VIKTORIIA MYTSKY v MED TRAVEL PTE. LTD & Anor

"Given the two parties’ opposing positions on the true status of the shareholders of Med Travel, there is also obviously no prospect of either of the registered shareholders making a s 216A application in their capacity as shareholders. In these circumstances, I am prepared to accept that in her capacity as director of Med Travel (and solely as such), Ms Mytsyk is a “proper person” to bring the application under s 216A(1)(c)." — Per Mavis Chionh Sze Chyi J, Para 19

Case Information

• Citation: [2022] SGHC 75 (Para 0)
• Court: General Division of the High Court of the Republic of Singapore (Para 0)
• Case Number: Originating Summons No 987 of 2021 / HC/OS 987/2021 (Para 0; Para 1)
• Date: 13 January 2022, 25 February 2022; judgment reserved on 31 March 2022 (Para 0)
• Coram: Mavis Chionh Sze Chyi J (Para 0)
• Area of Law: Companies — Statutory derivative action (Para 0)
• Counsel: Ms Mytsyk was represented by counsel; Mr Anushka acted in person (Para 1)
• Judgment Length: The extraction shows the judgment running through background, statutory framework, authorities, and analysis, but the full page count is not provided in the extraction (Para 0)

What Was OS 987 About, and Why Was It Brought?

OS 987 was an application by Viktoriia Mytsyk under s 216A of the Companies Act for leave to bring proceedings in the name of and on behalf of Med Travel Pte Ltd against Amunugama Anushka Bandara for alleged breaches of director’s duties. The application also sought an indemnity for her reasonable legal fees and disbursements, although the final costs disposition is not visible in the extraction. The court therefore had to decide whether the statutory gateway for a derivative action had been satisfied on the facts before it. (Para 1)

The dispute did not arise in a vacuum. The judge explained that Ms Mytsyk and Mr Anushka had previously been married, had lived together with their children and children from Ms Mytsyk’s former marriage, and later entered divorce proceedings in August 2019. The company at the centre of the dispute, Med Travel, had been incorporated in 2012 and was in the travel business, including arrangements for medical tourists in Singapore and Southeast Asia. These personal and commercial relationships formed the backdrop against which the derivative action was assessed. (Para 2; Para 4)

"By way of background, Ms Mytsyk and Mr Anushka were previously married to each other. They lived together for several years with their own young children and the children from Ms Mytsyk’s former marriage, prior to Ms Mytsyk commencing divorce proceedings in August 2019." — Per Mavis Chionh Sze Chyi J, Para 2

The court also noted that Med Travel was incorporated on 5 June 2012 and that Mr Anushka was initially its sole shareholder and director on record. The shareholding later changed: on 20 November 2013, Mr Anushka transferred 50% of the shares to Mr Liaskovskyi, who in turn transferred that 50% shareholding to Ms Mytsyk on 13 June 2016. Ms Mytsyk was appointed a director on 7 June 2018. Those facts mattered because they shaped the standing analysis under s 216A(1)(c). (Para 4)

"Med Travel was incorporated on 5 June 2012 and is involved in the business of “travel agencies and tour operators inbound and outbound (eg, arrangement of travel and accommodation for medical tourists in Singapore and Southeast Asia)”.5 At the time of incorporation, Mr Anushka was its sole shareholder and director on record." — Per Mavis Chionh Sze Chyi J, Para 4

"On 20 November 2013, Mr Anushka transferred 50% of the shares in Med Travel to Mr Liaskovskyi. On 13 June 2016, Mr Liaskovskyi transferred this 50% shareholding to Ms Mytsyk. Ms Mytsyk was also appointed a director of Med Travel on 7 June 2018." — Per Mavis Chionh Sze Chyi J, Para 4

How Did the Court Frame the Statutory Questions Under s 216A?

