Jaclyn Chua v Control Automation Pte Ltd

• Jurisdiction: Singapore
• Judge: Kim Bumsoo
• Judgment Date: 12 May 2022
• Neutral Citation: [2022] SGDC 97
• Court: District Court (Singapore)
• Docket Number: District Court Suit No 2570 of 2018, Summons No 541 of 2022 and 484 of 2022
• Published date: 26 May 2022
• Year: 2022
• Hearing Date: 12 May 2022,14 April 2022,07 March 2022
• Plaintiff Counsel: Joseph Liow (Joseph Liow LLP) (instructed), Rajvant Kaur d/o Jagit Singh (Omnia Law Chambers LLC)
• Defendant Counsel: Pua Lee Siang (Kelvin Chia Partnership)
• Subject Matter: Civil Procedure,Pleadings,Striking out,Discovery of documents
• Citation: [2022] SGDC 97

Deputy Registrar Kim Bum Soo:

Deny during discovery and produce when pressed. That was the theme of the Plaintiff’s (“Chua”) conduct during discovery. Throughout these proceedings, Chua proved to be evasive and recalcitrant, shifting her position constantly on everything from the relevance of the documents requested, to her possession of these documents and finally, in the hearings before me, the very existence of the documents themselves. Her conduct was egregious enough to warrant an unless order (“the Unless Order”). Now, pursuant to this order, the Defendant and Plaintiff in Counterclaim (“CAPL”) has brought DC/SUM 541/2022 (“SUM 541”) seeking to strike out Chua’s entire claim and defence to counterclaim.

I agree with CAPL that Chua’s conduct fell short of her discovery obligations. The Unless Order was breached. However, a complete striking out would be excessive and disproportionate. As such, I am minded only to strike out the defence to CAPL’s counterclaim.

Ultimately, proportionality is the touchstone for any Court tasked with imposing sanctions for breach of an unless order: Mitora Pte Ltd v Agritrade International (Pte.) Ltd. [2013] 3 SLR 1179 at [39] (“Mitora”). No doubt, a complete striking out would vindicate CAPL’s (understandable) frustrations. But it would also risk being unduly penal, and an unless order’s purpose is “not to punish misconduct but to secure a fair trial in accordance with due process of law”: Mitora at [45]. A more surgical approach, having regard to the actual prejudice suffered by CAPL, was therefore the more appropriate way of addressing these breaches. I explain further below.

Facts The parties and their dispute

Chua is CAPL’s ex-director. She left CAPL sometime in July 2017 and ran a separate business called J&J Automation (“J&J”) with her husband (the 2nd Defendant in Counterclaim, “Boon”).

Chua’s claim against CAPL is for her unpaid salaries from July 2017 to August 2017.¹ CAPL denies owing her anything and claims that the unpaid salaries (if any at all) should be set off against other sums it is owed. CAPL’s counterclaim, among other things, is that J&J has been siphoning business from CAPL.² Chua therefore breached her employment contract with CAPL (“the Employment Contract”), her obligations as a trustee of CAPL’s assets and her duties as CAPL’s director. Chua’s main response to this is that J&J was operated with CAPL’s full knowledge and was in fact, set up with CAPL’s managing director’s (“Leong”) blessing.

The procedural history

On 30 September 2021, Deputy Registrar Lewis Tan partially granted CAPL’s application for specific discovery. His order was extracted as DC/ORC 3490/2021 (“The Discovery Order”). These covered 16 categories of documents and broadly pertained to CAPL’s counterclaim.

On 21 January 2022, Deputy Registrar Elaine Lim (“DR Lim”) granted an unless order against Chua and Boon (this being the Unless Order described above), requiring them to comply fully with the Discovery Order save as to 3 of the 16 categories listed in the Discovery Order. Failing compliance, the Unless Order threatened to strike out “the Statement of Claim filed on 15 March 2018 and Reply and Defence to Counterclaim (Amendment No. 2) filed on 20 May 2021 […] with costs of the Action and Counterclaim to be paid by the 1st and 2nd Defendants in Counterclaim to the Plaintiff in Counterclaim”.³

Issues to be determined

The main issues are: Whether there was a breach of the Unless Order; and Whether the claim and defence to counterclaim ought to be struck out.

Issue 1: Whether there was a breach of the Unless Order

The Unless Order stated that:

1. Unless the 1st and 2nd Defendants in Counterclaim comply fully with [the Discovery Order] (except in relation to Annex A, Category 5 and Annex B, Gategories 9 and 10 thereof) [by 4 February 2022], the Statement of Claim filed on 15 March 2018 and Reply and Defence to Counterclaim (Amendment No. 2) filed on 20 May 2021 be struck out with costs of the Action and Counterclaim to be paid by the 1st and 2nd Defendants in Counterclaim to the Plaintiff in Counterclaim.

