Vivaz Group Holdings Pte Ltd v TripleOne (Cambodia) Investment Pte Ltd (Lee Kok Heng Jeremiah, non-party) [2025] SGHC 202

Case Details

• Citation: [2025] SGHC 202
• Court: General Division of the High Court of the Republic of Singapore
• Decision Date: 14 October 2025
• Coram: Mohamed Faizal JC
• Case Number: Originating Application No 1330 of 2024; Summons No 2319 of 2025
• Hearing Date(s): 15 September 2025
• Claimants / Plaintiffs: Vivaz Group Holdings Pte Ltd
• Respondent / Defendant: TripleOne (Cambodia) Investment Pte Ltd
• Non-Party: Lee Kok Heng Jeremiah
• Counsel for Claimant: Tang Shangwei (Zheng Shangwei), Tian Warren and Neo Yi Ling (WongPartnership LLP)
• Practice Areas: Civil Procedure; Inherent powers; Companies Law; Statutory Derivative Actions

Summary

The decision in Vivaz Group Holdings Pte Ltd v TripleOne (Cambodia) Investment Pte Ltd [2025] SGHC 202 addresses a critical procedural lacuna in the statutory derivative action framework under Section 216A of the Companies Act 1967. The central dispute arose following the dismissal of an application by Vivaz Group Holdings Pte Ltd ("Vivaz") for permission to commence a derivative action on behalf of TripleOne (Cambodia) Investment Pte Ltd ("the Company"). While Vivaz timeously appealed this dismissal, it faced a terminal procedural threat: the six-year limitation period for the Company’s underlying causes of action was set to expire before the Appellate Division could determine the merits of the appeal. Consequently, even a successful appeal would result in a "paper judgment," as the underlying claims would be time-barred by the time permission to sue was finally secured.

To mitigate this risk, Vivaz sought an unprecedented "protective writ"—permission to file an originating claim on behalf of the Company pending the appeal, with the caveat that the writ would not be served on the intended defendants until the appeal was resolved. The High Court, presided over by Mohamed Faizal JC, was required to determine whether it possessed the jurisdiction and power to grant such an order, given that the primary application under s 216A had already been dismissed and the court was arguably functus officio regarding the merits of the derivative action.

The Court held that it possessed the necessary power under Order 15 Rule 12(4) of the Rules of Court 2021 ("ROC 2021") and its inherent jurisdiction to grant the protective writ. Mohamed Faizal JC reasoned that such an order was "incidental" to the original proceedings, as it served to preserve the subject matter of the appeal and ensured that the appellate process was not rendered nugatory. By granting the application, the Court established a vital precedent for practitioners, affirming that the court's procedural arsenal is sufficiently flexible to prevent the expiration of limitation periods from defeating the ends of justice in derivative litigation.

The broader significance of this ruling lies in its pragmatic approach to the "all-or-nothing" nature of s 216A applications. It recognizes that the statutory requirement for prior court permission can inadvertently act as a shield for wrongdoers if the duration of the legal process exceeds the limitation period. By allowing a protective filing, the Court balanced the need to prevent unauthorized litigation with the necessity of preserving a company’s substantive legal rights during the pendency of a bona fide appeal.

Timeline of Events

1. 24 September 2019: The board of directors of TripleOne (Cambodia) Investment Pte Ltd passed a resolution ("Disposal of Shares Resolution") sanctioning the sale of all the Company’s shares in One Eleven Investment Pte Ltd ("OEI") to TPC Properties Pte Ltd ("TPC").
2. 27 March 2024: Vivaz Group Holdings Pte Ltd commenced Originating Application No 1330 of 2024 ("OA 1330") seeking permission under s 216A of the Companies Act 1967 to bring a derivative action against Lee Kok Heng Jeremiah and Poh Boon Hua.
3. 10 June 2025: Mohamed Faizal JC dismissed OA 1330, finding that Vivaz had failed to demonstrate that it was acting in good faith.
4. 7 July 2025: Vivaz filed an appeal against the dismissal of OA 1330 to the Appellate Division of the High Court in AD/CA 54/2025 ("CA 54").
5. 14 August 2025: Vivaz filed Summons No 2319 of 2025 ("SUM 2319") seeking permission to file a protective writ on behalf of the Company.
6. 1 September 2025: The Respondent filed its skeletal submissions opposing the grant of the protective writ.
7. 15 September 2025: The substantive hearing for SUM 2319 took place before Mohamed Faizal JC.
8. 24 September 2025: The six-year limitation period for the underlying claims arising from the 24 September 2019 resolution was set to expire.
9. 14 October 2025: The High Court delivered its Grounds of Decision in [2025] SGHC 202, granting the protective writ.

