Case Details
- Title: ALTERNATIVE ADVISORS INVESTMENTS PTE LTD & Anor v ASIDOKONA MINING RESOURCES PTE LTD & Anor
- Citation: [2020] SGHC 125
- Court: High Court of the Republic of Singapore
- Date of Decision: 18 June 2020
- Judgment Reserved / Dates Noted: Judgment reserved; 8 June 2020 (reserved) and 18 June 2020 (delivered)
- Judges: Choo Han Teck J
- Registrar’s Appeal No: 80 of 2020
- Suit No: 734 of 2018
- Plaintiff/Applicant: Alternative Advisors Investments Pte Ltd; Supreme Star Investments Ltd
- Defendant/Respondent: Asidokona Mining Resources Pte Ltd; Soh Sai Kiang
- Legal Areas: Civil Procedure; Discovery of Documents; Striking Out; “Unless” Orders
- Statutes Referenced: Not specified in the provided extract
- Cases Cited: [2020] SGHC 125 (no other authorities are identified in the provided extract)
- Judgment Length: 7 pages; 1,793 words
Summary
This High Court decision concerns the enforcement of discovery obligations through an “unless” order and the consequences of non-compliance. The plaintiffs, Alternative Advisors Investments Pte Ltd and Supreme Star Investments Ltd, sued to recover sums allegedly lent under a loan agreement and related security documents. The dispute was intertwined with documentary discovery, particularly as to the source of part of the loan monies said to have been contributed by a “Hong Kong investor”.
The defendants obtained specific discovery orders. When the plaintiffs allegedly failed to comply, the assistant registrar issued an “unless” order requiring compliance by a fixed deadline or else the plaintiffs’ claim would be struck out. The first plaintiff appealed against the Unless Order after it was not complied with, and the High Court ultimately set aside the Unless Order, allowing the appeal.
In doing so, the court criticised the unusual procedural direction imposed on the plaintiffs—namely, requiring either a solicitor to confirm that a witness’s affidavits “bind” the parties, or requiring another witness to file an affidavit addressing whether she and/or the second plaintiff had possession, custody, or power of specified documents. The court held that, on the facts, the assistant registrar’s approach was unnecessary and that the first plaintiff should not have been penalised with striking out for non-compliance with an order that did not properly reflect the discovery framework and the existing affidavits already filed.
What Were the Facts of This Case?
The underlying dispute arose from a loan arrangement dated 22 July 2016 (the “Alleged Loan Agreement”). The plaintiffs’ case was that Supreme Star Investments Ltd (the second plaintiff) lent S$2 million to Asidokona Mining Resources Pte Ltd (the first defendant). The plaintiffs alleged that a Mr Wong Joo Wan executed the Alleged Loan Agreement on behalf of the second plaintiff.
Mr Wong was described as the managing director of the first plaintiff and the principal of the second plaintiff. The second defendant, Soh Sai Kiang, was alleged to have acted as guarantor under a personal guarantee (the “Alleged Guarantee”). In addition, the plaintiffs alleged that he executed a deed charging all his shares in the first defendant in favour of the second plaintiff (the “Alleged Deed of Charge”). The plaintiffs sought recovery of the outstanding principal and interest, as well as delivery up of the shares.
A further complexity concerned an attempted assignment of the Alleged Loan Agreement, Guarantee, and Deed of Charge from the second plaintiff to the first plaintiff. The plaintiffs joined the second plaintiff to the action because it was disputed whether the assignment was effective. This meant that discovery obligations and the binding effect of affidavits were not merely technical; they had direct consequences for who could properly give evidence and what documents were within each party’s possession, custody, or power.
On the discovery front, the defendants 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 protested that certain documents were irrelevant. They maintained that half of the loan monies came from Mr Wong and the other half came from a “Hong Kong investor”. The defendants then complained that the plaintiffs had not complied with the discovery order and applied for an “unless” order to enforce compliance.
What Were the Key Legal Issues?
The principal legal issue was whether the assistant registrar’s “unless” order—issued after multiple hearings and directions—was properly made and should be upheld. This required the High Court to consider whether the plaintiffs’ non-compliance justified the draconian consequence of striking out the claim.
Closely connected to that issue was the procedural question of how discovery obligations should be addressed where the relevant documents are said to be held by a third party or where the plaintiffs’ evidence about possession, custody, or power is given through affidavits by a witness who may or may not have authority to speak for all parties. The assistant registrar’s unusual direction effectively sought to resolve whether affidavits filed by Mr Wong “bind” the parties and whether the second plaintiff and/or its director/shareholder (Ms Lou Swee Lan) had possession, custody, or power of certain categories of documents.
Finally, the court had to determine whether the assistant registrar’s approach was necessary in light of the affidavits already filed by Mr Wong. The High Court’s reasoning turned on whether the existing affidavits already addressed the discovery position for both plaintiffs, and whether there was any evidential basis to require additional confirmation from Ms Lou or to impose a solicitor-binding mechanism.
How Did the Court Analyse the Issues?
The High Court, through Choo Han Teck J, reviewed the procedural history in detail. The assistant registrar’s directions were made in stages across four tranches of hearings between February and March 2020. At the first hearing on 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. The categories of documents included those evidencing the alleged contribution of S$1 million from the “Hong Kong investor” and communications between the “Hong Kong investor” and Mr Wong and/or the second plaintiff regarding that contribution.
