 |
- Significant cases & deals featuring our lawyers
In Tan Chin Yew Joseph v Saxo Capital Markets Pte Ltd [2013] SGHC 274, the plaintiff claimed that the defendant broker wrongfully closed out his futures trading positions, causing him to lose money on the trades and also the opportunity to earn future profits. The defendant was successfully represented by Harish Kumar and Jonathan Toh from the Commercial Litigation Practice.
In a time of market turmoil, the defendant told the plaintiff that he was on margin call (i.e., that his Margin Utilisation Ratio ("MUR") had exceeded 100%) and that he should remit funds into his trading account to avoid being closed out. He was also told that his positions would be automatically closed out if his MUR reached 150%. About 2.5 hours after this call, the Plaintiff instructed his bank to transfer S$40,000 to the defendant. However, minutes before the plaintiff's bank credited the funds into the defendant's trading account, the plaintiff's MUR had reached 150%, and his positions were automatically closed out.
The plaintiff alleged that the defendant was obliged (either by way of an implied contractual term that the defendant would provide its services in a timely and expeditious manner, or a duty in tort to the same effect) to give him the benefit of his incoming monies the moment the plaintiff's bank notified the defendant of the remittance. If so, the automatic close out would not have been triggered. It was not disputed that the defendant had the contractual right to close out the plaintiff's positions upon the plaintiff's MUR crossing 100%. The plaintiff alleged that the defendant was estopped from relying on this right because the defendant represented that he would only be closed out after the plaintiff's MUR crossed 150%.
(NB: This was the plaintiff's claim as finally formulated in his closing submissions. The plaintiff had advanced several other claims that he was forced to abandon in cross-examination.)
The court dismissed the plaintiff's claims.
First, pursuant to the test for the implication of terms in Sembcorp Marine v PPL Holdings [2013] 4 SLR 193, the Court found that there was no gap in the agreement that necessitated the alleged implied term. The implied term was also contrary to the express terms of the contract. Further, such a term would give the contract commercial absurdity rather than efficacy. In any case, it was not breached as the defendant took a mere 3 minutes and 38 seconds to credit the funds to the plaintiff's account.
Second, on the alternative tortious claim, the court found that defendant's duty of care in tort was shaped by the contract and did not add anything to the plaintiff's claim in contract. As such, the court found that the defendant was not negligent.
The Court thus dismissed the Plaintiff's claims and awarded costs to the Defendant. Back to Top Print
In Park Regis Hospitality Management Sdn Bhd v British Malayan Trustees Limited & Ors [2013] SGHC 268, the Respondents successfully resisted an appeal against the Assistant Registrar's decision to strike out a claim for conspiracy to induce breach of contract. The Respondents were successfully represented by Lee Eng Beng S.C. and Matthew Teo from the Business Finance & Insolvency Practice.
The Appellant had entered into an Operating Agreement ("OA") with a property developer ("Taragon"), in which the Appellant was appointed as the operator of a proposed hotel. The Respondents were the owner and manager of a fund which had invested in Taragon in connection with the hotel. Taragon later entered into an agreement ("SPA") to sell the Hotel to a competitor of the Appellant. The Appellant then brought an action for an injunction against Taragon in Malaysia to stop the sale of the Hotel, and commenced proceedings in Singapore against the competitor and the Respondents for conspiracy to induce Taragon to commit a breach of contract. Shortly after commencement of the Singapore proceedings, the Appellant entered into a settlement agreement with Taragon and the competitor, and withdrew all pending proceedings against them.
The High Court upheld the decision to strike out the claim for inducement. It held that there was no breach of the OA by Taragon in the first place, and that the Appellant's claim against the Respondents for having induced Taragon to breach its contract must accordingly fail.
The Appellant had relied on a number of clauses in the OA to allege breach on the part of Taragon by selling the Hotel. However, the Court found that the alleged breaches had not occurred, mostly due to a condition precedent in the SPA that the OA had to be terminated within 30 days of the SPA, or else the SPA would be rescinded. The Court also found that the Appellant had voluntarily terminated the OA when it settled its dispute with Taragon. Since the SPA did not take effect until after the termination of the OA, the alleged breaches could not be said to have taken place and any alleged damage suffered by the Appellant was due to its voluntary termination of the OA. Back to Top Print
In Elbow Holdings Pte Ltd v Marina Bay Sands Pte Ltd [2014] SGHC 26, Gregory Vijayendran, Wendy Low, and Dhiviya Mohan from the Commercial Litigation Practice and the iTec Practice acted for the Plaintiff tenant, Elbow Holdings Pte Ltd. The Plaintiff's case was primarily based on misrepresentations which induced it to enter into a lease agreement with Marina Bay Sands Pte Ltd ("MBS"). There were also additional claims for breach of a collateral agreement and proprietary estoppel on the basis of such representations.
