Symphony Ventures Pte Ltd v DNB Bank ASA, Singapore Branch
| Jurisdiction | England & Wales |
| Judge | Belinda Ang Saw Ean JAD,Woo Bih Li JAD |
| Judgment Date | 01 November 2021 |
| Court | High Court |
| Docket Number | Civil Appeal No 40 of 2021 |
[2021] SGHC(A) 16
Belinda Ang Saw Ean JAD and Woo Bih Li JAD
Civil Appeal No 40 of 2021
Appellate Division of the High Court
Civil Procedure — Pleadings — Amendment — Application to add new factual allegations and claims to pleadings — Limitation period expired — Whether new claim for expectation loss legally unsustainable — Whether amendment should be allowed
Held, dismissing the appeal:
(1) The court's discretion under O 20 r 5(1) of the Rules of Court (2014 Rev Ed) to allow a plaintiff to amend his pleading at any stage of the proceedings was subject to O 20 r 5(2) and O 20 r 5(5). The effect of these provisions was that, where an application for leave to amend the pleadings had been made after the expiry of any relevant period of limitation current at the date of issue of the writ, leave to amend could only be granted if the amendment added or substituted a new cause of action which arose out of the same facts or substantially the same facts as a cause of action in respect of which relief had already been claimed by the applicant, and the court thought it just to grant leave: at [3] and [4].
(2) At the present stage of the proceedings, there was no reason to disagree with the judge that any new cause of action introduced by the amendments would have been time-barred by the time the application for leave to amend the pleadings had been brought: at [7] and [8].
(3) The Fourth Amendment introduced a new cause of action because it claimed that the respondent had conspired with related entities of Dag who were not even parties to the original conspiracy claim. This was different from an allegation that the related entities were used by Dag to implement the conspiracy: at [10] and [11].
(4) The unjust enrichment claim introduced by the Third Amendment was not a reasonable cause of action in so far as it was based on a failure of consideration, because there was no contract between the parties, the respondent did not receive payment of its fees from the appellant and the loan agreement had been carried out. In so far as the unjust enrichment claim was based on the breach of a Quistclose trust, this was a separate matter and the allegation that the loan agreement was illegal was a new material allegation which had not been originally pleaded: at [13] to [16].
(5) The First and Second Amendments introduced new causes of action which were based on new material allegations which had not been pleaded, namely, the respondent's alleged representation that it would arrange the “end” or “take out” financing of the purchase of the oil rig, the respondent's duty to supervise the use of the loan proceeds and the refundability of the proceeds of the loan agreement if the loan agreement did not go through: at [17] to [21].
(6) The additional $3m claim was a new cause of action based on new material allegations and ought to be rejected. In any case, this claim was legally unsustainable as it was a claim for loss of profit in respect of the loan agreement which the appellant said it would have been avoided but for the respondent's negligent representations: at [23].
(7) The entire appeal was therefore dismissed with costs: at [24] and [25].
East v Maurer [1991] 1 WLR 461 (distd)
In December 2013, the respondent arranged a loan agreement to provide financing for the deposit payable in respect of the purchase of an oil rig. The parties to the loan agreement were the appellant and Traxiar Drilling Partners II Pte Ltd, a company controlled by one Mr Dag Dvergsten (“Dag”). The respondent earned a fee for its services. The appellant subsequently sued the respondent, alleging that it had engaged in a conspiracy through its employee, one Mr Andreas Aamodt Kilde (“Kilde”) with Dag and others to defraud it of moneys disbursed under the loan agreement. In October 2020, the appellant applied to extensively amend its statement of claim. The judge below had allowed some of the amendments but rejected several amendments which fell into four categories of...
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...The outcome was upheld on appeal to the Appellate Division of the High Court: Symphony Ventures Pte Ltd v DNB Bank ASA, Singapore Branch [2022] 1 SLR 498 at [16]. 25 [2021] SGHC 268. 26 Lyu Jun v Wei Ho-Hung [2021] SGHC 268 at [1]. 27 Lyu Jun v Wei Ho-Hung [2021] SGHC 268 at [62]–[66]. 28 L......