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Grounds publishedDecided 31 Aug 2026
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General Division of the High Court

The orders were set aside as the claim was barred by reflective loss

Prosetskii, Aleksandr Viktorovich v Courtwell Asia Ltd and others

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[2026] SGHC 177Case no. Originating Claim No 1031 of 2025 (Summons No 899 of 2026)

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The orders were set aside as the claim was barred by reflective loss

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  1. Chan Seng Onn SJ:

  2. [1] This was an application by the first defendant, Courtwell Asia Limited (“Courtwell”) to set aside the orders I made in HC/SUM 3635/2025 (“SUM 3635”) at an urgent ex parte hearing on 23 December 2025, which resulted in HC/ORC 7610/2025 (“ORC 7610”).

  3. [2] ORC 7610 was an order granted in favour of the claimant, Mr Aleksandr Viktorovich Prosetskii (“Prosetskii”), for, inter alia:

  4. (a) a worldwide Mareva injunction against Courtwell and the fourth defendant, Mr Viktor Sergeevich Baransky (“Baransky”), of up to US$ 22.5m including a prohibition on the disposal of the crude oil tanker, the “MT Raven” (now the “MT Vikram” (IMO No. 9205067), and hereafter referred to as the “Vessel”, which is the main object of the underlying dispute in HC/OC 1031/2025 (“OC 1031”);

  5. (b) Courtwell and Baransky to disclose their assets in and outside Singapore; and

  6. (c) interim receivers and/or managers to be appointed to, inter alia, conduct the business and management of the Vessel, preserve the Vessel and conduct an account of the Vessel’s earnings from her operations.

  7. [3] Courtwell made the application to set aside ORC 7610 on the basis that first, Prosetskii did not have the legal standing to bring the claims against Courtwell in OA 1031 thereby failing to show that he had a good arguable case as his claim is based on losses suffered by companies he held shares in. Second, Prosetskii failed to show that there was any real risk of dissipation of Courtwell’s assets. Third, Prosetskii breached his duty to provide full and frank disclosure of the material facts in SUM 3635. Accordingly, Courtwell prayed that the worldwide Mareva injunction order against it and the appointment of the interim receivers and/or managers on the terms as set out in ORC 7610 be set aside in their entirety, or, in the alternative, that the receivership order should be discharged as it was unnecessary for interim receivers and/or managers to be appointed and/or the powers conferred on the interim receivers and/or managers were too excessive and that the disclosure order be discharged as it was unnecessary and prejudicial to Courtwell.

  8. [4] At the end of the hearing, I allowed the setting aside application on the basis that Prosetskii had shown no good arguable case in OC 1031 against Courtwell as his claim was barred by the reflective loss principle. The appointment of the interim receivers and/or managers was also set aside in its entirety. I set out my reasons below.

  9. [5] The key challenge in this case was that Prosetskii asserted a factual matrix which Courtwell averred was entirely false. Therefore, even at the interlocutory stage, where all that Prosetskii was required to show was a good arguable case, it was difficult to determine what facts could be relied on in the light of contrary evidence brought by Courtwell. I first set out the complicated factual matrix asserted by Prosetskii. Next I set out the parties’ arguments before setting out my reasons for the setting aside decision on the basis of the reflective loss principle. For completeness, I then discuss the impact of the evolving case presented by Prosetskii ([87]–[105]), and as much of the hearings concerned the plausibility of the facts which Prosetskii relied on to support his case, I discuss them at [106]–[155].

  10. Background

  11. [6] OC 1031 arose from the alleged devaluation and denudation of Prosetskii’s beneficial interest in the shares of two holding companies, ie, the third defendant, Seasreno Marine Ltd (“SML”) and the second defendant, Infinite Tide Corp (“ITC”) (collectively, the “Holding Companies”), through the misappropriation of the Holding Companies’ primary asset, the Vessel.

  12. [7] Prosetskii allegedly entered into an agreement with Baransky and Mr Dmitri Bykhovski (“Bykhovski”) in or around late December 2020 to early 2021 to purchase the Vessel and share in the earnings from its operation.

  13. [8] Prosetskii alleged in OC 1031 that Baransky and his associates engineered a scheme to appropriate Prosetskii’s interest in the Vessel by (a) procuring a transfer of Prosetskii’s shares in the Holding Companies (“Shares”) to an alleged rogue nominee, the fifth defendant Mr Igor Smirnov (“Smirnov”); (b) cutting off Prosetskii from all information relating to, and from the profits earned by, the Vessel following the transfer of the Shares; and (c) staging a sham arbitration that culminated in an arbitral award ordering the transfer of the Vessel to Courtwell, which Prosetskii claimed was related to and/or under the control of Baransky.

  14. The parties

  15. [9] Prosetskii is a businessman holding a St Lucian passport. He was a shareholder in the Elson Group FZC (“Elson Group”) together with Bykhovski and Mr Atayev (“Atayev”). Each of them owned 33.3% of the shares of Elson Group. Elson Group fully owned Alvari SA, a company incorporated in Switzerland dealing with oil and petroleum products.

  16. [10] Baransky is currently a stateless person. He was formerly a Ukrainian citizen (ie, before he was stripped of his citizenship) and a former deputy on the Odessa City Council, a Ukrainian municipal city council, sitting as one of the representatives of a pro-Russian party, “Opposition Platform – For Life”. In 2024, there were reports of criminal investigations into Baransky for the misappropriation of 32 vessels from the state-owned Ukrainian shipping company, Ukrainian Danube Shipping Company. Counsel for Prosetskii elaborated in his submissions that Baransky has a reputation of being a ship thief. There were multiple reports that he had stolen 32 vessels from the Ukrainian state-owned entity. Prosetskii also exhibited US Court decisions from 2014 and 2015 that linked Baransky, Mr Volodymyr Yudayev (“Yudayev”) and the seventh defendant, Mr Ivan Obukhov (“Obukhov”), to activities similar to this case, where they had been using corporate structures to siphon away assets to evade creditors.

  17. [11] SML and ITC, according to Prosetskii, were holding companies incorporated to hold ownership of the Vessel and had no commercial operations of substance other than the operation of the Vessel. In the statement of claim (“SOC”), it was stated that Prosetskii, Bykhovski and Baransky had incorporated SML in the Marshall Islands on or around 25 January 2021 as a holding company to hold their beneficial interests in the Vessel after its purchase in or around February 2021. At the prompting of Baransky’s associates, ITC was incorporated in the Seychelles about three years later on 5 February 2024 and the ownership of the Vessel was to be transferred from SML to ITC once it was incorporated.

  18. [12] Prosetskii claimed that he was persuaded by Baransky’s associates to transfer his Shares in SML and ITC to Smirnov to hold the Shares on trust for him. Smirnov holds a Moldovan passport.

  19. [13] The sixth defendant, Ms Ludmila Babuschin (“Babuschin”), a Romanian national, was appointed by Baransky to be his nominee for his 50% shareholding in SML and subsequently for his 50% shareholding in ITC. Babuschin was appointed by Baransky to be the sole director of both SML and ITC.

  20. [14] Obukhov, a Russian national, was alleged by Prosetskii to be an associate of Baransky who oversaw the management and operations of SML and the Vessel.

  21. [15] Courtwell is a Hong Kong incorporated company which at the time of the application held the registered ownership of the Vessel. Courtwell claimed to own both the legal and beneficial interest in the Vessel. Prosetskii claimed that Courtwell was another company under the control of Baransky and that the Vessel was wrongfully transferred to Courtwell via a sham arbitration award dated 3 February 2025. Prosetskii asserted that the arbitration between Courtwell on one hand, and SML and ITC on the other was staged to legitimise the transfer of the Vessel to Courtwell.

