Sinojaya Sdn Bhd v Metal Component Engineering Pte Ltd & A Third Party

• Jurisdiction: Singapore
• Judge: Woo Bih Li JC
• Judgment Date: 15 July 2002
• Neutral Citation: [2002] SGHC 148
• Docket Number: Suit No 111 of 2002 (Registrar's
• Date: 15 July 2002
• Published date: 19 September 2003
• Year: 2002
• Plaintiff Counsel: Ong Ying Ping (Ong Tay & Partners)
• Citation: [2002] SGHC 148
• Defendant Counsel: Joseph Liow (Straits Law Practice LLC)
• Court: High Court (Singapore)
• Subject Matter: Evidence,Whether communications privileged,Meeting discussing settlement of plaintiff's claim,Whether defendant waived privilege by circulating minutes of meeting to plaintiff and another party,No reference to communications being on without prejudice basis,Privilege,Without prejudice communications

application for summary judgment – Whether communications privileged – Whether meeting resulted in concluded agreement – Whether defendant had waived privilege

Facts

The plaintiff ("Sinojaya") claimed the price of five machines sold and delivered to the defendant ("MCE"). MCE alleged that it was the agent for an undisclosed principal when it agreed to buy the machines from Sinojaya. Subsequently, MCE disclosed to Sinojaya that it was purchasing the machines as agent for the third party ("Hoyo"). MCE also alleged that Sinojaya then dealt directly with Hoyo, delivered the machines to Hoyo and issued quotations and invoices to Hoyo for two of the five machines. Hoyo also arranged to pay Sinojaya for the remaining machines by instalments. One instalment was paid but not others.

On 31 January 2002, Sinojaya commenced this action naming MCE as the only defendant. On 22 February 2002, representatives of Sinojaya, MCE and Hoyo met to discuss Sinojaya's claim. After the meeting, MCE prepared and forwarded the minutes of the meeting to Sinojaya's representative as well as to Hoyo.

Sinojaya subsequently applied for summary judgment. Sinojaya sought to refer to what was said at the meeting and, in particular, the minutes of the meeting in its affidavits. MCE took the position that the meeting of 22 February 2002 was on a without prejudice basis. Accordingly, MCE applied to strike out certain paragraphs in certain affidavits which referred to the meeting and the exhibit of a copy of the minutes.

At first instance, MCE's application was dismissed on the ground that there was a concluded agreement. MCE appealed.

Held, allowing the appeal:

(1) The intention of the meeting of 22 February 2002 was genuinely to try and reach a settlement not only as between Sinojaya and MCE but involving Hoyo as well. MCE would not agree to pay Sinojaya without securing an agreement from Hoyo to pay MCE in turn. The absence of any reference to the phrase "without prejudice" was therefore not fatal to MCE's position (See [30] – [31])

(2) The fact that some parts of the minutes used the word "agrees" was not conclusive on whether there was a concluded agreement. The minutes were not drafted by solicitors. The opening words of the minutes stated, "This is the discussion ..." and not "agreement". The substance of the minutes showed quite clearly that there were two outstanding issues which were vital. First, MCE's solicitors were to send a payment schedule by 25 February 2002, and it was open to Sinojaya to reject it if it was not to Sinojaya's liking. Second, Hoyo had to agree to the terms recorded in the minutes by signing and returning a fresh sales agreement between MCE and Hoyo for three of the machines. If, as it turned out, Hoyo did not signify its agreement, the whole deal was off. In the circumstances, there was no concluded agreement on 22 February 2002 between Sinojaya and MCE (See [32] – [35], [37] – [38]).

(3) Sinojaya had not acted on the alleged agreement when their solicitors sent a fax dated 25 February 2002 to MCE's solicitors. This fax was to follow up on what had been discussed and had sought MCE's payment schedule for Sinojaya to consider. The fax also gave MCE the alternative of filing its Defence. MCE responded by filing the Defence. As the fax did not assert a concluded agreement, there was nothing for MCE to dispute at that time. Thus, although MCE's solicitors first alleged that the meeting was on a without prejudice basis only more than a month later by a fax dated 27 March 2002, there was no waiver by MCE of the without prejudice privilege (See [28], [43] – [44]).

(4) The circulation of the minutes to Hoyo did not put the minutes in the public domain just because Hoyo was not a party to the proceedings at that time. The absence of any specific restriction on the circulation of the minutes did not make it inequitable for MCE to argue that the minutes were inadmissible as evidence. Even documents which are admittedly subject to the without prejudice qualification may be circulated. The prohibition is not against circulation but against admission in a court, or tribunal, of law as evidence (See [45]).

(5) It was inequitable for Sinojaya to now try to rely on the minutes of the 22 February 2002 meeting to bolster its summary judgment application against MCE (See [47]).

[Editorial Note: The plaintiffs' appeal to the Court of Appeal vide CA 68/2002 was heard and dismissed by the Court of Appeal (Chao Hick Tin JA and Tan Lee Meng J) on 24 October 2002.]