What Were the Facts of This Case?

The claimant, Vivaz Group Holdings Pte Ltd ("Vivaz"), was a shareholder in the defendant, TripleOne (Cambodia) Investment Pte Ltd ("the Company"). The dispute centered on a transaction executed in late 2019 involving the Company's subsidiary, One Eleven Investment Pte Ltd ("OEI"). On 24 September 2019, the Company’s board of directors, which included Lee Kok Heng Jeremiah and Poh Boon Hua, passed a resolution authorizing the sale of the Company's entire shareholding in OEI to an entity known as TPC Properties Pte Ltd ("TPC"). Vivaz alleged that this disposal was conducted at an undervalue and constituted a grave breach of fiduciary duties by the directors involved.

Vivaz sought to vindicate the Company's rights by commencing a statutory derivative action. Under Section 216A of the Companies Act 1967, a shareholder must obtain the court's permission before it can sue in the name of the company. Vivaz filed OA 1330 on 27 March 2024, seeking this permission. The proposed defendants in the derivative action were Lee Kok Heng Jeremiah and Poh Boon Hua. The primary allegation was that the directors had orchestrated the sale of OEI to TPC—a party allegedly linked to them—to the detriment of the Company.

The application in OA 1330 was contested. On 10 June 2025, Mohamed Faizal JC delivered his decision in [2025] SGHC 176 ("Vivaz (Merits)"). The Court dismissed the application, primarily on the basis that Vivaz had not satisfied the "good faith" requirement under s 216A(3)(b). The Court found that Vivaz had known of the impugned transaction as early as 2021 but had delayed taking action, suggesting that the application was motivated by collateral purposes rather than a genuine desire to benefit the Company. Vivaz disagreed with this assessment and filed an appeal (CA 54) on 7 July 2025.

A significant procedural crisis emerged following the dismissal. The underlying causes of action for breach of fiduciary duty were subject to a six-year limitation period pursuant to Section 6(7) of the Limitation Act 1959. Given that the Disposal of Shares Resolution was dated 24 September 2019, the limitation period was due to expire on 24 September 2025. Because OA 1330 had been dismissed, Vivaz had no legal standing to file a claim in the Company's name. If the appeal in CA 54 was not heard and decided in Vivaz's favor before 24 September 2025, any subsequent permission granted by the Appellate Division would be useless, as the Company's claim would be time-barred.

Vivaz therefore took the proactive step of filing SUM 2319. It sought an order that, notwithstanding the dismissal of OA 1330, it be granted permission to file an originating claim (a "protective writ") in the name of the Company against the directors. To mitigate concerns about unauthorized litigation, Vivaz offered an undertaking that the writ would not be served on the defendants until the Appellate Division rendered its decision in CA 54. If the appeal failed, the writ would be withdrawn or allowed to lapse. If the appeal succeeded, the writ would have already "stopped the clock" for limitation purposes, allowing the derivative action to proceed on its merits.

The Respondent, TripleOne, and the non-party director, Lee Kok Heng Jeremiah, opposed the application. They argued that the Court, having dismissed the originating application, had no further power to grant such relief. They contended that s 216A provided an exhaustive code for derivative actions and that the Court could not use its inherent powers to bypass the statutory requirement that permission must be granted before a claim is filed. They further argued that Vivaz's predicament was a result of its own delay in commencing OA 1330.

What Were the Key Legal Issues?