  22. Background to the dispute according to Prosetskii

  23. [16] In view of the complicated facts as presented by Prosetskii, Prosetskii adduced a diagram, attached at Annex A, to aid in the understanding of his case. It shows: (a) the alleged trustee and title flow, showing how registered ownership of the Vessel moved between entities; (b) the alleged money flow, showing how the purchase monies moved between entities to ultimately reach the seller of the Vessel; and (c) the paper flow, showing the various documents created to evidence the various transactions. Respectively, these illustrate the following:

  24. (a) The trustee and title flow shows how the registered ownership of the Vessel moved from one entity to another after the arms-length sale of the Vessel by the genuine seller, Hartley Trading Inc (“HTI”) through to Ikasto Ventures Inc (“IVI”), SML, ITC and Courtwell. SML, ITC and Courtwell purportedly acquired title without needing to pay any of their own money to acquire their beneficial interest/title to the Vessel. Prosetskii’s case was that the beneficial interest/title to the Vessel was simply transferred from one entity to another without any valuable consideration.

  25. (b) The money flow shows how the purchase monies to pay HTI for the purchase of the Vessel flowed from one entity to another: from Alvari SA to an entity labelled GACommodities OU (“GAC”) to IVI and then to the genuine seller HTI eventually. This indicated which entities were mere intermediaries, and who were the true beneficial owners providing the source of the funds for the purchase of the Vessel.

  26. (c) The paper flow shows the types of documents purportedly created merely to evidence the various transactions.

  27. [17] I must highlight an error in the first line of the diagram at Annex A (ie, “1: Trustee and title flow”) as Prosetskii’s case was that the title to the Vessel was never in fact registered in the name of IVI. Title to the Vessel moved from the genuine seller (ie, HTI) directly to SML, then to ITC, and finally ended up with Courtwell.

  28. [18] In this case, various ultimate beneficial owners (“UBOs”) used nominee shareholders, nominee directors and holding companies to obscure or hide their interests. Such obscurity made it difficult to understand the factual state of matters before me. Monies originating from an entity simply flowed through various intermediary entities to reach the eventual genuine seller of the Vessel (ie, HTI), and various documents were generated for the various transactions. Many did not seem to match the transactions and the purpose for the money payments which they were supposed to represent, and in my view could be sham documents to hide the true nature of the transactions, although such would not be for a determination by me at this stage of the proceedings. Many of the arrangements appeared to be based on oral agreements without proper documentation. Monies appeared to be simply transferred or flowed through from one entity to another entity and then to another entity, which were controlled by the various related players, without regard to proper corporate governance or documentation, and the corporate accounts of these companies apparently were used just to pass the money through. The way the registered ownership/title to the Vessel was transferred from one entity to the next entity appeared to be not much different. There appeared to be a lot of opacity to mask true ownership and true transactions, and the substance of the real transactions was difficult to discern just from the paper documents purportedly evidencing the transactions. Monies to pay for the Vessel simply flowed from the different original sources, were thereafter amalgamated, and sent through entities which appeared to be different from the entities through which the registered ownership/title was flowed. Normally in genuine purchase and sale transactions, the entity providing the purchase money to buy the asset would get the registered ownership/title to the asset and become both the legal and beneficial owner of the asset. Here, the registered ownership/legal title flow and the purchase money flow did not match up, and these opaque arrangements would be fertile ground for disputes, especially when nominees later turn around to claim real ownership and deny that they were nominees. Perhaps, where a vessel was purchased specifically to transport sanctioned oil or carry out nefarious activity, such opacity would be expected as the UBOs would not want to be traced and they therefore hide behind complicated corporate structures and holding companies with nominee directors and nominee shareholders fronting them.

  29. [19] With the diagram provided at Annex A (which had been used at the hearing before me) and subject to the correction for the error referred to at [17] above, perhaps the complicated transactions could be better understood.

  30. Purchase of the Vessel

  31. [20] Prosetskii alleged that sometime around late December 2020 and early January 2021, Baransky, Bykhovski and himself decided to acquire the Vessel, then named the “MV Episkopi” from HTI. Prosetskii alleged that they had an agreement (“Agreement”) whereby ownership of the Vessel would be held through a holding company (ie, what eventually came to be SML), with Baransky holding 50% and both Bykhovski and Prosetskii holding the remaining 50% of the shares of the holding company. Baransky would fund 50% of the purchase price of the Vessel, and Bykhovski and Prosetskii would fund the remaining 50%.

  32. [21] Prosetskii claimed that it was further agreed that IVI, a Baransky-controlled entity, would front the purchase of the Vessel first and then later transfer ownership of the Vessel to the holding company, which was later established to be SML. Accordingly to Prosetskii, it was agreed that IVI would not be reflected as the registered owner of the Vessel in the relevant ship registry and IVI would not be entitled to payment for the subsequent transfer of the Vessel to the holding company (ie, what eventually came to be SML). Accordingly, after HTI was paid the purchase price for HTI’s sale of the Vessel, the title to the Vessel was transferred directly from HTI to SML once it was incorporated. IVI was therefore never reflected at any time as the registered owner of the Vessel in the ship registry.

  33. [22] It would be significant to note at this juncture that title to the Vessel was registered in SML’s name without SML having to pay any monies of its own (eg, from its corporate bank account) to acquire title to the Vessel from HTI. This meant that SML could not have been the beneficial owner of the Vessel unless the shareholders of SML, who had separately used their own monies to buy the Vessel from HTI, had subsequently injected their personally owned asset (ie, the Vessel in this case) as their capital injection into SML after its incorporation. With the capital injection of the Vessel by SML shareholders, SML’s account books would then record that capital injection of the Vessel and that Vessel would thereafter become an asset wholly and beneficially owned by SML. After the capital injection, the shareholders of SML would no longer be beneficial owners of the Vessel, and SML would become the new beneficial owner. The shares of SML’s shareholders (including any new shares issued to them on account of the capital injection) would thereafter have a higher total valuation because SML would now have the Vessel as its new corporate asset. This would be no different from SML’s shareholders injecting a cash sum of US$12.9m instead as their capital injection into SML after its incorporation. After the cash capital injection into SML, SML’s shareholders could no longer maintain that they still owned the US$12.9m in cash. The US$12.9m after the cash capital injection would belong to SML exclusively and not to them personally anymore even though they might be SML’s shareholders. The valuation of the company would correspondingly have increased by US$12.9m, after the cash capital injection. The SML shareholders would have received, in return for that cash injection, a higher total valuation for all of their shares in SML. In essence, the separate and distinct corporate personality of SML would have to be respected.

  34. [23] Under the Agreement, Baransky would run the holding company (ie, SML) and the business operations of the Vessel through his representatives, Obukhov and one Mr Mikhail Ivanov (“Ivanov”). It was agreed that Prosetskii and Bykhovski would not be involved in the management of SML and the operations of the Vessel. However, Prosetskii and Bykhovski would be consulted on any major business changes to be made, for example, changes to the flag state of the Vessel and the appointment or re-appointment of commercial or technical managers for the Vessel. Prosetskii and Bykhovski would also receive information on the Vessel’s operation on a regular basis from Obukhov and Ivanov, including information on its voyages and revenues earned. Regarding profits from the Vessel’s operations, it was Prosetskii’s case that the split would be proportionate to their shareholding in SML, except that Baransky would be entitled to 5% more given that Baransky’s associates Obukhov and Ivanov, would be managing the commercial operations of the Vessel. Hence, Baransky would get 55% of the profits, and Prosetskii and Bykhovski would get 45% of the profits from the Vessel’s operations.

