Oppression - Personal Wrongs or Corporate Wrongs : A Commentary on Ascend Field Pte Ltd and Others V Tee Wee Sien and Another Appeal [2020] SGCA 14

Historically, an aggrieved minority shareholder, “X”, is faced with two primary conundrum, (a) X does not have standing to sue an errant director or require the board to account as a result of the rule in Foss v Harbottle (1843) 2 Hare 461 (“Foss v Harbottle”); and (b) companies operate on the basis of majority rule (see Pearlie Koh, Company Law (LexisNexis, 2017) at para 6.5). The law has come a long way since then and now provides minority shareholder with two distinct avenues to seek redress: (a) the statutory derivative action for corporate wrongs and (b) a remedial order under s 216 of the Companies Act (Cap 50, 2006 Rev Ed) (“CA”) for personal wrongs.In recent times, this raises yet another Gordian knot: that sometimes s 216 CA is used to pursue what is essentially a corporate claim. This problem was first expressly raised by the Court of Appeal in Ng Kek Wee v Sim City Technology Ltd [2014] 4 SLR 723 (“Ng Kek Wee”) at [63]-[64]. Subsequently, the Court of Appeal went on to develop a framework in Ho Yew Kong v Sakae Holdings Ltd and other appeals and other matters [2018] 2 SLR 333 (“Sakae Holdings”) to ascertain if a claim pursued under s 216 CA properly involved a personal wrong, or if the claim concerned a corporate wrong and was an abuse of process that should have been pursued under s 216A instead (Sakae Holdings at [116]). The two-step framework had provided a very clear guidance to determine if a wrong should be pursued under s 216 or s 216A, especially when there was a considerable overlap. This commentary addresses a new Court of Appeal decision in this area, Ascend Field Pte Ltd and others v Tee Wee Sien and another appeal [2020] 1 SLR 771 (“Ascend Field”)