SW Trustees v. Teodros Ashenafi: Amendment Application, Conspiracy, Limitation Act
In SW Trustees Private Limited (In Compulsory Liquidation) v Teodros Ashenafi Tesemma, the General Division of the High Court of Singapore heard an appeal by the sixth defendant, Coca-Cola Sabco (East Africa) Limited, against the Assistant Registrar's decision to allow the plaintiffs, SW Trustees Private Limited (In Compulsory Liquidation) and Farooq Ahmad Mann, to amend their Statement of Claim. The plaintiffs sought to introduce new allegations of unlawful means conspiracy and fraudulent concealment, as well as add a new party, Jacques Vermeulen. Goh Yihan JC allowed the appeal, finding that the proposed amendments disclosed no reasonable cause of action, were time-barred under the Limitation Act, and that the limitation period was not postponed. The court also allowed the sixth defendant's application to admit further evidence.
1. Case Overview
1.1 Court
General Division of the High Court1.2 Outcome
Appeal Allowed
1.3 Case Type
Civil
1.4 Judgment Type
Judgment
1.5 Jurisdiction
Singapore
1.6 Description
Singapore court denies plaintiffs' application to amend claim to include conspiracy and fraudulent concealment due to limitation period and lack of reasonable cause.
1.7 Decision Date
2. Parties and Outcomes
| Party Name | Role | Type | Outcome | Outcome Type | Counsels |
|---|---|---|---|---|---|
| Farooq Ahmad Mann | Plaintiff | Individual | Appeal Dismissed | Lost | |
| Cheng Ka Wai | Defendant | Individual | Appeal Allowed | Won | |
| Chooi Kok Yaw | Defendant | Individual | Appeal Allowed | Won | |
| Alexander Ressos | Defendant | Individual | Appeal Allowed | Won | |
| SW Trustees Private Limited (In Compulsory Liquidation) | Plaintiff | Corporation | Appeal Dismissed | Lost | |
| Teodros Ashenafi Tesemma | Defendant | Individual | Appeal Allowed | Won | |
| Sino Africa Trading Limited | Defendant | Corporation | Appeal Allowed | Won | |
| Coca-Cola Sabco (East Africa) Limited | Defendant | Corporation | Appeal Allowed | Won |
3. Judges
| Judge Name | Title | Delivered Judgment |
|---|---|---|
| Goh Yihan | Judicial Commissioner | Yes |
4. Counsels
4. Facts
- The first plaintiff was put into insolvent liquidation on 21 June 2019.
- The second plaintiff was appointed as the liquidator of the first plaintiff.
- The underlying debt arose from an arbitration award obtained on 21 July 2017 by SGI SWE Limited and Schulze Global Investments Holdings LLC.
- The plaintiffs commenced HC/S 229/2021 against the defendants in March 2021.
- The plaintiffs' case centers on the sixth defendant's purchase of the first plaintiff's minority shareholding of 5,251,250 shares in AMBO.
- The purchase was done pursuant to a Sale and Purchase Agreement dated 23 March 2017.
- The terms of the SPA provide that the AMBO Shares are to be sold for US$10,796,784, which the sixth defendant is to pay to the first plaintiff and its nominees.
5. Formal Citations
- SW Trustees Pte Ltd (in compulsory liquidation) and anothervTeodros Ashenafi Tesemma and others, Suit No 229 of 2021 (Registrar’s Appeal No 143 of 2023 and Summons No 2311 of 2023), [2023] SGHC 273
6. Timeline
| Date | Event |
|---|---|
| Sale and Purchase Agreement signed | |
| Arbitration award obtained by SGI Creditors | |
| First plaintiff put into insolvent liquidation | |
| Plaintiffs commenced lawsuit against the defendants | |
| Judgment reserved | |
| Judgment issued |
7. Legal Issues
- Amendment of Pleadings
- Outcome: The court held that the amendments should not be allowed because they do not disclose a reasonable cause of action and are time-barred.
- Category: Procedural
- Unlawful Means Conspiracy
- Outcome: The court held that the amendment to introduce a new unlawful means conspiracy claim should not be allowed because it does not disclose a reasonable cause of action and is time-barred.
