Horizon Capital Fund v Ollech David: Stay of Proceedings & Summary Judgment

In Horizon Capital Fund v Ollech David, the General Division of the High Court of Singapore heard appeals regarding a stay application and a summary judgment application. Horizon Capital Fund sought summary judgment against Ollech David based on a guarantee tied to a loan agreement with Lemarc Agromond Pte Ltd. Ollech David applied for a stay of proceedings pending the outcome of another case. The Assistant Registrar dismissed the stay application and granted summary judgment. Goh Yihan JC dismissed Ollech David's application to admit new evidence and dismissed both appeals, finding no bona fide defense against the summary judgment.

1. Case Overview

1.1 Court

General Division of the High Court of the Republic of Singapore

1.2 Outcome

Application and appeals dismissed.

1.3 Case Type

Civil

1.4 Judgment Type

Judgment

1.5 Jurisdiction

Singapore

1.6 Description

The High Court dismissed the defendant's stay application and appeal against summary judgment, relating to a guarantee tied to a loan agreement.

1.7 Decision Date

7 June 2023

2. Parties and Outcomes

Party Name	Role	Type	Outcome	Outcome Type	Counsels
Horizon Capital Fund	Claimant	Corporation	Application and appeals dismissed	Lost	Nicholas Poon, Daniel Lee Tat Weng
Ollech David	Defendant, Appellant	Individual	Application and appeals dismissed	Lost	Jordan Tan Zhengxian, Damien Chng Cheng Yee, Shankar Ray Shi-Wan, Han Guangyuan Keith, Ammani Mathivanan

3. Judges

Judge Name	Title	Delivered Judgment
Goh Yihan	Judicial Commissioner	Yes

4. Counsels

Counsel Name	Organization
Nicholas Poon	Breakpoint LLC
Daniel Lee Tat Weng	Breakpoint LLC
Jordan Tan Zhengxian	Audent Chambers LLC
Damien Chng Cheng Yee	Audent Chambers LLC
Shankar Ray Shi-Wan	Oon & Bazul LLP
Han Guangyuan Keith	Oon & Bazul LLP
Ammani Mathivanan	Oon & Bazul LLP

4. Facts

Horizon Capital Fund granted a Specific Credit Facility to Lemarc Agromond Pte Ltd (LAPL) on 24 May 2022.
The Facility Agreement was governed by Swiss law.
The claimant extended a loan of US$1,500,000 to LAPL.
The loan had an interest rate of 8.5% per annum.
Ollech David executed a guarantee in favor of the claimant on 24 May 2022.
LAPL failed to repay the Facility Sum and interest by 31 July 2022.
The claimant issued written demands to the defendant for payment of the Guaranteed Sum on 18 August 2022 and 7 October 2022.
LAPL sent a letter to the claimant on 16 December 2022 alleging breach of a Memorandum of Understanding (MOU).

5. Formal Citations

Horizon Capital Fund v Ollech David, Originating Claim No 416 of 2022 (Summons No 1161 of 2023 and Registrar’s Appeals Nos 70 and 71 of 2023), [2023] SGHC 164

6. Timeline

Date	Event
2020-03-20	Memorandum of Understanding dated
2022-05-24	Facility Agreement signed
2022-05-24	Guarantee executed
2022-07-31	LAPL failed to repay Facility Sum and interest
2022-08-18	First Demand issued
2022-10-07	Second Demand issued
2022-11-24	OC 416 commenced
2022-12-16	16 Dec Letter sent
2022-12-19	Defence filed in OC 416
2023-01-16	Summary Judgment Application filed
2023-01-27	OC 55 commenced
2023-02-15	Stay Application filed
2023-03-23	Summary Judgment Application and Stay Application heard by AR
2023-05-16	Hearing
2023-06-08	Judgment reserved

7. Legal Issues

Stay of Proceedings
- Outcome: The court dismissed the defendant's appeal for a stay of proceedings.
- Category: Procedural
- Sub-Issues:
  - Consolidation of actions
  - Saving costs, time, and effort
- Related Cases:
  - [2023] SGHC 44
Summary Judgment
- Outcome: The court upheld the grant of summary judgment to the claimant.
- Category: Procedural
- Sub-Issues:
  - Prima facie case
  - Bona fide defense
  - Triable issues
- Related Cases:
  - [2014] 2 SLR 123
  - [2015] 1 SLR 325
Admission of New Evidence on Appeal
- Outcome: The court dismissed the defendant's application to admit new evidence.
- Category: Procedural
- Sub-Issues:
  - Non-availability
  - Relevance
  - Credibility
- Related Cases:
  - [1954] 1 WLR 1489
Choice of Law
- Outcome: The court considered the application of the presumption of similarity in the context of summary judgment.
- Category: Substantive
- Sub-Issues:
  - Presumption of similarity
  - Application in interlocutory proceedings
- Related Cases:
  - [1971] 2 Lloyd’s Rep 363
Breach of Contract
- Outcome: The court found that the defendant did not raise a bona fide defense in relation to the claimant's alleged breaches of the MOU.
- Category: Substantive
- Sub-Issues:
  - Unreasonable withholding of financing
  - Damages
Right of Set-Off
- Outcome: The court considered whether LAPL had a valid right of set-off that was validly excluded by the Facility Agreement pursuant to Swiss law.
- Category: Substantive
- Sub-Issues:
  - Exclusion of set-off
  - Validity of exercise