…

The Discovery Order was worded as follows: 1. That [Chua] does, within 7 days from the date of this Order of Court, file and serve a supplemental list of documents listing the documents stated in “Annex A" and “Annex B" annexed hereto which [Chua] has or had in her possession, custody or power, and in relation to the documents which she has had but no longer has in her possession, custody or power, stating when she had them and what has become of them, together with an affidavit verifying such list; 2. That [Boon] does, within 7 days from the date of this Order of Court, file and serve a supplemental list of documents listing the documents stated in “Annex A" and “Annex B" annexed hereto which [Boon] has or had in his possession, custody or power, and in relation to the documents which he has had but no longer has in his possession, custody or power, stating when he had them and what has become of them, together with an affidavit verifying such list; 3. That there be inspection of the aforesaid documents within 7 days of the service of the aforesaid supplemental lists of documents and affidavits verifying such lists

…

The Annexes described in the Discovery Order have been tabulated here for ease of reference. I have also indicated (with strikethrough) those items that DR Lim found to have already been disclosed:

Annex & Item No.	Description
A1	All documents relating to J&J’s accounts, transactions, sales, customer lists.
A2	All documents evidencing transactions between J&J and CAPL.
A3	All documents evidencing transactions between J&J and Yokogawa and its related entities.
A4	All bank account statements of J&J.
A5	All income tax returns and notices of assessment of J&J and Boon.
A6	All financial statements of J&J, including but not limited to the profit and loss statements and balance sheets
B1	Email from Chua to UOB of 28 July 2017.
B2	Full and complete email from Chua to Eva Yong of 10 July 2017 at 1.33 p.m.
B3	Reply from Eva Yong to Chua’s email of 10 July 2017 at 1.33 p.m.
B4	Email from Chua to June Then of 10 July 2017.
B5	Email forwarding the Supplier Aging list to Eva Yong of UOB mentioned in the Chua’s email to Eva Yong of 10 July 2017.
B6	All correspondence between Chua and UOB, including but not limited to the 18 messages between Chua and UOB relating to the subject “Enquiry on removal of guarantor / Control Automation Pte Ltd”
B7	Full and complete email from Sharon Lim to Chua and June Then of 20 July 2017 at 9.52 am.
B8	Full and complete email from Chua to Sharon Lim of 18 July 2017 at 9.15 a.m.
B9	Email from Chua to Eva Yong and Adam Tan of 28 July 2017 at 11.07 a.m.
B10	All correspondence between Chua and Adam Tan from 28 July 2017 to 31 July 2017.

There are two alleged breaches. First, none of the documents stated in the Unless Order were disclosed by 4 February 2022. A list of documents was only filed and served on 11 February 2022. Needless to say, inspection of documents was not completed by the 4 February 2022 deadline either (“The Punctuality Breach”). Second, even if the documents had been filed in time, they did not sufficiently fulfil Chua and Boon’s obligations under the Unless Order (“The Sufficiency Breach”). In my view, both of these breaches have been made out.

The Punctuality Breach

The starting point is that the list of documents was filed and served late. That would, strictly speaking, already amount to a breach of the Unless Order. To this, Chua’s ex-counsel’s (“Ms Moynihan”) explanation was that there had been some sort of error with the e-Litigation portal, and that the relevant documents had not been accepted by the portal.⁴ That was why Chua also filed DC/SUM 484/2022 (“SUM 484”) seeking an extension of time to file the relevant documents. Ms Moynihan’s explanation was believable and credible. Indeed, she exhibited contemporaneous emails suggesting that she genuinely believed that the list of documents had been filed and served by 4 February 2022. I accept her explanation in full and grant the extension of time sought in SUM 484.

But even then, the filing would still have been too late. The Unless Order required Chua and Boon to “comply fully” with the Discovery Order by 4 February 2022. That would mean that inspection ought to have been carried out and completed by then as well. Even if the documents had been filed by 4 February 2022 (Ms Moynihan’s email suggests that it was filed at about 10.56 pm on 4 February 2022),⁵ it would have been impossible for CAPL’s solicitors to have conducted the inspection by 4 February 2022.

It would, of course, sound petty to bemoan every late submission, and cry foul at every tardy filing. But this was not ordinary lateness. This was lateness in the face of an Unless Order where DR Lim had already given Chua and Boon a chance to make up for their poor conduct during discovery. And more importantly, trivial or not, this was still a lapse. The breach may well be minor and inconsequential, but that is something to be analysed at a later stage of the inquiry, for example when evaluating whether the possibility of a fair trial had been compromised. It does not change the fact that this was still a breach.

The Sufficiency Breach

Beyond this, I find that the documents disclosed are themselves, insufficient to meet the obligations imposed by the Unless Order, save as to: Item 2 of Annex A (“All documents evidencing transactions between [J&J] and [CAPL]”); Item 4 of Annex A (“All bank account statements of [J&J]”); and the entirety of Annex B.

Annex A Documents (Items 2 and 4) and Annex B Documents

Item 4 of Annex A was...