- Category: Substantive
- Fraudulent Concealment
- Outcome: The court held that the amendment to introduce a new fraudulent concealment claim should not be allowed because it lacks factual sustainability and is time-barred.
- Category: Substantive
- Postponement of Limitation Period
- Outcome: The court held that the time-bar was not postponed under either ss 29(1)(a) or 29(1)(b) of the Limitation Act.
- Category: Substantive
- Adducing Fresh Evidence on Appeal
- Outcome: The court allowed the sixth defendant's application to admit further evidence for the purposes of the appeal.
- Category: Procedural
8. Remedies Sought
- Amendment of Statement of Claim
9. Cause of Actions
- Unlawful Means Conspiracy
- Fraudulent Concealment
- Transaction at an Undervalue
10. Practice Areas
- Commercial Litigation
- Insolvency 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 admissibility of new evidence on appeal. |
| Toh Eng Lan v Foong Fook Yue | Court of Appeal | Yes | [1998] 3 SLR(R) 833 | Singapore | Cited for applying the Ladd v Marshall requirements for admitting new evidence on appeal. |
| ARW v Comptroller of Income Tax | Court of Appeal | Yes | [2019] 1 SLR 499 | Singapore | Cited for applying the Ladd v Marshall requirements for admitting new evidence on appeal. |
| Anan Group (Singapore) Pte Ltd v VTB Bank (Public Joint Stock Co) | Court of Appeal | Yes | [2019] 2 SLR 341 | Singapore | Cited for the two-step analysis for adducing fresh evidence on appeal and the relaxation of Ladd v Marshall requirements in interlocutory appeals. |
| Fauziyah bte Mohd Ahbidin (executrix of the estate of Mohamed Ahbideen bin Mohamed Kassim (alias Ahna Mohamed Zainal Abidin bin Kassim), deceased) v Singapore Land Authority and others | High Court | Yes | [2020] SGHC 123 | Singapore | Cited for holding that a striking out application was a purely interlocutory hearing for which the attenuated Ladd v Marshall requirements should apply. |
| Chan Tam Hoi (alias Paul Chan) v Wang Jian and other matters | High Court | Yes | [2022] SGHC 192 | Singapore | Cited by the plaintiffs to argue for a more stringent application of the first criterion of availability, but the court disagreed. |
| JTrust Asia Pte Ltd v Group Lease Holdings Pte Ltd and others | Court of Appeal | Yes | [2018] 2 SLR 159 | Singapore | Cited for the principle that it may be unjust to expect a party to have all his tackle in order at an early stage of litigation. |
| The “Bunga Melati 5” | Court of Appeal | Yes | [2012] 4 SLR 546 | Singapore | Cited for the principle that allegations in pleadings would fall away as being “contradicted by all the documents or other material”. |
| Sang Cheol Woo v Charles Choi Spackman and others | High Court | Yes | [2021] SGHC 42 | Singapore | Cited by the plaintiffs for the argument that s 29(1)(b) of the Limitation Act can apply to a claim of conspiracy even where the fraudulent concealment of the right of action did not involve every conspirator, but the court disagreed. |
| Wang Piao v Lee Wee Ching | High Court | Yes | [2023] SGHC 216 | Singapore | Cited for the three-stage analytical framework in determining an application to amend pleadings. |
| Riviera Co, Ltd v Toshio Masui | High Court | Yes | [2023] SGHC 223 | Singapore | Cited for adding an important gloss to the second stage of the three-stage analytical framework in Wang Piao. |
| Gabriel Peter & Partners (suing as a firm) v Wee Chong Jin and others | Court of Appeal | Yes | [1997] 3 SLR(R) 649 | Singapore | Cited for the principle that a pleading discloses no reasonable cause of action if it has no chance of success when only the allegations in the pleading are considered. |
