Case Details
- Citation: [2020] SGHC 125
- Case Title: Alternative Advisors Investments Pte Ltd and another v Asidokona Mining Resources Pte Ltd and another
- Court: High Court of the Republic of Singapore
- Date of Decision: 18 June 2020
- Judge: Choo Han Teck J
- Coram: Choo Han Teck J
- Case Number: Suit No 734 of 2018 (Registrar's Appeal No 80 of 2020)
- Tribunal/Court Level: High Court (hearing of appeal from assistant registrar)
- Plaintiff/Applicant: Alternative Advisors Investments Pte Ltd and another
- Defendant/Respondent: Asidokona Mining Resources Pte Ltd and another
- Parties (as described in judgment): Alternative Advisors Investments Pte Ltd — Supreme Star Investments Ltd — Asidokona Mining Resources Pte Ltd — Soh Sai Kiang
- Legal Areas: Civil Procedure — Striking out; Civil Procedure — Disclosure of documents
- Decision Type: Appeal allowed; Unless Order set aside; costs reserved to trial judge
- Judgment Length: 3 pages, 1,610 words
- Counsel for Plaintiffs/Applicants: Narayanan Sreenivasan SC, Muralli Rajaram and Kyle Gabriel Peters (K&L Gates Straits Law LLC)
- Counsel for Defendants/Respondents: Prakash P Mulani and Ruelia Rufus (M & A Law Corporation)
- Procedural Posture: Appeal against assistant registrar’s decision issuing an “unless” order for non-compliance with discovery; claim struck off when deadline missed
Summary
Alternative Advisors Investments Pte Ltd and another v Asidokona Mining Resources Pte Ltd and another [2020] SGHC 125 concerns the enforcement of a discovery regime through an “unless” order and the consequences of non-compliance. The plaintiffs sued to recover funds said to have been lent under a loan agreement, together with interest, and sought delivery up of shares. The defendants obtained specific discovery of documents relating to the source of the loan monies, including documents evidencing a purported contribution of S$1m from a “Hong Kong investor”.
After multiple hearings, the assistant registrar issued an “unless” order requiring the plaintiffs to comply with a particular mechanism for confirming that certain affidavits and discovery statements bound the relevant party and that the plaintiffs did not possess the requested documents. The plaintiffs did not comply by the deadline, and their claim was struck out. On appeal, Choo Han Teck J set aside the Unless Order, holding that the assistant registrar’s direction was unusual and unnecessary in the circumstances, given that affidavits already filed expressly stated they were made on behalf of both plaintiffs and confirmed the absence of the relevant documents in their possession, custody or power.
What Were the Facts of This Case?
The dispute arose from a financing arrangement allegedly documented in July 2016. The plaintiffs alleged that the second plaintiff lent the first defendant S$2m under a loan agreement dated 22 July 2016 (the “Alleged Loan Agreement”). The plaintiffs’ case was that Mr Wong Joo Wan executed the Alleged Loan Agreement on behalf of the second plaintiff. Mr Wong described himself as the managing director of the first plaintiff and the principal of the second plaintiff. The second defendant, Soh Sai Kiang, was alleged to be the sole shareholder and director of the first defendant and to have stood as guarantor under a personal guarantee (the “Alleged Guarantee”).
In addition, the plaintiffs alleged that the second defendant executed a deed charging all his shares in the first defendant in favour of the second plaintiff (the “Alleged Deed of Charge”). The second plaintiff later attempted to assign the Alleged Loan Agreement, Guarantee and Deed of Charge to the first plaintiff. Because the effectiveness of that attempted assignment was disputed, the first plaintiff joined the second plaintiff as a co-plaintiff to ensure that the claim could be properly maintained.
As the litigation progressed, the defendants sought discovery. They obtained an order for specific discovery of documents relating, among other things, to the source of the monies provided under the Alleged Loan Agreement. The plaintiffs resisted, contending that the requested documents were irrelevant. Their position was that half of the loan monies came from Mr Wong and the other half came from a “Hong Kong investor”. The defendants’ discovery request therefore targeted documentary evidence of the “Hong Kong investor’s” contribution and related communications.
