CASE COMMENTARY: Lavrentiadis, Laverentios v Dextra Partners Pte Ltd and another  SGHC 146
In recent years, there has been a growth of jurisprudence in Singapore relating to the taking for an account. Much needed clarification has been provided by the High Court as well as the Court of Appeal
The recent case of Lavrentiadis, Laverentios v Dextra Partners Pte Ltd and another  SGHC 146 ("Dextra Partners"), which was decided on 23 July 2020, appears to suggest that there is still some uncertainty in relation to the nature of the process of the ‘taking of accounts’. Two points of interest are highlighted in this case commentary.
An account without an order for account
In Dextra Partners, the Plaintiff was one Lavrentiadis Laverentios. The Plaintiff was a client of the 1st Defendant, Dextra Partners Pte Ltd. The second defendant one Bernhard Wilhel Rudolf Weber who managed Dextra Partners Pte Ltd at all material times.
The 1st Defendant had held large sums of the Plaintiff’s monies in its clients account. The Defendants did not dispute that they owed obligations to the Plaintiff to account for his monies but posited that they discharged their duties.
Prior to trial, the Defendants engaged one ‘Abuthahir Abdul Gafoor’ as an expert to provide a report to account for how the Plaintiff’s funds were utilised by the 1st Defendant (“Gafoor’s Report”). Parties then set out a table based on Gafoor’s Report setting out their respective positions in relation to each transaction set out in the expert’s report. In setting out his position, the Plaintiff also falsified several entries for disbursements stated in Gafoor’s report.
At trial, the witnesses were cross examined extensively on issues arising from Plaintiff’s falsifications of items in the account provided by the 1st Defendant via Gafoor’s Report.
However, in their closing submissions, the Defendants curiously submitted that the Plaintiff’s request to falsify certain entries was premature and that the taking of accounts should take place “after an order to do so has been made”. The Defendant’s position in its closing submissions was found by the Court to be clearly inconsistent with the position they had taken in the proceedings and made far too late in the day.
This brings up a now trite but nevertheless important point in relation to the taking of accounts: an order for an account is not a remedy for a wrong. It is merely enforcing performance of an obligation, namely that of the trustee or fiduciary to account to the beneficiary and/or principal. Once the trust or fiduciary relationship is established or conceded, the beneficiary or principal is entitled to an account as of right.
Once the plaintiff has been provided with an account he can falsify and surcharge it. If the account discloses an unauthorised disbursement the plaintiff may falsify it, that is to say to ask for it to be disallowed. The trustee then bears the burden of proving that the disbursement was in fact an authorised one, being one within the scope of the trust terms. If the trustee cannot do so, the beneficiary by falsifying the account essentially disclaims any interest in the property and the investment is treated as if it was bought with the trustee’s own money.
As such the Defendants’ submission that the Plaintiff’s falsifications are premature pending an order for account, with all due respect, cannot be correct. The account has been given by the 1st Defendant in its capacity as a trustee to the Plaintiff, who has then challenged certain disbursements from the account. The 1st Defendant was able to defend the legitimacy of some of those disbursements, but was unable to do so for several others. As a result the consequential relief awarded by the Court was for those disbursements that the 1st and 2nd Defendant were unable to account for to be repaid to the Plaintiff.
Differences between a ‘common account’ and an account on the basis of ‘wilful default’
A second point of interest was that the Plaintiff had submitted that the accounts in the present case be taken on a ‘wilful default basis’. It was not apparent from the judgment whether this argument was made prior to or after Trial and what exactly the Plaintiff was seeking to achieve in making the said argument. It is also not apparent whether there was any discussion prior to trial on whether the taking of accounts, including during the conduct of trial, was to be conducted on a common account basis or a wilful default basis.
The differences between a common account and an account on a wilful default basis can be summarised as follows:
(a) To obtain an order for a common account, the Plaintiff merely needs to prove that there was a trust and/or fiduciary relationship between himself and the Defendant (subject to the Court’s discretion);
(b) To obtain an order for an account on a wilful default basis, the Plaintiff needs to prove that the trustee and/or fiduciary do that which it is their duty not to do or omit to do that which it is their duty to do.
(c) In the process of taking of accounts on the basis of a common account the Court is only interested in actual disbursements and receipts of monies or property of the beneficiary and/or principal which fall within the custody of the trustee and/or fiduciary.
(d) In the process of taking accounts on the basis of wilful default, the Court is concerned with both actual disbursements and receipts of money and/or property as well as what the trustee or fiduciary ‘might have received’ had he performed his duties properly. As a result, the master taking the accounts has a wider scope of inquiry, and is entitled to look into all aspects of the trustee’s management of trust property. The trustee will be required to explain any suspect transactions, even if the particular transaction has not been complained of by the beneficiary.
In Dextra Partners Pte Ltd, the Court highlighted that the main dispute is whether the defendant has proved that the application of the plaintiff’s monies, in respect of each of the falsified entries, was authorised. As such, it did not matter whether the taking of accounts was conducted on a ‘common account basis’ or a ‘wilful default basis’.
We concur with the Court’s analysis. Since the Plaintiff was only concerned with actual disbursements of monies, not hypothetical ones, the plaintiff would in any case be entitled to the same procedure of falsifying disbursements under a common account.
The decision in Dextra Pte Ltd shows the important need for commercial litigators to be clear on the nature and purposes for an order of account, which despite merely being a preliminary step towards consequential relief, has been a source of confusion and uncertainty given its technical nature and archaic origins.
For further enquiries in relation to an order for accounts, do contact us at firstname.lastname@example.org
 Lalwani Shalini Gobind and another v Lalwani Ashok Berumal  SGHC 90,  to , Tongbao (Singapore) Shipping Pte ltd and another v Woon Swee Huat and others  SGHC 165, paragraphs  to  Aljunied-Hougang Town Council and another v Lim Swee Lian Sylvia and others and another suit (“AHTC’s Case”)  SGHC 241 paragraphs  to . The most commonly cited High Court Judgment in recent cases appears to be Cheong Soh Chin and others v Eng Chiet Shoong and others  SGHC 131 (“Cheong”), where the Honourable Vinodh Coomaraswamy J gives a succinct and clear analysis of the taking of account from  to  .
 Sim Poh Ping v Winsta Holding Pte Ltd  1 SLR 1235, UVJ and others v UVH and others and another appeal  SGCA 49 (“UVJ and UVH”)
 Dextra Partners at   Dextra Partners Pte Ltd at  to   Dextra Partners at  to   Dextra Partners at   Libertarian Investments Ltd v Thomas Alexej Hall (2013) 16 HKCFAR 681 (“Libertarian Investments”) at . This has been adopted by the Court of Appeal in UVJ and UVH at  (see supra 2)  Libertarian Investments at   Cheong at   Dextra Partners at  &   Dextra Partners at   Libertarian Investments at   For a more elaborate discussion on the Court’s discretion in ordering a common account, see AHTC’s case at  to   Cheong at   Cheong at   Cheong at  to   Dextra at 
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