| Multi-Pak Singapore Pte Ltd (in receivership) v Intraco Ltd and others | High Court | Yes | [1992] 2 SLR(R) 382 | Singapore | Cited for the principle that facts are material when they are necessary for the purpose of formulating a complete cause of action. |
| V Nithia (co-administratix of the estate of Ponnusamy Sivapakiam, deceased) v Buthmanaban s/o Vaithilingam and another | Court of Appeal | Yes | [2015] 5 SLR 1422 | Singapore | Cited for the principle that the facts relevant to each element should be pleaded specifically. |
| EFT Holdings, Inc and another v Marinteknik Shipbuilders (S) Pte Ltd and another | Court of Appeal | Yes | [2014] 1 SLR 860 | Singapore | Cited for the elements of unlawful means conspiracy. |
| Management Corporation Strata Title Plan No 3322 v Mer Vue Developments Pte Ltd | Court of Appeal | Yes | [2016] 4 SLR 351 | Singapore | Cited for the correct operation of O 20 r 5 in a case where a question of limitation could arise. |
| Lim Yong Swan v Lim Jee Tee and another | Court of Appeal | Yes | [1992] 3 SLR(R) 940 | Singapore | Cited for the principle that the plaintiffs are not making explicit what was already implied in existing pleadings. |
| Lim Ah Leh v Heng Fock Lin | High Court | Yes | [2018] SGHC 156 | Singapore | Cited for the interpretation of s 29(1)(a) of the Limitation Act. |
| Poh Soon Kiat v Desert Palace Inc (trading as Caesars Palace) | Court of Appeal | Yes | [2010] 1 SLR 1129 | Singapore | Cited for the legislative history of the Limitation Act. |
| Tan Cheng Bock v Attorney-General | Court of Appeal | Yes | [2017] 2 SLR 850 | Singapore | Cited for the principle that Parliament shuns tautology and does not legislate in vain. |
| Chua Teck Chew Robert v Goh Eng Wah | Court of Appeal | Yes | [2009] 4 SLR(R) 716 | Singapore | Cited for the principle that fraudulent concealment is not limited to the common law sense of fraud or deceit. |
| Ong Teck Soon (executor of the estate of Ong Kim Nang, deceased) v Ong Teck Seng and another | High Court | Yes | [2017] 4 SLR 819 | Singapore | Cited for the principle that the period of limitation begins when the deception could have been discovered with reasonable diligence of the plaintiff. |
| Esben Finance Ltd and others v Wong Hou-Lianq Neil | Court of Appeal | Yes | [2022] 1 SLR 136 | Singapore | Cited for the principle that the limitation period begins to run when there are circumstances that would give rise to a desire to investigate. |
| Symphony Ventures Pte Ltd v DNB Bank ASA, Singapore Branch | High Court | Yes | [2021] 5 SLR 1213 | Singapore | Cited for the principle that for s 29(1) of the Limitation Act to operate, the fraud must be brought home to the defendant. |
| Syed Ahmad Jamal Alsagoff (administrator of the estates of Shaikah Fitom bte Ghalib bin Omar Al-Bakri and others) and others v Harun bin Syed Hussain Aljunied and others and other suits | High Court | Yes | [2017] 3 SLR 386 | Singapore | Cited for recognizing that fraud is not a necessary element for a claim of conspiracy. |
| JTrust Asia Pte Ltd v Group Lease Holdings Pte Ltd and others | Court of Appeal | Yes | [2020] 2 SLR 1256 | Singapore | Cited for the principle that allegations of fraud must be pleaded with utmost particularity. |
| Mohamad Shiyam v Tuff Offshore Engineering Services Pte Ltd | Singapore International Commercial Court | Yes | [2021] 5 SLR 188 | Singapore | Cited for explaining that O 15 r 6(2) has a wider operation than O 15 r 4(1). |
| Bruce v Odhams Press Ltd | English Court of Appeal | Yes | [1936] 1 KB 697 | England and Wales | Cited for the principle that if material facts are not pleaded, the pleading discloses no reasonable cause of action and may be struck out. |
| Elite Property Holdings Ltd and another v Barclays Bank Plc | English Court of Appeal | Yes | [2019] EWCA Civ 204 | England and Wales | Cited for the principle that it is not enough for the plaintiffs to only plead a “combination” without any particulars. |
