Lim Siew Fern v Tan Beng Yong and others

Mdm Lim Siew Fern held 45,000 shares in Agile Accomm Pte Ltd (Agile) as nominee for Seaquest Enterprise Pte Ltd. In Suit No 170 of 2014 she won a minority oppression claim against Agile's directors, Mr Tan Beng Yong and his wife Mdm Ho Shen Shen. The court ordered on 3 December 2015 that she be bought out at a fair value fixed by an independent valuer, and the parties engaged KPMG Services Pte Ltd.

On her application, Kannan Ramesh J ordered on 13 February 2020 that KPMG review whether related party transactions of $4,957,891 between Agile and Exquisite Accomm Pte Ltd, owned by the two defendants, were at arm's length. Information Agile gave KPMG was not to be disclosed to her without a court direction. Server and document losses in 2020 hampered the review. KPMG identified four relevant invoices, could analyse only one, and in its final report of 26 June 2023 found some evidence that some transactions were not at arm's length. It declined her suggestion to contact three overseas suppliers. In Summons No 2036 of 2023 she sought disclosure of the four invoices so she could comment and KPMG could issue a supplementary report.

1. Whether the court had a basis to intervene in the work of an independent valuer appointed under a buyout order made under s 216(2) of the Companies Act
2. Whether KPMG had made a manifest error or acted outside its terms of reference in declining to pursue the plaintiff's suggested inquiries
3. Whether the four invoices should be disclosed to the plaintiff for her comments and a supplementary report

The judge held that the court's power to intervene came from s 216(2) of the Companies Act, as confirmed in Feen, Bjornar and others v Viking Engineering Pte Ltd and another appeal and another matter [2021] 1 SLR 497. Where a buyout valuation is not final and binding and the valuer is appointed by consent, expert determination principles apply by analogy. Under The Oriental Insurance Co Ltd v Reliance National Asia Re Pte Ltd [2009] 2 SLR(R) 385, short of fraud or the like, the court intervenes only for a material departure from instructions or a manifest error. Ngee Ann Development Pte Ltd v Takashimaya Singapore Ltd [2017] 2 SLR 627 adds that matters left to the expert's judgment will not be interfered with, before or after the determination. The 2020 order did not itself require disclosure.

Mdm Lim's application implied that KPMG had erred in not pursuing the suppliers, but the judge found no error or departure from the terms of reference. KPMG had reviewed thoroughly, including the data losses, and used other methods to fill the gaps. Its terms allowed, but did not require, approaches to third parties. It had considered her suggestion and explained that the vendors were unlikely to hold records more than seven years old. As in Feen, that was a judgment call for the expert.

The decision did not turn on confidentiality or on her earlier applications. The judge noted that $440,000 had been spent on the review alone, against an original estimate of $45,000 for the whole valuation, and that finality was needed. Indemnity costs were refused because she had not acted in bad faith.

Wong Li Kok, Alex JC dismissed the plaintiff's application. The plaintiff was ordered to pay costs on the standard basis of $10,000 (inclusive of disbursements); the defendants' request for indemnity costs was refused.