Monex Group (Singapore) Pte Ltd v E-Clearing (Singapore) Pte Ltd

• Jurisdiction: Singapore
• Judgment Date: 14 September 2012
• Date: 14 September 2012
• Docket Number: Suit No 54 of 2008 (Summons No 2989 of 2011)
• Court: High Court (Singapore)

Monex Group (Singapore) Pte Ltd

Plaintiff

and

E-Clearing (Singapore) Pte Ltd

Defendant

[2012] SGHC 189

Judith Prakash J

Suit No 54 of 2008 (Summons No 2989 of 2011)

High Court

Contempt of Court—Breach of court order—Criminal standard of proof—Breach had to be intentional and wilful—Ambiguity of court order to be resolved in favour of person who had to comply with order—Committal order as measure of last resort

This application for a committal order arose from a judgment and court order obtained by the plaintiff against the defendant in the main proceedings (‘Suit 54’). The respondent in this application is one Wong Wei Ming, who was a director and shareholder of the defendant at all material times. A dispute arose from a contract under which the plaintiff had provided the defendant with the use of the plaintiff's Monex System. On 26 February 2010, it was adjudged and declared in Monex Group (Singapore) Pte Ltd v E-Clearing (Singapore) Pte Ltd[2010]SGHC 63 that the defendant was to account to the plaintiff for revenue earned from utilising the Monex system (to be assessed by the Assistant Registrar).

On 2 December 2010, the plaintiff obtained a Mareva injunction against the defendant, which included a disclosure order. On 27 April 2011, the plaintiff obtained a supplemental order from the High Court requiring the defendant to disclose the information required under the disclosure order within eight days of the service of the supplemental order. Both orders were served on the respondent who subsequently provided some but not all of the documents the plaintiff wanted.

Held, granting the application and making a suspended committal order under which the respondent was granted 30 days from the date of judgment to comply with the disclosure order, failing which the plaintiff would be entitled to apply for a further hearing to fix the sentence for contempt:

(1) The court had to apply the criminal standard of proof beyond reasonable doubt to determine if an individual had committed a contempt of court. The putative contemnor had to be shown to have the necessary mens rea, ie, it had to be established that the conduct complained of was intentional and the court order was wilfully or deliberately disobeyed: at [30].

(2) In deciding what a court order required, the court had to interpret the plain meaning of the language used and any ambiguity should be resolved in favour of the person who had to comply with the order. It was the plaintiff's duty when drafting the order to make the requirements of the order crystal clear: at [31].

(3) The respondent had breached the disclosure order by failing to disclose all documents relating to certain accounts that were subsisting on 2 December 2010 (being the date of the disclosure order). The respondent also did not explain exactly why he had failed to do so: at [32] to [39].

(4) A committal order was a measure of last resort when the court was faced with a recalcitrant and obstructive litigant who was in continuous breach of a court order. This was not the case here. A suspended committal order was more appropriate: at [40] and [41].

Monex Group (Singapore) Pte Ltd v E-Clearing (Singapore) Pte Ltd [2010] SGHC 63 (refd)

Pertamina Energy Trading Ltd v Karaha Bodas Co LLC [2007] 2 SLR (R) 518; [2007] 2 SLR 518 (folld)

Tan Beow Hiong v Tan Boon Aik [2010] 4 SLR 870 (refd)

Suchitra Ragupathy (Rodyk & Davidson LLP) for the plaintiff

Bernice Tan Huilin (Harry Elias Partnership LLP) for the defendant.

Judgment reserved.

Judith Prakash J

Background

1 The application before me is for a committal order and arises out of a judgment and subsequent court order obtained by the plaintiff in the main proceedings against the defendant. This action, Suit No 54 of 2008, was brought by the plaintiff, Monex Group (Singapore) Pte Ltd, to recover sums due to it from the defendant, E-Clearing (Singapore) Pte Ltd, pursuant to a contract under which the plaintiff had provided the defendant with the use of the plaintiff's Monex System in relation to the multi-currency credit card clearing services business carried on by the defendant. At all material times, one Mr Wong Wei Ming, the respondent in this application, was a director and shareholder of the defendant.

2 The defendant resisted the plaintiff's claim and the trial of the action took place in November 2009. The respondent was present in court during the trial though he did not give evidence. On 26 February 2010, judgment was given in favour of the plaintiff and it was adjudged and ordered, inter alia, that:

(a) The defendant was to account to the plaintiff for the revenue earned from the utilisation of the Monex System from January 2007 to March 2009.

(b) The amount due to the plaintiff would be assessed by the Registrar.

The defendant's counterclaim was dismissed and the defendant was also ordered to pay the plaintiff the costs of the claim and counterclaim (see Monex Group (Singapore) Pte Ltd v E-Clearing (Singapore) Pte Ltd [2010]SGHC 63 at [51]- [53]).

3 The plaintiff then turned its attention to obtaining a proper account from the defendant in relation to the revenue earned by the defendant through the use of the Monex System. Discovery orders were made in June and July 2010 and some information was obtained as a result. The defendant did not comply fully with the same, however. Subsequently, one Agnes Chua Guek Meng (‘Ms Chua’), the former general manager of the defendant, filed an affidavit on behalf of the defendant on 4 August 2010 for use in the assessment hearing. In this affidavit, Ms Chua stated that the Agreed Net Turnover earned by the defendant from the Monex System for the period from February 2007 to March 2009 was $2,331,781.16 and admitted that half of the same was payable to the plaintiff. When the assessment proceedings came on for hearing, however, no representative from the defendant turned up to participate in the assessment.

4 On 25 May 2011, the assistant registrar (‘the AR’) who had presided over the assessment assessed the amount payable by the defendant to the plaintiff as being $2,403,920.60 together with interest on the same at 5.33% per annum from the date of the writ to 26 February 2010 and costs and disbursements of the assessment fixed at $15,000.

5 In the meantime, on 2 December 2010, the plaintiff had obtained a Mareva injunction against the defendant. This injunction prevented the defendant from, inter alia, removing from Singapore or dissipating its assets up to the value of $1,306,934.93 (being half of the amount admittedly due to the plaintiff and interest thereon). As part of the injunction order, the defendant was ordered to make disclosure of certain information to the plaintiff (‘disclosure order’). I will set out the terms of the disclosure order in more detail below (at [12]) because this committal application arose from the alleged failure of the respondent to comply with the disclosure order. As at the date the application for committal was made, the defendant had not paid the plaintiff any part of the amount assessed by the AR or any costs awarded to the plaintiff.

6 The plaintiff served the disclosure order on the defendant's registered office on 20 December 2010. Subsequently, on 7 February 2011, at about 8.20 pm, a copy of the disclosure order was left at the respondent's residence together with a cover letter from the plaintiff's solicitors M/s...