The judge framed the application through the structure of s 216A. First, the applicant had to fall within the class of persons entitled to apply. Second, notice had to be given under s 216A(3)(a). Third, the court had to consider whether the applicant was acting in good faith under s 216A(3)(b). Fourth, the court had to determine whether it appeared prima facie to be in the interests of the company that the action be brought, prosecuted, defended or discontinued under s 216A(3)(c). (Para 21)

Mr Anushka’s threshold objection was that Ms Mytsyk lacked locus standi because she did not fall within the definition of a “complainant” in s 216A(1). The court therefore had to decide whether she could qualify as a “proper person” under the statutory language, and if so, whether the remaining statutory requirements were met. The judge’s analysis shows that standing was only the first hurdle, not the end of the inquiry. (Para 12; Para 19)

"Having regard to s 216A(3)(b) and (c), the issues I next have to address are: (a) whether Ms Mytsyk is acting in good faith; and (b) whether it appears to be prima facie in the interests of the company that the action be brought, prosecuted, defended or discontinued." — Per Mavis Chionh Sze Chyi J, Para 21

The court also drew on the legislative history of s 216A. It referred to the Select Committee Report on the Companies (Amendment) Bill and used that history to illuminate the policy behind allowing non-shareholder applicants in appropriate cases, provided they could show a sufficient interest in the company’s management. That historical context informed the court’s approach to the “proper person” question. (Para 16; Para 19)

"When s 216A was introduced by way of amendment to the Companies Act, the Report of the Select Committee on the Companies (Amendment) Bill (Bill no. 33/92) (Parl 2 of 1993, 26 April 1993) (“the Select Committee Report”) stated (at [49]):" — Per Mavis Chionh Sze Chyi J, Para 16

Why Did the Court Accept That Ms Mytsyk Was a “Proper Person”?

The court accepted that Ms Mytsyk was a “proper person” under s 216A(1)(c), but only in her capacity as director of Med Travel and not as shareholder. The judge reasoned that, given the parties’ opposing positions on who truly owned the shares, there was no realistic prospect of either registered shareholder bringing an application in that capacity. In those circumstances, the court was prepared to accept that Ms Mytsyk had sufficient standing as a director. (Para 19)

That conclusion was not reached in the abstract. The judge relied on the formulation in Ganesh Paulraj, which emphasised that the applicant must have “a clear interest and sufficient connection to the company.” Applying that formulation to the undisputed facts, the court found that Ms Mytsyk met the threshold. The reasoning shows that the court treated standing as a practical inquiry into the applicant’s relationship with the company, not a formalistic label exercise. (Para 18; Para 19)

"Applying the formulation adopted by the court in Ganesh Paulraj and on the basis of the undisputed facts in the present case, I am prepared to accept that Ms Mytsyk has “a clear interest and sufficient connection to the company” to bring the present application." — Per Mavis Chionh Sze Chyi J, Para 19

The court’s treatment of standing was also shaped by the fact that the dispute over share ownership was itself contested. The judge expressly noted that, because of the parties’ opposing positions on the true status of the shareholders, there was “obviously no prospect” of either registered shareholder making a s 216A application in that capacity. That observation explains why the court was willing to proceed on the basis of Ms Mytsyk’s directorial status alone. (Para 19)

"Given the two parties’ opposing positions on the true status of the shareholders of Med Travel, there is also obviously no prospect of either of the registered shareholders making a s 216A application in their capacity as shareholders." — Per Mavis Chionh Sze Chyi J, Para 19

What Did the Court Say About Notice Under s 216A(3)(a)?

The notice requirement was not in dispute in the same way as standing and good faith. The judge stated that she was satisfied the requisite notice had been given under s 216A(3)(a). That finding removed one statutory obstacle and allowed the court to focus on the more contested issues of good faith and the company’s interests. (Para 20)

The notice requirement matters because it ensures that the company’s directors are alerted to the proposed derivative action before leave is sought. Here, the court’s acceptance of notice meant that the application was not defeated on procedural grounds. Instead, the real battleground lay in whether the application was brought honestly and whether it would serve Med Travel’s interests. (Para 20; Para 21)

"I am satisfied that the requisite notice has been given under s 216A(3)(a)." — Per Mavis Chionh Sze Chyi J, Para 20

How Did the Court Explain the Good Faith Requirement?

