Giorgio Ferrari Pte Ltd v Lifebrandz Ltd

• Jurisdiction: Singapore
• Judgment Date: 10 October 2012
• Date: 10 October 2012
• Docket Number: Suit No 894 of 2009 (Registrar's Appeal No 219 of 2012)
• Court: High Court (Singapore)

Giorgio Ferrari Pte Ltd

Plaintiff

and

Lifebrandz Ltd and others

Defendant

[2012] SGHC 206

Andrew Ang J

Suit No 894 of 2009 (Registrar's Appeal No 219 of 2012)

High Court

Civil Procedure—Judgments and orders—Unless order—Whether appellant had complied with unless order—Whether appellant's conduct warranted enforcement of unless order against it

Civil Procedure—Striking out—Appellant's action dismissed for failure to comply with peremptory order—Whether appellant's conduct constituted contumelious conduct—Whether appellant had good reason for disobedience—Whether dismissal of appellant's claim was justified

The appellant commenced an action against the respondents based on alleged breaches of four separate contracts it had entered into with the second to fifth respondents. On 8 December 2010, certain specific discovery orders (‘Specific Discovery Orders’) were made for the appellant to produce various documents based on its pleadings. They were not complied with. On 27 January 2011, the appellant was ordered to comply with the Specific Discovery Orders by 10 February 2011. Again, it failed to do so. In or around April 2011, parties commenced negotiations for a global settlement. The Respondents averted that the discussions broke down in or around August 2011, but this was disputed by the Appellant who submitted that they continued past August 2011. Almost a year later on 12 January 2012, an unless order was issued for the appellant to comply with the Specific Discovery Orders by 9 February 2012 (‘the First Unless Order’). The appellant appealed against the First Unless Order. A final extension of time was given and an unless order for compliance with the Specific Discovery Orders by 20 February 2012 (‘the Varied Unless Order’) was made. On 13 April 2012, the respondents made an application for the appellant's claim to be dismissed for failure to comply with the Varied Unless Order. On 14 and 25 May 2012, the application was heard by the learned assistant registrar Eunice Chua and the appellant's claim was dismissed. The appellant appealed against the dismissal of its claim.

Held, dismissing the appeal:

(1) Non-compliance with an unless order would prima facie result in the action being dismissed or the defence being struck out. Unless there were good reasons for non-compliance, disobedience would be considered contumelious conduct: at [21] and [22].

(2) Notwithstanding the appellant's bare assertion to the contrary, the Varied Unless Order was in fact breached. The mere submission of documents was not enough, the substance of the documents had to satisfactorily comply with the Specific Discovery Orders: at [27].

(3) The appellant's argument that the documents yet to be produced were unnecessary for the calculations sought was unacceptable. Whether the documents were sufficient for those purposes was not a matter for the appellant's unilateral decision: at [34] and [35].

(4) The absence of affirmation by the appellant that the documents could be produced was not an excuse for non-compliance. Omitted documents proven to exist had to be accounted for, regardless of whether the party had agreed or affirmed that such specific discovery could be given: at [36].

(5) The period during which the appellant's conduct was relevant was that from the time that the First Unless Order was made until the deadline stipulated in the Varied Unless Order. Accordingly, the protracted negotiations that had occurred prior to that period could not be used to justify non-compliance with the unless orders: at [44].

Changhe International Investments Pte Ltd v Dexia BIL Asia Singapore Ltd [2005] 1 SLR (R) 598; [2005] 1 SLR 598 (refd)

Federal Lands Commissioner v Neo Hong Huat [1998] SGHC 131 (refd)

Soh Lup Chee v Seow Boon Cheng [2002] 1 SLR (R) 604; [2002] 2 SLR 267 (folld)

Syed Mohamed Abdul Muthaliff v Arjan Bhisham Chotrani [1999] 1 SLR (R) 361; [1999] 1 SLR 750 (refd)

Tang Liang Hong v Lee Kuan Yew [1997] 3 SLR (R) 576; [1998] 1 SLR 97 (folld)

Wellmix Organics (International) Pte Ltd v Lau Yu Man [2006] 2 SLR (R) 117; [2006] 2 SLR 117 (distd)

Wiltopps (Asia) Ltd v Drew & Napier [1999] 1 SLR (R) 252; [2000] 3 SLR 244 (refd)

David Liew (LawHub LLC) for the plaintiff/appellant

Chan Wei Meng and Ho Kheng Lian (Drew & Napier LLC) for the defendants/respondents.

