Tort Law
| Citation | (2007) 8 SAL Ann Rev 410 |
| Published date | 01 December 2007 |
| Date | 01 December 2007 |
22.1 In SeaCAD Technologies Pte Ltd v Tan Siew Meng Aaron[2007] SGHC 192 the plaintiff alleged that the first defendant, its former employee, had breached the non-competition clause in his contract of employment with the plaintiff when he resigned and joined the second defendant company which was one of the plaintiff”s business competitors. With regard to its tortious claim, the plaintiff alleged that the first defendant had misappropriated confidential information, including business models and financial proposals, from the plaintiff”s computerised database.
22.2 In support of this allegation, the plaintiff”s evidence centred upon the forensic examination performed on a hard disk (inferentially from the workstation used by the first defendant before his resignation). The forensic examination report made a finding that ten files and folders had been deleted from the hard disk. The plaintiff further asserted that shortly after the first defendant”s resignation, it became apparent that the plaintiff”s confidential pricing, positioning, customer lists and prospect lists were in the hands of the second defendant. The plaintiff believed this to be so due to a number of reasons, including the sudden appearance of the second defendant and its resellers in the plaintiff”s existing customer accounts, last-minute deep price undercutting, as well as an aggressive and sudden shift in the second defendant”s marketplace approach and overall positioning.
22.3 Kan Ting Chiu J held, on the facts presented, that the evidence was insufficient to establish the plaintiff”s case. In the present case, the forensic examination had not demonstrated conclusively that there had been any downloading or copying of the hard disk information, but merely that the files had been deleted. As such, the plaintiff had not proven that the first defendant had indeed downloaded or otherwise made copies of the plaintiff”s alleged confidential information.
22.4 The first defendant was, however, held liable for breach of the non-competition clause in his contract of employment with the plaintiff.
22.5 The plaintiff”s claim for conversion in Viking Airtech Pte Ltd v Foo Teow Keng[2008] 1 SLR 225 came about as a result of a souring of its relationship with the first defendant. The first defendant had been the plaintiff”s general manager for about five years. Some three months prior to the first defendant”s resignation, it transpired that he had purportedly signed some contracts with two Indonesian shipyards in his capacity as general manager of another company, the second defendant, dealing in the same business as the plaintiff. The second defendant was incorporated by two of the first defendant”s friends. The two Indonesian shipyards were customers with whom the first defendant dealt in the course of his employment with the plaintiff. The first defendant subsequently tendered his resignation and left the plaintiff immediately. He then took over the second defendant”s business, appointing himself and his wife as the sole directors and shareholders. Several days after the first defendant”s resignation, the plaintiff”s representative flew to Shanghai to check on their office there, which had been set up by the first defendant. The plaintiff was denied access to the premises and was unable to contact the Shanghai office manager, who was in fact the first defendant”s brother-in-law. Subsequently, the plaintiff”s signboard at its Shanghai office was taken down and replaced by the second defendant”s signboard, such that the plaintiff”s Shanghai office became, practically overnight, the second defendant”s office. The plaintiff had to open for itself a new office in Shanghai and it was unable to retrieve any of its equipment and belongings from its original Shanghai office
22.6 The plaintiff therefore claimed, inter alia, damages for conversion of its assets in Shanghai. On the facts, Judith Prakash J held that both the first and second defendants were liable to the plaintiff for damages for conversion in respect of the plaintiff”s assets in Shanghai. Prakash J took the view that the first defendant and his wife had in fact carefully planned the first defendant”s departure from the plaintiff, and they had also planned how to divert the plaintiff”s business to their own new business. The court also held that the first defendant had simply taken over the plaintiff”s Shanghai office with everything in it on behalf of the second defendant with the assistance of his brother-in-law. Further, the first defendant conceded that he and the second defendant had continued to use whatever was taken over without drawing any distinction between the plaintiff”s items and those bought by the second defendant for its own use.
