Ollech David v Horizon Capital Fund: Appeal Against Summary Judgment & Adducing Further Evidence

In Ollech David v Horizon Capital Fund, the Appellate Division of the High Court of Singapore dismissed the appellant's appeal against the High Court's decision to grant summary judgment in favor of the respondent, Horizon Capital Fund, and to dismiss the appellant's application to adduce further evidence. The case concerned the default of a guarantor’s obligations pursuant to a personal guarantee securing the repayment of a credit facility. The court found that the appellant did not establish a bona fide defense against the respondent's claim.

1. Case Overview

1.1 Court

Appellate Division of the High Court of the Republic of Singapore

1.2 Outcome

Appeal Dismissed

1.3 Case Type

Civil

1.4 Judgment Type

Grounds of Decision

1.5 Jurisdiction

Singapore

1.6 Description

Appeal involving a guarantor's obligations. The court dismissed the appeal against the grant of summary judgment and the application to adduce further evidence.

1.7 Decision Date

11 March 2024

2. Parties and Outcomes

Party Name	Role	Type	Outcome	Outcome Type	Counsels
Ollech David	Appellant	Individual	Appeal Dismissed	Lost
Horizon Capital Fund	Respondent	Corporation	Appeal Dismissed	Won	Poon Guokun Nicholas, Lee Tat Weng Daniel
Lemarc Agromond Pte Ltd	Other	Corporation

3. Judges

Judge Name	Title	Delivered Judgment
Kannan Ramesh	Judge of the Appellate Division	No
Andre Maniam	Judge of the High Court	Yes

4. Counsels

Counsel Name	Organization
Poon Guokun Nicholas	Breakpoint LLC
Lee Tat Weng Daniel	Breakpoint LLC

4. Facts

Appellant executed a Guarantee in favor of the respondent on 24 May 2022.
The Guarantee secured a loan of US$1.5m extended to Lemarc Agromond Pte Ltd (LAPL).
LAPL failed to repay the loan by 31 July 2022.
The Facility Agreement incorporated a "no set-off" clause from prior agreements.
The appellant claimed the respondent breached a Memorandum of Understanding (MOU).
The respondent rejected requests for financing from LAPL between September 2020 and July 2022.
The Guarantee contained a conclusive evidence clause regarding the amount owed.

5. Formal Citations

Ollech David v Horizon Capital Fund, Civil Appeal No 71 of 2023, [2024] SGHC(A) 8
Horizon Capital Fund v Ollech David, , [2023] SGHC 164

6. Timeline

Date	Event
2022-05-24	Appellant executed the Guarantee in favor of the respondent.
2022-07-31	LAPL was to repay the loan from the respondent.
2022-08-18	Respondent issued a written demand to the appellant for payment.
2022-10-07	Respondent issued another demand to the appellant for payment.
2022-11-24	Respondent commenced Originating Claim No 416 of 2022.
2022-12-16	Appellant sent a letter to the respondent stating that LAPL would be applying its alleged right to damages to set off and fully discharge its debt.
2022-12-19	Appellant filed his Defence in OC 416.
2023-01-16	Respondent filed an application for summary judgment.
2023-07-07	Appellant filed the present appeal against the Judge’s decision to dismiss RA 70 and SUM 1161.
2023-10-30	Hearing date.
2024-03-12	Grounds of decision delivered.