The court set out the good faith requirement in a structured way. It noted that there are two main facets: first, the applicant must honestly or reasonably believe that a good cause of action exists for the company to prosecute; second, the applicant may fail the test if the derivative action is brought for a collateral purpose. The judge cited Ang Thiam Swee, Jian Li Investments, Maher v Honeysett, and other authorities to support that framework. (Para 22)

The court also emphasised that there is no presumption of good faith in favour of an applicant under s 216A. The applicant bears the burden of demonstrating genuine grievance and showing that any collateral purpose is sufficiently consistent with doing justice to the company. A history of grievances, spite, or a desire to benefit a competitor may all point against good faith. The judge further noted that the inquiry must focus on the commencement of the derivative action, not the applicant’s past conduct in general. (Para 22)

"There are two main facets to the “good faith” requirement: Ang Thiam Swee at [29]–[30]; Maher v Honeysett and Maher Electrical Contractors [2005] NSWSC 859 at [28]. The first relates to the merits of the proposed derivative action. The applicant must honestly or reasonably believe that a good cause of action exists for the company to prosecute." — Per Mavis Chionh Sze Chyi J, Para 22

"Secondly, an applicant may be found to be lacking in good faith if it can be demonstrated that he is bringing the derivative action for a collateral purpose: Ang Thiam Swee at [30]." — Per Mavis Chionh Sze Chyi J, Para 22

The judge then explained the practical indicators of lack of good faith. A history of grievances against the majority shareholders or the board may make it easier to characterise the action as a private vendetta. Likewise, if the applicant appears set on damaging the company out of spite or for the benefit of a competitor, good faith is in doubt. These principles framed the court’s later concern that OS 987 might be used to advance Ms Mytsyk’s position in parallel litigation rather than to vindicate Med Travel’s rights. (Para 22)

"A history of grievances against the majority shareholders or the board would make it easier to characterise the derivative action as having been brought for no other purpose other than the satisfaction of the applicant’s private vendetta: Swansson v R A Pratt Properties Pty Ltd (2002) 42 ACSR 313 at [41], cited with approval in Ang Thiam Swee at [13]." — Per Mavis Chionh Sze Chyi J, Para 22

"An applicant’s good faith will also be in doubt if he appears set on damaging the company out of sheer spite or for the benefit of a competitor: Pang Yong Hock at [20]; Wong Kai Wah v Wong Kai Yuan and another [2014] SGHC 147 (“Wong Kai Wah”) at [70]." — Per Mavis Chionh Sze Chyi J, Para 22

What Is the Prima Facie Interests Test and How Did the Court Apply It?

The court described the prima facie interests test as a threshold inquiry that deliberately sets a low standard. Its purpose is to weed out only the most obviously unmeritorious claims. The judge also noted that the inquiry is not purely formal: the court must consider the practical and commercial consequences of allowing the action to proceed. (Para 24)

To explain how an applicant can discharge the burden, the court referred to Petroships Investment Pte Ltd v Wealthplus Pte Ltd and the observations made there about the evidence an applicant should point to. The judge’s approach shows that the interests test is not satisfied merely by asserting wrongdoing; the applicant must show, on the material before the court, that the company would prima facie benefit from the proposed action. (Para 23; Para 24)

"The threshold test deliberately sets a low standard, precisely because it is only a threshold test. It operates to weed out “only the most obviously unmeritorious claims”" — Per Mavis Chionh Sze Chyi J, Para 24

In this case, the interests analysis could not be divorced from the existence of S 1247. The court had to consider whether allowing OS 987 to proceed would duplicate, overlap with, or potentially undermine issues already being litigated in that separate suit. That practical overlap became central to the court’s eventual concern that the derivative action might not truly serve Med Travel’s interests. (Para 56; Para 60)

What Allegations Did Ms Mytsyk Make Against Mr Anushka?

