Ng Chee Weng v Lim Jit Ming Bryan and Another

• Jurisdiction: Singapore
• Judge: Belinda Ang Saw Ean J
• Judgment Date: 29 January 2010
• Neutral Citation: [2010] SGHC 35
• Court: High Court (Singapore)
• Docket Number: Suit No 453 of 2009, Summons No 2957 of 2009/H and Summons No 2966/J
• Published date: 05 February 2010
• Year: 2010
• Hearing Date: 14 July 2009,30 June 2009
• Plaintiff Counsel: Cavinder Bull SC, Woo Shu Yan and Lin Shumin (Drew & Napier LLC)
• Defendant Counsel: Peter Low and Wong Shyen Sook (Colin Ng & Partners LLP)
• Subject Matter: Civil Procedure
• Citation: [2010] SGHC 35

Belinda Ang Saw Ean J: Introduction

Summons Nos 2957/2009 and 2966/2009 were brought by the defendants in this action, Bryan Lim Jit Ming (“D1”) and Josephine Teo Soo Geok (“D2”), to strike out certain paragraphs in the plaintiff’s Statement of Claim and in his supporting affidavit filed on 26 May 2009 in respect of a Mareva injunction application (“the plaintiff’s first affidavit”). The defendants also applied to strike out certain paragraphs in the first affidavit of one Ng Soo Kok (also known as Roy Ng) filed also in support of the plaintiff’s Mareva injunction application. The grounds for the striking out applications were that the paragraphs in question disclosed “without prejudice” communications between the parties for the purpose of settlement of a dispute. On 14 July 2009, I struck out the offending paragraphs in the Statement of Claim and in the two affidavits. I now publish the reasons for my decision.

Background facts

The facts pertinent to the striking out applications can be stated quite shortly. In the main action, the plaintiff, Ng Chee Weng, who is also known as Patrick Ng, claims to be the beneficial owner of 50% of the shareholding in SinCo Technologies Pte Ltd, a company incorporated in Singapore. Patrick Ng’s pleaded case is that the shares were being held on trust for him by D1, and that D1 had failed to pay to him the dividends paid out on the shares from 2003 to 2007. In his prayer for relief, Patrick Ng claimed, amongst other things, dividends totalling $8.8m against D1 and his wife, D2. The Writ of Summons was issued and served on 26 May 2009.

Paragraphs 29 and 30(2)-30(5) of the Statement of Claim referred to and gave particulars of various meetings and telephone conversations between the plaintiff and D1. Specifically, the plaintiff pleaded that D1: Did not deny that he held shares on trust for the plaintiff; Did not deny that the plaintiff was entitled to the dividends paid on the shares he held on trust for the plaintiff; and Made offers to settle the plaintiff’s claim for those dividends.

The same events together with other exchanges were repeated in paras 62, 69-74, 77-90 and 100 of the plaintiff’s first affidavit dated 26 May 2009 (“the plaintiff’s first affidavit”). Roy Ng, who claimed to be a mutual friend of the plaintiff and D1, also made reference to some of the same events at which he was present, in paras 6 and 18-42 of his first affidavit dated 26 May 2009 (“Roy Ng’s first affidavit”). For convenience, the offending paragraphs in the Statement of Claim, in the plaintiff’s first affidavit and Roy Ng’s first affidavit are hereinafter referred to collectively as “the Relevant Paragraphs”. Counsel for the defendants, Mr Cavinder Bull SC, had in his written submissions summarised the respective deponents’ version of the discussions with D1 as follows: On 23 March 2009, at a meeting between Patrick Ng, D1 and Roy Ng (as mediator), D1 offered to pay Patrick Ng the sum of $3.5m in settlement of Patrick Ng’s claim that he was entitled to dividend payments from 2003 to 2007. Patrick Ng indicated that he was willing to accept a settlement payment of $3.5m. On 31 March 2009, at a meeting between Patrick Ng, D1 and Roy Ng, Patrick Ng turned down the earlier offer of $3.5m. D1 made a second offer of $4.5m to settle the dispute. On 15 April 2009, Roy Ng forwarded to D1 a message from Patrick Ng informing him that Patrick Ng was rejecting the offer of $4.5m. On the same day, Roy Ng called D1 to inform him that Patrick Ng proposed a global sum of $6.5m to settle the dispute. D1 rejected this offer to settle the dispute. On 16 April 2009, Patrick Ng copied D1 on an email sent to one Terence Ng that he (Patrick Ng) had turned down D1’s offer to settle the dispute at $4.5m, and that he had proposed to settle the dispute at $6.5m but D1 had rejected his proposal.

Mr Bull took issue with the Relevant Paragraphs, emphasing that they referred to discussions between D1, the plaintiff as well as Roy Ng, which were made for the purpose of trying to settle and resolve the dispute between the plaintiff and D1, and are therefore privileged and inadmissible in evidence. Mr Bull also pointed out that there were no documents creating the alleged trust. The trust was alleged to have been constituted orally between 2002 and 2003. D1 for his part had asserted that he bought the shares from the plaintiff for valuable consideration. D1 further asserted that the issue of dividend payments was raised at the first meeting between the plaintiff, Terence Ng and D1. According to D1, the first meeting was on 16 March 2009, and not on the 23 March 2009. Be that as it may, on the plaintiff’s version, his claim for the refund of dividend payouts to D1 was put on the table at the first meeting. The plaintiff had deposed that before he left that meeting, he told D1 to “work out” and “compensate” him for the dividends due to him.¹ It was D1’s case that between March and April 2009, Patrick Ng and D1 entered into a series of settlement negotiations. It was at the 23 March 2009 meeting that Roy Ng attended for the first time as mediator. The plaintiff’s first affidavit and Roy Ng’s first affidavit stated that the discussions at the various meetings were on the “settlement” of Patrick Ng’s claim for dividends; that a mutual friend, Roy Ng, was called in to “mediate” the dispute; and that various settlement “offers” and “proposals” were made and rejected.

Counsel for the plaintiff, Mr Peter Low, took the contrary...