Ever Strategy Consultants Limited v PSA International Pte. Ltd. & 11 Ors

Facts

Ever Strategy Consultants Limited (Ever Strategy), a British Virgin Islands investment company represented by Mr Chang George, held an indirect interest of 10% in PSA Panama International Terminal S.A. (PPITSA), the company running a container terminal project in Panama. Half of that interest came through shares in Balboa Hospitality Services Ltd, a vehicle linked to Mr Guillermo Liberman, and half through shares in PSA Panama Pte. Ltd. held for it by PSA Americas under a 2011 Consultancy Agreement. When a second phase of the terminal needed fresh capital, Ever Strategy was invited to contribute funds but did not. New share issues in December 2015 and a 2017 restructuring that brought in another terminal operator diluted its indirect holding to a little over 1% through each route.

In Originating Claim No 34 of 2024 Ever Strategy sued twelve defendants, including PSA group companies, two directors, PPITSA, Mr Liberman and his companies. Its case rested on an alleged oral Collateral Agreement made in March 2011 that its prior consent was required for any change in the shareholding structure. On that footing it pleaded breach of contract, inducement of breach, breach of fiduciary duty, dishonest assistance and conspiracy by unlawful means. The defendants applied to strike out the claims. An Assistant Registrar dismissed the applications and allowed an amended statement of claim. The defendants appealed to a High Court judge in Registrar's Appeals Nos 191, 192 and 193 of 2025.

Issues

1. Whether Ever Strategy's claim that the Collateral Agreement existed was factually sustainable.
2. Whether the claims based on the first dilution in December 2015 were time-barred.
3. Whether the claims for conspiracy to injure by unlawful means were factually and legally sustainable.

Holding

Chua Lee Ming J allowed all three appeals, set aside the Assistant Registrar's orders and struck out Ever Strategy's claims against all the defendants. Costs were ordered against Ever Strategy for both the striking-out applications and the appeals, with disbursements to be fixed if not agreed. Ever Strategy has appealed.

Reasoning

The judge found that the contemporaneous documents showed the Collateral Agreement to be a fiction. The Consultancy Agreement, signed a few months after the alleged oral deal, gave Ever Strategy only a right to dividends from its PSA Panama shares, no say in management and no right to further allotments, so its indirect interest could plainly be diluted without its consent. Balboa's constitution offered no protection either. Over almost three years of correspondence about dilution and funding, Mr Chang never once invoked the alleged agreement; he complained instead about cost, lack of information, the absence of a capital call and whether the second phase was a separate project. Those complaints made no sense if a right to veto dilution existed. The shareholders' agreement also allowed a non-funding shareholder to be diluted, which made the alleged arrangement commercially implausible. An October 2013 email asserting that Ever Strategy's consent was needed carried little weight against that body of evidence. Although the later Panamanian criminal complaint was equivocal, it did not save the claim. Lipkin International Ltd v Swiber Holdings Ltd [2015] 5 SLR 962 did not help Ever Strategy because, as there, the silence in correspondence sat alongside other difficulties.

On limitation, the action began on 18 January 2024, more than six years after the first dilution. The judge rejected the argument of a continuing breach. A term requiring consent before any change imposed an obligation to do a definite act, not a continuing duty to preserve the structure. No such duty could be implied: it was not necessary for business efficacy, and PSA Panama and Balboa would never have agreed to keep funding Ever Strategy's stake while their own holdings were being diluted.

On conspiracy, only three of the pleaded unlawful means did not depend on the Collateral Agreement. Applying EFT Holdings, Inc v Marinteknic Shipbuilders (S) Pte Ltd [2014] 1 SLR 860, a claimant must show a combination and concerted action under it. The pleading merely referred back to a broad sweep of earlier paragraphs, so it was impossible to tell how the alleged combination was formed. Bank of China Ltd, Singapore Branch v BP Singapore Pte Ltd [2021] 5 SLR 738 was distinguished because the pleadings there told the defendant what case it had to meet.

From the judgment