7. Legal Issues

Summary Judgment
- Outcome: The court upheld the grant of summary judgment, finding that the appellant did not raise a bona fide defence.
- Category: Procedural
- Sub-Issues:
  - Bona fide defence
  - Triable issue
- Related Cases:
  - [2014] 2 SLR 1342
  - [2015] 1 SLR 325
Admissibility of Further Evidence
- Outcome: The court upheld the dismissal of the application to adduce further evidence, finding that the new evidence was not relevant and did not appear credible or reliable.
- Category: Procedural
- Sub-Issues:
  - Relevance of evidence
  - Credibility of evidence
  - Reasonable diligence
- Related Cases:
  - [1954] 1 WLR 1489
Presumption of Similarity of Foreign Law
- Outcome: The court clarified the application of the presumption of similarity of foreign law, stating that the court may regard foreign law as the same as local law in the absence of any pleading or proof of the content of the foreign law.
- Category: Substantive
- Related Cases:
  - [2021] UKSC 45
  - [2014] 1 SLR 860
  - [2010] 3 SLR 267
  - [1971] 2 Lloyd’s Rep 363
Right of Set-Off
- Outcome: The court held that the appellant could not assert a right of set-off as a defence, in the face of the express words that the appellant was to pay and satisfy to the respondent the secured sum of the specific credit facility under the Facility Agreement together with any applicable interest and other charges “free of set-off or counterclaim or any restriction”.
- Category: Substantive

8. Remedies Sought

Monetary Damages

9. Cause of Actions

Breach of Guarantee
Breach of Contract

10. Practice Areas

Commercial Litigation

11. Industries

Finance

12. Cited Cases

Case Name	Court	Affirmed	Citation	Jurisdiction	Significance
Horizon Capital Fund v Ollech David	General Division of the High Court	Yes	[2023] SGHC 164	Singapore	Cited as the judgment under appeal, where the judge dismissed the appellant's appeal against the grant of summary judgment and the application to adduce further evidence.
Ladd v Marshall	N/A	Yes	[1954] 1 WLR 1489	England and Wales	Cited for the applicable test to determine the admission of new evidence.
Ritzland Investment Pte Ltd v Grace Management & Consultancy Services Pte Ltd	Court of Appeal	Yes	[2014] 2 SLR 1342	Singapore	Cited for the principles applicable in summary judgment applications.
M2B World Asia Pacific Pte Ltd v Matsumura Akihiko	Court of Appeal	Yes	[2015] 1 SLR 325	Singapore	Cited for the principle that a defendant needs to show that there is a triable issue or question, and this cannot be a mere assertion of a given situation which forms the basis of the defence, or assertions that are equivocal, lacking in precision, inconsistent or inherently improbable.
FS Cairo (Nile Plaza) LLC (Appellant) v Lady Brownlie (as Dependant and Executrix of Professor Sir Ian Brownlie CBE QC) (Respondent)	UK Supreme Court	Yes	[2021] UKSC 45	United Kingdom	Cited for the clarification that there were two rules at play: (a) the default rule; and (b) the presumption of similarity.
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 principle that it is for the party who wishes to assert an applicable foreign law that is different from Singapore law, to plead that.
D’Oz International Pte Ltd v PSB Corp Pte Ltd and another appeal	Court of Appeal	Yes	[2010] 3 SLR 267	Singapore	Cited for the principle that the presumption of similarity depends on the circumstances of the case, and the court will not apply the presumption where it is unjust and inconvenient to do so.
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 cautioned against summary judgment being granted on the presumption that foreign law is the same as the lex fori.
Zhang Lan v La Dolce Vita Fine Dining Group Holdings Ltd	High Court (Appellate Division)	Yes	[2023] SGHC(A) 22	Singapore	Cited for the definition of interlocutory application.

13. Applicable Rules

Rule Name
Order 9 rule 17(1) of the Rules of Court 2021
Order 18 r 4(3) of the Rules of Court

14. Applicable Statutes

Statute Name	Jurisdiction
Supreme Court of Judicature Act 1969	Singapore
Rules of Court 2021	Singapore

15. Key Terms and Keywords

15.1 Key Terms

Guarantee
Facility Agreement
Uncommitted Facility Agreements
No set-off clause
Memorandum of Understanding
Originating Claim
Summary Judgment
WhatsApp Messages
Prima facie case
Bona fide defence
Presumption of similarity
Interlocutory application

15.2 Keywords

guarantee
summary judgment
appeal
evidence
set-off
facility agreement

16. Subjects

Civil Procedure
Contract Law
Evidence
Appeals
Banking Law

17. Areas of Law

Civil Procedure
Appeals
Evidence
Contract Law
Summary Judgment