Saxo Bank A/S v Innopac Holdings Ltd: Striking Out Defence for Failure to Comply with Discovery Obligations

In the case of Saxo Bank A/S versus Innopac Holdings Ltd, the General Division of the High Court of Singapore heard an appeal regarding the striking out of Innopac Holdings Ltd's defence and counterclaim due to repeated failures to comply with discovery obligations. Saxo Bank A/S sued Innopac Holdings Ltd for breaching a memorandum of understanding. The court, presided over by Judicial Commissioner Andre Maniam, upheld the decision to strike out the defence and counterclaim, finding that Innopac Holdings Ltd had intentionally and contumaciously breached discovery orders, leading to judgment in favor of Saxo Bank A/S.

1. Case Overview

1.1 Court

General Division of the High Court

1.2 Outcome

Judgment for Plaintiff

1.3 Case Type

Civil

1.4 Judgment Type

Grounds of Decision

1.5 Jurisdiction

Singapore

1.6 Description

Innopac's defence and counterclaim were struck out due to repeated failures to comply with discovery obligations. The court upheld the decision, citing intentional and contumelious breaches.

1.7 Decision Date

19 September 2021

2. Parties and Outcomes

Party Name	Role	Type	Outcome	Outcome Type	Counsels
Saxo Bank A/S	Plaintiff, Respondent	Corporation	Judgment for Plaintiff	Won	Harish Kumar of Rajah & Tann Singapore LLP Low Weng Hong of Rajah & Tann Singapore LLP Daniel Quek of Rajah & Tann Singapore LLP Edina Lim of Rajah & Tann Singapore LLP
Innopac Holdings Ltd	Defendant, Appellant	Corporation	Defence and Counterclaim Struck Out	Lost	Tan Weiyi of Harry Elias Partnership LLP Brian Ho of Harry Elias Partnership LLP

3. Judges

Judge Name	Title	Delivered Judgment
Andre Maniam	Judicial Commissioner	Yes

4. Counsels

Counsel Name	Organization
Harish Kumar	Rajah & Tann Singapore LLP
Low Weng Hong	Rajah & Tann Singapore LLP
Daniel Quek	Rajah & Tann Singapore LLP
Edina Lim	Rajah & Tann Singapore LLP
Tan Weiyi	Harry Elias Partnership LLP
Brian Ho	Harry Elias Partnership LLP

4. Facts

Defendant repeatedly failed to comply with discovery obligations.
An "unless order" was issued against the defendant to compel discovery.
Defendant did not file any further and better list of documents.
Defendant did not provide a satisfactory explanation in the verification affidavit.
All innopacific.com email data with Exabytes was lost as of 25 November 2019.
Defendant failed to preserve relevant email data with Exabytes.
Defendant took no steps to check what email data Exabytes had.

5. Formal Citations

Saxo Bank A/S v Innopac Holdings Ltd, Suit No 1054 of 2018 (Registrar’s Appeal No 135 of 2021), [2021] SGHC 214

6. Timeline

Date	Event
2013-10-23	Defendant transferred 23 million shares in Liongold Corp Ltd into an account with Saxo Capital Markets Pte Ltd.
2013-10-29	Heritage and Wang Da entered into a memorandum of understanding with the plaintiff.
2013-12-24	Defendant entered into a memorandum of understanding with the plaintiff.
2014-02-01	Defendant transferred 6.8 million Liongold shares to the SCM Account.
2014-03-01	Defendant transferred 16 million shares in Blumont Group Ltd to the SCM Account.
2014-04-01	Defendant transferred 17 million Blumont shares to the SCM Account.
2018-10-01	Plaintiff sued the defendant for breaching the Innopac MOU.
2019-07-19	Parties directed to exchange lists of documents verified by affidavits by 13 August 2019.
2019-08-01	Defendant first breached its discovery obligations.
2019-08-21	Plaintiff applied for an unless order to compel discovery.
2019-09-27	Defendant filed its list of documents and verification affidavit.
2019-09-30	Defendant purportedly produced copies of the documents in its list.
2019-10-11	Defendant was directed to provide complete copies of the documents in its list by 18 October 2019.
2019-10-21	Defendant provided complete copies of most of the documents in its list.
2019-10-22	Plaintiff made its request for specific discovery.
2019-11-04	Defendant did not respond substantively to the request for specific discovery.
2019-11-13	Defendant asserted that the documents requested did not exist.
2019-11-15	Defendant was directed to file an amended list of documents clarifying the discrepancies by 22 November 2019.
2019-11-21	Defendant filed an affidavit stating that all correspondence relating to the Plaintiff’s request for specific discovery of the abovementioned documents were done verbally and therefore no records for such correspondence exist.
2019-11-25	All innopacific.com email data with Exabytes was lost.
2019-11-29	Plaintiff applied for specific discovery of eight categories of documents.
2019-12-16	Defendant filed Lim Heng Lin’s 3rd affidavit.
2020-01-13	Defendant was ordered to file and serve a further and better list.
2020-02-14	Defendant put in fresh evidence by filing Mr Lim’s 7th affidavit exhibiting an unfiled affidavit affirmed by Mr Wong on 14 February 2020.
2020-02-20	Andrew Ang SJ upheld the order and dismissed the appeal.
2020-03-12	Deadline for defendant to comply with the Further Discovery Order.
2020-03-19	Defendant wrote to court to seek an extension of time.
2020-03-26	Extended deadline for defendant to comply with the Further Discovery Order.
2020-06-19	The court made the Unless Order.
2020-06-29	Defendant purported to comply with the Further Discovery Order (and the Unless Order) by filing Mr Lim’s 8th affidavit.
2020-07-01	Deadline for defendant to comply with the Unless Order.
2020-07-16	Plaintiff applied for the defendant’s defence and counterclaim to be struck out.
2020-07-28	Defendant applied for Mr Lim to be granted leave to represent the defendant.
2020-08-13	Defendant applied to be placed in judicial management.
2021-02-22	HC/SUM 3122/2020 was withdrawn, and HC/OS 787/2020 was dismissed.
2021-04-30	The plaintiff’s striking-out application was heard, and granted.
2021-05-06	Request to CAD was made for a copy of data in Mr Wong’s laptop.
2021-05-28	Mr Wong reviewed the defendant’s board minutes.
2021-05-31	The application was supported by the 5th affidavit of Mr Wong.
2021-06-25	The application was followed by the 6th affidavit of Mr Wong.
2021-07-28	Date of judgment.