  35. [24] A Bill of Sale was entered into between HTI and IVI on 11 February 2021, and SML assumed ownership of the Vessel in or around March 2021 and the Vessel was renamed the “MT Raven”.

  36. [25] In late 2021, Prosetskii claimed that he “took over” Bykhovski’s beneficial interest in SML and became the beneficial owner of 50% of the shares of SML (and I understood “took over” to mean “bought over” as I would not expect Bykhovski to gift valuable shares in SML to Prosetskii for no valuable consideration).

  37. Transfer of the Vessel from SML to ITC

  38. [26] In January 2024, Ivanov proposed that a new company be established in Seychelles (ie, what came to be ITC), which according to Ivanov would be a more convenient jurisdiction than the Marshall Islands for conducting shipping-related business. Under this proposal, ownership of the Vessel would be transferred to this new company, ITC. The profile of the shareholding in ITC would be the same as that in SML. As in the case of the old holding company SML, both Obukhov and Ivanov would continue to operate and manage the new holding company ITC and the Vessel on the basis of the Agreement.

  39. [27] At about the same time, Prosetskii asked Obukhov to recommend someone trustworthy and suitable to act as a nominee to hold his 50% shareholding in SML and his 50% shareholding in ITC (ie, the Shares). Obukhov recommended Smirnov as a suitable candidate . Prosetskii agreed to Ivanov’s and Obukhov’s proposals and recommendations.

  40. [28] ITC was then incorporated in the Seychelles on 5 February 2024. Thereafter, in February/March 2024, SML transferred ownership of the Vessel to ITC. There was no payment of any valuable consideration by ITC to SML for the transfer of the registered ownership/title to the Vessel to ITC from SML. On 29 February 2024, Prosetskii’s nominee Ms Svetlana Igorevna Korshunova (“Korshunova”), acting on the instructions of Prosetskii, transferred his 50% of the shares in SML held in Korshunova’s name to Smirnov. On 1 March 2024, a trust deed (“Trust Deed”) was signed by Smirnov and Prosetskii, where Smirnov covenanted to hold the Shares as well as “all beneficial and proprietary rights and interests accruing from the Shares” on trust for and on behalf of Prosetskii.

  41. [29] On or around 1 March 2024, after the Trust Deed was signed and the Shares of Prosetskii had been transferred to Smirnov to hold in trust for Prosetskii, Prosetskii claimed to have stopped receiving any communication or updates regarding the operation of the Vessel. Prosetskii then discovered that the flag state of the Vessel and the ship management company had been changed without his knowledge, the Vessel had been renamed the “MT Vikram” and had been involved in Russian shadow fleet operations to transport Russian oil. Sanctions were imposed on the Vessel by the United Kingdom, the European Union, Switzerland, Canada and Australia between April and September 2025.

  42. [30] On 24 September 2024, Prosetskii formally demanded that Smirnov transfer the Shares back to him. However, on 18 October 2024, Smirnov responded by denying knowledge of Prosetskii or the Trust Deed and refused to comply with the demands of Prosetskii.

  43. Transfer of the Vessel via arbitration award

  44. [31] Some four months later, the registered ownership/title to the Vessel was transferred from ITC to Courtwell pursuant to an arbitration award dated 3 February 2025. The award was issued by a sole arbitrator in an arbitration conducted under the London Maritime Arbitrators Association. Courtwell had commenced arbitration against SML and ITC under an assignment agreement between IVI and Courtwell. Allegedly a memorandum of agreement dated 25 February 2021 was signed between IVI and SML where SML agreed to purchase the Vessel from IVI for US$4,900,000. If the purchase price was not paid, IVI was entitled to repossess the Vessel under the memorandum of agreement. On 25 November 2024, IVI assigned its rights to Courtwell. Courtwell then demanded payment of the purchase price and interest on the following day. When SML did not pay, Courtwell terminated the memorandum of agreement on 2 December 2024 and demanded transfer of the Vessel, interest for late payment and liquidated damages. On 4 December 2024, Courtwell commenced arbitration. On 3 February 2025, the sole arbitrator issued the Award directing that ITC transfer the Vessel to Courtwell.

  45. [32] Prosetskii alleged that the arbitration was a sham arbitration staged by Baransky and his associates to transfer the Vessel to Courtwell in an attempt to defeat Prosetskii’s rights over and interest in the Vessel. IVI was merely an intermediary used to facilitate the payment of the purchase price to HTI and was never entitled to any right to payment from SML.

  46. [33] Prosetskii claimed that Courtwell was related to Baransky on the basis that investigations conducted by him showed that the personnel associated with Courtwell were associates of Baransky. Further Prosetskii averred that Courtwell was a shell company with no physical office and had a director and shareholders who seemed to be nominees. Courtwell appeared to have no other commercial activities other than the operation of the Vessel and was a dormant company until the Vessel was conveyed to it.

  47. [34] Prosetskii asserted, and I found that it was more than arguable, that the arbitration was a sham arbitration as the timing of the arbitration and the transfer of the Vessel pursuant to the arbitration award was suspect. First, Prosetskii submitted that it was incredible that IVI did not take steps to ensure that the payment of the Vessel was made. There was no indication that IVI had pursued payment in the three-year period between the purchase of the Vessel from HTI and the time when the rights were assigned to Courtwell. Second, Courtwell’s claim in the arbitration had no merit as IVI was never entitled to any right of payment for the sale of the Vessel and was merely an intermediary for payment to HTI. Further, Courtwell’s claim was for US$6,174,805.48, which was much less than the Vessel’s purchase price of US$12.9m. Third, the position taken by SML and ITC was inconceivable as it would mean that they were willing to risk losing the Vessel for a claim that was less than one quarter of the then market value of the Vessel, estimated at US$27m. Fourth, the arbitration proceedings were suspect as the award was issued within less than two months. Fifth, the parties agreed on a sole arbitrator that was inexperienced in the subject matter. Sixth, SML and ITC chose not to appoint any solicitors and instead were represented by Babuschin, who was not legally trained and a nominee of Baransky. Babuschin handled and conducted the defence in the arbitration even though the Vessel was the only asset of significant value to the Holding Companies.

  48. Procedural history

  49. Prior proceedings

  50. [35] Before OC 1031, Prosetskii commenced HC/OA 1311/2024 (“OA 1311”) against Smirnov, SML and ITC on 16 December 2024, to enforce his rights under the Trust Deed over the Shares and the Vessel. In OA 1311, Prosetskii applied for an interim injunction preventing any dealings with and/or transfers of the Shares and the Vessel (HC/SUM 3655/2024, hereafter referred to as “SUM 3655”). Prosetskii argued that he was entitled to seek a proprietary injunction over the Vessel on the basis that SML and ITC retained a beneficial interest in the Vessel notwithstanding its transfer. The premise he relied on was that the arbitration was a sham and the transfer of the Vessel was thus wrongful. Therefore, ITC and SML retained a beneficial interest in the Vessel upon which a proprietary injunction could be granted.

