Asian Corporate Services v Impact Pacific: Setting Aside Anton Piller Order

In Asian Corporate Services (SEA) Pte Ltd v Impact Pacific Consultants Pte Ltd, the Singapore High Court heard an application by the third defendant, Impact Pacific Consultants Pte Ltd, to set aside an Anton Piller order. The plaintiff, Asian Corporate Services (SEA) Pte Ltd, alleged a conspiracy to injure its business. Rajah J set aside the order against the third defendant, finding that the plaintiff had not established a prima facie case of conspiracy, that the potential damage to the plaintiff was not serious, that there was no real risk of destruction of evidence by the third defendant, that the effect of the search order was disproportionate, and that the plaintiff had failed to make proper inquiries before applying for the order. The court directed that an inquiry be made as to any damage sustained by the third defendant, such inquiry to be held after the trial.

1. Case Overview

1.1 Court

High Court

1.2 Outcome

Order against the third defendant set aside.

1.3 Case Type

Civil

1.4 Judgment Type

Grounds of Decision

1.5 Jurisdiction

Singapore

1.6 Description

High Court sets aside Anton Piller order against Impact Pacific Consultants, finding no prima facie case of conspiracy to injure Asian Corporate Services.

1.7 Decision Date

3 August 2005

2. Parties and Outcomes

Party Name	Role	Type	Outcome	Outcome Type	Counsels
Asian Corporate Services (SEA) Pte Ltd	Plaintiff	Corporation	Order against the third defendant set aside	Lost	Andy Leck of Wong and Leow LLC Koh Kok Wah of Wong and Leow LLC Dinesh Dhillion of Wong and Leow LLC
Impact Pacific Consultants Pte Ltd	Defendant	Corporation	Order against the third defendant set aside	Won	Salem Ibrahim of Salem Ibrahim and Partners Shankar Kumar of Salem Ibrahim and Partners
Impact Pacific Management Pte Ltd	Defendant	Corporation	Original orders to stand, while preserving their respective positions pending the trial	Neutral	Salem Ibrahim of Salem Ibrahim and Partners Shankar Kumar of Salem Ibrahim and Partners
Eastwest Management Ltd (Singapore Branch)	Defendant	Corporation	Order against the third defendant set aside	Won	Jimmy Yim of Drew and Napier LLC Kelvin Tan of Drew and Napier LLC
Fullcircle Pte Ltd	Defendant	Corporation	Original orders to stand, while preserving their respective positions pending the trial	Neutral	Salem Ibrahim of Salem Ibrahim and Partners Shankar Kumar of Salem Ibrahim and Partners
Duncan Samuel Rothwell Merrin	Defendant	Individual	Original orders to stand, while preserving their respective positions pending the trial	Neutral	Salem Ibrahim of Salem Ibrahim and Partners Shankar Kumar of Salem Ibrahim and Partners
Norhayati Bt Malek	Defendant	Individual	Original orders to stand, while preserving their respective positions pending the trial	Neutral	Salem Ibrahim of Salem Ibrahim and Partners Shankar Kumar of Salem Ibrahim and Partners
Mark Justin Baile	Defendant	Individual	Original orders to stand, while preserving their respective positions pending the trial	Neutral	Salem Ibrahim of Salem Ibrahim and Partners Shankar Kumar of Salem Ibrahim and Partners

3. Judges

Judge Name	Title	Delivered Judgment
V K Rajah	Judge	Yes

4. Counsels

Counsel Name	Organization
Andy Leck	Wong and Leow LLC
Koh Kok Wah	Wong and Leow LLC
Dinesh Dhillion	Wong and Leow LLC
Salem Ibrahim	Salem Ibrahim and Partners
Shankar Kumar	Salem Ibrahim and Partners
Jimmy Yim	Drew and Napier LLC
Kelvin Tan	Drew and Napier LLC

4. Facts

Plaintiff alleged the defendants conspired to injure its business by diverting clients.
Fifth defendant was the managing director of the plaintiff until June 30, 2004.
Sixth defendant was employed by the plaintiff as a marketing coordinator until October 31, 2003.
Plaintiff alleged the fifth and sixth defendants were setting up competing entities while still employed by the plaintiff.
Plaintiff obtained search orders against all defendants on October 18, 2004.
Third defendant claimed to be a non-profit-generating cost center for a group of companies.
Fifth defendant was employed by the third defendant primarily because of his relationship with the Group’s chairman.

5. Formal Citations

Asian Corporate Services (SEA) Pte Ltd v Impact Pacific Consultants Pte Ltd and Others, Suit 834/2004, SIC 5807/2004, [2005] SGHC 138

