ZHANG ZHENCHENG V TAN HUAY LIM & ANOR

"Accordingly, I found that the second defendant was entitled to withdraw its previous waiver (communicated through SLB) and claim privilege over the Category 12 documents." — Per Chua Lee Ming J, Para 28

Case Information

• Citation: [2026] SGHC 4 (Para 0)
• Court: General Division of the High Court of the Republic of Singapore (Para 0)
• Date of hearing: 24 October 2025 and 7 January 2026 (Para 0)
• Coram: Chua Lee Ming J (Para 0)
• Case number: Originating Claim No 325 of 2023 (Registrar’s Appeal No 180 of 2025) (Para 0)
• Counsel for the claimant: Ooi Huey Hien and Ng Li Yang Jervis (LVM Law Chambers LLC) (Para 0)
• Counsel for the first defendant: Ng Lip Chih (NLC Law Asia LLC) (Para 0)
• Counsel for the second defendant: Suraj Lingaraj Bagalkoti and Shawn Ang De Xian (WongPartnership LLP) (Para 0)
• Area of law: Civil Procedure — Privileges — Legal professional privilege — Waiver; Joint interest privilege; Common interest privilege (Para 0)
• Judgment length: Not stated in the extraction (Para 0)

Summary

This was an appeal by the claimant against the Assistant Registrar’s refusal to order production of documents over which the second defendant asserted legal professional privilege. The dispute centred on whether the second defendant could reverse an earlier position, taken through its former solicitors, that it was agreeable to producing certain documents, and whether the claimant could compel disclosure on the basis of joint interest or common interest. The court held that the second defendant could withdraw its earlier waiver before any disclosure or use of the documents, and that the claimant had no entitlement to the documents on joint or common interest grounds. The appeal was dismissed. (Para 1, Para 14, Para 25, Para 28, Para 64, Para 65)

The factual setting was a corporate dispute involving the claimant, a minority shareholder and non-executive director of the second defendant, and the first defendant, who was the Lead Independent Director of the second defendant. The claimant sought a broad set of documents and correspondence relating to the second defendant’s affairs, including matters concerning restructuring and related corporate issues. The second defendant initially indicated, through its former solicitors, that it was agreeable to producing documents to the extent they pertained to the restructuring of DRT, but after engaging new counsel it asserted privilege over the Category 12 documents. The court accepted that no documents had actually been produced before the change in position. (Para 2, Para 7, Para 10, Para 12, Para 20)

On the legal analysis, the court addressed waiver, implied waiver, joint interest privilege, and common interest privilege in a structured way. It relied on the principle that waiver is not easily implied, and that a party may withdraw a waiver before disclosure or use of the documents. It then rejected the claimant’s attempt to characterise his shareholder and director status as giving rise to a joint interest in the privileged communications, and further held that even if a common interest existed, that would not itself entitle him to inspect the privileged communications. The judgment is significant for clarifying the limits of privilege waiver and for rejecting any automatic shareholder-access rule in the context of privileged company documents. (Para 25, Para 29, Para 36, Para 54, Para 64)

What Was the Dispute About the Category 12 Documents?

The appeal concerned only the documents in Category 12, which the second defendant claimed were privileged. The claimant had originally sought production of a wider set of “Requested Documents”, and the second defendant’s former solicitors had indicated that the company was agreeable to producing documents to the extent they pertained to the restructuring of DRT. The key practical question was whether that earlier position prevented the second defendant from later asserting privilege after taking fresh legal advice. The court’s answer was no, because no production had yet occurred. (Para 7, Para 12, Para 20, Para 25)

"On 20 December 2024, SLB informed LVMLC that the second defendant was agreeable to producing all of the Requested Documents to the extent they “pertain[ed] to the restructuring of DRT”." — Per Chua Lee Ming J, Para 7

The court emphasised that the second defendant’s later position was taken after it engaged new solicitors, and that the AR had already viewed the matter in that light. The AR’s approach was that, following the engagement of new counsel, it was open to the second defendant to take a new position regarding legal privilege in the light of fresh legal advice. The High Court agreed with that approach and treated the absence of actual disclosure as decisive for the waiver question. (Para 14, Para 20, Para 25)

"The AR disallowed the claimant’s application for production of the Category 12 documents. The AR was of the view that following the second defendant’s engagement of its new counsel, it was open to the second defendant to take a new position regarding legal privilege over the documents in the light of fresh legal advice." — Per Chua Lee Ming J, Para 14

The court also noted that the second defendant’s later affidavit claimed privilege over 12 categories of documents, but the appeal before the court concerned only Category 12. That narrowing mattered because the court’s analysis was confined to whether the earlier willingness to produce those documents had crystallised into a binding waiver, and whether the claimant could nonetheless obtain them through some form of shared-interest doctrine. The court answered both questions against the claimant. (Para 12, Para 25, Para 28)

How Did the Court Deal With the Alleged Waiver of Privilege?