The application in SUM 2319 presented two primary legal challenges for the High Court:

• The Jurisdictional Issue: Whether the Court had the jurisdiction and the specific power to grant permission for a protective writ after it had already dismissed the underlying application for a derivative action. This involved an analysis of the distinction between "jurisdiction" (the authority to hear a matter) and "power" (the capacity to grant specific remedies), particularly in the context of Order 15 Rule 12(4) of the ROC 2021 and the Court's inherent jurisdiction.
• The Merits and Discretionary Issue: If the power existed, whether the Court should exercise its discretion to grant the order in the specific circumstances of this case. This required the Court to balance the potential prejudice to Vivaz (the loss of the Company's cause of action) against the potential prejudice to the Company and the intended defendants (being subjected to a "protective" but unserved lawsuit).

The Court also had to consider whether Section 216A of the Companies Act 1967 acted as an exhaustive statutory regime that precluded the use of procedural rules or inherent powers to grant interim "protective" relief of this nature.

How Did the Court Analyse the Issues?

The Court’s analysis began with a fundamental distinction between jurisdiction and power, drawing on the Court of Appeal’s guidance in Re Nalpon Zero Geraldo Mario [2013] 3 SLR 258. Mohamed Faizal JC noted at [14] that since the Court had the jurisdiction to hear and determine OA 1330, it necessarily retained the jurisdiction to hear and determine SUM 2319, as the latter was a summons filed within the same originating process.

The Source of Power: Order 15 Rule 12(4)

The Court identified Order 15 Rule 12(4) of the ROC 2021 as the primary source of power. This rule provides:

"The Court may, at any time, for the purpose of doing justice between the parties and any person who may be affected by the order, stay the whole or part of any proceedings or the enforcement of any order, or make any other order as it thinks fit, including an order to set aside or vary the order and/or to give consequential directions." (at [16])

The Judge observed that this provision is a modern reflection of the court’s inherent powers, designed to ensure that justice is done. He rejected the Respondent's argument that the Court was functus officio. Relying on Godfrey Gerald QC v UBS AG [2004] 4 SLR(R) 411, the Court held that it retains the power to make orders that are "incidental" to the main judgment. The grant of a protective writ was deemed incidental because it facilitated the preservation of the subject matter of the appeal in CA 54. Without the protective writ, the appeal would be a "futile exercise" (at [29]).

Statutory Interpretation of Section 216A

The Respondent argued that s 216A(5) of the Companies Act 1967 only allowed the Court to make interim orders "in granting permission." Since permission had been refused, the Respondent contended the statutory power was unavailable. The Court agreed that s 216A(5) was not the direct source of power in this instance but held that the absence of a specific statutory power did not strip the Court of its general procedural powers under the ROC 2021.

The Court examined foreign jurisprudence, specifically from Hong Kong and Australia. In Hong Kong, cases like Chen Pei Xiong v Convoy Global Holdings Limited [2021] HKCFI 1018 and Sea Heritage Holdings Limited v Nice Wave International Limited [2021] HKCFI 1019 had allowed protective writs. While those cases relied on s 737 of the HK Companies Ordinance (which the Court found to be broader than s 216A), the underlying principle of preventing the expiration of limitation periods was persuasive. Similarly, the Australian Corporations Act 2001 contains an express power in s 241(1)(a) to make any orders the court considers appropriate. Mohamed Faizal JC concluded that while Singapore lacks an identical express statutory provision in the Companies Act 1967, Order 15 Rule 12(4) of the ROC 2021 is sufficiently broad to achieve the same result.

The "Incidental" Nature of the Order

The Court emphasized that the protective writ was not a "backdoor" grant of the derivative action. Instead, it was a holding measure. The Judge reasoned at [32] that the power under O 15 r 12(4) is "arguably phrased in an even broader manner" than its predecessors, allowing the Court to make necessary orders according to the justice of the case. He drew an analogy to Erinford injunctions (designed to preserve the status quo pending appeal) and stays of execution. Just as a court can stay the execution of its own judgment to prevent an appeal from being rendered nugatory, it can grant a protective writ to prevent a limitation period from destroying the claim that is the subject of the appeal.

