Ever Strategy Consultants Limited v Corporación Crambo, S.A. and others

Ever Strategy Consultants Limited (ES), controlled by Mr George Chang, held an indirect 10% interest in PSA Panama International Terminal, S.A. (PPITSA), the Panamanian company that developed a port container terminal: 5% through Balboa Hospitality Services Ltd, the vehicle for Mr Guillermo Liberman's interest, and 5% through shares in PSA Panama held by a nominee under a 2011 consultancy agreement. Share issues to fund Phase 2 of the project in December 2015 and around April 2018 diluted that interest.

ES alleged an oral collateral agreement made in the second half of March 2011 between Mr Chang, the then chief executive of PSA International and Mr Liberman, under which ES's prior consent was needed for any change to the shareholding structure. On 18 January 2024 it sued twelve defendants in Originating Claim No 34 of 2024, including PSA group companies and two directors, PPITSA, and the Liberman companies and individuals, for breach of that agreement, inducement, breach of fiduciary duty, dishonest assistance and unlawful means conspiracy. An assistant registrar refused to strike out the claim, but a High Court judge allowed the defendants' appeals and struck out the action. ES appealed in Civil Appeal Nos 8, 9 and 10 of 2026.

1. Whether a claim may be struck out as factually unsustainable without proof that it is factually impossible
2. Whether the claim based on the alleged collateral agreement was factually unsustainable
3. Whether the fiduciary duty, dishonest assistance and conspiracy claims should also be struck out
4. Whether claims based on the 2015 dilution were time-barred

The court held that the test under O 9 r 16(1)(c) of the Rules of Court 2021 is factual unsustainability as described in The Bunga Melati 5 [2012] 4 SLR 546, not factual impossibility. Without holding a mini-trial or preferring one account, a court may carefully examine the objective documents to see if a claim is fanciful.

The documents contradicted the alleged agreement. Months later ES signed a consultancy agreement giving it only a right to dividends and no further allotment. In 2014 emails PSA told Mr Chang his stake would fall unless ES contributed capital. Throughout the 2016 and 2017 correspondence, including a letter to PSA's chairman, ES complained only of the lack of a formal capital call and never mentioned the agreement, nor said it would have contributed capital. A minority veto over capital raising also defied commercial sense. The absence of an affidavit from the former PSA chief executive was one factor only. The court concluded the agreement was a fiction.

The fiduciary claim rested on that agreement and in any event arose from an arm's length commercial venture, so the fiduciary and dishonest assistance claims failed. The conspiracy claim failed where it relied on the agreement or fiduciary duties, and the security arrangement allegations did not plead who combined or what loss followed. On limitation, an obligation to seek consent was breached once, in December 2015; continuing dilution was continuing damage, not a continuing breach, following IPP Financial Advisers Pte Ltd v Saimee bin Jumaat [2020] 2 SLR 272, and no fresh loss within six years was pleaded.

The Appellate Division dismissed the appeals in their entirety, leaving the striking out and the judge's costs orders undisturbed. ES was ordered to pay appeal costs of $30,000 all-in each to the Liberman defendants and the PSA defendants and $20,000 all-in to PPITSA, and costs of the action of $18,000, $18,000 and $16,000 all-in respectively.