[2003] SGHC 14

"Both parties have represented to us that there were many instances of cash withdrawals made by the Directors for operating expenses. However, to date, we have not received sufficient compelling documentary evidence from the parties to support their contention. We have taken the position that, in order for the parties to do so, we would require sufficient documents to establish an accounting trail, and that verbal representations would be insufficient for this purpose. Therefore, unless it can be established otherwise, all payments made to the Directors will be recorded in their individual Directors' accounts, if this has not already been done".

"3.5 Clause 2(1)(b) - non-business payments - For the purpose of determining the [Adjusted Book Value], adjustments will be made for payments made by the companies for non-business purposes during the period 1 January 1990 to 31 October 1995. It would not include transactions which arose in the period 1 January 1990."

"We wish to clarify that our clients' Ms Agnes Tan did not represent to your clients that the amounts taken by the [defendants] from the Companies were irrelevant. Our clients had in fact taken such amounts into consideration in the preparation of the Report. The payments which fall within the terms of the Order of Court and which affect the net book value of the Companies have been taken into account by our clients, whereas those which do not have not been taken into account. Further, you will note that under the Terms of Reference, our clients are not required to determine the [defendant] directors' accounts".

"For the purpose of determining the [Adjusted Book Value], adjustments will be made for transactions with Wah Tien and Hoong Nam which are not for business purposes" (my emphasis)

"Clauses 2(1)(c) and (d) of the Order of Court state that adjustments should be made in respect of "transactions between the Companies and Wah Tien/Hoon Nam" for the period. The Defendants have, in submitting their proposed adjustments, interpreted these clauses to mean all transactions with these Companies. Certain transactions with Wah Tien related to certain goods/services rendered to the Companies for the construction of the buildings of the Companies. As such, it would be inequitable to reverse such payments to Wah Tien. To do so will lead to the implication that the buildings of the Companies were constructed with zero or minimal cost. We were unable to conduct a separate assessment of the costs incurred by Wah Tien with other subcontractors. This is because the Terms of Reference do not include Wah Tien and as such, we have no access to Wah Tien’s accounts. We are therefore of the view that it would be unfair and unreasonable to interpret cl 2(1)(c) and (d) of the Order of Court to include all transactions with Wah Tien and Hoon Nam, and have proceeded on the basis that adjustments would only be made for payments to these companies for non-business purposes."

"The parties desire a measure of certainty and by their words which they have used in their contract they seek to obtain it. They accept the risk, which applies equally either way, that an expert may err; but they prefer to accept the risk rather than the alternative whereby either party would have the right to create the delay, the expense and, to be frank, the uncertainty of proceedings in Court, by the allegation that the expert has erred".