Horizon Capital Fund v Ollech David

Horizon Capital Fund lent US$1,500,000 to Lemarc Agromond Pte Ltd (LAPL) under a facility agreement of 24 May 2022, governed by Swiss law, repayable with interest by 31 July 2022. The defendant, Ollech David, personally guaranteed the debt; his father, Daniel, gave a similar guarantee. LAPL did not repay, the defendant ignored two demands, and the claimant sued him in HC/OC 416/2022.

His only defence relied on a letter of 16 December 2022 from an LAPL director, Mr Chow, who said he had been informed that the claimant had breached a 2020 memorandum of understanding by unreasonably withholding trade financing, that LAPL was owed US$4.5m, and that LAPL would set this off against its debt. Daniel later sued the claimant on the same theory in HC/OC 55/2023, which the defendant joined. An Assistant Registrar refused to stay OC 416 and granted summary judgment. The defendant appealed (HC/RA 71/2023 and HC/RA 70/2023) and applied in HC/SUM 1161/2023 to admit new WhatsApp evidence.

1. Whether the new WhatsApp evidence should be admitted on appeal under the Ladd v Marshall requirements
2. Whether OC 416 should be stayed pending the determination of OC 55 under O 9 r 11 of the Rules of Court 2021
3. Whether the defendant had shown a bona fide defence to resist summary judgment on the guarantee
4. Whether the presumption that Swiss law is similar to Singapore law could be relied on at the summary judgment stage

On the new evidence, applying the Ladd v Marshall criteria flexibly, as described in Anan Group (Singapore) Pte Ltd v VTB Bank (Public Joint Stock Co) [2019] 2 SLR 341, the messages lacked relevance: they ended in March 2021, so said nothing about the one refusal alleged, on 18 November 2021, and tended to confirm the claimant's formal process for financing requests. They also did not appear credible, being typed-out, cut-off extracts.

On the stay, the court treated the appeal as one for a stay, not consolidation, and confirmed that the principles under O 4 r 1(1) of the 2014 Rules apply to O 9 r 11. Although both actions turned on the same alleged breach, a stay would not save costs, time and effort: OC 416 was well ahead of OC 55, which had not been served, and if OC 55 failed the parties would face two sets of proceedings. A stay was also unnecessary and would hold up the claimant's claim indefinitely.

On summary judgment, the claimant had a prima facie case and the defendant accepted he would be liable if LAPL was. His defence depended on proving a breach of the memorandum, yet Mr Chow filed no affidavit, his source was unclear, the complaint appeared only days before the Defence was due, and no particulars were given. That was a bare assertion, not a bona fide defence.

On Swiss law, the judge observed that, had there been a bona fide defence and had the point been pleaded, it would have been premature to presume Swiss law matched Singapore law on whether set-off was excluded, citing National Shipping Corp v Arab [1971] 2 Lloyd's Rep 363. It did not affect the result.

Goh Yihan JC dismissed the application in SUM 1161 to admit new evidence and dismissed both appeals, RA 71 on the stay and RA 70 on summary judgment, so the Assistant Registrar's summary judgment for the claimant stood. Unless the parties agreed costs, they were to file brief costs submissions.