Barun Electronics Co Ltd v EZY Infotech Pte Ltd

• Jurisdiction: Singapore
• Judge: S Mohan JC
• Judgment Date: 30 July 2020
• Neutral Citation: [2020] SGHC 154
• Court: High Court (Singapore)
• Docket Number: Suit No 621 of 2019 (Registrar’s Appeal No 367 of 2019)
• Published date: 05 August 2020
• Year: 2020
• Hearing Date: 12 March 2020,17 February 2020
• Plaintiff Counsel: Leong Yu Chong Aaron and Cherisse Foo Ling Er (Oon & Bazul LLP)
• Defendant Counsel: Charmaine Chan-Richard and Sharmila Sanjeevi (Legis Point LLC)
• Subject Matter: Civil Procedure,Summary judgment
• Citation: [2020] SGHC 154

S Mohan JC: Introduction

The underlying claims in this action relate to, inter alia, the manufacturing of memory cards and Ink Die cards by the plaintiff/respondent (the “plaintiff”) from semi-conductor wafers sold to the plaintiff by the defendant/appellant (the “defendant”).

In Summons 4653 of 2019, the plaintiff applied for summary judgment against the defendant (the “defendant”) for a claim amounting to USD 490,443.42 in respect of various unpaid invoices. In the alternative, the plaintiff sought summary judgment for a lower sum of USD 378,247.40 after taking into account the defendant’s quantified counterclaims.¹ At the hearing below, the assistant registrar granted the plaintiff summary judgment for the full extent of its claim (the “judgment”).² The defendant appealed against the assistant registrar’s decision.

In Summons 479 of 2020 (“SUM 479/2020”), the defendant applied for leave to adduce further evidence for the appeal. This evidence took the form of a further affidavit from the defendant’s director and Chief Financial Officer.

Both the appeal and SUM 479/2020 came before me on 17 February 2020. I first dealt with SUM 479/2020 and, after hearing the parties, I allowed the application. I then proceeded to hear the appeal proper, also on 17 February, and reserved judgment. I delivered judgment orally on 12 March 2020, allowing the appeal in part. I granted the defendant conditional leave to defend part of the plaintiff’s claim amounting to USD 25,343.92. Consequently, I substituted the judgment granted by the assistant registrar with judgment against the defendant for the sum of USD 465,099.50 (the “revised judgment”). I declined to order a stay of execution of the revised judgment pending the determination of the defendant’s counterclaims.³

As the defendant has since filed an appeal against my decision (in CA/CA 57 of 2020), I provide my written grounds of decision.

Background

The plaintiff is a company incorporated in the Republic of Korea. It was, at all material times, in the business of developing and selling semi-conductor equipment and providing semi-conductor packaging services.⁴ The defendant is a company incorporated in Singapore and is in the business of selling computer hardware and related equipment.⁵

From time to time, the defendant purchased semi-conductor wafers from SK Hynix Asia Pte Ltd (“Hynix”), and sold them to the plaintiff. The defendant would then issue invoices to the plaintiff when the wafers were delivered to the latter.⁶ The plaintiff would use these wafers to manufacture memory cards, which it then sold to the defendant.⁷ The plaintiff would thereafter issue its invoices to the defendant for the memory cards manufactured and sold when they were delivered to the defendant.⁸

The Hynix semi-conductor wafers that were sent to the plaintiff contained ink die, a raw material that could be extracted, tested, and used to fabricate lower-grade, but still commercially viable, micro-SD cards (“Ink Die Cards”). The plaintiff assisted the defendant with the extraction of ink die from the wafers delivered to it, and conducted tests on the extracted ink die to determine the net quantity of viable ink die that could be used to manufacture Ink Die Cards (the “Ink Die Services”). When the plaintiff had completed the extraction and tests, it notified the defendant of the amount payable for the Ink Die Services and provided the defendant with a fee quote for manufacturing the Ink Die Cards from the viable extracted ink die.⁹

In its Statement of Claim (Amendment No. 1), the plaintiff claimed that various invoices had been issued by the defendant to the plaintiff and vice versa. The invoices issued by the plaintiff to the defendant from 13 November 2018 to 20 February 2019 amounted to USD 3,639,168.82. The defendant, on the other hand, issued four invoices to the plaintiff amounting to USD 3,098,725.40. After these sums were set-off against each other and taking into account a further sum of USD 50,000 which had been paid by the defendant to the plaintiff on 8 January 2019, a net sum of USD 490,443.42 was owed to the plaintiff by the defendant.¹⁰ The defendant did not dispute the quantum of the unpaid invoices.¹¹ Of the total sum claimed by the plaintiff, USD 465,099.50 relates to the manufacturing and sale of memory cards from 13 November 2018 to 22 January 2019 (the “Time Period”).¹² The remaining USD 25,343.92 relates to one invoice (the “USD 25,343.92 Invoice”) issued by the plaintiff for the Ink Die Services and manufacturing of the Ink Die Cards.¹³

