Singapore International Commercial Court

1 Mr Kyle Arnold Shaw Junior ("Mr Shaw") is a successful private equity investor. He is a graduate of the University of Virginia and of the Wharton School of the University of Pennsylvania. Some 30 years ago, he was involved, together with two colleagues, Mr S. L. Choi and Mr Andy Kwei, in the purchase of the Asian business of a company called Flextronics. The chief financial officer of that business was Mr Goh Chan Peng, the first defendant ("Mr Goh"). Mr Shaw worked closely with Mr Goh and the business flourished. Mr Shaw concluded as a result that Mr Goh was a "straightforward guy".^[1]

2 In early 2000, Mr Goh was approached by Mr Chay Kwong Soon ("Mr Chay"), the Chairman of the parent company of the Beyonics group of companies (the "Beyonics Group" or "Beyonics") of which the five plaintiffs are subsidiaries. Mr Chay invited Mr Goh to become the chief executive officer ("CEO") of the Beyonics Group. Mr Goh left Flextronics and on 1 May 2000 was appointed CEO of the Beyonics Group. He remained CEO until 30 April 2013.

3 The Beyonics Group consisted of two manufacturing divisions, the Precision Engineering Services ("PES") Division and the Electronic Manufacturing Services ("EMS") Division. Amongst other things, the PES Division manufactured and sold baseplates for hard disk drives ("HDDs") destined for end customers, such as Seagate, Hitachi and Western Digital. The dispute in this action concerns the PES Division, specifically, the baseplate manufacturing business.

4 At the time of the matters giving rise to the dispute, the parent company of Beyonics was called Beyonics Technology Ltd ("BTL"). The first plaintiff ("BAP"), the fourth plaintiff ("BTEC"), the fifth plaintiff ("BPM") and a further subsidiary, Beyonics Technology (Thailand) Co Ltd ("BTT"), were part of the PES Division. BTEC owned and operated a baseplate manufacturing facility in Changshu, China; BPM owned and operated a baseplate facility in Tampoi, Malaysia; and BTT owned and operated a baseplate facility in Ayutthaya, Thailand. BAP did not own or operate any such facility but was the sales company for the baseplates manufactured by BTEC, BPM and BTT. The second and third plaintiffs ("BIL" and "BTS") are also subsidiary companies of BTL but are not part of the PES division. I refer to these companies collectively as the "Plaintiffs".

5 By 2010, Mr Shaw had become a partner in an independent private equity fund manager, Shaw Kwei & Partners ("SKP"), based in Hong Kong. One of the managing directors was Mr Tsui Sung Lam ("Mr Tsui"), who had worked with Mr Goh at Flextronics. In late 2010 or early 2011, Mr Tsui and Mr Goh met and Mr Goh indicated that Beyonics was considering the sale of its business. Mr Tsui informed Mr Shaw and, as a result, SKP proposed that its investment vehicle, Bayport Capital Ltd ("Bayport") should consider acquiring the Beyonics Group through a BVI company, Channelview Investments Ltd ("Channelview"). This led to an Implementation Agreement dated 5 October 2011, followed by due diligence which resulted in a formal offer to take over the Beyonics Group. This was approved in a shareholders meeting on 30 December 2011 and the scheme was sanctioned by the High Court of Singapore and completed on 2 February 2012. Mr Shaw then became chairman of Channelview with both Mr Goh and Mr Chay being directors as well as not insubstantial shareholders.

6  As was apparent in the witness box, both Mr Shaw and Mr Goh are powerful personalities, used to being the directing minds of commercial operations and accustomed to being leaders rather than followers. Mr Shaw expected Mr Goh to follow his lead and Mr Goh expected Mr Shaw to allow him, with his more than ten years in the business, to continue to run Beyonics with the freedom he had been given by the previous board of directors. A falling out was perhaps inevitable and it duly occurred. I shall have to consider in some details the factual background leading up to the fall out. It is sufficient for present purposes to record that it occurred, with the result that on 9 January 2013 Mr Goh resigned his directorships in the various companies in the Beyonics Group. Resignation agreements (the "Resignation Agreements") were signed with a number of those companies (including BAP, BIL and BTS) and Mr Goh ceased to be employed on 30 April 2013.^[2]

7 Following Mr Goh's resignation in January, Mr Shaw became aware that he had left behind no documents relating to ongoing business at Beyonics and Mr Shaw informed me that he needed to understand more fully what the company's business was. He therefore asked Mr Goh to return the notebook computer he had been using and discovered that all files had been deleted before it was returned. The same was true of a desktop computer. Later in January 2013 Mr Shaw engaged FTI Consulting to carry out a full forensic investigation into the contents of the deleted files. During the course of a lengthy piece of cross-examination,^[3]Mr Shaw emphasised that his motivation in ordering this investigation was not with a view to finding out anything he could in order to get back at Mr Goh but to find out what was going on in the business, as summed up during cross-examination:^[4]

8 Be that as it may, following a lengthy investigation, FTI identified a number of documents which gave Mr Shaw reason to believe that Mr Goh had not been acting in the best interests of the Beyonics Group in his dealings with a competitor, Nedec/Kodec (see below at [134(b)]), and indeed that he had accepted bribes from that competitor. In particular, three agreements between the second defendant, Pacific Globe Enterprises Ltd, a company owned and controlled by Mr Goh which, at the relevant time, was named Wyser International Ltd, ("Wyser"), and Nedec/Kodec were discovered which indicated that Wyser had been paid substantial sums by Nedec/Kodec.

9 FTI's final report^[5](the "FTI Report") was issued on 23 July 2013 and proceedings were brought on 25 July 2013 by BTL and one subsidiary company (Beyonics International Pte Ltd or "BIPL") against Mr Goh, his wife and Wyser in Singapore in High Court Suit No 672 of 2013. I shall refer to this action as "the 672 Action" and to the Plaintiffs in that action as BTL and BIPL or, together, as "the 672 Plaintiffs", and to Mr Goh, his wife, and Wyser as "the 672 Defendants".

10 The 672 Plaintiffs alleged that Mr Goh had breached various duties owed to them and further had engaged in a conspiracy with Wyser and Nedec/Kodec to injure the Plaintiffs. Mr Goh's wrongdoings were alleged to have resulted in the diversion of certain business from a customer of the Beyonics Group, Seagate, to Nedec/Kodec which culminated in the loss of its entire baseplate business with Seagate. For the role Mr Goh played, he allegedly received two payments from the Nedec/Kodec via Wyser, which dishonestly assisted in Mr Goh's breach of duties. BTL's claims related to the loss of the Seagate's business and it also sought an order that the payments be disgorged to BTL. Additionally, BIPL raised claims against Mr Goh for the return of unjustified expenses and salary.

11 Mr Goh denied that he was in breach of duties and maintained that he acted in the best interests of the 672 Plaintiffs at all times. He did not deny that he received payments from Nedec/Kodec, but claimed that they were legitimate payments for consultancy services. Hence, there was no conspiracy between Mr Goh, Wyser and Nedec/Kodec to injure the Plaintiffs and Wyser did not dishonestly assist in the breach of his duties. The loss of Seagate's business, in whole or in part, was not caused by them. Finally, Mr Goh contended that the expenses and salary were justified.

12 The action was heard by Hoo Sheau Peng JC (as she then was) ("the 672 Trial Judge") over a period of 19 days in August and September 2015 which, following written closing submissions, resulted in a judgment on 28 June 2016 ([2016] SGHC 120, reported as [2016] 4 SLR 472) ("the 672 Judgment"). The 672 Plaintiffs were almost entirely successful although the damages awarded for the loss of the Seagate business were less than those claimed. Mr Goh and Wyser appealed and, whilst the Court of Appeal did not reverse any of the findings of fact, by its judgment of 27 June 2017 ([2017] SGCA 40, reported as [2017] 2 SLR 592) ("the 672 Appeal Judgment") it held that BTL was not entitled to recover certain of the losses that it had claimed and which had been awarded by the 672 Trial Judge, as those losses had not been suffered by BTL, the parent company, but had in fact been suffered by various subsidiary companies which are now the plaintiffs in this action.

13 The Court of Appeal's reasoning was as follows:

14 Having suffered that reverse, this action was commenced on 21 August 2017 by the five subsidiary companies against Mr Goh and Wyser (the "Defendants") claiming both the losses which had been disallowed in the 672 Action as well as certain other alleged losses which had not been claimed in that action. The Plaintiffs accepted that they could not rely on the findings of fact made in the 672 Plaintiffs' favour in that action and that, in so far as the Defendants did not admit liability, the necessary evidence would have to be adduced afresh and the matter ruled upon at a subsequent trial.

15 The Defendants made no admissions. They contended that on the basis of subsequently obtained material the outcome of any later trial would be different and would result in findings in their favour. In addition, however, they contended that the bringing of this action by these Plaintiffs was an abuse of the process of the court as the claims now made in this action could and should have been made by them in the 672 Action. They rely on the well-known doctrine of the extended form of res judicata having its origin in Henderson v Henderson [1843] 3 Hare 999 (" Henderson v Henderson ").

16  There are thus two entirely different defences. I shall refer to them as the " Henderson v Henderson Issue" and the "Substantive Issue". The former requires close attention to be paid to the matters in issue in the 672 Action in order to compare those issues with the issues raised in this action. The question of whether in all the circumstances the bringing of this action is an abuse can then be addressed.

17 The Substantive Issue however requires the findings of the 672 Action to be disregarded. No plea of estoppel is raised by the Plaintiffs. It is common ground that this issue can only be and must be decided on the basis of the evidence adduced at the trial of this action. It is therefore open to this court to come to a different conclusion on the facts to that reached by the 672 Trial Judge in the 672 Action if the evidence given at this trial requires it.

18 Immediately prior to the trial of this action the Defendants objected to certain passages in the affidavits of evidence-in-chief ("AEICs") sworn on behalf of the Plaintiffs because they sought to rely on findings in the 672 Action as being true. An application was therefore made to strike out those passages.

19 I heard arguments on the first day of the trial and gave judgment on the second day. In that judgment I set out the distinction between the approach to those two wholly discrete issues which I draw upon in [20] to [37] below.

20 It is trite law that only evidence relevant to the issues in the case is admissible at trial. Evidence which is relevant and admissible on one of those issues may not be relevant to the other. The court must be astute in identifying to which issue a given piece of evidence is relevant and to ensure that if it is inadmissible in relation to another issue, it does not serve to cloud the judicial mind on that other issue.

21 Admissibility of evidence relating to the Henderson v Henderson Issue is governed by s 42 of the Evidence Act (Cap 97, 1997 Rev Ed) which is as follows:

22 The Plaintiffs referred me to the commentary on s 42 which is found in paragraph 7.003 of Evidence and the Litigation Process (LexisNexis, 6th Ed, 2017) by Professor Jeffrey Pinsler SC, which states:

23 The Plaintiffs also referred me to the decision in Arul Chandran v Chew Chin Aik Victor JP [2000] SGHC 111 (" Arul Chandran "). I shall cite more out of that judgment than the Plaintiffs referred me to because it is also relevant to the question of evidence on the Substantive Issue which I shall consider below. Paragraphs 141-144 read as follows:

24 This judgment highlights very clearly the circumstances in which previous statements are admissible at a subsequent trial on the merits and those where they are not. I shall return to this below. However, in the case of res judicata , the previous judgment is admissible, but only for the limited purposes outlined above, either (a) to prove its existence, or (b) to identify issues that were previously determined.

25 Additionally, of course, in a case of an alleged Henderson v Henderson estoppel, evidence relating to why the plaintiff could not or should not have brought the claim in the previous action and any other evidence relevant to the question of abuse of process will be admissible.

26 On the Substantive Issue, s 42 does not apply. Questions of admissibility are governed by s 45 of the Evidence Act which reads:

27  The existence of the judgment is not a fact in issue in relation to the Substantive Issue and, thus, the question is whether it is relevant under some other provision.

28 Both parties accept that this provision is based on s 43 of the Indian Evidence Act and each referred me to Sarkar's Law of Evidence , the Plaintiffs choosing to use the 16th edition (Sudipto Sarkar and V R Manohar, Sarkar's Law of Evidence (Wadhwa & Co, 16th Ed, 2007)) and the Defendants the 19th edition (Sudipto Sarkar and Dr H R Jhingta, Sarkar's Law of Evidence (LexisNexis, 19th Ed, 2016)). I can discern no difference between them. Since the first one I read was the 16th edition, I shall cite from that at page 952:

29  The editors then turned to consider the latter portion of the section at pages 952-953:

30 The commentary continues:

31 In a following passage, the editors state as follows:

32 With regard to that last sentence, it is important to note that the editors are talking about the right of a party; that is, a party to the subsequent litigation who was also a party to the earlier case. It is not a reference to any other party, more specifically to a party to the earlier litigation who is not a party to the subsequent action or vice versa . The right of any of the Plaintiffs in this action has not already been concluded by a previous judgment.

33 Accordingly, evidence of statements made in an earlier case may be adduced in order to seek to discredit evidence given by a witness in a later case, but there is an important distinction between reliance upon statements made in a previous action and conclusions reached by the court in that previous action on the basis of those statements, as is clear from the passages from Arul Chandran cited above at [23].

34 The Defendants referred me to the case of Zainal bin Kuning and others v Chan Sin Mian Michael and anor [1996] 2 SLR(R) 858 (" Zainal ") at [68]--�[70] where the Court of Appeal, when considering whether previous convictions were admissible in evidence, said this:

35 The position under s 45 is clear. A finding of fact in a previous judgment cannot be relied upon to prove primary facts which have to be proved in a subsequent action. It is, I think, succinctly put in the passage emphasised above in Zainal (at [69]).

36 What can be used, if relevant, is evidence given at a previous trial if its purpose is to challenge or discredit the evidence given by a witness at a subsequent trial. If a witness has made a previous inconsistent statement, this can be put to the witness to challenge the subsequent evidence and to give the witness the opportunity to satisfy the court, if they can, that the later evidence is to be preferred. This is not because it is evidence given in a previous trial, it is because it is an antecedent inconsistent statement. It could just as well have been given in a pre-existing document.

37 This type of evidence is covered by s 157( c ) of the Evidence Act, which reads, so far as relevant:

38 In order to determine the issue of Henderson v Henderson abuse, it is not necessary to know anything more about the parties or, indeed, the witnesses who gave evidence. Before turning to the law, I shall consider the desirability of hearing any allegation that an action should be struck out on these grounds as a preliminary issue. In the present case this was not done. At the outset the Defendants did not seek such an order on the basis that, having had one appeal to the Court of Appeal which had resulted in the matter having to be restarted in the High Court, they were unwilling to risk the same happening again and preferred to incur the costs of preparing for a trial which, if the Henderson v Henderson Issue was finally decided in their favour, would be unnecessary. The Plaintiffs did not oppose this and the court did not at that stage see fit to impose such a course on the parties.

39 When the matter was transferred to the Singapore International Commercial Court, my instinct was to order the trial of a preliminary issue even at a late stage. However, both parties requested that there should not be such an order, not only on the basis originally relied upon by the Defendants but also on the ground that significant discovery had by then been given and preparations for trial were well advanced. A trial date was available which was suitable for the parties and the court, and if there was to be a preliminary hearing followed by an appeal that trial date would be lost. I concluded that, in those circumstances, there should not be the trial of a preliminary issue since neither party wished it for the reasons given.

40 With hindsight I regret that decision and wish that I had followed my instincts. The Henderson v Henderson Issue could have been prepared for hearing and heard in a relatively short period of time. The hearing would have lasted a day, two at the most. If successful, even after an appeal, the time and expense of the trial that has now taken place would have been avoided. Yes, there might well have been a delay but that it is price well worth paying to investigate the possibility that the trial should not be allowed to take place at all.

41 I consider that it will rarely, if ever, be the case that an allegation that a subsequent action should be struck out on Henderson v Henderson grounds should not be heard as a preliminary issue, even if this does cause a measure of delay.

42 Be that as it may, there was no such order in this case and the issue now falls to be decided. The fact that there was no preliminary hearing is not material to outcome of that issue. It has to be determined on the basis of the facts at the date when the writ in this action was issued.

43 As is well known, the extended form of res judicata has its origins in the celebrated statement by the Vice-Chancellor, Sir James Wigram, in Henderson v Henderson [1843] 3 Hare 999 at 114:

44 The doctrine has evolved over the years both through decisions in Singapore and in the United Kingdom. The foundation of the current approach to the doctrine lies in the decision of the House of Lords in Johnson v Gore Wood & Co [2002] 2 AC 1 (" Johnson v Gore Wood ").

45 In that case a company, Westway Homes Ltd, a company controlled by Mr Johnson, had previously brought an action against Gore Wood & Co, a firm of solicitors, for negligent advice. That action was eventually settled during the trial with the payment of a substantial sum of money to the company. Prior to the trial, Gore Wood's solicitors were informed that Mr. Johnson also had a claim against Gore Wood arising out of the same facts which he would pursue in due course.

46 Following the settlement with the company, in 1993 Mr Johnson commenced his own action which proceeded slowly towards trial. It was not until December 1997, some 4½ years later, that the defendant sought to strike out the action as an abuse of the process of the court relying on the Henderson v Henderson doctrine. Even at this late stage, this issue was directed to be heard as a preliminary issue. The judge held in favour of the plaintiff but the Court of Appeal reversed that decision and the action was struck out. The plaintiff appealed to the House of Lords.

47 The leading opinion was that of Lord Bingham of Cornhill. It is necessary to cite a number of passages from that opinion (at 22C-F):

48 After reviewing a number of earlier authorities, Lord Bingham continued (at 31A-F):

49 Lord Bingham then went on to consider the question of the extent to which the doctrine applied to parties to the later action who had not been parties to the earlier action (at 32C-G):

50 Lord Millett concurred and said this (at 60C-D):

51 On the particular facts of that case, the House of Lords held that Mr Johnson was acting reasonably in not bringing his claim as part of the earlier litigation so that there was no abuse of process and the action was therefore not struck out.

52 The dictum of Lord Bingham cited above was applied by Sundaresh Menon JC (as he then was) in Goh Nellie v Goh Lian Teck and others [2007] 1 SLR(R) 453 when he summarised the approach as follows at [53]:

53 In Lim Geok Lin Andy v Yap Jin Meng Bryan and another appeal [2017] 2 SLR 760, Andrew Phang Boon Leong JA, giving the judgment of the Court of Appeal, also applied the reasoning in Johnson v Gore Wood ([44] supra ) and made the following observations (at [39]-[43]):

54 Reference was then made to a West African decision and the judgment continued at [43]-[44]:

55 The policy reasons underlying the doctrine were further examined by George Wei J in Antariksa Logistics Pte Ltd and others v Nurdian Cuaca and others [2018] 3 SLR 117 at [81]-[84]:

56 The latest consideration of the scope of the doctrine and the principles to be applied is to be found in the judgment of Lord Sumption in the UK Supreme Court in Takhar v Gracefield Developments Ltd and others [2019] 2 WLR 984 (" Takhar v Gracefield Developments Ltd "), a case involving an application to set aside a judgment allegedly obtained by fraud, when he said this (at [61]-[63]):

57 The task facing the court therefore is, first, to consider whether the claims made in the second action could, and if so, should have been brought in the first action. If so, the court must then go on to consider whether at the time the second action was started, in the light of everything that had happened prior to that date, it would be an abuse of process to allow the second action to proceed. The burden is on the Defendants to demonstrate that the Plaintiffs are abusing the process of the court by bringing the second action. The burden is a heavy one. As Lord Bingham put it, " [l] itigants are not without scrupulous examination of all the circumstances to be denied the right to bring a genuine subject of litigation before the court " (see [47] above). But equally, on the other hand, as Lord Diplock put it, the court must possess the power " to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people " (see [47] above).

58 In the 672 Action claims were made by BTL, the parent company, and by BIPL, neither of which is a party to this action. The Plaintiffs in this action were not parties to that action.

59 The claims made in the 672 Action were as follows:

(a) by BTL against Mr Goh:

(i) breach of contractual, statutory and/or equitable fiduciary duties in his capacity as a director/employee of BTL;

(b) by BIPL against Mr Goh:

(i) unjustified expenses claims made against BIPL;

(ii) unjustified payment of salary by BIPL;

(c) by BTL against Wyser:

(i) dishonest assistance of Mr Goh in committing his various breaches and/or knowing receipt of the payments under the Wyser Agreement; and

(d) by BTL against Mr Goh and Wyser:

(i) unlawful conspiracy together with Nedec/Kodec to injure BTL and its subsidiaries, by diverting the baseplate production capacity of the Beyonics Group in favour of Nedec/Kodec.

60 Under [59(a)(i)], the claims were made under four headings as explained in [40] of the 672 Judgment:

61 Under this claim, BTL sought damages/equitable compensation for:

(a) sums received under the Wyser Agreements;

(b) loss of profit suffered by the Beyonics Group as a whole by reason of diversion of baseplate products manufactured by Nedec/Kodec at the Beyonics Group expense ("the Diversion Loss"); and

(c) loss of profits from the loss of future sales that would have been obtained by the Beyonics Group but for the breaches ("the Total Loss").

62 The claim by BIPL under [59(b)] above was in relation to salary paid by BIPL pursuant to one of the Resignation Agreements referred to in [6] above.

63 As indicated, the 672 Trial Judge found in favour of the 672 Plaintiffs although the sums awarded in respect of the Diversion Loss and the Total Loss were less than the sums claimed by the 672 Plaintiffs (at [225]-[226]):

64 The Court of Appeal upheld the awards made in relation to the sums paid under the Wyser Agreements and those made in respect of the unjustified expenses and salary. It disallowed the awards in relation to the Diversion Loss and the Total Loss on the basis that any such loss had not been incurred by BTL but by BAP, which was not a party to the 672 Action.

65 The primary claim in this action is brought by BAP and is founded upon an allegation that Mr Goh owed a duty of loyalty and fidelity to BAP. In the alternative, substantially the same claim is made on behalf of BAP, BTEC and BPM individually. The alleged breaches are based on the same allegations as were made in the 672 Action.

66 There is also a claim against Wyser brought by BAP or, alternatively, by BAP, BTEC and BPM, for dishonest assistance of Mr Goh together with a claim for conspiracy by unlawful means against Mr Goh and Wyser. Again this is based on the same allegations as were made in the 672 Action.

67 The relief sought in respect of all these claims is for the same Diversion Loss and Total Loss that was disallowed in the 672 Action. These claims therefore mirror the claims previously made by BTL in the 672 Action. It is however to be noted that the sums claimed in relation to those alleged losses were not the sums awarded by the 672 Trial Judge but the higher sums claimed by the 672 Plaintiffs.

68 Additional claims have, however, been brought in this action.

69 First, it is alleged that Mr Goh breached his duty to disclose to BAP his alleged breaches of fiduciary duties such that BAP paid Mr Goh the sum of S$200,000 as a bonus which BAP would not have paid had Mr Goh disclosed his breaches (the "Unjustified Bonus Claim").

