TAN TSE HAW v PEH TIAN SWEE & Anor

Facts

Mr Tan Tse Haw, a former employee and former director of Vfix Auto Private Limited (VAPL), sued its sole director and shareholder, Mr Peh Tian Swee, and VAPL in HC/OC 158/2024 for minority oppression after his employment was terminated on 10 July 2023. Mr Peh denied oppression and counterclaimed, alleging that Mr Tan had poached VAPL's staff and diverted its business to SG Truck Automotive Private Limited (STAPL), a company Mr Peh said Mr Tan set up around 20 March 2023, so that VAPL had lost its whole substratum.

On 16 October 2024 an assistant registrar ordered Mr Tan to produce two categories of documents: any letters STAPL issued to former VAPL employees to engage them, and quotations, job orders, invoices and statements of account STAPL issued to former VAPL customers and debtors from March 2023 to end-2023. Mr Tan appealed, then withdrew the appeal at the hearing and was directed to produce by 6 January 2025. He missed that date, later said he had no responsive letters, and offered a compiled sales list instead of the underlying records. Only on 3 February 2025, shortly before this application was due, did he produce invoices and statements from May 2023 onwards. Mr Peh applied by Summons No 299 of 2025 for an unless order striking out Mr Tan's claim and defence to counterclaim and entering judgment on the counterclaim if he did not comply.

Issues

1. Whether there was evidence that the engagement letters had been suppressed despite the claim that STAPL issued none.
2. Whether the job orders covered by the production order included the job cards referred to in STAPL's invoices.
3. Whether an unless order should be made, and if so whether striking out was a proportionate sanction.

Holding

The Assistant Registrar granted the application. Mr Tan was ordered to comply with the production order within 21 days, failing which his Statement of Claim and Reply and Defence to Counterclaim would be struck out and judgment entered against him on Mr Peh's counterclaim. Costs were fixed at $6,200 (all-in), payable by Mr Tan.

Reasoning

The court explained that an unless order serves two purposes: to stop a defaulting party from unfairly hampering the other side's case, and to protect the integrity of the justice system. Its sanction must not be a disproportionate response to the default. The weight given to the second purpose depends on whether the default is merely technical or persistent and contumelious, judged partly by whether reasonable positive efforts were made to comply.

The documents were central to the pleaded poaching and diversion case. The claim that the two Malaysian workers STAPL hired were engaged only orally was raised for the first time after the appeal was withdrawn. The court found it implausible that they would work for over a year on such bare terms, and counsel conceded there was no explanation on the record.

On the job cards, evidence from STAPL's own director, Mr Tan's wife, showed they were attached to invoices and sent to customers. That contradicted the claim that they were purely internal documents. The court found that Mr Tan would have understood job orders to mean these records. Quotations and invoices from March and April 2023, while he was still at VAPL, were also missing.

Mr Tan had about five months but showed little effort beyond one software search, shifted his position on whether documents existed, and acted only under threat of sanction. This was persistent disregard of his obligations. The court gave him 21 days, not the seven sought, as a final chance. It rejected an adverse inference as the alternative sanction because only the trial or appellate court can draw one.

From the judgment