Cosmetic Care Asia Limited and others v Sri Linarti Sasmito and others

Five related companies in the Cosmetic Care group sued Ms Sri Linarti Sasmito and three Indonesian companies (the PT Entities) in Suit No 358 of 2022. The parties had earlier fought proceedings in Indonesia and Singapore, including Suit 617 in Singapore and a police report the 1st Plaintiff lodged in Jakarta. They settled those disputes by a settlement agreement dated 20 August 2021. The Defendants were to pay a Settlement Sum of IDR 2,188,000,000 by an initial instalment and then monthly instalments of IDR 132,000,000. The Plaintiffs were to discontinue Suit 617 and to withdraw the police report and take "all necessary steps" to have the Jakarta police issue an order to stop the investigation (the SP3). Clause A(1)(7) let the Plaintiffs sue for IDR 8,221,181,489, less sums paid, if a payment was not made within 7 days of falling due. Clause A(1)(8) excused the monthly payments if the Plaintiffs failed in their own obligations.

The Plaintiffs said the September 2021 instalment was paid late on 14 October 2021 and that nothing was paid from November 2021 onwards, which was undisputed. They claimed the Default Sum. The Defendants said they were entitled to stop paying because the Plaintiffs had breached their SP3 obligations, chiefly because the 1st Plaintiff's director, Ms Quek, did not attend a police interview on 17 November 2021. The Defendants applied under O 18 r 19(1) of the Rules of Court 2014 (Summons No 482 of 2023) to strike out the whole action. The application was heard by an Assistant Registrar.

1. Whether the Plaintiffs' pleadings disclosed a reasonable cause of action for breach of the settlement agreement
2. Whether the Defendants could rely on an unpleaded defence of waiver by election to strike out the claim
3. Whether the claim was legally or factually unsustainable because the Plaintiffs were already in breach of their SP3 obligations in November 2021
4. Whether the action was an abuse of the court's process

On the first limb, only the pleadings could be considered and the pleaded facts were presumed true. The Plaintiffs had pleaded a complete claim for breach of contract: instalments due on set dates, one paid after the 7-day period and another never paid, triggering Clause A(1)(7). That the Defendants pleaded a contrary position did not make the claim defective. The Assistant Registrar noted that the Defendants' written submissions had relied on affidavit evidence without regard to the different limbs.

The waiver defence, which concerned only the September instalment, had not been pleaded at all. Drawing on Olivine Capital Pte Ltd and another v Chia Chin Yan and another matter [2014] 2 SLR 1371 and V Nithia, the Assistant Registrar held that a defendant should not be able to strike out a claim on a defence absent from its pleadings, since the plaintiff has had no fair notice of it. The court did see some force in the argument that the right to keep receiving instalments and the right to sue for the Default Sum were mutually exclusive, but declined to strike out on an unpleaded basis. In any event the claim would survive on the November instalment.

On the SP3 obligations, the court found the Plaintiffs' reading of "all necessary steps" as akin to a best or reasonable endeavours obligation to be plausible, citing Lim Sze Eng v Lin Choo Mee [2019] 1 SLR 414. There was no admission that Ms Quek had to attend in person on 17 November 2021. The Plaintiffs said she could not travel because of COVID-19 restrictions and medical advice, and that their lawyers sent a letter with her notarised statement. Whether those steps were enough was a matter for trial. Since this was the Defendants' only defence to the November non-payment, the claim was not frivolous or vexatious.

Nothing suggested the suit was brought to vex or oppress, so there was no abuse of process. The Plaintiffs' fresh, unpleaded allegation that the Defendants failed to discontinue the Indonesian proceedings was also disregarded.

The Assistant Registrar dismissed the striking out application in its entirety, finding that the Defendants had not established any of the grounds for striking out. Costs were to be heard at a later date.