70 Secondly, it is alleged that Mr Goh's failure to disclose to BAP, BIL and BTS his alleged breaches of fiduciary duties caused those parties to enter into one of the Resignation Agreements referred to in [6] above and thus to pay Mr Goh's salaries until 30 April 2013 which they would not have done had they been made aware of his breaches. These claims are equivalent to the claims made by BILP in the 672 Action ("the Unjustified Salaries Claim").

71 It is clear that Mr Shaw was informed before the 672 Action was commenced that the losses claimed by BTL in the 672 Action were in fact losses which would have been directly suffered by BAP. Paragraph 3.4 of the FTI Report states:^[6]

And continues in paragraph 3.6:^[7]

72 Mr Shaw was cross-examined on these matters and was somewhat evasive in answering the direct question of whether he knew before the 672 Action was commenced that the loss had actually been suffered by BAP but eventually accepted that at that time he was clear where the revenue was booked.^[8]

73 I am therefore satisfied that the Diversion Loss and the Total Loss claims could have been brought by BAP (and, if necessary, in the alternative, by BAP, BTEC and BPM) in the 672 Action.

74 Equally it is clear that the directors of BTL were aware of the existence of both the additional claims when the 672 Action was commenced. In an affidavit sworn on 24 July 2013 by Mr Gerhard Mueller, a director of BTL, in support of an application for a Mareva injunction and Anton Pillar order against Mr Goh and his wife, Mr Mueller referred to the Unjustified Bonus Claim and the Unjustified Salaries Claim and stated in respect of both that " [ t]he Beyonics Group reserves its right to make a claim for the same at the appropriate time ".^[9]Mr Shaw made the same reservation in his AEIC sworn in the 672 Action on 20 April 2015 when he stated in relation to the Unjustified Bonus Claim, " a s the parent company of BAP, and on behalf of BAP, [BTL] reserves BAP's right to make a claim for this sum ". In relation to the Unjustified Salaries Claim he was equally specific when he said " [ a]s the parent company of BAP, BIL and BTS, [BTL] reserves BAP's, BIL's and BTS's rights to make claims for the salary payments made to [Mr Goh] ".^[10]

75 Mr Shaw was cross-examined on these matters^[11]and accepted that he was aware of the existence of these claims before the 672 Action was commenced.^[12]Three passages should be noted:^[13]

76  On the basis of this, I am satisfied that the Plaintiffs were aware of the facts giving rise to the Unjustified Bonus Claim and the Unjustified Salaries Claim and could have been authorised by Mr Shaw to bring those claims in the 672 Action.

77 As Lord Sumption noted in Tak har v Gracefield Developments Ltd ([56] supra ) at [63], the word "should" refers to something which the law would expect a reasonable person to do in his own interest and in that of the efficient conduct of litigation.

78  Dealing first with the Diversion Loss and the Total Loss claims, the factual background to these claims was necessarily going to be investigated in the 672 Action because of the claims made for those losses by BTC. All that was necessary therefore was for the pleadings to be amended to add BAP, BTEC and BPM as Plaintiffs in the 672 Action, claiming in the alternative to BTL in much the same way as has now been done in this action.

79  The Plaintiffs accept that had the allegation that BAP rather than BTL had suffered the Diversion Loss and the Total Loss been expressly pleaded in the 672 Action, that BTL "could have easily taken steps to add BAP"^[14]to the 672 Action. They assert however that since the matter was not pleaded and was alluded to only twice in cross-examination and was covered in greater detail only after the trial in closing submissions that it was reasonable for them not to have applied to amend to join BAP, BTEC and BPM as plaintiffs in the 672 Action.

80 In [68] and [69] of the 672 Appeal Judgment, it was held that there was no requirement that the matter should be expressly pleaded and that it was wrong to say, as the 672 Plaintiffs contended, that the 672 Defendants had dropped the matter. In so far as it is open to me to consider the matter afresh, which I doubt, respectfully, I agree. At the latest, by the time the written closing submissions were received the Plaintiffs' advisers could have been in no doubt that the point was being taken and they elected to deal with the matter by taking the pleading point and contending that they had been taken by surprise. No application to amend was made.

81 Order 20 rule 5(1) of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) provides that:

82 An application to amend can be made during or even after trial (see Singapore Civil Procedure 2020 (Vol 1) (Sweet & Maxwell, 2020) at para 20/8/6). The principles which apply to any application to amend are well known and are considered in para 20/8/8 of the same. For present purposes it is sufficient to record that in general amendments ought to be allowed to be made "for the purpose of determining the real question in controversy between the parties" (per Jenkins LJ in G.L. Baker Ltd v Medway Buildings and Supplies Ltd [1958] 1 WLR 1216 at 1231). The guiding authority which has been applied in Singapore is the UK House of Lords case Ketteman v Hansel Properties Ltd [1987] 1 AC 189 where Lord Brandon said this at 212:

83 Had the 672 Plaintiffs applied to amend either when the matter was first raised during cross-examination or after receipt of the 672 Defendants' written closing submissions, I am in no doubt that applying the above principles, the 672 Trial Judge would, in the exercise of her discretion, have allowed the amendment. The amendment was necessary to allow the real question in controversy to be decided which was whether the Beyonics Group had suffered loss by reason of Mr Goh's actions. The 672 Defendants were contending that, if there was any loss, it was BAP rather than BTL that had suffered it. BAP was thus a necessary and proper party. The application would have been made late and it may have been necessary for the experts to consider in a little more detail precisely where the losses had fallen, which might have led to the addition of BTEC and BPM as parties if the 672 Defendants took the additional point that it was those companies rather than BPM that had actually suffered some of the losses.

84 The additional work would not have been great and the 672 Defendants could have been adequately compensated by an award of costs. Refusing the application would have led (a) to the possibility of an appeal against refusal, which necessarily would have had to be heard before judgment could be given or (b) to refusal of leave to appeal which would have been seen to raise the possibility that if either the 672 Trial Judge or the Court of Appeal held that it was BAP which had suffered any losses, an injustice, far outweighing the cost and delay of allowing the amendment would arise.

85 It is these factors which lead me to the clear conclusion that the 672 Plaintiffs should have made an application to add BAP, BTEC and BPM as parties to the 672 Action to seek to recover the Diversion Loss and the Total Loss and that this application would have been allowed.

86 I turn then to consider the Unjustified Bonus Claim and the Unjustified Salaries Claim. In this case it would have been necessary for BAP, BIL and BTS to be joined as parties, for the issues to be pleaded and the necessary evidence adduced. In the case of the Unjustified Salaries Case, since the claims mirrored that being made by BIPL, minimal extra evidence would have been required. The Unjustified Bonus Claim arose out of the same matrix of facts as underlies the Diversion Loss and the Total Loss claims. Absent special circumstances, these factors are compelling. The 672 Plaintiffs knew of the existence of the potential claims yet elected not to include them in the litigation.

87 The only special circumstance relied upon by the Plaintiffs is the fact that the Defendants were specifically informed that BTL reserved the Plaintiffs' right to bring the claims at an appropriate time (see [73] above). In Johnson v Gore Wood ([44] supra ) a similar reservation was made and was a factor in the House of Lords' conclusion that in the circumstances of that case there was no abuse of process in allowing the second action to proceed. The primary reason however lay in the fact that the settlement provisions of the earlier action only made sense on the basis of an assumption that Mr Johnson was likely to make a personal claim and that he had compelling reasons to defer prosecution of that claim.

88 There are no equivalent reasons here. In cross-examination it was suggested that Mr Shaw had reserved the right to bring further proceedings as a means of putting pressure on Mr Goh.^[15]I do not accept this. I prefer Mr Shaw's evidence recited in [74] above which is to the effect that he and his lawyers had identified many possible claims and made an election as to which to put forward in the 672 Action for reasons which he cannot now explain. He advanced no reasons for making the election not to include these claims in that action and, without compelling reasons, it is right to conclude that these claims should have been included in the 672 Action as well.

89 The Plaintiffs deal with the question of whether they should have brought the current claim in the 672 Action at some length in their written closing submissions.^[16]

90 First, they contend that plaintiffs must be at liberty to decide whether to sue and, if so, who to sue and when. This however cannot be an unfettered freedom. One of the fetters on that freedom is the Henderson v Henderson doctrine. The suggested freedom cannot be exercised if it results in an abuse of process.

91 Secondly, they contend that there is no principle that a related group of companies is obliged to commence a single suit against a given defendant. Again, if there is such a principle, it must be a principle conditioned by or subject to the Henderson v Henderson doctrine.

92 Thirdly, they assert that BTL reasonably considered itself to be the proper party that suffered the Diversion Loss and the Total Loss and that this factor, in some way, justifies the bringing of the second action. I regret that I do not follow the logic of this. I fully accept that BTL were either advised or itself formed the belief that it was the appropriate plaintiff to claim those losses but the Court of Appeal has decided that it was mistaken in so doing. The reasonableness or otherwise of the grounds on which the belief was formed is neither here nor there; it was wrong. The question I have to decide is whether the Plaintiffs or the Defendants should suffer because of that mistaken belief. It cannot of itself constitute a basis for concluding the Plaintiffs should not have been joined as parties to the 672 Action.

93 Fourthly, they submit that since the Defendants did not take the affirmative position that BAP was a proper party to the 672 Action and/or admitted that BPL was the proper party to that action and/or failed to seek to strike out the 672 Action in so far as it related to the Diversion Loss or the Total Loss, this should count against the conclusion that BAP should have been joined as a party to the 672 Action. This is however merely a different way of contending that the Court of Appeal should not have decided the appeal in the way it did. I have to proceed on the basis that BPL was not the proper party and that this was an issue of law which the 672 Plaintiffs should have taken into account in formulating the 672 Action.

94 Finally, the Plaintiffs draw my attention to a number of matters which have occurred since the commencement of this action and which, it is suggested, should be taken into account. I do not accept this. The question of abuse of process has to be considered as at the date of the writ in this action. Subsequent events cannot influence that decision. This is amply demonstrated by the facts in Johnson v Gore Wood ([44] supra ) where there was a 4½ year delay in bringing the application under Henderson v Henderson yet it was allowed to proceed.

95 None of these points therefore undermine the conclusion I have reached that the Plaintiffs in this action should have been joined as parties to the 672 Action and brought the claims made in this action in the 672 Action. To echo the words of Lord Sumption in Tak har v Gracefield Developments Ltd ([56] supra ), I have concluded that in the circumstances of this case the law would have expected a reasonable person to done this both in his own interest and in that of the efficient conduct of litigation. Indeed, Mr Shaw reluctantly accepted this at the end of his cross-examination on this issue quoted in [74] above when he accepted that he did not have a good answer to the question why BAP, BIL and BTS were not joined as plaintiffs to make their claims in the 672 Action.^[17]

96 The fact however that a subsequent claim could and should have been brought in an earlier action does not inevitably mean that the subsequent action should be struck out as an abuse of process. As indicated in [56] above, there is a heavy burden on the Defendants to demonstrate that the Plaintiffs are abusing the process of the court by bringing this action. The Plaintiffs will only be denied the right to bring a genuine subject of litigation before this Court if it would be manifestly unfair to the Defendants for this to be done. In the light of the 672 Judgment it is plain that the Plaintiffs have a genuine cause of action.

97 I therefore turn to consider the factors that the Defendants rely upon as supporting the suggestion that it would be manifestly unfair on them to be exposed to the burden of a further trial.

98 Mr Goh gave evidence as to the way in which the 672 Action was conducted in paragraphs 452 to 500 of his AEIC in this action, which was not the subject of cross-examination. I can consider his evidence concerning the Plaintiffs' and Mr Shaw's conduct under three headings: conduct before the 672 Action, conduct during the 672 Action and conduct after the 672 Appeal Judgment prior to the writ in this action.

99 Mr Goh ceased to be a director of companies in the Beyonics Group on 9 January 2013 and under the Resignation Agreements, his employment was to end on 30 April 2013. On 12 April 2013, Mr Shaw asked Mr Goh to attend a meeting on 23 April 2013 to discuss " important matters relating to the past and future business of the Beyonics Group of companies ". Mr Goh responded indicating his unavailability on that date and said that he was travelling for the rest of that week. He asked what the purpose of the meeting was, for an agenda and an indication of the attendees and suggested that the meeting be fixed for another day.

100 Mr Shaw did not provide the information requested but said that it was imperative that Mr Goh made time to meet. Mr Goh responded saying that if discussion of the matters was critical, Mr Shaw should write to him and he would consider the matters whilst on his travels. Mr Shaw then turned abusive and responded by an e-mail on 17 April 2013^[18]insisting that Mr Goh attend the meeting on 23 April 2013 to discuss his past management practices and activities as CEO and ended with the statement that Mr Goh should " act like a man instead of shrinking like a boy ".

101 Notwithstanding this Mr Goh responded on 20 April 2013 saying that he was available for a meeting in May. Mr Shaw did not take him up on this offer.^[19]It is regrettable that the parties did not meet as this might have served to diffuse the worsening relationship but, having seen both in the witness box, I rather doubt it. Taken on their own however, abusive comments prior to litigation cannot carry much, if any weight, in the overall assessment of manifest unfairness.

102 Thereafter there was no further contact between them; there was no letter before action and the 672 Action was commenced on 25 July 2013 naming Mr Goh, his wife, Wyser and another Wyser company as defendants. Nothing turns on the presence of the second Wyser company. On the following day, the 672 Plaintiffs sought and obtained an ex parte Mareva injunction from the Singapore Court against Mr Goh, his wife and Wyser in standard form: restraining them from disposing of assets worldwide up to S$12 million, together with an asset disclosure order. The order limited Mr and Mrs Goh to spending S$2,000.00 a week towards living expenses and S$5,000.00 a week on legal advice provided they told the 672 Plaintiffs' solicitors where the money came from and accounted once a week for the amount spent.^[20]

103 The next day, 27 July 2013, an equivalent order was obtained ex parte from the Hong Kong Court restraining them from disposing of assets in Hong Kong up to HK$73.5 million.^[21]

104 The matter did not return to court in Singapore for a continuation of the Mareva injunction until 2 April 2014 when Mr and Mrs Goh offered to have caveats lodged against five properties that they owned to obtain release of the injunction. The judge acceded to this offer and directed that the Plaintiffs be at liberty to lodge the caveats which would remain until after the decision on the trial or until further order. The Mareva injunctions were thus discharged, having been in force for some nine months.

105 On 28 June 2016, the 672 Judgment was handed down ordering the Defendants to pay almost US$8 million, which they did. The Plaintiffs, however, declined to release the caveats without seeking a further order from the court on the basis that this would serve to protect the Plaintiffs in respect of any order as to costs and disbursements.

106 The effect of the 672 Appeal Judgment was that the Defendants only had to pay the 672 Plaintiffs some US$500,000.00 so that, in the event, the two Mareva injunctions gave the 672 Plaintiffs far greater protection than they were entitled to.

107 Mareva injunctions are exceptional remedies granted in specific circumstances where the potential loss to plaintiffs if defendants are not restrained from disposing of assets outweighs the invasion of the defendants' privacy and deprivation of their right to deal with their assets and live their lives as they please. It is a necessary shield for plaintiffs but one cannot get away from the fact that it will inflict damage not only financial but also, almost inevitably, emotional on defendants without their first having been held to be liable to the plaintiffs at all. This is particularly so in a case such as the present where Mrs Goh, against whom no cause of action was raised, was subject to the Mareva injunction.

108 I emphasise that the 672 Plaintiffs did nothing wrong in seeking the Mareva injunctions. The courts held that they were entitled to them and the variation nine months later still placed a fetter on Mr and Mrs Goh's freedom to deal with their properties as they saw fit. Where a party obtains these exceptional remedies, which inevitably will serve to place pressure on the defendants, it is incumbent on them to prosecute their claims against those defendants with the utmost diligence in accordance with the rules and with respect for the defendants' position.

109 In my judgment, the 672 Plaintiffs failed in that duty. First, rather than bringing all their claims in the 672 Action, they expressly elected to reserve certain claims for a later date and did not seek to join the current Plaintiffs to that action. In the circumstances, this was inappropriate as it left the 672 Defendants uncertain as to when the litigation was going to end. Once the Mareva injunctions were in place I consider that there was an added burden on the 672 Plaintiffs to ensure that all the claims which the Beyonics Group wished to make arising out of the same matrix of facts were in fact made so that there could be an end to the dispute as early as possible.

110 Secondly, following the 672 Judgment at first instance, they did not seek a continuation of the caveats, which lapsed when the Judgment was given, but declined to withdraw them on the basis that this provided them with security for costs and disbursements. Whilst a continuation of the some of the caveats might have been ordered by the 672 Trial Judge pending payment of costs, an application should have been made and it was not. Without such an application, their conduct was inappropriate and would have had the effect of placing further unwarranted pressure on Mr and Mrs Goh.

111 At the time, it appears that Mr Shaw was aware of and indeed wanted there only to be one trial and must therefore have accepted that the claims that he had purported to reserve would never be brought. In cross-examination he said this:^[22]

112 Following the 672 Appeal Judgment, the 672 Defendants sought the return of the excess damages that they had paid following the first instant judgment. They had paid some US$8 million and the Court of Appeal's award was for less than US$500,000. The 672 Defendants' solicitors sought repayment by letter dated 4 July 2017. The 672 Plaintiffs' solicitors replied by letter dated 10 July 2017 refusing to do so on the basis that there could be no dispute that the Defendants were liable to pay the excess sums to BAP. On the same day BAP, BIL and BTS wrote to the Defendants demanding not only that the excess sums should be paid over to BAP but also making the Unjustified Bonus and the Unjustified Salaries Claims.

113 The inter-solicitor correspondence ran on without result which led to the 672 Defendants writing to the Court of Appeal on 14 July 2017 seeking an order for the refund of the excess. Again, the 672 Plaintiffs refused to back down and some fairly acrimonious correspondence ensued. The 672 Defendants wrote again to the Court of Appeal on 17 July 2017 following which the 672 Plaintiffs did back down and by a letter dated 20 July 2017 agreed to refund the excess by 31 July 2017. In fact, this was not done until 3 August 2017.

114 The 672 Plaintiffs' conduct in this regard was unacceptable. They had no right to retain the excess and they knew it. They sought to use possession of the excess to place pressure on the Defendants in this action to agree to pay the money to the Plaintiffs without a court order compelling them to do so. Once the Defendants declined to agree to the 672 Plaintiffs' suggested course of action, those Plaintiffs were obliged either to repay the sums or, possibly, start a new action naming these Plaintiffs as parties and seeking an order of the court that the new Plaintiffs should be allowed to retain the excess pending trial of the new action. Again therefore, without taking such steps, their conduct was inappropriate and would have had the effect of placing yet further unwarranted pressure on Mr and Mrs Goh.

115 In different ways, both parties sought to draw the Court's attention to the fact that allowing this trial to go ahead would amount to some form of collateral attack on the findings of fact made by the 672 Trial Judge. This however is the inevitable effect of allowing a second trial where the same or similar issues arise for consideration. As a general rule, of course, this is undesirable as it may lead to inconsistent outcomes, but in circumstances where it is appropriate to hold a second trial, as for example in Johnson v Gore Wood ([44] supra ), it is a potential consequence of requiring evidence to be led again. This does not amount to an impermissible attack on the findings in the previous judgment. What would be impermissible would be to seek in the second action to revisit the findings of the Court of Appeal in the 672 Action. This would be an impermissible collateral attack on the legal outcome which would constitute an abuse. But it is not what the Plaintiffs are seeking to do.

116 However, in considering the question of unfairness, it is right that I should take into account the fact that the 672 trial was a burdensome trial, lasting some 19 days in court followed by extensive written submissions. The 672 Judgment ran to 228 paragraphs and almost 100 pages. It is not something that an individual defendant, however pecunious, should lightly be exposed to. Yet the consequence of the decisions made by 672 Plaintiffs in that action leading to the bringing of this action must necessarily expose the Defendants, effectively Mr Goh, to a further trial of equivalent magnitude if it was allowed to proceed. In my judgment, where, as here, the new claims could and should have been brought in the earlier action with little or no additional expense, the 672 Plaintiffs should not only show that that they behaved properly towards the Defendants in that action but also that there are good reasons for allowing the second action to go to trial.

117 The sole reason put forward by the Plaintiffs is that striking this action out would be a travesty. As counsel for the Plaintiffs put it in opening:^[23]

118 The problem with this submission is that it presumes that the Plaintiffs will succeed in the second action. Whilst, having regard to the facts as found in the 672 Action, the Plaintiffs may well have viewed their prospects of success as being very high, they do not dispute that a full trial is needed to obtain judgment in their favour. It will almost inevitably be the case that the Plaintiffs in any subsequent action will believe that their prospects of success are good otherwise they would have been unlikely to start that action. The Henderson v Henderson doctrine works on the basis that a potentially valid claim will not be allowed to go to trial and this is why the unfairness to the Defendants must be manifest before the Plaintiffs are denied the right to bring a genuine claim. This is a genuine claim but it is no more than that.

119 Further, the fact that the Defendants did not seek to have the Henderson v Henderson Issue determined as a preliminary issue and therefore accepted the inevitable burden of a subsequent trial is not a matter that, in my judgment, carries any weight. Mr Goh would naturally have preferred there to be no second trial but the way in which he conducted the second trial once it had been commenced, weighing up the burden of a further trial as against the possibility of a further appeal on the Henderson v Henderson Issue, followed by the second trial if the Defendants failed on the Henderson v Henderson Issue, was a matter for him. It is not a matter relevant on the Henderson v Henderson Issue as it occurred after the date of the writ in this action.

120 Drawing all these factors together, the Plaintiffs in this action could and should have brought the claims made in this action in the 672 Action. Had the claims been raised in that action they could have been adjudicated upon without materially increasing either the burden or length of that trial. It could be foreseen when the writ in this action was issued that if this action proceeded to trial it would be of equivalent magnitude to the 672 trial. The Defendants are Mr Goh and a company controlled by him. Effectively, therefore, it is an individual who is being forced to bear the burden of a second trial.

121 The 672 Plaintiffs cannot be criticised for seeking relief in that action in the form of Mareva injunctions but where such injunctions are sought, particularly when sought against individuals, more especially against individuals against whom no other relief is sought, the Plaintiffs must act with due diligence in accordance with the rules and with respect for the position in which they have placed the Defendants by obtaining Mareva relief.

122 The 672 Plaintiffs did not do this. On more than one occasion they used the position the litigation had placed them in to further the Beyonics Group's interests but disregarded their obligations to the Defendants.

123 Taking all these factors into account I am satisfied that the Defendants have discharged the heavy burden upon them to demonstrate an abuse of process. In my judgment it would be manifestly unfair to the Defendants, particularly to Mr Goh, for a second trial to take place based on the same matrix of facts as arose in the first trial. The unfairness is such that it outweighs the right of the Plaintiffs to have what is plainly a genuine cause of action tried. This action should therefore be struck out.