22.7 In Erect Scaffolding Pte Ltd v Hor Kew Pte Ltd[2007] SGHC 160, Lee Seiu Kin J dealt with the measure of damages for the plaintiff”s claim in respect of the conversion of its scaffolding by the defendant. The situation arose because the plaintiff had been subcontracted to provide scaffolding material for the construction of some HDB flats in the Kallang Whampoa area. After the plaintiff had supplied and erected scaffolding for about a third of the height of the blocks of flats (amounting to about 30% of the entire scaffolding requirement), HDB terminated the contract with the main contractor, who in turn terminated the sub-contract with the plaintiff. HDB subsequently appointed the defendant to complete the remaining construction work. However, the plaintiff and the defendant were unable to agree on the terms under which the defendant could take over the rental of the scaffolding already erected by the plaintiff. The defendant engaged another contractor, Lian Beng, to supply and erect the remainder of the scaffolding. This was erected above (but not connected to) the plaintiff”s scaffolding. Nevertheless, in the course of the construction works, the defendant made use of the plaintiff”s scaffolding for the lower levels of the blocks of flats. Upon completion of the construction works, Lian Beng dismantled its scaffolding as well as those belonging to the plaintiff, returning the pieces belonging to the plaintiff to its store. However the plaintiff claimed that a large number of pieces were not returned.
22.8 At issue before Lee J was the measure of damages for: (a) the period during which the defendant had converted for its own use the scaffolding which the plaintiff had erected on the site; and (b) the pieces of scaffolding that were not returned by the defendant.
22.9 The assessment in respect to (b) was fairly straightforward as the court was satisfied with the plaintiff”s evidence as to the various items which had not been returned. The damages were awarded based on the lower range of rates for the various items of scaffolding as given by the plaintiff”s expert (the defendant not having adduced any evidence of any rates).
22.10 With respect to (a), the court applied the established principle, which was not disputed by the parties, that the measure of damages was for a ‘reasonable sum for hire during the period of detention’. However, the parties disagreed as to the application of this principle. The plaintiff”s approach was to add up the rates for each individual component in arriving at the total sum for its claim. The defendant disputed this method of computation, as it did not take into account the fact that the large number of components involved would, in the ordinary course of commerce, have been rented out on a bulk rate basis.
22.11 The court agreed with the defendant”s contention that it would not be reasonable to use the market rate of each individual component to assess the damages in a bulk situation such as the present case. The better approach was to use the evidence that was available in this case of the rate that the plaintiff could have fetched in a situation where it was renting out a similar quantity of scaffolding in similar circumstances. Having regard to background factors such as the amount which the plaintiff had previously quoted in negotiations with the defendant, as well as the amount which the plaintiff had in fact contracted with Lian Beng for the remainder of the scaffolding, the court settled upon the last figure which the plaintiff had quoted to the defendant as the offer price for the rental of the scaffolding which it had erected. This figure was then reduced by 15% to take into account the fact that the plaintiff had not incurred the costs of dismantling and removal of its scaffolding since this had been done by Lian Beng. The only evidence on the appropriate amount of reduction was given by the defendant”s expert who indicated that the dismantling and removal would come to 15% of the total rental.
22.12 In Nagase Singapore Pte Ltd v Ching Kai Huat[2007] 3 SLR 265, the plaintiff alleged that there was a conspiracy between four parties, namely, two of its employees (‘Clement Yip and Mary Ting’), a warehousing and logistics services support company (‘D Logistics’), and the majority shareholder and director of the warehousing company (‘David Ching’), to overcharge the plaintiff for warehousing services. The plaintiff claimed that Clement Yip and Mary Ting, acting on its behalf, had conspired with David Ching to enter into agreements for the provision of warehousing services by D Logistics at inflated rates. The plaintiff alleged both conspiracy to injure (by lawful means), as well as conspiracy by unlawful means.
22.13 Judith Prakash J noted that evidence of an agreement or combination was always the primary requirement of a charge of conspiracy, whether by lawful or unlawful means. The agreement or combination was often to be inferred from the evidence since the various conspirators might tend not to regulate the arrangements between themselves in a formal manner: OCM Opportunities Fund II, LP v Burhan Uray[2004] SGHC 115.
22.14 Prakash J...
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