduced in 2011. The 2011 amendments, however, restricted th......
  • Elbow Holdings Pte Ltd v Marina Bay Sands Pte Ltd
    • Singapore
    • High Court (Singapore)
    • 11 August 2015
    ...Bulk Trading SA v Pevensey Pte Ltd and another [2015] 1 SLR 538 (“Bulk Trading”) and Allergan, Inc and another v Ferlandz Nutra Pte Ltd [2015] 2 SLR 94. In Bulk Trading, Steven Chong J identified a range of factors the court ought to consider in deciding an application under O 1 r 9(2). The......
  • HG Metal Manufacturing Ltd v Gayathri Steels Pte Ltd and others
    • Singapore
    • High Court (Singapore)
    • 31 August 2016
    ...strictly complied with before an application may be considered (see Bulk Trading and Allergan, Inc and another v Ferlandz Nutra Pte Ltd [2015] 2 SLR 94 at [53]). I therefore agree with Mr Sim that the application was defective in that the affidavit had not been made by “any other officer” o......
1 books & journal articles
  • Civil Procedure
    • Singapore
    • Singapore Academy of Law Annual Review No. 2015, December 2015
    • 1 December 2015
    ...1 SLR 538 (‘Bulk Trading’). Both applications were dismissed by the court. 8.3 In the first case, Allergan, Inc v Ferlandz Nutra Pte Ltd[2015] 2 SLR 94 (‘Allergan, Inc’), the company sought leave under O 1 r 9(2) to be represented by its sole director and shareholder on the basis of financi......

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