In Summons 2743 of 2013, the Plaintiff sought specific discovery of various categories of documents against MBS. One of MBS's key objection was based on the Official Secrets Act ("OSA"). MBS contends that section 5 of the OSA governs certain categories of documents which included, inter alia, a Development Agreement ("DA") and correspondence exchanged between MBS and the Singapore Tourism Board ("STB") and the Urban Redevelopment Authority in respect of the lease agreement. MBS also cited Sections 125 and 126 of the Evidence Act to resist giving specific discovery of the said categories of documents and raised further arguments of confidentiality precluding discovery of the said documents. The learned Assistant Registrar in Summons 2743 of 2013 ("AR") found in the Plaintiff's favour and granted the Plaintiff discovery of all the categories of documents it had sought.
MBS appealed against the whole of the learned AR's decision but, on the eve of the appeal hearing, withdrew its appeal against all categories of documents ordered save for two limited categories. These requests included, inter alia, discovery of the Request for Proposal ("RFP") and the DA entered into between MBS and the STB, pursuant to which MBS had alleged that the terms of the original lease as granted to the Plaintiff had been amended. Once again, MBS raised a similar argument that discovery of these said documents could not be ordered as they were subject to the OSA.
One issue which the Honourable Judicial Commissioner George Wei ("JC Wei") had to address was whether a copy of the DA disclosed online through Las Vegas Sands Corporation's Annual Report 2011 filing could remain as protected under the OSA. The Court reiterated the Court of Appeal's distinction drawn in PP v Bridges Christopher [1997] 3 SLR(R) 467 at [46], wherein the first group of documents ("code word, countersign or password") which was protected under Section 5(1) OSA is qualified by the term "secret official" whereas the second group ("any photograph, drawing, plan, model, article, note, document or information") is not. In that sense, universal knowledge such as "the sun rises in the East" can never be protected under the OSA but information which has become publicly accessible may still be protected under Section 5(1) of the OSA. The question, rather turned on whether MBS had obtained the DA "owing to his position as someone who held a contract made on behalf of the Government or any specified organisation", as provided by Section 5(1)(e) of the OSA.
JC Wei, with counsels' further submissions, reviewed the legislative history behind the OSA and found that in 2001, the OSA was amended to include a new Schedule governing some 28 statutory boards as of the date of the proceedings. STB was omitted from this Schedule but is listed instead for protection under the Schedule to the Statutory Bodies and Government Companies (Protection of Secrecy) Act. That being the case, JC Wei rejected MBS's submission that the STB should nonetheless be considered as "the Government" under section 5(1)(e) OSA as this would be inconsistent with the legislative history of the OSA and render the 2001 amendment otiose. MBS's argument that STB had entered into the DA "on behalf of the Government" was also dismissed in the absence of evidence. Amongst other findings, JC Wei noted that STB itself had not intervened in proceedings to object to disclosure and whilst a letter from STB in which STB had purportedly stated its objection, was shown to the AR and JC Wei, no copy was given to the Plaintiff, whether by affidavit or otherwise.
Referring next to section 125 of the Evidence Act, the Court disagreed that MBS was entitled to resist disclosure of the DA as this was not evidence relating to the "affairs of the State". After reviewing the "helpful submissions" from parties, the Court observed that the DA records in essence a commercial transaction, the relevance of which to the current proceedings has not been disputed by MBS. Similar reasoning prevailed in favour of the Plaintiff's request for disclosure of the RFP which terms were incorporated by reference to the DA. Accordingly, the appeal was dismissed in its entirety.
Back to Top Print
The case of AYL v AYM [2013] SGHC 237 involved a consent order for maintenance and division of matrimonial assets. Both husband and wife had approached the Court to vary the consent order on maintenance in their favour, with the Court eventually holding in favour of the wife. Nigel Pereira and Ang Siok Hoon from the Business Finance & Insolvency Practice successfully represented the wife in this matter, obtaining a lump sum maintenance payment of S$1 million for her and her 3 children.
The wife had sought a lump sum maintenance of S$250,000 for herself and S$750,000 for their children. The High Court granted the wife's request, and in so doing, rejected the husband's application to vary the maintenance sum downwards.
The Court also granted the lump sum payment because the wife and children had moved to Australia, and the lump sum maintenance would facilitate a clean break. Further, the husband had failed to meet at least one periodical maintenance payment and there was insufficient evidence to show that the husband would not be able to make a lump sum payment.
By taking the maintenance sums originally granted under the consent order and adjusting them to account for the conversion to a lump sum payment, the Court found that the S$1 million sum requested by the wife was not unreasonable at all. Therefore, the wife's application for variation was granted. Back to Top Print
Ian Teo from the Admiralty and Shipping Practice successfully represented a North Asian shipyard against a Southeast Asian shipowner in two Singapore International Arbitration Centre ("SIAC") arbitrations arising out of two shipbuilding contracts. The shipowner was seeking damages arising from alleged wrongful termination of the shipbuilding contracts. The North Asian shipyard successfully resisted the claims on the basis that the contracts were void due to illegality.
