Grande Corp v Cubix: Striking Out Defences for Discovery Breach
In a civil suit before the High Court of Singapore, Grande Corporation Pte Ltd sued Cubix Group Pte Ltd, Toh Wee Ping Benjamin, Goh Bee Heong, Cubix and Kosmic Pte Ltd, AXXIS Group Pte Ltd, AXXIS International Pte Ltd, and AXXIS Pte Ltd for breach of fiduciary duties, fraudulent misrepresentation, and conspiracy related to the diversion of funds and business from a joint venture. The court struck out the defences of Toh Wee Ping Benjamin and Goh Bee Heong due to their inexcusable breaches of discovery obligations and an Unless Order, entering interlocutory judgment for Grande Corporation Pte Ltd, with damages to be assessed.
1. Case Overview
1.1 Court
High Court of the Republic of Singapore1.2 Outcome
Defences of Toh Wee Ping Benjamin and Goh Bee Heong struck out; interlocutory judgment for the plaintiff.
1.3 Case Type
Civil
1.4 Judgment Type
Judgment
1.5 Jurisdiction
Singapore
1.6 Description
The High Court struck out the defences of certain defendants for breaching discovery obligations in a case involving breach of fiduciary duties.
1.7 Decision Date
2. Parties and Outcomes
| Party Name | Role | Type | Outcome | Outcome Type | Counsels |
|---|---|---|---|---|---|
| Grande Corporation Pte Ltd | Plaintiff | Corporation | Judgment for Plaintiff | Won | Chan Wai Kit Darren Dominic, Ng Yi Ming Daniel |
| Cubix Group Pte Ltd | Defendant | Corporation | Claim Dismissed | Lost | |
| Toh Wee Ping Benjamin | Defendant | Individual | Claim Dismissed | Lost | Ng Boon Gan |
| Goh Bee Heong | Defendant | Individual | Claim Dismissed | Lost | Ng Boon Gan |
| Cubix and Kosmic Pte Ltd | Defendant | Corporation | Neutral | Neutral | |
| AXXIS Group Pte Ltd | Defendant | Corporation | Claim Dismissed | Lost | |
| AXXIS International Pte Ltd | Defendant | Corporation | Claim Dismissed | Lost | |
| AXXIS Pte Ltd | Defendant | Corporation | Claim Dismissed | Lost |
3. Judges
| Judge Name | Title | Delivered Judgment |
|---|---|---|
| Lee Seiu Kin | Judge | Yes |
4. Counsels
| Counsel Name | Organization |
|---|---|
| Chan Wai Kit Darren Dominic | Characterist LLC |
| Ng Yi Ming Daniel | Characterist LLC |
| Ng Boon Gan | VanillaLaw LLC |
4. Facts
- Plaintiff claimed the funding, business, clientele, projects and staff of C&K were wrongfully transferred or diverted to the AXXIS Companies.
- Plaintiff requested specific discovery of bank statements and financial documents of the AXXIS Companies.
- Defendants stated that certain documents were thrown away to reduce warehousing costs.
- Defendants disclosed some documents after the plaintiff filed applications for specific discovery and unless orders.
- The court found inconsistencies in the defendants' positions regarding the destruction and existence of documents.
- The court found that the defendants breached an Unless Order requiring them to explain delays in providing documents.
5. Formal Citations
- Grande Corp Pte Ltd v Cubix International Pte Ltd and others, Suit No 331 of 2013, [2018] SGHC 13
6. Timeline
| Date | Event |
|---|---|
| Plaintiff commenced claim | |
| Defendants entered appearances | |
| Defendants entered appearances | |
| Cubix International, Cubix Group, Ben, Bee and the AXXIS Companies jointly filed a defence | |
| Cubix Group, C&K and the AXXIS Companies filed notices of intention to act in person | |
| Messrs MG Chambers LLC began representing the Represented Defendants | |
| Cubix International, Ben and Bee filed an amended defence | |
| Plaintiff requested specific discovery | |
| MG Chambers responded to request for specific discovery | |
| Represented Defendants wrote to HSBC to request only for AXXIS International’s bank statements for 2008 | |
| Represented Defendants disclosed AXXIS International’s bank statements for April to December 2008 | |
| Plaintiff filed Summons no 1531 of 2015 for specific discovery | |
| Ben filed his sixth Affidavit to resist the SD Application | |
| AR Mak issued the SD Order | |
| Represented Defendants filed the Third LOD | |
| AR Mak’s order was subsequently amended | |
| Plaintiff filed summons no 4362 of 2016, seeking an order that Ben and Bee comply with the Amended SD Order | |
| Represented Defendants wrote to HSBC to request bank statements for all of the AXXIS Companies for the year of 2009 | |
| Represented Defendants filed the Fourth LOD | |
| AR Lim issued the Unless Order | |
| Ben affirmed an affidavit in purported compliance with the Unless Order | |
| Plaintiff discontinued the claim against Cubix International | |
| Plaintiff took out summons no 569 of 2017 seeking an order that Ben and Bee comply with the Amended SD Order | |
| MG Chambers wrote a letter to Characterist | |
| Represented Defendants filed the Fifth LOD | |
| Plaintiff wrote to court to withdraw the Second Unless Order Application | |
| Plaintiff filed the present application, summons no 2275 of 2017, to have Ben, Bee and the AXXIS Companies’ defences struck out | |
| Ben affirmed an affidavit to resist the striking out application | |
| Court ordered the Represented Defendants to file an affidavit sworn or affirmed by the person who caused the documents in Categories 1(2), 1(3) and 1(5) to be destroyed or disposed of | |
| Ben affirmed an affidavit in purported compliance with court orders | |
| Bee affirmed an affidavit in purported compliance with court orders | |
| Hearing Date | |
| Judgment Date |
7. Legal Issues
- Breach of Discovery Obligations
- Outcome: The court found that the defendants breached their discovery obligations and the Unless Order, warranting the striking out of their defences.
