VBH Singapore Pte Ltd v Technobuilt Construction & Engineering Pte Ltd

• Jurisdiction: Singapore
• Court: High Court (Singapore)
• Judge: Tan Teck Ping Karen AR
• Judgment Date: 07 May 2013
• Neutral Citation: [2013] SGHCR 12
• Citation: [2013] SGHCR 12
• Docket Number: Suit No 410 of 2012 (Summons No 1741 of 2013)
• Hearing Date: 26 April 2013
• Plaintiff Counsel: Mr A Rajandran (M/s A Rajandran)
• Defendant Counsel: Mr Kelvin Tan and Mr Jason Chen (M/s Drew & Napier LLC)
• Subject Matter: Companies,Striking Out
• Published date: 21 May 2013

AR Tan Teck Ping Karen: Introduction

This is the 2nd defendant’s application to be struck out of the Writ of Summons and Statement of Claim as well as all subsequent pleadings under O18 r 19 of the Rules of Court (“the Rules”). The 2nd defendant is relying on all four grounds of this rule, namely, that the claim: discloses no reasonable cause of action; is scandalous, frivolous or vexatious; may prejudice, embarrass or delay the fair trail of the action; and is an abuse of the process of the court.

Factual Background

The plaintiff is a company in the construction business, including providing services as general contractors. The 1st defendant is also a company in the construction business and the 2nd defendant is a director and majority shareholder of the 1st defendant.

The 1st defendant was the main contractor of two projects, the first in Ngee Ann Polytechnic (“NAP Project”) and the second in Tan Tock Seng Hospital (“EDTC Project”). The plaintiff was engaged as a sub-contractor in the two projects, mainly in relation to aluminium works.

The plaintiff’s claim is for the total sum of $376,463.05, being the balance monies due and owing to the plaintiffs, including retention monies, in respect of work done, services rendered and materials supplied by the plaintiffs for the two projects.

Default judgment has been entered against the 1st defendant and the action proceeds against the 2nd defendant only.

The contracts in respect of the NAP Project and the EDTC Project were entered into between the 1st defendant and the plaintiff. The plaintiff’s claim against the 2nd defendant is that he was the controller and manager of the business of the 1st defendant, he was the alter ego of the 2nd defendant and that the 1st defendant was used as a vehicle by the 2nd defendant to perpetrate fraud and/or commit wrong on the plaintiff. For these reasons, the plaintiff is seeking to lift the corporate veil and make the 2nd defendant personally liable for the outstanding sums arising from the two projects which are claimed in this action.

My decision Preliminary issues

As preliminary issues, the plaintiff argued that this application should not be allowed because: (a) there was a delay by the 2nd defendant in filing this application; and (b) this application is an abuse of process as the application was made to avoid/evade giving discovery of documents by the 2nd defendants pursuant to the plaintiff’s pending application for specific discovery in Summons No. 1670 of 2013.

On the issue of delay, O18 r 19(1) of the Rules states that “The Court may at any stage of the proceedings order to be struck out or amended any pleading...” [emphasis added].

While an application to strike out a pleading should be made as soon as possible, a late application is not doomed to failure (see Tapematic SpA v Wirana Pte Ltd and another [2002] 1 SLR(R) 44 at [66], approved in Orient Centre Investments Ltd and another v Societe Generale [2007] 3 SLR(R) 566 (“Orient Centre”) at [61]).

Although the Writ of Summons was filed on 17 May 2012, due to various interlocutory applications, pleadings only closed on 14 December 2012. Parties filed their list of documents on 7 February 2013. As parties have just completed discovery, I am of the view that proceedings are still at an early stage and there are no grounds to hold that this application should not be allowed due to delay.

Further, in Orient Centre at [60], the Court of Appeal accepted that the generality and vagueness of the claims were such that discovery and further and better particulars were required before the appellants could decide whether it has a prima facie case. Similarly, in this case, I note that the plaintiff failed to draw a distinction between the two defendants in the Statement of Claim and frequently referred to them collectively as the “defendants” with no particulars of the claim. Bearing this in mind, it was reasonable for the 2nd defendant to assess the case after the discovery.

The plaintiff’s second preliminary objection to this application is that this is an abuse of process.

The plaintiff argues that, as this application was filed shortly after the plaintiff’s application to seek specific discovery from the 2nd defendant, the 2nd defendant is using this application to avoid providing discovery and so this is a proceeding “where the process of the court is not being fairly or honestly used but is employed instead for some ulterior or improper purpose or in an improper way”. The plaintiff is relying on the second category of proceedings that would amount to abuse stated in Chee Siok Chin v Minister for Home Affairs [2006] 1 SLR(R) 582 approved at [71] of NCC International AB v Alliance Concrete Singapore Pte Ltd [2008] 2 SLR(R) 565].

While the timing of this application does appear to support the plaintiff’s argument, I find that, the timing of the application by itself, would be insufficient to elevate this application to one which is an abuse of process. This is especially since a striking out application may be filed at any time and I have found that there is no inordinate delay in this application. I also note that the 2nd defendant has already engaged in general discovery and so it cannot be said that this application was filed to avoid disclosure of the 2nd defendant’s documents.

Therefore, for the reasons stated above, I find that the filing of this application is not an abuse of process and there was no undue delay in filing this application.

No reasonable cause of action – O18 r19 (a) of the Rules

The law relating to O18 r19(a) is well established. See Ng Chee Weng v Lim Jit Ming Bryan [2012] 1 SLR 457 (“Ng Chee Weng”) where the Court of Appeal held at [112]:

...The pleading itself must fail to make out a reasonable cause of action without reference to other evidence before it can be struck out under limb (a)....

The Court of Appeal in Ng Chee Weng also held at [110]:

...The draconian power of the court to strike out a claim at the interlocutory stage under limb (a) of O 18 r 19(1) can only be exercised when it is patently clear that there is no reasonable cause of action on the fact of the pleadings. The mere fact that a case is weak and not likely to succeed is not a valid ground for striking out a claim under this ground. In the Singapore High Court decision of Active Timber Agencies Pte Ltd v Allen & Gledhill [1995] 3 SLR(R) 334, Rubin J held (at [13]) that:

...a reasonable cause of...