Retrospect Investment (S) Pte Ltd v Lateral Solutions Pte Ltd and another [2020] SGCA 15

Introduction

Does the court have the jurisdiction or power to substantively amend a consent order after the action has been discontinued? This is an issue which was raised by this court arising from the circumstances which led to the present appeals. Before we turn to that issue, we begin by setting out the procedural history which gave rise to this issue in these appeals.

Procedural history

In Suit No 236 of 2017 (“Suit 236”), the Appellant commenced a minority oppression action under s 216 of the Companies Act (Cap 50, 2006 Rev Ed) against the Respondents, among other defendants. The parties were shareholders in Sei Woo Technologies Pte Ltd (“SWTPL”).

However, it later transpired that the parties could not agree on the reference date for the valuation of the Appellant’s shareholding in SWTPL (“the valuation date”). The parties thus filed cross-applications ie, Originating Summons Nos 1350 (“OS 1350”) and 1409 of 2018 (“OS 1409”), for the court to determine the applicable valuation date. The Respondents’ position was that the valuation date ought to be the date of the Consent Order, 20 August 2018. The Appellant, on the other hand, contended that the valuation date ought to be 31 December 2015. In essence, the Appellant’s case was that the Respondents had on 8 April 2016 set up another company, LSW Pte Ltd (“LSW”) which competed with a wholly-owned subsidiary of SWTPL, Sei Woo Polymer Technologies Pte Ltd (“SWP”). It was alleged that this oppressive conduct damaged the value of the Appellant’s shareholding in SWTPL and that in all the circumstances, it would be unfair for the valuation date to be the date of the Consent Order.

The parties appeared before the Judge on 10 January 2019. On that occasion, the Judge pointed out to the parties that the Consent Order did not provide for any right to enable the parties to seek the court’s determination on the valuation date. The parties agreed to amend the Consent Order.

Accordingly, the parties, by way of a consent summons, filed an application to amend the Consent Order in Suit 236. Specifically, the parties sought to include the following paragraph in the Consent Order:

On 29 January 2019, the Assistant Registrar granted the application in terms. Unfortunately, neither party addressed their mind to the issue of whether the Consent Order could be amended in this manner in light of the discontinuance.

Thereafter, on 8 March 2019, the parties appeared before the Judge for directions. It was agreed that for the purposes of the cross-applications, the valuation date would either be the date of the Consent Order, or the date when the first customer was allegedly siphoned to LSW from SWP or SWTPL. The parties were to file further affidavits and their witnesses were to be cross-examined. The parties also agreed that the issues would be limited in scope and the cross-applications were not intended to be a re-litigation of Suit 236. It is thus clear that the court’s jurisdiction to hear OS 1350 and OS 1409 was premised on the amended Consent Order which was granted in the discontinued Suit 236.

Having considered the evidence, the Judge found no reason on the facts to depart from the general rule that the date of the Consent Order was the valuation date. The Judge found that the incorporation of LSW did not cause a drop in or negatively affected the value of SWTPL’s shares. The Appellant failed to show how LSW was in competition with SWP’s business as LSW was not doing what SWP was doing, and there was no evidence that SWP or SWTPL intended or would have entered into the business that LSW was involved in. She accordingly granted the Respondents’ application in OS 1350 and dismissed the Appellant’s application in OS 1409.

The Appellant appealed against the Judge’s decisions in OS 1350 and OS 1409. While the parties had agreed that this was the sole issue in the appeals, in the course of reviewing the record, this court observed that the Consent Order, which formed the very premise of the cross-applications, was amended after Suit 236 was discontinued. In the circumstances we directed the parties to address us on the following issue:

Whether the High Court had the jurisdiction or power to amend the Consent Order in Suit 236 after its discontinuance

In our judgment, the starting point is that the High Court was functus officio once Suit 236 was discontinued (see Tan Kim Hai and Sons Enterprises Sdn Bhd & Ors v Tam Kim San and Sons Sdn Bhd & Ors (Hiap Lee (Choong Leong & Sons) Brickmakers Sdn Bhd & Anor, Interveners) [1996] 5 MLJ 593 at 600).

Nonetheless, it is well established that the court possesses the inherent jurisdiction and power to clarify the terms of its orders and to give consequential directions (see Godfrey Gerald QC v UBS AG and others [2004] 4 SLR(R) 411 (“Godfrey Gerald”) at [18] and Goh Yihan, ‘The Inherent Jurisdiction and Inherent Powers of the Singapore Courts: Rethinking the Limits of their Exercise’ [2011] SJLS 178 (“Goh”) at 186).

