Mitora Pte Ltd v Agritrade International (Pte) Ltd

JurisdictionSingapore
JudgeSundaresh Menon CJ
Judgment Date03 July 2013
Neutral Citation[2013] SGCA 38
CourtCourt of Appeal (Singapore)
Hearing Date06 February 2013
Docket NumberCivil Appeal Nos 85 and 86 of 2012
Plaintiff CounselPeter Madhavan and Walter Ferix Justine (Joseph Tan Jude Benny LLP)
Defendant CounselKelly Yap and Morgan Chng (Oon & Bazul LLP)
Subject MatterCivil Procedure
Published date11 July 2013
Introduction

These appeals related to the Appellant’s breach of two “unless orders” which resulted in the striking out of its Statement of Claim despite its belated and clumsy efforts at compliance.

Mitora Pte Ltd (“the Appellant”), was a company incorporated in Singapore providing business and management consultancy services. In late 2009 the Appellant’s director, Mr Andreas Thanos (“Mr Thanos”), met with one Mr Takeshi Sawanobori (“Mr Takeshi”), the managing director of Senamas Far East Inc (“Senamas”), through mutual associates.1 Senamas was incorporated in Japan (circa March 2005) and operates out of Tokyo.2 Broadly, it provides consultancy services to companies involved in the development of coal resources. According to Mr Takeshi, however, Senamas was set up primarily to provide consulting services to Agritrade International (Pte) Ltd (“the Respondent”). This arrangement purportedly arose out of discussions between Mr Takeshi and the Respondent’s director, Mr Ng Say Pek (“Mr Ng”).3

Mr Thanos was informed by Mr Takeshi that Senamas was having difficulty enforcing a debt against the Respondent. They decided that they could work together. “To keep matters simple” – a phrase made ironic by the proceedings which led to this appeal – it was agreed that Senamas would assign its debt against the Respondent to the Appellant.4 A deed of assignment was entered into on 9 April 2010 (“Deed of Assignment”) in consideration of US$100,000.5

The Respondent was a company incorporated in Singapore and engaged in the business of, inter alia, coal trading.6 In a consultancy agreement with Senamas dated either 3 March 2005 or 5 March 2005 (“the Consultant Agreement”), the Respondent appointed Senamas as a consultant in the development of the Respondent’s coal mines in the Republic of Indonesia. Senamas was also to act as the Respondent’s exclusive agent to develop and market the Respondent’s coal to Japan and Korea.7 The Appellant asserted that the Consultant Agreement provided that:8 the Respondent was to pay Senamas a commitment fee of US$50,000 per year starting 1 April 2005 up to April 2009; and the Respondent was to pay Senamas a monthly consultancy fee of US$12,500 on the first of each month starting from April 2005.

The Appellant’s main suit9 was founded on a sum of US$625,000 which purportedly remained unpaid to Senamas under the the Consultant Agreement.10 It claimed that the Respondent ceased performance of its payment obligations after September 2007.11

The Respondent denied that the Consultant Agreement consisted of any commitment fee, and further argued that the Consultant Agreement had been terminated in or around September 2008.12 A counterclaim was also advanced on the basis that Senamas had breached its obligations as the Respondent’s exclusive agent in Japan by providing consultancy services to other companies.13

Background to the appeal

The Appellant commenced its action on 22 July 2010.14 The first List of Documents and Affidavit verifying the same were filed on 31 March 2011. On 9 May 2011 the Respondent filed an application for discovery in Summons No 1960 of 2011 (“SUM 1960/2011”) which was heard before Assistant Registrar (“AR”) Sngeetha Devi.15 The application was granted on 26 May 2011 and the Appellant was ordered to file and serve a Supplementary List of Documents by 10 June 2011, disclosing the following eight categories of documents (“the 26 May 2011 Order”): all documents, including but not limited to correspondence exchanged between Mr Takeshi and/or Senamas and the Respondent, payment vouchers, invoices and receipts, in relation to Senamas’ and/or Mr Takeshi’s visits to Indonesia; all correspondence exchanged between Mr Takeshi and/or Senamas and the Respondent and/or Taiheyo Cement Corporation in relation to the shipment on board “MV Clipper Lagoon”; all correspondence between Mr Takeshi and/or Senamas and a further list of companies in relation to the promotion of the sale of the Respondent’s coal to the Japanese/Korean market; all correspondence exchanged between Mr Takeshi and/or Senamas and JFE Trading Co Ltd between 2005 to 2010, including but not limited to e-mail, letters, faxes, SMS and communications sent via Instant Messaging Clients; Senamas’ income tax statements for the years 2005 to 2010; Senamas’ monthly bank statements from April 2005 to April 2010; Senamas’ financial statements for the years 2005 to 2010, including but not limited to their financial reports, audited accounts, balance sheets and profit and loss statements; and all documents evidencing the incorporation of Senamas, including but not limited to the Memorandum and Articles of Association.

On 15 June 2011, AR Terence Tan granted an “unless order” which required the Appellant to comply with the 26 May 2011 Order by 20 June 2011 (“the first Unless Order”).16 On 20 June 2011 the Appellant filed the first Supplementary List of Documents which disclosed 290 documents pertaining to the documents and correspondence adumbrated from (a) to (d) above. In relation to the income tax statements, monthly bank statements, financial statements and Certificate of Incorporation, the Appellant filed Summons No 2680 of 2011 (“SUM 2680/2011”) seeking both an extension of time and a variation of the 26 May 2011 Order so that these documents need not be disclosed.

