DMX Technologies v Deloitte: Non-Party Discovery & Service Out of Jurisdiction
In Suit 920 of 2017, the General Division of the High Court of Singapore heard an appeal by Richard John Weir George and Tse, Fung Chun, partners of Deloitte Touche Tohmatsu (Deloitte HK), against a decision to allow DMX Technologies Group Ltd (in liquidation) to serve applications for non-party discovery on them. DMX Technologies Group Ltd (in liquidation) had commenced a suit against Deloitte & Touche LLP for breach of duties. Goh Yihan JC allowed the appeal in part, setting aside the service order against Mr. George due to non-disclosure of material facts and failure to meet the close connection test, but dismissed the appeal against Ms. Tse, finding the close connection test was satisfied.
1. Case Overview
1.1 Court
General Division of the High Court of the Republic of Singapore1.2 Outcome
Appeal allowed in part and dismissed in part.
1.3 Case Type
Civil
1.4 Judgment Type
Judgment
1.5 Jurisdiction
Singapore
1.6 Description
Singapore court allows appeal in part, clarifying the test for serving summons on non-parties out of jurisdiction in discovery applications.
1.7 Decision Date
2. Parties and Outcomes
| Party Name | Role | Type | Outcome | Outcome Type | Counsels |
|---|---|---|---|---|---|
| Richard John Weir George | Appellant | Individual | Appeal Allowed | Won | |
| Tse, Fung Chun | Appellant | Individual | Appeal Dismissed | Lost | |
| DMX Technologies Group Ltd (in liquidation) | Respondent, Plaintiff, Defendant in Counterclaim | Corporation | Appeal Dismissed in part | Partial | |
| Deloitte & Touche LLP | Defendant, Plaintiff in Counterclaim | Limited Liability Partnership | Other | Neutral |
3. Judges
| Judge Name | Title | Delivered Judgment |
|---|---|---|
| Goh Yihan | Judicial Commissioner | Yes |
4. Counsels
4. Facts
- DMX Technologies Group Ltd sued Deloitte & Touche LLP for breach of duties in auditing financial statements.
- Richard John Weir George and Tse, Fung Chun are partners in Deloitte HK.
- DMX Technologies sought non-party discovery from George and Tse in Hong Kong.
- George was not involved in the audit, while Tse was the audit partner for the financial year 2011.
- DMX Technologies did not disclose George's non-involvement when seeking leave to serve him.
- The Assistant Registrar dismissed applications to set aside the service orders.
- George and Tse appealed the Assistant Registrar's decision.
5. Formal Citations
- DMX Technologies Group Ltd (in liquidation) v Deloitte & Touche LLP, Suit No 920 of 2017 (Registrar’s Appeal No 254 of 2022), [2022] SGHC 218
6. Timeline
| Date | Event |
|---|---|
| Deloitte & Touche LLP appointed auditor for DMX Technologies Group Ltd for the financial year 2011. | |
| Deloitte & Touche LLP appointed auditor for DMX Technologies Group Ltd for the financial year 2013. | |
| DMX Technologies Group Ltd commenced Suit 920 of 2017 against Deloitte & Touche LLP. | |
| DMX Technologies Group Ltd commenced a non-party discovery application against Mr. George. | |
| DMX Technologies Group Ltd applied ex parte for leave to serve the non-party discovery application on Mr. George in Hong Kong. | |
| The High Court granted the order for service on Mr. George. | |
| Mr. George filed his reply affidavit stating he was not involved in the Audit. | |
| DMX Technologies Group Ltd sought leave to serve the non-party discovery application on Ms. Tse in Hong Kong. | |
| The High Court granted leave to serve out of jurisdiction on Ms. Tse. | |
| Mr. George and Ms. Tse filed Summons 2153 and Summons 2154 to set aside the service orders. | |
| Hearing of the appeal. | |
| Judgment reserved. |
7. Legal Issues
- Service Out of Jurisdiction on Non-Parties
- Outcome: The applicable test to determine if leave should be granted to serve a summons on a non-party out of jurisdiction pursuant to O 11 r 8(1) is the close connection test laid down in Burgundy Global Exploration Corp v Transocean Offshore International Ventures Ltd.
- Category: Procedural
- Sub-Issues:
- Applicable legal test for leave to serve a summons on a non-party out of jurisdiction
- Related Cases:
- [2014] 3 SLR 381
- Non-Disclosure of Material Facts
- Outcome: The First Service Order (against Mr George) was set aside due to the non-disclosure of the material fact of his non-involvement in the Audit.