124 At one stage of the argument I did consider whether it was possible under the Henderson v Henderson doctrine for relief short of striking the action out to be granted. I had in mind the possibility, for example, of making an award of costs in the second action that ensured that the Defendants were not out of pocket by reason of the failure of the Plaintiffs to bring their claims in the 672 Action. On further consideration and having received submissions on the point, I am satisfied (a) that such a course is not open to me and (b) that on the facts of this case it would not be an appropriate course to take even if it was open to me for the reasons I have given.

125 As to (a), it is only in exceptional circumstances that the Henderson v Henderson doctrine applies. The unfairness must be manifest. There must be an abuse. This is not a doctrine which gives the court an unfettered discretion to deal as it sees fit with unfairness which falls short of being manifest. It is a matter of judgment not discretion; either the abuse is manifest or it is not. If it is, the only appropriate relief is striking out. If it is not, the application fails and the trial goes ahead in the usual way.

126 Strictly speaking the decision on the Henderson v Henderson Issue makes it unnecessary for me to give judgment on the Substantive Issue. However the parties wished the trial on the Substantive Issue to go ahead, the evidence was heard and submissions were made. I shall therefore give judgment on the basis that I am wrong on the Henderson v Henderson Issue.

127 This action concerns the manufacture of baseplates which, subsequently, are further processed by the addition of motors and drives to make an end product, a HDD (hard disc drive), which is then incorporated into both desktop and laptop computers.

128 At all material times, the Beyonics Group had two manufacturing divisions, the PES (Precision Engineering Services) Division and the EMS (Electronic Manufacturing Services) Division (see [3] above). The PES Division manufactured and sold baseplates destined for end customers, such as Seagate, Hitachi and Western Digital. These baseplates are manufactured for an end customer under what is described as a "baseplate programme", with each programme having its own design specifications and schematics, and a manufacturer of baseplates must be qualified by an end customer to undertake a specific baseplate programme.

129 The baseplate manufacturing process has two main stages called the "1st Stage" and the "2nd Stage" (see [141] below). Thereafter, completed baseplates are sent to a company which assembles the other components of the HDD in a process called the motor baseplate assembly ("MBA"). This company will then ship the completed baseplate to the end customer. The MBA company which features prominently in this action is the Nidec Corporation ("Nidec") (see [134(c)] below).

130 BAP, BTEC, and BPM together with BTT (see [4] above) were part of the PES Division. BTEC owned and operated a baseplate manufacturing facility in Changshu, China, BPM owned and operated a baseplate facility in Tampoi, Malaysia and BTT owned and operated a Baseplate Facility in Ayutthaya, Thailand. BAP did not own or operate any Baseplate Facility. BAP was in essence a sales company for the baseplate manufacturing companies. Seagate and the other end customers ordered baseplates through the MBA companies which then would place purchase orders to a baseplate manufacturer selected by them, such as BTEC, BPM and BTT.

131 Prior to October 2011, the manufacture of baseplates within the Beyonics Group was divided between BTT, BPM and BTEC. In some cases, 1st Stage work was performed in one facility and 2nd Stage in another. In October 2011 there were extensive floods in Thailand which affected not only BTT's premises but the premises of other baseplate manufacturers. BTT's factory was a total write off and resulted in a significant insurance claim. The floods had a major effect on the HDD industry and it was the steps that the various players in that industry took to seek to alleviate the problems that arose that underlie this dispute.

132 At all material times, Mr Goh was both a director and the CEO of the parent company, BTL. He was also either a director or employee of all the Plaintiffs (see [153] below). The management structure of the Beyonics Group consisted of Mr Goh as the CEO of the Group and, reporting to him, there were General Managers at each manufacturing plant. Mr Lee Leong Hua, who gave evidence, was at all material times Senior General Manager of BTEC's facility at Changshu.

133  The 2nd Defendant, currently named Pacific Globe Enterprises Limited, was at the material times named Wyser International Limited and is incorporated in the British Virgin Islands. It is (and was) owned and controlled by Mr Goh. I shall refer to it as "Wyser".

134 The other companies that feature prominently are:

(a) "Seagate": Seagate Technology International, a company with its headquarters in California, was a customer of both divisions of the Beyonics Group. The PES Division manufactured and supplied baseplates for Seagate HDDs, including baseplates under what was known as the Brinks 2H programme (also known as the Pharaoh programme). The EMS Division manufactured and supplied printed circuit board assemblies. Seagate held about 40% of the HDD market over the relevant period. Mr Chua Wui Chung ("Mr Billy Chua"), Senior Manager for the Commodity Management Team ("CMT") at Seagate, was subpoenaed to give evidence at the trial by the Plaintiffs.

(b) "Nedec/Kodec": Nedec Co Ltd and Kodec Co Ltd are incorporated in South Korea and manufacture HDD and automotive components. Nedec and Kodec together with a Chinese company, Langfang Nedec Machinery & Electronics Co. Ltd ("LND"), are members of the NEDEC/KODEC Group of companies. LND has a baseplate manufacturing facility in Langfang, China. Save where necessary, I shall refer to any or all these entities simply as Nedec/Kodec. The Nedec/Kodec group is a private group of companies. The owner and Chairman was Mr Neung Woong Hwang. His son, Mr Sejoon Hwang, also known as Stephen Hwang ("Mr Hwang"), was the CEO and the chief financial officer ("CFO") was Mr Tae Sung Lee ("Mr Tony Lee"). Mr Tony Lee gave evidence on behalf of the Defendants.

(c) "Nidec": Not to be confused with Nedec/Kodec, Nidec Corporation is a Japanese manufacturer of electric motors. Their products are found in HDDs, electric appliances, automobiles and commercial and manufacturing equipment. Nidec (Zhejiang) Corporation ("NCC") and Nidec Electronics (Thailand) Co Ltd ("NET") were subsidiaries of Nidec Corporation and were at all material times MBA entities. In the case of the PES Division, NCC issued purchase orders to BAP for baseplates manufactured by BTEC, and NET issued purchase orders to BTT for baseplates manufactured by BPM and BTT. Again, save where necessary I shall refer to all these entities, together or individually, as Nidec. No witness from Nidec gave evidence at the trial.

135 In addition to Seagate, in 2010 the other principle HDD manufacturers were Western Digital, Toshiba, Samsung and Hitachi. There were two sizes of HDD, 2.5" and 3.5". In 2011 there was a measure of consolidation in the industry. Seagate acquired Samsung's HDD business, Western Digital acquired Hitachi's 2.5" business and Toshiba the 3.5" business.

136 Other entities that were involved in the manufacture of baseplates in addition to companies in the Beyonics Group and Nedec/Kodec were MMI China (a subsidiary of MMI International Holdings Pte Ltd, a Singapore company) and Nidec Brilliant, a subsidiary of Nidec. Prior to the sale of Samsung's HDD business to Seagate, Nedec/Kodec were qualified to manufacture baseplates for Samsung but not for Seagate. Prior to 2011 the Beyonics Group were qualified to manufacture baseplates for Seagate and Hitachi and, in 2011 began to manufacture also for Western Digital.

137 When the likes of Seagate, Western Digital and Toshiba launch a new product, a specific baseplate will be required. Whilst the various baseplates are fundamentally similar, the specification for each will vary.

138 In order to become a manufacturer of baseplates for, eg , Seagate HDDs, the manufacturing plants have to undergo a qualification process. Two levels of qualification are required for baseplates of any given product. First, the plant must be a qualified supplier for Seagate and, secondly, it must be specifically approved for the manufacture of baseplates for the product in question. So far as concerns Beyonics, BTEC became a Seagate qualified plant in 2005 whereas both BPM and BTT had qualified earlier (1991 and 2004 respectively).

139 Secondly, once qualified in this general sense, in order to qualify to manufacture a particular product a rigorous programme has to be followed, which takes some 4 to 6 months on average. In outline, as between, say, BTEC and Seagate, the process requires Seagate to issue drawings for the new product, followed by discussions between the relevant teams at Seagate and BTEC. Following internal discussions at BTEC coupled with the preparation of the necessary moulds, cast toolings, machining fixtures and inspection fixtures, pre-production samples, known as First Articles, would be produced. These would be inspected by Seagate and (hopefully) approved. Seagate would then send its engineering representatives to the plant to do a line qualification. Samples will be sent to the relevant MBA entity to test motor assembly and, if the MBA entity approved them, the samples will be sent to Seagate for a full assembly test run after which the plant would be allowed to proceed with full production.

140 Hence the fact that a company is qualified to manufacture baseplates for one customer does not entitle it to manufacture for another. Equally, qualification for one product does not enable to manufacturer to circumvent the rigorous qualification process for another product.

141 The manufacture of baseplates involves various manufacturing processes, which can be broadly divided into two main stages. The 1st Stage involves, among other things, die casting and ends with e-coating, and this stage is often referred to as "e-coating". The 2nd Stage involves, among other things, precision machining and other work to produce a finished baseplate, and this process is often called "machining".

142 In the 1st Stage, die casting molten metal is poured into a mould and allowed to solidify; the die casted parts are then sent for trimming, deburring and polishing after which they will be put through a process of stress relief to refine their grain structure. There is then a pre-treatment process to clean the baseplates using chemicals.

143 For some baseplates, it is necessary for pre-machining to be done. There are two machines that can be used to do this, Special Purpose Machines ("SPM") or Computer Numerical Control Machines ("CNC"). I shall have to consider the function and costs of these two types of machine below.

144 The baseplates will then be e-coated to coat the surface of the baseplates and they will be inspected prior to undergoing the 2nd Stage which may be carried out at the same facility as the 1st Stage or they may be transported to a different facility for the 2nd Stage.

145 In the 2nd Stage, CNCs and/or SPMs are used to drill holes and cut the baseplate. CNC Machines are more precise machines, but are more expensive than SPMs. Hence CNC Machines are generally used to drill critical holes and cut the baseplate whereas SPMs are used to do drilling and tapping of non-critical holes. Both machines can be used for all this work but because the SPM machine is less precise, the propensity for rejected products is greater.

146 Following sample inspection and the removal of machining burrs certain products will undergo pin assembly. The baseplates then go through a high pressure water jet and ultrasonic washing to clean the holes to remove particles that are not visible to the naked eye. The baseplates will thereafter be put through an air leak test and a final inspection before being shipped to the relevant MBA.

147 With that background, I can turn to consider the issues that arise for determination.

148 The main claims against Mr Goh and Wyser are for breaches of duties, dishonest assistance, and conspiracy. They are brought by BAP as the primary plaintiff. In the alternative, a similar claim is made by BAP, BTEC, and BPM. It is alleged that in his capacity as a director and/or an employee of those companies, Mr Goh allegedly:

(a) used Wyser secretly to enter into the Wyser Agreements and received undisclosed payments from Nedec/Kodec pursuant thereto;

(b) secured a collaboration between BAP and Nedec/Kodec ("the BN Alliance") to divert 2nd Stage work in the manufacture of baseplates for Seagate HDDs from the Beyonics Group to Nedec/Kodec, and procured a US$2.5 Million Grant from Seagate to Nedec/Kodec to assist this; and

(c) facilitated Nedec/Kodec's business with Seagate for the supply/manufacture of baseplates for Seagate HDDs in competition with BAP, BTEC, and/or BPM, with the intention that Nedec/Kodec should supplant the Beyonics Group as a supplier and/or manufacturer of baseplates for Seagate HDDs in whole or in part.

149 The claim against Wyser is for dishonest assistance of Mr Goh's alleged breaches of duty and against both Defendants for unlawful means conspiracy.

150 The primary loss allegedly suffered is the Diversion Loss and the Total Loss referred to in [61] above.

151 In addition a claim is made by BAP for the return of a bonus S$200,000 awarded to Mr Goh in January 2012 which, it is claimed, would not have been paid if Mr Goh's alleged breaches had been known to the then directors at that time.

152 Further, claims are made by BAP, BIL and BTS for the return of the sums paid to Mr Goh under the various Resignation Agreements (see [6] and [70] above) which again, it is alleged, would not have been paid if Mr Goh's alleged breaches had been known at that time.

153 Mr Goh does not dispute that he was a director and/or employee of the various Plaintiffs or that he owed them the well-known obligations of loyalty and fidelity and the fiduciary duties imposed upon directors. It is also not in dispute that Wyser is owned and controlled by Mr Goh. Mr Goh's primary defence is that at all times he acted in the best interests of the Beyonics Group in general and of each of the Plaintiffs in particular and that a thorough examination of the facts as presented to this court will demonstrate that. Accordingly, he contends that there was no breach of any of the duties owed to the Plaintiffs and that the bonus and the payments made to him under the Resignation Agreements were properly paid.

154 He further contends that the payments made to Wyser under the Wyser Agreements were in respect of consultancy work done by him in order to assist the relationship between Beyonics and Nedec/Kodec, a relationship that was in the best interests of Beyonics that he should strive to enhance. Since Beyonics was not in the business of providing consultancy work, it was appropriate that the payments should have been made to his order and not to Beyonics. In any event, following the 672 Action, all sums paid under the Wyser Agreements have been repaid and thus, he asserts, the question of whether it was appropriate for the payments to have been paid to Wyser rather than Beyonics does not arise in this action.

155 The only other minor defence pleaded relates to the BTEC's claim in relation to the Diversion Loss and the Total Loss. If, contrary to the Plaintiffs' primary case that BAP is entitled to make to claim for the whole of those losses, the claim must be made by each of BAP, BTEC and BPM for their individual losses, the Defendants contend that Mr Goh's obligations towards BTEC are governed by Chinese law and that, under that law, the claim is time-barred ("the Limitation Defence").

156 The Plaintiffs' primary case is that Mr Goh breached the fiduciary duties he owed to BAP, BTEC and BPM and/or his duties of fidelity and loyalty to BPM and that Wyser dishonestly assisted in those breaches.

157 Alternatively it is said that there was a conspiracy to injure those companies by unlawful means, the conspirators being Mr Goh, Wyser and representatives from Nedec/Kodec. The unlawful means were the breaches and dishonest assistance pleaded in this action and those upheld by the Court of Appeal in the 672 Action.

158 Much of what follows is an abbreviated extraction (with gratitude) from the Plaintiffs' written closings.

159  Every employment contract contains an implied term that an employee will serve his employer with good faith and fidelity ( Halsbury's Laws of Singapore (LexisNexis, 2017) (" Halsbury's ") Vol 9 at paras 100.171 and 100.175). This means that employees are expected to "serve their employers diligently, honestly and loyally" (see Asiawerks Global Investment Group Pte Ltd v Ismail bin Syed Ahmad [2004] 1 SLR(R) 234 (" Asiawerks ") at [61]) which includes a duty:

(a) not be engaged in any other business during their working hours without approval ( Asiawerks at [61]);

(b) not to divert business away from his employer ( Asiawerks at [61]);

(c) not to take unauthorised profits at the expense of his employer ( Halsbury's Vol 9 at para 100.177); and

(d) not to injure his employer by selling the employer's assets at a substantial discount ( Halsbury's Vol 9 at para 100.177).

160 The company-director relationship is a well-established category of fiduciary relationships and "[t]he distinguishing obligation of a fiduciary is the obligation of loyalty. The principal is entitled to the single-minded loyalty of his fiduciary " ( Snell's Equity (John McGhee QC gen ed) (Sweet & Maxwell, 33rd Ed, 2015) (" Snell's Equity ") at para 7-008). The obligation is a high one, as set out in Kumagai-Zenecon Construction Pte Ltd and another v Low Hua Kin [1999] 3 SLR(R) 1049 at [13]):

161 First, a director must act honestly and bona fide in the best interests of the company ( Walter Woon on Company Law ( Tan Cheng Han SC, gen ed) (Sweet & Maxwell, 3rd Ed, 2009) (" Walter Woon ") at para 8.16). The test in respect of the duty to act honestly and bona fide in the best interests of the company is both objective and subjective. The objective element in the test requires an examination of " whether an honest and intelligent man in the position of the directors, taking an objective view, could reasonably have concluded that the transactions were in the interests of the company " ( Walter Woon at para 8.22). The subjective element in the test relates to whether the director had exercised his discretion bona fide in what he considered was in the interests of the company. In this regard, "[d] irectors are allowed to take a wider view of what the company's interests are [and] a transaction that seems on the face of it to be a bad one may be commercially justifiable if it leads to other intangible benefits for the company " ( Walter Woon at para 8.21).

162 The subjective and objective requirements were considered by the Court of Appeal in its Judgment in the 672 Action (at [35]-[36]):

163 There is therefore an important distinction between cases where directors have in good faith made incorrect commercial decisions and cases where directors have not acted honestly. The Court of Appeal in Ho Kang Peng v Scintronix Corp Ltd (formerly known as TTL Holdings Ltd) [2014] 3 SLR 329 stated at [39]:

164 Secondly, a director must avoid and disclose conflicts of interest. A fiduciary must not place himself in a position or enter into a transaction in which his personal interest may conflict with his duty to his principal, unless his principal, with full knowledge of all the material circumstances and of the nature and extent of the fiduciary's interest, consents ( p er Lord Herschell in Bray v Ford [1896] AC 44 at 51, cited in Ng Eng Ghee and others v Mamata Kapildev Dave and others (Horizon Partners Pte Ltd, intervener) and another appeal [2009] 3 SLR(R) 109 (" Ng Eng Ghee ") at [137]). The test for determining whether a conflict of interests exists is an objective one. The law requires that there is a "reasonable perception of a conflict of interest arising" ( Ng Eng Ghee at [138]) but the law is strict: where a director is found to have placed himself in a position of conflict of interest, he will not be permitted to assert that his action was bona fide or thought to be in the interests of the company ( Walter Woon at para 8.44). More specifically a director may not obtain for himself or for a third party any property or business opportunity that properly belongs to his company ( Walter Woon at para 8.58).

165 Thirdly, a director must not take secret or improper profits obtained through the use of the company's property, information or opportunities to which he has access by virtue of being a director, without the full informed consent of the company. The duty is a strict one, as set out in Walter Woon at para 8.45(4):

166 It follows that if a director accepts a bribe in consideration for acting in a certain way in relation to the company's affairs, he will be in breach of his fiduciary duty. As stated in Snell's Equity at para 7-047:

167 Fourthly, a director must disclose his wrongdoing. Here there is a difference between the obligation placed on an employee at common law and that placed on a fiduciary, such as a director, in equity as acknowledged in Quality Assurance Management Asia Pte Ltd v Zhang Qing and others [2013] 3 SLR 631 where one of the claims concerned a bonus payment that the plaintiff made to the defendant. The High Court observed at [96]-[97]:

168 The test for dishonest assistance is a four-stage test as laid down by the Court of Appeal in George Raymond Zage III and another v Ho Chi Kwong and another [2010] 2 SLR 589 (" George Raymond ") at [20]:

169 The test for dishonest assistance is an objective test. The defendant " must have such knowledge of the irregular shortcomings of the transaction that ordinary honest people would consider it to be a breach of standards of honest conduct if he failed to adequately query them " ( George Raymond at [22]). If the defendant is found liable, he must account as if he were truly a trustee to the claimant ( Snell's Equity at para 30-080).

170 Unlawful means conspiracy is established where " two or more persons... agree and act on a course of conduct to cause damage to another " ( The Law of Torts in Singapore , (Gary Chan Kok Yew & Lee Pey Woan, eds) (Academy Publishing, 2nd Ed, 2016) at para 15.051). There are two forms of the tort of conspiracy: (i) conspiracy by lawful means, and (ii) conspiracy by unlawful means. In this case, the Plaintiffs' pleaded case relates only to unlawful means conspiracy.^[24]

171 The elements of a claim for unlawful means conspiracy were set out by the Court of Appeal in Yuanta Asset Management International Ltd and another v Telemedia Pacific Group Ltd and another and another appeal [2018] 2 SLR 21 at [142]:

172  In the case of (b) above the intention need not be predominant ( Clerk & Lindsell on Torts (Michael A. Jones, ed) (Sweet & Maxwell, 2014) at para 24-94).

173 More specifically, where there has been a plan between two or more parties to injure a company by diverting business or assisting a company's competitor and where that plan has been carried through to the detriment of the company, the Court will find an intention to injure as is demonstrated by Chew Kong Huat and others v Ricwil (Singapore) Pte Ltd [1999] 3 SLR(R) 1167 at [34]-[35].

174 It is not disputed in this case that it is necessary to attribute a state of mind to a company which is a defendant in circumstances where a given state of mind is a necessary element of the alleged wrong. Equally it is not disputed that the mind in question is the mind of the controlling director, in this case, Mr Goh (see Parakou Shipping Pte Ltd (in liquidation) v Liu Cheng Chan and others [2017] SGHC 15 at [147], citing Bilta (UK) Ltd (in liquidation) and others v Nazir and others (No 2) [2015] 2 WLR 1168 at [67]).

175 The claim for repayment of the bonus is based upon Mr Goh's breaches of fiduciary duty in failing to disclose his wrongdoing. The Plaintiffs specifically drew my attention to, and invited me to apply, the observations of Choo Han Teck J in John While Springs (S) Pte Ltd and another v Goh Sai Chuah Justin and others [2004] 3 SLR(R) 596 (" John While Springs ") at [7]:

176 The Plaintiffs rely, in the alternative, on (1) Unilateral Mistake; (2) Misrepresentation by Silence; and/or (3) Failure of Consideration.

177 So far as concerns Unilateral Mistake, the Plaintiffs base their case on unilateral mistake in equity, a notoriously difficult and controversial area of the law as the recent decision of the Court of Appeal in Quoine Pte Ltd v B2C2 Ltd [2020] SGCA(I) 2 demonstrates. The Plaintiffs commended to me some of the reasoning of Mance IJ in his dissenting judgment which they contended set out principles which were not inconsistent with the reasoning of the majority.

178 This is not a matter which the Defendants addressed in their written closings and I have my doubts as to the correctness as to the breadth of the Plaintiffs' submissions. In these circumstances I considered whether it would be appropriate to invite further submissions from the Defendants. However, having reviewed the Plaintiffs' submissions on Misrepresentation by Silence and Failure of Consideration, I concluded that if they could not succeed on the basis of those submissions, they would not succeed on the basis of Unilateral Mistake in Equity. I shall therefore not consider the law on this issue further.

179 It is well settled that in appropriate circumstances silence can to a representation.

180 In Broadley Construction Pte Ltd v Alacran Design Pte Ltd [2018] 2 SLR 110 at [28], Steven Chong JA giving the judgment of the Court of Appeal observed that:

181 In Loh Sze Ti Terence Peter v Gay Choon Ing [2008] SGHC 31 , Belinda Ang Saw Ean J stated at [77]:

182 Accordingly, where, as here, a fiduciary relationship does exist between the parties to contracts, the Resignation Agreements, silence may constitute a representation depending on how a reasonable person would view the silence in the circumstances. More specifically, would the reasonable person regard the silence as being a representation that the fiduciary had no wrongdoings to disclose to his employer?

183 In addition, the person to whom the representation was made must show that he relied upon the representation as an inducement to enter the contract. The false representation need not be the sole inducement, as long as it " played a real and substantial part and operated in their minds , no matter how strong or how many were the other matters which played their part in inducing them to act " ( Panatron Pte Ltd and another v Lee Cheow Lee and another [2001] 2 SLR(R) 435 at [23]).

