Case Details
- Citation: [2019] SGHC 158
- Title: VIKING ENGINEERING PTE. LTD. v BJORNAR FEEN also known as BJOERNAR FEEN & 4 Ors
- Court: High Court of the Republic of Singapore
- Date of Decision: 4 July 2019
- Lower Court / Suit No: Suit No 294 of 2017
- Summons No: HC/SUM 5784 of 2018
- Judge: Valerie Thean J
- Plaintiff/Applicant: Viking Engineering Pte Ltd
- Defendant/Respondent: Bjornar Feen (also known as Bjoernar Feen) & 4 Ors
- Other Parties (as named in the proceedings): Feen Marine Pte Ltd; Viking Inert Gas Pte Ltd (formerly known as Inert Gas Asia Pte Ltd); Scanjet Feen IGS Pte Ltd; Feen Marine Scrubbers Pte Ltd
- Procedural Posture: Application for payment of an independent valuer’s invoice following earlier minority oppression and buy-out orders; decision on the applicable procedural mechanism and whether the invoice should be enforced
- Legal Areas: Civil Procedure; Enforcement of court orders; Minority oppression/buy-out valuation process (context)
- Statutes Referenced: Supreme Court of Judicature Act (Cap. 322)
- Rules of Court Referenced: Order 45 rr 6 and 8; Order 45 r 6 (scope and process); Order 45 r 8 (consequences of non-compliance); Order 92 r 4 (as relied upon)
- Cases Cited: [2019] SGHC 158 (as provided in metadata)
- Judgment Length: 17 pages, 4,486 words
Summary
This High Court decision concerns enforcement of a court-ordered valuation in the context of a minority shareholder dispute. Viking Engineering Pte Ltd (“Viking Engineering”) and Mr Bjornar Feen (“Mr Feen”) were joint venture partners in Viking Inert Gas Pte Ltd (“Viking Inert Gas”). Following earlier findings and orders in Suit No 294 of 2017, the court required Mr Feen to purchase Viking Engineering’s shares in Viking Inert Gas at a fair value determined by an independent valuer. The parties jointly appointed FTI Consulting (Singapore) Pte Ltd (“FTI”) as the independent valuer, and it was agreed that Mr Feen would bear the costs of the valuation exercise.
After FTI completed its valuation, it issued an invoice for professional fees and disbursements. Mr Feen did not pay, and FTI withheld release of the valuation report pending payment. Viking Engineering therefore applied for an order requiring Mr Feen to pay the outstanding invoice within a specified time. The key issues were (i) which procedural provision in the Rules of Court governed such an enforcement application, and (ii) whether Viking Engineering was entitled to the relief sought, including whether the invoice amount was reasonable and whether Mr Feen’s conduct justified enforcement.
The court held that it was appropriate to use Order 45 r 6 of the Rules of Court to require the act (payment) to be done within a further time after service of the enforcement order. The court also found that there was a sufficient basis to make the enforcement order and that Mr Feen’s objections did not defeat Viking Engineering’s application. Accordingly, the court ordered Mr Feen to pay FTI’s invoice within seven days.
What Were the Facts of This Case?
The dispute has its origins in a sale and purchase agreement dated 10 September 2013 relating to Viking Inert Gas. At the time, Viking Engineering was a 51% shareholder. Under the agreement, Viking Engineering sold 21% of its shareholding to Mr Feen, resulting in Mr Feen holding 70% of Viking Inert Gas. In return, Mr Feen gave undertakings, including undertakings relating to corporate naming and the conduct of business affairs.
One of the undertakings required a change of the corporate name of Viking Inert Gas to Feen Marine Pte Ltd (“Feen Marine”). Mr Feen was also described as the sole director of multiple companies connected to the venture, including Feen Marine, Scanjet Feen IGS Pte Ltd (“Scanjet Feen”), and Feen Marine Scrubbers Pte Ltd (“Feen Marine Scrubbers”). All were Singapore-incorporated companies. Viking Engineering later alleged that Mr Feen breached the sale and purchase agreement by transferring his shareholding to Feen Marine and by failing to change the name of Viking Inert Gas as required, instead incorporating a company using the same name. Viking Engineering further alleged that business and corporate opportunities of Viking Inert Gas were diverted to Feen Marine and other related entities.