The claimant’s first major argument was that the second defendant had waived privilege and could not later resile from that position. The court rejected that contention. It held that a party may withdraw a waiver before the documents are disclosed or used, and that the second defendant had done so in time. The court’s reasoning was anchored in the proposition that waiver is not to be easily implied, and that the law distinguishes between a mere indication of willingness to produce and an actual disclosure or use of the privileged material. (Para 17, Para 25, Para 28, Para 29)

"I agreed with the AR that it was open to the second defendant to change its position and claim privilege, as long as the documents had not been disclosed or used." — Per Chua Lee Ming J, Para 25

The court relied on authority supporting the proposition that a party can withdraw a waiver before inspection. It referred to Goldman v Hesper and the proposition that “the defendant was perfectly entitled, on taking advice, to withdraw the waiver”. It also cited the treatise discussion that “the cat cannot go back in the bag” only after disclosure has occurred, which reinforced the distinction between a pre-disclosure change of position and an attempted clawback after the privileged material has already been exposed. On the facts, because no documents had been produced to the claimant, the second defendant remained entitled to assert privilege. (Para 26, Para 27, Para 28)

"the defendant was perfectly entitled, on taking advice, to withdraw the waiver" — Per Chua Lee Ming J, Para 26

The court also addressed the claimant’s reliance on authorities dealing with express waiver. It noted the claimant’s citation of Mohammed v Ministry of Defence and Rahimah bte Mohd Salim v Public Prosecutor, but the court’s conclusion was that those authorities did not assist the claimant on the facts because the issue was not whether a completed waiver had occurred, but whether an earlier willingness to produce could be withdrawn before disclosure. The court therefore treated the waiver issue as one of timing and completion, not merely of intention. (Para 22, Para 23, Para 25, Para 28)

"Waiver is not to be easily implied (at [69])." — Per Chua Lee Ming J, Para 29

Why Did the Court Reject Implied Waiver?

Even if the second defendant had not expressly waived privilege, the claimant argued that privilege had been impliedly waived. The court rejected that submission as well. It explained that implied waiver depends on fairness and consistency, and that the party alleged to have waived privilege must have acted in a way that is inconsistent with maintaining confidentiality over the documents in question. The court found that the documents disclosed or referred to by the second defendant were not sufficiently connected to the Category 12 documents to justify an inference of implied waiver. (Para 29, Para 30, Para 31, Para 32, Para 36)

"Accordingly, I found that there had been no implied waiver of privilege over the Category 12 documents or any part thereof." — Per Chua Lee Ming J, Para 36

The court’s analysis was careful to separate the documents that had been mentioned or disclosed from the documents that remained privileged. It considered the claimant’s attempt to draw a line from the disclosed material to the Requested Documents, but concluded that the link was insufficient. The judgment therefore did not treat the mere existence of related corporate communications as enough to strip privilege from the Category 12 documents. Instead, the court required a proper basis for saying that the second defendant had acted inconsistently with maintaining privilege over those particular documents. (Para 30, Para 31, Para 32, Para 33, Para 34, Para 35, Para 36)

The court’s approach is consistent with the proposition that waiver is not lightly inferred. It cited ARX v Comptroller of Income Tax for the principle that waiver is not to be easily implied, and it treated that principle as especially important where the alleged waiver would deprive a party of legal professional privilege over communications with its lawyers. The court therefore declined to infer waiver from the surrounding correspondence or from the second defendant’s earlier willingness to produce documents in a limited context. (Para 29, Para 30, Para 36)

Did the Claimant Have a Joint Interest in the Privileged Documents?

The claimant’s second major route to disclosure was joint interest privilege. He argued that, as a shareholder and non-executive director, he had a joint interest in the documents and therefore could not be excluded from them. The court rejected that proposition. It held that the claimant could not claim a joint interest solely by virtue of his status as a shareholder, and it did not accept that his office as a non-executive director automatically gave him a joint interest in the second defendant’s privileged communications. (Para 17, Para 37, Para 45, Para 48, Para 54)

"I agreed with Jardine and Ziegler and found that the claimant could not claim a joint interest solely by virtue of his status as a shareholder." — Per Chua Lee Ming J, Para 54