8. Remedies Sought

Monetary Damages
Legal Costs and Expenses

9. Cause of Actions

Breach of Guarantee

10. Practice Areas

Commercial Litigation

11. Industries

No industries specified

12. Cited Cases

Case Name	Court	Affirmed	Citation	Jurisdiction	Significance
Ladd v Marshall	English Court of Appeal	Yes	[1954] 1 WLR 1489	England and Wales	Cited for the threefold requirements for admitting new evidence on appeal: non-availability, relevance, and credibility.
Toh Eng Lan v Foong Fook Yue and another appeal	Court of Appeal	Yes	[1998] 3 SLR(R) 833	Singapore	Cited as an example of a case applying the Ladd v Marshall requirements for admitting new evidence.
ARW v Comptroller of Income Tax and another and another appeal	Court of Appeal	Yes	[2019] 1 SLR 499	Singapore	Cited as an example of a case applying the Ladd v Marshall requirements for admitting new evidence.
Anan Group (Singapore) Pte Ltd v VTB Bank (Public Joint Stock Co)	Court of Appeal	Yes	[2019] 2 SLR 341	Singapore	Cited for the application of the Ladd v Marshall requirements and the spectrum of cases to which they apply.
Yeo Su Lan (alias Yang Shulan) v Hong Thomas and others	High Court	Yes	[2023] SGHC 44	Singapore	Cited for the two-step framework for applications under Order 9 rule 11 of the Rules of Court 2021.
Lee Kuan Yew v Tang Liang Hong and another and other actions	High Court	Yes	[1997] 2 SLR(R) 141	Singapore	Cited for the purpose of Order 9 rule 11, which is to save costs, time, and effort and for reasons of convenience.
Daws v Daily Sketch & Daily Graphic Ltd and another	English Court of Appeal	Yes	[1960] 1 WLR 126	England and Wales	Cited for the principle that even with a common issue, powers under O 9 r 11 may be inappropriate if there are distinctive differences between the matters in issue.
Dai Yi Ting v Chuang Fu Yuan (Grabcycle (SG) Pte Ltd and another, third parties)	High Court	Yes	[2022] SGHC 253	Singapore	Cited for the Ideals in Order 3 rule 1 of the Rules of Court 2021.
Amos v Chadwick	English High Court	Yes	(1877) 4 Ch D 869	England and Wales	Cited as an example of a case where a stay is granted for a test case.
HSBC Bank (M) Bhd v Jejak Maju Resources Sdn Bhd & Ors	Malaysian High Court	Yes	[2015] 10 MLJ 645	Malaysia	Cited as an example of a case where a stay is granted due to special circumstances.
Secretary of State for Health v Servier Laboratories Ltd	English High Court	Yes	[2014] EWHC 2720 (Ch)	England and Wales	Cited for the principle that a stay can prejudice a party's ability to advance its case fairly and expeditiously.
Ling Yew Kong v Teo Vin Li Richard	High Court	Yes	[2014] 2 SLR 123	Singapore	Cited for the purpose of summary judgment procedure.
M2B World Asia Pacific Pte Ltd v Matsumura Akihiko	High Court	Yes	[2015] 1 SLR 325	Singapore	Cited for the tactical burden on the defendant in a summary judgment application.
Ritzland Investment Pte Ltd v Grace Management & Consultancy Services Pte Ltd	High Court	Yes	[2014] 2 SLR 1342	Singapore	Cited for the tactical burden on the defendant in a summary judgment application.
Prosperous Credit Pte Ltd v Gen Hwa Franchise International Pte Ltd	High Court	Yes	[1998] 1 SLR(R) 53	Singapore	Cited for the principle that the court will not grant permission to defend if the defendant only provides a mere assertion.
EFT Holdings, Inc and another v Marinteknik Shipbuilders (S) Pte Ltd and another	Court of Appeal	Yes	[2014] 1 SLR 860	Singapore	Cited as a case where the presumption of similarity was invoked at trial.
IM Skaugen SE and another v MAN Diesel & Turbo SE and another	High Court	Yes	[2018] SGHC 123	Singapore	Cited as a case where the presumption of similarity was invoked at trial.
National Shipping Corp v Arab	English Court of Appeal	Yes	[1971] 2 Lloyd’s Rep 363	England and Wales	Cited as a helpful authority that cautions against summary judgment being granted on the presumption that foreign law is the same as the lex fori.
D’Oz International Pte Ltd v PSB Corp Pte Ltd and another appeal	High Court	Yes	[2010] 3 SLR 267	Singapore	Cited for the principle that whether the presumption of similarity applies depends on the circumstances of the case.
Pacific Recreation Pte Ltd v S Y Technology Inc and another appeal	Court of Appeal	Yes	[2008] 2 SLR(R) 491	Singapore	Cited for the observation that the operation of the presumption of similarity can have a 'startling effect'.

13. Applicable Rules

Rule Name
Rules of Court 2021
Order 18 rule 8(6) of the Rules of Court 2021
Order 9 rule 11 of the Rules of Court 2021

14. Applicable Statutes

Statute Name	Jurisdiction
Supreme Court of Judicature Act 1969	Singapore

15. Key Terms and Keywords

15.1 Key Terms

Facility Agreement
Guarantee
Guaranteed Sum
Memorandum of Understanding
Stay Application
Summary Judgment Application
Set-off
Breach of Contract
Indemnity

15.2 Keywords

stay of proceedings
summary judgment
guarantee
contract
Singapore
civil procedure

16. Subjects

Civil Procedure
Contract Law
Conflict of Laws

17. Areas of Law

Civil Procedure
Conflict of Laws
Contract Law
Guarantee Law