1 In SUM 1103/2024 of HC/OC 589/2023 (“SUM 1103”), the Assistant Registrar (“AR”) granted the Claimant, Eurofins Mechem Pte Ltd (“Eurofins”), partial summary judgment on its claim against the 1st Defendant, Mr Quek Sze Wei (“Mr Quek”), for Mr Quek to pay Eurofins damages in the sum of $131,535. The AR’s decision was mainly premised on factual admissions made by Mr Quek.

2 In RA 136/2024 (“RA 136”), Mr Quek appealed against the AR’s decision. He raised an assorted range of arguments, key of which was that there were triable issues and that his factual admissions were made in the context of an injunction hearing for the same action, and hence could not be relied on in a hearing for summary judgment. After considering the parties’ submissions, I dismissed the appeal and affirmed the partial summary judgment. I set out my detailed reasons below.

3 Mr Quek was the General Manager (“GM”) of Eurofins from around 2021 to 5 September 2023. Eurofins’ case was that while Mr Quek was serving as GM and director of Eurofins, he acquired a competitor, Labtechnic Testing Services Pte Ltd (“LT”) (the 2nd Defendant) and made arrangements for 12 of Eurofins’ employees (the “12 Employees”) to resign and join LT.

4 Mr Quek made the following admissions in his 1st affidavit dated 13 October 2023 (“Quek 1st Affidavit”):

5  Eurofins sought partial summary judgment on the basis of these admissions, pursuant to [37(c)] of the Statement of Claim (Amendment No. 1) dated 7 February 2024 (“SOC”):

6 Mr Quek raised two main grounds of appeal.

7 Accordingly, he ought to be given permission to defend without any conditions. Alternatively, he should be given conditional leave to defend, on payment of $130,000 into court.

8 Under the first ground of appeal, Mr Quek raised a range of arguments, which fall under two categories:

(a) first, arguments submitting that Eurofins had not proven loss; and

(b) second, arguments alleging that there were triable issues.

9 Under the first category (alleging that Eurofins had not proven loss), Mr Quek made two arguments.

(a) First, Eurofins had not proven the loss falling under [37(a)] of the SOC (loss of business revenue) and [37(b)] of the SOC (loss from costs of replacing employee headcount). These had to be read together with the claim under [37(c)] of the SOC. I found this to be without merit. Partial summary judgment was only awarded in respect of [37(c)] of the SOC. O 9 r 17(1)(b) of the Rules of Court (2021 Rev Ed) provides that the Court may grant summary judgment in respect of a “particular part of a claim”. [37(a)] and [37(b)] of the SOC relate to completely separate heads of claims. Mr Quek submitted that the heads of claims were related, as Eurofins also relies on the backdating of resignation letters to claim for losses arising from the lack of time to find suitable employee replacements. However, while certain facts may give rise to separate heads of claim, that does not make the heads of claim the same.

(b) Second, Eurofins had a legal burden to prove loss suffered in respect of the 12 Employees but did not issue any claim against them, when they owed the primary responsibility to Eurofins to properly serve their notice of resignation. This argument was also without merit. The 12 Employees’ wrongful acts may give rise to causes of action by Eurofins against them, but Eurofins also had separate causes of action against Mr Quek for breach of contractual and fiduciary duties. Eurofins was within its rights to choose to sue Mr Quek.

10 Under the second category of Mr Quek’s arguments, he submitted that there were three sets of triable issues.

11 First, Mr Quek submitted that there were triable issues in relation to:

12 It was held by the Court of Appeal in Olivine Capital Pte Ltd v Chia Chin Yan [2014] 2 SLR 1371 (“Olivine”) at [43] that:

13 None of these purported defences were pleaded by Mr Quek. Nor was this case an exceptional one in the vein of Olivine’s exposition.

14 In addition, these alleged triable issues, were based on Mr Quek’s bare assertions. He did not adduce any evidence, direct or indirect, to suggest that Eurofins knew or ought to have known that the resignation letters were backdated or that Eurofins waived the notice periods. It is trite law that a fair probability of a bona fide defence will not be established by a bare assertion on the part of the defendant. Rather, the defendant “must adduce some evidence, direct or indirect, to support the bare assertions made in his affidavit and mere logical possibility alone is insufficient”: Lim Oon Kuin and others v Ocean Tankers (Pte) Ltd (interim judicial managers appointed) [2022] 1 SLR 434 (CA) (“OK Lim”) at [22].

