Robert Bosch GmbH and another v YSH Pte Ltd

• Jurisdiction: Singapore
• Judge: Andrew Ang J
• Judgment Date: 08 June 2011
• Neutral Citation: [2011] SGHC 148
• Court: High Court (Singapore)
• Docket Number: Suit No 400 of 2010 (Registrar’s Appeal No 54 of 2011)
• Published date: 03 March 2017
• Year: 2011
• Hearing Date: 07 April 2011
• Plaintiff Counsel: Adrian Wong and Andrea Baker (Rajah & Tann LLP) and Nurul Asyikin (Gateway Law Corporation)
• Defendant Counsel: Mark Goh (Intelleigen Legal LLC)
• Citation: [2011] SGHC 148

Andrew Ang J: Introduction

The plaintiffs, Robert Bosch GmbH and Robert Bosch (SEA) Pte Ltd (“the Plaintiffs”), appealed against the judgment of the assistant registrar (“the Assistant Registrar”) in Suit No 400 of 2010 (“Suit 400”). The AR had allowed an application taken out by YSH Pte Ltd (“the Defendant”) to discontinue the Plaintiffs’ action on the basis that the parties had agreed to a valid settlement agreement on 7 January 2011.

After hearing the submissions of the Plaintiffs and the Defendant, I allowed the Plaintiffs’ appeal. I now give my reasons.

Factual background

Suit 400 was initiated by the Plaintiffs against the Defendant for trademark infringement, passing off and copyright infringement.

There was some attempt by the parties to reach a settlement agreement. In particular, in a letter dated 29 December 2010 (“the Offer”), the Plaintiffs’ solicitors wrote to the Defendant’s solicitors stating the following:

Our clients have instructed us to counter-propose the following terms, in full and final settlement of the current action:

1. Your client publishes a quarter-page advertisement in The Straits Times and one local Chinese daily newspaper, which clarifies that the ‘SINGTECH’ wiper blades are wholly unrelated to Bosch’s Aerotwin wiper blades, the exact wording of which is to be approved by our clients. 2. Your client pays for the publication of the abovementioned advertisements. 3. Your client is to provide accurate and useful information regarding the identity and business practices of the China suppliers or printers which supplied the packaging that are the subject of the current action. The said information will only be accepted, if its veracity is confirmed by our clients’ China associates. 4. Our clients and your client are to withdraw all claims arising out of the current action. 5. Each party will bear their own costs in the matter.

The Defendant’s counsel, Mark Goh (writing on behalf of his instructing solicitors Intelleigen Legal LLC which firm he later joined), replied in a letter dated 7 January 2011 to the Plaintiffs’ solicitors (“the Reply”). The Defendant alleged that this constituted an acceptance of the Offer. The relevant sections of the Reply are as follows: 2. Our clients’ instructions are as follows: a. Our clients are agreeable to your clients’ item 1. b. Our clients are agreeable to your clients’ item 2. c. As regards item 3, our client is only able to assist you in so far as to information already available to you through your seizure. d. Our clients are agreeable to items 4 and 5. 3. Finally, as all the matters have been substantially agreed, we trust that all action, including SUM No. 5796 of 2010/C will cease.

In a separate application, Summons No 388 of 2011 dated 26 January 2011, the Defendant applied, pursuant to O 21 r 3 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) (“the Rules”), for Suit 400 to be discontinued on the basis that a compromise agreement had been reached as evidenced from the parties’ correspondence.

Decision of the AR

The AR allowed the Defendant’s application and directed that Suit 400 be discontinued on the basis that the parties had agreed to a settlement on 7 January 2011. The third item of the Offer (ie, “Your client is to provide accurate and useful information ...” reproduced above at [4]) was interpreted to mean that the Defendant was to provide whatever information it had regarding the China suppliers. The Reply was not a counter-offer or rejection because the Defendant had already given the Plaintiffs what they wanted.

Parties’ submissions on appeal

The Plaintiffs submitted first, that the Defendant had not accepted the terms of the Offer; and second, that the terms of the alleged compromise agreement were too uncertain to be enforceable.

The Defendant submitted the following: first, that all the requisite conditions for a compromise were present and, accordingly, there was an identifiable agreement that was complete and certain; and second, that the Plaintiffs’ had acted mala fides and had an “ulterior motive to force and/or bargain for a better deal” than that which had allegedly crystallised on 7 January 2011.

Decision of this court The technical point regarding O 21 r 3

I found it curious that the Defendant applied to discontinue the Plaintiffs’ action under O 21 r 3 of the Rules. Even more puzzling, this application was actually granted by the AR. It is plain that O 21 r 3 only allows one to discontinue one’s own action, not another party’s. This is clear from the wording of O 21 r 3(1), reproduced below:

Discontinuance of action, etc., with leave

3.—(1) Except as provided by Rule 2, a party may not discontinue an action (whether begun by writ or otherwise) or counterclaim, or withdraw any...