Wayne Burt Commodities Pte Ltd v Singapore DSS Pte Ltd

• Jurisdiction: Singapore
• Judge: Lee Seiu Kin J
• Judgment Date: 06 April 2017
• Neutral Citation: [2017] SGHC 70
• Court: High Court (Singapore)
• Docket Number: Suit No 967 of 2016 (Registrar’s Appeal No 441 of 2016)
• Published date: 03 November 2017
• Year: 2017
• Hearing Date: 23 January 2017
• Plaintiff Counsel: Ravindran s/o Ramasamy (Colin Ng & Partners LLP)
• Defendant Counsel: Nicholas Jeyaraj s/o Narayanan and Jared Andrew Kong (Nicholas & Tan Partnership LLP)
• Subject Matter: Civil Procedure,Summary Judgment
• Citation: [2017] SGHC 70

Lee Seiu Kin J: Background

This is the defendant’s appeal from the registrar’s decision in suit no 967 of 2016. The registrar granted the plaintiff’s application for summary judgment under O 14 r 1 of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) (“ROC”). I agreed with the registrar and dismissed the defendant’s appeal. I now give my reasons.

The plaintiff, Wayne Burt Commodities Pte Ltd, is a wholly-owned subsidiary of Wayne Burt Pte Ltd, previously known as Wayne Burt Systems Pte Ltd (“the plaintiff’s parent company”). The plaintiff was incorporated in Singapore and is in the business of trading in commodities. The defendant is also a Singapore-incorporated company, in the business of general wholesale trade.

This dispute arises out of a sum of US$3m that the plaintiff claims is owed by the defendant. The parties were in agreement that a loan of US$6.55m was extended to the defendant and that the money came from the plaintiff’s parent company. It was also not in dispute that a total of US$3.55m was transferred by the defendant to the plaintiff’s parent company in two payments of US$2m and US$1.55m on 29 April 2015 and on 8 May 2015 respectively. The issue in this suit is whether the defendant had repaid the balance US$3m.

The defendant submitted that summary judgment should be refused because there were triable issues on the following: The plaintiff’s parent company was the party to the loan agreement. The defendant repaid the US$3m by way of payment of the sum US$3.15m to one Justin Lim who had actual or apparent authority to receive this sum on behalf of the plaintiff.

The law on summary judgment

It is well-settled that in order to obtain summary judgment, the plaintiff must first show a prima facie case for summary judgment. The burden then shifts to the defendant to establish that there is a fair or reasonable probability that he has a real or bona fide defence: M2B World Asia Pacific Pte Ltd v Matsumura Akihiko [2015] 1 SLR 325 (“M2B”) at [17]. The defendant can also show that “there is an issue or question in dispute which ought to be tried or that there ought for some other reason to be a trial of that claim”: O 14, r 3(1).

However, a triable issue or a reasonable probability of a bona fide defence is not established by a mere assertion in an affidavit. In M2B at [19], Judith Prakash J cited with approval the following passage from Bank Negara Malaysia v Mohd Ismail [1992] 1 MLJ 400:

Under an O 14 application, the duty of a judge does not end as soon as a fact is asserted by one party, and denied or disputed by the other in an affidavit. Where such assertion, denial or dispute is equivocal, or lacking in precision or is inconsistent with undisputed contemporary documents or other statements by the same deponent, or is inherently improbable in itself, then the judge has a duty to reject such assertion or denial, thereby rendering the issue not triable. …

[emphasis in original]

In other words, a triable issue or a reasonable probability of a bona fide defence is not one which is either (a) inconsistent with undisputed contemporary documents, or (b) inherently improbable in itself. This principle is not controversial and has also been noted in Goh Chok Tong v Chee Soon Juan [2003] 3 SLR(R) 32 at [25], which was cited to me by the defendant.

Issue (a): Proper party to the loan agreement Defendant’s submissions

Counsel for the defendant, Mr Narayanan, submitted that the loan agreement was between the defendant and the plaintiff’s parent company, and not between the defendant and the plaintiff. This submission was based on a resolution made by the defendant’s board of directors dated 20 April 2015, which provided that:

Repayment of Loan

Resolved That the repayment of the loan of USD 6.55 million by the company to Wayne Burt Systems Pte Ltd (ACRA Reg No.201114930Z) of 6 Woodlands Loop Singapore 738346 be hereby approved.

Dated: 20 April 2015

[emphasis in original]

According to Mr Narayanan, this resolution recorded that the payment be from the defendant to the plaintiff’s parent company, and hence the loan agreement was between them.

Plaintiff’s submissions

Counsel for the plaintiff, Mr Ravindran, distinguished between the loan agreement and the provision of the loan itself. He submitted that the loan agreement was between the defendant, the plaintiff’s parent company, and the plaintiff; although the parties eventually decided that the plaintiff’s parent company would physically provide the loan. Mr Ravindran drew support from the affidavit of Jason Lim, the defendant’s own director (“Jason Lim’s affidavit”). In Jason Lim’s affidavit, he stated that: 9 However, by this time, the tranche of US$3 million was not required by the Defendant as sufficient funds had been raised. Consequently, on 24 February 2015, the Defendant transferred a total of US$3.15 million in two tranches to Mr Justin Lim on his representation that he represented WBS. The purpose of the Defendant’s transfer to Mr Justin Lim was for the repayment of the US$3 million loan from WBS, as well as for the repayment of some loans that Mr Justin Lim had personally made to the Defendant previously. Mr Justin Lim received the sum of US$3.15 million for and on behalf of WBS and the Plaintiff. A copy of the Defendant’s summary of transactions evidencing the abovementioned remittances is annexed herewith as “JL-1”.

[emphasis in bold in original, emphasis added in italics]

Mr Ravindran submitted that this paragraph made it clear that although the money physically moved from the plaintiff’s parent company to the defendant, at all times even the defendant saw the loan agreement to include not only the plaintiff’s parent company, but also the plaintiff.

My decision

I found the defendant’s submissions on this point to be without merit. The mere fact that the money moved from the plaintiff’s parent company did not mean that the loan agreement was between the defendant and the plaintiff’s parent company only, and excluded the plaintiff.

While the defendant only needed to show a triable issue or a reasonable probability of the defence succeeding in this case, I found that this standard was not made out on the evidence. The only piece of evidence that the defendant proffered was the resolution which I have set out above. Quite apart from the fact that it comes from the defendant’s own board of directors and not the plaintiff or the plaintiff’s parent company, this resolution only provides that “repayment” of the money is made to the plaintiff’s parent company. It does not refer to the loan agreement. This evidence was neutral at best.

In contrast, I found that the defendant’s account was both...