184 The Court of Appeal considered this aspect in its Judgment in the 672 Action (see the 672 Appeal Judgment at [85]-[92]). Judith Prakash JA, giving the judgment of the Court, distinguished the entitlement of an employee to retain salary owning to him on termination of a contract from his right to retain a bonus paid in circumstances where there was a breach of a fiduciary relationship in [86]-[88]:

185 However the Judgment went on to consider the question of consideration in circumstances where the employee has not insisted on his contractual right to payment but has entered a subsequent contract on different terms and Prakash JA reasoned as follows at [88]-[89]:

186 Accordingly, in circumstances where it is the employee who requests an abridgment of his contractual notice period and it is the employer who accedes to that request, the employee is, in law, providing no consideration for the resultant agreement. Whilst any findings of fact made in the 672 Action are not binding upon me, this court is bound by the findings of law.

187 It is well established that the common law test for establishing causation is the "but-for" test in which the defendant will be liable only if the plaintiff's damage would not have occurred "but for" his wrongful act. Until very recently the position in equity in cases such as the present where the alleged wrong consists of a breach of fiduciary duties was less clear.

188 However, following the service of the written closings in this action the Court of Appeal handed down judgment in Sim Poh Ping v Winsta Holding Pte Ltd and another and other appeals [2020] SGCA 35 (" Winsta "). At the parties' request I invited further written submissions on the impact of this judgment on the facts of this case.

189 The Winsta judgment focusses on what are referred to as "non-custodial" breaches of trust which do not involve any damage to or loss of property in the fiduciary's custody. These duties include the duties of "no conflict" and "no profit" as well as the duty to act in good faith which are precisely the duties alleged to have been broken in this case (see Winsta at [253]).

190 The judgment of the Court was delivered by Andrew Phang Boon Leong JA who considered three possible approaches that had been applied in previous cases (at [89]-[92]):

191 Following a detailed review of authorities and learned articles in a number of common law jurisdictions, reasons were given in [240]-[243] for preferring Approach 3:

192 A summary of the applicable approach is contained in [254]:

193 This therefore is the approach to causation that I shall adopt in this case.

194 All the witnesses that gave evidence before me were giving evidence in relation to events that occurred from 2010 until 2013, some seven to ten years ago. Many of them had already given evidence in relation to precisely the same events at the 672 trial. At the outset therefore it is appropriate to bear well in mind that the contemporaneous documents may provide a more reliable record of the events than will the recollection of a witness some years after those events occurred.

195  As the Court of Appeal observed in OCBC Capital Investment Asia Ltd v Wong Hua Choon [2012] 4 SLR 1206 at [41], a case concerned with a dispute over the existence and terms of an alleged contract:

196 Similarly, in Sandz Solutions (Singapore) Pte Ltd and others v Strategic Worldwide Assets Ltd and others [2014] 3 SLR 562 (" Sandz Solutions ") at [77], the Court of Appeal held that in circumstances where the events in question took place many years ago, it would be preferable to place more reliance on the objective documentary evidence.

197 The same considerations apply to cases such as the present where the witnesses are trying to recall what transpired in phone conversations or at meetings of which partial written records in the form of contemporaneous documents exist, either in the form of Board minutes, presentation documents or e-mails. There is however a difference between a witness's recollection of a particular event and their recollection of working practices and working relationships that existed at the time. Whilst a proper degree of caution has to be taken in assessing the weight that should be given to evidence given many years later as to who said what to whom at a particular meeting or in a given conversation, the same may not apply in an appropriate case where a witness is giving evidence as to the way in which a particular business operated over the years or as to the dynamics of a particular relationship. These are matters on which recollections long after the event may carry more weight.

198 Equally care has to be taken when reading documents, particularly e-mails, after the event in the context of litigation. E-mails are not documents written on oath and, in the present case, most were written in English which was not the native tongue of the writer. Undue focus on the precise language used is not helpful. What may be helpful is evidence from the writer or recipient as to the relationship between them which may account for the way in which something was written or, indeed, explain why certain things which might have been said were not said or were not directly stated.

199 The parties requested a period of time in which to prepare written closings and indicated that they were prepared to forgo the right to ask for oral submissions thereafter. I agreed to this but reserved the right to ask for oral submissions on any issue that I felt required this after I had read the written closings. After a requested extension of time, these were provided on 20 March 2020. They were voluminous, running to 379 pages for the Plaintiffs and 298 pages for the Defendants. Whilst these do reflect to a certain extent the amount of documents and evidence, it is a matter of concern that the volume (and hence the expense) may be disproportionate to the sums at stake in the litigation.

200 It is regrettable but perhaps inevitable that matters have become polarised with the passage of time and that both the parties and their advocates have somewhat lost a sense of objectivity. The written closings have thus been written from opposite ends of the spectrum making the judicial task of determining the truth, or as near to the truth on the balance of probabilities as is realistically possible after the passage of time, a more difficult task. An extreme example of this is the parties' submissions on the credibility of Mr Goh as a witness.

201 In paragraph 189 of their written closing the Plaintiffs said this:

202 In contrast, in paragraph 196 of their written closing the Defendants submitted the direct opposite:

203 That said, I am grateful to counsel for the clarity with which they have structured their submissions and the logical way in which they have approached the facts. I shall deal with the specific observations that they make on the weight to be attached to individual aspects of each witnesses' evidence as they arise. I shall first however consider the general demeanour of the witnesses of fact in the order in which they gave evidence. For convenience I may repeat some of the observations made above in relation to the Henderson v Henderson Issue.

204 Mr Shaw is a powerful personality who was intimately involved in the purchase of the Beyonics Group and became Chairman of Channelview after the take-over. He was not however involved at all in the events that give rise to the allegations of breach of duties which took place in the period up to January 2012 when the BN Alliance agreement between Beyonics and Nedec/Kodec was signed. He was not involved in the decision to pay the bonus but did agree to the terms of the Resignation Agreements. Much of his evidence consisted of conjecture and/or of his opinion of what he would have done had he been Chairman in 2011 or what Mr Goh should have done at that time which is both inadmissible and unhelpful.

205 Further, it was plain from his evidence that he had concluded that Mr Goh had committed the "crimes and misdeeds" of which he was accused.^[25]This is not surprising given the outcome in the 672 Action but it did lead to him to be somewhat combative and conclusory in his evidence. It also led to some feisty exchanges with counsel for the Defendants. However, making due allowance for this, I consider that Mr Shaw was doing his best to assist the Court on factual matters within his direct knowledge but I do regard the documents as generally providing a better record of the relevant events in which he was involved. His evidence based on those matters was, inevitably, coloured by subsequent events.

206 Ms Tan, who is also known as Rita Tan, was and is the Senior Planning Manager of BPM. BPM, Beyonics' Malaysian company, carried out both 1st and 2nd Stage work for some Seagate products but, in relation to the Brinks 2H product, the product in question here, it was only qualified to carry out the 1st Stage work. Until the floods in October 2011 those baseplates were then shipped to BTT in Thailand for the 2nd Stage work to be done. Thereafter all the Brinks 2H work was carried out at BTEC. Ms Tan gave evidence as to the ordering process for baseplates and the regulation of capacity in the factory, the effects of the floods and certain difficulties in supply which occurred in 2012. She also gave evidence about transferring CNC and SPM machines between the various plants. She was plainly highly experienced and gave her evidence fairly.

207 Since there are two Mr Lees who gave evidence I shall refer to this witness as "Mr LH Lee". Mr LH Lee worked for the Beyonics Group for 37 years from 1981 until he retired in 2017. At all material times he was the General Manager or the Senior General Manager of the BTEC factory. He reported to Mr Goh until Mr Goh resigned and remained at BTEC under the new management. He gave evidence on behalf of the Plaintiffs. His evidence covered the manufacturing processes, the volume of manufacture over the years, the effect of the floods, the growing relationship between BTEC and Nedec/Kodec in 2011 and 2012 and the potential capacity of BTEC to carry out additional 2nd Stage work after the floods. In relation to most of these matters he gave his evidence clearly and fairly. However, I found his evidence, particularly his written evidence, on BTEC's potential capacity to carry out 2nd Stage work somewhat strained and gained the impression that he found himself in the invidious position of a man who had served two masters, Mr Goh and Mr Shaw, and was more concerned at pleasing the latter. I shall make due allowance for this.

208 Mr Billy Chua has been employed by Seagate since 1989. At the material time he was Senior Manager for the Commodity Management Team and he was responsible, inter alia , for the strategic sourcing and planning of the supply chain for baseplate manufacture. As such he was involved with Beyonics and, after the take-over of the Samsung business by Seagate, with Nedec/Kodec. He was particularly involved with both companies after the floods. Mr Chua reported directly to Mr Scott Lamb, the Executive Director, and indirectly to Mr Toh Han Chiow ("Mr HC Toh"), the relevant Vice-President.

209 Mr Chua came to give evidence pursuant to a subpoena issued by the Plaintiffs. He did not provide an AEIC and was therefore examined orally in chief by counsel for the Plaintiffs and then cross-examined by counsel for the Defendants. It is clear from the pleadings and from other evidence that both parties seek to rely on the evidence of Mr Chua. In particular paragraph 21 of the Defence gives particulars of a number of matters involving Mr Chua on which the Defendants rely. In the 672 trial Mr Chua was subpoenaed by the 672 Defendants.

210 I regard Mr Chua as being a neutral witness. He gave his evidence both in chief and in cross-examination fairly and with as much precision as one could hope for given the passage of time. He was able to add colour to some of the documents and I consider that it is appropriate to attach weight to many of his explanations.

211 Mr Goh is the first defendant. I have referred to him and his position as CEO of the Beyonics Group above. He was intimately involved in the matters which give rise to this dispute and his conduct has been stigmatised by the Plaintiffs both in their pleadings and in the evidence of Mr Shaw. He was held in the 672 Action to have committed "egregious" breaches of the duties he owed to Beyonics. He was subjected in this action to a lengthy and penetrating cross-examination for the second time. It is therefore not surprising that he appeared defensive in the witness box and was on occasions more than a little prickly. That said, I cannot accept the Defendants' submission that he was a wholly candid witness. Too often he was evasive in his answers and I do not consider that this can be ascribed to any difficulty with language or due to the lapse of time. As with Mr Shaw, I regard the documents as providing a better record of the events and I approach with caution evidence given by Mr Goh that elaborates on the documents in a way which seeks to cast them in a more favourable light than a plain reading would suggest.

212 Professor Chua is currently the KITHCT Chair Professor at The School of Computing, National University of Singapore. He was the founding Dean of the School of Computing in 1998 and has a PhD from the University of Leeds in the UK. He was a non-executive Director of the holding company, BTL, from October 2002 until its purchase by Channelview in February 2012. He was Chairman of BTL's Compensation Committee between 2008 and 2012. As such he was responsible for agreeing to the bonus of S$200,000 awarded to Mr Goh in January 2012.

213 Professor Chua served in the army with Mr Goh and has thus known him for a long time and it was this relationship that led to Professor Chua being appointed as a non-executive Director.

214 His AEIC was short and to the point, dealing with the manner in which the Board conducted its business, the presentations that were made to it and its relationship with Mr Goh. It went on to consider the BTL Board's decision to divest itself of the PES Division in 2010 and the Board's involvement in decisions following the floods, particularly the decision to enter the BN Alliance with Nedec/Kodec in late 2011. He deposes to the reasoning behind the Compensation Committee's decision to award the bonus.

215 In cross-examination, it was clear that he was very well informed as to the nature of the Beyonics Group's business and was knowledgeable as to the way it worked. He was measured and coherent and was of assistance to the court in explaining the working practices of the Board over the years. In all but one respect I consider it appropriate to place reliance on his evidence. However, at the end of his AEIC he gives his opinion as to the attitude that he thinks the Board would have taken to the sums that Wyser received under the Wyser Agreements had they known of them in late 2011, which they did not. I did not find this hindsight reasoning to be compelling and consider that it demonstrated that he had an over-close relationship with Mr Goh and that his views did not represent the attitude which I consider the full Board should have taken had they been aware of the payments, particularly if it became aware of them otherwise than by disclosure by Mr Goh. I shall take this factor into account when assessing the weight to be attached to Professor Chua's other evidence.

216 At the relevant time Mr Tae Sung Lee, also known as Mr Tony Lee, was the CFO of Nedec/Kodec. He was involved in forming the relationship between Nedec/Kodec with Seagate after the take-over by Seagate of the Samsung HDD business. He was particularly involved in negotiations between Nedec/Kodec with Beyonics which led both to the BN Alliance and to the offer by Nedec/Kodec to purchase BTEC in April 2012. He also gave evidence concerning the Wyser Agreements.

217 Mr Tony Lee was a courteous personality whose comprehension and use of English was adequate but not great. He had a better understanding of written English and was plainly not always sure what the question was in cross-examination when hearing it orally. He was more at ease when he had the opportunity to review the question in writing on the live-note transcript. This was not a facility that was used at the 672 trial and caused Mr Tony Lee to seek to explain the difference between some answers that he gave in cross-examination in that trial and in this on the basis that he had not fully understood the equivalent question in the 672 trial. His written evidence however closely dovetailed with that of Mr Goh and there were elements of his cross-examination which caused him to give evidence which was not wholly consistent with the contemporaneous documents. Again therefore the contemporaneous documents may paint a more reliable picture.

218 Having worked for Samsung until 2009, Mr Seo joined Nedec/Kodec and by October 2011 had become the General Manager of the Nedec/Kodec's LND facility at Langfang in China. It was at this factory that the Nedec/Kodec side of the BN Alliance took place. After the floods, baseplates which had undergone the 1st Stage at BTEC were then shipped to Langfang where Nedec/Kodec carried out the 2nd Stage. Mr Goh and others at BTEC assisted Mr Seo and his team to obtain qualification with Seagate to carry out this work. Mr Seo gives evidence as to the assistance that was provided. He gave evidence through an interpreter, with the usual attendant difficulties. The interpreter was extremely efficient, taking down the questions and answers in shorthand before translating them. Mr Seo however appeared to find the process a difficult one and some of his answers were somewhat tangential to the questions. I consider that there is substance in the Plaintiffs' submission that Mr Seo's written evidence contained an overabundance of suggested detail which is not supported by the facts and that he was being used as a mouthpiece for matters which were not within his actual knowledge. Again, the documents provide a more balanced record.

219 The facts are complex and the facts on discrete issues are often intertwined. In very general terms the following separate aspects arise:

(a) the Beyonics Group's attitude to the future viability of the PES business after 2009;

(b) the events leading to the purchase of the Beyonics Group by Channelview;

(c) the attempts to dispose of elements of the PES business, particularly BTEC;

(d) the development of the relationship between Beyonics and Nedec/Kodec, relating to the possibility that Nedec/Kodec might make an offer for BTEC;

(e) the development of the relationship between Seagate, Beyonics and Nedec/Kodec leading to the BN Alliance;

(f) the effect of the 2011 floods;

(g) BTEC's capacity to manufacture 2nd Stage baseplates after the floods.

(h)  the knowledge and involvement of Mr Shaw in Beyonics' business prior to the purchase by Channelview;

(i) the negotiations leading up to the Wyser Agreements; and

(j) the knowledge and involvement of the Board of BTL in making decisions with regard to the BN Alliance and the Wyser Agreements.

220 When Mr Goh started to work for the Beyonics Group, the PES Division was thriving and profitable. The manufacture of baseplates is however a high volume, low profit business. Over the years, owing to a number of factors, not least the increasing market for tablets and iPads that did not require HDDs and the fact that some of the MBA companies had acquired their own baseplate manufacturing facilities, the market for baseplates became increasingly more competitive and less profitable.

221 In the financial year ending in July 2009 ("FY 2009") the PES Division suffered a loss of S$5.4 million on a turnover of S$131.3 million and in the financial year ending in July 2010 ("FY 2010"), a loss of S$7.9 million on a turnover of S$151.4. In contrast the EMS Division's business was both substantially greater and more profitable, recording a turnover of S$1.47 billion and a profit of S$13.9 million in FY 2009 and a turnover of S$1.4 billion and a profit of S$20.7 million in FY2010.^[26]

222 In consequence in 2010 the Board of BTL, which included Mr Goh, Professor Chua and Mr Chay, took the view that it should seek to divest the PES Division. Professor Chua said this:^[27]

223 Mr Goh gave evidence to the same effect.^[28]Both witnesses were cross-examined on their evidence.^[29]In particular Professor Chua said this:^[30]

224 No written record recording this decision has been adduced and both witnesses were challenged on the basis that if such a decision had been made at a Board meeting, it would have been recorded in the Minutes of that meeting. A number of such Minutes have been produced and it can be seen that they seldom extend over more than two pages as a record of meetings which lasted for several hours. Professor Chua gave evidence that usually Mr Goh would give a presentation to the Board, which would be followed by discussions on the topics raised. He said that a decision to divest was a sensitive matter and that it would not be expressly minuted until there was a specific offer on the table.^[31]

225 I accept Professor Chua's evidence on this issue of divestment and am satisfied, on the balance of probabilities, that the Board did make a decision sometime in 2010 to divest itself of the PES business if an appropriate opportunity arose. It did not employ consultants to assist in this but relied upon contacts of the Board members, particularly Mr Chay and Mr Goh, to set the process in motion. Mr Goh gave evidence that thereafter he had casual discussions with KKR, Carlyle, Standard Chartered Bank private equity, and Nidec^[32]but no documents recording these discussions exist.

226 In September 2010, the Board made a decision to limit further capital investment into the PES Division.

227 In paragraphs 24-25 of his AEIC Professor Chua said this:

228 An extract from Item 6.1 of those Minutes reads:

229 It would not make commercial sense to limit the investment in the business without an exit strategy of some kind, otherwise the business would simply be left to wither on the vine. The contemporaneous documents are thus consistent with a decision to seek to divest the PES Division.

230 Indeed there are documents which indicate that the decision had been made and communicated at least to Mr LH Lee as early as March 2010 as appears from an e-mail exchange with Mr Goh on 18 March 2010^[34]in which he reported on a meeting with NCC (part of Nidec) who had been asked whether Nidec were interested in purchasing BTEC and had been told that they were not keen to do so.

231 Mr Goh gave evidence of his (hazy) recollection that the Board had specified that any investment greater than US$1 million required Board approval and from US$10,000 up to US$1 million required Mr Goh's approval.^[35]Professor Chua did not specifically corroborate these figures but did confirm that all capital expenditure approved by the Board was at budgetary meetings attended by the division managers.^[36]

232 Investment was thus not ruled out but was controlled at Board level and a measure of capital expenditure was approved. Two examples are, first, the purchase of the outstanding 20% shares in Wealth Preview (an e-coating business) in October 2011^[37]at a price of RM994,400 which, as Professor Chua observed, was not a large sum for a business 80% of which Beyonics had purchased in 2008.^[38]Secondly, capital expenditure of S$2,651,000 was incurred in FY 2011 and S$2,933,000 in FY 2010 but it is to be noted that this should be compared to S$36 million in FY 2007 and around S$17 million in FY 2008 and 2009.^[39]I am therefore satisfied that the policy of limiting investment in the PES division was implemented as recorded in the minutes.

233 This policy continued into 2011. The Board Minutes for 10 June 2011 record:^[40]

234 As indicated in [5] above it was in late 2010 or early 2011 that Mr Goh met with Mr Tsui Sung Lam and the possibility of SKP purchasing the whole of the Beyonics Group, both the PES and EMS Divisions, was first considered by Mr Shaw. The course of the negotiations was succinctly summed up by Mr Shaw:^[41]

235 During the course of the negotiations a letter was written on 6 July 2011 by SKP to Standard Chartered Bank in Hong Kong concerning the possibility of finance for the proposed purchase.^[42]This is a comprehensive document answering various questions which has been asked by the bank. These focused on the PES Division, its viability and SKP's intentions in relation thereto. There were concerns about the current losses of that division but in answer to Question 3 SKP did express the view that the business could be profitable in the future. Question 4 relates to the possibility that the PES division might be shut down and on the effect that such a decision might have on the relationship between Seagate and the EMS division. In response, SKP said:^[43]

236 Mr Shaw confirmed that before writing this letter he had spoken with Mr Goh and that it was both Mr Goh's and the Bank's view that the PES Division should be sold. He however kept an open mind on this and, in the event, after the floods and the eventual takeover of the business, Mr Shaw elected not to dispose of the PES Division. He expressed his thinking as follows:^[44]

237 As at July 2011 therefore SKP was fully informed as to the financial position of the PES Division and was well aware of the possibility of a sale, including a sale to a competitor in the PES business, and that, with this in mind, it was prudent to maintain the current business so far as possible. At this time therefore SKP's thinking was little different to that of Mr Goh and the main Board.

238 As Mr Shaw indicated there was then a delay before matters were carried forward by the Facility Agreement with the banks dated 3 October 2011,^[45]and the Implementation Agreement between Channelview and Beyonics dated 5 October 2011.^[46]My attention was drawn to clause 3.1.10 of the Implementation Agreement which defines Seagate, inter alia , as being a "Major Customer" of Beyonics and it was a condition precedent to the acquisition that there was no loss of a "Major Customer" before the completion of the purchase. Mr Goh sought to suggest that the importance of Seagate lay in relation to the EMS Division rather than the PES Division.^[47]I do not accept this. Business with Seagate in both divisions was important and was recognised without distinction in the Implementation Agreement. However, nothing turns on this as, first, Seagate was not lost as a customer prior to the completion of the purchase and, secondly, I have no reason to believe that Clause 3.1.10 had any influence on the thinking or actions of Mr Goh thereafter.

239 Further it should be noted that prior to the takeover Mr Chay and Mr Goh between them owned 19.98% of the shares in BTL (Chay owned 15.90% and Goh owned 4.085%).^[48]By virtue of a Subscription Agreement entered into by Mr Chay and Mr Goh with Bayport and Channelview on 5 October 2011, they were between them to subscribe for 25% of the ordinary shares of Channelview (together with some preference shares).^[49]Mr Goh's share of this amounted to 6.47% of the ordinary shares which he estimates to have been worth some S$9 million at the time of the takeover.^[50]He did not sell these shares until some years later, possibly as late as 2016.^[51]

240 This, to my mind, is a significant factor which should be taken into account in assessing whether or not Mr Goh was disregarding the best interests of the shareholders in BTL and, thereafter in Channelview, in his dealings with Nedec/Kodec.

241 All of the above took place before the 2011 Thai floods occurred and there is no evidence that the floods had any impact on the subsequent progress of the purchase which, as indicated above, resulted in approval by the Beyonics shareholders on 30 December 2011 followed by the scheme being approved by the Singapore Court on 2 February 2012.