  51. [36] Prosetskii alleged that four days before SUM 3655 was scheduled to be heard, ITC transferred the Vessel to Courtwell under the arbitration award. This transfer was only disclosed to Prosetskii the evening before the hearing of SUM 3655. Prosetskii claimed that the arbitration was conducted in parallel with OA 1311. SUM 3655 was heard by Kristy Tan J who dismissed the application on 22 October 2025 on the basis that the Vessel did not belong to Prosetskii. As a shareholder, Prosetskii had no proprietary interest in the Vessel. As a shareholder, he owned no legal or equitable interest in the Vessel. Finally, nothing in the Trust Deed conferred any interest in the Vessel upon him.

  52. OC 1031 and the injunction application

  53. [37] Prosetskii then commenced OC 1031 on 12 December 2025. He applied for the orders in ORC 7610 in the ex parte hearing of SUM 3635. I granted the orders on the basis that (a) there was a risk of dissipation of the Vessel and the profits from the operations of the Vessel; and (b) there was also an arguable case on the basis of what had been presented to me during the hearing that:

  54. (a) In or around 2020, Alvari SA held a surplus of funds. Prosetskii proposed to Bykhovski that they take out personal loans from Alvari SA to purchase a vessel which they would personally hold an interest in. Among other considerations Prosetskii considered was that this would be a more tax-efficient way of owning and operating a vessel. They also envisaged the repayment of the loan obtained from Alvari SA using the earnings obtained from the vessel’s operations. Bykhovski agreed to Prosetskii’s proposal and relied on Prosetskii to negotiate and structure the transactions leading up to the purchase of the Vessel.

  55. (b) Prosetskii and Bykhovski then together borrowed money amounting to US$6.75m from Alvari SA and they then instructed Alvari SA to send their borrowed money to an intermediary, GAC, to be consolidated with the contribution from Baransky of US$6.15m towards the payment of the purchase price of the Vessel of US$12.9m from HTI. The loan of US$6.75m from Alvari SA was to be repaid by Prosetskii and Bykhovski from their share of the profits from the operation of the Vessel. In support, Prosetskii exhibited a commercial invoice from GAC to Alvari SA. Additionally, Prosetskii’s contribution towards the purchase price of the Vessel was acknowledged by Baransky’s associate in text messages.

  56. (c) Baransky, through GAC (which was a Baransky-controlled entity), furnished the balance of US$6.15m towards the payment of the purchase price of the Vessel from HTI.

  57. (d) GAC consolidated the two sums of US$6.75m from Prosetskii and Bykhovski, and another US$6.15m from Baransky, making a total of US$12.9m, and transmitted that sum of US$12.9m via IVI as an intermediary to pay the bona fide seller of the Vessel (namely, HTI). In that sense, IVI merely fronted the purchase of the Vessel from HTI by making a payment to HTI using monies personally given to IVI by Prosetskii, Bykhovski and Baransky, which had passed through intermediaries GAC and IVI. GAC and IVI were not in substance the real purchasers of the Vessel from HTI. The real purchasers of the Vessel were Prosetskii, Bykhovski and Baransky.

  58. (e) As such, IVI did not provide any of its own money to purchase the Vessel as IVI acted only as an intermediary to receive the US$12.9 m from GAC and simply pass that US$12.9 m to HTI. The real source of the money was the personal funds of Prosetskii, Bykhovski and Baransky. In my mind, if there was a genuine loan taken by Prosetskii and Bykhovski from Alvari SA of US$6.75m, the loan proceeds of US$6.75m would become the personal funds of Prosetskii and Bykhovski and they could use these personal funds however they wished. In this case, they chose to buy a 50% share in the Vessel with their US$6.75m and I regarded that as their personal purchase of an asset (ie, 50% of the Vessel) for themselves although they used intermediaries as conduits for and to front the payment of the purchase price to the Vessel’s seller.

  59. (f) Prosetskii, Bykhovski and Baransky incorporated SML as a holding company with Prosetskii and Bykhovski holding 50% of its shares and Baransky holding the other 50% of its shares. They decided to register the Vessel under SML, treating SML as a company merely holding the legal title to the Vessel for them (but without the beneficial interest in the Vessel as they still retained directly the beneficial interest in the Vessel for themselves).

  60. (g) I was of the view that there was an arguable case that SML remained as a shell company after its incorporation without any valuable assets, and that it was merely a holding company and a front for the three individuals for the operation of the Vessel. The underlying premise was that these three individuals (although they were shareholders of SML) did not make any capital injection of the Vessel into SML. Had they done so (and no positive evidence was presented to me that they had done so), then it would be a form of capitalisation in kind (as opposed to a capitalisation in cash) into SML, and SML would thereafter beneficially own the Vessel, and the three individuals would no longer beneficially own the Vessel.

  61. (h) Since there was apparently no positive evidence of a capital injection of the Vessel into SML, these three individuals arguably would continue to have a direct beneficial interest in the Vessel although title of the Vessel was registered with SML.

  62. [38] Accordingly, the view I formed at the time of urgent ex parte hearing of SUM 3635 on 23 December 2025 was that Prosetskii would have locus standi to sue on his own behalf, without being barred by the reflective loss principle. If all the intermediaries (like GAC, IVI and ITC) and other nominees (be they nominee directors, nominee shareholders or holding companies) were treated as insignificant for the purpose of analysis and were notionally excluded or eliminated, leaving behind only the main substantial players and real owners of assets when tracing the real substantial transactions, having regard to the real flow of monies and the flow of the registered ownership/title of the Vessel, one would arrive at a much simpler distilled diagram, attached at Annex B to this decision, which showed my earlier understanding at the ex parte hearing of how the Vessel was acquired with borrowed monies by the three individuals. This perhaps would be how the opaque structure and complicated transactions could be pierced through to reveal the real underlying transactions.

  63. [39] As there could be additional evidence available to fortify what Prosetskii’s counsel had furnished at the ex parte hearing to show that Prosetskii had the legal standing to bring the claim personally, and more particularly in respect of how Prosetskii and Bykhovski had secured funds for themselves to personally purchase 50% of the Vessel (together with Baransky purchasing the other 50% of the Vessel), I asked and Prosetskii’s counsel undertook to file a further affidavit to produce available documentary evidence of Prosetskii’s personal and direct beneficial interest in the Vessel. Specifically, I asked Prosetskii to produce (a) documentary evidence of the loan provided by Alvari SA to him to enable him to purchase a 25% share of the Vessel for himself initially, including Alvari SA’s company resolutions approving such a loan; (b) bank statements of Alvari SA to show the payment of US$6.75m to GAC and an explanation for the GAC commodities invoice supposedly evidencing the flow of funds of US$6.75m from Alvari SA to the intermediary, GAC, which then sent the same funds consolidated with the contribution from Baransky to the next intermediary IVI to make the actual payment of a total sum of US$12.9m to the bona fide seller of the Vessel, namely HTI; and (c) documentary evidence of Prosetskii’s buyout of Bykhovski’s beneficial share of 25% in the Vessel, including documents evidencing that such buyout was made for valuable consideration in order to further support Prosetskii’s claim to a total beneficial interest of 50% in the Vessel. Prosetskii filed his third affidavit on 9 January 2026 to exhibit the relevant documents requested for and provide explanations where such documents could not be produced.

  64. Setting aside application

  65. [40] On 9 February 2026, Courtwell wrote to the court to request the immediate setting aside of ORC 7610 on the basis that the undertaking was not complied with as Prosetskii failed to disclose any supporting documents in his third affidavit. The court heard parties and directed Courtwell to file a formal application to set aside ORC 7610. The present application was filed on 24 March 2026.

