Barang Barang Pte Ltd v Boey Ng San and Others

• Jurisdiction: Singapore
• Judge: Choo Han Teck JC
• Judgment Date: 06 May 2002
• Neutral Citation: [2002] SGHC 101
• Docket Number: Suit No 161 of 2002 (Summons in
• Date: 06 May 2002
• Year: 2002
• Published date: 19 September 2003
• Plaintiff Counsel: Desmond Ong and Sean Say (J Koh & Co)
• Citation: [2002] SGHC 101
• Defendant Counsel: Roslina Baba and Ng Li-Yen (Ramdas & Wong)
• Court: High Court (Singapore)
• Subject Matter: Construction of clauses in sale and purchase agreement,Summary judgment,Suitability for determination under O 14 r 12 Rules of Court,Requirements for applicant to satisfy,Civil Procedure,Determination of question of law or construction of document,O 14 r 12 Rules of Court

Judgment

GROUNDS OF DECISION

1. This is an application by the plaintiff under O 14 r 12 of the Rules of Court for the construction of a term in a sale and purchase agreement between the plaintiff and the first and second defendants. The plaintiff is a company carrying on the business of selling furniture. The first and second defendants were the founders of the plaintiff company in 1994. The third defendant is a company presently owned by the first and second defendants and which the plaintiff alleges is now carrying on the business of selling furniture. The plaintiff's claim in this action is based on a non-competition clause in a service agreement (the "Service Agreement") signed by the first and second defendants on 10 September 1999. That non-competition term is found in cl 4 of the schedule reads as follows:

"[The first and second defendants] will not within the South East Asia region and for the period of twelve (12) months after ceasing to be employed under [the Service Agreement] either alone or with (sic) or as manager, agent, consultant or employee of any person, firm or company, directly or indirectly carry on or be engaged in the business of (a) retailing home furnishing and lifestyle products and accessories and (b) engaging in any other retail business of a similar nature [as that of the plaintiff]."

The first and second defendants left the employment of the plaintiff on 19 July 2001. Thus the non-competition clause, if applicable, will be exhausted by effluxion of time by 19 July 2002.

2. The plaintiff, however, alleges in this action that in breach of the non-competition clause, the first and second defendants are carrying on the business of furniture retailing through the third defendant. It is therefore seeking damages for breach as well as an injunction to stop them from carrying on the third defendant's business until 19 July 2002. Miss Baba, counsel for all three defendants opposed this application on the basis that issue is not suitable for a determination under O 14 r 12. She submitted that there is too much intertwining of facts with law that prevents a straightforward disposition of the action.

3. Miss Baba's first objection is based on cll 11 and 12 of the Sale and Purchase Agreement dated 24 July 2001. This agreement was signed by KLW Ltd as purchaser and the first and second defendants as vendors of their shares in the plaintiff company. Counsel submitted that cll 11 and 12 "constitute mutual release releases granted by the plaintiff and the first and second defendants as against each other in respect of the issues of shareholding, the first and second defendants' employment and directorship in the plaintiff." The issue under this summons-in-chambers taken out by the plaintiff calls for a determination as to whether cll 11 and 12 of the Sale and Purchase Agreement supersedes the Service Agreement. Clauses 11 and 12 provide as follows:

"11. KLW and [plaintiff] confirm that save for the obligations set out in this Agreement, neither of them has any claim against [the first and second defendants] arising out of or in connection with the shares held by [the first and second defendants], each of their directorships in and employment with [the plaintiff].

12. [The first and second...