Lim Yew Cheng and another v Stephen Le Ee Boon and others

Roger Giles IJ (delivering the grounds of decision of the court):

[1] The claimants applied to amend their Statement of Claim. The defendants opposed some of the amendments (“contested amendments”) on the ground that they raised new causes of action which were time-barred as at the date of the application. If that were so, ordinarily the contested amendments would not be allowed because they would relate back to and take effect on the date of commencement of the proceedings and the defendants would be prejudiced. Taking the conventional course, the court would consider the limitation issues and any prejudice occasioned by the relation back in determining whether the contested amendments should be allowed.

[2] In circumstances later described, we were invited to consider whether the contested amendments could be allowed on the basis that they did not relate back but took effect on the date of the amendment application, with the limitation issues left for the hearing of the proceedings. It appeared that this course had not previously been considered in Singapore.

[3] Could this be done, more specifically the course of allowing the contested amendments with an order that they take effect on the date of the amendment application? If so, it was common ground that we should take the new course.

[4] In our view, it could be done. Orders were made accordingly, with reasons to be provided later. These are our reasons.

[5] The proceedings were commenced by an Originating Claim filed in the General Division of the High Court on 29 November 2024 as HC/OC 937/2024 (“OC”). The Statement of Claim was filed on 20 March 2025, and a Statement of Claim (Amendment No 1) (“SOC A1”) was filed on 11 September 2025. Defences to the initial Statement of Claim were filed followed by Defences to SOC A1 on 25 September 2025, and the Replies to those Defences on 5 December 2025.

[6] The proceedings were transferred to the Singapore International Commercial Court (“SICC”) on 21 January 2026.

[7] The first claimant, Mr Lim Yew Cheng (“LYC”), is a Singaporean businessman, based in China for some years and with business interests in that country. The second claimant, Mr Lin Minghan (“LMH”), is his son.

[8] The first defendant, Mr Stephen Le Ee Boon (“Stephen”), has been a partner at MBK Partners, a private equity firm in South Korea, since in or around September 2017. Prior to that position, he was a Managing Director and Co-head of the Asia Pacific Credit Division for Deutsche Bank AG. The second defendant, Mdm Chia Seok Eng (“Mdm Chia”) is Stephen’s mother. The third defendant, Pebblebay Capital Corp (“PCC”), is a company incorporated in the British Virgin Islands. Mdm Chia is PCC’s sole director and shareholder. The claimants say that she holds her shares as Stephen’s nominee and Stephen is the beneficial owner of PCC, and that she acts in accordance with his directions in relation to its affairs; the defendants deny this, and say that Mdm Chia is the beneficial owner of PCC and its controlling mind. Stephen on the one hand, and PCC and Mdm Chia on the other hand, are separately represented in the proceedings.

[9] At the heart of the claimants’ case is the allegation that Stephen became LYC’s advisor on his financial affairs in around 2008, and was his close and trusted financial advisor for over 15 years until around 2023. It is alleged that he owed to LYC a number of fiduciary duties, widely framed but essentially to act honestly and in good faith in the best interests of LYC in relation to his financial affairs; to avoid any conflict between LYC’s interests and his own interests and those of third parties; and not to act for his own benefit or that of a third party or profit from his fiduciary position or through information obtained in the course of acting as fiduciary.

[10] In a brief summary of the elaborate pleading in SOC A1, it is alleged that a number of what are at one point collectively called “financial arrangements, investments and/or loan agreements” were entered into by LYC, LMH and/or companies in which LYC held direct or indirect interests (“transactions”). The transactions are described, and it is alleged that they were on disadvantageous terms and that Stephen, PCC and Mdm Chia benefited from them. It is alleged, again in summary, that the transactions were:

(a) through Stephen exploiting his relationship of trust and confidence with LYC and in breach of his fiduciary duties;

(b) through the exercise by Stephen of undue influence over LYC;

(c) by inducement of LYC by Stephen’s fraudulent and/or negligent misrepresentations;

(d) a lawful or unlawful means conspiracy between two or more of Stephen, PCC and Mdm Chia;

(e) with dishonest assistance by PCC and/or Mdm Chia in Stephen’s breaches of his fiduciary duties; and

(f) with knowing receipt by PCC of LYC’s assets transferred to it in breach of Stephen’s fiduciary duties.