During the discovery process, the plaintiffs produced various documents but the defendants complained that the plaintiffs still failed to comply with the discovery order. The dispute became particularly acute regarding documents said to evidence the “Hong Kong investor’s” contribution of S$1m to the second plaintiff. The plaintiffs’ narrative was that the relevant documents were not in their possession, custody or power, and that the party able to provide any missing documents was JLC Advisors LLP, the law firm alleged to have prepared the Alleged Loan Agreement. The case record also indicated that a lawyer with JLC Advisors LLP, Mr Jeffrey Ong, was alleged to be the lawyer who put the Alleged Loan Agreement together, and he was then in remand pending investigations for fraud.
What Were the Key Legal Issues?
The core legal issues were procedural and discovery-focused: first, whether the assistant registrar’s enforcement mechanism—an “unless” order—was properly made and proportionate in light of the plaintiffs’ discovery obligations; and second, whether the specific direction requiring confirmation that affidavits bound the “Hong Kong investor” (who turned out to be Ms Lou Swee Lan) was legally necessary and procedurally sound.
More specifically, the assistant registrar’s final “unless” order required the plaintiffs to comply with one of two unusual options. Option 1 required the plaintiffs’ solicitor at the time to confirm that Mr Wong’s affidavits bound the “Hong Kong investor” (and that the investor and the second plaintiff did not have possession, custody or power of the relevant documents as at the dates of those affidavits). Option 2 required Ms Lou Swee Lan to file an affidavit on behalf of the second plaintiff stating whether she and/or the second plaintiff had possession, custody or power of certain categories of documents. The legal question on appeal was whether this direction was necessary to resolve the discovery dispute, or whether it imposed an improper evidential burden.
Finally, the appeal also raised the question of consequences: if the Unless Order was not properly made, should the striking out of the plaintiffs’ claim stand, or should it be set aside? The court’s analysis therefore had to connect the discovery compliance framework to the drastic procedural sanction of striking out.
How Did the Court Analyse the Issues?
Choo Han Teck J began by placing the discovery enforcement in its procedural context. The assistant registrar had conducted the discovery enforcement in four tranches between February and March 2020. At the first hearing (3 February 2020), the assistant registrar ordered the plaintiffs to file an affidavit as to Mr Wong’s attempts to obtain documents from the second plaintiff’s solicitors at the material time, JLC Advisors LLP, or his inability to do so. This order covered categories of documents including evidence of the alleged S$1m contribution and communications between the “Hong Kong investor” and Mr Wong and/or the second plaintiff regarding that contribution.
At later hearings, the assistant registrar refined the enforcement. In a subsequent hearing, the assistant registrar ordered the plaintiffs to write to JLC Advisors LLP requesting bank statements for June and July 2016 evidencing payment by the “HK investor” towards the alleged loan. The plaintiffs were to file an affidavit exhibiting the letter and the response. The plaintiffs said they complied. However, at the third hearing, it transpired that the “Hong Kong investor” was in fact Ms Lou Swee Lan, who was also the sole shareholder and director of the second plaintiff. The assistant registrar took the view that she would not have made an order involving JLC Advisors LLP had she been aware of Ms Lou’s identity and role.
On 17 March 2020, the assistant registrar directed compliance by 24 March 2020 through either Option 1 or Option 2. The court on appeal found the direction problematic. Choo Han Teck J emphasised that the direction was unusual because it required either (i) the solicitor to confirm that his witness’ affidavits bound another person (the “HK investor”), or (ii) another witness to file an affidavit confirming that she and a party to the proceedings were bound by the affidavits of a different witness. The judge explained that, as a matter of affidavit practice, every affidavit ought to state on whose behalf it was sworn or affirmed. Typically, it begins with language such as “I make this affidavit on behalf of …”.
