Actis Excalibur Ltd v KS Distribution Pte Ltd: Intervention in Derivative Action for Breach of Fiduciary Duties

Actis Excalibur Limited, a shareholder of KS Distribution Pte Ltd, sought leave to bring a derivative action against Kris Taenar Wiluan and Richard James Wiluan for breaches of fiduciary duties. The proposed interveners, Kris Taenar Wiluan and Richard James Wiluan, applied for leave to intervene in the originating summons. The Assistant Registrar of the High Court granted the application, allowing the proposed interveners to file affidavits and be heard at the hearing of the originating summons.

1. Case Overview

1.1 Court

High Court of the Republic of Singapore

1.2 Outcome

Leave granted for the proposed interveners to intervene in Originating Summons No 788 of 2016.

1.3 Case Type

Civil

1.4 Judgment Type

Judgment

1.5 Jurisdiction

Singapore

1.6 Description

Application for intervention in a derivative action concerning breaches of fiduciary duties. The court granted the intervention, allowing the proposed interveners to file affidavits.

1.7 Decision Date

2. Parties and Outcomes

Party NameRoleTypeOutcomeOutcome TypeCounsels
Actis Excalibur LimitedPlaintiffCorporationApplication granted for proposed interveners to interveneNeutral
KS Distribution Pte LtdDefendantCorporationNo specific outcomeNeutral
Aqua-Terra Oilfield Equipment & Services Pte LtdDefendantCorporationNo specific outcomeNeutral
SSH Corporation LtdDefendantCorporationNo specific outcomeNeutral
Kris Taenar WiluanProposed IntervenerIndividualIntervention application grantedWon
Richard James WiluanProposed IntervenerIndividualIntervention application grantedWon

3. Judges

Judge NameTitleDelivered Judgment
Colin SeowAssistant RegistrarYes

4. Counsels

Counsel NameOrganization
Thio Shen YiTSMP Law Corporation
Kelvin KohTSMP Law Corporation
Niklas WongTSMP Law Corporation
Bryan TanAdvocatus Law LLP
Mahesh RaiDrew and Napier LLC
Jeremy YeapDrew and Napier LLC

4. Facts

  1. Actis Excalibur Limited sought leave to bring a derivative action against Kris Taenar Wiluan and Richard James Wiluan.
  2. The Plaintiff alleges breaches of fiduciary and directors’ duties by the Putative Defendants.
  3. The Putative Defendants sought leave to intervene in the originating summons.
  4. The Plaintiff is a 44.65% shareholder of KS Distribution.
  5. The Putative Defendants are nominee directors in KS Distribution.
  6. The Plaintiff alleges undeclared and illegitimate related party transactions.
  7. The Companies support the Putative Defendants dealing with the allegations.

5. Formal Citations

  1. Actis Excalibur Ltd v KS Distribution Pte Ltd and others, Originating Summons No 788 of 2016 (Summons No 4103 of 2016), [2016] SGHCR 11

6. Timeline

DateEvent
Hearing date
Judgment Reserved

7. Legal Issues

  1. Intervention in Derivative Action
    • Outcome: The court granted leave for the proposed interveners to intervene in the originating summons.
    • Category: Procedural
    • Sub-Issues:
      • Application of O 15 r 6(2)(b)(ii) of the Rules of Court
      • Test for 'just and convenient' intervention
  2. Precedential Status of High Court Decisions for Assistant Registrars
    • Outcome: The court held that ARs are generally bound by decisions of High Court Judges, with limited exceptions.
    • Category: Procedural

8. Remedies Sought

  1. Leave to bring an action in the name and on behalf of the company
  2. Order that the Companies pay the legal fees and disbursements incurred by the Plaintiff

