Management Corp v DTZ: Specific Discovery & Litigation Privilege

The Management Corporation Strata Title Plan No 689 (Plaintiff) applied for specific discovery of documents against DTZ Debenham Tie Leung (SEA) Pte Ltd and DTZ Debenham Tie Leung Property Management Services Pte Ltd (Defendants) in the High Court of Singapore. The application arose from a substantive action regarding alleged misappropriation of funds by an employee. The court allowed the application in part, ordering the discovery of certain documents while addressing claims of litigation privilege. The court found some documents were relevant and necessary for disposing of the matter fairly.

1. Case Overview

1.1 Court

High Court

1.2 Outcome

Application for specific discovery allowed in part.

1.3 Case Type

Civil

1.4 Judgment Type

Grounds of Decision

1.5 Jurisdiction

Singapore

1.6 Description

Application for specific discovery of documents related to alleged misappropriation of funds. Court allows discovery, addresses litigation privilege.

1.7 Decision Date

2. Parties and Outcomes

Party NameRoleTypeOutcomeOutcome TypeCounsels
The Management Corporation Strata Title Plan No 689PlaintiffCorporationApplication for specific discovery allowed in partPartialChen Mei Lin Lynette, Lim Yin Mei Sue-Anne
DTZ Debenham Tie Leung (SEA) Pte LtdDefendantCorporationApplication for specific discovery allowed in partPartialTeo Weng Kie, Lorraine Ho
DTZ Debenham Tie Leung Property Management Services Pte LtdDefendantCorporationApplication for specific discovery allowed in partPartialTeo Weng Kie, Lorraine Ho

3. Judges

Judge NameTitleDelivered Judgment
Goh Yi HanAssistant RegistrarYes

4. Counsels

Counsel NameOrganization
Chen Mei Lin LynetteHarry Elias Partnership
Lim Yin Mei Sue-AnneHarry Elias Partnership
Teo Weng KieTan Kok Quan Partnership
Lorraine HoTan Kok Quan Partnership

4. Facts

  1. The plaintiff engaged DTZ Leung as the managing agent of The Arcade from 1 April 1991 to 31 March 1997.
  2. The second defendant took over as the managing agent of The Arcade from 1 April 1997 to 6 February 2006.
  3. Wilson Loh was stationed at The Arcade as Maintenance Supervisor or Complex Manager from 1991 to 2005.
  4. On 4 October 2005, it was discovered that a cheque issued by the plaintiff was dishonoured.
  5. Wilson Loh had disappeared and was no longer contactable.
  6. Wilson Loh had misappropriated funds through fraudulent accounts and cheques.
  7. Two conflicting sets of accounts were produced for the years 1997 to 2004.

5. Formal Citations

  1. The Management Corporation Strata Title Plan No 689 v DTZ Debenham Tie Leung (SEA) Pte Ltd and Another, Suit 208/2007, SUM 1888/2008, [2008] SGHC 98

6. Timeline

DateEvent
DTZ Leung Pte Ltd engaged as managing agent of The Arcade.
Second defendant took over as managing agent of The Arcade.
DTZ Leung dissolved.
Discovery of dishonoured cheque and disappearance of Wilson Loh.
Plaintiff engaged Messrs Harry Elias Partnership.
HEP engaged an independent forensic accountant.
Police report filed.
Forensic accountants commenced work.
Second defendant ceased being the managing agent of The Arcade.
Plaintiff commenced substantive action against the defendants.
Plaintiff’s Statement of Claim (Amendment No 1) filed.
Defendants’ Defence (Amendment No 2) filed.
Plaintiff filed Affidavit Verifying the Supplementary List of Documents.
Plaintiff filed the Chotrani affidavit.
Judgment reserved.