On 4 April 2017, Viking Engineering commenced High Court Suit No 294 of 2017 as a minority shareholder oppression claim. The pleaded case included allegations of breach of the sale and purchase agreement and diversion of opportunities. Viking Engineering then sought summary judgment, and leave was granted to amend the prayers to include a buy-out of Viking Engineering’s shares by Mr Feen. During the proceedings, the court granted an injunction restraining Mr Feen and his agents from using the name “Viking” in a manner that could compete with or be associated with Viking Engineering’s business.
Ultimately, the court ordered that Mr Feen purchase Viking Engineering’s entire shareholding in Viking Inert Gas. The valuation was to be carried out by an independent valuer appointed by agreement within a specified time after final judgment. The court also addressed the question of whether a discount should apply to Viking Engineering’s minority shareholding, and it held that no discount should be applied. The valuer was asked to make valuation adjustments reflecting Mr Feen’s conduct and the alleged diversion of opportunities to related companies. In the course of finalising the orders, the parties agreed that the cost of the valuation exercise would be borne by Mr Feen.
Following this, on 13 June 2018, FTI Consulting (Singapore) Pte Ltd was jointly appointed as the independent valuer. FTI’s letter of engagement reflected that the first defendant (Mr Feen) would bear the costs. FTI’s engagement letter stipulated a scale of professional fees and hourly rates and estimated overall fees between $80,000 and $90,000. A timeline was set out in an email from FTI’s representative, with an estimated six-week period for document review and a further three weeks for report production. However, the documents were not delivered within the prescribed time period. FTI issued reminders and warned that delays would increase costs because it would commence work based on submissions received and would need to allocate staff accordingly.
FTI eventually completed its determination. On 12 November 2018, FTI issued an invoice to Mr Feen’s solicitors for $181,900. FTI explained that the significant cost overrun was “almost entirely attributable” to Mr Feen, because he either failed to provide requested documents or provided them out of time. While FTI’s invoice reflected a total time and manpower cost of $250,956.75, it applied a discount in light of the earlier estimate. Under the engagement terms, the valuation report would only be released upon payment in full of the outstanding fees, disbursements and expenses. Mr Feen did not pay the invoice, and Viking Engineering applied to enforce payment.
What Were the Key Legal Issues?
The decision turned on two essential issues. First, the court had to determine the applicable procedural mechanism under the Rules of Court for enforcing payment of the valuer’s invoice. Viking Engineering relied on Order 45 rr 6 and 8, and also on Order 92 r 4. Mr Feen argued that those provisions were not applicable and that the correct procedure would be for FTI to bring a separate action on its invoice against him.
Second, assuming the correct procedural route, the court had to decide whether Viking Engineering was entitled to the enforcement relief sought. This required the court to consider whether there was a sufficient basis to order payment within a short timeframe, and whether Mr Feen could resist payment by challenging the reasonableness of the invoice amount. Mr Feen contended that the final invoice was almost triple the initial estimate and that FTI had not provided adequate breakdowns of disbursements and the cover letter did not sufficiently explain the increase. He also challenged the staffing and hours, alleging that the work was excessive and not justified. In addition, he offered explanations for his delays in providing documents, stating that he was a marine engineer frequently overseas and rarely in his office.
Underlying these issues was the broader question of whether the court’s earlier orders and the agreed terms of FTI’s appointment created an enforceable obligation for Mr Feen to pay the valuation costs, and whether the court could compel payment without requiring a separate suit by the valuer.
How Did the Court Analyse the Issues?
The court began by identifying the two essential issues: the applicable provision and its scope, and whether Viking Engineering was entitled to relief under that provision. The court then focused on Order 45 r 6, which empowers the court to fix another time for doing an act required by a judgment or order, notwithstanding that the original judgment or order specifies a time. The court emphasised that the rule is designed to address situations where an act required by a court order has not been done within the time specified, and the court can subsequently require the act to be done within a further time after service of the enforcement order.
Viking Engineering’s reliance on Order 45 rr 6 and 8 reflected its view that the court’s earlier orders requiring Mr Feen to bear the valuation costs and to procure the valuation process could be enforced through the procedural machinery for compliance with court orders. Mr Feen’s counter-position was that payment of the valuer’s invoice was not the kind of act that could be enforced under the cited provisions, and that the valuer should sue him directly. The court rejected that narrow approach, holding that it was appropriate to use Order 45 r 6. In doing so, the court treated the payment obligation as an “act” required by the court’s earlier orders and/or the agreed terms that were incorporated into the court’s process for the buy-out valuation.