9. Cause of Actions

  • Breach of Fiduciary Duty
  • Breach of Directors’ Duties

10. Practice Areas

  • Commercial Litigation

11. Industries

  • Oil and Gas

12. Cited Cases

Case NameCourtAffirmedCitationJurisdictionSignificance
Attorney-General v Aljunied-Hougang-Punggol East Town CouncilCourt of AppealYes[2016] 1 SLR 915SingaporeCited for the test of intervention under O 15 r 6(2)(b)(ii) of the Rules of Court, requiring a factual link to the relief claimed and that intervention be just and convenient.
Chan Tong Fan and another v Chiam Heng Luan Realty Pte Ltd (Chiam Toon Tau and another, non-parties)High CourtYes[2013] SGHC 192SingaporeCited as a past High Court decision demonstrating the readiness of the High Court in allowing putative defendants to intervene in applications taken out pursuant to section 216A of the Companies Act.
Chan Tong Fan v Sloan Court Hotel Pte Ltd (Chiam Toon Tau and another, non-parties)High CourtYes[2013] SGHC 193SingaporeCited as a past High Court decision demonstrating the readiness of the High Court in allowing putative defendants to intervene in applications taken out pursuant to section 216A of the Companies Act.
Tak Chuen v Eden Aesthetics Pte Ltd and another (Khairul bin Abdul Rahman and another, non-parties)High CourtYes[2010] 2 SLR 667SingaporeCited as a past High Court decision demonstrating the readiness of the High Court in allowing putative defendants to intervene in applications taken out pursuant to section 216A of the Companies Act.
Law Chin Eng and Another v Hiap Seng & Co Pte Ltd (Lau Chin Hu and others, applicants)High CourtYes[2009] SGHC 223SingaporeCited as a past High Court decision demonstrating the readiness of the High Court in allowing putative defendants to intervene in applications taken out pursuant to section 216A of the Companies Act.
Low Hian Chor v Steel Forming & Rolling Specialists Pte Ltd and anotherHigh CourtYes[2012] SGHC 10SingaporeCited as a past High Court decision demonstrating the readiness of the High Court in allowing putative defendants to intervene in applications taken out pursuant to section 216A of the Companies Act.
Fong Wai Lyn Carolyn v Airtrust (Singapore) Pte Ltd and anotherHigh CourtYes[2011] 3 SLR 980SingaporeCited by counsel but distinguished by the court because the directors were already joined as co-defendants.
Kwee Lee Fung Ivon v Gordon Lim Clinic Pte Ltd and anotherHigh CourtYes[2013] SGHC 65SingaporeCited by counsel but distinguished by the court because the directors were already joined as co-defendants.
Lee Seng Eder v Wee Kim Chwee and othersHigh CourtYes[2014] 2 SLR 56SingaporeCited by counsel but distinguished by the court because the directors were already joined as co-defendants.
Wong Lee Vui Willie v Li Qingyun and anotherHigh CourtYes[2015] 1 SLR 696SingaporeCited by counsel but distinguished by the court because the directors were already joined as co-defendants.
Yeo Sing San v Sanmugam Murali and anotherHigh CourtYes[2016] SGHC 14SingaporeCited by counsel but distinguished by the court because the directors were already joined as co-defendants.
Wee Soon Kim Anthony v Law Society of SingaporeCourt of AppealYes[2001] 2 SLR(R) 821SingaporeCited by the Plaintiff for the test to be applied under O 15 r 6(2)(b)(ii) of the ROC, but the court found that the case did not support the Plaintiff's contention.
Tan Yow Kon v Tan Swat Ping and othersHigh CourtYes[2006] 3 SLR(R) 881SingaporeCited for the principle that the court has a broad discretion to allow the joining of a party under O 15 r 6(2)(b)(ii) of the ROC.
Chan Yat Chun v Sng Jin Chye and anotherAssistant Registrar of the High CourtYes[2016] SGHCR 4SingaporeCited for the principle that ARs are not bound by decisions of High Court Judges, but the court disagreed with this observation.
Attorney-General v Shadrake AlanHigh CourtYes[2010] SGHC 327SingaporeCited in Chan Yat Chun for the proposition that the doctrine of horizontal stare decisis does not prevail in Singapore.
Attorney-General v Chee Soon JuanHigh CourtYes[2006] 2 SLR(R) 650SingaporeCited in Chan Yat Chun as being concerned with whether an AR sitting in chambers is equivalent to being a “court” in reference to which contempt in facie curiae proceedings can be taken out.
Herbs and Spices Trading Post Pte Ltd v Deo Silver (Pte) LtdHigh CourtYes[1990] 2 SLR(R) 685SingaporeCited for the principle that High Court Judges enjoy in substance a “confirmatory jurisdiction” over the Registrar of the High Court and, by extension, ARs.
Lim Meng-Eu Judy v RSP Investments (S) Pte LtdHigh CourtYes[1998] 2 SLR(R) 525SingaporeCited in AG v AHPETC for the principle that an applicant relying on O 15 r 6(2)(b)(ii) would have to first establish that the question or issue between one of the parties and the proposed new party is linked, factually or otherwise, to the relief or remedy claimed in the cause or matter.
Chan Kern Miang v Kea Resources Pte LtdHigh CourtYes[1998] 2 SLR(R) 85SingaporeCited in AG v AHPETC for the principle that the court must take into account the interests of the existing parties to the action as well as that of the party to be joined.
Alliance Entertainment Singapore Pte Ltd v Sim Kay TeckHigh CourtYes[2007] 2 SLR(R) 869SingaporeCited in AG v AHPETC for the principle that the court must take into account the interests of the existing parties to the action as well as that of the party to be joined.
Tetra Molectric Limited v Japan Imports LimitedN/AYes[1976] RPC 541N/ACited in Tan Yow Kon for the principle that r 6(2)(b)(ii) has widened the court’s discretion to join parties to an action “to a great extent”.
Ang Thiam Swee v Low Hian ChorCourt of AppealYes[2013] 2 SLR 340SingaporeCited for the principle that there is a natural affinity between the interests of the company in prosecuting a statutory derivative action and the legal merits of that action.

13. Applicable Rules

Rule Name
Rules of Court (Cap 322, R 5, 2007 Rev Ed)

14. Applicable Statutes

Statute NameJurisdiction
Companies Act (Cap 50, 2006 Rev Ed)Singapore

15. Key Terms and Keywords

15.1 Key Terms

  • Derivative Action
  • Intervention
  • Fiduciary Duty
  • Directors’ Duties
  • Related Party Transactions
  • Originating Summons
  • Assistant Registrar
  • Rules of Court
  • Companies Act
  • Judicial Hierarchy

15.2 Keywords

  • Derivative action
  • Intervention
  • Fiduciary duty
  • Companies Act
  • Singapore
  • High Court

17. Areas of Law

Area NameRelevance Score
Companies Act90
Fiduciary Duties80
Joinder of Parties75
Civil Practice70
Corporate Litigation65
Corporate Law60
Business Formation50

16. Subjects

  • Civil Procedure
  • Company Law