The court explained the nature of joint interest privilege by reference to the proposition that, where a joint interest exists, neither party can assert privilege as against the other in respect of communications coming into existence while that joint interest subsisted. It cited the formulation that “each party to the relationship can obtain disclosure of the other’s (otherwise privileged) documents so far as they concern the joint purpose or interest.” But the court did not accept that the claimant had established such a relationship on the facts. The claimant’s corporate status was not enough. (Para 40, Para 45, Para 48, Para 54)

"If a joint interest exists … neither party can assert privilege as against the other in respect of communications coming into existence at the time the joint interest subsisted; hence, each party to the relationship can obtain disclosure of the other’s (otherwise privileged) documents so far as they concern the joint purpose or interest." — Per Chua Lee Ming J, Para 40

The court drew support from authorities and commentary showing that the law does not recognise a general rule that shareholders may inspect privileged company documents simply because they are shareholders. It referred to cases and academic writing that questioned the traditional English position and emphasised that joint interest must be established on the facts, not presumed from status. The court’s conclusion was that the claimant had not shown a joint interest that would defeat privilege over the Category 12 documents. (Para 39, Para 45, Para 47, Para 49, Para 50, Para 51, Para 52, Para 53, Para 54)

"There is no general rule that joint privilege arises merely by virtue of such relationships." — Per Chua Lee Ming J, Para 48

How Did the Court Treat the Shareholder-Access Authorities?

A substantial part of the judgment was devoted to the claimant’s attempt to rely on shareholder-access principles. The court examined authorities such as Sharp v Blank, Jardine Strategic Ltd v Oasis Investments II Master Fund Ltd, Ziegler Estate v Green Acres (Pine Lake) Ltd, and academic commentary by Kiu Yan Yu. The court noted that these materials showed the controversy surrounding any automatic shareholder right to privileged company documents, and it preferred the reasoning that rejected a broad shareholder rule. (Para 49, Para 50, Para 51, Para 52, Para 53)

"difficult to know what is or is not a joint interest" — Per Chua Lee Ming J, Para 47

The court relied particularly on Jardine Strategic Ltd v Oasis Investments II Master Fund Ltd, where the traditional shareholder rule was rejected in the context discussed by the court. It also referred to Ziegler Estate v Green Acres (Pine Lake) Ltd as a Canadian authority aligned with that approach. The judgment treated these authorities as reinforcing the proposition that shareholder status alone does not create a right to privileged communications, and that any entitlement must be grounded in a genuine joint interest in the subject matter of the communications. (Para 50, Para 51, Para 52, Para 54)

"the shareholder rule was not part of Bermuda law and should not continue to be part of the law of England and Wales" — Per Chua Lee Ming J, Para 50

The court also referred to the academic article by Kiu Yan Yu, which it treated as supporting the view that the traditional position should not be followed without careful justification. The overall effect of this part of the judgment was to reject any shortcut from shareholder or director status to joint interest privilege. The claimant had to show more, and he did not. (Para 53, Para 54)

Why Did the Court Hold That Common Interest Did Not Help the Claimant?

The claimant also argued common interest privilege. The court accepted that common interest privilege is a recognised doctrine, but it held that it did not assist the claimant on the facts. The court explained that common interest privilege arises where one person voluntarily discloses a privileged document to another party who has a common interest in the subject matter of the communication or in litigation connected with the document’s creation. But the doctrine does not create a freestanding right to demand disclosure of privileged documents from the holder of the privilege. (Para 17, Para 41, Para 64)

"common interest privilege arises where one person (party A) voluntarily discloses a document which is privileged in its hands to another party (party B) who has a common interest in the subject matter of the communication or in litigation in connection with which the document was brought into being." — Per Chua Lee Ming J, Para 41

The court further held that, even if the claimant had a common interest with the second defendant in the privileged communications, that would not entitle him to those communications. This was an important limiting principle. The court was careful to distinguish between a situation where privileged material may be shared between aligned parties and a situation where one party can compel production from another. The former may be protected by common interest privilege; the latter is not automatically permitted. (Para 41, Para 64)

"Accordingly, even if the claimant had a common interest with the second defendant in the privileged communications, that would not have entitled him to those privileged communications." — Per Chua Lee Ming J, Para 64

The court’s reasoning also reflected the factual reality that the claimant’s interests were not aligned with the second defendant’s in the relevant matters. The second defendant had identified the Category 12 documents as relating to matters in which there was a conflict of interest between itself and the claimant, including the MOU, restructuring of loan facilities, winding-up proceedings against Sino-Ocean, and internalisation of the trustee-manager’s functions. That factual context made the claimant’s common-interest argument especially difficult to sustain. (Para 16, Para 17, Para 64)

What Role Did the Corporate and Restructuring Context Play?

