Symphony Ventures Pte Ltd v DNB Bank ASA, Singapore Branch

JurisdictionSingapore
CourtHigh Court (Singapore)
JudgeAedit Abdullah J
Judgment Date17 June 2021
Docket NumberSuit No 1204 of 2019 (Summons No 4362 of 2020)

[2021] SGHC 141

General Division of the High Court

Aedit Abdullah J

Suit No 1204 of 2019 (Summons No 4362 of 2020)

Symphony Ventures Pte Ltd
and
DNB Bank ASA, Singapore Branch

Khan Nazim and Kunal Haresh Mirpuri (UniLegal LLC) for the plaintiff;

Sim Jek Sok Disa, Chan Wei Xuan TimothyandOu Wai Hung Shaun (Rajah & Tann Singapore LLP) for the defendant.

Case(s) referred to

Antariksa Logistics Pte Ltd v Nurdian Cuaca [2018] 3 SLR 117 (refd)

Ching Mun Fong v Liu Cho Chit [2001] 1 SLR(R) 856; [2001] 3 SLR 10 (folld)

Chua Teck Chew Robert v Goh Eng Wah [2009] 4 SLR(R) 716; [2009] 4 SLR 716 (folld)

eSys Technologies Pte Ltd v nTan Corporate Advisory Pte Ltd [2013] 2 SLR 1200 (folld)

Geocon Piling & Engineering Pte Ltd v Multistar Holdings Ltd [2015] 3 SLR 1213 (folld)

Henderson v Henderson (1843) 3 Hare 100 (refd)

Horner v Allison [2014] EWCA Civ 117 (folld)

IPP Financial Advisers Pte Ltd v Saimee bin Jumaat [2020] 2 SLR 272 (folld)

Letang v Cooper [1965] 1 QB 232 (folld)

Lim Geok Lin Andy v Yap Jin Meng Bryan [2017] 2 SLR 760 (refd)

Lim Siew Bee v Lim Boh Chuan [2014] SGHC 41 (folld)

Lim Yong Swan v Lim Jee Tee [1992] 3 SLR(R) 940; [1993] 1 SLR 500 (folld)

MCST Plan No 3322 v Mer Vue Developments Pte Ltd [2016] 4 SLR 351 (folld)

Multistar Holdings Ltd v Geocon Piling & Engineering Pte Ltd [2016] 2 SLR 1 (folld)

Paragon Finance plc v D B Thakerar & Co [1999] 1 All ER 400 (folld)

Philips Pension Trustees Ltd v Aon Hewitt Ltd [2015] EWHC 1768 (Ch) (folld)

Rocky Point Lending LLC v Rocky Point International LLC (13 May 2019, State of Wisconsin, Circuit Court, Waukesha County) (US) (refd)

Savings and Investment Bank Ltd v Fincken [2001] All ER (D) 70 (folld)

Simpson Marine (SEA) Pte Ltd v Jiacipto Jiaravanon [2019] 1 SLR 696 (folld)

Smith v Henniker-Major & Co [2003] Ch 182 (folld)

Takhar v Gracefield Developments Ltd [2020] AC 450 (refd)

Traxiar Drilling Partners II Pte Ltd v Dvergsten, Dag Oivind [2019] 4 SLR 433 (refd)

Virginia Rhea, The [1983–1984] SLR(R) 639; [1984–1985] SLR 214 (folld)

Wishing Star Ltd v Jurong Town Corp [2008] 2 SLR(R) 909; [2008] 2 SLR 909 (folld)

Legislation referred to

Companies Act (Cap 50, 2006 Rev Ed) s 340

Limitation Act (Cap 163, 1996 Rev Ed) ss 6(1)(a), 24A(3)(a), 29, 29(1), 29(1)(a), 29(1)(b)

Rules of Court (2014 Rev Ed) O 18 r 19(1), O 20 r 5(1), O 20 r 5(2), O 20 r 5(3), O 20 r 5(4), O 20 r 5(5)