Having determined the correct procedural route, the court then addressed whether Viking Engineering had a sufficient basis for the enforcement order. The court considered the timeline and the conduct of the parties in the valuation process. It was significant that the parties had agreed that Mr Feen would bear the valuation costs, and that FTI’s engagement terms required payment in full before release of the valuation report. The court also noted that FTI’s invoice was issued after completion of the valuation, and that Viking Engineering had sought confirmation of payment without receiving any response. Mr Feen’s failure to pay meant that the valuation report would not be released, thereby undermining the practical implementation of the buy-out mechanism ordered by the court.
On the reasonableness of the invoice, the court examined Mr Feen’s objections. While Mr Feen argued that the final sum was far higher than the initial estimate and that FTI had not adequately explained the overrun, the court accepted that the overrun was linked to delays and failures in providing documents. FTI had warned that delays would increase costs and had explained that the significant cost overrun was attributable “almost entirely” to Mr Feen’s failure to provide requested documents on time or at all. The court also took into account that FTI had applied a discount from the total time and manpower cost, which suggested that FTI had moderated the final invoice in light of the earlier estimate.
The court further considered Mr Feen’s explanation for his delays. Although Mr Feen stated that he was frequently overseas and rarely in his office, the court treated this as insufficient to justify non-payment in the face of repeated reminders and the engagement terms. The court characterised Mr Feen’s lack of good faith as relevant to the enforcement analysis. In other words, the court was not persuaded that Mr Feen’s conduct was consistent with a genuine attempt to comply with the valuation process and its cost consequences. The court’s reasoning therefore combined procedural authority (Order 45 r 6) with an assessment of fairness and practicality: the valuation had been completed, the invoice had been issued, and payment was necessary to release the report and allow the buy-out mechanism to proceed.
Finally, the court considered the appropriate timeframe for compliance. Given that the valuation report was withheld pending payment and that the buy-out process depended on the valuation, the court set a short and clear deadline. It ordered payment within seven days, reflecting the need to prevent further delay and to ensure that the court’s earlier orders were not rendered ineffective by non-payment.
What Was the Outcome?
The court ordered that Mr Feen pay FTI’s outstanding invoice within seven days of the order. This enforcement order was made under Order 45 r 6 of the Rules of Court, with the court effectively requiring compliance by setting a further time for the act of payment.
Practically, the effect of the order was to remove the obstacle to release of the valuation report. Once payment was made, FTI would be able to release the valuation determination, enabling the buy-out process ordered in the earlier suit to move forward without further procedural stalling.
Why Does This Case Matter?
This case is significant for practitioners because it clarifies how the court may enforce compliance with court-ordered processes that involve third-party professionals, particularly where the professional’s engagement terms make payment a condition for delivery of deliverables. The decision demonstrates that a party cannot necessarily avoid enforcement by arguing that the professional must sue separately. Instead, where the court’s orders and the agreed framework require a party to bear costs and to facilitate the valuation process, the court can use the enforcement provisions in the Rules of Court to compel payment.
From a procedural standpoint, the case illustrates the scope of Order 45 r 6. The court treated payment of an invoice as an “act” that could be required within a further time after service of the enforcement order. This is useful for lawyers seeking to enforce compliance efficiently, especially in commercial disputes where delays can have cascading effects on substantive rights and remedies.
Substantively, the decision also provides guidance on how courts may assess objections to professional fees in the enforcement context. While fee reasonableness can be a legitimate concern, the court’s reasoning indicates that where the fee increase is credibly linked to a party’s non-cooperation or delay, and where the professional has provided explanations and applied discounts, the court may be willing to order payment without requiring a full separate taxation or suit. The court’s emphasis on Mr Feen’s lack of good faith further underscores that enforcement relief may be influenced by the overall conduct of the resisting party.
Legislation Referenced
- Supreme Court of Judicature Act (Cap. 322)
- Rules of Court (Cap. 322, R5, 2014 Rev Ed): Order 45 rr 6 and 8; Order 92 r 4
Cases Cited
Source Documents
This article analyses [2019] SGHC 158 for legal research and educational purposes. It does not constitute legal advice. Readers should consult the full judgment for the Court's complete reasoning.