AFFERT RESOURCES PTE. LTD. (IN COURT COMPULSORY WINDING UP) v INDUSTRIES CHIMIQUES DU SENEGAL & Anor

Facts

Affert Resources Pte Ltd, now in compulsory liquidation, sold sulphur to Industries Chimiques du Senegal (ICS) under six contracts, leaving US$17,007,263.60 unpaid. When Indorama Holdings BV (IHBV) bought a majority stake in ICS in 2014, the deal provided for related-party debts to be settled, and Affert wrote to ICS confirming it would not claim the sum shown as due. In HC/OS 544/2019, Affert seeks to set aside that confirmation as a transaction at an undervalue. After the Court of Appeal held in other proceedings that Affert's debt claim was governed by Senegalese law and time-barred, it amended the application to join IHBV and seek payment orders against both.

The respondents filed a Senegalese law expert's opinion on the time-bar in October 2022. In August 2023 Affert was directed to file its further affidavits by 28 August 2023, then said it would file an expert affidavit. It missed that date and extended deadlines of 14 and 20 September, the latter described by the assistant registrar as final. On the night of 20 September it filed instead an affidavit by its liquidator exhibiting five French judgments with Google Translate versions. The assistant registrar struck out that affidavit, gave a last extension to 25 September and ordered costs of $1,500. Affert appealed in Registrar's Appeal No 201 of 2023, filed shortly before that deadline expired.

Issues

1. What principles govern an extension of time in interlocutory matters, and whether prejudice that cannot be compensated by costs is the main test.
2. Whether Affert should be given more time to file its expert affidavit on Senegalese law.
3. Whether the liquidator's affidavit exhibiting untranslated foreign judgments was rightly struck out.

Holding

Goh Yihan J allowed the appeal in part and dismissed it in part. He granted a final extension to 7 October 2023 to file the expert affidavit, on Affert's undertaking to give the respondents the final unnotarised version by 5 October 2023. He dismissed the appeal against the striking out of the liquidator's affidavit, left the costs order below undisturbed, and awarded the respondents $5,000 all-in.

Reasoning

The judge said the phrase prejudice that cannot be compensated by costs should not be bandied about, since with imagination almost anything can be compensated by costs. Drawing on The Tokai Maru [1998] 2 SLR(R) 646, Mortgage Corporation and Sun Jin Engineering Pte Ltd v Hwang Jae Woo [2011] 2 SLR 196, he held that the court must balance a party's interest in a decision on the merits, the other side's interest in expedition and the court's interest in the due administration of civil justice, looking at the length of and reasons for delay, the merits and the prejudice.

Affert had breached four court deadlines without good reason, made its requests at the last minute or late, apparently missed even its own proposed date, and offered reasons such as time differences that did not explain anything. With hearing dates fixed for November 2023, the respondents, who had complied throughout, would have less time to reply. These factors almost outweighed Affert's interest. But without an expert affidavit the respondents' evidence on the time-bar would go unrebutted, and the prejudice could be met practically by giving more time and refixing a short hearing. The judge warned that a pattern of disregard could bring harsher consequences.

The liquidator's affidavit was filed without leave, since only an expert affidavit was permitted, and he was not an expert. Foreign-language documents also need a proper certified or verified translation, not a machine translation.

From the judgment