- Category: Procedural
- Sub-Issues:
- Failure to comply with Unless Order
- Incomplete disclosure of documents
- Destruction of documents
- Breach of Fiduciary Duties
- Outcome: The court did not make a determination on the merits of the breach of fiduciary duties claim, as the decision was based on procedural grounds.
- Category: Substantive
8. Remedies Sought
- Monetary Damages
- Account of Profits
- Lifting the Corporate Veil
9. Cause of Actions
- Breach of Fiduciary Duty
- Fraudulent Misrepresentation
- Conspiracy
10. Practice Areas
- Commercial Litigation
11. Industries
- No industries specified
12. Cited Cases
| Case Name | Court | Affirmed | Citation | Jurisdiction | Significance |
|---|---|---|---|---|---|
| Mitora Pte Ltd v Agritrade International (Pte) Ltd | High Court | Yes | [2013] 3 SLR 1179 | Singapore | Cited for the principle that a real risk that a fair trial will no longer be possible as a result of the failure to provide discovery is a classic case for striking out an action under O 24 r 16 of the ROC. |
| K Solutions Pte Ltd v National University of Singapore | High Court | Yes | [2009] SGHC 143 | Singapore | Cited for the principle that a court may order a striking out even if a fair trial is still possible. |
| Alliance Management SA v Pendleton Lane P | High Court | Yes | [2008] 4 SLR(R) 1 | Singapore | Cited for the use of terms such as “contumelious” and “contumacious” to express the idea that something beyond ordinary procedural default is required for striking out. |
| Hytec Information Systems Ltd v Coventry City Council | Court of Appeal | Yes | [1997] 1 WLR 1666 | England and Wales | Cited for the principle that even a failure to comply with court orders “through negligence, incompetence, or sheer indolence” may justify striking out. |
| Von Roll Asia Pte Ltd v Goh Boon Gay and others | High Court | Yes | [2015] 3 SLR 1115 | Singapore | Cited for the principle that the breach of an unless order is more likely to be regarded as “contumelious” conduct. |
| Lee Chang-Rung v Standard Chartered Bank | High Court | Yes | [2011] 1 SLR 337 | Singapore | Cited for the factors which the courts have taken into account in exercising the discretion under O 24 r 16 of the Rules of Court. |
| Ka Wah Bank Ltd v Low Chung-song | Court of Appeal | Yes | [1989] 1 HKLR 451 | Hong Kong | Cited for the principle that where an unless order requires a party to file a list of documents and an accompanying affirmation, that party’s claim or action may be struck out if the list is “wilfully defective” and displays no evidence of conscientious effort to give proper discovery. |
| Tan Kok Ing v Ang Boon Aik | High Court | Yes | [2002] SGHC 215 | Singapore | Cited for the principle that a failure to disclose need not be continuing before it is capable of attracting a remedial response from the courts. |
| Logicrose Ltd v Southend United Football Club Ltd | N/A | Yes | N/A | N/A | Cited for the underlying reason for striking out an action where a failure to comply with the rules on discovery has created a real risk that a fair trial will not be possible. |
| Landauer Ltd v Comins & Co | N/A | Yes | N/A | N/A | Provides an example of a situation where a claim was struck out on the ground that there was a real risk that a fair trial would be impossible as a result of a breach of discovery obligations. |
| In re Jokai Tea Holdings Ltd | N/A | Yes | [1992] 1 WLR 1196 | N/A | Cited for the principle that the defaulting party must show that “there was no intention to ignore or flout the order and that the failure to obey was due to extraneous circumstances”. |
| Syed Mohamed Abdul Muthaliff v Arjan Bhisham Chotrani | Court of Appeal | Yes | [1999] 1 SLR(R) 361 | Singapore | Cited for the observation that the defaulting party must “show that he had made positive efforts to comply but was prevented from doing so by extraneous circumstances”. |
| Teeni Enterprise Pte Ltd v Singco Pte Ltd | High Court | Yes | [2008] SGHC 115 | Singapore | Cited for the principle that the court must balance the need to ensure compliance with court orders and the need to ensure that a party would not be summarily deprived of its cause of action or have default judgment entered against it without any hearing of the merits. |
| Wellmix Organics (International) Pte Ltd v Lau Yu Man | High Court | Yes | [2006] 2 SLR 117 | Singapore | Cited for the principle that the discretionary power to enforce the unless order according to its strict terms must therefore be exercised judiciously and cautiously after weighing everything in the balance. |
13. Applicable Rules
| Rule Name |
|---|
| No applicable rules |
14. Applicable Statutes
| Statute Name | Jurisdiction |
|---|---|
| Companies Act (Cap 50, 2006 Rev Ed) s 340 | Singapore |
| Rules of Court (Cap 322, R 5, 2006 Rev Ed) O 12 r 1(2) | Singapore |
| Rules of Court O 24 r 16(1) | Singapore |
15. Key Terms and Keywords
15.1 Key Terms
- Discovery Obligations
- Unless Order
- AXXIS Companies
- C&K
- Contumelious Breach
- Specific Discovery
- Financial Statements
- Bank Statements
- Peachtree Software
15.2 Keywords
- Discovery
- Breach
- Fiduciary Duty
- Civil Procedure
- Singapore
- Striking Out
16. Subjects
- Civil Procedure
- Discovery
- Breach of Contract
- Fiduciary Duty
17. Areas of Law
- Civil Procedure
- Discovery of Documents
- Breach of Fiduciary Duty