Ms Mytsyk alleged a range of breaches of duty by Mr Anushka. The extraction records allegations of misappropriation of company funds, forgery of financial documents, unlawful debt, diversion of income, prevention of business, misuse of funds, and late GST returns. The court did not treat these allegations as isolated accusations; instead, it examined them against the backdrop of the parties’ broader dispute and the parallel proceedings in S 1247. (Para 8; Para 11)

One of the specific allegations was that Mr Anushka had withdrawn all available funds from Med Travel’s bank accounts, totaling $477,000, on or around 1 October 2019. Another was that he had forged financial documents. Ms Mytsyk also asserted that Mr Anushka would not rectify his wrongdoings, that Med Travel would suffer irreparable damage if no action were brought, and that leave was therefore in the company’s interest. (Para 8; Para 11)

"First, she alleges that he has misappropriated company funds by withdrawing “all available funds from [Med Travel’s] bank accounts totaling $477,000 on or around 1st October 2019”. Second, she alleges that Mr Anushka forged “financial documents”." — Per Mavis Chionh Sze Chyi J, Para 8

"Ms Mytsyk asserts that Mr Anushka “will not rectify his wrongdoings” and that Med Travel “will suffer irreparable damage” if “no legal action is brought to bear on [him]”, and that it is therefore “in the interest of [Med Travel] for leave to be granted to launch a derivative action against [Mr Anushka]”." — Per Mavis Chionh Sze Chyi J, Para 11

The court’s later reasoning shows that these allegations were not assessed in a vacuum. The judge compared them with the matters already in contention in S 1247 and concluded that, save for the issue of late GST returns, the alleged breaches already formed part of the disputes in that suit. That overlap was highly significant to the good faith and interests analysis. (Para 56)

Why Did Mr Anushka Say the Application Should Fail?

Mr Anushka argued first that Ms Mytsyk lacked locus standi because she was not a “complainant” within s 216A(1). He also argued that the application was brought for a collateral purpose: to advance Ms Mytsyk’s position in S 1247 and to sabotage Med Travel’s defence there. In his account, OS 987 was not a genuine attempt to vindicate the company’s rights but an instrument in a broader personal and commercial conflict. (Para 12; Para 25)

The judge recorded that, in support of his position, Mr Anushka exhibited the pleadings in S 1247 and set out the events allegedly leading up to the dispute. The court therefore had before it not just the derivative action papers but also the parallel litigation materials, which allowed it to assess the extent of overlap between the two proceedings. (Para 26)

"In a nutshell, Mr Anushka’s case is that she has brought this OS for the collateral purpose of advancing her own cause in S 1247 and “sabotaging” Med Travel’s defence in S 1247." — Per Mavis Chionh Sze Chyi J, Para 25

"In support of his contention, Mr Anushka has in his first reply affidavit (inter alia) exhibited the pleadings in S 1247 and set out the events allegedly leading up to the dispute between him and Ms Mytsyk." — Per Mavis Chionh Sze Chyi J, Para 26

The court’s analysis later gave substantial weight to this overlap. It observed that most of the alleged breaches in OS 987 already formed part of the matters in contention in S 1247, meaning that findings in the trial of that suit would likely affect the derivative action allegations. That practical reality supported Mr Anushka’s concern that the derivative action could be used to undermine Med Travel’s position in the existing litigation. (Para 56; Para 60)

How Did the Court Deal With the Overlap Between OS 987 and S 1247?