  66. The parties’ cases at the setting aside application

  67. Courtwell’s case

  68. [41] Courtwell submitted that ORC 7610 should be set aside on the following grounds:

  69. (a) Prosetskii had no good arguable case on the merits of his claims brought against Courtwell in OC 1031;

  70. (b) Prosetskii failed to produce any evidence to show that there was a real risk of dissipation of Courtwell’s assets;

  71. (c) Prosetskii deliberately failed to comply with his duty to make full and frank disclosure of all material facts within his knowledge; and

  72. (d) Prosetskii’s application in SUM 3635 for the Injunction Order and Receivership Order was an abuse of the Court’s process.

  73. [42] Courtwell submitted that Prosetskii had not shown a good arguable case against Courtwell in OC 1031. Prosetskii was not entitled to the reliefs sought in OC 1031 (see [43] to [43(c)] and [43(g)] below) against Courtwell as he had no legal standing to bring the claims. He was also legally barred from pursuing the reliefs even if he was a shareholder of ITC, and OC 1031 was an abuse of the court’s process as:

  74. (a) Prosetskii was unable to demonstrate an interest in SML, ITC or the Vessel that entitled him to bring claims in relation to the Vessel; and

  75. (b) there was no factual basis for Prosetskii’s claims against Courtwell for knowing receipt and dishonest assistance as Prosetskii’s case was entirely based on circumstantial evidence and was unbelievable.

  76. [43] The reliefs sought by Prosetskii against Courtwell in OC 1031 were, inter alia, for:

  77. (a) a declaration that the arbitration was a sham;

  78. (b) the conveyance of the Vessel by Courtwell back to ITC, on the basis that Courtwell was a knowing recipient;

  79. (c) an order for Courtwell to account to ITC as constructive trustee and pay to ITC any profit or benefit that Courtwell had obtained from the Vessel’s use and operation;

  80. (d) a declaration that Smirnov had breached the terms of the Trust Deed:

  81. (e) an order that Smirnov to account to Prosetskii as a constructive trustee for dividends, distributions, and/or benefits that had accrued, been received or become receivable as a result of Smirnov’s breach of his fiduciary and trustee duties owed to Prosetskii;

  82. (f) an order for the termination of the Trust Deed and the vesting of the absolute interest of the Shares in Prosetskii; and

  83. (g) damages and equitable compensation from all the defendants for breach of fiduciary duties owed to Prosetskii, dishonest assistance, conspiracy and/or inducement of breach of trust to be assessed.

  84. Prosetskii’s case

  85. [44] First, Prosetskii submitted that the court should maintain the freezing order against Courtwell as there was a good arguable case against Courtwell in OC 1031 on the basis that he was the sole beneficial owner of his Shares in SML and ITC.

  86. [45] Prosetskii claimed that Courtwell provided dishonest assistance to Baransky in respect of his breaches of fiduciary duties. He claimed that Courtwell, together with the other defendants, facilitated the staging of the sham arbitration and suppressed the arbitration award until the Vessel was transferred to Courtwell. Further, Courtwell and the other defendants either had actual knowledge or were wilfully blind to the illegitimacy of the arbitration and the wrongful transfer of the Vessel. Additionally, Courtwell was liable as a knowing recipient to account to ITC for the Vessel and all benefits accruing from the transfer of the Vessel to Courtwell. Finally, Courtwell together with the other defendants had conspired to wrongfully deprive Prosetskii of his interest in the Vessel.

  87. [46] Further, Prosetskii argued that he had a beneficial interest in the Shares of SML and ITC. Subsequent to the purchase of the Vessel and the registration of the title to the Vessel under SML, Prosetskii claimed to have received information from Baransky’s associates regarding the operation of the Vessel either face to face, over telephone calls or through WhatsApp and Telegram text messages during the period before the Vessel was transferred from SML to ITC. To evince his increased ownership through his acquisition of Bykhovski’s shares, Prosetskii claimed that there was no formal documentation but exhibited correspondence between himself and Bykhovski showing that Bykhovski acknowledged the transfer. Additionally, he exhibited the Trust Deed executed between himself and Smirnov. To fulfil his duty of full and frank disclosure, he admitted that the validity of the Trust Deed was in dispute. At the setting aside hearing, Prosetskii advanced a case that he had a beneficial interest in not only the Shares of SML and ITC but also in the Vessel directly.

  88. [47] Prosetskii contended that neither the reflective loss principle nor the fact that the Trust Deed between Prosetskii and Smirnov was for his Shares in SML and ITC instead of the Vessel would bar him from establishing claims of conspiracy, because his claim was for damages arising from conspiracy, which was tied to neither the value of his Shares in SML and ITC nor to any distributions from those Shares.

  89. [48] Prosetskii relied on Miao Weiguo v Tendcare Medical Group Holdings Pte Ltd [2022] 1 SLR 884 (“Miao Weiguo”), where the court defined the scope of the principle at [206], stating that:

  90. [49] Prosetskii submitted that there was an agreement between Baransky and his associates, SML, ITC and Courtwell, and in furtherance of that agreement, these conspirators had the intention to cause damage or injury to him by depriving him of and/or denuding his interest in the Vessel, held indirectly through his Shares in the Holding Companies, SML and ITC. The acts were unlawful as Prosetskii was the beneficial owner of the Vessel. Since Prosetskii suffered loss as the Vessel was transferred to Courtwell, the conspiracy claim was capable of serious argument.

  91. [50] Prosetskii further submitted that the risk of asset dissipation had already materialised. The Vessel was transferred to Courtwell through a sham arbitration, and the Vessel had been renamed. The flag state and ship management company were also changed multiple times prior to the conveyance to Courtwell. Prosetskii also averred that the arbitration was a sham as the timing of the arbitration and the transfer of the Vessel pursuant to the arbitration award were suspect.

  92. [51] Accordingly, Prosetskii sought a worldwide Mareva injunction on the basis that Courtwell had no assets in Singapore to satisfy the claims against it. His claim was for at least US$22.5m, representing 50% of the value of the Vessel and 45% of the Vessel’s 2024 earnings.

  93. [52] Additionally, a receivership order was required as there was a real risk that the Vessel would be used for carrying oil or oil products from Russia to a third country as a part of the Russian shadow fleet, which would attract sanctions from multiple countries. Prosetskii averred that sanctions had been imposed by the United Kingdom, European Union, Switzerland, Canada and Australia. Prosetskii submitted that the imposed sanctions would affect the profit generation of the Vessel. Further, it was unclear if the Vessel was insured and a marine incident could be destructive to the value of the Vessel.

  94. [53] Finally, Prosetskii maintained that he did not breach his duty to provide full and frank disclosure. He averred that material facts had been either expressly disclosed in SUM 3635 or in his first affidavit.

  95. Issues to be determined

  96. [54] Based on the parties’ arguments, the main issues to be decided at the setting aside application were primarily:

  97. (a) Whether Prosetskii had a good arguable case based on his having a beneficial interest in the Shares of ITC and SML, where both the legal and beneficial interest in the Vessel resided entirely with SML initially, and with ITC subsequently after SML transferred both the legal and beneficial interest in the Vessel to ITC, albeit without any evidence of payment of any valuable consideration by ITC to SML for such a transfer, or whether Prosetskii’s claim would be barred by the reflective loss principle as he was essentially claiming only an indirect interest in the Vessel through his holding of a beneficial interest in the Shares of SML and ITC, and if so, whether the exception in Giles v Rhind [2003] 1 Ch 618 (“Giles v Rhind”) could be invoked.