In this regard, we refer to the following principles set out by the High Court in Godfrey Gerald at [18]–[19] (and endorsed by this court in Muhammad bin Kadar and another v Public Prosecutor and another matter [2011] 4 SLR 791 at [5]):

We also refer to the following extract from Jeffrey Pinsler, Principles of Civil Procedure (Academy Publishing, 2013) at para 21.007:

In short, the functus officio doctrine exists to ensure finality in litigation. However, notwithstanding this, the court is able to make non-substantive amendments to its orders after the conclusion of the matter, as contemplated by O 92 r 5 of the Rules of Court (Cap 322, R 5, 2014 Rev Ed). This is not an uncommon occurrence (see for example, Thu Aung Zaw v Ku Swee Boon (trading as Norb Creative Studio) [2018] 4 SLR 1260 (“Thu Aung Zaw”) at [23]).

We pause to note that the High Court in both Godfrey Gerald and Thu Aung Zaw had referred to the court’s “inherent jurisdiction” to clarify the terms of its orders, as opposed to its “inherent powers”. We also note the observation made by Prof Goh Yihan that properly construed, it is the court’s inherent powers that are being engaged rather than its inherent jurisdiction (Goh at 186). As stated by this court in Re Nalpon Zero Geraldo Mario [2013] 3 SLR 258 at [33], there is a distinction between the two concepts as the former relates to the court’s inherent authority to hear the matter, while the latter concerns its inherent capacity to give effect to its determination by making or granting the relevant orders or reliefs. Nonetheless, nothing in this judgment turns on whether it is the court’s inherent jurisdiction or power that is engaged, as in our judgment, the court has neither the jurisdiction nor power to substantively amend a consent order after an action has been discontinued. In this regard, the fact that both parties consented to the amendment is immaterial, as it is well established that the parties cannot by consent confer on the court a jurisdiction which does not exist or which it ceases to have (Wilkinson v Barking Corporation [1948] 1 KB 721 at 725).

In the present case, the amendment made by the parties to the Consent Order on 29 January 2019, after Suit 236 was discontinued, could not be described as a non-substantive amendment. The text of the original Consent Order was unambiguous and did not contemplate that the parties would refer matters that they could not agree on to the court. Indeed, at the time when the Consent Order was originally recorded, the parties specifically informed the Judge that the parties would not be referring any “substantive issues” to the court after the discontinuance including the applicable valuation date and the approach to be adopted by the independent valuer. In our judgment, it was clear to the parties that any determination of the valuation date by the court would involve a substantive amendment to the Consent Order.

Before us, the Respondents also submitted that in the event that the High Court did not have the jurisdiction or power to amend the consent order, the Judge, in determining the valuation date, was acting extra cursum curiae with the consent of the parties.

We do not accept the Respondents’ submission. In Singapore Civil Procedure 2020 vol 1 (Chua Lee Ming gen ed) (Sweet & Maxwell, 2020) at para 57/1/22, the extra cursum curiae doctrine is described in the following terms: “where, at the request of the parties, a judge decides a question outside the regular course of judicial proceedings … no appeal lies”. In other words, the essence of the doctrine is that no appeal shall lie against any decision so rendered. In the present case, there was no such request by the parties for the Judge to decide the valuation date outside the regular course of judicial proceedings. In our judgment, it is crystal clear that the parties had proceeded on the basis that the valuation date was to be decided in the regular course of judicial proceedings, albeit erroneously. The Judge heard the evidence, considered the parties’ submissions and certainly would not have regarded her decision as not being subject to appeal. There is no suggestion that the parties intended for the Judge’s decision to be final in the sense that they would waive their right of appeal against the decision (see Liew Kit Fah and others v Koh Keng Chew and others [2019] SGCA 78 at [27]). In fact, the conduct of the parties in the appeals is itself contrary to the applicability of the doctrine in this case.

We thus hold that the High Court had neither the jurisdiction nor the power to amend the Consent Order on 29 January 2019. It must therefore also follow that the High Court also lacked the jurisdiction or power to decide on OS 1350 and OS 1409 arising from the amended Consent Order and hence the orders made thereunder were nullities in the circumstances.

Conclusion

Given our finding that the High Court did not have the jurisdiction or power to amend the Consent Order, we set aside the following:

(a) the Order of Court dated 29 January 2019 (HC/ORC 705/2019), where it was ordered that the Consent Order be amended; and

(b) the Orders of Court dated 27 June 2019 (HC/ORC 4433/2019 and HC/ORC 4434/2019) where it was ordered that the valuation date was the date of the consent order, and the costs orders therein.