The corporate context was central to the dispute. The claimant was a minority shareholder and non-executive director of the second defendant, while the first defendant was the Lead Independent Director. The second defendant was the trustee-manager of DRT, and the documents sought related to restructuring and other corporate matters. The court did not treat that context as enough to override privilege. Instead, it examined whether the claimant had shown a legally recognised basis for access, and concluded that he had not. (Para 2, Para 16, Para 17, Para 54)

"The claimant, Mr Zhang Zhencheng, is a minority shareholder of the second defendant, Dasin Retail Trust Management Pte Ltd. The first defendant, Mr Tan Huay Lim, is the Lead Independent Director of the second defendant. The claimant is also a non-executive director of the second defendant." — Per Chua Lee Ming J, Para 2

The court also noted that, as of the relevant date, the second defendant remained subject to a moratorium under s 64(1) of the Insolvency, Restructuring and Dissolution Act 2018 (2020 Rev Ed). That statutory context formed part of the background to the restructuring-related documents and the parties’ competing positions. However, the court did not treat the moratorium as displacing privilege or as creating any special entitlement in the claimant to privileged communications. (Para 10)

"As of this date, the second defendant was still subject to a moratorium under s 64(1) of the Insolvency, Restructuring and Dissolution Act 2018 (2020 Rev Ed)." — Per Chua Lee Ming J, Para 10

In practical terms, the restructuring context explained why the claimant was seeking the documents and why the second defendant was sensitive about disclosure. But the court’s analysis remained anchored in privilege doctrine. The existence of a corporate restructuring, or the claimant’s role in the company, did not itself displace the ordinary rules governing legal professional privilege, waiver, joint interest privilege, or common interest privilege. (Para 10, Para 16, Para 25, Para 54, Para 64)

What Did the Court Decide About the Assistant Registrar’s Approach?

The court expressly agreed with the Assistant Registrar’s decision to dismiss the production application. The AR had reasoned that, after the second defendant engaged new counsel, it was open to the company to take a new position on privilege in light of fresh legal advice. The High Court endorsed that approach and treated it as consistent with the law on waiver. The appeal therefore failed at the threshold because the claimant could not show that the second defendant was bound by its earlier willingness to produce the documents. (Para 14, Para 25, Para 28)

"The AR disallowed the claimant’s application for production of the Category 12 documents." — Per Chua Lee Ming J, Para 14

The court’s agreement with the AR was not merely formal. It reflected the court’s view that privilege should not be lost unless there has been actual disclosure or some other legally sufficient basis for waiver. Because the second defendant had not produced the documents, and because the claimant had not established joint or common interest entitlement, the AR’s refusal to order production was upheld. (Para 20, Para 25, Para 36, Para 54, Para 64)

That conclusion also explains why the court did not need to go further into any broader disclosure regime. Once the court found no waiver and no entitlement under joint or common interest principles, the production application necessarily failed. The appeal was therefore dismissed in full. (Para 28, Para 36, Para 54, Para 64, Para 65)

Why Does This Case Matter?

This case matters because it confirms that a party may withdraw an unexecuted waiver of privilege before the privileged material is disclosed or used. That is a practical point of real importance in litigation, where parties sometimes indicate a willingness to produce documents before receiving final advice. The judgment makes clear that such an indication does not necessarily bind the party if no disclosure has yet occurred and the party changes position in time. (Para 25, Para 26, Para 28)

It also matters because it rejects any assumption that shareholder or director status automatically gives rise to joint interest privilege. The court’s analysis shows that the existence of a corporate relationship is not enough; the claimant must establish a genuine joint interest in the relevant communications. That is a significant clarification for corporate disputes, especially where minority shareholders or directors seek access to privileged legal advice given to the company. (Para 48, Para 49, Para 50, Para 54)

Finally, the judgment draws a sharp line between common interest privilege as a shield for shared communications and a right to compel production. Even if parties share a common interest, that does not mean one can demand privileged documents from the other. For practitioners, the case is a reminder to distinguish carefully between privilege doctrines that protect disclosure and doctrines that create access rights. (Para 41, Para 64)

Cases Referred To

Legislation Referenced

• Insolvency, Restructuring and Dissolution Act 2018 (2020 Rev Ed), s 64(1) (Para 10)

Source Documents

• Original Judgment — Singapore Courts
• Archived Copy (PDF) — Litt Law CDN

This article analyses [2026] SGHC 4 for legal research and educational purposes. It does not constitute legal advice. Readers should consult the full judgment for the Court's complete reasoning.