Case Details
- Citation: [2019] SGHC 158
- Title: Viking Engineering Pte Ltd v Feen, Bjornar and others
- Court: High Court of the Republic of Singapore
- Date of Decision: 04 July 2019
- Judge: Valerie Thean J
- Coram: Valerie Thean J
- Case Number: Suit No 294 of 2017
- Summons: Summons No 5784 of 2018
- Tribunal/Court: High Court
- Plaintiff/Applicant: Viking Engineering Pte Ltd
- Defendant/Respondent: Feen, Bjornar and others
- Other Parties (as described): Viking Inert Gas Pte Ltd; Feen Marine Pte Ltd; Scanjet Feen IGS Pte Ltd; Feen Marine Scrubbers Pte Ltd
- Legal Area: Civil Procedure — Judgments and Orders — Enforcement
- Decision Type: Reasons for decision on enforcement application (payment of valuation costs)
- Counsel for Plaintiff/Applicant: Mahesh Rai s/o Vedprakash Rai and Ang Si Yi (Drew & Napier LLC)
- Counsel for Defendants/Respondent: Kelvin David Tan and Sara Ng (instructed counsel, Vicki Heng Law Corporation) and Byron Nicholas Xavier (Xavier & Associates LLC)
- Statutes Referenced: Supreme Court of Judicature Act (Cap. 322)
- Rules of Court Referenced: Order 45 rr 6 and 8; Order 92 r 4 (Rules of Court (Cap. 322, R5, 2014 Rev Ed))
- Cases Cited: [2019] SGHC 158 (as per metadata); Mok Kah Hong v Zheng Zhuan Yao [2016] 3 SLR 1
- Judgment Length: 8 pages, 4,120 words
Summary
Viking Engineering Pte Ltd v Feen, Bjornar and others [2019] SGHC 158 concerned an enforcement application arising from earlier minority oppression proceedings. After the High Court ordered a buy-out of Viking Engineering’s shares in Viking Inert Gas Pte Ltd, the parties agreed to appoint an independent valuer to determine the fair value of the shares. Although the court had already determined that no discount should apply to Viking Engineering’s minority holding and had ordered the buy-out, the independent valuer’s invoice was not paid. The plaintiff therefore sought an order compelling payment of the valuer’s outstanding fees.
The High Court (Valerie Thean J) held that the appropriate procedural mechanism was Order 45 r 6 of the Rules of Court, which empowers the court to fix a time for doing an act where a judgment or order requiring that act does not specify a time. The court set a 7-day timeframe for the defendant to pay the independent valuer’s invoice. In doing so, the court rejected the defendant’s argument that the plaintiff’s enforcement application was procedurally misconceived and that the valuer should instead sue on the invoice.
What Were the Facts of This Case?
Viking Engineering and Mr Bjornar Feen were joint venture partners in Viking Inert Gas Pte Ltd (“Viking Inert Gas”). In 2013, they entered into a sale and purchase agreement under which Viking Engineering, then a 51% shareholder, sold 21% of its shareholding to Mr Feen. This transaction resulted in Mr Feen holding 70% of Viking Inert Gas. In return, Mr Feen undertook to implement corporate changes, including changing the corporate name of Viking Inert Gas to Feen Marine Pte Ltd (“Feen Marine”). Mr Feen was also the sole director of multiple related companies, including Feen Marine, Scanjet Feen IGS Pte Ltd (“Scanjet Feen”), and Feen Marine Scrubbers Pte Ltd.
In April 2017, Viking Engineering commenced High Court Suit No 294 of 2017 as a minority shareholder claim for minority oppression. Viking Engineering’s case was that Mr Feen breached the sale and purchase agreement by transferring his shareholding in Viking Inert Gas to Feen Marine, and by failing to change the name of Viking Inert Gas to Feen Marine as required. Instead, Viking Engineering alleged that Mr Feen incorporated a company using the same name, and that business and corporate opportunities of Viking Inert Gas were diverted to Feen Marine and Scanjet Feen IGS. Viking Engineering also added Feen Marine Scrubbers Pte Ltd as a defendant during the proceedings, after further allegations of diversion of opportunities to that entity.