Civil Procedure — Pleadings — Amendment — Plaintiff seeking to amend its statement of claim — Defendant objecting to several of these amendments — Whether amendments objected to by defendant were permissible under O 20 r 5 Rules of Court (2014 Rev Ed) — Whether defendant's limitation defence would be prejudiced — Whether new causes of action arose out of same or substantially same facts — Whether it was just to allow amendments — Whether there were reasonable causes of action — Order 20 r 5 Rules of Court (2014 Rev Ed) — Sections 6(1)(a), 24A(3)(a), 29(1)(a) and 29(1)(b) Limitation Act (Cap 163, 1996 Rev Ed)

Facts

The defendant bank acted on behalf of a number of corporate entities, including Traxiar Drilling Partners II Pte Ltd (“Traxiar”), to obtain expressions of interest from possible lenders, including the plaintiff, for a bridging loan for the purchase of an oil rig (the “Rig”). These corporate entities were under the control of one Mr Dag Dvergsten (“Mr Dvergsten”). A term loan agreement was entered into between the plaintiff and Traxiar, which subsequently defaulted on repayment.

The plaintiff filed its Statement of Claim (“SOC”) on 21 November 2019, seeking against the defendant bank damages arising out of negligence, negligent or fraudulent misrepresentations, dishonest assistance and knowing receipt in respect of a supposed breach of a Quistclose trust, and a conspiracy to injure the plaintiff involving the defendant and others, including one Mr Andreas Aamodt Kilde (“Mr Kilde”).

On 8 October 2020, the plaintiff filed this application seeking leave to amend its SOC. The defendant objected to four of these amendments. The first amendment contained an allegation that the defendant, as the arranger of the “end” or “take-out” finance, owed the plaintiff a duty of care. For context, the “end” or “take-out” finance referred to the raising of moneys through bonds on the Norwegian debt market to finance the balance purchase price of the Rig. This duty of care was breached when the defendant, inter alia, facilitated Traxiar's money laundering. The second new allegation sought to be introduced was that the defendant made negligent or fraudulent misrepresentations in respect of the refundability of the deposit and the defendant's involvement in the “end” or “take-out” finance. The third was that the defendant was unjustly enriched from a transaction where there was a total failure of consideration and illegality. The final allegation was that there was a conspiracy involving Mr Kilde, Mr Dvergsten, entities related to Mr Dvergsten and one Ms Savannah Khanna, for which the defendant was vicariously liable for.

Held, refusing leave to amend:

(1) The critical threshold question determining whether O 20 r 5(1) or O 20 r 5(2) of the Rules of Court (2014 Rev Ed) (“ROC”) was engaged, was not whether the relevant limitation period had expired, but whether allowing the amendment would cause any prejudice to the other party's limitation defence. If no such prejudice would be caused, O 20 r 5(1) of the ROC applied even if the relevant limitation period might have expired. If prejudice would be caused, the court could only allow the amendment under O 20 r 5(2)–O 20 r 5(5) of the ROC. The upshot of O 20 r 5(2) and O 20 r 5(5) of the ROC was that an amendment was allowed, even if it were to bring a new cause of action to the prejudice of the defendant's accrued right of limitation, if such a cause of action arose out of the same or substantially the same facts and if the court considered it just to allow that amendment: at [10] to [12].

(2) The court only needed to be satisfied that there was a reasonably arguable case that the limitation period had expired. The defendant had made out a prima facie limitation defence. Applying ss 24A(3)(a) and 6(1)(a) of the Limitation Act (Cap 163, 1996 Rev Ed) (“Limitation Act”), the six-year time bar for the plaintiff's new claims in tort and unjust enrichment started running by 8 July 2014 and 24 December 2013 respectively, which meant that the limitation period would have expired by the time this court considered the proposed amendments. The burden of persuasion thus lay on the plaintiff to show that the defence of limitation was not reasonably arguable. The plaintiff did not discharge this burden. The plaintiff's new claims in negligence, negligent misrepresentation, unjust enrichment and lawful or unlawful means conspiracy could not be brought under the fraud exception in s 29(1)(b) of the Limitation Act since they did not implicate the defendant or its agent in any fraudulent concealment. The plaintiff's new allegations concerning fraudulent misrepresentations by the defendant would be governed by s 29(1)(a) of the Limitation Act, but such fraudulent misrepresentation, if any, could have been discovered by the plaintiff with reasonable diligence by July 2014: at [13] to [17], [20], [24] and [25].