242 Mr Shaw was updated from time to time by Mr Goh in the intervening period and was aware that Mr Goh was seeking to interest potential purchasers of the PES division and was, in particular, speaking to Nedec/Kodec about the possibility of selling BTEC to them. An example of this is an e-mail exchange between Mr Shaw and Mr Goh on 25 October 2011 when Mr Goh, informed Mr Shaw, inter alia , that he was intending to sell the PES Division immediately after the purchase by Channelview and hoped to sell BTEC in relation to which he was going to meet with the potential buyers in November.^[52]

243 In April 2011, Seagate announced that it had acquired Samsung's HDD business. Nedec/Kodec was a major supplier of baseplates to Samsung but was not at that time qualified as a supplier of any baseplates to Seagate.

244 Mr Goh gave evidence that following the decision to divest the PES Division, he approached various industry players about the possibility of the sale of all or some of the entities in the PES Division. On 22 June 2011, he had lunch with Mr Miyabe Toshihiko, the Senior Vice-President of Nidec. In his AEIC he gave his recollection that he told Mr Toshihiko about the decision to divest the PE Division and that Mr Toshihiko suggested that Mr Goh should speak to Mr Stephen Hwang, the President and CEO of Nedec/Kodec.^[53]Again his recollection is a hazy one as demonstrated by his cross-examination^[54]but the contemporaneous documents support the fact of the lunch and the subsequent introduction to Mr Hwang and corroborate the gist of Mr Goh's evidence.

245 In paragraph 117 of his AEIC Mr Goh said this:

246 The following day, Mr Goh e-mailed Mr Toshihiko to indicate that he would like to meet with the "NADEC" [ sic ] senior management and Mr Toshihiko responded:

247 Mr Toshihiko provided Mr Hwang's telephone number and, subsequently, via Mr LH Lee, his e-mail address.^[55]Contact was made and a visit by Mr Hwang to BTEC's plant in Changshu was arranged for 12 July 2011. In an e-mail dated 28 June 2011^[56]from Mr Goh to Mr Hwang, copied to Mr LH Lee, Mr Goh gave details of the arrangements for the meeting and wrote:

248 This was a reference to the fact that Seagate had acquired the Samsung HDD business and Western Digital the HGST division of Toshiba. Mr Goh was cross-examined on this e-mail and pressed on the strategy referred to, with the suggestion that it extended to working together rather than divestment. Mr Goh refuted this suggestion and said that the only strategy he was considering was the sale of the PES Division. I accept this evidence. It is consistent with the contemporaneous documents and makes sense.^[57]

249 It appears that Mr Hwang did visit Changshu on 12 July 2011, possibly with Mr Songam Kim, a Vice President and Mr Yongchul Kim, a director,^[58]but not with Mr Tony Lee, who did not join Nedec/Kodec until 8 August 2011. It also appears that Mr Goh was not present and no record of the meeting exists.

250 A further visit to the Beyonics plants in Malaysia and Thailand by Mr Hwang and Mr Tony Lee was proposed for 17 and 18 August 2011 but was rearranged for 4 and 7 September 2011. Mr Goh and Mr Tay Peng Huat, the CFO of BTL, were present. The purpose of the visit was to give Nedec/Kodec the opportunity to consider the possibility of making an offer to purchase assets of the Beyonics Group and, for this purpose a Confidentiality Undertaking, in relatively conventional NDA form, was executed on 5 September 2011.^[59]

251 Both Mr Goh and Mr Tony Lee gave evidence that following the visit Mr Goh was told that Nedec/Kodec would only be interested in considering the purchase of BTEC, not the whole PES division. Mr Tony Lee explained:^[60]

252 Around that time, a number of e-mails passed between Mr Hwang and Mr Goh and between Mr Tony Lee and Mr Tay.^[61]These need to be read as a whole. It is plain that the parties had an amicable meeting including a "fat lobster" lunch and discussions apparently ranged over a number of business matters including: forex and interest rates in Singapore, the upcoming Seagate supplier conference, the possibility of Beyonics selling a small number of die casting and CNC machines to Nedec/Kodec and the benefits of an offshore Mauritius company. A proposal was made for a return visit by Mr Goh to visit Nedec/Kodec factories.

253 Particular attention was paid during the trial to some words in an e-mail dated 8 October 2011 from Mr Hwang to Mr Goh which stated:

254 Mr Goh was cross-examined as to what was said at the meeting.^[62]His initial answer was that he could not recall but on being pressed he gave some answers which were confused and somewhat contradictory, which led the Plaintiffs to submit that he was lying when he asserted that the meeting was only about purchasing the PES business, the implication being that even at this early stage Mr Goh was seeking some form of joint venture with Nedec/Kodec. I do not accept this. There is nothing in the contemporaneous e-mails that suggest that the discussions extended beyond general business discussions appropriate between a potential buyer and seller of a business under an NDA. I consider that there is substance in the first answer of Mr Goh that he did not recall what was said. The e-mails are the best record and I have well in mind the observations of the Court of Appeal in Sandz Solutions cited at [196] above.

255 This meeting took place before the "Seagate Supplier Convention". When Seagate purchased the Samsung HDD business, it entered discussions with the baseplate manufactures qualified to fabricate baseplates for Samsung HDDs. In the case of Nedec/Kodec this process began on 14 July 2011. A system was introduced whereby Samsung manufacturers could pre-qualify as a supplier to Seagate without undergoing the usual manufacturer qualification. This Nedec/Kodec sought to do by an application dated 16 September 2011 and subsequent to this Nedec/Kodec attended the Convention.^[63]This covered a wide range of issues.^[64]More specifically, Seagate indicated that it was planning to replace a number of its existing 2.5" HDD models with the Samsung equivalent M8, which Nedec/Kodec was qualified to make, and that there would be a transition from Samsung to Seagate 3.5" HDDs which Nedec/Kodec was not qualified to make.^[65]

256 Thereafter a visit was arranged for Mr Goh to visit Nedec/Kodec on 10 November 2011. In an e-mail of 4 October 2011^[66]discussing the arrangements for the visit, Mr Tony Lee indicated that at the visit, " We can have further talks for co-operation and collaboration ". The Plaintiffs suggested that if all that was being considered at this time was solely the purchase of BTEC then a visit by Mr Goh to Nedec/Kodec was unnecessary and that the reference to co-operation and collaboration supported the submission that by this date Mr Goh and Nedec/Kodec had the possibility of a manufacturing joint venture in mind. Mr Tony Lee gave evidence that the proposed visit was a courtesy to showcase the Nedec/Kodec factories and when writing the e-mail he was thinking about the potential sale of BTEC.^[67]This evidence is consistent with the contemporaneous e-mails and I accept it.

257 Accordingly, I hold, on the balance of probabilities, that prior to the floods there had been no discussions between Mr Goh, or anyone else at Beyonics, and Mr Hwang, Mr Tony Lee or anyone else at Nedec/Kodec on the possibility of a joint manufacturing venture.

258 In mid-October 2011, Thailand suffered unprecedented rainfall and flooding. One area greatly affected was where there was a concentration of baseplate manufacturing facilities. Beyonics' Thailand facility at Ayutthaya, BTT, was damaged beyond repair and became an insurance write off. Other baseplate manufacturers, including MMI, suffered similar losses. Overall Seagate suffered a loss of supply of some 24 million baseplates.^[68]Mr Billy Chua explained Seagate's attitude as follows:^[69]

259 So far as Beyonics were concerned, prior to the floods, the 1st Stage Brinks 2H baseplates were produced at BTM's facility in Malaysia and the 2nd Stage at BTT's facility in Thailand. BTT lost some 200 CNC machines, most of which would have been used for 2nd Stage work. The necessary tooling specific for these baseplates was however salvageable and was transferred to BTEC.

260 On 11 October 2011 Mr Billy Chua sent an e-mail^[70]to Mr Goh concerning a meeting arranged for the following day, indicating that Mr HC Toh, the Seagate Vice-President to whom Mr Billy Chua reported, wished to discuss:

261 There is no written record of this meeting and neither Mr Goh nor Mr Billy Chua have any clear recollection of what was discussed. It appears that at this stage the precise extent of the damage due to the flooding was unclear.^[71]

262 Mr Goh was however considering various options and on 14 October 2011 e-mailed Mr LH Lee asking whether he had any excess CNC machines, " Due to BTT situation I am thinking and planning on how to move some machines down to BPM ".^[72]

263 Mr LH Lee responded to this the same day saying that after reviewing the matter, out of the 259 machines he could ship 20 back to BPM and indicated the capacity that would be left at BTEC thereafter. But he went on to relay the substance of a conversation he had had that day with Nidec (it is to be remembered that not only was Nidec an MBA assembler, it also had a baseplate manufacturing factory, Nidec Brilliant). Mr LH Lee had been informed by Nidec that it had lost 1000 CNC machines in the floods and that the MBA plant had lost 20 million monthly capacity. Much of this was in products for Hitachi. Mr LH Lee had been asked whether he could increase baseplate production of Hitachi models and he discussed a quotation for a possible order for Hitachi Jupiter 1D baseplates which he was going to discuss with Nidec the following week.^[73]

264 Nidec reinforced its requirements in an e-mail on the same day to Mr Li Chun Lin of BTEC outlining the needs for the Jupiter 1D programme and this was followed the following day (Saturday 15 October 2011) by an e-mail from Mr LH Lee to Mr Goh discussing costings and Nidec's request for support from BTEC because Nidec were considering moving MBA production to China.^[74]It ended by saying:

265 The position had become clearer by 18 October 2011 when an e-mail was sent by Mr LH Lee to Mr Goh^[75]detailing a discussion that he had had with Hitachi the previous day concerning a formal request from Hitachi that BTEC should assist with the production of Hitachi's Jupiter 1D baseplates. He also indicated that he had had a meeting with Nidec that day to try to understand their future plans. This included a request that BTEC should place more focus on supporting Hitachi since Nidec had " currently no shortage of Seagate baseplate with extra supply due to JCY & MMI divert Brink and Pharaoh model to [Nidec] ".

266 The chart included in this e-mail indicated that whereas the production at BTEC proposed for the Brinks 2H programme was going to decrease from 300,000 in December 2011 to 100,000 in February 2012, that for the Jupiter 1D programme was projected to increase from zero in October 2011 to 900,000 in February 2012 and rise further thereafter.

267 This was followed by an e-mail from Mr LH Lee to Mr Goh dated 22 October 2011^[76]in which Mr LH Lee updated Mr Goh on his plans for the proposed commitment to Nidec to produce 900,000 baseplates per month for the Jupiter 1D programme. It is a detailed review of BTEC's capacity and its proposed allocation of that capacity both for baseplates and for the automotive products produced using the CNC machines. The whole document merits attention but the salient points are:

268  The comprehensive table drawn up of the projected monthly sales forecast for each product, including the projected increase for the Hitachi products and the decrease for the Seagate products, shows that it was projected that the BTEC facility would be working at around the projected capacity rate of 2.4 million per month as from February 2012.

269 Both Mr Goh and Mr LH Lee were cross-examined on this document but I consider that the document speaks for itself and is the best record of the thinking of both men at the time. It is to be noted that the capacity forecasts related to 259 CNC machines, the total number at BTEC before the floods so that the proposal to move CNC machines to BPM (see [262] above) had not been implemented.

270 On 26 October 2011 Mr LH Lee was provided by one of his team members with a quotation for Jupiter 1D baseplates as well as a quotation for a different Hitachi baseplate, the Eagle. The Eagle quotation was revised on 27 October 2011 and sent to Mr Goh for approval. Mr Goh gave evidence that he had discussed the question of capacity with Mr LH Lee and that he had assured Mr Goh that although BTEC's capacity was at its limits, it should be able to handle the Eagle order as well.^[77]Mr Goh was not cross-examined on this and Mr LH Lee gave no evidence in relation to it.

271 Around this time there was an internal brainstorming session at Seagate. Mr Billy Chua gave this evidence in chief about it:^[78]

272 In cross-examination Mr Chua was challenged as to whether the idea came from him or from someone else at the meeting and his evidence was that he could not be sure it was him.^[79]However he was not challenged on his evidence that the idea originated in Seagate and was first raised at the brainstorming meeting. This evidence is consistent with subsequent documents and I accept that the idea came from Seagate.

273 The first contact between Seagate and Nedec/Kodec was between Mr Tatsuo Ito, of the motor division of Seagate in Longmont, Colorado, and Mr Ryu of Nedec/Kodec by an e-mail dated 12 October 2011 in which Mr Ito said that Seagate had a tentative plan to visit Nedec/Kodec in November for audit purposes and that an NDA would be needed for this purpose. Mr Tony Lee was asked to coordinate the visit and responded by e-mail dated 11 October 2011^[80](the dates on these e-mails are confusing but it is clear that Mr Tony Lee was responding to Mr Ito's e-mail since Mr Ryu's e-mail is the first in the series and Mr Lee's is responding to it). Both e-mails relate solely to the proposed audit visit and not to any manufacturing problems arising out of the floods. Mr Billy Chua was not copied in on the e-mails.

274 Matters changed between then and 24 October 2011 when Mr Billy Chua contacted Mr Tony Lee by e-mail,^[81]introducing himself as being the person responsible for baseplate manufacture reporting to the same organisation as Mr Tatsuo Ito. Mr Chua indicated that he was " interested in whether [Nedec/Kodec] is suitable to participate directly in the [Seagate] programs Baseplate. ... I may want to set up a conf call asap with you to understand how we can move forward ". The conference call duly took place on the same day as Mr Chua sent a further e-mail to Mr Tony Lee recording some details of the conversation.^[82]From this it is apparent that the matters discussed included two 3.5" baseplates, Pharaoh 2H (Seagate's name for what BTEC called Brinks 2H) and Grenada 3D, together with indications of capacity and supply dates. The need for Nedec/Kodec to qualify to manufacture for any Seagate baseplate was also considered.

275 Mr Chua was unsure whether the possibly of two suppliers working together was discussed but thinks it may have been.^[83]Mr Tony Lee recalls that it was and that Mr Chua raised the possibility of a collaboration between Beyonics and Nedec/Kodec in relation to the Brinks 2H programme or between MMI and Nedec/Kodec on the Granada 3D programme.^[84]This is consistent with Mr Lee's e-mail of 25 October 2011 in reply^[85]in which Mr Lee sought a face to face meeting to discuss matters and proposed flying to Singapore the following day to have meetings on 27/28 October 2011. The e-mail included the following passage:

276 In his reply^[86]Mr Billy Chua agreed to the meeting and indicated that the question of the supply chain could be discussed at the meeting.

277 On the basis of these documents and evidence I accept that the proposal that Nedec/Kodec should carry out 2nd Stage work on e-coated ( ie , 1st Stage) baseplates manufactured by either Beyonics or MMI came from Mr Chua during the telephone call on 24 October 2011 and that this was the first time that such an arrangement was suggested to Nedec/Kodec.

278 Further, on 24 October 2011 Mr Goh e-mailed Mr Tony Lee of Nedec/Kodec concerning Mr Goh's proposed visit to Nedec/Kodec on 10 November 2011 when he intended to have a " discussion on the latest development of HDD business due to Thailan d supply chain damage by flood ".^[87]Mr Lee responded on 26 October 2011 dealing with the proposed visit but also telling Mr Goh that he was flying to Singapore overnight to have further discussions with Seagate. He enquired whether it might be possible to meet with Mr Goh on 28 October 2011. The e-mail ended:^[88]

279 I shall return to consider this e-mail further below. The parties then agreed to meet at Mr Goh's offices at 10.30 on 28 October 2011.

280 During this period however, there is no evidence of any written communication between Beyonics and Seagate subsequent to the meeting between Mr Goh and Mr HC Toh on 12 October 2011. Mr Billy Chua recalls at least one telephone conversation with Mr Goh during this period concerning BTEC's capacity as being 3 million per quarter which Mr Chua considered was not enough and that Mr Chua had asked him to check for additional capacity.^[89]

281 The next written communication was an e-mail from Mr Goh to Mr Billy Chua sent at 8.50am on 27 October 2011 when Mr Goh updated Mr Chua on the position within Beyonics following the floods.^[90]He itemised the state of the plant in Thailand and concluded that even if a clean-up was possible, Beyonics would be unable to make the plant operational within a year. He indicated his proposals for future business:

282 The e-mail went on to seek support from Seagate for an investment of US$600,000 in relation to the BPM aspect and ended with the words; " Let discussion [sic] this afternoon when I return back from Malaysia ".

283 It is to be noted that this e-mail makes no reference to the possibility of BTEC manufacturing 1st Stage baseplates for delivery to another baseplate manufacturer for the 2nd Stage work.

284 The Plaintiffs assert that Mr Goh should have been more proactive in October 2011 to reassure Seagate that notwithstanding the floods, Beyonics could reorganise its business so that the necessary quantities of Brinks 2H baseplates, both at the 1st and 2nd Stage, could be produced by allocating all the work to BTEC. This, they contend, would have rendered Seagate's approach to Nedec/Kodec, at least in relation to the Brinks 2H programme, unnecessary so that the possibility of the BN Alliance would never have arisen. I do not accept this. The above narrative demonstrates that Mr Goh and his team were focusing on the challenges faced both by them due to the damage at BTT and to others in the supply chain. In particular, they were in close contact with Nidec which was the entity that determined which baseplate orders were to be placed with which baseplate manufacturer.^[91]It was Nidec that indicated that BTEC was to be allocated the Hitachi work and that Seagate work at BTEC was to be reduced and placed with others. It was reasonable to assume that Nidec was liaising with Seagate and Hitachi to ensure, as best it could, that the needs of the HDD companies were being met. As Mr LH Lee acknowledged, the Hitachi work was more profitable than work for Seagate.^[92]Seagate did not contact Beyonics with any specific requests and it is apparent from the e-mail of 27 October 2011 that Mr Goh was keeping Mr Billy Chua informed as to Beyonics' position. I do not consider that it was reasonable to expect Mr Goh to reach beyond Nidec to Seagate to seek to undermine the proposals coming from Nidec which promised to provide orders more than sufficient to occupy BTEC's capacity. The prospect of increased work from Hitachi which offered higher margins than work for Seagate was an understandable incentive to accommodate Nidec's request.

285 The meeting between Seagate and Nedec/Kodec on 27 October 2011 began at 9.00am some 10 minutes after Mr Goh's e-mail to Mr Billy Chua was sent. The principal representative of Seagate was Mr Billy Chua and Mr Tony Lee was the sole representative of Nedec/Kodec. Mr Chua gave a presentation^[93]which identified the possibility of Nedec/Kodec carrying out 2nd Stage work on e-coated baseplates manufactured either by Beyonics for the Pharaoh ( ie , Brinks) 2H programme or by MMI for the Grenada 3D programme. Mr Lee indicated that Nedec/Kodec's preference, following discussions with his senior management, was to work with Beyonics.^[94]

286 Following the meeting, that evening, Mr Chua sent an e-mail to Mr Lee, copying in numerous others, summarising the matters discussed.^[95]It records the decision that Nedec/Kodec should become involved in the Pharaoh 2H programme as a priority and stated:

287 There then followed, on the next day, 28 October 2011, the meeting between Mr Tony Lee and Mr Goh. Prior to that meeting, at 9.35am Mr Goh sent an e-mail to Mr LH Lee saying:^[96]

This is consistent with Mr Goh's understanding that at that time there was excess capacity at BTEC for 1st Stage work.^[97]He also sent an e-mail at 10.36 to Ms June Yang, the financial controller at BTEC asking for costings calculations on Brinks 2H baseplates.^[98]

288 The only contemporaneous record of the meeting is in an e-mail from Mr Tony Lee to Mr Chua dated 29 October 2011.^[99]It was plainly an amicable meeting and extended over lunch. The e-mail states that Mr Goh confirmed that he would quote a price for Pharaoh 2H e-coated material ( ie , 1st Stage) before machining ( ie , 2nd Stage) by the following Monday but Mr Lee was concerned that BTEC's indicated allocation did not seem to be enough to cope with Seagate's request. It records that Mr Goh had advised Nedec/Kodec to ask Seagate to cover the tooling costs involved in order to shorten the lead time for qualification. The section on the meeting with Beyonics ends with the statement:

289 This e-mail was forwarded by Mr Tony Lee to Mr Goh^[100]thanking him for his hospitality the previous day and asking him to refer to the e-mail to Mr Chua. The material passage reads as follows:

290 At 2.46pm Ms Yang provided Mr Goh with the costing sheet for Brinks 2H^[101]which indicate that the cost of the 1st Stage, including overheads, was US$1.099 and that the total cost of both stages was US$1.587. Finally, at 5.50pm on 28 October 2011 Mr LH Lee responded to Mr Goh's email earlier in the day about capacity.^[102]The salient points read:

291 Based on the terminology used in this litigation, the e-mail states that BTEC's capacity for 1st Stage work (casting and e-coating) was 4 million per month but that the capacity for 2nd Stage (machining) was only 2.4 million. This latter capacity was going to be fully utilised by March 2012 by the new order for Jupiter 1D and the other projected 2nd Stage orders. Adding a further 1 million 1st Stage orders from Nedec would increase 1st Stage monthly capacity to 3.4 million which would leave an available balance of 600,000 for 1st Stage work. These were figures that Mr LH Lee would himself have checked before sending the e-mail.^[103]

292 In paragraph 215 of his AEIC Mr Goh said this:

293 The recollections of both Mr Goh and Mr Tony Lee as to the relationship between Beyonics and Nedec/Kodec at this time and the matters discussed at the meetings as given in evidence at this trial and, in so far as it was introduced during cross-examination in this case, at the 672 trial, was unclear, confused and sometimes contradictory. This was an aspect of evidence where Mr Goh was particularly defensive and evasive, no doubt because he was well aware that the Plaintiffs relied heavily on the events of these few days as indicating that he instigated the BN Alliance and thereafter involved himself in too rapid an acceptance of the relationship with Nedec/Kodec from which the inference that he was deliberately not acting in the best interest of Beyonics should be drawn.

294 The documents provide the best record of what occurred and when. I shall draw upon them in seeking to resolve certain important questions that arise over the developing relationship between the parties over this period. There are a number of issues that need to be resolved: when did Mr Goh first become aware of the Seagate's idea of joint manufacture between Beyonics or MMI and Nedec/Kodec, why did he accede to the request that Beyonics should take part and what were his reasons for him doing so, why did he accede so rapidly, and what discussions did he have with his colleagues at Beyonics before acceding to it?

295 The starting point is Mr Tony Lee's e-mail to Mr Goh referred to in [278] above. It has to be remembered that there was an NDA in place between Nedec/Kodec and Beyonics concerning the possibility that Nedec/Kodec would purchase BTEC and the e-mail must be read with this in mind. But, equally, by this date Mr Lee was aware of Seagate's idea of joint manufacture. On its face the reference to "joint operation" is ambiguous. It could be referring only to the possible takeover; it could be referring only to the Seagate idea; or it could be referring to both. Mr Lee believes that he did have in mind Seagate's idea but considers that if Mr Goh had not been told about this in advance he would not have appreciated this. He also acknowledged that the "alternative solution" referred to was the possible takeover.^[104]

296 In his AEIC Mr Goh said that he did not understand what Mr Lee meant by a "joint operation" or an "alternative solution" but was prepared to wait for clarification at the meeting two days later.^[105]Mr Goh continued in his AEIC by stating that he first became aware of the Seagate proposal when Mr Billy Chua telephoned him but was certain that it was after his e-mail to Mr Chua at 8.50am on 27 October.^[106]

297 Mr Goh was cross-examined extensively on this^[107]but maintained his position that he did not understand what Mr Lee meant by "joint operation" and that he was content to wait until the meeting on 28 October to clarify matters. But, by then, he had spoken to Mr Chua the previous day so he knew about the Seagate proposal from him such that there was no need at the meeting to revert to Mr Lee's e-mail to enquire what he meant. This is a credible explanation.