[11] The relief claimed from this raft of causes of action encompasses rescission or setting aside of a number of agreements, guarantees and other dealings part of the transactions; a declaration that a number of assets are held on trust by Stephen or by Mdm Chia and PCC; orders for accounting and accounts; equitable compensation; and damages. For the purposes of these reasons, it is not necessary to attempt a more detailed description of the claims and the grounds for them.

[12] The Defences, correspondingly elaborate (Stephen’s defence to SOC A1 occupies 262 pages), deny the basic allegation that Stephen was LYC’s close and trusted financial advisor and deny any wrongdoing. Of present relevance, they include that various claims for breach of fiduciary duty, undue influence, misrepresentation, conspiracy, and dishonest assistance are statute-barred. The limitation defences are contested in the Replies, including by the contention that the running of the limitation period was concealed by the fraud of Stephen, PCC and/or Mdm Chia.

[13] By SIC/SUM 46/2026 filed on 24 June 2026 (“SUM 46”), the claimants applied to amend SOC A1 to the form of Draft Statement of Claim (Amendment No 2) (“SOC A2”) as set out in Annex A to the summons.

[14] The amendments were extensive. The defendants did not object to many of them, but as earlier indicated said that the contested amendments raised new causes of action which were time-barred when the application was made but may not have been time-barred when the proceedings were commenced on 29 November 2024.

[15] In the contested amendments, first a number of added paragraphs set out events that took place after 29 November 2018 but before 24 June 2020 (“relevant events”).

[16] The relevant events are concerned with the extensions of two loan agreements. The entry into the loan agreements is the subject of existing allegations in SOC A1 of breach of fiduciary duties and other wrongs. In short, in relation to those extensions, it is alleged that:

(a) in reliance on Stephen’s advice and his representation that the loan agreements would be repeatedly extended every three months provided certain accrued interest and fees were paid, the interest and fees were paid and in January 2020 extension documents for three month extensions of the loan agreements were executed (with an extension fee added to the loan amount);

(b) then in reliance on Stephen’s advice and his representation that the loan agreements would be repeatedly extended every three months provided certain additional security including guarantees were given, in April 2020 extension documents for further three month extensions of the loan agreements were executed (with an extension fee added to the loan amount) and the additional security and guarantees were given.

[17] The new paragraphs alleging the relevant events are to be read with other paragraphs of SOC A2, some existing in SOC A1 and some being amendments to which objection is not taken, in which it is alleged that (after 24 June 2020) further three month extensions were refused, there was default under the loan agreements, and the lenders resorted to and enforced the security and guarantees. The limitation issues in the contested amendments in part involve whether loss was suffered when the extension documents were executed prior to 24 June 2020 or when, after that date, further extensions were refused and there was default under the loan agreements.

[18] Returning to the contested amendments, subsequent groups of added paragraphs then set out how the relevant events allegedly gave rise to claims for breaches of Stephen’s fiduciary duties; for undue influence exercised by Stephen over LYC; for fraudulent and/or negligent misrepresentations made by Stephen to LYC; and for lawful and/or unlawful conspiracy as between Stephen and other named entities.