15 At the hearing, counsel for Mr Quek orally introduced a new submission, which was that Eurofins actually received the resignation letters from one of the employees earlier than the date Eurofins claimed. Reference was made to the letter of Eurofin’s Mr Adrian Ng (“Mr Ng”), acknowledging Mr Johnny Phoa’s (“Mr Phoa”) resignation letter. ¹ There, Mr Ng started his acknowledgment letter to Mr Phoa by saying “We refer to your resignation letter dated 03 June 2023”. Mr Quek submitted that this meant that Eurofins received the hard copy of the resignation letter from Mr Phoa on 3 June 2023, and not 30 August 2023, which was the date that Eurofin’s Ms Sarah Oon (“Ms Oon”) testified to. ²

16 I had difficulty accepting this argument. There was nothing in the letter to suggest that Mr Phoa’s resignation letter was received on 3 June 2023. Mr Ng’s acknowledgement letter was dated 1 September 2023. The phrase that Mr Quek relied on, simply stated that the letter was dated 3 June 2023. It did not state nor imply that the hard copy of the letter was received by Eurofins on 3 June 2023. In addition, Mr Quek himself admitted at [42] of his 1st affidavit that he gave instructions to 10 employees, including Mr Phoa, to backdate their resignation letters to June or July 2023 to create the impression that they had already finished serving their notice periods. Mr Phoa filed an affidavit but chose not to state in his affidavit when he handed over his resignation letter to Eurofins. He did not reply to dispute Ms Oon’s evidence that his letter was received on 30 August 2023.

17 This submission alleging a triable issue over the date that Mr Phoa’s resignation letter was received, was hence contrary to both Mr Quek’s and Ms Oon’s evidence. It was also unsupported by any evidence from Mr Phoa or Mr Quek. Counsel for Mr Quek acknowledged that this was a bare assertion.

18 Second, Mr Quek submitted that there are triable issues on:

19 There was evidence from Eurofin’s Mr Garg, that Eurofin only found out about the resignation of the employees on 25 August 2023. The anomalies in the resignation dates were discovered after the conduct of investigations that took place after this. ³

20 In addition, in relation to Mr Lim, Mr Quek admitted that it was he who instructed the HR Department to grant Mr Lim’s request to abridge his notice period. In relation to Mr Lee, Mr Quek also admitted that he had, as then-GM, ordered the HR Department to waive Mr Lee’s contractual requirement and to compensate him. Eurofins adduced an email from Mr Quek where he instructed a Eurofins staff that “Although [Mr Lee’s] official notice indicates his last day as 30th August 2023, I have decided to conclude his service with immediate effect considering the nature of his role and the associated risk factors.” ⁴

21 The second set of triable issues which Mr Quek alleged, were also based on bare assertions. Mr Quek did not adduce any evidence to support them. As set out above, it has been held in OK Lim at [22] that a fair probability of a bona fide defence will not be established by a bare assertion from the defendant.

22 For completeness, I found that whether the six employees made their own decision to resign from the Claimant’s employment, was not material to the claim on which partial summary judgment was given, which pertained instead to Mr Quek’s conduct in instructing and co-ordinating the backdating of the employees’ resignation letters.

23 The third set of triable issues that Mr Quek raised, was whether Mr Lim and/or Mr Lee acted fraudulently to deceive Eurofins as pleaded at [24A] of Eurofins’ Reply and Defence to Counterclaim (Amendment No. 1) dated 20 March 2024 (“RDC”).

24 I found that it was not material to Eurofins’ claim under [37(c)] of the SOC, whether Mr Lim or Mr Lee acted fraudulently. What was material was Mr Quek’s conduct, and whether that led to a breach of his employment contract with Eurofins or a breach of the fiduciary duties he owed to Eurofins. The evidence of such conduct was drawn from Mr Quek’s own admissions.

25 In summary, I found that Mr Quek had not raised any of the triable issues alleged.

26 Mr Quek’s second main ground of appeal was that he had established a fair or reasonable probability of a bona fide defence. Under this ground of appeal, Mr Quek raised arguments falling under two categories.

(a) First, he argued that Eurofins had not proven loss / collective fraud.

(b) Second, he argued that the admissions made in his 1st affidavit should not be relied on for purposes of summary judgment.

27 Under the first category of arguments, Mr Quek made two submissions.

(a) First, that there was no evidence of loss to Eurofins in respect of “business and operations being adversely impacted”. I found no merit to this, since partial summary judgment was not granted in respect of such losses but in relation to those set out at [37(c)] of the SOC (see [9(a)] above).

(b) Second, that while Eurofins made allegations of collective fraud involving Mr Quek and the other employees at [24A] of Eurofins’ RDC, there was no evidence of fraud on the part of the employees. I also found no merit to this. What was material to the partial summary judgment, was not whether there was fraud on the part of the other employees, but Mr Quek’s conduct, which he had admitted to in his 1st affidavit.

28 This led to Mr Quek’s second category of submissions, which was that the admissions in his 1st affidavit should not be relied on for the purposes of the partial summary judgment. Mr Quek submitted that this was because the admissions there were for the purposes of an application to set aside the injunction against Mr Quek, and not as admission to the claims made by Eurofins. Moreover, the court had already responded to Mr Quek’s conduct by dismissing the application, to dismiss the injunction. Eurofins should not be entitled to double relief on the same facts. In addition, Mr Quek amended his original Defence and Counterclaim dated 16 October 2023 (“DCC”) to remove the material admissions made therein. By Eurofins’ actions, they must be taken to have accepted these amendments, and should have been precluded from referring to the paragraphs removed from the original DCC.