298 There was however some debate as to when precisely Mr Goh was first informed about the Seagate proposal. Mr Goh's evidence in cross-examination was that he was provided with an outline of the proposal by Mr Billy Chua by telephone during the afternoon or evening of 27 October and the matter was expanded upon by Mr Tony Lee at the meeting on 28 October.^[108]In his evidence in chief, Mr Billy Chua was asked whether he had asked Mr Goh if he could supply e-coated baseplates to others for machining before Mr Chua and Mr Tony Lee spoke on 24 October 2011 (see [274] above). He said that he could not recall the timings^[109]but went on to say that he believed that he would have asked Mr Goh about this by 25 October and that at that stage Mr Goh did not have an answer.^[110]He said that he could not recall whether he spoke to Mr Goh before or after the meeting with Mr Tony Lee on 27 October^[111]although in evidence in the 672 Action he had said that he thought he had spoken to Mr Goh before the meeting.^[112]In cross-examination he repeated his recollection as being that the telephone call to Mr Goh on 27 October was after the meeting with Mr Lee at 9.00am and not before.^[113]

299 I do not consider that much turns on the precise timing of the call on 27 October but, on balance, the contemporaneous documents support the conclusion that it was afterwards. The e-mail was at 8.50am and Mr Goh indicated that he was about to travel from Malaysia back to Singapore and, until the meeting, Seagate could not have known whether Nedec/Kodec were prepared to go along with the Seagate proposal and, if so, whether they would prefer to work with BTEC or MMI.

300 What I find more difficult is to determine whether Mr Billy Chua outlined the Seagate proposal to Mr Goh on 25 October 2011. The contemporaneous documents are sparse and the one that does exist is not consistent with him having done so. There is no e-mail recording the conversation and no written follow up from Mr Goh. In his e-mail of 27 October 2011 Mr Goh deals with a number of matters concerning Beyonics' relationship with Seagate but does not mention the Seagate proposal, which one might have expected it to do had Mr Chua already broached the subject with Mr Goh. Once Mr Goh had discussed the matter with Mr Chua on 27 October 2011 he sent an e-mail early the following morning to Mr LH Lee seeking input as to the possibility of manufacturing 1 million 1st Stage baseplates per month. If the matter had been raised with him earlier, one might have expected him to have made such a preliminary enquiry earlier.

301 Taking all these matters into account I am not persuaded that Mr Goh was aware of the possibility of Beyonics becoming involved in what became known as the BN Alliance until the seeds of the idea were sown by Mr Lee's reference to a "joint operation" in his e-mail of 26 October followed by the clarification thereof by the telephone call with Mr Chua on 27 October and the meeting with Mr Tony Lee on 28 October.

302 The Plaintiffs' assertion on the conduct of the parties at this time was that it was Mr Goh's alleged " evasiveness in the witness box was born out of his efforts to try to distance himself from any suggestion that he had initiated the partnership proposal or was involved in initiating the proposal, and to downplay his discussions with Mr Tony Lee on 28 October 2011 ".^[114]The Plaintiffs also contended that some of the comments in the above e-mails indicated a far closer relationship between Beyonics and Nedec/Kodec at this time than Mr Lee and Mr Goh would have me believe and that both Mr Lee's rapid choice of Beyonics as a possible partner in the BN Alliance and Mr Goh's equally rapid acceptance of the possibility of taking part in the Alliance demonstrated this.

303 The Plaintiffs relied in particular on the four passages underlined in the e-mails quoted in [288] and [289] above: first, Mr Tony Lee's comment: " NEDEC and Beyonics are good friends to each other though we are in the same HDD baseplate business, close collaboration is not a problem at all ". On any basis having regard to the state of the negotiations for the possible purchase of BTEC, this is an overstatement but it is not inconsistent with Mr Lee's somewhat exaggerated use of English in other e-mails. There was good reason for him to emphasise the fact that Nedec/Kodec and Beyonics did have previous business contacts although, having regard to the NDA, he could not indicate that a possible merger was being contemplated. Secondly my attention was drawn to the comment, again by Mr Lee: " You were mentioned in the e-mail as a great excuse which you allowed me to do ". The Plaintiffs suggest that this was a reference to the fact that Mr Goh had told him that BTEC might not have the capacity to meet Seagate's demand of 6 million per quarter and this would appear to be correct. But it is not indicative of anything other than the position recorded in the e-mail to Mr Billy Chua where Mr Lee stated that he was going to talk to Mr Goh about capacity again the following Monday. It obviously suited Mr Lee to be able to relay concerns about capacity as being Beyonics' rather than Nedec/Kodec's concerns but equally it would not be in Mr Goh's interests to give assurances on capacity without first reviewing it with the production team at BTEC. Third, reliance was placed on the words, " Surely, your involvement is our unnegotiable string attached to the deal even afterwards ." This comment was made in the context of the possible takeover and, stripped of the over effusive language, is no more than a statement of usual practice that it is a term of many takeovers that key personnel are retained for a period as, indeed, was the case with the Channelview takeover of Beyonics. Finally, reliance is placed on the words " Now , we are waiting for your positive answer on coming Monday because we'd like to plan 2012 with or without it in coming NEDEC directors' strategy meeting held on Nov. 2nd and 3rd ." It is suggested that this was an indication of an unusually close relationship because one competitor would not release such information to a competitor. I do not see it as such. To the contrary, the words used are more consistent with Mr Goh having not committed BTEC to the partnership at the meeting on 28 October 2011 and having promised to revert to Mr Lee on the following Monday. Mr Lee was giving Mr Goh the reason why a response on the Monday was important to Nedec/Kodec.

304 I have already rejected the submission that it was Mr Goh who initiated the partnership proposal. The following factors lead me to the conclusion that there was nothing sinister about the way in which Beyonics and Nedec/Kodec interacted and that Mr Goh was, at this time, acting reasonably and in what he considered to be in the best interests of Beyonics in forming the belief that he did as expressed in paragraph 215 of his first AEIC (see [292] above):

(a) The possibility of Nedec/Kodec purchasing BTEC had already been canvassed between them and there was an NDA in place. There was therefore every reason for Nedec/Kodec to wish to work with Beyonics rather MMI to render a subsequent merger more attractive.

(b) The primary problem caused by the floods was the loss of CNC machines. These were expensive machines (around US$80,000 each) and there were only 259 at BTEC. Their primary use was in machining at the 2nd Stage.

(c) Beyonics had been offered an attractive contract by Nidec for Hitachi baseplates which necessitated reducing its commitment to manufacture baseplates for Seagate. The available CNC machines were projected to be working at or around the capacity for 2nd Stage work as a result.

(d) There was excess capacity at BTEC for 1st Stage work. There was thus a good reason for Mr Goh to seek to employ this capacity to enhance BTEC's business without incurring any major capital expenditure in accordance with the Beyonics business plan for the PES division.

(e) Working with Nedec/Kodec was also calculated to enhance the business plan of divesting the PES division. BTT was likely to be written off as an insurance claim so that taking steps to further the possibility of the purchase of BTEC by Nedec/Kodec made business sense.

(f) This was a time of crisis in the industry. Decisions had to be made quickly and parties had to work together to help the industry recover from the floods. Nonetheless, Mr Goh did not commit BTEC at the meeting on 28 October 2011 but indicated that he would give an answer by the following Monday and consulted Mr LH Lee and Ms Yang before committing BTEC any further.

(g) Mr Goh held a significant shareholding in Beyonics.

305 By the end of 28 October 2011 the position was that Mr Goh had agreed to consider the possibility of a partnership which both Seagate and Nedec/Kodec wished BTEC to do. He had consulted his Senior Manager at BTEC, Mr LH Lee, for details of capacity and had ascertained that there was excess 1st Stage capacity but that there was projected to be none for 2nd Stage capacity early in 2012.^[115]He had agreed to revert to Mr Tony Lee on the following Monday, 30 October 2011.^[116]

306 Before continuing with the narrative of events, I think it is important to pause and reflect that the proposed BN Alliance was not the sole focus of any of the parties at the time. Seagate were conducting similar discussions with other baseplate manufacturers. Mr Billy Chua gave evidence that this resulted in other pairings similar to that proposed with Nedec/Kodec and BTEC between MMI and Shinsung (another ex-Samsung supplier) and between Nidec's baseplate facility with Foxconn. Similar partnerships were also arranged at the motor level between MMI and NMB, another Nidec entity.^[117]

307 Nedec/Kodec were having to consider the challenges of obtaining qualification to make Seagate baseplates at both the 1st and 2nd Stages which was important to them in the light of the loss of some of the Samsung business. In the PES division, the floods leading to the loss of BTT, with the consequent effect on the factory and personnel, was obviously a pressing problem. Negotiations were also ongoing, not only with Seagate but with Hitachi, as already mentioned, and also with Western Digital.^[118]At that time, Mr Goh had overall responsibility for 14 factories across the PES and the EMS divisions.

308 On 31 October 2011 Mr LH Lee confirmed that Nidec had accepted BTEC's quote for the Hitachi Eagle 2.5" baseplate but cautioned that to take the order would mean reducing the Seagate order by 500,000 per month unless there was a further investment in equipment estimated to cost S$6 million, including 60 CNC machines.^[119]

309 By 3 November 2011 Mr Goh must have reverted to Mr Tony Lee confirming BTEC's interest in the proposed BN Alliance for the supply of Brinks 2H baseplates because in an e-mail from Mr Lee to Seagate on that day a price was quoted for the supply of the completed baseplate at US$1.90 on the basis of a quotation by Beyonics for supply of the 1st Stage product at US$1.25. Mr Scott Lamb of Seagate responded the same day by saying that the suggested supply plan was " too low and too slow " and requesting a supply of " at least 5m per month asap ".^[120]

310 Following the Nedec/Kodec directors' meeting on 2 and 3 November 2011, Mr Lee reverted to Seagate on 4 November 2011 amplifying its proposed commitment to Seagate and setting out the steps proposed leading up to an audit by Seagate fixed for 9 December 2011 at Langfang.^[121]

311 0n 4 November 2011 Mr Tony Lee sent an e-mail to Mr Scott Lamb^[122]saying that he was talking to Mr Goh by e-mail and that Mr Goh was going to visit Langfang on 10 November to discuss the supply of the 1st Stage baseplates. On the same day Mr Stephen Hwang e-mailed Mr Goh.^[123]Since the Plaintiffs placed emphasis on certain words in this e-mail I shall set it out in full.

312 Mr Goh replied the same day:^[124]

313 I shall consider matters arising from those e-mails together with those from the related visit to Langfang on 10 November 2011. Prior to that meeting, on 6 November 2011, Mr Goh sought information from Mr LH Lee and his team for the purposes of his meeting with Nedec/Kodec as to the capacity at BTEC, particularly for the Brinks 2H programme.^[125]On 7 November 2011 Mr LH Lee replied, inter alia , that he was reducing Seagate's Brinks 2H and Pharaoh 2D production and increasing Hitachi's Mars 1D and Jupiter 1D production^[126]but said that casting capacity was " no issue at support 500k E-coated part sale to Nedec and if 1 million E-coat part per month plan to sale to Nedec we need to purchase some tumbling bowl ".^[127]

314 This was followed up by an e-mail from Mr Goh to Mr LH Lee on 8 November 2011 seeking up to date information on the current planned capacity for Seagate and Hitachi as he needed " to call HC Toh (of Seagate) again tomorrow when I reach Beijing ". Mr LH Lee replied the following day giving a full breakdown of the overall sales forecast between November 2011 and March 2012 which again showed a projected reduction in supply of 2nd Stage baseplates to Seagate and an increase in supply to Hitachi culminating in a total production, including automotive, in March 2012 of some 2.7 million products per month.^[128]

315 As agreed, on 10 November 2011 Mr Goh visited Nedec/Kodec's Langfang factory in the company of Mr Stephen Hwang and Mr Tony Lee. In his evidence in chief, Mr Goh said that he used the visit to evaluate whether Nedec/Kodec was able to meet Seagate's requirements and that he identified a number of issues that concerned him surrounding their ability to obtain qualification from Seagate for 2nd Stage work. He said that Mr Lee asked him whether he could provide consultancy services to Nedec/Kodec but that he did not give an answer during the visit. Mr Goh also stated that he told Mr Hwang and Mr Lee about his proposed visit to Seagate on 18 November 2011 (the EBR Meeting - see [336] below) and that Beyonics would be seeking funding from Seagate at that meeting. He went on to say that the parties discussed the investment that might be necessary for Nedec/Kodec to manufacture the Brinks 2H baseplates. Mr Lee estimated this to be US$5 million and Mr Goh told Mr Lee that it was unlikely that Seagate would fund the full amount. Mr Lee then asked Mr Goh if he could enquire at the EBR meeting whether Seagate would give a grant to Nedec/Kodec of between US$2-2.5 million in support of the proposed BN Alliance which Mr Goh agreed to do.^[129]Mr Lee's evidence in chief was entirely consistent with this.^[130]

316 Both were cross-examined on this evidence. The cross-examination of Mr Goh was wide ranging and, as happened on a number of occasions, Mr Goh's answers were long and introduced a number of tangential matters.^[131]In substance however his evidence was broadly consistent with his evidence in chief but he emphasised that his primary objective was to sell BTEC. On the subject of the possibility of consultancy he said this:

317 Mr Tony Lee's evidence in cross-examination again was broadly consistent with his evidence in chief.^[132]In particular, both witnesses confirmed that the suggestion of compensation for consultancy services was proposed by Mr Lee, that no further details were discussed and Mr Goh did not at that time accept the offer. On the subject of a possible payment by Seagate to Nedec/Kodec, it was common ground between the witnesses that Nedec/Kodec indicated a need for US$5 million and that Mr Goh advised that it was unlikely that Seagate would be prepared to provide more than US$2.5 million. Mr Hwang and Mr Lee were aware that Mr Goh was to make a presentation to Seagate at the EBR meeting on 18 November 2011 and that this presentation would include a submission for funding from Seagate to Beyonics. It was agreed that when dealing with the proposed BN Alliance, Mr Goh would also canvas the possibility of a payment to Nedec/Kodec in support of the Alliance.

318 The Plaintiffs submit that the e-mails passing between Beyonics and Nedec/Kodec after the 28 October meeting and the evidence relating to the 10 November meeting demonstrate that " Mr Goh and Mr Tony Lee clearly had something to hide ".^[133]Mr Goh's visit to Langfang was unnecessary and the fact that it took place is, it is said, evidence that it was contemplated that Mr Goh would work in some way with Nedec/Kodec. Mr Goh's evidence that his primary purpose for making the visit was to seek to further the potential sale of BTEC was inconsistent with the fact that nothing concrete on this subject was discussed during the visit. Mr Goh was evasive in cross-examination and denied that he even discussed meeting the deadlines for qualification and that Mr Goh assumed the position of mastermind with regard to relations between Nedec/Kodec and Seagate.

319 Whist there is substance in the submission that Mr Goh was evasive in cross-examination and making due allowance for this, I consider that the Plaintiffs' assertions are over exaggerated. It is necessary to have regard to the contemporaneous documents in their entirety and not to emphasise individual phrases and sentences deprived of their overall context. It is plain that by 10 November 2011 Mr Goh, whether rightly or wrongly, had formed the view that BTEC should take part in the proposed BN Alliance, if suitable terms could be agreed, and that he was also continuing to the Board's strategy of seeking to divest itself of the PES division. He had made enquiries of Mr LH Lee and his team at BTEC to ensure that BTEC could meet the production levels suggested and had a pricing structure in mind.

320 The success of the BN Alliance was therefore important to BTEC's business and it would only be successful if Nedec/Kodec moved forward rapidly to gain qualification for manufacturing 2nd Stage Brinks 2H baseplates. Accordingly, by 10 November it was essential that BTEC and Nedec/Kodec worked together to make the BN Alliance successful. More specifically it made commercial sense to work together so as to ensure that the partnership obtained the best possible deal with Seagate. I do not read anything more into the meeting of 10 November, so far as it related to the proposed BN Alliance, than an appreciation by both parties that they should work together for their common good. Mr Goh's participation was crucial to this. I do not however accept that he was the mastermind behind the project. He was highly experienced in the field and his contribution was likely to be a valuable one but it was no more than this.

321 At some point in time before 10 November 2011 Beyonics were invited by Seagate to attend an "Executive Business Review" ("EBR") to discuss the Beyonics Group's strategy in relation to production of baseplates after the floods. In cross-examination Mr Billy Chua explained the purpose pf the meeting as follows:^[134]

322 Mr Goh was asked to give a presentation at that meeting and he gave unchallenged evidence that about a week before the meeting Mr HC Toh of Seagate called him and asked that, in addition to other things, he should prepare an indication about the financial assistance that the Beyonics Group and Nedec/Kodec needed to make the BN Alliance work.^[135]

323 In order to prepare the presentation, he had discussions both internally and with Nedec/Kodec. Dealing first with the discussions with Nedec/Kodec, on 11 November 2011 there was an exchange of e-mails between Mr Tony Lee and Mr Goh.^[136]The first, from Mr Lee, apologised for being anxious but said that he was " waiting for good news from Seagate and from you ". Mr Goh replied that he had had a discussion with Mr Toh of Seagate about the possible volume of supply " but did not tell him the investment yet as I need to meet them nxt week for executive discussion, then I talk money ". Mr Lee then drew Mr Goh's attention to the fact that he, Mr Lee, was going to meet Mr Scott Lamb of Seagate at Samsung the following week and sought guidance from Mr Goh as to what he should tell Mr Lamb about the progress of the BN Alliance and included a tentative schedule of planned production leading up to 1 million a month the following year. Mr Goh responded, " U just give him this plan first, 2 m needs to come up with investment money, please do not discuss with him, u needs to discuss with him the 1.90 price ".

324 The figure 1.90 was a reference to the price of US$1.90 per baseplate that was being proposed to Seagate for the Brinks 2H baseplates manufactured under the BN Alliance. This had first been mooted in Mr Lee's e-mail to Seagate on 3 November 2011^[137](see [309] above) and I do not accept Mr Goh's assertion^[138]that it was not discussed at the meeting on 10 November. It must have been to have been included in the e-mail the following day. The Plaintiffs contend, correctly, in my view, that these e-mails demonstrate that Mr Goh was " pulling the strings behind the scenes amidst the KODEC Group's negotiations with Seagate ". The question that I shall have to answer is whether this was solely in furtherance of a desire on the part of Beyonics and Nedec/Kodec to get the BN Alliance to work to their best common benefit or whether it was part of a conspiracy on the part of Mr Tony Lee and Mr Goh to promote Nedec/Kodec's business at the expense of Beyonics' business.

325 On 15 November 2011 Mr Lee updated Mr Goh on his meeting with Mr Scott Lamb.^[139]Mr HC Toh had informed Mr Lamb about the question of increasing production to 2 million a month and that Mr Lamb had assumed that Mr Billy Chua was working with Mr Goh on this. Mr Lee reported that he had told Mr Lamb that without investment support " from Beyonics and Seagate " Nedec/Kodec could not " ramp up " to that figure. He ascribed the idea of such a ramp up as having come from Mr Goh on the basis of 1 million 1st Stage baseplates coming from Beyonics and the other from Nedec/Kodec but emphasised that Nedec/Kodec did not have the funds available for the necessary investment for this to be done. He also indicated that the proposed price was US$1.90 of which Beyonics would supply 1st Stage products at US$1.25. He was effusive, perhaps over effusive in his praise of Mr Goh and told Mr Lamb " that discussion with me is not important but Seagate people have to discuss this plan with Mr. Goh who we gave full trust to ".

326 It is clear from this exchange that Mr Goh and Mr Lee were working closely together but there is nothing to indicate that there was anything underhand in this. It was in both companies' best interests to work together to get the best deal possible. It would have made no sense for questions of pricing and investment contribution to be negotiated on two fronts. The proper inference from all these e-mails is that the parties had agreed at the 10 November 2011 meeting that Mr Goh should take the lead on these matters. Objectively, this made sense. Mr Goh had many years' experience in the field and, more specifically, had had many years working with Seagate. He was due to have a one to one meeting with high profile representatives of Seagate the following week. If the BN Alliance could be made to work in quantities that were achievable (with or without further investment) at a price that was acceptable to both, then the interests of both companies would be well served. I am unable to read into these e-mails that the relationship between Mr Goh and Mr Lee had gone any further than this.

327 Of course, if Mr Goh had appreciated from the start that the whole idea of entering the BN Alliance was not in the best interests of the Beyonics Group because the alliance would take work away from BTEC which there was a real prospect it could have obtained directly from Seagate, then things would be different but, for the reasons given in [304] to [320] above, this was not the case.

328 Internally Mr Goh and Mr LH Lee and his team were having discussions on production. In this context it has to be noted that, at that time, Mr Goh and Mr LH Lee were under a double fetter on their freedom to propose any capital investment into BTEC. First, there was the Board resolution of 28 September 2010 to restrict capital investment (see [227] above) but also clause 25.29 of the Facility Agreement with the Banks restricted the freedom of the Beyonics Group as a whole to approve significant capital expenditure.^[140]

329 On 11 November 2011 Mr Goh sent an e-mail to Mr LH Lee headed " Capacity, What if "^[141]seeking Mr Lee's comments on a proposed plan which included 1 million of 1st Stage production for Nedec/Kodec and asked " Please do the calculation, thinking and I want to have a discussion at 5pm. Next week, Seagate holing [sic] EBR again, I need to ask for money and increase of price and I need to give them proposal ". Mr Lee responded fully that afternoon^[142]drawing attention to the fact that there were 50 CNC machines available for purchase if Beyonics was to move quickly. It appears from the e-mail that, at that date, Mr Lee was estimating that the then current capacity for 2nd Stage baseplates (and automotive) was 2.9 million per month and that to meet Mr Goh's proposed plan would need a capacity of around 3.3 million. This would require an investment of US$4.18 million.

