Von Roll Asia Pte Ltd v Goh Boon Gay and others

• Jurisdiction: Singapore
• Judge: Chan Seng Onn J
• Judgment Date: 27 April 2015
• Neutral Citation: [2015] SGHC 115
• Plaintiff Counsel: Campos Godwin Gilbert (Godwin Campos LLC)
• Docket Number: Suit No 58 of 2012 (Summons No 4140 of 2014)
• Date: 27 April 2015
• Hearing Date: 09 February 2015
• Subject Matter: Discovery,Civil Procedure
• Published date: 29 April 2015
• Citation: [2015] SGHC 115
• Defendant Counsel: Raman Gopalan and Felicia Ang Xin Yi (KhattarWong LLP)
• Court: High Court (Singapore)
• Year: 2015

Chan Seng Onn J: Introduction

In Summons No 4140 of 2014 (“Summons 4140”), the plaintiff applied under O 24 r 16(1) of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) for the defences of the 2nd (Semi-Solution Inc (Asia) Pte Ltd) and 5th (Lim Keng Huat) defendants to be struck out and for judgment to be entered against both these defendants. After hearing the parties, I granted the plaintiff’s application and ordered accordingly. The 5th defendant has filed an appeal against my decision in Summons 4140. The 2nd defendant did not appeal. I now set out the grounds for my decision.

Background

In brief, part of the plaintiff’s case against the defendants in Suit No 58 of 2012 (“the Suit”) was in conspiracy to defraud. The plaintiff averred that the 1st and 5th defendants, who had an interest in the business of the 2nd, 3rd and 4th defendants, managed to procure sales of goods from the plaintiff to the 2nd, 3rd and 4th defendants. These goods were ordinarily sold directly from the plaintiff to its end customers. Having purchased these goods, the 2nd, 3rd and 4th defendants then sold these goods to the end customers themselves. The plaintiff thus claimed that it had been deprived of the full profits it would have earned had it sold the goods directly to these end customers.

During the course of the Suit, the plaintiff took out Summons No 1350 of 2013 (“Summons 1350”) in order to obtain the chain of evidence relating to sales of the goods from the plaintiff to the 2nd, 3rd and 4th defendants and thereafter to the end customers. After hearing the parties, an assistant registrar ordered on 5 September 2013 that the 2nd, 3rd and/or 5th defendants provide the following, within five days from the date of the order (“Order of Summons 1350”): The sales invoices within the possession, custody or power of the 2nd and 3rd defendants in respect of all the plaintiff’s products purchased by them from the plaintiff and thereafter sold to the 4th defendant during the period of 2008 – 2011 (“Category A”). It was pertinent to note that although Category A referred to sales invoices in the possession, custody or power of the 2nd and 3rd defendants, I read this part of the Order of Summons 1350 more broadly to encompass an obligation on the part of the 5th defendant to produce the Category A invoices if any of them were still within his possession, custody or power. This reading was possible because of the phrase “and/or” in the preface of the Order of Summons 1350 (see emphasis above). The sales invoices within the possession, custody or power of the 5th defendant, covering the period of 2008 – 2011, in respect of all of the plaintiff’s products purchased by the 4th defendant from the 2nd and 3rd defendants and thereafter ultimately sold by the 4th defendants to the following customers of the plaintiff (“Category B”): Shanghai Turbine Generator Co Ltd (STGC); Lear Automotive Electronics and Electrical; Bosch Power Tools (China) Co Ltd; Suzhou Keyang Power Tool Co Ltd; Shanghai Nanyang Electrical Machinery Co Ltd; and SuZhou Gerber Precision Mechanical Manufacturing Co Ltd. The sales invoices within the possession, custody or power of the 5th defendant, covering the period of 2008 – 2011, in respect of all of the plaintiff’s products purchased by the 4th defendant directly from the plaintiff and thereafter sold by the 4th defendant to the following customers of the plaintiff (“Category C”): Shanghai Turbine Generator Co Ltd (STGC); Lear Automotive Electronics and Electrical; Bosch Power Tools (China) Co Ltd; Suzhou Keyang Power Tool Co Ltd; Shanghai Nanyang Electrical Machinery Co Ltd; and SuZhou Gerber Precision Mechanical Manufacturing Co Ltd.

The appeal against the decision of the assistant registrar in Summons 1350 ((Registrar’s Appeal No 330 of 2013) (“RA 330”)) came before me and was dismissed.

The plaintiff subsequently applied vide Summons No 1413 of 2014 (“Summons 1413”) for the defences of the 2nd, 3rd and 5th defendants to be struck out and for judgment to be entered against them pursuant to O 24 r 16 of the Rules of Court. This application was dismissed by an assistant registrar. The plaintiff then appealed against the assistant registrar’s decision ((Registrar’s Appeal 192 of 2014) (“RA 192”)). Upon hearing the appeal, I made the following peremptory order (“Order of RA 192"):

That the 2nd , 3rd and 5th Defendants are to comply with the Order of Court of 5th September 2013 within 21 days of the date hereof failing which their Defences are to be struck off and judgment entered as prayed for.