6. Timeline

Date	Event
1994-08-10	Sixth defendant employed by the plaintiff as a marketing coordinator.
2000-01-01	ETC began purchasing shares of the plaintiff.
2002-12-01	ETC completed purchasing shares of the plaintiff.
2002-05-01	Plaintiff employed the seventh defendant on a part-time basis.
2002-07-01	Plaintiff employed the seventh defendant on a part-time basis.
2003-01-01	Several of the plaintiff’s former customers had transferred their business relationships to one or more of the first, second, third and fourth defendants.
2003-05-29	Third defendant incorporated in England.
2003-06-14	Fifth and sixth defendants became directors and shareholders of the fourth defendant.
2003-06-26	Fifth and sixth defendants became directors of the third defendant.
2003-06-30	Fifth defendant informed the plaintiff that he intended to leave the plaintiff’s employment permanently.
2003-07-22	Third defendant registered in Singapore.
2003-09-03	Fifth defendant identified himself as “m-director” of the third defendant in an electronic mail.
2003-10-31	Sixth defendant's last day of employment with the plaintiff.
2004-06-30	Fifth defendant remained the managing director of the plaintiff until this date.
2004-10-15	Plaintiff’s solicitors applied ex parte for search orders against all the defendants.
2004-10-18	Search orders against all the defendants were granted.
2005-02-17	Third defendant’s application to set aside the search order was heard.
2005-08-04	The court set aside the order against the third defendant.

7. Legal Issues

Setting Aside Anton Piller Order
- Outcome: The court set aside the Anton Piller order against the third defendant.
- Category: Procedural
- Sub-Issues:
  - Failure to establish a prima facie case
  - Absence of serious damage
  - Lack of real risk of destruction of evidence
  - Disproportionate effect of search order
  - Absence of proper enquiries
- Related Cases:
  - [1976] Ch 55
  - [1999] 2 SLR 609
  - [1995] 1 SLR 673
  - [1989] 1 WLR 1268
  - [1991] SLR 247
  - [1998] 1 WLR 1350
  - [2000] 2 SLR 750
  - [2001] FSR 383
Conspiracy to Injure
- Outcome: The court found that the plaintiff had not established a prima facie case of conspiracy against the third defendant.
- Category: Substantive

8. Remedies Sought

Search Order
Damages

9. Cause of Actions

Breach of Directors’ Fiduciary Duties
Conspiracy to Injure

10. Practice Areas

Commercial Litigation
Injunctions

11. Industries

Business Management
Consultancy

12. Cited Cases

Case Name	Court	Affirmed	Citation	Jurisdiction	Significance
Anton Piller KG v Manufacturing Processes Ltd	Court of Appeal	Yes	[1976] Ch 55	England and Wales	Cited for the principle that Anton Piller orders should only be granted in extreme cases where there is a grave danger of property being smuggled away or an imminent risk of vital evidence being destroyed.
Petromar Energy Resources Pte Ltd v Glencore International AG	High Court	Yes	[1999] 2 SLR 609	Singapore	Cited for the principle that the plaintiff has to persuade the court that there is “solid evidence” of a real risk that the third defendant would destroy or remove documents if not for the search order.
Expanded Metal Manufacturing Pte Ltd v Expanded Metal Co Ltd	High Court	Yes	[1995] 1 SLR 673	Singapore	Cited for the principle that the fact that a party has acted inappropriately in one context does not per se inexorably lead to the conclusion that it will destroy evidence as a matter of course.
Lock International Plc v Beswick	High Court	Yes	[1989] 1 WLR 1268	England and Wales	Cited for the principle that the effect of a search order must not be excessive and/or disproportionate to the legitimate goal of the order.
Computerland Corp v Yew Seng Computers Pte Ltd	High Court	Yes	[1991] SLR 247	Singapore	Cited for the principle that the effect of a search order must not be excessive and/or disproportionate to the legitimate goal of the order.
Brink’s Mat Ltd v Elcombe	Court of Appeal	Yes	[1998] 1 WLR 1350	England and Wales	Cited for the principle that an applicant must make proper enquiries before making an application.
Tay Long Kee Impex Pte Ltd v Tan Beng Huwah	High Court	Yes	[2000] 2 SLR 750	Singapore	Cited for the principle that the duty of enquiry extends not only to known material facts but also to facts that ought to be known if proper and/or adequate enquiries had been carried out.
The Gadget Shop Limited v The Bug.Com Limited	High Court	Yes	[2001] FSR 383	England and Wales	Cited for the principle that a court is entitled to look collectively at all the failings in a search application in order to determine whether or not to discharge it.
Bank Mellat v. Nikpour	N/A	Yes	[1985] F.S.R. 87	N/A	Cited regarding the duty of disclosure and proper inquiries before making an application.
Columbia Picture Industries Inc. v. Robinson	N/A	Yes	[1987] Ch. 38	N/A	Cited regarding the possible effect of an Anton Piller order.

13. Applicable Rules

Rule Name
No applicable rules

14. Applicable Statutes

Statute Name	Jurisdiction
No applicable statutes

15. Key Terms and Keywords

15.1 Key Terms

Anton Piller Order
Search Order
Prima Facie Case
Conspiracy to Injure
Fiduciary Duty
Ex Parte Application
Supervising Solicitors
Group
Cost Center

15.2 Keywords

Anton Piller order
search order
conspiracy
fiduciary duty
business management
consultancy
Singapore High Court

17. Areas of Law

Area Name	Relevance Score
Anton Piller Orders	90
Injunctions	60
Civil Litigation	60
Conspiracy by Unlawful Means	50
Commercial Disputes	40
Fiduciary Duties	40
Contract Law	30
Company Law	30

16. Subjects

Civil Procedure
Commercial Litigation
Conspiracy Law