330 The figure of 2.9 million differs from the capacity figure previously given by Mr Lee to Mr Goh of 2.4 million (see [291] above). It was the subject of cross-examination but there was no great clarity as to how the change arose.^[143]

331 Apparently following the discussion arranged for 5.00pm, Mr Lee e-mailed Mr Goh again at 5.25pm^[144]with various suggestions as to how to meet the capacity demands without further investment. He indicated that unless an investment in 13 CNC machines was considered, it would be necessary to reduce the machining capacity ( ie , 2nd Stage) to both Seagate and Hitachi. He also indicated that an investment in an additional RO system would be needed to avoid a possible bottleneck in the e-coating process. Subsequently he stated that a new RO system investment would cost some US$80k with some installation costs. The exchange ended with a reply from Mr Goh at 6.28pm when he stated:

332 The following morning, 12 November 2011, Mr Lee came back with an itemised proposal^[145]in response to Mr Goh's last email the night before indicating that even with a take-down of 300,000 in BTEC's commitment to its customers, there would have to be investment cost, for an increased capacity of 200,000, of US$1,960,238 which included over US$1.1 million for 13 CNC machines as well as the US$80,000 for the new RO system. He updated this on 16 November 2011^[146]following a teleconference on 15 November in which he sought to avoid the investment in new CNC machines and yet still increase capacity by 200,000. This was estimated to require a reduced investment of US$1.33 million which would give an overall capacity (excluding the 1 million e-coated products to be sent to Nedec/Kodec) of 3,192,000 which still is indicative that Mr LH Lee considered that BTEC's maximum machining capacity was under 3 million per month.

333 In none of these documents is there any suggestion that there was scope for increased capacity on the machining side of the business without a sizeable capital investment and this was only to obtain an increase of 200,000-300,000 a month. In particular, there is no suggestion that there was available capacity to carry out the 2nd Stage work on the 1 million 1st Stage baseplates to be supplied to Nedec/Kodec.

334 Mr Goh sent an e-mail to Mr Chay on 15 November 2011.^[147]This is the first document recording any exchange between Mr Goh and the other board members since the possibility of the BN Alliance first arose. It does not expressly mention the BN Alliance. The relevant portions read:

335  He then goes on to discuss various options. There are no documents before the Court which amplify upon this request for input. In cross-examination Mr Goh said that he had had conversations with Mr Chay on the limitations on capital expenditure but did not suggest that at this time he mentioned the BN Alliance to Mr Chay or that he asked the Board to reconsider its policy on investment in the light of the floods.^[148]

336 Following various internal discussions Mr Goh prepared (or had prepared for him) the presentation which he was going to give to Seagate on 18 November 2011 and a draft set of the slides was sent to Seagate on 16 November.^[149]There was some dispute as to precisely which set of documents was sent but there is no dispute over the documents that were presented on 18 November. Mr Billy Chua recalled that he and his Vice-President, Mr HC Toh, were present. Mr Goh recalls that, in addition, a Mr David Mosley, the President of Seagate's Global Operations attended.^[150]

337 Under the heading "Action taken by Seagate/ Beyonics", the first three bullet points on the presentation slides read:^[151]

338 Under the heading "Investment Proposal", Mr Goh separated his proposals into three sections, BPM, BTEC and KODEC/NEDEC. For BPM he identified the need for an investment of US$5.8 million to include 40 CNC machines, for BTEC the sum was US$3.3 million to include 13 CNC machines and for KODEC/NEDEC the sum was US$2.5 million for Conversion/Fixture/Tooling. The total for BPM and BTEC was thus US$8.8 million.

339 Under the heading "Why Beyonics/Kodec/Nedec", amongst the bullet points are:

340 Under the heading "Pros and Cons" he identified certain challenges that Nedec/Kodec faced in relation to conversion of machining and obtaining approval for 1st Stage manufacture, and also the fact that there would be higher transportation costs from BTEC to Nedec/Kodec and then to Nidec. Under the heading "Capacity Analysis" he estimated that by April 2012 BTEC would be producing 3 million 2nd Stage baseplates per quarter and 3 million 1st Stage for completion by Nedec/Kodec. In the longer term, whilst capacity for 2nd Stage at BTEC was to remain at 3 million per quarter, the estimated capacity for the BN Alliance project was 6 million a quarter.

341 Under "Pricing Proposals" he sought an increase in the price for all baseplates supplied by BTEC and BPM, and in the case of Brinks 2H the increase was from US$1.436 to US$1.840. This increase was part of an overall increase in pricing agreed by Seagate across the board, known as the "cost adder", which, in the case of the Brinks 2H product, at that time, amounted to US$0.404.^[152]Finally, under "Cash Flow Analysis", the slide indicated that the funding sought by Beyonics for CNC machines was to be repaid after 18 months with a shipment guarantee of 60 million baseplates with no price reduction.

342 In his evidence in chief Mr Billy Chua said that the question of what payments would be made was a matter for Seagate but that he had concluded from the presentation that there would be no conflict for Beyonics and Nedec/Kodec to work together.^[153]In cross-examination he gave the evidence cited in [321] above confirming that Seagate expected Mr Goh to incorporate Nedec/Kodec's requirements into his presentation. He went on to confirm that Seagate expected Beyonics to focus on the 1st Stage and Nedec/Kodec on the 2nd, that there would be a collaboration between the two with Seagate to help Nedec/Kodec qualify and that no new investment was needed for BTEC so far as production of the required number of 1st Stage baseplates was concerned.^[154]Mr Goh was cross-examined and accepted that he was supporting the decision to form the partnership as a business decision because he had excess capacity for the 1st Stage work; he explained how he reached the figure of US$1.84 and the purpose of the proposed deferred payment scheme. He ended this section of cross-examination by saying that Seagate did not commit itself to any aspect of funding but that the matter should be followed up on by Beyonics.^[155]In substance therefore the slides speak for themselves.

343 Following the presentation Mr Goh e-mailed Mr Tony Lee to tell him that the BN Alliance was to proceed, that Mr Lee should plan to come to Singapore the following week with a Mr Kim and that Mr Lee should work with Mr Billy Chua to obtain the US$2.5 million. He set out a proposed timetable leading up to full production.^[156]Mr Goh also gave evidence that it was at this time that he agreed to provide consultancy services to Nedec/Kodec in order to help them qualify so as to ensure the sales of 1st Stage baseplates to them.^[157]

344 On 21 November 2011 Mr Tony Lee informed Mr Goh that Mr Kim, the CTO of Nedec/Kodec, would be unable to travel to Singapore and that he would therefore come alone. He asked whether it would be in order for him to contact Mr Billy Chua and Mr Scott Lamb in relation to the US$2.5 million and stated " Though you called a "Go" sign to me, there is nothing concrete for U$2.5M from Seagate upto today. So, I just want to get your guidance how to move further ". Mr Goh responded saying " Let discussion this Thursday. Do not worry for the US$ 2.5 m, will get it ".^[158]

345 The meeting fixed for the following Thursday (24 November) was to involve Seagate, Beyonics and Nedec/Kodec ("the Tripartite Meeting"). By a later e-mail on 22 November Mr Tony Lee stated, " I heartily appreciate your guidance in the business. I truly learn a lot from you ". On Mr Billy Chua's advice, he asked for a meeting with Mr Goh in advance of the meeting with Seagate, that he would send Mr Goh a copy of the presentation being prepared for the Tripartite Meeting which would draw upon the EBR meeting material and that he accepted Mr Goh's assurance on the US$2.5 million.^[159]

346 On 22 November 2011 Mr Billy Chua and Mr Tony Lee exchanged e-mails concerning a presentation Mr Lee had been asked to prepare covering six matters including the timeline for the production of 2nd Stage baseplates using Beyonics' castings and the volume plan for January to March and April to June.^[160]

347 Again the presentation slides provide the best evidence of what was discussed at the meeting.^[161]They cover in detail Nedec/Kodec's "Capacity, Lead time & Concerns". In particular, it itemises the investment needed to implement the BN Alliance at a total cost to Nedec/Kodec of US$5,085,000 and requests support from Seagate of US$2.5 million.^[162]Mr Billy Chua gave evidence in chief that by the end of that meeting the BN Alliance had been agreed upon^[163]and, in cross-examination, explained how Seagate would assess requests for funding and that the funding of US$2.5 million was eventually agreed upon by 12 December 2011.^[164]

348 The exchange of congratulatory e-mails^[165]between Mr Goh and Mr Tony Lee supports the conclusion that it was at this meeting that the BN Alliance, although agreed in principle earlier between Beyonics and Seagate at the EBR meeting, was finally agreed by all three parties.

349 It was immediately after the Tripartite Meeting that Mr Goh met with Mr Tony Lee and Mr Jun Choi, the Quality Engineering Manager of the Langfang baseplate factory, and gave them advice on how to improve procedures at that factory. It was on that occasion that Mr Goh first proposed to Nedec/Kodec terms for the payment to him for the consultancy services he had agreed to provide to Nedec/Kodec which he requested should be paid through Wyser.^[166]Mr Lee said that the original suggestion of a consultancy payment had come from him on 10 November^[167]and was accepted by Mr Goh following the EBR meeting on 18 November.^[168]

350 There is no record of any discussions between the parties about, or any proposals for, payment until this meeting although it appears that the principle of some payment had been agreed between Mr Hwang and Mr Goh prior to 24 November 2011.^[169]In cross-examination Mr Goh said this about his acceptance of the consultancy:^[170]

351 I shall review the history of the negotiations leading up to the signing of the Wyser Agreements and the cogency of the evidence relating thereto below when I shall have to consider the overall effect of the events surrounding the Wyser Agreements on Mr Goh's relationship with Nedec/Kodec. It is however relevant to put a marker down that it is not suggested that Mr Goh knew, at this point, whether Nedec/Kodec would agree to pay him personally for consultancy services, or, if they did, what sort of sums would be involved.

352 First, I shall complete the narrative of the BN Alliance. Following the Tripartite Meeting, the grant to Nedec/Kodec was approved and a timetable for payment agreed.^[171]On 29 November 2011^[172]Mr Goh briefly updated the Beyonics Board on the fact that the BTT factory in Thailand was a total loss, that steps were being taken to support Seagate in Malaysia and that a price increase had been agreed to. There was no mention of the BN Alliance. A slightly fuller update was provided by Mr Goh to Mr Shaw on 5 December 2011^[173]which amongst other things stated that Seagate wanted to:

353 The matter was however fully discussed at the Board meeting on 13 December 2011 where Mr Goh gave a presentation, supported by slides.^[174]

354 The following points were made in those slides in relation to BTEC:

355 Professor Chua Tat-Seng was present at the meeting and gave evidence which confirms that Mr Goh made this presentation^[175]and, amongst other things, that he had said that the PES division's strategy was to continue to maintain its current production with limited investment because it had to balance the objective of maintaining its current capacity with the need to ensure that it broke even and that Seagate had proposed a business partnership with Nedec/Kodec with BTEC producing 1 million baseplates per quarter for supply to Nedec/Kodec. Professor Chua stated that the Board agreed with the strategy to enter the BN Alliance and gave his reasons in paragraphs 43-45 of his AEIC:

356 This evidence was not challenged on cross-examination and I accept it. He did however amplify on the Board's approach to further investment:^[176]

357 This evidence is consistent with the long term strategy of the Board and its earlier conclusion that there was no prospect of long term profitability in baseplate manufacturing.

358 There was a further Board meeting on 29 December 2011 at which Mr Goh again made a presentation with slides.^[177]These refer to the payment, inter alia , of US$1.7 million from Seagate and the US$5 million cash flow support from Seagate to fund 40 CNC machines.

359 In early January 2012 the Board discussed the terms of the BN Alliance and took legal advice.^[178]The BN Alliance was finally reduced to writing by an agreement dated 10 January 2012^[179]which records that Beyonics and Seagate had agreed on 18 November 2011 (the date of the EBR meeting) that there should be a strategic partnership with Nedec/Kodec. The price at which BTEC would supply the 1st Stage products to Nedec/Kodec was fixed at US$1.26 per piece.

360  But Mr Goh never alerted the Board to the possibility that he might be entering a consultancy agreement with Nedec/Kodec, far less to any sums of money that he might be paid for doing so. It is an important part of the Plaintiffs' case that Mr Goh's actions in agreeing to enter the BN Alliance and in proposing that the Board should approve it was tainted by the sums he was to receive under the Wyser Agreements. The Plaintiffs contend that these sums were bribes from Nedec/Kodec to pursue the BN Alliance when he knew, or where it should have been obvious to a reasonable person, that the Alliance would work to the benefit of Nedec/Kodec and to the detriment of BTEC. Accordingly, had Mr Goh been honest about the Wyser Agreements and informed the Board about them, they would have reviewed the matter more critically. Mr Shaw made clear in his evidence that on the basis of what the Board was told, its decision was not irrational. His complaint was that they were not told the full story because of the dishonest Wyser payments.^[180]

361 Mr Goh gave Mr Tony Lee a first draft of Mr Goh's proposals for payment to him for the consultancy work he was going to do for Nedec/Kodec after the Tripartite Meeting on 24 November 2011 (see [345] above). No copies of that draft exist but it is apparent that they were discussed at the meeting with Mr Lee as recorded in his e-mail of the following day:^[181]

362 Mr Goh sent the revised draft on 28 November 2011 but, again no copy exists. Mr Tony Lee gave evidence of his recollection that both the drafts proposed that Wyser should charge a base consultancy fee of US$200,000 and a monthly fee of US$20,000 and that he understood that the base fee related to consultancy in respect of improvements to the Langfang factory so that it could obtain Seagate qualification and the monthly fee was to assist in resolving production issues during mass production.^[182]

363 In Mr Lee's e-mail of 28 November 2011^[183]acknowledging safe receipt of the revised draft he requested:

364 Mr Lee then says that he informed Mr Goh that the US$300,000 was to be remitted to a bank account in Hong Kong held by Mr Hwang. He explained that the reason for this was to save on corporate taxes that would have been levied in South Korea if Nedec/Kodec had transferred to Mr Hwang directly but that he merely told Mr Goh that it was for "corporate reasons".^[184]

365 On 12 December 2011 Mr Billy Chua e-mailed Mr Tony Lee setting out the terms on which Seagate would pay the US$2.5 million contribution towards the tooling investment. In essence, US$1.5 million was contingent on qualification and the remaining US$1 million on completion of the first shipment of 1.5 million baseplates.^[185]

366 There then follows a rather curious exchange of e-mails on 13 and 14 December 2011 when Mr Tony Lee sought to use Mr Goh's address to assist in setting up Mr Hwang's account in Hong Kong.^[186]No clear explanation was given for this exchange.

367 On 19 December 2011 Mr Tony Lee again e-mailed Mr Goh^[187]to inform him of the details of the payments to be made by Seagate followed by the comment:

368 Mr Tony Lee explained that this was a reference to the fact that Nedec/Kodec only wanted to pay Mr Goh once the grant had been received from Seagate. Qualification at Langfang took longer than expected and on 9 February 2012 Mr Tony Lee e-mailed Mr Goh^[188]to explain the delay in payment but indicating that draft agreements had been prepared. On 20 February 2012 Mr Tony Lee sent those drafts to Mr Goh under cover of an e-mail^[189]which explained that he had amended the clause providing for a monthly consultancy fee of US$20,000 to a payment of US$0.02 per piece shipped from BTEC to Langfang. There were two draft agreements.^[190]Both were dated 24 November 2011, the date of the Tripartite Meeting. The material provisions of the first were:

369 The second was a short agreement whereby Wyser agreed to transfer US$300,000 of the US$500,000 to Mr Hwang. Mr Goh did not object to the proposed change in the way the consultancy fee was to be paid and on 27 February 2012 asked for the agreements to be sent to his home address. Mr Tony Lee offered to hand deliver them as he was coming to Singapore the following week. He said that the agreements would be divided into three rather than two since the lump sum as originally agreed upon was to be paid by Nedec whereas the US$0.02 would be paid by Kodec who was responsible for the Langfang factory.^[191]

370 Copies for signature were said to have been given to Mr Goh on 6 March 2012 and were in the form of the three agreements as foreshadowed by Mr Tony Lee. Copies of the agreements were attached to an e-mail from Mr Tony Lee to Mr Goh on that day.^[192]The two agreements relating to payments to Wyser were both signed by Mr Goh and Mr Tony Lee,^[193]although the date stamp by Mr Tony Lee's signature is 5 April 2012. The third agreement relating to the payment from Wyser to Mr Hwang was never signed, apparently because Mr Tony Lee did not believe that he had authority to sign since Mr Hwang was to be the recipient of the funds.^[194]

371 Mr Goh was duly paid the lump sum and transferred the excess US$300,000 to Mr Hwang. He also received around US$88,000 in monthly fees.^[195]

372 There is one further matter that should be noted. On 17 April 2012 a Ms. Mila Hwang of Nedec/Kodec sent an e-mail to Mr LH Lee of BTEC saying:

373 This was followed a few minutes later by a further e-mail from Ms Hwang saying:

374 Mr LH Lee informed Mr Goh about the mistaken e-mail:

375 Mr Goh merely replied "ok".^[196]

376 Mr Tony Lee was however informed about the incident and he e-mailed Mr Goh with a copy of the e-mail exchange between Ms Hwang and Mr LH Lee the same afternoon from his mobile phone saying:^[197]

377 Both Mr Goh and Mr Lee were cross-examined at length on the circumstances surrounding the Wyser Agreements. I do not propose to increase the length of this already overlong judgment by reciting each excuse that they sought to put forward to justify the way in which the payments were structured. The feeblest excuse put forward by Mr Goh was that the payment to him was proper because Beyonics was not in the business of providing consultancy services.^[198]

378 True, it is, that before the BN Alliance was proposed, Beyonics were not in the business of providing consultancy services, but neither was Mr Goh. The request by Mr Tony Lee for Mr Goh to provide consultancy services in support of the BN Alliance was to further the joint venture between Nedec/Kodec and BTEC. If consultancy services were justified, they were only justified if the time spent, not only by Mr Goh but also by others at BTEC in assisting Nedec/Kodec to obtain qualification, worked to BTEC's benefit. It should have been wholly apparent to Mr Goh, Mr Tony Lee and Mr Hwang that any payment for consultancy services should be paid to BTEC and not to Mr Goh, save with the express approval of Beyonics.

379 Moreover, I am entirely satisfied that it was in fact wholly apparent to them. No legitimate reason was provided for structuring the payment of US$300,000 from Nedec/Kodec to one of its directors, Mr Hwang, through a third party, Mr Goh. It was, in my judgment, an opportunistic method of surreptitiously transferring corporate funds for the personal use of a director. It therefore suited Nedec/Kodec for the agreements to remain secret. Equally, whereas Mr Goh informed the Beyonics Board fully as to the nature of the BN Alliance at the Board meeting on 13 December 2011, he did not mention the fact that he was going to be paid for consultancy services. He again did not tell them when the terms of the BN Alliance were being discussed with the Board in late December 2011 and early January 2012.^[199]The furthest Mr Goh went was to suggest that he told Mr Chay informally about the consultancy in December 2011 but even then he accepts that he did not tell him anything about the payment arrangements. A passage of cross-examination speaks for itself:^[200]

380 Furthermore, when the new management in the form of Mr Shaw and Channelview took office in February 2012, Mr Goh did not tell them about the proposed agreements and he told no one when the agreements were eventually signed in March 2012. The sums of money he was to receive were not small. Mr Goh's employment contract required him to devote " his time, attention and skill substantially to the affairs of the Company and its subsidiaries ".^[201]By no stretch of the imagination could it be said that the payment for consultancy fell outside the meaning of "substantially".

381 Finally, the e-mail exchange on 17 February 2012 between Ms Mila Hwang and Mr LH Lee and Mr Tony Lee's "terrible mistake" reaction to it is further proof, if more was needed, that all the parties knew the agreements were clandestine agreements which should be kept secret. There is no escaping the conclusion that Mr Goh's involvement in the Wyser Agreements was reprehensible.

382 A consequence of the decision in the 672 Action however, where a similar conclusion was reached, is that Mr Goh was ordered to disgorge and has disgorged the sums he received under the agreements. Even had I come to the conclusion that the agreements were above board, it would not have been open to me to revisit that order. That would be a collateral attack on the 672 Judgments. But what I do have to do is to assess the impact of the circumstances surrounding the Wyser Agreements on the issues arising in this action. They cannot be ignored as part of the matrix of facts but, equally, they have to be taken in context. The mere fact that Mr Goh did not act in good faith towards Beyonics in the arrangements he made to receive the payments under the Wyser Agreements does not necessarily mean that he acted in bad faith towards Beyonics in relation to the BN Alliance and the other issues arising on the pleadings in this action.

383 Whilst the discussions leading up to the BN Alliance agreement were taking place there was no significant progress on the proposed purchase of BTEC by Nedec/Kodec which had been the original reason for the first meetings between Mr Goh, Mr Stephen Hwang and Mr Tony Lee. However, on 20 December 2011 a visit was arranged between Mr Goh and Mr Tony Lee for Mr Hwang and Mr Tony Lee to visit BTEC in China to discuss (amongst other things) " M&A ".^[202]

384 By an e-mail dated 3 January 2012 Mr Tony Lee reported on a meeting he had had the day before with Semco (Samsung Electronic Manufacture):^[203]

385 This was the first in an exchange of e-mails between Mr Tony Lee and Mr Goh which the Plaintiffs contend demonstrates a relationship between them which was far closer than that which merely being partners in the BN Alliance required. Mr Goh was, they assert, exchanging confidential information which would not normally be disclosed to a competitor, far less to a competitor who was a potential purchaser of part of one's business.

386 Mr Goh responded the following day:^[204]

387 Within half an hour Mr Tony Lee come back to Mr Goh:^[205]

388 Mr Goh replied later that morning:

389 The following day Mr Tony Lee reported to Mr Goh on the meeting he and Mr Hwang had with Semco:^[207]

390 Mr Lee then proceeded in ten numbered paragraphs to disclose information which on its face was confidential either to Semco or Nedec/Kodec or both. In particular details are given of the sums which Semco were proposing to invest in Nedec/Kodec. Item 6 reads:

391 Both Mr Goh and Mr Tony Lee were cross-examined extensively on this exchange of e-mails. Whilst a certain amount of heat was generated in consequence, not much light was thrown on the circumstances surrounding the interchange.^[208]The only answer worthy of note was Mr Goh's answer to a question about the "FRIEND PRICE":^[209]

392 From the e-mails themselves, the following is apparent. First, Mr Tony Lee was disclosing information to Mr Goh which was confidential to Nedec/Kodec concerning discussions he had had with Semco and was seeking advice from Mr Goh as to possible ways in which the acquisition could be financed. Secondly, Beyonics had in the past had contact with Semco but Mr Goh, for reasons which are unclear, had concluded that they were not serious potential buyers of the PES division, something which he had apparently told Mr Tony Lee. Third, Mr Goh was assisting Mr Tony Lee by focusing on ways to obtain the necessary financing to enable Nedec/Kodec to fund the purchase of BTEC. Fourth, Mr Goh was providing reasoning to Mr Tony Lee to justify his target price of US$40 million and in doing so was working on the basis that the capacity at BTEC was between 2.5 and 3 million per month which is consistent with the figures he had been provided with by Mr LH Lee (see [332] above). Fifth, Mr Tony Lee had represented to Semco that the asking price for BTEC was US$55 million which it was not and this could only have been done to try to scare off Semco as a possible bidder.