The Balance of Justice

In exercising its discretion, the Court applied a "balance of justice" test. The Court found that:

• Prejudice to Vivaz: If the order were refused and the appeal succeeded, Vivaz would have a right to sue that was legally unenforceable due to the Limitation Act 1959. This constituted "irreparable prejudice" (at [41]).
• Prejudice to the Respondent/Directors: The Court found "no prejudice" to the intended defendants. Because the writ would not be served, they would not be required to enter an appearance or incur legal costs in defending the claim until the Appellate Division confirmed that the derivative action should proceed (at [42]).
• The "Good Faith" Finding: The Respondent argued that the Court had already found Vivaz lacked good faith. The Judge held that while he stood by his merits decision, the very purpose of an appeal is to challenge such findings. It would be wrong to allow his own finding of "bad faith" to prevent the Appellate Division from ever having the chance to review it effectively (at [45]).

The Court also considered the "merits of the appeal" but noted, following [2024] SGHC 47, that the court should not engage in a "mini-trial" of the appeal's prospects unless the appeal is "manifestly frivolous" (at [38]). The appeal in CA 54 did not meet that high threshold of hopelessness.

What Was the Outcome?

The High Court granted SUM 2319 and made the following orders:

• Vivaz was granted permission to file a protective writ (by way of an originating claim) on behalf of the Company against Lee Kok Heng Jeremiah and Poh Boon Hua in relation to the claims set out in the draft Statement of Claim in OA 1330.
• Condition of Non-Service: The protective writ was not to be served on the intended defendants until the final determination of the appeal in CA 54.
• Duration: The permission was limited to the purpose of stopping the limitation period. If the appeal in CA 54 is dismissed, the permission lapses, and the writ must be withdrawn.
• Costs: The Court made no order as to costs for SUM 2319.

The operative paragraph of the judgment states:

"For the reasons set out above, I granted SUM 2319. I made no order as to costs." (at [60])

The Court justified the "no order as to costs" decision by noting that the application was a novel one, necessitated by the unique procedural intersection of s 216A and the Limitation Act 1959. While Vivaz was successful in the summons, the need for the summons arose from the dismissal of its primary application in OA 1330.

Why Does This Case Matter?

This case is a landmark for Singapore corporate litigation and civil procedure for several reasons. First, it explicitly recognizes the "protective writ" as a legitimate procedural tool in the context of statutory derivative actions. Prior to this decision, there was only obiter support for such a concept in Sinwa SS (HK) Co Ltd v Nordic International Ltd [2016] 4 SLR 320. Mohamed Faizal JC has now elevated this from a theoretical possibility to an established remedy available to practitioners.

Second, the decision reinforces the breadth of the Court’s powers under the ROC 2021. By interpreting Order 15 Rule 12(4) as a vehicle for "incidental" orders that preserve the subject matter of an appeal, the Court has signaled a move away from rigid functus officio constraints. This ensures that the High Court can act as a steward of the judicial process even after a final order has been made, provided the subsequent order is necessary to give effect to the right of appeal.

Third, the case addresses the inherent tension between the "leave" requirement in s 216A and the strict timelines of the Limitation Act 1959. In a standard personal action, a plaintiff can file a writ at the eleventh hour to save a claim. In a derivative action, the shareholder cannot do so without the court's blessing. This creates a "limitation trap" where the time taken for the court to deliberate on the "good faith" and "interests of the company" requirements can consume the remaining limitation period. Vivaz provides the solution to this trap, ensuring that the procedural requirement of leave does not become a substantive bar to justice.

Practitioners should note the Court's emphasis on the "undertaking not to serve." This was the "critical safeguard" (at [53]) that allowed the Court to grant the order without infringing on the rights of the intended defendants. It demonstrates that the Court is willing to be creative with procedural conditions to achieve a fair result. The decision also serves as a reminder that while the Companies Act 1967 provides the substantive framework for derivative actions, the Rules of Court provide the procedural machinery to ensure that framework functions effectively in the face of real-world litigation timelines.

Finally, the judgment echoes the sentiment in [2025] SGHC 184 that there is nothing inconsistent about a court acknowledging its own potential for error by granting a stay or protective order pending appeal. This judicial humility is essential for the integrity of the two-tier legal system, as it ensures that the higher court's eventual decision—whatever it may be—can actually be implemented.