  98. (b) If the beneficial interest in the Vessel did not reside with SML or ITC in that they were merely front companies holding only the legal title to the Vessel on behalf of Prosetskii and some others, who together were the true beneficial owners of the Vessel, then whether Prosetskii would have a good arguable case as a direct beneficial owner of a part of the Vessel together with other individuals, including: (i) whether he had departed from his pleaded case at the ex parte stage by advancing a new case during the setting aside hearing (according to Courtwell, the “New Case”); and (ii) whether doing so amounted to a material non-disclosure.

  99. [55] If there was a good arguable case, I would have to decide:

  100. (a) Whether there was a real risk of dissipation; and

  101. (b) Whether the receivership order appointing receivers and the disclosure order ought to be discharged or varied.

  102. [56] To show a good arguable case, Prosetskii had to show that he had a case that was more than capable of serious argument. To make such a determination, the court must not try to resolve conflicts of evidence on affidavit or decide questions of law that called for detailed arguments: JTrust Asia Pte Ltd v Group Lease Holdings Pte Ltd [2018] 2 SLR 159 (“JTrust”) at [38], citing Bouvier, Yves Charles Edgar v Accent Delight International Ltd [2015] 5 SLR 558 (“Bouvier”) at [36].

  103. Prosetskii was barred by the reflective loss principle since Prosetskii’s interest was only an indirect interest in the Vessel through his shareholding in SML and ITC

  104. Reflective loss principle

  105. [57] The Singapore Court of Appeal in Miao Weiguo adopted the modern, narrower formulation of the reflective loss principle. The rule applied to claims by shareholders for diminutions in the value of their shareholding, or diminutions in distributions received as shareholders, where those losses resulted from actionable loss suffered by the company. It did not bar all claims by a shareholder in other capacities, but the shareholder would have to show a separate and distinct loss arising from an independent cause of action.

  106. [58] The Court of Appeal endorsed the majority holding in Marex Financial Ltd v Sevilleja (All Party Parliamentary Group on Fair Business Banking intervening) [2021] AC 39 (“Marex”) and held that the reflective loss principle as a rule of company law was grounded in the separate legal personality of the company and the proper plaintiff rule in Foss v Harbottle (1843) 2 Hare 461: at [115]–[116]. As a shareholder, one would not thereby gain direct control of the company, and would not be entitled to direct control of the company, but would be taken to submit to the constitution of the company and the rules relating to its decision-making processes, and would have only the rights provided for in those instruments with decision-making control over the business instead in the hands of the managers of the company: at [118]. Where a wrong was done to the company, the company would be the proper plaintiff. A shareholder could not sue personally merely because the company’s loss caused a fall in the value of the shareholder’s shares or a reduction in distributions. In such cases, the shareholder’s alleged loss would not be treated in law as separate and distinct from the company’s loss. The shareholder’s investment followed the fortunes of the company, including the losses caused by the wrongs done to the company: at [200].

  107. Exception in Giles v Rhind

  108. [59] In Giles v Rhind, the English Court of Appeal recognised an exception to the reflective loss principle. The underlying reflective loss rule prevented a shareholder from recovering loss that merely reflected the company’s loss, such as a diminution in the value of shares or lost dividend distributions. Ordinarily, the proper claimant would be the company.

  109. [60] The exception in Giles v Rhind was framed for a narrower situation: where the defendant, by the wrong complained of, had disabled the company from bringing the claim which it otherwise would have had: at [40]. In that situation, the shareholder might be allowed to sue for his own loss, even if the loss would otherwise look reflective.

  110. [61] The rationale behind this exception was one of fairness and coherence. If the wrongdoer’s conduct made the company unable to sue, it would be unjust to allow the wrongdoer to rely on the company’s right of action as a complete answer to the shareholder’s claim: at [31] and [79]. However, the exception was not triggered merely because the company was unwilling to sue, impecunious, insolvent, poorly managed, or controlled by persons who declined to bring proceedings. It required something stronger: that the wrongdoer had in fact caused the company’s inability to sue.

  111. [62] However, in Marex, the UK Supreme Court significantly narrowed the reflective loss principle. The majority held that the rule applied only to claims by shareholders for diminution in share value or distributions arising from actionable loss suffered by the company: at [79]. It rejected the broader extension of reflective loss to creditors and other non-shareholder claims: at [70], [74] and [89].

  112. [63] The majority in Marex rejected Giles v Rhind as a true exception to the reflective loss principle: at [89]. Lord Reed considered that once the reflective loss rule was correctly understood as a rule of company law, there was no room in principle for a discretionary exception based on the company’s inability to sue. If the shareholder’s claim was for a diminution in share value or loss of distributions caused by actionable loss to the company, it was barred. If the shareholder’s loss was separate and distinct, it was not barred. The question was therefore one of characterisation, not discretionary exception.

  113. [64] On that analysis, the fact that the company was disabled from suing did not convert the shareholder’s reflective loss into a recoverable personal loss. The shareholder’s proper remedies laid elsewhere: for example, through restoration of the company, insolvency processes, a derivative action, assignment of the company’s claim, or other corporate-law mechanisms. The majority viewed the Giles v Rhind exception as inconsistent with the principled basis of the rule.

  114. [65] Since Marex, the Giles v Rhind exception was no longer good law. In Breeze & Wilson v Chief Constable of Norfolk [2022] EWHC 942 (QB) at [51], the court strongly rejected the argument that the exception continued to exist having surveyed the cases that discussed the Giles v Rhine exception post Marex stating that “[i]n my determination Giles v Rhine is dead for all intents and purposes on any straightforward interpretation of Marex”.

  115. [66] In Singapore, although Miao Weiguo at [155] expressly left open the question of whether Giles v Rhind survived, the court expressed reservations about the exception, citing Lord Reed’s view that if the reflective loss principle was concerned with whether certain heads of loss were separate and distinct from the company’s loss, then the Giles v Rhind exception could not be maintained.

  116. [67] Even if the Giles v Rhind exception was applicable law in Singapore, on the facts it could be seen that Courtwell had not prevented or disabled SML or ITC from pursuing any action in respect of the loss suffered by SML or ITC such that it had become legally impossible for SML or ITC to have pursued action against Courtwell or for a third party like Prosetskii to bring a claim in the name of SML or ITC. Therefore, the Giles v Rhind exception could not be invoked.

  117. Application to the current case

  118. Prosetskii’s case

  119. [68] Prosetskii’s case rested on two overlapping but distinct bases. As a shareholder, he claimed that his beneficial interest in the Shares of ITC and SML was devalued and denuded through a series of acts by the defendants: the Vessel’s flag state and name and the Vessel’s management company were changed multiple times without his knowledge, and the Vessel was operated in a manner that attracted sanctions from several jurisdictions. He also confirmed that position by pleading that his interest in the Vessel was held indirectly through his beneficial interest in the Shares of SML and ITC, which owned the Vessel, and that Smirnov had, in a Trust Deed, covenanted to hold his Shares in SML and ITC on trust for and on his behalf. The arbitration proceedings which resulted in the Vessel’s transfer to Courtwell were a sham staged by Baransky and his associates, and the transfer was designed to defeat his rights over and interest in the Vessel and present him with a fait accompli to ensure that he would not be able to regain control over the Vessel. He sought, among other relief, the reconveyance of the Vessel by Courtwell back to ITC and an account of profits from Courtwell to ITC as constructive trustee and payment to ITC for any profit or benefit that Courtwell obtained from the Vessel’s use and operation (see also [43] above).

