I-Admin (Singapore) Pte Ltd v Hong Ying Ting
[2020] SGCA 32
… [because without] such an order, the information would still be ‘out there’ in
the possession of someone who should not have it” (Imerman at 621). There
are, however, difficulties in applying this reasoning to the present case. While
the circulated drafts of the respondents’ payitem bible contained content from
the Payitem Bibles, edits were made over time, transforming the end-product
into a new and unique document. At some point these drafts became the
respondents’ own content, as opposed to infringing copies. The blanket order
for delivery up being sought by the appellant would also compel the surrender
of materials which the respondents are entitled to retain possession of.
71
We would add that an injunction and/or delivery up order are somewhat
unsatisfactory remedies by themselves as they do not set right the loss already
suffered by virtue of the respondents’ unconscionable conduct. Problematically,
equitable monetary remedies do not guarantee more ideal outcomes (David
Brennan, “A short argument in favour of all-proceeds remedies for breach of
confidence” (2012) 17 MALR 232):
A classic profits-based remedy requiring [the defendant] to
disgorge his net monetary gains [from the breach] may be seen
to present insurmountable problems of accounting because so
much of [the defendant’s] own capital has been intermingled
with the information in [the defendant’s] commercial use of it.
Alternatively, making allowance for [the defendant’s] own
capital might make the award very modest or even nominal.
An award of money as equitable compensation for what [the
plaintiff has lost] ― so that [the defendant] is obliged to put [the
plaintiff] in the position [it] would have been in if the duty of
confidence had not been breached ― creates such a wildly
counter-factual basis of calculation that a court may rail
against it as unduly speculative …
72
The appeal before us does not lend itself to an account of profits analysis
because there was no finding of actual use of the appellant’s materials. The
appellant faces the nearly “insurmountable” challenge of quantifying the portion
of the third respondent’s proceeds attributable to the referencing and reviewing
34
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