7. Legal Issues

  1. Specific Discovery
    • Outcome: The court allowed the discovery of certain documents, finding them relevant and necessary for disposing of the matter fairly.
    • Category: Procedural
    • Sub-Issues:
      • Relevance of documents
      • Necessity of discovery
      • Possession, custody, or power of documents
    • Related Cases:
      • [2007] SGHC 69
      • [1990] FSR 381
      • [2002] 2 SLR 267
      • [2002] 3 SLR 345
      • [2006] 4 SLR 95
      • (1882) 11 QBD 55
      • [2004] 4 SLR 39
      • [2008] SGHC 54
  2. Litigation Privilege
    • Outcome: The court found that certain documents were not protected by litigation privilege because the dominant purpose for their creation was not for pending or contemplated litigation.
    • Category: Procedural
    • Sub-Issues:
      • Reasonable prospect of litigation
      • Dominant purpose of documents
    • Related Cases:
      • [1998] 2 SLR 657
      • [2007] 2 SLR 367
      • [1980] AC 521

8. Remedies Sought

  1. Specific Discovery of Documents

9. Cause of Actions

  • Vicarious Liability
  • Breach of Contract

10. Practice Areas

  • Commercial Litigation

11. Industries

  • Real Estate
  • Property Management

12. Cited Cases

Case NameCourtAffirmedCitationJurisdictionSignificance
Dante Yap Go v Bank Austria Creditanstalt AGHigh CourtYes[2007] SGHC 69SingaporeCited for principles governing discovery.
Berkeley Administration Inc v McClellandEnglish Court of AppealYes[1990] FSR 381England and WalesCited for the principle that there is no jurisdiction to make an order for the production of documents unless there is sufficient evidence that the documents exist and are in the possession, custody or power of the other party.
Soh Lup Chee v Seow Boon ChengHigh CourtYes[2002] 2 SLR 267SingaporeCited for the principle that affidavits verifying a list of documents are generally conclusive and cannot be contravened by other contentious affidavits.
Muhd Munir v Noor HidahHigh CourtYes[1990] SLR 999SingaporeCited for the definition of jurisdiction.
Tan Chin Seng & Ors v Raffles Town Club Pte LtdCourt of AppealYes[2002] 3 SLR 345SingaporeCited for the principle that seeking discovery of a document to back up an unpleaded allegation constitutes fishing.
UMCI Ltd v Tokio Marine & Fire Insurance Co (Singapore) Pte Ltd and OthersHigh CourtYes[2006] 4 SLR 95SingaporeCited for the principle that the relevance of documents sought in discovery must be considered by reference to the pleaded issues.
Compagnie Financiere Et Commerciale Du Pacifique v Peruvian GuanoQueen's Bench DivisionYes(1882) 11 QBD 55England and WalesCited for the principle that a document is discoverable if it may fairly lead to a train of inquiry which may enable the party requiring discovery to advance his case or damage the case of his adversary.
Jones v RichardsQueen's Bench DivisionYes(1885) 15 QBD 439England and WalesCited as an example of a train of inquiry.
Bayerische Hypo-und Vereinsbank AG v Asia Pacific Breweries (Singapore) Pte LtdHigh CourtYes[2004] 4 SLR 39SingaporeCited for the principle that the ultimate test for discovery is whether it is necessary for disposing fairly of the proceedings or for saving costs.
Ting Kang Chung John v Teo Hee Lai Building Construction Pte LtdHigh CourtYes[2008] SGHC 54SingaporeCited for the principle that the overriding principle in discovery is that it must be either for disposing fairly of the cause or matter or for saving costs.
Marshall v Goulston Discount (Northern) LtdEnglish Court of AppealYes[1966] 3 WLR 599England and WalesCited for the principle that discovery must be given of documents that post-date the transaction in question, as well as those which pre-date the transaction.
Emjay Enterprises Pte Ltd v Skylift Consolidator (Pte) LtdHigh CourtYes[2006] 2 SLR 268SingaporeCited for the principle that a defendant must plead specifically the reasons why he disagrees with the manner in which the quantum of damages claimed is calculated.
Zurich Insurance (Singapore) Pte Ltd v B-Gold Interior Design & Construction Pte LtdCourt of AppealYes[2008] SGCA 27SingaporeCited for the principle that legal documents must be read in their proper context.
Dunn v British Coal CorporationEnglish Court of AppealYes[1993] ICR 591England and WalesCited as an example of the operation of the proposition that the extent of discovery is governed by the pleaded cases.