Where such a statement is omitted, the appropriate remedy is not to impose a bespoke confirmation mechanism, but rather to ensure the correct person swears a supplementary affidavit or refiles the original affidavit with the necessary amendment. The judge also articulated a fundamental principle: every person will be bound by the affidavits he makes. If an affidavit was made on behalf of another person without authority, then the other person must swear an affidavit disclaiming it. Importantly, the judge noted that the evidential and procedural steps needed to achieve this are straightforward—namely, ensuring that the other persons had been served with the affidavit in question.
Applying these principles, the judge held that the assistant registrar’s direction was unnecessary. In this case, Ms Lou was not a party to the proceedings in her personal capacity. While she could be a witness as the sole shareholder and director of the second plaintiff, the party to the action was the second plaintiff. Regarding discovery obligations, the judge observed that Mr Wong had already filed several affidavits which expressly stated that they were made on behalf of both plaintiffs and confirmed that both plaintiffs did not have in their possession, custody or power the documents the defendants sought. The second plaintiff could have filed an affidavit denying that Mr Wong had authority to speak on its behalf, but it had not done so. In the absence of evidence that Mr Wong lacked authority, it was not necessary for the assistant registrar to order Ms Lou to confirm that she and/or the second plaintiff were bound by Mr Wong’s affidavits, or that they did not have the relevant documents.
Choo Han Teck J further addressed the litigation conduct that led to the procedural sanction. The plaintiffs’ solicitor at the time, Mr Narayanan, applied to be discharged and his application was granted on 4 June 2020. The assistant registrar’s order on 17 March 2020 was not complied with. At the fourth hearing on 31 March 2020, the assistant registrar directed that unless the order of 17 March 2020 was complied with by 7 April 2020, the plaintiffs’ claim would be struck out. The first plaintiff then changed solicitors and appealed, but did not obtain a stay in time. When the Unless Order was not complied with by the deadline, the claim was struck off.
On appeal, the judge concluded that the Unless Order should be set aside because it was premised on an unnecessary and unusual direction. The judge also remarked that it was not clear why Mr Narayanan did not make the point that the existing affidavits already addressed the binding and possession/custody/power issues. Instead, Mr Narayanan applied to be discharged. Nonetheless, the legal defect in the assistant registrar’s direction remained decisive.
What Was the Outcome?
The High Court allowed the appeal and set aside the assistant registrar’s Unless Order. As a result, the striking out of the plaintiffs’ claim could not stand on the basis of non-compliance with that defective direction.
Costs were reserved to the trial judge. This means that while the procedural sanction was lifted, the ultimate question of costs would be determined at trial or at a later stage by the trial judge.
Why Does This Case Matter?
This decision is significant for practitioners because it clarifies the proper approach to enforcing discovery obligations through “unless” orders. While courts will take discovery compliance seriously, the sanction of striking out is drastic and must be grounded in directions that are legally necessary and procedurally fair. Choo Han Teck J’s reasoning underscores that enforcement should not be achieved by imposing unusual evidential requirements when the underlying discovery issue can be addressed through ordinary affidavit practice.
From a discovery and affidavit-management perspective, the case reinforces two practical lessons. First, affidavits should clearly state on whose behalf they are sworn. If authority is in question, the correct procedural response is for the relevant person to file an affidavit disclaiming authority, rather than for solicitors to provide confirmations that effectively substitute for proper affidavit evidence. Second, where affidavits already expressly cover the relevant party’s possession, custody or power, additional confirmation steps may be unnecessary unless there is evidence that the affidavits were not properly made on behalf of the party.
For litigators, the case also highlights the importance of strategic and timely procedural action when an Unless Order is threatened. Although the plaintiffs attempted to appeal and seek a stay, the stay could not be heard in time. The decision therefore serves as a reminder that counsel should identify and articulate legal objections to the form and necessity of discovery enforcement directions early, before non-compliance triggers irreversible consequences.
Legislation Referenced
- (Not specified in the provided judgment extract.)
Cases Cited
- [2020] SGHC 125 (the judgment itself; no other cited authorities are provided in the extract)
Source Documents
This article analyses [2020] SGHC 125 for legal research and educational purposes. It does not constitute legal advice. Readers should consult the full judgment for the Court's complete reasoning.