Applying to Court Without Notice in a Singapore Company Dispute: The Full and Frank Disclosure Duty

Yes, a Singapore company can sometimes ask the court for an urgent order without first telling the other side, but only where giving notice would defeat the purpose of the order or the matter is genuinely urgent. In return, the company takes on a strict duty of full and frank disclosure: it must put before the judge every material fact, including the facts that help its opponent. If it does not, the order can be discharged, the company can be ordered to pay costs, and it may have to compensate the other side under its undertaking as to damages. A company served with such an order can apply to set it aside.

What is a without notice application?

Most court applications are made “with notice”: the other party is served, files its own evidence and argues its side before the judge decides. A without notice application is the exception. The judge hears only the applicant, usually on affidavit evidence, and makes an order that binds a party who has not yet been heard.

Before the Rules of Court 2021 came into force on 1 April 2022, these were called “ex parte” applications. The 2021 Rules replaced that Latin term with “without notice”, and the old terminology now appears mainly in earlier case law. The principles the courts developed under the old name still guide how judges treat these applications today.

For injunctions, Order 13, rule 1(3) of the Rules of Court 2021 allows an application to be made by originating application without notice or by summons without notice. The Supreme Court Practice Directions 2021 (paragraphs 71 to 73) and the State Courts Practice Directions (paragraphs 53 to 55) then set out how such applications must be prepared.

When will a court hear a company’s application without notice?

The court will only depart from the normal rule where there is a good reason. In company disputes, the usual reasons are:

• Risk of the order being defeated. If a former director would move money offshore or wipe a laptop the moment he learns of the application, notice would defeat the point of applying.
• Genuine urgency. A board meeting, share transfer or asset sale is about to take place and there is no time for a normal hearing.
• The nature of the order. Some orders, such as search orders, depend on surprise to be effective.

Typical orders sought this way include freezing orders (also known as Mareva injunctions), orders to preserve evidence, search orders and short-term interim injunctions to stop a specific act. The supporting affidavit must explain why notice is not being given and, if relied on, why the matter is urgent.

Does “without notice” mean the other side is told nothing?

Not always. This is a point many business owners miss. The Practice Directions draw a distinction between two situations:

So a company seeking an urgent injunction to stop a disputed share transfer may still have to email the other shareholder a short time before the hearing. A company seeking a freezing order against someone it believes will dissipate assets usually will not.

What does the duty of full and frank disclosure require?

Because the judge hears only one side, the applicant must effectively present the other side’s case as well. The Court of Appeal in Tecnomar & Associates Pte Ltd v SBM Offshore NV [2021] SGCA 36 described the duty as extending to facts that may go towards rebutting the applicant’s own claim. An applicant may disagree with the opponent’s position, but it must still disclose it.

The Practice Directions make this concrete. The supporting affidavit must, under clear headings, cover:

1. the reasons the application is made without notice;
2. the urgency of the application, if urgency is relied on;
3. the factual basis for the application, including any evidence of dishonesty or bad faith by the opponent;
4. the factual basis for any reasonable defences the opponent may rely on;
5. any known issues about jurisdiction, the appropriate forum or service out of Singapore;
6. an undertaking to pay for losses the order may cause to the opponent or other persons; and
7. any other material facts the court should know.

Item 4 is where companies most often get into trouble. If the other side has written a letter explaining why it says it is not liable, that letter, or a fair summary, belongs in the affidavit. If there is an earlier arbitration, a pending application elsewhere or a settlement offer that changes the picture, the judge must be told. The applicant should also file skeletal arguments for the hearing.

What happens if the company fails to disclose something material?

The consequences can be worse than not applying at all. In Tecnomar, the Court of Appeal found that the applicant had deliberately suppressed material facts. Relying on the earlier decision in Tay Long Kee Impex Pte Ltd v Tan Beng Huwah [2000] 1 SLR(R) 786, it said that where non-disclosure is deliberate, it must be a special case for the court not to discharge the order. The court set the order aside and awarded indemnity costs against the applicant.

In practical terms, a company that hides a material fact risks:

• discharge of the order, even if the underlying claim has some merit;
• adverse costs, potentially on the higher indemnity basis;
• a claim under the undertaking as to damages for the loss the order caused while it was in force; and
• damage to its credibility with the court for the rest of the dispute.

Innocent or minor omissions are treated less harshly than deliberate ones, and the court has some discretion to continue an order despite a non-disclosure. Directors should not count on that discretion. The safest course is to disclose anything that might matter and let the judge decide its weight.

Why does the company have to give an undertaking as to damages?

An order made without hearing the other side may turn out to be wrong. The undertaking is the company’s promise to compensate the opponent, and sometimes third parties such as banks, if the order is later found to have been wrongly granted. The State Courts Practice Directions require the affidavit to state the assets available to meet the undertaking and who owns them.

