Sunpower Semiconductor Ltd v Powercom Yuraku Pte Ltd

• Jurisdiction: Singapore
• Judge: Woo Bih Li JAD
• Judgment Date: 26 April 2023
• Neutral Citation: [2023] SGHC(A) 14
• Court: High Court Appellate Division (Singapore)
• Docket Number: Civil Appeal No 79 of 2022 (Summons No 48 of 2022)
• Hearing Date: 25 January 2023
• Citation: [2023] SGHC(A) 14
• Year: 2023
• Plaintiff Counsel: Chenthil Kumarasingam and Lim Chong Hian (Withers KhattarWong LLP)
• Defendant Counsel: Lim Tat and Wan Chi Kit (Aequitas Law LLP)
• Subject Matter: Civil Procedure,Extension of time,Extension of time to file written submissions
• Published date: 26 April 2023

Woo Bih Li JAD (delivering the judgment of the court): Introduction

This is an application by Sunpower Semiconductor Ltd (“Sunpower”), the appellant in AD/CA 79/2022 (the “Appeal”), for an extension of time to file its written submissions for the Appeal. It is well-established that in applications for an extension of time, “it is the overall picture that emerges to the court as to where the justice of the case lies which will ultimately be decisive”: Sun Jin Engineering Pte Ltd v Hwang Jae Woo [2011] 2 SLR 196 (“Sun Jin”) at [30]. Accordingly, if fairness demands that an extension of time should be given, the court will exercise its discretion accordingly: Newspaper Seng Logistics Pte Ltd v Chiap Seng Productions Pte Ltd [2023] SGHC(A) 5 at [12].

In our judgment, we are not persuaded that the present application justifies the exercise of our discretion as such, and therefore decline to grant Sunpower an extension of time to file its written submissions. We begin by setting out the facts of the case, before turning to the reasons for our decision.

Facts

The background facts to the present application revolve around a shareholders’ dispute. The respondent, Powercom Yuraku Pte Ltd (“PYPL”), was incorporated in Singapore in 2009 as a joint venture between: Sunpower (ie, the appellant), which holds 10% of PYPL’s share capital; Powercom Co Ltd (“Powercom”), which holds 55%; and Yuraku Pte Ltd (“Yuraku”), which holds 35%.

The incorporation of PYPL was pursuant to a shareholders’ agreement dated 25 May 2009 (the “2009 Shareholders’ Agreement”). PYPL’s board of directors comprises: Vijaykumar Kishinchand Amesur (“Vijay”) representing Sunpower; Chang Feng-Hao Simon (“Simon”) representing Powercom; and Claudio Giuseppe Bencivengo (“Claudio”) representing Yuraku.

PYPL has a subsidiary named Powercom Yuraku SA (“PYSA”) in Luxembourg, which in turn has eight wholly-owned subsidiaries in Italy.

The dispute centres around resolutions passed at an extraordinary general meeting of PYSA (the “PYSA EGM”) on or about 10 January 2012, by which a rights issue of shares in PYSA was allegedly authorised (the “Purported Rights Issue”). The practical consequence of the Purported Rights Issue was that PYPL’s stake in PYSA was diluted from 100% to 5.5%. PYPL’s position is that Powercom’s consent was required under the articles of association of PYPL (the “Articles”), for any resolution passed by PYSA. The need for Powercom’s consent is not disputed. The dispute is whether such consent was given.

By an order of court dated 27 May 2019 obtained in HC/OS 948/2012, Powercom was granted leave to bring the following actions in the name of and on behalf of PYPL: that Claudio and Vijay were not duly authorised to execute a power of attorney dated 23 November 2011 (the “Purported Power of Attorney”) which authorised lawyers at the law firm of Bon, Schmitt, Steichen to act as PYPL’s attorney at the PYSA EGM and to vote in favour of all the resolutions set out in the Purported Power of Attorney (the “Resolutions”); that Claudio and Vijay were in breach of their fiduciary duties in executing the Purported Power of Attorney and procuring the passing of the Resolutions; and that Yuraku and Sunpower, as shareholders of PYPL, had conspired with Claudio and Vijay to injure PYPL by unlawful means, in agreeing and acting together to execute the Purported Power of Attorney and procuring the passing of the Resolutions.

On 21 August 2019, Powercom commenced HC/S 838/2019 (“S 838”) in PYPL’s name against Sunpower, Yuraku, Claudio and Vijay, who were the first, second, third and fourth defendants respectively. Subsequently, on 3 September 2021, PYPL applied to enter default judgment against all the defendants for their failure to serve a defence. Default judgment was granted by Kannan Ramesh J (as he then was) on 16 September 2021.

On 24 February 2022, Sunpower and Vijay filed HC/SUM 734/2022 to set aside the default judgment.