As the litigation progressed, Viking Engineering sought summary judgment and leave was granted to amend its prayers to include a buy-out of Viking Engineering’s shares by Mr Feen. The High 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. The court also ordered Mr Feen to purchase Viking Engineering’s entire shareholding in Viking Inert Gas, with an independent valuer to be appointed by agreement within 14 days of final judgment to ascertain the fair value of the shares. A key issue for valuation was whether a discount should be applied to Viking Engineering’s minority holding; the court ultimately held that no discount should be applied.
Following the court’s earlier decision, the parties jointly appointed FTI Consulting (Singapore) Pte Ltd (“FTI”) as the independent valuer on 13 June 2018. The terms of FTI’s appointment reflected that the first defendant would bear the costs of the valuation exercise. FTI’s engagement letter estimated professional fees of between $80,000 and $90,000, and set out an expected timeline of approximately six weeks for the valuation work, with an additional three weeks for production of the report. However, Mr Feen did not deliver documents within the prescribed timeframe. After reminders and warnings that delays would increase costs, FTI continued its work based on submissions received, and conducted additional investigative and research work to complete the valuation.
FTI completed its determination and informed the parties on 2 November 2018 that an invoice would follow. 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’s failure to provide requested documents or his provision of documents out of time. Although the final sum was discounted relative to the total time and manpower costs, the invoice remained substantially higher than the initial estimate. Under the engagement terms, the valuation report would only be released upon payment in full of outstanding fees, disbursements, and expenses. Despite Viking Engineering’s follow-up emails and letters seeking confirmation of payment, no payment was made and FTI did not release the report.
On 7 December 2018, Viking Engineering brought the present summons seeking an order that Mr Feen pay the outstanding invoice within 7 days, relying on the Rules of Court provisions governing enforcement of judgments and orders. Mr Feen appealed the order and argued that the plaintiff had chosen the wrong procedural route.
What Were the Key Legal Issues?
The High Court identified two essential issues. The first was the applicable provision in the Rules of Court and the scope of that provision. Viking Engineering relied on Order 45 rr 6 and 8, as well as Order 92 r 4. The defendant’s position was that those provisions did not apply, and that the correct procedure would be for FTI to sue on its invoice rather than for Viking Engineering to bring an enforcement summons.
The second issue was whether Viking Engineering was entitled to relief under the applicable provision. This required the court to consider whether there was sufficient basis to compel payment of the valuer’s invoice and whether any procedural or substantive objections raised by Mr Feen could defeat the enforcement application. In particular, the defendant challenged the adequacy of FTI’s explanation for the increased invoice amount and criticised the number of employees and hours involved, as well as the lack of detailed breakdowns of disbursements.
Although the dispute was framed as a procedural question, the court’s analysis necessarily engaged with the practical context: the valuation was an integral step in implementing the buy-out order, and the valuer’s report was being withheld pending payment. The enforcement application therefore had a direct impact on the ability of the parties to complete the court-ordered transaction.
How Did the Court Analyse the Issues?
The court’s analysis began with the procedural question: which rule governed the application. Order 45 r 6 is designed to address situations where a judgment or order requiring a person to do an act does not specify a time for doing that act. It empowers the court to fix another time after service of the order, or to specify a time where none was previously specified. In this case, the earlier judgment and related orders had required Mr Feen to bear the costs of the valuation exercise, but the enforcement application concerned the timing for payment of the valuer’s invoice.
In determining whether Order 45 r 6 could be used, the court relied on guidance from the Court of Appeal in Mok Kah Hong v Zheng Zhuan Yao [2016] 3 SLR 1. The Court of Appeal emphasised that the court must have sufficient material before it to warrant the exercise of discretion under Order 45 r 6(2). The High Court therefore examined whether the record contained adequate information to justify fixing a payment deadline. The court considered that the invoice had been issued, the engagement terms specified payment timing and the withholding of the report pending payment, and there was evidence of non-payment despite reminders.