[19] Order 16 r 3 of the SICC Rules 2021 (“SICC Rules”) relevantly provides:

[20] The explanation of O 20 r 5 of the Rules of Court (2014 Rev Ed) by the Court of Appeal in Management Corporation Strata Title Plan No 3322 v Mer Vue Development Pte Ltd [2016] 4 SLR 351 (“Mer Vue”) is applicable to O 16 r 3. As translated to it, O 16 r 3(1) confers a general power to permit amendment, while O 16 r 3(3) deals specifically with amendment after a relevant limitation period has expired and confers power to permit amendment under the limited circumstances there stated: Mer Vue at [31]–[33]. However, in determining whether O 16 r 3(1) or O 16 r 3(3) is engaged, it is not just a question of whether the relevant limitation period has expired. Rather, the question is whether allowing the amendment would prejudice the defendant’s limitation defence. If no prejudice would be caused, O 16 r 3(1) applies even if the relevant limitation period may have expired: Mer Vue at [42(b)]; see also Symphony Ventures Pte Ltd v DNB Bank ASA, Singapore Branch [2021] 5 SLR 1213 (“Symphony Ventures”) at [10]. But if the amendment would prejudice the defendant’s limitation defence, it can only be permitted under O 16 r 3(3): ibid.

[21] The paradigm occasion for prejudice to a limitation defence is the ordinary position that an amendment to a pleading relates back to and takes effect from the commencement of the proceedings (“relation back rule”). So it was said in the Court of Appeal in Multistar Holdings Ltd v Geocon Piling & Engineering Pte Ltd [2016] 2 SLR 1 at [33], speaking of refusal of an amendment if the effect would be to set up a statute-barred cause of action:

[22] The prejudice stems from the relation back rule. Unless it can bring itself within O 16 r 3(3), if it persists with the claim by the new cause of action the claimant must bring fresh proceedings. And it is the right to raise the limitation defence that is prejudiced, so an arguable limitation defence is sufficient: see Geocon Piling & Engineering Pte Ltd v Multistar Holdings Ltd [2015] 3 SLR 1213 at [134]; Symphony Ventures at [13].

[23] The conventional course is then as summarised in Mer Vue at [48] as the operation of O 20 r 5. Translated to O 16 r 3, the court first determines whether the amendment, if allowed, would prejudice the other party's limitation defence, a question of fact in which the key consideration “is whether the amendment effectively allows the plaintiff to prosecute a claim which would otherwise have been time-barred if it were brought under a new writ” [emphasis in original]. If it would not, the court considers whether it would be just to allow the amendment under O 16 r 3(1). If it would, the amendment can only be allowed if it falls within one of the categories in O 16 r 3(3), and if it does not, the amendment must be disallowed.

[24] If the relation back rule is displaced, and instead the amendment takes effect on the date of the application to amend or the date of the order giving leave to amend, it may be said that the defendant will not be prejudiced by relation back and (if it were otherwise just to allow the amendment) the amendment can be allowed under O 16 r 3(1). The limitation issues can then be determined at the trial, rather than addressed (possibly only to the point of arguability) in the amendment application.

[25] This was the course we were invited to consider. That it could be taken came to be a joint submission, with the displacement of the relation back rule by an order that the contested amendments take effect on the date of the amendment application.

[26] That the only issue was over the contested amendments was known from correspondence between the parties prior to the filing of SUM 46. The correspondence included the defendants’ position that, although they said that the contested amendments raised statute-barred causes of action, they would not object to them provided they took effect on the date SOC A2 was filed and served. The claimants did not agree, and said that the amendments should take effect from the date of commencement of the proceedings.

[27] In line with that stance, in SUM 46, the claimants sought unqualified permission to amend SOC A2, without mention of when the amendments would take effect. The orders sought by the claimants did not include as a possible alternative an order that the contested amendments take effect when SOC A2 was filed, or any time other than the commencement of the proceedings.

[28] The claimants’ written submissions in support of SUM 46 were correspondingly unqualified. They said that the contested amendments did not raise new causes of action, but only served to clarify and/or particularise facts already pleaded in the endorsement to the OC and in SOC A1; but that if they did, the limitation periods for the causes of action arising from the contested amendments had not expired when SUM 46 was filed on 24 June 2026, so the defendants would not be prejudiced by the relation back, and that the court’s discretion to permit the amendments should be exercised in their favour under O 16 r 3(1). There was no mention of when the amendments would take effect.