393 The e-mails undoubtedly demonstrate that Mr Goh and Mr Lee were working closely together but, in the main, it was Mr Lee rather than Mr Goh who was imparting confidential information. It was Mr Lee that was being proactive and Mr Goh reactive during the interchange. Save for the "FRIEND PRICE" comment, there is nothing in Mr Goh's comments that suggests impropriety. He was offering some suggestions to Mr Lee as to possible ways in which the prospects of a deal could be moved forward but was not helping him to put any of these suggestions into effect.

394 The Plaintiffs invite the Court to conclude that this exchange of e-mails demonstrates that Mr Goh was not acting in Beyonics' best interests. They rely in particular on the "FRIEND PRICE" comment, the failure to alert Semco to the correct asking price and the advice given with regard to financing.

395  As to the "FRIEND PRICE" comment, Mr Lee was not prepared at that time to state a price. It is not unusual in negotiations for statements to be made which, although not true, have a sufficient ring of truth about them to be calculated to induce the opposite party to accept them as being true and to act upon them. Neither Mr Goh nor the efforts of consultants appointed by Mr Shaw, which I shall consider later, achieved a bid of anywhere near US$40 million. The eventual bid made by Nedec/Kodec was around US$30 million. Viewed in the round, I accept Mr Goh's evidence that this was an attempt on his part to make Mr Lee comfortable with offering a price in the region of US$40 million and that that this was not a preferential price. Indeed, if Nedec/Kodec had offered such a figure at the time, either the then current Board or, indeed, Mr Shaw and the Channelview Board a month later, would not, I believe, have viewed it as being an unreasonably low figure.

396 This conclusion also casts light upon the fact that Mr Goh did not approach Semco. Semco is recorded by Mr Tony Lee as saying that the price was "TOO high". Mr Goh knew that and would have placed himself in an impossible position both with Nedec/Kodec and with Semco had he sought to open negotiations with Semco by telling them that the asking price was not as high as US$55 million. I do however accept that the e-mails demonstrate that Mr Goh was prepared to advise Mr Tony Lee as to possible ways forward but that was not contrary to Beyonics' best interests if it served to promote the take-over.

397 On 8 January 2012 Mr Lee e-mailed Mr Goh to update him on a further meeting with Semco on 7 January 2012. Again Mr Tony Lee discloses information with regard to a potential investment by Samsung into Nedec/Kodec and that due diligence was to start on 18 January. He also talks about a possible relationship with Nidec; points 6, 7 and 8 read as follows:^[210]

398  On 10 January 2012 Mr Goh met with Mr Tony Lee and Mr Hwang at the Shangri-La hotel in Suzhou. There is no written record of this meeting but Mr Tony Lee gave evidence that he asked for exclusivity from Mr Goh with regard to the possible take-over. It is unclear whether this was agreed to but Nedec/Kodec proceeded on the basis that it was and Mr Goh did not dissent.^[211]By 20 February 2012 matters had advanced with regard to investment in Nedec/Kodec as Mr Tony Lee informed Mr Goh that a potential investment by Nidec (rather than Samsung) was proceeding "rapidly and concretely".^[212]Points 2 and 3 read:

399 On 28 February 2012 Mr Tony Lee again e-mailed Mr Goh, this time to appraise him of the possibility of a different investor (unnamed) providing 60% of the purchase price of BTEC, working on a total price of US$40 million.^[213]He also forwarded some slides which Nedec/Kodec had prepared for the purpose of pre-due diligence discussions with Semco.

400 All these interchanges emanated from Mr Tony Lee. Mr Tony Lee contended that all of this information was generally known in the field at the time and that the purpose was to assure Mr Goh that Nedec/Kodec was taking steps to obtain the necessary finance.^[214]This would seem to be something of an overstatement but nothing turns on this. The fact is that Mr Tony Lee was treating Mr Goh as a confidant but there is no indication that Mr Goh had sought this information or that he was proactive in seeking more.

401 On 30 March 2012 Mr Goh e-mailed Mr Tony Lee to inform him that he, Mr Goh, was in discussions with a private equity fund, Gazelle, both about possible funding to assist Nedec/Kodec to purchase BTEC but also that Gazelle might itself be interested in purchasing BTEC. Mr Goh made it plain that if there was any chance that Nedec/Kodec did not make an offer, an alternative would have to be found. It ended by saying, " I will let you have the first right and waiting for your final decision by mid April ."^[215]

402 By e-mail dated 22 April 2012, Mr Tony Lee sent Mr Goh a draft Letter of Intent^[216]("LOI") to purchase BTEC for his comments and on 23 April 2012 the formal LOI was sent.^[217]This indicates a willingness, subject to certain terms and conditions, to pay between US$28 million and US$31 million in cash for BTEC subject to due diligence. The offer was to remain valid until 22 May 2012. He followed up on this on 30 April 2012 with a request to proceed with due diligence as " your Primary Preferred Bidding Party ".^[218]

403 In order to place subsequent events into context, it is necessary to step back in time to the end of January 2012, before the take-over of Beyonics by Channelview became effective in February 2012.

404 On 31 January 2012 Mr Goh e-mailed Mr Shaw raising various matters of concern to him relating to the forthcoming acquisition^[219]which, with hindsight, can be seen as the beginning of an increasingly unhappy relationship between the two. But on the same date he sent Mr Shaw a copy of an Information Memorandum which had been prepared in November 2011 for the purpose of soliciting offers for parts of the PES division ("the PE Memorandum")^[220]. Mr Shaw does not recall reading it at the time but accepted that he would have done so. He regards the document as being somewhat amateurish, akin to a teaser that would be distributed to interested parties to gauge their interest.^[221]There was however no reason for Mr Shaw to focus unduly on this document because on 1 February 2012 he advised Standard Chartered Bank that Channelview itself would start the process of divesting PES in February 2012 and use the cash proceeds to pay down part of the loan.^[222]

405 Mr Goh however did not update Mr Shaw or the Board of Channelview as to the steps he was taking to sell BTEC to Nedec/Kodec or, indeed, any of the other steps he was taking during this period to promote the divestment of the PES division.

406 Mr Shaw decided to appointed external advisers, Business Development Asia LLC ("BDA"), to assist in seeking a purchaser for these assets. On 28 March 2012 BDA sent Mr Shaw an engagement letter^[223]appointing them as exclusive advisors to Beyonics in connection with the divestment of the PES division. This was to include identifying, screening and contacting potential purchasers and assisting and advising Beyonics with any potential sale. For confidentiality reasons, BTEC and BPM were to be referred to under the codename "Pinot" and two other companies in the PES division as "Syrah". The overall project was therefore to be known as "Wine".

407 After reading the BDA proposal, Mr Goh e-mailed Mr Shaw on 5 April 2012^[224]informing him that by the end of the month he would obtain LOIs from three companies interested in purchasing the PES division: Avatron, Gazelle Capital and Nedec/Kodec. He concludes:

408 Mr Shaw considered that engaging BDA " would ensure an independent, consistent and coordinated approach in negotiations to secure the best price possible "^[225]and was frustrated both by Mr Goh's refusal to approve this and by the fact that unknown to Mr Shaw, Mr Goh had been in discussions with potential purchasers. For his part, Mr Goh had never employed such consultants in the whole of his working life and regarded them as an expensive luxury.^[226]

409 There was thus a clash of business cultures and a lack of confidence between the two. It was with this background that Mr Goh gave the Nedec/Kodec LOI to the Board under cover of an e-mail dated 24 April 2012^[227]together with a further LOI in respect of a joint venture in which Beyonics were involved known as Patco. This e-mail referred not only to the two LOIs but also to the receipt of the insurance money for BTT as well as the potential sale of other assets including BPM which he anticipated together would raise more than the US$61 million needed to pay off the banks. He was plainly frustrated with the new Board's attitude as he ended the e-mail:

410 By a separate e-mail on 24 April 2012^[228]Mr Goh told the Board that he proposed sending the LOI that he had obtained to the banks to inform them of the progress to reduce leverage and thus win their confidence. Mr Shaw, in return, instructed him not to do so.^[229]

411 On 2 May 2012 Mr Goh forwarded a further LOI, this time from a company called Magne Industries ("Magne") for the sale of BPM.^[230]

412 A meeting with BDA was arranged for 9 and 10 May 2012.^[231]By an e-mail of 3 May 2012 Mr Shaw explained to Mr Lee the objectives of that meeting, which included signing off on the BDA engagement letter by both Mr Shaw and Mr Goh and authorising BDA to approach Nedec/Kodec and Magne to invite them to " reevaluate their bid with the aim of increasing it ". He further indicated that neither company would be given exclusivity at that time.

413 Mr Goh continued to oppose the appointment of BDA expressing his reasons forcefully in an e-mail to the Board dated 4 May 2012, complaining that Mr Shaw was considering only his own opinion and was driving events without consultation.^[232]

414 Matters came to a head on 22 May 2012 after representatives of BDA had met with Nedec/Kodec who were unaware that BDA had been appointed. They told BDA of their expectation that they were the only ones discussing a deal for BTEC.^[233]In consequence Mr Shaw e-mailed Mr Goh and said:

415  Mr Goh replied saying that he would " stop all discussion base on this e-mail ".^[234]

416 BDA's attempts to induce Nedec/Kodec to increase its offer were unsuccessful. Full details of the exchanges between BDA and Nedec/Kodec in June and July 2012 are contained in Mr Tony Lee's AEIC at paragraphs 140 to 153.^[235]Suffice it to say that although BDA was prepared to permit Nedec/Kodec to conduct due diligence it was not prepared to offer them exclusivity and by an e-mail dated 6 July 2012 Nedec/Kodec declined to proceed on that basis.^[236]

417 The minutes of the Channelview Board meeting of 7 August 2012 record that BDA continued to discuss the potential sale of BTEC and was waiting for bids to be submitted. In September they were in discussions with MMI who, according to Mr Shaw, had indicated that they would pay at least US$30 million.^[237]However, the best offer that BDA was able to obtain, according to Mr Goh, was between US$25 and 28 million from MMI.^[238]It was also in September that BDA reverted to Nedec/Kodec^[239]but Mr Tony Lee gave evidence that by that stage the HDD market had collapsed. In their LOI dated 29 November 2012 Nedec/Kodec reduced the sum they were prepared to offer to between US$13-15 million.^[240]

418 In the event Channelview were successful in raising the money necessary to pay the bank loan well in advance of the due date by other means and attempts to divest BTEC ceased.

419 The Plaintiffs' case against Mr Goh in relation to his dealings with Nedec/Kodec are set out in paragraph 36(8) of the Statement of Claim and are succinctly encapsulated in paragraph 636 of the Plaintiffs' written closing:

420 The facts as disclosed by the documents considered above demonstrate that in seeking to interest Nedec/Kodec in making an offer for parts of the PES division before the floods, Mr Goh was implementing the then-Board's strategy. Once Nedec/Kodec had indicated an interest only in acquiring BTEC Mr Goh continued discussions on that basis but also entered discussions for the sale of BPM with other parties and obtained an LOI from Magne for the purchase of BPM. He was thus not ignoring BPM. The Board's strategy was to divest the PES division which, by then, in essence, was BPM and BTEC as BTT had already been lost as a result of the floods. This strategy was also the strategy that Mr Shaw had proposed to the banks as a means for repaying the loan. It remained part of the new Board's strategy until at least the autumn of 2012 following the efforts of BDA during that summer and autumn.

421 Mr Goh carried out these negotiations without informing either Board of the progress made until he had a LOI. This appears to have been his working style which was acceptable to the old Board but not to Mr Shaw.

422 He undoubtedly became close to Mr Hwang and Mr Tony Lee and information was exchanged which would not have been had the proposed transaction been an arm's length transaction through, say, BDA. But it bore fruit in that Nedec/Kodec sent the LOI proposing a figure of between US$28-31 million.

423 The Plaintiffs contend that Mr Goh favoured Nedec/Kodec by offering them a preferential price and a first right of refusal.^[241]I do not accept that he offered them a preferential price. The "Friend Price" of US$40 million can be seen in the light of all the facts as being an inducement to Nedec/Kodec to offer a price in that region which was at the higher end of a reasonable price. This is demonstrated to be so by the fact that Nedec/Kodec's offer was around US$30 million as was the projected offer from MMI which subsequently was made at between US$25-28 million (see [417] above). Mr Goh cannot be criticised for using marketing tactics to seek to induce a higher offer, nor can he be criticised for acting in a way which, entirely in accordance with both Boards' strategies, resulted in the highest offer for BTEC which was obtained either by him or by BDA.

424 He might be criticised for failing to keep the two Boards fully informed as to the progress of the various negotiations he was involved in but this is the way in which he had been allowed to work as CEO over the years. Any such criticism could equally be directed at the old Board for allowing him this freedom.

425 He might also be criticised on the basis that he became too close to Nedec/Kodec such that his judgment as to what was in the best interests of the Beyonics group became blurred. I shall consider the merits of these criticisms below.

426 There were moments during the trial when I was uncertain whether the Plaintiffs' case in relation to the payments Mr Goh received under the Wyser Agreements was that he was paid a far greater sum than the work he did or whether he did work under those agreements which extended beyond that which was necessary to make the BN Alliance work to the benefit of Beyonics. In the former case, the excess payment would support their case that the sums were bribes. In the latter case, it would support their case that Mr Goh was, in effect, working for Nedec/Kodec rather than Beyonics.

427 In truth, I think it was probably both. Paragraph 30 of the Statement of Claim pleads that Mr Goh received the payment of US$0.02 per piece as gratification for procuring and/assisting to procure the diversion of 2nd Stage work that should have been carried out by BTEC to Nedec/Kodec pursuant to the BN Alliance. This is referred to as "Bribe 1". The case therefore is that no payment of this nature was justifiable. In paragraph 33 of the Statement of Claim the allegation is that the net US$200,000 that Mr Goh received pursuant to the other Wyser Agreements was gratification for procuring or assisting to procure the US$2.5 million grant from Seagate. Again therefore their case is that no payment of this nature was justifiable and hence this payment is referred to as "Bribe 2".

428 However, in paragraph 36 of the Statement of Claim it is alleged that Mr Goh assisted Nedec/Kodec to become qualified as a supplier to Seagate in competition with BTEC with the intention of supplanting BTEC as a supplier to Seagate. Reliance is placed not only on advice given to Nedec/Kodec to achieve qualification for second stage work (para 36(5)) but also on advice relating to qualification for 1st Stage work (para 36(10)) and on a proposed IPO by Kodec (para 36(15)).

429 The Defendants' position is that Mr Goh became involved in assisting Nedec/Kodec to obtain the US$2.5 million grant at the request of Seagate as part of the overall package to be provided to Beyonics and Nedec/Kodec and that it was in Beyonics' interest for him to do so. Further, he provided consultancy services to Nedec/Kodec under the Wyser Agreements to advance the progress of the BN Alliance and therefore the interests of Beyonics.

430 Whilst the above analysis of the facts goes some way to resolving these issues, the amount and nature of the advice and assistance given by Mr Goh and others to Nedec/Kodec also have a part to play.

431 Dealing first with the qualification for the 2nd Stage work, Mr LH Lee gave evidence that there were a number of visits both by Nedec/Kodec personnel to BTEC's Changshu plant and by Beyonics personnel other than Mr Goh to the Langfang facility.^[242]In particular, there was a visit by seven people from Langfang to Changshu on 13 December 2011. These were mainly technical representatives and included Mr Imsoo Seo. A further visit was made by four people, including Mr Tony Lee, on 5 May 2012 and Mr Imsoo Seo returned on 20 December 2012. There were eight visits by BTEC personnel to Langfang between 5 January 2012 and 19 October 2012. Mr LH Lee states that the purpose of those visits was " for the Beyonics Group's personnel to teach and give guidance ... on manufacturing and supplying baseplates for Seagate HDDs ".^[243]Mr LH Lee continues in his AEIC to give details of the assistance that was provided and concludes by giving his opinion that " without BTEC's assistance it would have taken the NEDEC/KODEC Group more than 6 months to be qualified to carry out the Second Stage work on Brinks 2H baseplates .... However , with BTEC's assistance [Nedec/Kodec] was qualified within 4 months, by April 2012 ".^[244]

432 Mr Goh also visited Langfang subsequent to his initial visit on 10 November 2011 and gave advice both over the telephone and by e-mail. Mr Imsoo Seo, who was the quality general manager of the Langfang facility, gave evidence about his interaction with Mr Goh from late November 2011 until December 2012 both with respect to obtaining qualification to produce the 2nd Stage baseplates and in dealing with production issues which arose during mass production.^[245]Mr Imsoo Seo gave detailed evidence as to the nature and extent of the advice.^[246]

433 I do not need to consider the details of this evidence or the oral evidence that was given in relation to it as I am wholly satisfied that Mr Goh and other personnel at BTEC did give a considerable amount of advice and assistance to Nedec/Kodec to assist them both in qualifying to produce the 2nd Stage baseplates and in ironing out production difficulties. Had the Wyser Agreements been entered into with Beyonics, the sums involved would appear to me to have been in proportion to the involvement of Beyonics personnel both with regard to the lump sum and the US$0.02 per piece. It is to be noted that, in fact, the US$0.02 sum was financed by Seagate as the price per piece was increased from the US$1.90 previously proposed to the eventual agreed price of US$1.92.

434 But, of course, the Wyser Agreements were with Mr Goh and he therefore benefitted at the time from the work he and others at BTEC did to assist Nedec/Kodec, but Beyonics did not.

435 The Plaintiffs however contend that, even if some of the advice and assistance given by Mr Goh was in furtherance of the BN Alliance and even if entering the BN Alliance was itself not contrary to Beyonics' best interests, the relationship between Mr Goh and Nedec/Kodec went far beyond that which was necessary to make the BN Alliance successful. Mr Goh was, they contend, working for the benefit of Nedec/Kodec and contrary to the best interests of Beyonics. They rely not only on the extent of Mr Goh's involvement in the 2nd Stage process, which they contend was excessive, but also his involvement in other aspects of Nedec/Kodec's business at the time.

436 In addition to his involvement in obtaining the US$2.5 million grant, the consultancy work and the part he played in promoting the potential purchase of BTEC by Nedec/Kodec, the Plaintiffs rely on two other matters: assistance given by Mr Goh to Nedec/Kodec to develop its capability for 1st Stage work and Mr Goh's promotion and/or facilitation of Nedec/Kodec as a baseplate supplier for Seagate programmes.^[247]

437 It is clear from the documents that from an early stage in the discussions leading up to the BN Alliance agreement, the parties contemplated that Nedec/Kodec would seek to qualify with Seagate for 1st Stage production. They had in the past been qualified for 1st Stage production for Samsung but Samsung used a different e-coating process. It was acknowledged at the EBR meeting on 18 November 2011 that this would be a challenge.^[248]Indeed it appears from an e-mail sent by Mr LH Lee to Mr Michael Ng, Mr Goh's successor as CEO of Beyonics, that qualification for the 1st Stage for Brinks 2H had not been achieved by June 2013 and was not estimated to happen until July or August 2013.^[249]

438 During Mr Goh's visit to the Langfang plant on 10 November 2011 he was aware of and commented on the e-coating process and was aware that Nedec/Kodec were planning to qualify for 1st Stage work as early as April 2012 so that they could produce a further 1 million baseplates per month, in addition to the 1 million that were to be produced under the BN Alliance.^[250]

439 Mr Tony Lee proposed a visit by him and others to the Changshu plant in an e-mail dated 28 November 2011 to discuss, amongst other things, " Die casting quality, e-coating, deburring, etc for 3.5 ".^[251]However this was with a view to Nedec/Kodec discussing the quality of BTEC's 1st Stage process^[252]and was a necessary part of the BN Alliance as Nedec/Kodec had to be satisfied that the 1st Stage parts produced for them by BTEC would be of an acceptable quality for the 2nd Stage work to be done.

440 The Plaintiffs also drew my attention to an e-mail dated 18 January 2012^[253]from Mr Tony Lee to various people at Nidec, which he forwarded to Mr Goh, which answers five questions Nidec had posed of Mr Lee to assist Nidec and Seagate working together with Nedec/Kodec. The first four related to 2nd Stage work but the fifth related to e-coating. The response to that question made it clear that at that time it was only the 2nd Stage that was being carried out on Beyonics' e-coated baseplates so that Nedec/Kodec was " not quite much attentive on this subject " ( ie , 1st Stage). It did however indicate that Nedec/Kodec intended to transfer one of its e-coating lines at Langfang to Seagate's standard and that it was intending to install a new such line at its KPI facility in the Philippines. For this purpose, Mr Lee had already consulted with Nidec in the Philippines and proposed " to get further consultation from Mr. Kesbahn Rai because we determined to make our new e-coat line meet Seagate's standard ". He was to meet Mr Rai the following week.

441 Whilst this demonstrates that Mr Lee was keeping Mr Goh informed as to the steps Nedec/Kodec were taking, it does not support the allegation that, at that time, Mr Goh was being asked to, or did, consult with them on 1st Stage work.

442 Mr Goh did however become involved in the Nedec/Kodec's plans for the line at KPI. On 4 March 2012, Mr Tony Lee asked if a visit could be arranged for him and Mr Hwang to visit BPM's facility in Malaysia to have a tour of the e-coating line there because they were " preparing new e-coating line in KPI ".^[254]By this date Nedec/Kodec had indicated that it was not interested in buying BPM but the parties were meeting in Singapore at that time in relation to the BN Alliance. Mr Goh agreed to this visit^[255]but did not accompany them. He did however offer to advise on the e-coating facility. In cross-examination Mr Goh was reluctant to accept that he had been involved in advising on 1st Stage work but accepted that " if he had any question ... I will answer him ".^[256]There was no need for Mr Goh to accede to this visit otherwise as a gesture of goodwill and he must have appreciated that the purpose was to assist Nedec/Kodec's plans to build a 1st Stage line at KPI. But equally he must have appreciated that to refuse would cause offence to Mr Lee and Mr Hwang.

443 Thereafter, in April 2012, Mr Goh became involved as a go-between (to use a neutral term) in Nedec/Kodec's quest to obtain quotations for the new KPI e-coating line. On 19 April Mr Goh sent an e-mail^[257]to Mr Lee indicating that he had spoken to his vendor asking him "to quote the line for you in Kodec", stating that the system was the same as one which Mr Lee had seen at another Beyonics plant called Wealth Preview. Mr Lee responded the same day in an e-mail with an attachment entitled "KPI E-coating bidding invitation - 120314--1" which said:^[258]

444 This Mr Goh did.^[259]It is plain from the invitation that the proposed purchaser was Kodec and that Mr Tony Lee's name was given as a contact. The proposed vendor was an Indonesian company, PT Ovindo MetaItama Technik ("Ovindo"), and Mr Goh's contact there was a man called Johnny. Thereafter until 18 June 2012 Mr Goh liaised with Johnny and with Mr Lee. This not only involved transmitting proposed designs for the line but also involved Mr Goh in discussions with Johnny and in receiving quotations.^[260]