The overlap between OS 987 and S 1247 was one of the most important features of the case. The judge found that, save for the issue of late GST returns, the breaches of fiduciary and/or director’s duties alleged in OS 987 already formed part of the matters in contention in S 1247. That meant the trial judge in S 1247 would likely make findings that would impact the derivative action allegations. (Para 56)

This overlap mattered because it raised the possibility that OS 987 was not a separate, independent vindication of Med Travel’s rights, but rather a parallel proceeding that could be used to influence or destabilise the company’s position in S 1247. The court expressly noted that, on the evidence before it, permitting the derivative action could undermine or subvert at least some aspects of Med Travel’s defence in S 1247. (Para 60)

"From the above, it would appear that save for the issue of late GST returns, the breaches of fiduciary and/or director’s duties alleged against Mr Anushka in OS 987 already form part of the matters in contention in S 1247, in that findings will likely be made by the trial judge which impact on these allegations." — Per Mavis Chionh Sze Chyi J, Para 56

"Having examined the evidence before me, it does appear to me that if Ms Mytsyk is permitted to bring the proposed derivative action, the effect of some of the allegations she seeks to pursue in such action will be to undermine or subvert at least some aspects of Med Travel’s defence in S 1247." — Per Mavis Chionh Sze Chyi J, Para 60

That conclusion did not automatically dispose of the application, but it strongly informed the court’s assessment of good faith and the prima facie interests of the company. The judge’s reasoning shows that where a derivative action overlaps substantially with existing litigation, the court will scrutinise whether the new action is genuinely for the company’s benefit or whether it risks becoming a tactical weapon in a broader dispute. (Para 56; Para 60)

What Authorities Did the Court Rely On for Standing, Good Faith, and Interests?

The court relied on several authorities to structure its analysis. For standing, it referred to Urs Meisterhans, Agus Irawan, and Ganesh Paulraj. For good faith, it relied on Ang Thiam Swee, Jian Li Investments, Tiong Sze Yin Serene, Maher v Honeysett, Pang Yong Hock, Swansson, Wong Kai Wah, Fong Wai Lyn Carolyn, and IGM Resources. For the evidential and practical approach to the interests test, it referred to Petroships. (Para 15; Para 18; Para 22; Para 23)

Urs Meisterhans and Agus Irawan were used to show the historical context in which directors or former directors had been treated as potential applicants under s 216A. Ganesh Paulraj was then used to articulate the “clear interest and sufficient connection” formulation that the court applied to Ms Mytsyk. This sequence of authorities demonstrates how the judge moved from older cases to the more recent and directly applicable formulation. (Para 15; Para 18; Para 19)

"In Urs Meisterhans v GIP Pte Ltd [2011] 1 SLR 552 (“Urs Meisterhans”), the plaintiff was a shareholder and former director of the defendant company on whose behalf he had applied for leave under s 216A to commence proceedings against two existing directors." — Per Mavis Chionh Sze Chyi J, Para 15

"In Ganesh Paulraj v A&T Offshore Pte Ltd and another [2019] SGHC 180 (“Ganesh Paulraj”), the High Court was faced with an application for leave under s 216A(1)(c) by the beneficial owner of a company which owned 40% of the shares in the respondent company." — Per Mavis Chionh Sze Chyi J, Para 18

On good faith, the court’s discussion was especially detailed. It emphasised that the applicant must genuinely believe in the cause of action, must not be acting for a collateral purpose, and must not be using the derivative action as a vehicle for private vendetta or spite. The judge also highlighted that the inquiry is directed to the commencement of the action, not the applicant’s entire history. (Para 22)

"The onus is on the applicant to demonstrate that he or she is “genuinely aggrieved”, and that any collateral purpose is sufficiently consistent with the purpose of “doing justice to a company” so that he or she is not abusing the statutory remedy and, by extension, also the company, as a vehicle for the applicant’s own aims and interests: Ang Thiam Swee at [31], citing Pang Yong Hock and another v PKS Contracts Services Pte Ltd [2004] 3 SLR(R) 1 (“Pang Yong Hock”) at [19]." — Per Mavis Chionh Sze Chyi J, Para 22

"In addition, any lack of good faith must relate to the commencement of the derivative action and not all past conduct of the applicant in general: Fong Wai Lyn Carolyn v Airtrust (Singapore) Pte Ltd [2011] 3 SLR 980 (“Fong Wai Lyn Carolyn”) at [75] and [79]; IGM Resources Corp v 979708 Alberta Ltd [2004] AJ No 1462 at [36]…" — Per Mavis Chionh Sze Chyi J, Para 22

Why Did the Court Consider the Legislative History of s 216A?