[29] In the defendants’ written submissions, their primary position was that we should adopt the course taken in recent decisions of courts in England and Hong Kong, that of allowing an amendment whilst preserving any limitation defence available as at the date of the application to amend, and should do so by ordering that the amendments take effect on the date of filing of the application to amend. If that course was not to be taken, they submitted that the contested amendments raised new causes of action and that the new causes of action were, or were at least arguably, statute-barred and the contested amendments should be refused.

[30] At the hearing of SUM 46, the claimants took a different position from that in their written submissions. They proposed that the court determine as a “preliminary issue” whether, as submitted by the defendants, the contested amendments could be allowed on the basis that they not relate back but take effect from the date of the application in SUM 46, with the issues of limitation to be addressed at the trial. They said that, if that course was open, they considered it “a sensible one” with which they would be content. Unsurprisingly, the defendants agreed.

[31] We heard the parties on whether it was open to the Court to take the proposed course, without going into the competing contentions of whether the contested amendments raised new causes of action and whether the new causes of action were statute-barred. All parties submitted that the new course was available, and we were invited to take it.

[32] The cases should be seen in their limitations landscape, namely:

(a) s 35 of the Limitation Act 1980 (c 58) (UK) (“English Limitation Act”) provided:

(i) that any “new claim” made in the course of any action, which included the addition or substitution of a new cause of action, should be deemed to have been commenced on the same date as the original action (s 35(1));

(ii) that the court should not allow a new claim to be made in any action “after the expiry of any time limit under this Act which would affect a new action to enforce that claim” (s 35(3));

(iii) but that rules of court may permit a new claim under (ii) to be made if the new claim arose out of the same or substantially the same facts as were already in issue in any existing claim (s 35(4), (5)); and

(b) the Civil Procedure Rules 1998 (SI 1998 No 3132) (UK) (“CPR”) r 17.4 gave effect to the permission in (iii), providing that an amendment to add or substitute a new claim could be allowed, but only if the new claim arose out of the same facts or substantially the same facts as an existing claim.

[34] Mastercard Inc v Deutsche Bahn AG [2017] EWCA Civ 272 (“Mastercard (2)”) concerned a similar amendment. At first instance, it was held that the amendment could be allowed with the benefit of relation back because the new claim arose out of the same facts or substantially the same facts as the claims already made in the proceedings. On appeal, the court disagreed with this basis for amendment. The amendment was nonetheless allowed, but relating back to the date on which the amendment application was served.

[35] As recorded at [3]–[4] of Mastercard (2), it was common ground that there was at least a prima facie case that the defendant had a limitation defence for part of the new claim if there were relation back, and the defendant accepted that the new claim could be introduced as an amendment relating back to when the application to amend was served.

[37] In Libyan Investment Authority v King [2021] 1 WLR 2659 (“Libyan”), when referring to an earlier amendment as part of the history of the proceedings, Nugee LJ said that the amendment was not opposed on the “Mastercard basis … that for limitation purposes the amendments should be deemed not to date back to the issue of the claim form but to the date of the application to amend”, and added (at [22], his parentheses):

[38] In these cases, it appears that the parties accepted that for limitation purposes the amendment could be made to relate back to a date other than the commencement of the proceedings. In Advanced Control Systems Inc v Efacec Engenharia E Sistemas SA [2021] EWHC 914 (TCC) (“Advanced Control Systems”) the claimant accepted that some of the claims put forward may be statute-barred and proposed that the order allowing them should provide that the amendment take effect from the date of the application to amend, but the defendant opposed that course. It submitted that to allow amendment on the terms proposed would contravene s 35 of the English Limitation Act.

[39] Mr Roger Ter Haar QC, sitting as a Deputy High Court Judge, said:

[40] The Deputy High Court Judge made an order in the terms proposed by the defendant, saying that requiring the claimant to bring separate proceedings would be “an almost entirely wasteful exercise” (at [48]) and permitting the amendments would also (for reasons to do with Brexit which we pass over) advantage the claimant’s enforcement of any judgment.

