Tan Choon Wee v Pine Capital Group Ltd and others and another matter

JurisdictionSingapore
JudgeLai Siu Chiu SJ
Judgment Date30 August 2019
Neutral Citation[2019] SGHC 201
CourtHigh Court (Singapore)
Docket NumberSuit No 374 of 2019 (Summons Nos 1803 and 2244 of 2019) and Originating Summons No 471 of 2019
Year2019
Published date17 October 2019
Hearing Date24 April 2019,31 May 2019,09 April 2019
Plaintiff CounselTan Chuan Thye SC, Kok Chee Yeong Jared, Torsten Cheong, and Chiang Yuan Bo (Rajah & Tann Singapore LLP),Chan Ming Onn David, Lee Ping and Ms Zhang Yi Ting (Shook Lin & Bok)
Defendant CounselPillai Pradeep G and Jocelyn Lin (PRP Law LLC)
Subject MatterCivil Procedure,Injunctions,Interim orders,Equity,Remedies,Injunction,Companies,Directors,Removal,Appeals,Leave
Citation[2019] SGHC 201
Lai Siu Chiu SJ: Introduction

The two sets of proceedings here involve related parties. Hence this court has decided to write only one decision for both matters.

In Suit No 374 of 2019 (“the Suit”), Tan Choon Wee (“TCW”) is the plaintiff who has sued Pine Capital Group Limited (“PCGL”) a Catalist listed entity on Singapore’s stock exchange, and Wang Meng (“Wang” or the “second defendant”) as the first and second defendants respectively for declaratory orders in respect of shares in a company called Advance Capital Partners Asset Management Private Limited (“ACPAM”) which is the fifth defendant in the Suit. The third defendant is a Korean national Pan Ki Ro (“Pan” or “the third defendant”) while the fourth defendant Trina Ann Savage (“Trina” or “the fourth defendant”) is a Singaporean all of whom PCGL wish to appoint as directors of ACPAM. (All the five defendants will be referred to collectively as “the defendants”).

In Originating Summons No 471 of 2019 (“the OS”), PCGL is the plaintiff while TCW and ACPAM are the first and second defendants respectively.

TCW filed the Suit on 8 April 2019. On the same day, by way of Summons No 1803 of 2019 (“the injunction application”) and his supporting affidavit filed therewith (“TCW’s first affidavit”), TCW applied ex parte for inter alia the following orders: he and one Lin Kuan Liang Nicholas (“Lin”) be reinstated as directors of ACPAM; that Wang, Pan and Trina be restrained from acting as or purporting to act as directors of ACPAM; that PCGL, Wang, Pan and Trina whether by themselves or by their servant(s), agent(s), nominee(s) or otherwise, be restrained from accessing, removing or otherwise dealing with any property belonging to ACPAM, him, Lin and, to the extent that they have removed any property from the offices of ACPAM, to return all such property within two days of the order to be made herein; and that PCGL, Wang, Pan and Trina whether by themselves or by their servant(s), agent(s), nominee(s) or otherwise, be restrained from representing or otherwise announcing that TCW and/or Lin have been removed as directors of ACPAM.

The injunction application was heard and granted by this court on an urgent basis on 9 April 2019 (“the 9 April Order”) in the presence of counsel for the defendants. The following orders were made: Pending the inter partes hearing of the injunction application: the defendants shall not inform third parties of the removal of TCW and Lin as directors of ACPAM; the defendants, their officers, servants and agents undertake not to remove any computers or laptops from the premises of ACPAM and shall not attempt to or gain access to the personal computers or laptops of any staff including Michelle Chee (“Michelle”), Lynn Woo (“Lynn”) and Charlene Tan (“Charlene”) [who is TCW’s daughter]; Wang will not perform the functions of Chief Executive Officer (“CEO”) of ACPAM pending the outcome of the injunction application; the defendants and TCW were to file their response and reply affidavits respectively by certain timelines; and costs were reserved.

The parties duly complied with the court’s timelines and affidavits were filed. On 24 April 2019, the injunction application was heard on an inter partes basis after which this court: dismissed the injunction application; discharged the interim orders made under the 9 April Order once the orders made herein took effect; directed that TCW, Michelle, Lynn and Charlene were required to deliver up to ACPAM its bank tokens that they currently held together with: login details of ACPAM’S payroll system; login details of ACPAM’s MASNET system; and login details of ACPAM’s Microsoft 365 system directed that ACPAM was at liberty to change its bank signatories by removing TCW, Lin, Lynn and Charlene and replacing them with other signatories; and ordered TCW to pay one set of (fixed) costs to PCGL and another set of costs to Wan, Pan, Trina and ACPAM. (“the first 24 April Order”).

For expediency, this court heard the injunction application as well as the OS together on 24 April 2019. PCGL had filed the OS on 10 April 2019 together with an affidavit in support sworn by Wee Heng Yai Adrian (“Wee”) who is a director of PCGL (“Wee’s OS affidavit”).