  120. [69] The other basis was for the breach of the terms of the Trust Deed by Smirnov and the assistance rendered to Smirnov by the other defendants in breaching that Trust Deed. In relation to this aspect of his claim, Prosetskii prayed for the reliefs set out above at [43(d)] to [43(g)].

  121. [70] Throughout the proceedings, however, Prosetskii’s position on the precise nature of his interest kept shifting. At the ex parte stage, he consistently framed his claim in terms of his 50% beneficial shareholding in ITC and SML, thereby implicitly acknowledging indirectly that the Vessel had been injected into the corporate structure by him, Baransky and Bykhovski in proportion to their respective contributions of their payment towards the purchase of the Vessel, with his Shares held through nominees. When pressed at the inter partes setting aside hearing on the reflective loss issue which would have barred the claim, Prosetskii shifted to rely on his personal oral agreement with Baransky and Bykhovski to purchase the Vessel with loans that he and Bykhovski personally had taken from Alvari SA to finance their personal purchase of the Vessel as the basis for his legal standing. Notably, Prosetskii himself admitted that in the prior application in OA 1311 against Smirnov, ITC and SML had already been dismissed by Kristy Tan J, who found that Prosetskii did not hold a proprietary interest in the Vessel.

  122. Decision

  123. [71] Preliminarily, a major part of the submissions at the setting aside hearing concerned whether there was a good arguable case based on the evidence available thus far on whether Prosetskii, together with Bykhovski, and Baransky, had personally made payments towards the purchase of the Vessel with borrowed monies, and more importantly, whether or not the Vessel after their purchase from HTI had been subsequently injected into SML as a capital contribution by them as founding shareholders of SML in February/March 2021 soon after their purchase of the Vessel from HTI.

  124. [72] On the question of a good arguable case, I found that Prosetskii had an arguable case, based on the Trust Deed between himself and Smirnov, that he was a 50% shareholder of SML and ITC, and Smirnov was a mere nominee and trustee of those Shares for Prosetskii.

  125. (1) Prosetskii is barred by the reflective loss principle

  126. [73] I further found that even if it was true (ie, taking Prosetskii’s case at its highest) that he had personally contributed monies, allegedly from a generous interest free shareholder loan purportedly granted to him by Alvari SA, a wholly owned subsidiary of the Elson Group of which Prosetskii was a 33% shareholder and a director, to pay for his personal purchase of 25% of the Vessel from HTI, the Vessel which was owned by them after their personal purchase had unarguably been subsequently injected into SML as a corporate asset. This was because, first, the manner in which the SOC had been drafted and certain statements made in Prosetskii’s affidavit alluded to the capital injection of the Vessel into SML, such that SML was not only the legal but also the beneficial owner of the Vessel. Second, the fact that Prosetskii, Baransky and Bykhovski (the then three shareholders of SML) held shares in SML in the same proportion as their respective personal contributions towards the purchase price of the Vessel further supported the unarguable fact of a capital injection of the Vessel into SML as a corporate asset. I found that after the capital injection of the Vessel into SML by these three shareholders, the Vessel had become an asset of SML and belonged to SML alone – it no longer belonged to these three shareholders after the capital injection. Accordingly, they could not continue to claim to own a personal beneficial interest in the Vessel merely as SML shareholders, having already injected their personal beneficial interest in the Vessel into SML as their capital contribution proportionate to their respective shareholding in SML.

  127. [74] Clearly, both the SML shareholders personally and SML as a separate corporate entity could not possibly claim to own the same whole beneficial interest in the Vessel at the same time. In other words, after the asset capital injection of the Vessel into SML by the SML shareholders, their beneficial interest in the Vessel passed to the company and they could no longer remain with the SML shareholders, although they might have had the beneficial interest in the Vessel prior to the asset capital injection.

  128. [75] It was therefore clear that as a mere shareholder of SML, Prosetskii had no more proprietary interest in the Vessel (after the capital injection of the Vessel into SML), no entitlement to the profits from its operations, and no managerial or decision-making authority over it. His influence over the company’s affairs would be limited to the exercise of his voting rights as a shareholder at a general meeting.

  129. [76] Following the capital injection of the Vessel into SML, everything within SML (including the operations of the Vessel) operated smoothly for a few years from February 2021 to February/March 2024, and there was no complaint from Prosetskii as a shareholder of SML (whether in respect of SML’s affairs generally or his share of dividends arising from the Vessel’s operations) until after ITC was formed. As I understood it, the legal and beneficial interest in the Vessel together with its registration was simply transferred from SML to ITC without any consideration being paid to SML. As the shareholders of SML and ITC were the same and their shareholdings were in the same proportion, this was not an arms-length transaction in relation to the Vessel’s transfer from SML to ITC. Thereafter, and following the Trust Deed, Prosetskii as the true beneficial shareholder of ITC (with his ITC shares being held by his nominee and trustee, Smirnov) was denied his share of dividends arising from profits from the Vessel’s operations by ITC and lost any visibility into the Vessel’s operations. Some months later, ITC’s legal and beneficial interest in the Vessel, together with its registration, was next transferred to Courtwell pursuant to an arbitral award following allegedly sham arbitration proceedings. It would appear that Prosetskii was not concerned with the transfer of the whole legal and beneficial interest in the Vessel and the Vessel’s registration from SML to ITC, because his shareholdings in SML and ITC were in the same proportion of 50%. Whether the legal and beneficial interest in the Vessel and the registration of ownership of the Vessel vested in SML or in ITC made no difference to him. But whether that substantive transfer of the legal and beneficial interest in the Vessel from SML to ITC without any valuable consideration paid by ITC to SML was itself proper from the point of view of corporate governance between the two supposedly separate and distinct entities would be a separate question.

  130. [77] If there was any conspiracy by the defendants which had resulted in ITC being stripped of the profits from the Vessel’s operations, or worse, where the entire Vessel as a corporate asset had been wrongfully removed from ITC by an illegitimate transfer to Courtwell through a sham arbitration, all such losses were in truth the corporate losses of ITC. Under the reflective loss principle, the proper party with the legal standing to sue the conspirators responsible for these corporate losses was ITC itself. It was not for the shareholders of ITC (or, for that matter, the shareholders of SML) to do so. Accordingly, any loss arising from the alleged wrongful transfer of the legal and beneficial interest in the Vessel out from ITC (ie, after the initial capital injection of the Vessel into SML and the subsequent transfer of the Vessel from SML to ITC) to any other corporate entities was a loss suffered by ITC, and not by Prosetskii personally or by any other ITC shareholder personally. The loss claimed by Prosetskii as a shareholder, characterised as a devaluation and denudation in the value of his Shares in SML and ITC, was in other words a reflected loss.

  131. [78] Prosetskii’s proper recourse, if any, would perhaps lie in a derivative action, such as under s 216A of the Companies Act, to bring an action under ITC to challenge the validity of Courtwell’s claim against ITC, the arbitral proceedings, and the arbitral award that followed. I therefore found that Prosetskii’s claims, whether advanced as a 50% shareholder of SML (which originally held both the legal and beneficial interest in the Vessel) or as a 50% shareholder of ITC (which subsequently held both the legal and beneficial interest in the Vessel) were barred by the reflective loss principle.