[41] In DR Jones Yeovil Ltd v Drayton Beaumont Services Ltd (2021) 197 (TCC) ConLR 167 (“DR Jones”), what was called the Mastercard basis of amendment was recognised, but it was said that it should not be adopted when the defendant had a serious argument that the whole of the new claim was statute-barred as distinct from when there was ongoing accrual of the cause of action, as in MasterCard (1) and Mastercard (2). The reasoning appears to have been that that course was a means of defining the non-barred claims which could be added by amendment.

[42] A contrary view was taken in Duke of Sussex v News Group Newspapers Ltd [2024] EWHC 1208 (Ch) (“Duke of Sussex”), in which it was said that this may be too narrow an approach, and:

[43] In IBM United Kingdom Ltd v LzLabs GmbH [2023] EWHC 3015 (TCC), O’Farrell J adopted what she referred to as the practice endorsed by the Court of Appeal in MasterCard (2) and Libyan, to restrict the new claims to such claims as were not statute-barred under the English Limitation Act so as to ensure that the claimant would gain no advantage from the relation back rule. The amendments were allowed, but to include statements and an undertaking to the effect that the claimant did not pursue any statute-barred claims.

[44] Finally, in Viegas v Cutrale [2025] 1 WLR 1467, an application to disallow an amendment was refused notwithstanding recognition of prejudice by relation back, because (at [62]):

[45] In BGA Holdings Ltd v Chu Kong [2025] HKLRD 422 (“BGA Holdings”), it was accepted that there was an arguable limitation defence to the cause of action sought to be raised by an amendment joining and making a new claim against a new defendant. The plaintiff proposed that the new defendant be joined on the basis that the claim related back to the date of the joinder application or the date of the order to be made, as opposed to the date of the writ, or alternatively that he be joined on the basis of an undertaking not to pursue any claims against him if it were found at trial that the claim had become time-barred as at the later dates. At first instance, it was held that the proposal could not be adopted. On appeal, the issue was described (at [6]) as:

[46] After examination of the line of English cases, the Court of Appeal held that what they called the “new approach” was not precluded by s 35 of the Limitation Ordinance (Cap 347) (Hong Kong), in pari materia to s 35 of the English Limitation Act, when any prejudice to the other party was removed by the amending party not relying on relation back. It was said (at [37]) that it was “legitimate to sidestep the ‘relation-back rule’ in such a way”, and with respect to the English cases:

(a) at [39], that the MasterCard cases “unequivocally show that it is open to the Court to disapply the ‘relation-back rule’ notwithstanding the mandatory terms under s 35(1)(b)”, and “clearly establish that the Court has jurisdiction to order the ‘relation-back rule’ not to take effect on granting amendments with limitation issues”;

(b) at [41], that the new approach “is not confined to the agreement of the parties, but also includes an order made by the Court, disallowing the ‘relation-back rule’” or “by the undertaking of the party seeking amendment”; and

(c) at [44], that the view of the Deputy High Court Judge in DR Jones that “the conventional view should not be side-stepped when the defendant contends it has a reasonably arguable limitation defence to the entirety of the new cause of action sought to be introduced” was too “narrow”, and they “[did] not subscribe to it”.

[47] The amendment was allowed on the first basis proposed by the plaintiff, and it was additionally required that that term be expressly stated in the amended pleadings.

[48] In the English and Hong Kong cases, the concern was whether the provisions of s 35 of the respective limitation legislation precluded what might be called the MasterCard approach, and it was considered that it did not. Singapore’s Limitation Act 1959 (2020 Rev Ed) contains no similar provisions, and that does not arise.

[49] Order 16 r 3(3) at first sight could preclude amendment other than in the stated circumstances where a relevant limitation period has expired, and so require determination that there is not an expired limitation period before amendment can be allowed. However, since there must also be prejudice (Mer Vue), removal of prejudice by displacement of the relation back rule will allow amendment under O 16 r 3(1). In our view, allowing an amendment notwithstanding that it brings in a new cause of action which is or may be time-barred is therefore an available course if the relation back rule can be displaced and the prejudice to the defendant is negated. The question becomes whether and how it can be displaced.