After disposing of the injunction application, the court dealt with the OS in which PCGL applied for the following orders pursuant to ss 182 and 392 of the Companies Act (Cap 50, 2006 Rev Ed) (the “Cos Act”): a declaration that the resolutions passed at the Extraordinary General Meeting (“EGM”) of ACPAM on 5 April 2019 are valid; in the alternative, that: a separate and further EGM of ACPAM be convened and held forthwith at ACPAM’s registered office or other agreed venue for the purposes of considering the resolutions set out in the Schedule to the OS; and at the EGM in (i), the presence of one member of ACPAM, either in person or by proxy, shall be deemed to constitute a meeting and that the presence of the said member shall be sufficient to form a quorum. The court only granted the orders sought in (b) above (“the second 24 April Order”).

On 29 April 2019, by way of Civil Appeal No 94 of 2019 (“CA 94/2019”), TCW appealed against the second 24 April Order.

TCW then applied for leave to appeal against the first 24 April Order by way of Summons No 2244 of 2019 (“the Leave Application”). I dismissed the Leave Application on 31 May 2019. TCW has now filed Civil Appeal Originating Summons No 17 of 2019 against my refusal to grant leave to appeal.

In addition to the injunction application, TCW filed on 12 April 2019 a second application in Summons No 1946 of 2019 (“the second injunction application”) which prayers included one to restrain Wang, Pan and Trina from accessing or attempting to gain access to any computer or laptop that belongs to ACPAM.

On 16 April 2019, TCW filed a third application in Summons No 1990 of 2019 (“the third injunction application”) in which he applied to restrain the defendants from holding any EGM or other meetings to remove him and Lin as directors of ACPAM pending the determination of the Suit.

The second and third injunction applications were not dealt with by this court.

The injunction application

Besides TCW’s first affidavit, the following affidavits were filed by the parties for the injunction application: affidavit of Wee filed on 15 April 2019 (“Wee’s first affidavit”); affidavit of Wang filed on 15 April 2019 (“Wang’s first affidavit”); and TCW’s affidavit filed on 22 April 2019 (“TCW’s third affidavit”).1 Wee’s OS affidavit as well as TCW’s OS affidavit were considered for both the injunction application and the OS.

In TCW’s first affidavit, he deposed to the following facts which prompted this court to grant him the 9 April Order: TCW holds 49% of the issued shares in ACPAM while PCGL holds the remaining 51%; Wang was formerly employed by ACPAM as a portfolio manager until his services were terminated on 18 March 2019 due to breaches of obligations of confidentiality; PCGL purportedly appointed Wang, Pan and Trina as directors of ACPAM pursuant to a resolution purportedly passed at an EGM convened on 5 April 2019 which EGM contravened the Articles of Association of ACPAM in that the requisite 14 days’ notice was not given and there was no quorum; ACPAM is a Registered Fund Management Company (“RFMC”) with the Monetary Authority of Singapore (“MAS”) and comes under the Securities and Futures Act (Cap 289, 2006 Rev Ed) (“the SFA”). Under Rule 14A(2)(b) of the Securities and Futures (Licensing and Conduct of Business) Regulations (Reg 10, 2004 Rev Ed) (“SF(LCB)R”), persons appointed as directors of RFMC must be fit and proper to hold that office. However, the first to fourth defendants had not provided ACPAM with information to ensure that Wang, Pan and Trina were fit and proper persons to hold office as directors; In removing TCW and Lin as directors of ACPAM, the defendants had removed “the only directors of ACPAM who were cleared and accepted by the MAS as persons fit and proper persons to hold the office of a director of ACPAM”2; In short, PCGL’s appointment of Wang, Pan and Trina coupled with the removal of TCW and Lin, as directors had “caused ACPAM to be in violation of the regulations and at risk of losing its status as an RFMC”;3 Should MAS take an adverse view of the change of directors, TCW’s interests as a shareholder of ACPAM would be irreparably harmed.

In addition to the above complaints, TCW’s first affidavit alleged that Wang had taken steps to inform various parties of the removal of TCW and Lin as directors and that Wang, Pan and Trina had been appointed as their replacements in that: Wang had instructed ACPAM’s compliance officer Michelle on 5 April 2019 to lodge the relevant forms with MAS to inform it of the change in composition of the board of ACPAM; Wang had also filed the change in directorships with the Accounting and Corporate Regulatory Authority (“ACRA”); On 6 April 2019, Wang emailed MAS in his capacity as the executive director of ACPAM, stating that TCW and Lin had been removed as directors and were replaced by Wang, Pan and Trina; MAS forwarded Wang’s email to Michelle, copied to TCW, seeking her confirmation that TCW and Lin had been legally removed in accordance with the Cos Act. Michelle replied to say the two had not been properly removed in accordance with the Cos Act and that the second to fourth defendants had not provided ACPAM with the necessary documentation to enable the latter to conduct proper background checks to ensure their suitability to be directors; Michelle informed MAS that Wang’s appointment as director followed a dispute between him and ACPAM over his breaches of duty as an employee of ACPAM. On 6 April 2019, ACPAM’s solicitors informed employees of ACPAM that: TCW and Lin had been removed as directors of ACPAM; the second to fourth...

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