On that basis, the court concluded that it was appropriate to use Order 45 r 6. The defendant’s argument that the plaintiff should not bring the summons because FTI should sue on the invoice was not accepted. The enforcement application was not treated as a substitute for a separate contractual claim by the valuer; rather, it was treated as a mechanism to give effect to the court’s earlier order that Mr Feen bear the valuation costs and to ensure that the valuation process could proceed. The court’s approach reflected the purpose of enforcement provisions: to prevent injustice and to avoid procedural stalling where a court-ordered act is necessary for the resolution of the substantive dispute.
The court then addressed the second issue: whether Viking Engineering should receive the relief sought. The court noted that Mr Feen had agreed, on 9 April 2018, that he would pay the costs of a valuation ordered as a result of the action. Despite this agreement, he failed to pay the invoice issued by FTI. The court also considered the explanation for the cost overrun. FTI’s invoice letter attributed the increase primarily to Mr Feen’s failure to provide requested documents in time or at all, and to the consequent need for additional investigative and research work. The court found that there was no legitimate reason for non-payment on the evidence before it.
Mr Feen’s criticisms of the invoice—such as the alleged lack of adequate explanation for the final sum, the number of employees and hours, and the absence of a breakdown of disbursements—were treated as matters that did not justify continued refusal to pay in the context of the court-ordered valuation process. The court’s reasoning suggests that where a valuer’s engagement terms and invoice explanations are provided, and where the delay and document failures are established, the enforcement court will be reluctant to allow non-payment to persist absent a cogent basis. In other words, the enforcement application was not a forum for a full-scale taxation or detailed audit of the valuer’s time and disbursements; it was a mechanism to ensure compliance with the obligation to bear valuation costs and to maintain momentum in implementing the buy-out.
Finally, the court fixed a timeframe for payment. It set 7 days for Mr Feen to pay FTI’s invoice. This timeframe aligned with the relief sought and was consistent with the court’s view that the valuation report should be released so that the parties could complete the buy-out and finalise the consequences of the earlier minority oppression decision. The court’s use of Order 45 r 6 thus served both procedural and substantive ends: it ensured that the earlier order was not rendered ineffective by delay in payment.
What Was the Outcome?
The High Court ordered that Mr Feen pay FTI’s invoice within 7 days. The practical effect was to compel payment of the independent valuer’s outstanding fees so that the valuation report could be released and the buy-out process could proceed without further procedural obstruction.
By granting the enforcement relief, the court affirmed that Order 45 r 6 is an appropriate tool to fix a time for performance where the earlier order requires an act (here, payment of valuation costs) but does not specify a payment deadline. The defendant’s appeal was therefore addressed through the court’s reasons for enforcing compliance.
Why Does This Case Matter?
Viking Engineering Pte Ltd v Feen, Bjornar and others [2019] SGHC 158 is significant for practitioners because it clarifies how enforcement applications can be structured when a court order contemplates a valuation or other expert process that depends on payment. The case demonstrates that the court will not allow the implementation of substantive orders—particularly those involving buy-outs and valuations—to be stalled by non-payment, especially where the obligation to bear costs has already been agreed or ordered.
From a procedural standpoint, the decision reinforces the utility of Order 45 r 6 in Singapore civil practice. Where a judgment or order requires a party to do an act but does not specify a time, the court can subsequently fix a time after service. The court’s reliance on Mok Kah Hong v Zheng Zhuan Yao underscores that the court must have sufficient material to exercise its discretion, including evidence of non-compliance, the existence of an invoice or demand, and the practical consequences of continued delay.
For litigators, the case also provides guidance on how to respond to arguments that enforcement should be left to the expert or third party. Even where the invoice is issued by the valuer, the enforcement court can treat the payment obligation as part of giving effect to the earlier court order. This is particularly relevant in minority oppression and shareholder buy-out contexts, where valuation is often a gating step for final settlement and where delays can have cascading commercial effects.
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
- Mok Kah Hong v Zheng Zhuan Yao [2016] 3 SLR 1
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.