The judge referred to the Select Committee Report on the Companies (Amendment) Bill because the legislative history helped explain the policy behind s 216A. The court used that history to support the view that the provision was intended to allow persons with a sufficient interest in the company’s management to seek leave, even where they were not shareholders in the conventional sense. (Para 16; Para 19)

That historical context was particularly relevant because the dispute over Med Travel’s shareholding was contested. The court’s willingness to accept Ms Mytsyk as a proper person in her capacity as director was consistent with the broader policy concern that the statutory remedy should not be confined too narrowly where the applicant has a real connection to the company. (Para 16; Para 19)

"The High Court’s formulation in Ganesh Paulraj of the guiding principle behind s 216A(1)(c) (in italics above) appears to reflect the concern expressed by the Select Committee that applicants who were not shareholders but who wished to invoke s 216A should be able to show some “financial interest” – or at the very least, an “interest” – in how the company is being managed." — Per Mavis Chionh Sze Chyi J, Para 19

Why Does This Case Matter?

This case matters because it shows how Singapore courts police the boundary between a genuine statutory derivative action and a tactical move in parallel litigation. The court accepted that a director could be a proper person under s 216A(1)(c), but it also scrutinised whether the application was being used to advance a separate dispute and potentially undermine the company’s defence in existing proceedings. That makes the case a practical guide for litigators assessing whether a derivative action will survive a good faith challenge. (Para 19; Para 56; Para 60)

The case is also important for its treatment of overlap. The judge did not treat overlap as automatically fatal, but she did treat substantial overlap as highly relevant to both good faith and the prima facie interests inquiry. Where the same alleged misconduct is already in issue in another suit, the court will ask whether the derivative action adds anything genuinely beneficial for the company or merely duplicates and destabilises the existing litigation landscape. (Para 56; Para 60)

Finally, the decision is useful for its careful synthesis of the authorities on s 216A. It brings together the standing cases, the good faith cases, and the interests cases into a coherent framework. For practitioners, the case is a reminder that an applicant must do more than allege wrongdoing: the applicant must show standing, notice, good faith, and a real company interest, all against the factual matrix in which the application is brought. (Para 18; Para 19; Para 20; Para 21; Para 22; Para 24)

Cases Referred To

Legislation Referenced

• Companies Act (Cap 50, 2006 Rev Ed), s 216A (Para 1) [CDN] [SSO]
• Companies Act, s 216A(1)(a) (Para 20) [CDN] [SSO]
• Companies Act, s 216A(1)(c) (Para 19; Para 21) [CDN] [SSO]
• Companies Act, s 216A(3)(a) (Para 20) [CDN] [SSO]
• Companies Act, s 216A(3)(b) (Para 21; Para 22) [CDN] [SSO]
• Companies Act, s 216A(3)(c) (Para 21; Para 24) [CDN] [SSO]
• Companies (Amendment) Bill (Bill no. 33/92), discussed through the Select Committee Report (Para 16)

Source Documents

• Original Judgment — Singapore Courts
• Archived Copy (PDF) — Litt Law CDN
• View in judgment: "Ms Mytsyk is represented by counsel;..."
• View in judgment: "I am satisfied that the requisite..."

This article analyses [2022] SGHC 75 for legal research and educational purposes. It does not constitute legal advice. Readers should consult the full judgment for the Court's complete reasoning.