Ram Parshotam Mittal v Portcullis Trustnet (Singapore) Pte Ltd and others

• Jurisdiction: Singapore
• Judge: Paul Tan AR
• Judgment Date: 27 April 2015
• Neutral Citation: [2015] SGHCR 12
• Court: High Court (Singapore)
• Docket Number: Suit No 785 of 2011 (Summons No 568 of 2015)
• Year: 2015
• Published date: 01 May 2015
• Hearing Date: 20 March 2015,18 March 2015
• Plaintiff Counsel: Monica Chong (WongPartnership LLP)
• Defendant Counsel: Edwin Soh and Harsharan Kaur (Drew & Napier LLC)
• Subject Matter: Civil Procedure,Discovery,Conflicts of Law,Comity
• Citation: [2015] SGHCR 12

Paul Tan AR:

This was an application by the Plaintiff for the Defendants to produce for inspection several categories of documents that have been listed in Part 2 of Schedule 1 of the Defendants’ List of Documents filed on 12 December 2014 and the attachment to the document listed at S/N 65 of Part 1 of the same Schedule (the “Requested Documents”). These are documents that the Defendants object to producing for inspection on the grounds that it would contravene section 149 of the Labuan Companies Act (“Section 149”) and breach a Labuan Order of Court made on 8 September 2014 pursuant to Section 149 (the “Labuan Order”).

Relevance of the documents was not disputed before me given that the documents have been included in Schedule 1 of the list of documents. Before me, the Defendants did not dispute necessity save for the cause papers filed in the Labuan proceedings. I heard parties on 18 March 2015 and delivered my oral grounds on 20 March 2015. I was of the view that production of the documents should be ordered. I now render my written grounds for my decision.

Background

The plaintiff is the shareholder of an Indian Company called HQR and the brother of Ashok Mittal with whom he is in dispute over the ownership and management of HQR in separate proceedings.

The 1st Defendant is a Singapore incorporated company and is part of the Portcullis Group. The 2nd Defendant is a Labuan-incorporated company which ceased to be part of the Portcullis Group from 30 January 2015. The 3rd Defendant is the Chairman of the Portcullis Group.

Cardiff (a Labuan company) and Hillcrest (a Malaysian Company and the wholly-owned subsidiary of Cardiff) were set up in 2003 as a corporate structure to route offshore funds to HQR. The single ordinary share in Cardiff was held by Portcullis Trust (Labuan) Sdn Bhd until 19 march 2004 when the share was transferred to the 2nd Defendant who continued to hold the share until 15 February 2015 when the 2nd Defendant retired as trustee of the sole Cardiff share.

Proceedings in Labuan

On 23 July 2013, the Defendants filed an application in the Labuan Court for leave to disclose documents relating to the business and affairs of the 2nd Defendant, Cardiff and Hillcrest for the purpose of the present Singapore proceedings. On 11 October 2013, the Labuan Court granted an interim order precluding the Defendants from disclosing documents relating to the business and affairs of the 2nd Defendant, Cardiff and/or Hillcrest for the present actions (the “Interim Labuan Order”). The Defendants’ application was heard by the Labuan Court on 7 April 2014 and 7 May 2014 and dismissed on 20 May 2014, a subsequent appeal to the Malaysian Court of Appeal was dismissed on 13 February 2015.

During the trial of the suit commenced by Ashok Mittal against the Plaintiff and the Defendants in the Labuan Court, Ashok Mittal made an oral application for an order prevent the Defendants from disclosing to any party the details of Labuan proceedings commenced by: Ashok Mittal against the Plaintiff and the Defendants; and the 2nd Defendant against the Plaintiff and Ashok Mittal.

The Labuan Court granted the application which gave rise to the Labuan Order.

The Plaintiff’s submissions

The Plaintiff’s position was that inspection of the Requested Documents pursuant to O 24 r 11(2) of the Rules of Court should be ordered because the documents were relevant and necessary for the fair disposal of the present proceedings. The Plaintiff also submits that there was no evidence that the Defendants would be exposed to any risk of penal sanction under Labuan law even if they were to produce the Request Documents for inspection. The Plaintiff’s Counsel highlights that while the Defendants’ expert on Labuan law, Mr Rishwant Singh (“Mr Singh”) states in his report that the Defendants would be exposed to criminal sanctions if inspection of Requested Documents is ordered, he has not actually seen the documents himself. Further, he has not indicated how the Requested Documents fall within the ambit of Section 149 or the Labuan Order.

The Plaintiff’s Counsel points to the fact that in SUM 1595/2013 (“SUM 1595) and SUM 853/2014 (SUM 853), which were applications for production of documents and further and better particulars respectively, the same arguments were raised and rejected by the Court. Further, despite the Court ordering production of documents and the provision of further and better particulars, the Defendants have not been subject to any penal sanction.

The Plaintiff’s Counsel argued that Section 149 and the Labuan Order are in fact irrelevant to the application at hand because the law that applies to proceedings is the lex fori, Singapore law and not Labuan law.

The Defendants’ submissions

The Defendants’ position is that the Court in considering whether to order production of documents for inspection should consider whether there was a real risk of penal sanctions. The Defendants’ Counsel argued strenuously that the Requested Documents fell squarely within the ambit of Section 149 and the Labuan Order, thus the threat of penal sanctions was very real and would put the Defendants in a difficult position if production was ordered. The Defendants rely heavily on Mr Singh’s expert opinion in this respect.

He further argued that the reason no penal sanctions have been visited on the Defendants following their compliance with the orders made in SUM 1595 and SUM 853 was because the documents produced and particulars pleaded were not as significant in scale as in the current application. It was also argued that at the time they were determined, the Labuan Court had not made the Labuan Order.

The Defendants argue that Section 149 and the Labuan Order were relevant because the Singapore Courts have held that foreign court orders must, as a matter of comity, be recognised, respected and given weight to, citing The Reecon Wolf [2012] 2 SLR 289 (“The Reecon Wolf”) at [21].

The Defendants argued that the Singapore had no jurisdiction under Section 149 to order production of documents because the Labuan Court had decided that only the High Court of Malaysia and the High Court of Sabah and Sarawak were Courts of competent jurisdiction for the purpose of Section 149.

The Defendants also argue that production of the cause papers filed in the Labuan proceedings were not necessary for the fair disposal of the Singapore proceedings or in the alternative, should be produced only just before the parties exchange AEICs to prevent the Plaintiff from stealing a march on the Defendants.

My decision

As stated above, after hearing parties, I allowed the application, I ordered the Defendants to produce the Requested Documents for inspection by the Plaintiff and to allow the Plaintiff to take copies of the documents subject to the Plaintiff’s undertaking that they be used only for the purposes of S 785/2011.

Necessity of the Labuan Cause Papers

I deal first with the issue of necessity of ordering production of the cause papers filed in the Labuan proceedings since if necessity is not made out, the issue of any breach of Section 149 or the Labuan Order need not be dealt with.

The law on production of documents is that where the documents are shown to be relevant, the Court may order the production of the documents for inspection only if it is necessary for the disposing fairly of the cause or matter or for saving costs (O 24 r 11 read with r 13(1)).

The Defendant’s Counsel’s submission is that the Plaintiff’s request for the cause papers was nothing more than an attempt to preview the Defendant’s evidence and there was no need for the Plaintiff to have the documents for the conduct of the case.

I was puzzled as to when the...