- Category: Procedural
- Sub-Issues:
- Failure to disclose non-involvement in audit
- Related Cases:
- [2009] 4 SLR(R) 365
- [2018] 5 SLR 725
- [2022] 3 SLR 1300
8. Remedies Sought
- Discovery of Documents
9. Cause of Actions
- Breach of Contract
- Tort
10. Practice Areas
- Commercial Litigation
11. Industries
- Accounting
12. Cited Cases
| Case Name | Court | Affirmed | Citation | Jurisdiction | Significance |
|---|---|---|---|---|---|
| Burgundy Global Exploration Corp v Transocean Offshore International Ventures Ltd | Court of Appeal | Yes | [2014] 3 SLR 381 | Singapore | Cited for the 'close connection test' to determine if leave should be granted to serve a summons on a non-party out of jurisdiction. |
| Bahtera Offshore (M) Sdn Bhd v Sim Kok Beng | High Court | Yes | [2009] 4 SLR(R) 365 | Singapore | Cited for the definition of material facts as those which a court should consider in making its decision. |
| Lakshmi Anil Salgaocar v Hadley James Chilton | High Court | Yes | [2018] 5 SLR 725 | Singapore | Cited for the principle that the duty to make full and frank disclosure is an onerous one, even without bad faith. |
| 6DM (S) Pte Ltd v AE Brands Korea Ltd | High Court | Yes | [2022] 3 SLR 1300 | Singapore | Cited for the principle that the duty to make full and frank disclosure is an onerous one, even without bad faith. |
| Shee See Kuen v PT Trikomsel Oke Tbk | Court of Appeal | Yes | [2022] SGCA 27 | Singapore | Cited for the principle that applications commenced by originating summons but are in substance interlocutory summonses, come within the ambit of O 11 r 8(1). |
| PT Bakrie Investindo v Global Distressed Alpha Fund 1 Ltd Partnership | High Court | Yes | [2013] 4 SLR 1116 | Singapore | Cited for the principle that the predominant purpose of an EJD order is to obtain information to assist the judgment creditor in executing his judgment. |
| Mackinnon v Donaldson, Lufkin and Jenrette Securities Corporation | English High Court | Yes | [1986] 2 WLR 453 | England and Wales | Cited for the principle that a state should refrain from demanding obedience to its sovereign authority by foreigners in respect of their conduct outside the jurisdiction. |
| National Justice Compania Naviera S.A. v Prudential Assurance Co. Ltd. (No 2) | English Court of Appeal | Yes | [2000] 1 WLR 603 | England and Wales | Cited for the application of O 11 r 9(4) of the RSC, which was substantively like O 11 r 8(1) of the ROC 2014. |
| C Inc plc v L | English High Court | Yes | [2001] 2 All ER (Comm) 446 | England and Wales | Cited for the principle that the claimant had to satisfy the court that there was a head of jurisdiction which permitted the court to grant permission to serve the application notice against the non-party out of jurisdiction. |
| Vitol SA v Capri Marine Ltd | English High Court | Yes | [2008] EWHC 378 (Comm) | England and Wales | Agreed with Aikens J’s interpretation of r 6.30(2). |
| Changfeng Shipping Holdings Ltd v Sinoriches Enterprises Co Ltd | Hong Kong Court of First Instance | Yes | [2020] HKCFI 2703 | Hong Kong | Cited for the principles applicable to service out of jurisdiction of examination orders on officers of corporate judgment debtors. |
| A & Anor v C | Hong Kong Court of First Instance | Yes | [2007] HKCU 1340 | Hong Kong | Cited for the principle that the more sensible reading of O 11 r 8(2) is that it imports the procedural requirements of O 11 r 2 but not the grounds in O 11 r 1. |
13. Applicable Rules
| Rule Name |
|---|
| Order 11 Rule 8 of the Rules of Court (2014 Rev Ed) |
| Order 11 Rule 1(c) of the Rules of Court (2014 Rev Ed) |
| Order 11 Rule 1(e) of the Rules of Court (2014 Rev Ed) |
| Order 11 Rule 1(f)(i) of the Rules of Court (2014 Rev Ed) |
| Order 11 Rule 1(p) of the Rules of Court (2014 Rev Ed) |
| Order 11 Rule 2 of the Rules of Court (2014 Rev Ed) |
| Order 2 Rule 1(2) of the Rules of Court (2014 Rev Ed) |
| Order 8 Rule 1(4) of the Rules of Court 2021 |
14. Applicable Statutes
| Statute Name | Jurisdiction |
|---|---|
| No applicable statutes | |
15. Key Terms and Keywords
15.1 Key Terms
- Non-party discovery
- Service out of jurisdiction
- Close connection test
- Material non-disclosure
- Audit working papers
- Extraterritorial jurisdiction
- Summons
- Originating process
- Leave application
15.2 Keywords
- Non-party discovery
- Service out of jurisdiction
- Close connection test
- Material non-disclosure
- Singapore High Court
- Deloitte
- Audit
17. Areas of Law
| Area Name | Relevance Score |
|---|---|
| Service out of jurisdiction | 90 |
| Non-party discovery | 80 |
| Civil Procedure | 75 |
| Jurisdiction | 60 |
| Evidence | 50 |
16. Subjects
- Civil Procedure
- Service Out of Jurisdiction
- Discovery