[50] The English and Hong Kong cases show a variety of means of displacement of the relation back rule. Some involve action by the claimant, which the court accepts as allowable and sufficient to have that result: that the amendment states that it does not relate back; that the amendment states that it takes effect from a later date; that the amendment states that the claimant does not pursue any statute-barred claims; or that the claimant undertakes not to rely on relation back or not to pursue any statute-barred claims. Others may be, but are not necessarily, imposed by the court: that the amendment is allowed on the basis that it not relate back or is deemed not to relate back, or ultimately that the court orders that the amendment not relate back.

[51] In these cases, it appears that it was accepted that the amendment was or was arguably exposed to a limitation defence. The MasterCard course was taken effectively as case management to avoid the waste of commencement of fresh proceedings and consolidation with the existing proceedings. That is seen most fully in BGA Holdings at [37] where, after stating that it is legitimate to sidestep the relation back rule, the court continued:

[52] In the present case, the claimants did not concede that the contested amendments were exposed to limitation defences – as noted earlier, they contended that they did not raise new causes of action at all, and that if they did, the causes of action were not time-barred. Nor have we determined whether or not the defendants have, or have arguable, limitation defences – that was not gone into at the hearing of SUM 46.

[53] We do not think that affects the guidance to be obtained from the English and Hong Kong cases. If the court has power in relation to displacement of the relation back rule, whether by acceptance of the claimant’s action or ultimately by court order, it has that power whether the occasion for exercising it is case management in circumstances of exposure to a limitation defence or other circumstances making the exercise appropriate.

[54] In the present case, the claimants did not offer displacement of the relation back rule by their action, such as a statement in SOC A2 that the contested amendments take effect from the date of the amendment application or an undertaking in the event that the contested amendments were held to raise new causes of action which were time-barred as at the date of the amendment application. The nearest they went was that they were “prepared to consider” a suitable undertaking. The question can be narrowed to one of power to order that the contested amendments not relate back, but take effect on the date of the application.

[55] There is acceptance in Mastercard (2), Advanced Control Systems, Duke of Sussex and BGA Holdings that the court has power to make such an order, even where displacement of the relation back rule is not a matter of agreement. The source of the power is not made clear.

[56] In the absence of a new cause of action, an amendment to a document can be seen as changing something already in existence and taking up the status, including its date of creation, of that document. That may be the explanation for the relation back rule, and (not without being questioned, see Liff v Peasley [1980] 1 WLR 781 at 799 per Brandon LJ) it became the position also when the amendment raises a new cause of action. It is not a matter of principle such that there cannot be departure from it in the exercise of the court’s inherent powers, and quite apart from the cases considered above departure from it has been permitted, see Sneade v Wotherton Barytes and Lead Mining Company, Limited [1904] 1 KB 295 at 297 referring to amendment on terms to the contrary of relation back. The exercise of an accepted inherent power in an essentially procedural matter may explain why the cases do not make clear the source of the power.

[57] However, we do not need to come to a concluded view on the basis for the relation back rule and the source of the power as recognised in these cases, and it would not be appropriate to do so when the parties’ submissions did not address those questions. In the present case, quite apart from the Court’s inherent powers, power to order that the contested amendments take effect on the date of the amendment application can be found in the SICC Rules.

[58] Order 1 r 11(1) of the SICC Rules relevantly provides:

[59] This is a generous power, to be exercised with circumspection, but displacement of the relation back rule can fall within it. If there is an issue over allowing an amendment because of prejudice stemming from the relation back rule, it may be found to be “necessary or desirable for the just, expeditious and economical disposal of the proceedings” to allow the amendment with displacement of the relation back rule and thereby deferral of the determination of the issue to the trial. (We note that, in BGA Holdings at [38], the court observed that it may be said that what they called the new approach is “simply based on the ‘just and convenient’ ground”.)