29 It was not necessary for me to deal with parties’ submissions on whether Eurofins had accepted Mr Quek’s amendments to his DCC. This was because his material admissions remained in evidence through Quek’s 1st Affidavit.

30 Mr Quek did not provide any authority or principled reason why the factual admission there could not be relied on. Indeed, there is a line of cases, which counsel for Mr Quek did not dispute, which establish the principle that factual admissions made in earlier proceedings, can be relied on in later proceedings of the same action.

(a) In Recovery Vehicle 1 Pte Ltd v Industries Chimiques Du Senegal [2021] 1 SLR 342 (CA) the appellant had “conceded, as a matter of fact” that its claim under certain contracts were time-barred under Senegalese law in aid of its argument that Singapore was the forum conveniens to try the dispute (at [107]). The Court of Appeal recognised that the appellant “might not have appreciated that this concession would have a consequential impact on the merits” but held that the failure to appreciate the impact of its concession “does not change the analysis.” This is because “[a] factual concession remains a factual concession irrespective of the nature of the legal argument under which it was made” (at [110], emphasis added). The result was that the appellant’s attempt to resile from its concession on appeal was held to be an abuse of process (at [111]).

(b) It was held in Bayerische Landesbank Girozentrale v Sng Chee Hua [2000] 1 SLR(R) 587 (HC) at [12], in the context of O 14 r 2 of the Rules of Court (1997 Rev Ed) that at the hearing of a summary judgment application, “all the affidavits which have been received in evidence may be read and in coming to a decision any evidence in support of or in opposition to the application may be taken into account whether it be contained in an affidavit filed by one party or the other.”

31 In addition, other decisions have found that factual averments made in separate proceedings, may give rise to an estoppel by representation.

(a) In Lee Siong Kee v Beng Tiong Trading, Import and Export (1988) Pte Ltd [2000] 3 SLR(R) 386 (CA), the court considered factual admissions made in a set of legal proceedings between the respondent and a third party, to raise an estoppel in a separate suit between the appellant and the respondent.

(b) In Independent State of Papua New Guinea v PNG Sustainable Development Program Ltd [2016] 2 SLR 366 (HC) (“PNG”), the court found that admissions in separate proceedings could be relied on, if they were not made in response to a notice to admit facts served in another action (at [127], [129]).

32 Mr Quek also referred to his 4th affidavit dated 17 May 2024 to submit that reliance should not be placed on the admissions made in his 1st affidavit. At [17] of his 4th affidavit, Mr Quek says that his 1st affidavit “was prepared under significant time pressures to set aside an injunction. Some of the points may not have been complete or accurate.”

33 The AR rightly observed that Mr Quek’s explanation in his 4th affidavit was “almost a meaningless statement” since it did not explain which admissions in his 1st affidavit were purportedly “incomplete or inaccurate”.

34 In any case, courts “treat averments in legal proceedings as statements which are not made lightly and from which one cannot easily resile”; PNG at [142]. In PNG, the defendant sought to resile from earlier-made admissions on the basis that they were erroneous. The court refused to disregard these admissions, given that the defendant was: (a) unable to furnish evidence to demonstrate why they were erroneous, and (b) did not clearly explain the circumstances from which the allegedly erroneous admissions arose; at [130]–[136]). In this case, Mr Quek has not furnished any credible explanation as to why his admissions should be disregarded.

35 In addition, Mr Quek’s position in RA 136, was contradictory to the position he took earlier before Lai Siu Chiu SJ in his application to set aside the injunction granted to Eurofins. His solicitors then, had characterised Mr Quek’s statements on affidavit as “unequivocal words” and “unequivocal admissions” and that as a result, Eurofins had a “clear path to obtain compensatory relief” and that the law would ensure that Mr Quek “will compensate [Eurofins] fully for the acts he has admitted to”. ⁵ Lai SJ nevertheless declined to set aside the injunction, and found that the ex-employees “were in cahoots with [Mr Quek] to deliberately conceal their intended joining of [LT]” and that “in the case of Garette Lee, his conduct aided by [Mr Quek] was egregious”. ⁶

36 Taking into account the above, I found that Mr Quek had failed to raise a fair probability of a bona fide defence.

37 At the hearing, Mr Quek asked that in the alternative, he be given conditional leave to defend on payment of $130,000 into court. It has been held by the Court of Appeal in Akfel Commodities Turkey Holding Anonim Sirketi v Townsend, Adam [2019] 2 SLR 412 (CA) at [51], that conditional leave is warranted where “the defendant’s evidence is barely sufficient to rise to the level of showing a reasonable probability of a bona fide defence” and where “the evidence is such that the plaintiff has very nearly succeeded in securing judgment”. In this case, Mr Quek had made key admissions in his 1st affidavit, which remain on record, and the triable issues he alleged were based on bare assertions. The threshold for conditional leave was far from met. Consequently, I found that conditional leave was not warranted.

38 For the above reasons, I dismissed the appeal and affirmed the partial summary judgment. Eurofins was awarded costs of $20,000 plus disbursements of $483.95.