SUM 2680/2011 was heard by AR Lim Jian Yi who granted the Appellant a final extension of time to 4 July 2011 but preserved the extent of the discovery obligations stipulated in the 26 May 2011 Order (“the second Unless Order”).17 On the same day that the second Unless Order was granted, the Appellant filed a second Supplementary List of Documents which consisted of 490 items.18 These included Senamas’ Certificate of Origin (item 356) and its Memorandum and Articles of Association (item 444). However, the Appellant did not disclose any further documents until after the final deadline of 4 July 2011 had elapsed.

Instead, the Appellant filed Summons No 2997 of 2011 (“SUM 2997/2011”) to strike out the Respondent’s counterclaim on 8 July 2011. The Respondent retaliated with its own striking out application (Summons No 3159 of 2011 (“SUM 3159/2011”)). These applications were fixed before AR Shaun Leong (“AR Leong”). The first hearing was adjourned to allow the Appellant to file reply affidavits by 10 August 2011. On 10 August 2011, however, the Appellant filed its third Supplementary List of Documents, disclosing Senemas’ financial statements from March 2005 to April 2009; tax payments from March 2005 to April 2009; the passbook for Senamas’ Mitsui Sumitomo Banking Corporation Account; and text messages from Mr Takeshi.19

At the re-fixed hearing on 31 August 2011, counsel for the Respondent made an oral application for the third Supplementary List of Documents to be struck out as no extension of time had been granted to file it.20 The hearing was then adjourned to 20 September 2011. On 14 September 2011 the Appellant filed its fourth Supplementary List of Documents disclosing Senamas’ Accounts from 1 April 2010 to 31 March 2011 and a Certificate of Existence.21 It also filed Summons No 4115 of 2011 (“SUM 4115/2011”) seeking an extension of time to comply with the first and second Unless Orders.

AR Leong gave judgment in favour of the Respondent on 6 October 2011, dismissing SUM 2997/2011 and granting SUM 3159/2011 in terms. Accordingly, SUM 4115/2011 was also dismissed and both the third and fourth Supplementary Lists of Documents were struck out for being an abuse of process.22

The decision below

The Appellant filed three Notices of Appeal on 10 October 2011: Registrar’s Appeal No 321 of 2011 (“RA 321/2011”), against the dismissal of the Appellant’s application to strike out the Respondent’s counterclaim (SUM 2997/2011); Registrar’s Appeal No 322 of 2011 (“RA 322/2011”), against the decision to allow the Respondent’s application to strike out the Appellant’s Statement of Claim (SUM 3159/2011); and Registrar’s Appeal No 323 of 2011 (“RA 323/2011”) against the dismissal of the Appellant’s application for an extension of time to file its third and fourth Supplementary List of Documents (SUM 4115/2011).

At the first hearing before the Judge, on 4 April 2012, two categories of documents remained ostensibly undisclosed – Senamas’ income tax statements from May 2009 to 2010 and financial statements from May 2009 to 2010. The Appellant was given time to furnish these documents “[a]s a final opportunity to redeem itself” (Mitora Pte Ltd v Agritrade International (Pte) Ltd [2012] SGHC 178 at [4]). It should be noted, however, that both the financial statements from April 2009 to March 2010 and the income tax statements from May 2009 to 2010 had already been included in the Plaintiff’s Bundle of Documents for the 4 April 2012 hearing.

The Appellant then filed an affidavit on 9 May 2012 which contained Senamas’ income tax statements from 1 April 2009 to 31 March 2011 along with letters certifying that they had been translated from Japanese to English. However, only the English translated versions were exhibited.23 At the resumed hearing on 16 May 2012 it was clarified that the financial statements from April 2009 to March 2010 had already been provided, but could not be filed as a Supplementary List of Documents when the Appellant’s new solicitors took over.24

The judge below (“the Judge”) then granted a second adjournment to 23 May 2012 for the Appellant to file all documents required. The Appellant provided all the remaining documents, including translations, to the Respondent in a letter on 18 May 2012.25

At the third hearing before the Judge, however, the Respondent sought leave to amend its submissions to include two new arguments – first, that the Appellant had only disclosed Senamas’ bank passbooks (see [22] below) and not its monthly bank statements, which was unsatisfactory because the...

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2 cases
  • Mitora Pte Ltd v Agritrade International (Pte) Ltd
    • Singapore
    • Court of Appeal (Singapore)
    • 3 July 2013
    ... [2013] SGCA 38 Court of Appeal Sundaresh Menon CJ , V K Rajah JA and Tan Lee Meng J Civil Appeals Nos 85 and 86 of 2012 Mitora Pte Ltd Plaintiff and Agritrade International (Pte) Ltd Defendant Peter Madhavan and Walter Ferix Justine (Joseph Tan Jude Benny LLP) for the appellant Kelly Yap a......
  • Lam Wai Wing v Lam Tak Yuen
    • Hong Kong
    • Court of First Instance (Hong Kong)
    • 12 April 2021
    ...title id="_ftn1" onclick="Javascript:void(0)" style="color=black;">[1] See paras 70-75, B:66-67 [2] See para 26, B:60 [3] B:184 [4] [2013] SGCA 38 [5] Per Lam VP, at para [6] at para 26, B:100 [7] Para 26, B:60 [8]...
1 books & journal articles
  • Litigation
    • United Kingdom
    • Construction Law. Volume III - Third Edition
    • 13 April 2020
    ...Civ 881, per Pill LJ. As to the approach taken to “unless” orders in Singapore, see Mitora Pte Ltd v Agritrade International (Pte) Ltd [2013] SGCA 38, especially at [45]. By contrast, where a defendant has been tardy in the iling of its defence, it is not open to the court to order that the......

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