For a small company with few assets, the court may ask for the undertaking to be supported, for example by a payment into court or a guarantee. Our guide to the undertaking as to damages in injunction applications explains how that liability is assessed. Directors should treat the undertaking as a real financial commitment of the company and approve it at board level.

How does the process usually run, step by step?

1. Board decision. The board resolves to bring the application, authorises solicitors and approves the undertaking as to damages.
2. Evidence gathering. Collect the documents that show the threat, the urgency and, importantly, everything the other side has said in its own defence.
3. Affidavit and draft order. The supporting affidavit follows the Practice Direction headings. For search orders and some other orders, the court’s standard forms are used, and any departure must be justified.
4. Notice decision. Decide, with reasons recorded in the affidavit, whether any notice is to be given and how.
5. Hearing. The judge hears the application. Search orders are heard by a Judge, and must be served by an independent supervising solicitor who is not from the applicant’s law firm.
6. Service. The order, the application and the evidence are served promptly on the respondent.
7. Return date. Where the order is interim, the court usually fixes a further hearing at which the respondent can be heard and the court decides whether the order should continue.

Documents checklist for the applicant company

• Board resolution authorising the application and the undertaking
• Constitution, shareholder register and any shareholders’ agreement relevant to the dispute
• The contracts, emails, bank records or device records showing the threatened harm
• All correspondence from the other side, especially letters setting out its defence
• Details of any related proceedings or arbitration, in Singapore or abroad
• Evidence of the company’s assets available to support the undertaking
• A chronology showing why the matter is urgent

Example: a hurried application that unravels

Example: A Singapore trading company discovers that a departing director has arranged for a key supplier contract to be novated to his new business. The company obtains a without notice interim injunction restraining the novation. Its affidavit does not mention that, two months earlier, the director had written to the board offering to resign and stating that the board had approved his taking over that supplier relationship as part of his exit terms.

At the return date, the director produces that email and the board minutes. Whether or not the court ultimately accepts his account, the company now faces an application to discharge the injunction for non-disclosure, a possible costs order and a claim under its undertaking for the business he lost while the order was in force. If the company had disclosed the email and explained why it disputed the director’s account, the judge could have weighed it, and the company would not have handed its opponent a procedural attack. This is a hypothetical illustration, not a real case.

What should a company do if it is served with a without notice order?

Being served without warning is unsettling, but the order is not the final word. The company should:

1. Comply immediately. Breaching a court order can amount to contempt of court, even if the company believes the order was wrongly obtained.
2. Read the order and the affidavit closely. Note the return date, what is prohibited or required, and any exceptions, such as permission to pay ordinary business expenses.
3. Compare the affidavit with the true picture. List every material fact the applicant left out or misstated.
4. Consider applying to set aside or discharge the order. Grounds commonly include material non-disclosure, no real urgency, or that the legal requirements for that type of order were not met.
5. Preserve the right to claim under the undertaking. Keep records of the loss the order is causing.

Speed matters on both sides. Our guide to prohibitory and mandatory injunctions explains the tests the court applies when it considers whether an injunction should continue.

Frequently asked questions

Is “without notice” the same as “ex parte”?

Yes, in substance. “Ex parte” was the term under the old Rules of Court. The Rules of Court 2021, which govern civil proceedings commenced from 1 April 2022, use “without notice” instead.

Can a company make a without notice application in the State Courts?

Yes, where the court has jurisdiction over the matter. The State Courts Practice Directions contain their own requirements for injunction applications without notice, including the affidavit contents and the notice rules.

Does the duty of disclosure end once the order is granted?

The applicant should treat the duty as continuing until the other side has been heard. If it learns of a material fact after the hearing, it should bring that fact to the court’s attention promptly rather than wait for the respondent to discover it.

Can the company be ordered to pay damages even if it wins the main case?

An undertaking as to damages is normally enforced where the order is found to have been wrongly granted. Winning the main case usually helps, but if the interim order was discharged for non-disclosure, the company may still face consequences in costs. The court decides the position on the facts.

Can the company apply without a lawyer?

Without notice applications are technical, often urgent, and depend on careful affidavit drafting. Whether a company may be represented by one of its own officers instead of a solicitor depends on the court and the rules that apply, as our guide on corporate self-representation explains. In practice, most companies instruct a law firm for these applications.

Need help with an urgent court application in a company dispute?

If your company, or you as a director or shareholder, is dealing with an urgent court application or has been served with a without notice order, contact the Raffles Corporate Services team at [email protected] or on WhatsApp at +65 8501 7133 or +65 9018 0072. We will help you understand the documents and deadlines. Where your matter needs a lawyer, we will refer you to a firm on our panel of Singapore law firms that regularly handles urgent injunctions and commercial litigation. Raffles Corporate Services is a corporate services provider, not a law firm, and this article is general information, not legal advice.

The Raffles Corporate Services Editorial Team, Raffles Corporate Services