Third Eye Capital Corp v Pretty View Shipping SA and others

1. Introduction

2. [5]

   [5] For the reasons above, I dismissed SUM 650. The defendants have appealed against my decision. In these written grounds, I elaborate on the reasons previously provided to parties and supplement them, where appropriate.

3. Background

4. The previous proceedings involving the parties

5. SUM 253

6. Service of the 2nd EJD Order and the circumstances leading to the filing of SUM 650

7. SUM 650 and the parties’ submissions

8. [14]

   [14] The defendants’ counsel, Mr Chan Kia Pheng (“Mr Chan”), made the following submissions in support of SUM 650:

9. [15]

   [15] In response, TEC’s counsel, Mr Lin Chunlong (“Mr Lin”), submitted:

10. The issues

11. [16]

    [16] SUM 650 raised three main issues:

12. Preliminary issues: TEC’s objections to the court hearing SUM 650

13. [17]

    [17] Before turning to the issues proper, as a preliminary point, I address two submissions made by Mr Lin as to why the court should stay or refuse to hear SUM 650, on account of the defendants and/or Mr Liu’s conduct in these proceedings.

14. [22]

    [22] Mr Lin’s second submission as to why the court should refuse to hear SUM 650 was s 12(2) of the Administration of Justice (Protection) Act 2016 (2020 Rev Ed) (“the AJPA”), which provides as follows:

15. [24]

    [24] With these preliminary points out of the way, I turn to address the issues proper.

16. Whether the service of the 2nd EJD Order was irregular?

17. Agreements for electronic service of documents otherwise requiring personal service under O 63A r 12 of the ROC 2014

18. [29]

    [29] One such mode of agreement which the parties can reach is provided for in O 63A r 12(1)(b) and r 12(1A) of the ROC 2014, which I reproduce below:

19. [30]

    [30] For completeness, I note that the ROC 2021 also contains these rules in identical terms (see O 28 r 12(1)(b) and r 12(2)).

20. [31]

    [31] An agreement for electronic service of documents otherwise requiring personal service under O 63A r 12 of the ROC 2014 can take one of two forms. It can take the form of an express agreement, which is provided for in O 63A r 12(1)(b). It can also take the form of an implied agreement, which is provided for in O 63A r 12(1A). Whether in a case of an express or implied agreement, it must be shown that the party served is “represented” by the solicitors on whom the documents had been served, or where the person served is himself an “authorised user” or a “registered user” of e-Litigation (see O 63A r 12(1)(b)).

21. [32]

    [32] A party effecting service (hereafter referred to as a “serving party”) who relies on an express agreement under O 63A r 12(1)(b) to justify the use of electronic service on the other party’s solicitors of a document that otherwise required personal service under the ROC 2014 must prove that such an agreement had been reached prior to the time of electronic service. Evidence which the serving party may rely on to prove such an agreement can take the form of a contract entered into before the act of service to which the parties’ dispute relates and which makes provision for how originating process and documents requiring personal service are to be served, or it can also take the form of correspondence between parties or their solicitors which evidence such an agreement.

22. [33]

    [33] On the other hand, an implied agreement under O 63A r 12(1A) can be found where “a party has instructed his solicitor to accept service of a document” that otherwise required personal service under the ROC 2014. In most if not all cases, the party who relies on O 63A r 12(1A) to justify the regularity of service is likely to be the serving party. Obviously, the serving party would not be privy to any instructions that the party served through its solicitors might have given to those solicitors. If it were a requirement that the serving party must provide direct evidence of such instructions before an implied agreement under O 63A r 12(1A) could be found, a serving party would necessarily fail to discharge its burden of proof and an implied agreement would only be found in the rarest of cases, thus rendering the provision in O 63A r 12(1A) nugatory.

23. [34]

    [34] In my view, what is crucial to the finding of an implied agreement under O 63A r 12(1A) is whether the circumstances of the case as well as the conduct of the solicitors of the party served, prior to the act of service, justify the conclusion that those solicitors had instructions from the party served to accept service of documents otherwise requiring personal service. Therefore, as explained in Singapore Civil Procedure: Vol I (Sweet & Maxwell, 2021) (“Singapore Civil Procedure”) (at para 63A/12/2), O 63A r 12(1A) applies where “a solicitor intimates that he has been instructed to accept service” [emphasis added]. The relevant circumstances and conduct are to be assessed from the perspective of the serving party’s solicitors and on objective standard. In other words, the test is not whether the serving party or his solicitors subjectively believed that the other side’s solicitors had the requisite instructions to accept service, but whether a reasonable person standing in the shoes of the serving party’s solicitors could have believed so. If an implied agreement under O 63A r 12(1A) is to operate as a principled exception to the requirement as to how personal service is to be effected, an objective standard should be applied in determining if it could be made out in each case.

24. Whether an agreement for electronic service of documents otherwise requiring personal service had been reached in this case

25. [40]

    [40] Therefore, if any agreement on electronic service of documents otherwise requiring personal service under O 63A r 12 is to be found in this case, it can only take the form of an implied agreement. I go on to consider this in respect of the defendants and Mr Liu separately.