Back to Top Print
Simon Goh and Wang Ying Shuang from the Commercial Litigation / Insurance Practice represented the Defendant in an assessment of damages hearing involving a motor vehicle accident which occurred in August 2009 ("Incident"). The Plaintiff was a pilot trainee with the Republic of Singapore Armed Forces at the time of the Incident and had completed 1/3 of his training programme. As a result of the Incident, the Plaintiff suffered injuries and can no longer be a pilot. After the Incident, the Plaintiff (who had a diploma in aerospace technology at the material time) went to Purdue University to pursue a degree in management. He also evinced an intention to work in the Human Resource ("HR") industry upon graduation. The Plaintiff sought to recover the costs and expenses of his overseas education from the Defendant. This was allowed by the learned Assistant Registrar ("AR") as the AR took the view that this route was taken in mitigation of the Plaintiff's future loss of earnings.
One of the heavily contested issues during the assessment of damages hearing was the Plaintiff's claim for loss of earnings. The Plaintiff's initial claim was for loss of future earnings ("LFE") in the sum of S$3,339,120. This was calculated on the basis of the Plaintiff's projected total career earnings i.e. the difference in earnings between a pilot and HR professional over the projected career life span of 35 years. The Plaintiff argued in the alternative that LFE should be assessed based on a multiplier of 19.5 years. The Defendant, on the other hand, argued that as any loss of earnings which the Plaintiff might have suffered has yet to crystallise, the appropriate measure of loss would be that of loss of earning capacity ("LEC") and the Defendant submitted that a reasonable amount for LEC would be S$20,000. In the alternative, the Defendant argued that an appropriate award based on LFE would be S$685,200. With regards to LFE, the Defendant argued that whilst a multiplier of 18 years would be appropriate based on precedents and given the Plaintiff's age, the multiplier should be reduced to reflect the chance that the Plaintiff might not have become a pilot.
First, the AR held that the appropriate measure of loss would be LFE, instead of LEC. Next, in assessing the reasonable award for LFE, the AR found, based on the evidence before him, that the Plaintiff had a chance of becoming a pilot which is not insignificant (i.e. neither remote nor speculative). The AR was, however, hard pressed to conclude that the Plaintiff would have, on a balance of probabilities, completed the pilot training programme. That said, guided by inter alia the English decisions of Mallet v McMonagle [1970] AC 166 and Davies v Taylor [1974] AC 207, the AR found that the civil standard of proof of balance of probabilities may only be appropriate in determining whether a past event happened. When the question is whether a future event will happen, it may be more appropriate to evaluate the chance of the future event happening. The AR agreed with the Defendant that the appropriate multiplier based on precedents and having regard to the Plaintiff's age and remaining career life span would be 18 years. The AR also agreed with the Defendant that the multiplier should be reduced to reflect the chance that the Plaintiff might not have become a full-fledged pilot. Accordingly, the AR awarded the Plaintiff LFE based on a reduced multiplier of 13 years.
Another vehemently disputed issue relating to the Plaintiff's claim for loss of earnings was the appropriate salary data source to adopt. The Plaintiff argued that the Court should rely on the salary information in the Report on Wages in Singapore produced by the Ministry of Manpower ("MOM Wage Report"). The Defendant contended that although Singapore courts traditionally refer to the MOM Wage Report when assessing loss of earnings, the salary data in the MOM Wage Report is too generic and inter alia does not draw a distinction between HR professionals with different academic qualifications. On this, the Defendant called a remuneration specialist / consultant as expert witness and the expert gave evidence on inter alia the potential earnings and projected career trajectories of HR professional with a university degree. The AR agreed with the Defendant and the eventual award for LFE was S$497,796.
The Plaintiff appealed against the decision on LFE. The thrust of the Plaintiff's appeal was whether the AR should have reduced the multiplier from 18 to 13 years. The Plaintiff contended that such a reduction was not justified as the Singapore Courts have traditionally adopted the conventional "multiplier-multiplicand" approach in assessing LFE with no reduction. Alternatively, the Plaintiff argued that even if a discount were warranted, a reduction of 3 years would be sufficient. In response, the Defendant argued that the "percentage chance" approach adopted in inter alia the UK decisions like Doyle v Wallace 142 SJ LB 196 and locally in Soon Pook Seng Arthur v Oceaneering International Sdn Bhd [1995] 2 SLR(R) 536 should be adopted in the present case. This is to give due weight to the fact that the Plaintiff was only a pilot trainee and not a full-fledged pilot at the time of the Incident. In the alternative, the Defendant submitted that even if the High Court was not inclined to adopt the "percentage chance" approach, the Court of Appeal's decision in Poh Huat Heng Corp Pte Ltd v Hafizul Islam Kofil Udden [2012] 3 SLR 1003 accords the Court with a wide latitude and discretion to adjust the multiplier to take into account unique circumstances. The AR therefore had the broad discretion to reduce the multiplier. The High Court agreed with the Defendant. The AR's decision to reduce the multiplier to 13 years and his award for LFE were upheld by Belinda Ang J who dismissed the appeal with costs to our clients.
Back to Top Print
Click here to read the article Back to Top Print
Click here to read the article Back to Top Print
Click here to read the article Back to Top Print
Click here to read the article Back to Top Print
Click here to read the article Back to Top Print
Click here to read the article Back to Top Print
|
|