Case(s) referred to

Tan Yeow Khoon v Tan Yeow Tat & Anor (No. 1)

[2000] 3 SLR 341 (distd)

Judgment

GROUNDS OF DECISION

Background

1. The Plaintiff Sinojaya Sdn Bhd (‘Sinojaya’) claimed the price of five power press machines sold and delivered to the Defendant Metal Component Engineering Pte Ltd (‘MCE’).

2. MCE alleged that it was the agent for an undisclosed principal when it agreed to buy the machines from Sinojaya. Subsequently, it disclosed to Sinojaya that it was purchasing the machines as agent for the Third Party, Hoyo Crosstec Sdn Bhd (‘Hoyo’). MCE also alleged that Sinojaya then dealt directly with Hoyo and did the following:

(a) delivered the machines to Hoyo in Johor Bahru, Malaysia,

(b) issued quotations and invoices to Hoyo to enable Hoyo to obtain financing for two of the five machines.

Hoyo also arranged to pay Sinojaya for the remaining machines by instalments. One instalment was paid but not others.

3. On 31 January 2002, Sinojaya filed an action in the High Court of Singapore being Suit No 111 of 2002. MCE was the only party named as Defendant.

4. On 22 February 2002, representatives of Sino International Pte Ltd (a related company of Sinojaya), MCE and Hoyo met in the Hilton Hotel to discuss Sinojaya’s claim. According to Sinojaya, the following persons attended the meeting:

(a)	Mr Charles Wong	}
(b)	Mr Lim Kwee Beng	} Sino International
(c)	Mr Chua Kheng Choon (‘CKC’)	}
(d)	Mr Chua Han Min	} MCE
(e)	Mr Ano	}
(f)	Ms Grace Tan	} Hoyo

5. After the meeting, CKC, the managing director of MCE, prepared and forwarded the minutes of the meeting to Charles Wong of Sino International, as well as to Hoyo.

6. Sinojaya subsequently applied for summary judgment. In various affidavits filed on its behalf, it sought to refer to what was said at the meeting and, in particular, the minutes of the meeting. Sinojaya asserted that the meeting resulted in a concluded agreement which MCE breached. The reference to the minutes was not to establish a fresh cause of action based on the alleged concluded agreement but to use them to assist Sinojaya to obtain summary judgment under the original cause of action i.e the sale of the machines.

7. MCE took the position that the meeting of 22 February 2002 was on a without prejudice basis and that there was no concluded agreement. Hence no reference should be made to it or the minutes thereof which were inadmissible as evidence. Accordingly, it applied to strike out certain paragraphs of certain deponents’ affidavits which referred to the meeting and the exhibit of a copy of the minutes.

8. MCE’s application was heard by the Deputy Registrar Mr Foo Chee Hock on 14 May 2002. He decided that there was a concluded agreement and so it was unnecessary to decide whether the meeting was held on a without prejudice basis in the first place. Accordingly, Mr Foo dismissed MCE’s application.

9. MCE then appealed to the judge-in-chambers. The application for summary judgment was adjourned pending the outcome of the appeal. The appeal was heard by me on 13 June 2002. After hearing arguments, I concluded that the meeting was on a without prejudice basis and that there was no concluded agreement. Accordingly, I allowed the appeal. Sinojaya has appealed to the Court of Appeal.

The first affidavit of Wong Ping Leung

10. The first affidavit of Mr Wong Ping Leung, also known as Charles Wong, in support of Sinojaya’s contentions, states inter alia:

‘6. This is especially so after the Defendants have actually admitted to the liability as recorded in the minutes prepared by their own managing director, Mr Chua Kheng Choon ("CKC") in relation to the settlement meeting held at Hilton Hotel on 22.02.02 (refer to paragraph 11 of LSM’s affidavit).

7. I was present at this meeting with a colleague, Mr Lim Kwee Beng. The meeting was called by CKC and we were to attend the meeting as the representatives of the Plaintiffs. I believe that none of the parties informed their lawyers about this meeting even though the Plaintiffs have commenced proceedings and the Defendants have entered appearance. CKC had reassured us that everyone’s concern is primarily to settle this matter and not to protract it any further. In fact CKC personally told me over the phone prior to the meeting that the Defendants would pay us our claim while they would look to Hoyo for payment.

8. At this meeting which lasted for about 2 hours, it was definitely agreed by parties that

a. The Defendants would settle the Plaintiffs’ claim herein and in fact will be giving their proposal for full payment thereof by 25/2/02.

b. The Plaintiffs would not need to look to Hoyo Crosstec Sdn Bhd ("Hoyo") for payments and should in fact stop looking to them for settlement of this claim.

c. That Hoyo and the Defendants will deal directly between themselves on how they wish to settle the payment thereof.

9. At all times, there was no mention that this agreement was subject to any conditions. In fact, I had thought that this was not a separate agreement but merely stating the fact of the relationships of the 3 parties; i.e. that the Defendants were liable to the Plaintiffs as contractual party and that the Defendants should be the one looking to Hoyo for their sub-sale of the machines to them.

10. I am also certain that at no times were there any mention that this meeting was to be made "Without...