Calvet v TomkiesEnglish Court of AppealYes[1963] 1 WLR 1397England and WalesCited for the principle that in a libel action where no special damage was alleged, the defendant was not entitled to discovery as to the income of the plaintiff.
British Leyland Motor v Wyatt InterpartUnknownYes[1979] FSR 39UnknownCited for the principle that courts will not allow wide-ranging discovery if the party's sole purpose is to fish for possible defenses.
Brink’s Inc v Singapore AirlinesHigh CourtYes[1998] 2 SLR 657SingaporeCited for the principle that the burden lies on the party claiming privilege to prove that the documents concerned are indeed protected by privilege.
Minister of Justice v Sheldon Blank (Attorney General of Ontario, The Advocates’ Society and Information Commissioner of Canada (Interveners))Canadian Supreme CourtYes[2006] SCC 39CanadaCited for the principle that litigation privilege ensures that the advocate and solicitor can prepare his case effectively and free from interference.
Skandinaviska Enskilda Banken AB (Publ), Singapore Branch v Asia Pacific Breweries (Singapore) Pte LtdCourt of AppealYes[2007] 2 SLR 367SingaporeCited for the requirements of litigation privilege: a reasonable prospect of litigation and the dominant purpose of the document in question is for pending or contemplated litigation.
Law Society of Singapore v Tan Guat Neo PhyllisCourt of AppealYes[2008] 2 SLR 239SingaporeCited for the relationship between the common law and the Evidence Act.
Lee Chez Kee v PPCourt of AppealYes[2008] SGCA 20SingaporeCited for the relationship between the common law and the Evidence Act.
Hellenic Mutual War Risks Association (Bermuda) Ltd and General Contractors Importing and Services Enterprises v Harrison (The “Sagheera”)English High CourtYes[1997] 1 Lloyd’s Rep 160England and WalesCited for the criterion of a reasonable prospect of litigation.
Collins v London General Omnibus CompanyUnknownYes(1893) 68 LT 831England and WalesCited as an example of a standard for the chance of litigation that was too high and unrealistic.
Waugh v British Railways BoardHouse of LordsYes[1980] AC 521United KingdomCited for the dominant purpose test for litigation privilege.
Grant v DownsAustralian High CourtYes(1976) 135 CLR 674AustraliaCited for the dominant purpose test for litigation privilege.
The Patraikos No 2High CourtYes[2001] 4 SLR 308SingaporeCited for an additional requirement for litigation privilege that was not applied by the Court of Appeal in Brink's Inc.
Secretary of State for Trade of Industry v BakerEnglish High CourtYes[1998] WLR 667England and WalesCited for the observation that documents brought into being by solicitors for the purposes of litigation were afforded privilege because of the light they might cast on the client’s instructions to the solicitor or the solicitor’s advice to the client regarding the conduct of the case or on the client’s prospects.
Spandeck Engineering (S) Pte Ltd v Defence Science & Technology AgencyCourt of AppealYes[2007] 4 SLR 100SingaporeCited for the distinction between a factual and legal characterisation in relation to the stages in the test for duty of care.
Ngiam Kong Seng v Lim Chiew HockCourt of AppealYes[2008] SGCA 23SingaporeCited for the explanation and refinement of the Spandeck Engineering case.
Bullock & Co v Corry & CoQueen's Bench DivisionYes(1878) 3 QBD 356England and WalesCited for the principle that the contemplated litigation need not be the particular litigation in which the disclosure is being sought.

13. Applicable Rules

Rule Name
Rules of Court
Rules of Court
Rules of Court

14. Applicable Statutes

Statute NameJurisdiction
Evidence ActSingapore

15. Key Terms and Keywords

15.1 Key Terms

  • Specific Discovery
  • Litigation Privilege
  • Reasonable Prospect of Litigation
  • Dominant Purpose
  • Relevance
  • Necessity
  • Possession
  • Custody
  • Power
  • Affidavit
  • Management Corporation
  • Managing Agent
  • Misappropriation
  • Forensic Accountant

15.2 Keywords

  • Specific Discovery
  • Litigation Privilege
  • Accounting Records
  • Misappropriation
  • Singapore
  • High Court

16. Subjects

  • Civil Procedure
  • Discovery
  • Litigation Privilege
  • Accounting Records

17. Areas of Law

  • Civil Procedure
  • Discovery
  • Litigation Privilege