  132. [79] One of the reliefs sought was for an order that Courtwell account to ITC as constructive trustee and pay to ITC any profit or benefit that Courtwell obtained from the Vessel’s use and operation. This relief merely reflected losses suffered by ITC as a company. If the other defendants had conspired with Courtwell to cause these losses, that too would be a conspiracy causing loss to ITC as a company. Prosetskii as a shareholder of ITC did not have the locus standi to claim personally for those losses suffered by ITC as a company, as he would be barred by the reflective loss principle from doing so.

  133. [80] Another relief sought by Prosetskii was a conveyance of the Vessel by Courtwell back to ITC on the basis that Courtwell was a knowing recipient. The relief sought, ie, that of a conveyance of the Vessel back to ITC, was itself a recognition by Prosetskii in the statement of claim that the Vessel was wholly an asset of ITC, and not a personal asset of Prosetskii and Baransky. Since this relief indicated that the loss of the Vessel (whether caused by Courtwell alone or by Courtwell in conspiracy with the other defendants) was one suffered by ITC as a company and not by its shareholders personally, Prosetskii as a shareholder of ITC would similarly be barred by the reflective loss principle from claiming this relief, which properly should be claimed by ITC.

  134. [81] I concluded that even if Prosetskii might have an arguable case that the defendants had conspired against him, the two reliefs sought in his SOC as described above would have merely reflected overall losses suffered by ITC as a company. Prosetskii’s quantification of damages, being the value of the Vessel and a share of the profits from the Vessel’s operations on his own reliefs, were losses suffered by the company of which Prosetskii was a shareholder. Accordingly, he had no proprietary interest in the Vessel itself nor the profits from the Vessel’s operations. As these losses represented a diminution in the value of his Shares (through the company’s loss of the Vessel and the loss of profits from the Vessel’s operations), his claim would necessarily be barred by the reflective loss principle as it merely mirrored the company’s loss.

  135. (2) Giles v Rhind exception would not be engaged

  136. [82] I turn next to consider the application of the Giles v Rhind exception. The Court of Appeal in Miao Weiguo, having left open the question whether Giles v Rhind remained good law (see [66] above), might in principle be sufficient to establish a good arguable case for Prosetskii, provided of course that he could bring his case within the factual circumstances that would enable the Giles v Rhind exception to be considered. However, I noted that the Court of Appeal’s observations suggested that it would in any event have been inclined to reject the exception: having accepted that the reflective loss principle was concerned with whether the loss suffered by the shareholder was distinct and separate from that of the company, the court expressed that there was “great force” in Lord Reed’s view that an exception premised on the circumstances of the company could not be sustained: at [155].

  137. Prosetskii had no beneficial interest in the Vessel directly

  138. [84] At the setting aside hearing, Prosetskii sought to rely also on the fact that he retained beneficial ownership of the Vessel because the title to the Vessel had merely been “parked” with SML and then ITC. I shall refer to this as the “New Case”, as characterised by Courtwell. Courtwell submitted that the New Case had not been pleaded and Prosetskii was relying on the New Case so that his claim was not barred by the reflective loss principle.

  139. [85] If Prosetskii was running the New Case as an alternative case, then the problem was that he could not simultaneously assert that the beneficial interest of the Vessel remained with him personally and that it was also vested in SML or ITC. Which would be the true fact? That would depend on whether the Vessel had or had not been injected as a corporate asset into SML in 2021 by the shareholders of SML, after they purchased the Vessel from HTI using monies they allegedly had borrowed.

  140. Amendment of pleadings

  141. [86] As a preliminary matter, I address whether a claimant should be allowed to advance a factual case materially different from his pleadings. The court in V Nithia (co-administratrix of the estate of Ponnusamy Sivapakiam, deceased) v Buthmanaban s/o Vaithilingam [2015] 5 SLR 1422 stated that the function of pleadings was to define the issues in dispute and to give fair notice to the opposing party of the case to be met and that it was important for parties to stick to the pleadings to uphold the rules of natural justice: at [34]–[37]. The court’s power to decide issues was constrained by the way in which parties had framed their case within the pleadings.

  142. [87] The New Case was raised by counsel for Prosetskii on the first day of the setting aside hearing. Even if Prosetskii submitted that his pleadings could be read broadly to encompass the New Case in addition to his original case, it would still be inconsistent with certain positions taken by him at different points of time in earlier proceedings. In this case, although the New Case was explicitly made clear at the setting aside hearing by Prosetskii’s counsel at the first day of the setting aside hearing, Courtwell’s response was heard almost a month later, allowing Courtwell to address not only the New Case relied upon by Prosetskii but also argue, with detailed reference to the pleadings, that Prosetskii should not be allowed to rely on a case that was inconsistent with his pleadings.

  143. [88] I found that although Courtwell had the opportunity to reply, the New Case had not been pleaded clearly in the first place and directly conflicted Prosetskii’s original position in both OA 1311 and OC 1031. The fact remained that the New Case had not been set out clearly in the SOC. The only fact pleaded in the SOC and averred in the affidavits of Prosetskii to indicate the plausible existence of the New Case in the SOC was the explicit mention of the fact in the pleadings and affidavits that Prosetskii and Bykhovski had personally taken shareholder loans from Alvari SA to pay for the purchase of 50% of the Vessel from HTI, and that the title to the Vessel was subsequently registered under SML after their purchase, with nothing expressly mentioned in the pleadings or affidavits about whether the shareholders had or had not subsequently injected the Vessel into SML as a corporate asset after the incorporation of SML.

  144. [89] In reliance on (a) there being no injection of the Vessel as a corporate asset into SML by the then shareholders and (b) a factual allegation that SML and subsequently ITC remained as mere holding companies essentially holding a bare legal title to the Vessel as a front for the three individuals, namely Prosetskii, Bykhovski and Baransky, the New Case needed to be more clearly fleshed out. It introduced a different factual substratum and a legally distinct cause of action, which was very different from what Courtwell had understood from a plain reading of the SOC including the pleaded reliefs as a whole, which indicated that SML/ITC owned the entire legal and beneficial interest in the Vessel after SML/ITC were respectively registered as owner of the Vessel following the purchase of the Vessel from HTI.

  145. [90] Even if the New Case arose from the court’s questions about the effect and legal consequences of personal shareholder loans purportedly taken by Prosetskii to buy part of the Vessel for himself (which, if true, would arguably avoid the reflective loss principle because only the legal interest, but not the beneficial interest, in the Vessel was being held by the various corporate entities such as SML and ITC), provided that there had been no subsequent capital injection of the Vessel into SML by the then shareholders of SML, perhaps the proper process would have been for Prosetskii to apply to amend his pleadings to clearly and coherently advance his New Case. Therefore, as no amendment was applied for, the court had to proceed on the case as pleaded, and not on the basis of the New Case, which did not appear to have been plainly and unambiguously pleaded before the court, and I agreed with Courtwell’s submissions that the court should not decide on the basis of the New Case.

  146. The New Case is not sustainable

  147. [91] During the setting aside hearing, counsel for Prosetskii sought to impress on the court how the pleadings as drafted could be read to support this New Case, that Prosetskii retained beneficial interest in the Vessel. Prosetskii argued that his pleadings could sustain the New Case on the sole basis that in his SOC, the agreement was for Baransky, Bykhovski and himself to purchase the Vessel for themselves and “park” it under SML, which would hold only the legal title to the Vessel. As the title was merely parked with SML, beneficial interest was retained by those who had made payment for the Vessel (ie, Baransky, Bykhovski and himself), and therefore his pleadings could sustain his claim that he had a proprietary interest in the Vessel.

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