7. Legal Issues

Failure to Comply with Discovery Obligations
- Outcome: The court upheld the decision to strike out the defendant's defence and counterclaim due to intentional and contumelious breaches of discovery obligations.
- Category: Procedural
- Sub-Issues:
  - Failure to file a further and better list of documents
  - Failure to provide a proper verification affidavit
  - Breach of Unless Order
- Related Cases:
  - [2008] 4 SLR(R) 1
  - [1996] 1 SLR(R) 121
  - [2002] 1 SLR(R) 604
  - [2008] SGHC 98
  - [2007] 4 SLR(R) 343
  - [1999] 1 SLR(R) 361
  - [2013] 3 SLR 1179

8. Remedies Sought

Monetary Damages

9. Cause of Actions

Breach of Contract

10. Practice Areas

Litigation
Discovery

11. Industries

Finance

12. Cited Cases

Case Name	Court	Affirmed	Citation	Jurisdiction	Significance
Alliance Management SA v Pendleton Lane P and another and another suit	High Court	Yes	[2008] 4 SLR(R) 1	Singapore	Cited for instances in which the court may strike out pleadings for non-compliance with the Rules of Court or orders of court.
SMS v Power & Energy	N/A	Yes	[1996] 1 SLR(R) 121	Singapore	Cited regarding the deliberate or wilful failure to comply with an “unless order”.
Soh Lup Chee v Seow Boon Cheng & Anor	N/A	Yes	[2002] 1 SLR(R) 604	Singapore	Cited regarding the contumacious failure to comply with successive non-peremptory orders for discovery.
The Management Corporation Strata Title Plan No 689 v DTZ Debenham Tie Lung (SEA) Pte Ltd and another	High Court	Yes	[2008] SGHC 98	Singapore	Cited for the principle that an order requiring a further and better list to be filed does not necessarily preclude the party in question from responding that it has no other relevant documents to disclose.
Alliance Management SA v Pendleton Lane P and another and another suit	High Court	Yes	[2007] 4 SLR(R) 343	Singapore	Cited regarding the requirement to produce a certain hard disk.
Syed Mohamed Abdul Muthaliff and another v Arjan Bhisham Chotrani	N/A	Yes	[1999] 1 SLR(R) 361	Singapore	Cited regarding the requirement that a party seeking to escape the consequences of his default must show that he had made positive efforts to comply but was prevented from doing so by extraneous circumstances.
Mitora Pte Ltd v Agritrade International (Pte) Ltd	N/A	Yes	[2013] 3 SLR 1179	Singapore	Cited for principles relating to the striking out of pleadings for breaches of discovery obligations.

13. Applicable Rules

Rule Name
Order 24 rule 16 of the Rules of Court (2014 Rev Ed)

14. Applicable Statutes

Statute Name	Jurisdiction
No applicable statutes

15. Key Terms and Keywords

15.1 Key Terms

Discovery Obligations
Unless Order
Further Discovery Order
Verification Affidavit
Email Data
Innopac MOU
Share Transfers

15.2 Keywords

Discovery
Breach of Contract
Singapore
Civil Procedure

17. Areas of Law

Area Name	Relevance Score
Striking out	90
Disclosure Obligations	80
Civil Practice	75
Civil Procedure	75
Evidence	60
Contract Law	50
Company Law	30
Estoppel	20

16. Subjects

Civil Procedure
Discovery
Breach of Contract