Andrew Ang J

Introduction

1 This was an appeal against the learned assistant registrar Eunice Chua's (‘ARChua’) decision on 14 May 2012 allowing the respondents' (‘the Respondents’) application under Summons No 1819 of 2012 (‘SUM 1819/2012’) to strike out the appellant's (‘the Appellant’) claim and enter judgment against the Appellant. The Appellant appealed against my decision dismissing the appeal. I set out below the grounds of my decision.

Background facts

2 On or about 8 December 2006, the Appellant entered into four separate contracts (in similar terms) with the second to fifth respondents (‘the Second to Fifth Respondents’) respectively (‘the contracts’) under which the Appellant agreed to sell to each Respondent various alcohol products during the contract period running from 1 January 2007 to 31 December 2008 (‘the contract period’).

3 The Appellant commenced an action against the Second to Fifth Respondents on or about 22 October 2009, claiming for loss and damages of $5,818,973.48 (this being the sum of the balance of the contract value of each contract as a result of alleged breaches of contract by the Second to Fifth Respondents) and the sum of $699,308.99 representing the refund for certain advertising and promotion funds (‘A&P funds’) which the Appellant had provided to the Second to Fifth Respondents in support of all marketing activities related to the Appellant's products. The Appellant's position was that the claims were joint and several in respect of the Second to Fifth Respondents. The Appellant's claim against the first respondent (‘the First Respondent’) (the ultimate investment holding company of the Second to Fifth Respondents) was for loss and damages arising from the breach of the contracts by reason of an alleged oral agreement between the Appellant and the First Respondent.

4 The paragraph of the Appellant's Statement of Claim (Amendment No 4) (‘ASOC 4’) from which the dispute in discovery documents arose is reproduced as follows:

1. 18. The Plaintiffs will give credit for their costs and expense to be incurred had the Defendants fulfilled in full the Agreement and the four Contracts particularized herein, to be taken into consideration in their claim for damages resulting from the Defendants' breach of the Agreement and the four Contracts, to be assessed.

Particulars

...

1. (2) Had the Agreement and the four Contracts been fulfilled in full by the Defendants, the Plaintiffs would have to incur costs of purchase, shipping, delivery, taxes, insurances, storage charges, custom and excise duties for the volume of their products to be supplied under the Agreement and the four Contracts, as well as the Plaintiff's' costs of doing business in Singapore to supply, stock and deliver the said volume of their products which the Defendants did not purchase, in breach of the Agreement and the four Contracts, as particularized in paragraph 18 herein.

...

1. (4) The Plaintiffs' average gross profit margin during the period of the Agreement and the four Contracts (that is for the year 2007 to the year 2008) is an estimate of 49.64% of the total value of the Plaintiffs' products purchased by the Defendants in the sum of $4,681,026.52, after taking into consideration their costs and expense incurred.

2. (5) The Plaintiffs aver that had they fulfilled the Agreement and the four Contracts in full, the Plaintiffs would also have made an average gross profit of 49.64% of the total volume of the Plaintiffs' products which the Defendants did not purchase in breach of contract, of the sum of $5,818,973.48, which is estimated at $2,888,538.44.

[emphasis added]

5 Based on the above pleadings, the Appellant was required to disclose the documents which were used to arrive at the figure of 49.64% representing the Appellant's average gross profit. These would include documents evidencing the net sales, costs and expenses incurred, and gross profit made in relation to supplying alcohol products to each of the Second to Fifth Respondents pursuant to the contracts. As such, the Respondents applied for specific discovery of the relevant documents in Summons No 5029 of 2010 (‘SUM 5029/2010’). ARChua, who heard the application, made the following orders (‘the Specific Discovery Orders’) on 8 December 2010:

(a) the Appellant to file and serve on the Respondents an affidavit, stating whether it has or has had at any time in its possession, custody or power, the documents set out in AnnexA of SUM 5029/2010, by 5 January 2011;

(b) the Appellant to file and serve on the Respondents a Supplementary List of Documents, listing the documents set out in Annex A of SUM 5029/2010 which are in its possession, power or custody, by 12 January 2011;

(c) the Appellant to allow inspection of the documents listed in the said Supplementary List of Documents; and

(d) the Appellant to provide the Respondents with a copy each of the documents specified in the said Supplementary List of Documents.

6 There was no appeal against the Specific Discovery Orders. The Appellant nevertheless failed to file the said affidavit by 5 January 2011 and the said Supplementary List of Documents by 12 January 2011. During a pre-trial conference (‘PTC’) on 27 January 2011, the learned senior assistant registrar Ng Teng Teng Cornie (‘SARNg’) ordered the Appellant to comply with the Specific Discovery Orders by 10 February 2011. The Appellant subsequently filed and served its Third Supplementary List of Documents (‘SLOD 3’) and an affidavit verifying SLOD 3 on or about 10 February 2011, but failed to furnish copies of...