[60] In our view O 1 r 11(1) is available, and applies in the present case. A number of considerations bring this conclusion.

[61] Significant in our coming to the conclusion is the parties’ positions. The defendants’ primary position was that we should adopt the course taken in the English and Hong Kong cases. A defendant will not necessarily take that position. It may wish to have the amendment application determined according to the conventional course, hoping to defeat it and be spared the additional expense and peril of litigating additional claims at the trial. Implicit in the defendants’ position, however, is that they are content to deal with what they say are new causes of action on their merits at the trial, together with contending that the causes of action are time-barred. It may be that a claimant wishes to have the amendment application determined in the conventional manner, and if it is unsuccessful not go to the expense of litigating the additional claims at the trial, but that was not the claimants’ position either; as earlier noted, they said that if the proposed course was open, they considered it a sensible one with which they would be content.

[62] The parties retain their rights. The defendants will plead in amended Defences that the claims founded on the relevant events are statute-barred, and remain able to resist the claims on that ground. It may be that the claimants will plead in amended Replies that there was concealment by fraud – that is foreshadowed in the correspondence, although not adverted to in the written submissions. If at trial, claims founded on the relevant events are established and it is held that they are not statute-barred, the claimants did not suggest that it would matter to them that the contested amendments took effect on 24 June 2026 rather than 29 November 2024.

[63] The possibility of an appeal from interlocutory determination of the limitation issues, delaying bringing the proceedings to trial, is removed. Importantly, the trial court will be in a much better position to determine the limitation issues arising from the contested amendments than if they were determined in SUM 46 (and one possibility is that they will not have to be determined at all, if the claims founded on the relevant events are not established). The trial court will already have to determine limitation issues in relation to existing claims, issues which are likely to include questions which will arise also in relation to claims founded on the relevant events (what we have said [17] above indicates some possible questions). They may include findings as to fraudulent concealment, which can scarcely be considered divorced from the question of fraud raised by the claims for fraudulent misrepresentation.

[64] The trial court will do so with the benefit of final fact-finding, rather than on the facts alleged in SOC A2 which may not be fully borne out at trial and will likely be more fully found. We note and respectfully echo the reference by Toohey J in the High Court of Australia in Wardley Australia Ltd v State of Western Australia (1992) 175 CLR 514 at [41] to “the difficulty and undesirability of trying to determine a limitation point in interlocutory proceedings, unless the position is clear beyond peradventure”.

[65] In our view, the proposed course is “desirable … for the just, economic and expeditious disposal of the proceedings”, and the order that the contested amendments take effect on the date of the application to amend can and should be made.

[66] The substantive orders made at the hearing of SUM 46 were:

[68] The claimants submitted that in the correspondence they had proposed to the defendants that the court should be asked to determine the limited issue of the date on which the contested amendments should take effect, but that the defendants’ response was such that it was necessary to go into the merits of whether the amendments should be allowed.

[69] However, for the so-called limited issue the claimants said in the correspondence that the contested amendments should take effect on the date of commencement of the proceedings, which required going into the merits. They went into the merits in their written submissions, without mention of the defendants’ proposal in the correspondence (with reference to BGA Holdings) that they take effect at the later date. The claimants changed their position. The work of the defendants in addressing the merits was wasted, and the defendants’ primary position was upheld.

Kelvin Koh and Sherlyn Lim (Mercatoria Law LLC) (instructed), Thio Shen Yi SC, Chia Wan Lu and Chan Shi Qi Nicole for the claimants;

Yeap Poh Leong Andre SC, Lee Eng Beng SC, Stanley Tan Jun Hao, Tan Ee Kuan, Timothy James Chong Wen An, Tan Hsi Jie Oliver and Isabel Chan Jia Yi (Rajah & Tann Singapore LLP) for the first defendant;

Ong Tun Wei Danny SC, Yam Wern Jhien and Zhang Haowei Elvis (Setia Law LLC) for the second and third defendants.