Practice Pointers

• Monitor Limitation Periods Early: Practitioners acting for shareholders in s 216A applications must calculate the limitation period for the underlying claim at the outset. If the period is likely to expire within 12-18 months, a protective writ strategy should be considered as part of the initial filing or as a contingency.
• Invoke Order 15 Rule 12(4): When seeking incidental relief after a judgment, rely on the broad language of O 15 r 12(4) of the ROC 2021 rather than just inherent jurisdiction. The Court viewed this rule as a codified and expansive source of power.
• Offer the "Non-Service" Undertaking: An application for a protective writ is far more likely to succeed if the claimant proactively offers an undertaking not to serve the writ until the appeal is resolved. This neutralizes the argument of prejudice to the defendants.
• Distinguish Between Jurisdiction and Power: In submissions, clarify that the court retains jurisdiction over the originating process even after dismissal, and that the "power" sought is incidental to the preservation of the appellate right.
• Evidence of Irreparable Prejudice: Ensure the affidavit in support of the summons clearly demonstrates that the limitation period will expire before the likely date of the appeal hearing. Without this "real need," the Court may decline to exercise its discretion.
• Address the "Good Faith" Finding: If the s 216A application was dismissed for lack of good faith, argue that the protective writ does not override that finding but merely preserves the status quo so the Appellate Division can review it.
• Costs Neutrality: Be prepared for a "no order as to costs" outcome in these novel procedural applications, as the Court may view the application as a necessary step caused by the claimant's own procedural predicament.

Subsequent Treatment

As this is a very recent decision (October 2025), there is no recorded subsequent treatment in the extracted metadata. However, the ratio establishes that the court has the inherent power under O 15 r 12(4) of the ROC 2021 to grant permission to file a protective writ on behalf of a company pending the determination of an appeal against the dismissal of a derivative action application. This is expected to be followed in future cases where the "limitation trap" in s 216A proceedings arises.

Legislation Referenced

• Companies Act 1967 (2020 Rev Ed), Section 216A
• Limitation Act 1959 (2020 Rev Ed), Section 6(7)
• Supreme Court of Judicature Act 1969 (2020 Rev Ed), Sections 16(1)(a)(i), 17(1)(c)
• Rules of Court 2021, Order 15 Rule 12(4)
• Corporations Act 2001 (Cth) (Australia), Section 241(1)(a)
• Companies Ordinance (Cap 622) (Hong Kong), Section 737

Cases Cited

• Considered: Sinwa SS (HK) Co Ltd v Nordic International Ltd [2016] 4 SLR 320
• Referred to: [2025] SGHC 176 (Vivaz Merits)
• Referred to: [2005] SGCA 3
• Referred to: [2024] SGHC 47
• Referred to: [2010] SGHC 174
• Referred to: [2025] SGHC 184
• Referred to: Re Nalpon Zero Geraldo Mario [2013] 3 SLR 258
• Referred to: Godfrey Gerald QC v UBS AG [2004] 4 SLR(R) 411
• Referred to: Ong Chai Hong v Chiang Shirley [2016] 3 SLR 1006
• Referred to: Thu Aung Zaw v Ku Swee Boon [2018] 4 SLR 1260
• Referred to: Retrospect Investment (S) Pte Ltd v Lateral Solutions Pte Ltd [2020] 1 SLR 763
• Referred to: Huttons Asia Pte Ltd v Chen Qiming [2024] 2 SLR 401
• Referred to: Blomberg, Johan Daniel v Khan Zhi Yan [2024] 3 SLR 1079
• Referred to: Wee Soon Kim Anthony v Law Society of Singapore [2001] 2 SLR(R) 821
• Referred to: Roberto Building Material Pte Ltd v Oversea-Chinese Banking Corp Ltd [2003] 2 SLR(R) 353
• Referred to: Santoso Winoto v Suseno Winoto [2024] 4 SLR 560
• Referred to: DJY v DJZ [2025] 3 SLR 1561
• Referred to: PricewaterhouseCoopers LLP v Celestial Nutrifoods Ltd [2015] 3 SLR 665
• Referred to: Dynasty Line Ltd v Sukamto Sia [2014] 3 SLR 277

Source Documents

• Original Judgment PDF (eLitigation)
• Case Page on eLitigation