On 13 July 2022, an Assistant Registrar (the “AR”) set aside the default judgment in respect of Vijay, as Vijay had yet to be properly served with the Writ of Summons and Statement of Claim, and so the default judgment had been entered prematurely. As regards Sunpower, the AR set aside part of the default judgment in relation to PYPL’s claim against Sunpower in conspiracy (see [7(c)] above), but decided that the rest of the default judgment should remain. As a result, there remained a default judgment against Sunpower in the following terms: 1. The following actions are not valid acts of [PYPL]: (a) The execution of the Purported Power of Attorney; (b) The convening of the PYSA EGM; (c) The Resolutions purportedly passed at the PYSA EGM, including but not limited to the Purported Rights Issue; and (d) All consequential actions and documents executed in connection thereof. 3. Damages to be assessed for losses caused to [PYPL] by reason of [Sunpower and Yuraku’s] breach of the Articles, [and] [Claudio and Vijay’s] breach of their directors’ duties. 4. Interest at such rate and for such period as this Honourable Court deems fit on such damages as may be assessed. 5. The costs of these proceedings and costs occasioned by this application be paid by the Defendants jointly and severally to [PYPL].

On 27 July 2022, Sunpower filed an appeal in HC/RA 243/2022 against the AR’s decision. On 1 September 2022, the court below (the “Judge”) dismissed the appeal. The reasons for the Judge’s decision can be found in Powercom Yuraku Pte Ltd v Sunpower Semiconductor Ltd and others [2022] SGHC 211 (the “Judgment”).

On 13 September 2022, Sunpower filed an appeal to the Appellate Division of the High Court against the Judge’s decision, vide AD/CA 79/2022 (ie, the Appeal). On 16 September 2022, the court issued a notice pursuant to O 18 r 33(5)(a) of the Rules of Court 2021, and accordingly, the parties were required to file written submissions for the Appeal by 30 September 2022.

After the decision of the Judge, Sunpower changed solicitors. Its new solicitors were RBN Chambers LLC (“RBN”). On 21 September 2022, RBN wrote to the court to request that the deadline for filing written submissions for the Appeal be extended to 7 October 2022, and this was granted by the court. Subsequently, RBN reached a further agreement with PYPL’s solicitors, Aequitas Law LLP (“AL”), for an extension of time to 7 December 2022 for parties to file their written submissions and this was allowed by the court.

However, on 26 October 2022, RBN applied for an order that its solicitors cease to act for Sunpower. That order was granted on 31 October 2022, but it pertained only to S 838 and not the Appeal. Accordingly, on 14 November 2022, RBN filed an application by way of AD/SUM 39/2022 (“SUM 39”) for an order that its solicitors cease to act for Sunpower in the Appeal, as well as other orders which we need not mention for present purposes. That order became unnecessary as Sunpower eventually appointed new solicitors, Withers KhattarWong LLP (“WKW”), on 2 December 2022. We say more later about the circumstances leading to RBN’s applications to cease to act for Sunpower.

On 6 December 2022, WKW wrote to AL to propose that the deadline for filing written submissions for the Appeal be extended from 7 December 2022 to 18 January 2023, as WKW had just been engaged and was in the process of taking instructions. On 7 December 2022, WKW made the same proposal to the court as it had not received a response from AL.

In the meantime, PYPL filed its written submissions on 7 December 2022, but Sunpower did not. Pursuant to O 18 r 33(12) of the Rules of Court 2021, the Appeal was deemed withdrawn unless the appellate court otherwise orders.

On 9 December 2022, PYPL wrote to the court to object to Sunpower’s request for a further extension of time. On 13 December 2022, the court directed Sunpower to file a formal application for an extension of time.

On 28 December 2022, Sunpower filed the present application, namely AD/SUM 48/2022 (“SUM 48”), to extend the deadline to file its written submissions for the Appeal to 18 January 2023. Since that date has passed, Sunpower has proposed to file its written submissions within seven days of the court’s order if its application is allowed.

It is important to bear in mind that written submissions have been filed by the solicitors for Sunpower and PYPL in respect of the present application for an extension of time.

Our decision

The parties agree that in considering an application for an extension of time, the court will have regard to four factors (see Hau Khee Wee and another v Chua Kian Tong and another [1985-1986] SLR(R) 1075 at [14]; Sun Jin at [29]): the length of the delay; the reasons for the delay; the merits of the intended appeal; and the degree of prejudice to the other party if the extension of time were granted.

These factors are to guide the court and are non-exhaustive. It has also been observed that the court will adopt a “far stricter approach” in applying the above factors where the application is for an extension of time to file or serve a notice of appeal, as the overriding concern in those applications is finality and ensuring that the winning party is not kept waiting “on tenterhooks to receive the fruits of its judgment”: Lee Hsien Loong v Singapore Democratic Party and others and another suit [2008] 1 SLR(R) 757 (“Lee Hsien Loong”) at [33]; see also Ong Cheng Aik v Dayco Products Singapore Pte Ltd (in liquidation) [2005] 2 SLR(R) 561 (“Ong Cheng Aik”) at [14]–[16]. The present application being one for an extension of time to file written submissions, we are mindful that the four factors need not apply with the same stringency as they would in an application for permission to file a notice of appeal out of time: Ong Cheng Aik at [14] and [16]. Ultimately, as we have noted above at [1], the task before us is...