| Beaman v ARTS Ltd | English Court of Appeal | Yes | [1949] 1 All ER 465 | England and Wales | Cited for the principle that for s 29(1)(a) to be properly invoked, fraud must be an element of the cause of action. |
| GL Baker Ltd v Medway Building and Supplies Ltd | English Court of Appeal | Yes | [1958] 1 WLR 1216 | England and Wales | Cited for applying Beaman and holding that s 26(a) of the UK LA 1939 applied as the action was “based on the fraud of [the auditor] |
| Regent Leisuretime Ltd v Natwest Finance (Formerly County NatWest Ltd) | English Court of Appeal | Yes | [2003] All ER (D) 385 (Mar) | England and Wales | Cited for finding that the claim for damages for fraudulent misrepresentation fell within s 32(1)(a) of the UK LA 1980. |
| Chagos Islanders v Attorney General and another | English High Court | Yes | [2003] All ER (D) 166 (Oct) | England and Wales | Cited for reiterating that an action based on fraud requires an allegation of fraud to be a necessary part of the cause of action. |
| Sixteenth Ocean GmbH & Co KG v Société Généralé | English High Court | Yes | [2018] EWHC 1731 (Comm) | England and Wales | Cited for holding that s 32(1)(a) of the UK LA 1980 “extends only to common law fraud (in the sense of a deceit) and to fraud recognised as such in equity, but does not extend to wrongs or breach of duty carried out dishonestly or involving dishonesty, but not involving fraud” |
| Attorney General of Zambia (for and on behalf of the Republic of Zambia) v Meer Care & Desai (a firm) and others | English High Court | Yes | [2007] All ER (D) 97 (May) | England and Wales | Cited as a decision that has not applied Beaman and taken a contrary interpretation of s 32(1)(a) of the UK LA 1980. |
| Test Claimants in the FII Group Litigation v Revenue and Customs Commissioners (formerly Inland Revenue Commissioners); Test Claimants in the FII Group Litigation and others v Revenue and Customs Commissioners (formerly Inland Revenue Commissioners) | UK Supreme Court | Yes | [2020] 3 WLR 1369 | United Kingdom | Cited for the fundamental purpose of limitation statutes is “to set a time limit for the bringing of claims” by “putting a certain end to litigation and … preventing the resurrection of old claims” |
| Wu Yang Construction Group Pte Ltd v Zhejiang Jinyi Group Co, Ltd and others | High Court | Yes | [2006] 4 SLR(R) 451 | Singapore | Cited as a case where fraud had been referred to as a form of unlawful means, but the court found it distinguishable. |
| Yap Jeffrey Henry v Seow Timothy and Others | High Court | Yes | [2006] SGHC 6 | Singapore | Cited as a case where fraud had been referred to as a form of unlawful means, but the court found it distinguishable. |
13. Applicable Rules
| Rule Name |
|---|
| Rules of Court 2014 |
14. Applicable Statutes
| Statute Name | Jurisdiction |
|---|---|
| Insolvency, Restructuring and Dissolution Act 2018 | Singapore |
| Bankruptcy Act 1995 | Singapore |
| Companies Act | Singapore |
| Limitation Act 1959 | Singapore |
15. Key Terms and Keywords
15.1 Key Terms
- Statement of Claim
- Amendment
- Unlawful Means Conspiracy
- Fraudulent Concealment
- Limitation Period
- Insolvent Liquidation
- Transaction at an Undervalue
- AMBO Shares
- Sale and Purchase Agreement
- Downward Adjustments
15.2 Keywords
- amendment
- conspiracy
- limitation act
- insolvency
- fraudulent concealment
17. Areas of Law
| Area Name | Relevance Score |
|---|---|
| Civil Procedure | 90 |
| Limitation | 70 |
| Civil Litigation | 60 |
| Conspiracy by Unlawful Means | 60 |
| Winding Up | 50 |
| Bankruptcy | 40 |
| Fraud and Deceit | 40 |
| Company Law | 30 |
16. Subjects
- Civil Procedure
- Insolvency Law
- Limitation of Actions