(3) Not all amendments brought after the expiration of the limitation period would prejudice the defendant's limitation defence. A key consideration was whether the practical effect of allowing the amendment was to allow a claim which would otherwise have been time-barred if it were brought under a new writ. The amendments in question, if allowed, would prejudice the defendant's limitation defence, as they sought to bring in new causes of action: at [49] and [50].

(4) A cause of action referred to the essential factual material that supported a claim. The selection of material facts to define the cause of action had to be made at the highest level of abstraction, to the exclusion of further instances or better particulars. Identifying whether a new cause of action had been introduced, required the essential facts in the existing pleadings to be compared with the essential facts in the proposed amended statement of claim: at [51].

(5) If the amendment did introduce a new cause of action, that cause of action had to arise out of the same or substantially the same facts as those already pleaded in order to fall within O 20 r 5(5) of the ROC. The test was whether there was a sufficient overlap between the facts supporting the existing claim and those supporting the new claim, and the inquiry here was not just limited to the consideration of essential facts: at [52].

(6) The plaintiff's amendments introduced new causes of action which were predicated on essential facts not found in the original pleadings. Some of the words found in the plaintiff's proposed amendments were mentioned in its existing pleadings, but those words were used in wholly different contexts. It was not enough that there might have been causes of action in negligence, misrepresentation and conspiracy previously. Introducing essential facts within the “labels” originally pleaded, still amounted to the addition of new causes of action: at [54] to [57].

(7) These new causes of action did not arise out of the same or substantially the same facts. Given how drastically different the new essential facts were from those found in the original pleadings, these new causes of action had to draw much of their support from specific factual allegations which were not at all contained in the original claim: at [59].

(8) The consideration of whether it would be just to grant leave required a weighing of the applying party's need to amend and the prejudice to the opposing party's interests. The fact that a time bar...

To continue reading

Request your trial
2 cases
  • Manmeet Singh v Teh Mui Eng Judy
    • Singapore
    • District Court (Singapore)
    • 24 May 2022
    ...achieved in allowing amendments only to see them struck down subsequently: Symphony Ventures Pte Ltd v DNB Bank ASA, Singapore Branch [2021] 5 SLR 1213 at [63]. In this case, I had taken much effort in attempting to understand and reconcile the various versions of the Plaintiff’s case, and ......
  • Symphony Ventures Pte Ltd v DNB Bank ASA, Singapore Branch
    • United Kingdom
    • High Court
    • 1 November 2021
    ...Ed) O 20 r 5 (consd); O 20 r 5(1), O 20 r 5(2), O 20 r 5(5) [Editorial note: The decision from which this appeal arose is reported at [2021] 5 SLR 1213.] Nazim Khan, Kuan Chu Ching ConnieandKunal Haresh Mirpuri (UniLegal LLC) for the Sim Jek Sok Disa, Cheong Tian Ci TorstenandOu Wai Hung Sh......
1 books & journal articles
  • Restitution
    • Singapore
    • Singapore Academy of Law Annual Review Nbr. 2021, December 2021
    • 1 December 2021
    ...Mining Ltd [2021] SGHC 205 at [150]. 20 Ok Tedi Fly River Development Foundation Ltd v Ok Tedi Mining Ltd [2021] SGHC 205 at [154]. 21 [2021] 5 SLR 1213. 22 Symphony Ventures Pte Ltd v DNB Bank ASA, Singapore Branch [2021] 5 SLR 1213 at [65]. 23 Symphony Ventures Pte Ltd v DNB Bank ASA, Sin......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT