Mitora Pte Ltd v Agritrade International (Pte) Ltd
Jurisdiction | Singapore |
Judge | Sundaresh Menon CJ |
Judgment Date | 03 July 2013 |
Neutral Citation | [2013] SGCA 38 |
Court | Court of Appeal (Singapore) |
Hearing Date | 06 February 2013 |
Docket Number | Civil Appeal Nos 85 and 86 of 2012 |
Plaintiff Counsel | Peter Madhavan and Walter Ferix Justine (Joseph Tan Jude Benny LLP) |
Defendant Counsel | Kelly Yap and Morgan Chng (Oon & Bazul LLP) |
Subject Matter | Civil Procedure |
Published date | 11 July 2013 |
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 (
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,
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”):
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:
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” (
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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...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]...
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...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......