At that stage, the plaintiffs’ narrative was that the “Hong Kong investor” contributed the S$1 million. The court noted that Mr Jeffrey Ong, a lawyer with JLC Advisors LLP, was alleged to have put together the Alleged Loan Agreement and was then in remand pending investigations for fraud. The plaintiffs said they complied with the 3 February order, while the defendants contended that compliance was incomplete.
At the subsequent hearing, the assistant registrar directed the plaintiffs to write to JLC Advisors LLP to ask it to produce all 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 court later observed that this direction became problematic because 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.
As a result, on 17 March 2020, the assistant registrar directed the plaintiffs to comply with either of two options by 24 March 2020. Option 1 required the plaintiffs’ solicitor at the time (Mr Nicholas Narayanan) to confirm to the court that Mr Wong’s 8th, 9th, 10th, and 11th affidavits and a supplementary affidavit verifying a list of documents dated 14 November 2019 “bind” the “HK investor” and, importantly, that this confirmation did not mean other affidavits did not bind the plaintiffs. The assistant registrar further clarified that the confirmation meant that Lou Swee Lan and the second plaintiff did not have possession, custody, or power of the documents as at the dates of the respective 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 or had at any time had possession, custody, or power of specified categories of documents. The court then recorded that the plaintiffs’ solicitor at the time applied to be discharged and was discharged on 4 June 2020. The assistant registrar’s order of 17 March 2020 was not complied with, and at the fourth hearing on 31 March 2020, the assistant registrar directed that unless the 17 March order was complied with by 7 April 2020, the plaintiffs’ claim would be struck out.
The High Court’s analysis focused on the propriety and necessity of the assistant registrar’s directions. The judge described the direction as “unusual” and explained why. First, the court emphasised that every affidavit should state on whose behalf it is sworn or affirmed. Typically, an affidavit begins with a statement such as “I make this affidavit on behalf of …”. Where such a statement is omitted and it becomes necessary to establish on whose behalf a witness’ affidavit was made, the proper procedural remedy is for the witness to swear a supplementary affidavit or refile the original affidavit with the necessary amendment.
Second, the court articulated a general principle: every person will be bound by the affidavits he makes. If an affidavit was made on behalf of another person without authority, that other person must swear an affidavit disclaiming it. The judge added that the practical mechanism to ensure fairness is to ensure that all such other persons had been served with the affidavit in question. In the judge’s view, solicitors are best advised to refrain from swearing affidavits of facts on behalf of their clients, because the affidavit evidence should come from the relevant party or authorised witness.
Applying these principles, the High Court considered the position of Ms Lou Swee Lan. The judge noted that Ms Lou was not a party to the proceedings in her personal capacity. While she could be a witness as sole shareholder and director of the second plaintiff, the second plaintiff—not Ms Lou personally—was the party subject to discovery obligations. Therefore, for discovery purposes, the relevant question was whether the second plaintiff had possession, custody, or power of the documents in question, and whether the affidavits already filed by Mr Wong addressed that question for the second plaintiff.
The court 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, the judge reasoned, was entitled to file an affidavit denying that Mr Wong could speak on its behalf. However, it had not done so. In the absence of evidence that Mr Wong lacked authority to file his affidavits on behalf of the second plaintiff, the judge held that 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 to require an additional affidavit addressing possession, custody, or power.
The judge also addressed the conduct of the plaintiffs’ solicitor. The court remarked that it was “not clear” why Mr Narayanan did not make the point that the existing affidavits already covered the binding and possession issues, and instead applied to be discharged. This procedural misstep did not, in the High Court’s view, justify the severe consequence of striking out the plaintiffs’ claim.
Ultimately, the High Court concluded that the Unless Order against the first plaintiff ought to be set aside. The appeal was allowed, and costs were reserved to the trial judge.
What Was the Outcome?
The High Court allowed the first plaintiff’s appeal and set aside the assistant registrar’s “Unless Order” that had led to the striking out of the plaintiffs’ claim for non-compliance. The practical effect was that the plaintiffs’ action would continue rather than being terminated at the interlocutory stage.
Costs were not immediately determined; they were reserved to the trial judge. This means that the question of costs consequences arising from the discovery dispute and the procedural history would be dealt with at a later stage, likely in conjunction with the final outcome of the substantive dispute.
Why Does This Case Matter?
This decision is significant for practitioners because it clarifies the limits of “unless” orders as a tool for enforcing discovery. While discovery is a core component of civil litigation and courts may impose stringent sanctions for non-compliance, the High Court’s reasoning demonstrates that striking out should not be imposed where the procedural direction leading to non-compliance is unnecessary, unusual, or not aligned with the established logic of affidavit evidence and authority.
For lawyers advising on discovery, the case highlights the importance of properly drafted affidavits. If an affidavit is intended to be sworn on behalf of a party, it should clearly state that it is made on behalf of that party. If authority is in doubt, the appropriate remedy is to file supplementary affidavits or to disclaim authority through an affidavit by the relevant party. The court’s emphasis on these mechanics provides a practical checklist for litigators dealing with discovery disputes involving corporate parties and witnesses who may have overlapping roles.
More broadly, the case illustrates how courts may scrutinise the evidential foundation for additional discovery-related directions. Here, the assistant registrar’s requirement that a solicitor confirm that a witness’s affidavits “bind” the parties was criticised as departing from ordinary affidavit practice. Practitioners should take from this that courts expect discovery enforcement to be grounded in clear, fair, and procedurally coherent steps—particularly where the parties have already filed affidavits addressing possession, custody, or power.
Legislation Referenced
- No specific statutory provisions were identified in the provided judgment extract.
Cases Cited
- [2020] SGHC 125 (the present case)
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.