26. The defendants

27. Mr Liu

28. [47]

    [47] Given that Mr Liu is a non-party in OS 207, and he had no solicitors on record in the e-Litigation case file for OS 207, whether an implied agreement under O 63A r 12(1A) could be shown involves a further inquiry into whether LVMLC had “represented” Mr Liu at the material time, apart from the question of whether the circumstances were such that WP could reasonably conclude that LVMLC had instructions from Mr Liu to accept service of documents otherwise requiring personal service.

29. [48]

    [48] I note, of course, Mr Chan’s submission that LVMLC did not, and does not, act for Mr Liu in his personal capacity, and any and all instructions taken from Mr Liu were in his capacity as a director of the defendants (see [45] above and also [51] below). However, I do not think LVMLC’s subjective view of whether they acted for Mr Chan at the material time is determinative of this issue. Since there is no dispute that Mr Liu instructs LVMLC in connection with matters affecting the defendant, a retainer undoubtedly exists between Mr Liu and LVMLC. As for whether LVMLC represents Mr Liu in his personal capacity, this is effectively a question as to the scope of LVMLC’s authority to act for Mr Liu (see Tan Yock Lin, The Law of Advocates and Solicitors in Singapore and West Malaysia (2nd Ed, Butterworths, 1998) at pp 266–267). Such authority can be expressly conferred but can also be implied from the conduct of the parties and the circumstances of the case (Tan Cheng Han SC, The Law of Agency (2nd Ed, Academy Publishing, 2017) at paras 03.027–03.031). If LVMLC’s conduct was such as to suggest that Mr Liu intended that LVMLC had authority to act for him in his personal capacity, then it could nonetheless be concluded that LVMLC had acted for and represented Mr Liu at the material time, despite Mr Chan’s present submission. Importantly, I note that in Mr Liu’s affidavit which the defendants filed in support of SUM 650, Mr Liu did not take the position that LVMLC does not act for or represent him in his personal capacity for the purposes of these proceedings.

30. (b) On 30 April 2024, LVMLC responded to WP’s letter (“the 30 Apr Letter”). LVMLC stated that there was “no basis for [TEC] to now hold Liu Por [ie, Mr Liu] personally accountable” for the costs in SUM 245 and cited reasons in support.

31. (d) On 9 May 2025, LVMLC wrote to the court (“the 9 May Letter”), seeking an extension of time to respond. The reasons cited for the extension of time was that they were only able to review the contents of WP’s letter on the morning of 9 May 2025 due to the manner in which WP’s letter had been electronically served on LVMLC.

32. (e) The court acceded to the request, and LVMLC wrote with a further letter on 15 May 2025 (“the 15 May Letter”) making extensive submissions as to why it was inappropriate for Mr Liu to be made personally liable for the costs of SUM 245.

33. [53]

    [53] In both counsel’s submissions, they relied heavily on an exchange between the court and counsel at the hearing of SUM 245, in support of their respective positions on the issue of whether LVMLC represented Mr Liu at the material time. For context, I set out the relevant parts of the transcript in full:

34. [54]

    [54] Unsurprisingly, Mr Lin and Mr Chan relied on different parts of the transcript in support of their respective positions. Mr Lin relied on the confirmation from the defendants’ counsel that they “do act for [Mr Liu] in his personal capacity” while Mr Chan pointed to the clarification made by TEC’s counsel towards the end of the extract above and argued that it confirmed that LVMLC did not act for Mr Liu in SUM 245, and therefore they also do not act for Mr Liu for present purposes.

35. [55]

    [55] The exchange in the extract above arose from the court’s queries in relation to an affidavit which Mr Liu filed in SUM 245 in his capacity as an officer of the defendants, and what the court had sought to understand, through its queries, was whether Mr Liu was seeking to make himself a party to the proceedings. TEC’s position was that only the defendants were parties to the proceedings in SUM 245 because Mr Liu had not applied to intervene, and it was in that context that TEC’s counsel stated that the only parties who LVMLC acted for in SUM 245 were the defendants. Presumably this was intended to set the goalposts and make it clear that any submissions which LVMLC made in arguments for SUM 245 were in relation to the defendants’ position alone, and not Mr Liu. On this note, the confirmation from the defendants’ counsel that they “do act for [Mr Liu] in his personal capacity” is pertinent. Based on the extract of the transcript exhibited in the affidavits, it does not appear that the defendants’ counsel went on to retract or clarify that position subsequently.

36. Even if service of the 2nd EJD Order was irregular, it could be cured

37. Whether TEC had breached its duty of full and frank disclosure in its application for the 2nd EJD Order in SUM 253?

38. Nature of EJD proceedings

39. What a judgment creditor must show in its second or further attempt at seeking an EJD order

40. [75]

    [75] Goddard LJ said (at 199):

41. Whether the duty of full and frank disclosure was met in this case

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