The defendant argued that it should be granted unconditional leave to defend the plaintiff’s claim as it had a plausible counterclaims amounting to a defence of legal or equitable set-off, and that it had raised triable issues of law and/or fact in its defence.¹⁴ Alternatively, the defendant argued that the execution of any judgment granted in the plaintiff’s favour should be stayed pending the hearing and disposal of the defendant’s counterclaims.¹⁵

In respect of the plaintiff’s claim for the outstanding invoices amounting to USD 465,099.50 (the “USD 465,099.50 Invoices”), the defendant claimed (i) that the plaintiff had failed to deliver manufactured memory cards to the defendant on time (the “delay counterclaim”), and (ii) that there was a shortfall in the quantity of memory cards delivered to the defendant (the “shortfall counterclaim”). As a result, the defendant suffered loss and damage which it was entitled to set-off against the plaintiff’s claim.¹⁶ The defendant quantified the shortfall counterclaim at USD 17,999.50.¹⁷ It did not quantify the delay counterclaim apart from quantifying its alleged losses as a result of the cancellation of certain purchase orders by one customer (see [53] below).

As for the plaintiff’s claim on the USD 25,343.92 Invoice, the defendant contended that of the full invoice amount, the plaintiff was not entitled to USD 21,284.95 as the Ink Die cards delivered to the defendant were faulty or defective (the “faulty cards defence”).¹⁸ In addition, the faulty or defective Ink Die cards caused the defendant loss of profits amounting to USD 14,625.52, which it was entitled to raise as a counterclaim and set-off against the USD 25,343.92 Invoice (the “faulty cards counterclaim”).¹⁹

The Issues

The issues to be decided by me in this appeal are as follows: Whether the defendant should be granted leave to defend the plaintiff’s claim, whether in full or in part; and If leave to defend is not granted to the defendant or only granted for part of the plaintiff’s claim, whether a stay of execution should be granted on the judgment (or part thereof) obtained by the plaintiff pending the hearing and disposal of the defendant’s counterclaim.

Splitting the Plaintiff’s claims

As a preliminary point, O 14 r 3 of the Rules of Court (Cap 322, R5, 2014 Rev Ed) (the “ROC”) provides that unless on the hearing of an application under O 14 r 1 of the ROC the defendant satisfies the court that there is an issue or question in dispute that ought to be tried with respect to the claim or part of a claim to which the application relates, or there ought for some other reason to be a trial of that claim or part, the court may give judgment for the plaintiff against that defendant on that claim or part as may be just having regard to the nature of the remedy or relief claimed.

On a plain reading of O 14 r 3 of the ROC, having regard to the nature of the remedy or relief claimed by a plaintiff, the court may in an appropriate case give a defendant leave to defend a part of the plaintiff’s claim and grant summary judgment over the residue. There is, therefore, no obstacle in this case to this court assessing the plaintiff’s claim for the USD 465,099.50 Invoices and the claim for the USD 25,343.92 Invoice separately. During the hearing, the defendant’s counsel, Ms Charmaine Chan-Richard, also separated the treatment of the plaintiff’s claims in her submissions in a similar fashion. I will therefore consider each of these claims in turn, but before I do so, I first touch on the applicable legal principles.

The Law

The legal principles governing an application for summary judgment are well-settled. The plaintiff has to first demonstrate a prima facie case for summary judgment. If he cannot do so, the application ought to be dismissed. Once the plaintiff has crossed that threshold, the tactical burden then shifts to the defendant opposing the application (M2B World Asia Pacific Pte Ltd v Matsumura Akihiko [2015] 1 SLR 325 (“M2B”) at [17]-[18]).

In order to obtain leave to defend, a defendant must “establish that there is a fair or reasonable probability that he has a real or bona fide defence” (M2B at [17]).

Our courts have repeatedly emphasised that leave to defend would not be granted if “all the defendant provides is a mere assertion, contained in an affidavit, of a given situation which forms the basis of his defence” (M2B at [19], citing Prosperous Credit Pte Ltd v Gen Hwa Franchise International Pte Ltd and others [1998] 1 SLR(R) 53 at [14]). Therefore, bare assertions in an affidavit will not get a defendant very far in resisting an application for summary judgment against him. The assertions must be supported by some evidence, whether direct or indirect, and the evidence itself must be reasonably capable of belief (Singapore Civil Procedure 2020, vol 1 (Chua Lee Ming editor-in-chief) (Sweet & Maxwell, 2019) (“Singapore Civil Procedure”) at para 14/4/5).

Following from the principles above, the court will not grant leave if the assertions in the affidavit are equivocal, lacking in precision, inconsistent with undisputed contemporary documents or other statements from the same deponent, or inherently improbable in themselves (M2B at [19] citing Bank Negara Malaysia v Mohd Ismail [1992] 1 MLJ 400). As pointedly noted by Sundaresh Menon JC (as he then was) in ...