It was not disputed that the 3rd defendant subsequently complied with its discovery obligations pursuant to the Order of RA 192.

The plaintiff then took out Summons 4140 against the 2nd and 5th defendants to strike out their defences and for judgment be entered against them pursuant to O 24 r 16(1) of the Rules of Court for non-compliance with the Order of RA 192.

The plaintiff claimed that the 2nd defendant had not complied with the Order of RA 192 since it had not given discovery of any Category A sales invoices (which related to goods purchased by the 2nd defendant from the plaintiff and thereafter sold to the 4th defendant). Category A sales invoices, which were ordinarily expected to be in the possession of the 2nd defendant, comprised (a) all the purchaser’s copy of the sales invoices for goods bought from the plaintiff by the 2nd defendant; and (b) all the seller’s copy of the sales invoices for the same goods sold by the 2nd defendant to the 4th defendant.

The plaintiff claimed that the 5th defendant had failed to comply with the Order of RA 192 by not giving discovery of Category B sales invoices (which related to goods purchased by the 4th defendant from the 2nd and 3rd defendants and thereafter sold to specified customers) and Category C sales invoices (which related to goods purchased by the 4th defendant from the plaintiff and thereafter sold to specific customers). Accordingly, Category B sales invoices, which were ordinarily expected to be in the possession of the 4th defendant, comprised (a) all the purchaser’s copy of the sales invoices for goods bought from the 2nd and 3rd defendants by the 4th defendant; and (b) all the seller’s copy of the sales invoices for the same goods sold by the 4th defendant to certain listed end customers (see [3(b)] above). Category C sales invoices, which were ordinarily expected to be in the possession of the 4th defendant, comprised (a) all the purchaser’s copy of the sales invoices for goods bought directly from the plaintiff by the 4th defendant; and (b) all the seller’s copy of the sales invoices for the same goods sold by the 4th defendant to certain listed end customers (see [3(c)] above).

The plaintiff further claimed that the 5th defendant had not complied with the Order of RA 192 by not giving discovery of a part (or a sub-set) of the Category A sales invoices (which related to goods purchased by the 2nd defendant from the plaintiff and thereafter sold to the 4th defendant). This part or subset of the Category A sales invoices would thus be limited to the purchaser’s copy of the sales invoices for all the goods bought from the plaintiff by the 2nd defendant and the seller’s copy of the sales invoices for the same goods sold by the 2nd defendant to the 4th defendant. In other words, the 5th defendant had also not given discovery of all the sales invoices that would normally be expected to be in the possession of the 2nd defendant for goods purchased by the 2nd defendant from the plaintiff and thereafter sold to the 4th defendant (see [3(a)] above).

The issues germane to Summons 4140

The 2nd and 5th defendants did not deny that absolutely no discovery was given in relation to the sales invoices mentioned above in [7]–[9]. However, they both claimed that they had not breached the Order of RA 192 because those invoices were not in their possession, custody or power. In relation to the subset of the Category A invoices which ordinarily should be in the possession of the 2nd defendant as set out at [9] above (hereinafter described as the “A1 sales invoices”), the 5th defendant alluded to a practice of the 2nd defendant in which its staff (who would be observed to also be the staff of the 3rd defendant) routinely destroyed or threw away documents of the 2nd defendant which were useless (see [15] below). In addition to this, the 5th defendant claimed he was no longer answerable for the 4th defendant since judgment in default of appearance was entered against the 4th defendant under O 13 of the Rules of Court (in JUD 455 of 2013). This, according to the 5th defendant, meant that the Category B sale invoices and Category C sale invoices (collectively, the “B and C sale invoices”) (see [8] above), which were typically expected to be in the records and the possession of the 4th defendant, did not have to be disclosed by the 5th defendant.

Against this, the plaintiff argued that the 2nd and 5th defendants were not entitled to claim that the sales invoices were not in their possession, custody or power because this was a matter that had already been decided in Summons 1350 (and therefore RA 330), or in RA 192. I did not agree totally. I did not read any of the orders given in relation to the application in Summons 1350 (and therefore RA 330) to be predicated on a finding that the sales invoices in the respective categories were in the possession, custody or power of the 2nd and 5th defendants and that these sales invoices existed such that issue estoppel was made out. However, in RA 192 (arising from Summons 1413), it might arguably be inferred that the court had implicitly found that the sales invoices existed and that the 2nd and 5th defendants were simply being uncooperative in giving discovery; and as a result, a peremptory order was made in RA 192 for the production of the sales invoices within 21...