Chia Ee Lin Evelyn v Teh Guek Ngor Engelin nee Tan and Others

• Jurisdiction: Singapore
• Judge: Lai Kew Chai J
• Judgment Date: 02 September 2004
• Neutral Citation: [2004] SGHC 193
• Docket Number: Suit No 1250 of 2002
• Date: 02 September 2004
• Year: 2004
• Published date: 06 September 2004
• Plaintiff Counsel: K Shanmugam SC, Christopher Anand Daniel and Edmund Eng (Allen and Gledhill)
• Citation: [2004] SGHC 193
• Defendant Counsel: Davinder Singh SC, Harpreet Singh and Nicholas Tang (Drew and Napier LLC),Fourth defendant in person
• Court: High Court (Singapore)
• Subject Matter: Breach,Formation,Applicable test of intention,Contract,Whether defendants in repudiatory breach of consultancy agreement,Whether parties had intention to enter into binding oral contracts,Whether parties had intention to create compromise agreement,Defendants alleging oral agreements varying written agreement

2 September 2004 Judgment reserved.

Lai Kew Chai J:

1 The plaintiff is and was at all material times an advocate and solicitor of the Supreme Court of Singapore. The first defendant (“Ms Teh”) was at all material times the managing partner of M/s Engelin Teh & Partners (“ETP”), a Singapore law firm. She alone dealt with the plaintiff directly in respect of the plaintiff’s consultancies with the earlier partnerships and eventually with ETP. The defendants are all advocates and solicitors of the Supreme Court of Singapore and were partners of ETP at the relevant times.

2 The plaintiff’s claim is for an account of all sums due to her under the relevant written consultancy agreement and payment to her of all sums found due. Alternatively, the plaintiff claims damages arising out of the defendants’ repudiatory breach of the last consultancy agreement dated 13 April 2000 (“the April 2000 agreement”).

3 The second to the fourth defendants were initially not sued by the plaintiff but they were joined as defendants on the application of Ms Teh. As it turned out, the fourth defendant (“Ms Koh”), in giving evidence, supported the plaintiff’s case in some material aspects.

4 Ms Teh, the second defendant (“Mr Kau”) and the third defendant (“Ms Chen”) asserted the following counterclaims against the plaintiff. First, they asserted that the plaintiff was obliged to refund to ETP the additional 15% profit share which the plaintiff received pursuant to the April 2000 agreement. Secondly, they counterclaimed that they were entitled to a refund of all the overpayments made by mistake to the plaintiff. In monetary terms, they counterclaimed against the plaintiff the sum of $112,142.56 in respect of the refund and the further sum of $22,308.07 on account of the alleged overpayments made to the plaintiff by mistake. Alternatively, they claimed damages for breach of the oral agreements.

The facts

5 I now set out the facts based on the evidence, both oral and documentary, the intrinsic probabilities underlying each issue of fact and my assessment of the oral evidence, the credibility and reliability of the parties and their witnesses. As will be readily appreciated, this action would have been far less complicated and would have centred in the main on the true and natural construction of a written agreement, but for the five oral agreements alleged by Ms Teh as having been verbally agreed to by the plaintiff. According to Ms Teh, the first four oral agreements were agreed to between her and the plaintiff. In respect of the agreement to compromise, which depended on the oral evidence of Ms Teh, the plaintiff and Ms Dorothy Chia (“Ms Chia”), Ms Teh relied on the evidence of Ms Chia who was the intermediary. Unavoidably, I have to visit the evidence in some detail.

6 The plaintiff was called to the Singapore Bar in 1987. She practised with a classmate. In 1992 she became a legal assistant in the law firm of M/s Ang, Ng and Lee. A subsidiary of a leading bank, which was very active in the development of land and condominiums (hereinafter referred to as “the land developer”), was its largest client. The plaintiff obtained the retainer for her employers by asking the chief executive officer (“the CEO”) of the land developer to give her an opportunity to act as a solicitor of a particular property development. At that time, both the plaintiff and the CEO were divorcees. They had a personal relationship. It should at once be stated that such relationship during later and material times no longer existed.

7 As events confirmed, the plaintiff satisfactorily discharged her duties as the solicitor for the land developer. There were no complaints from the client. She acted in its Ashley Green development, Bukit Sedap Road, Singapore. Legal completion of that development project, a condominium comprising 14 strata units, was brought to a satisfactory conclusion. According to the evidence of the plaintiff, which I accept, the general manager and other members of the management of the land developer were happy with her work and with her turn-around time. She also said that from the positive responses from the management of the land developer, she reckoned that it would engage her for further development or property work in the future. I accept her evidence that she proved herself as a good conveyancer to the management of the land developer, in view of the legal intricacies and timelines connected with the legal process and legal completion of condominium projects. Title clearances, title subdivisions of a condominium and co-ordinated time-frames of option documents, sale and purchase agreements and financing arrangements had to be skillfully organised. Coupled with her considerable experience in handling conveyancing for wealthy clients at Ang, Ng and Lee, I am satisfied that the plaintiff at the material times was a very good conveyancer. I also accept that her assessment of her chances of further retainers from the land developer based on her track record was amply and reasonably well-founded.

8 In 1994, her employer, Ang, Ng and Lee was dissolved following the retirement of its sole proprietor. The plaintiff was in the market for employment. Ms Teh, who was then a partner in the firm of M/s Colin Ng & Partners (“CNP”), was informed by her friend, Ms Chia, an advocate and solicitor, that the plaintiff was looking for a medium sized law firm in which to practise. Ms Chia is the first cousin of the plaintiff. Ms Chia informed Ms Teh that the plaintiff could obtain the retainer of the land developer to CNP, provided CNP paid her a profit share for bringing in such work.

9 Ms Teh maintained in evidence that the plaintiff had told her that she was getting work from the land developer through the CEO and that the latter wanted her to move to a larger firm because it was difficult for him to direct major conveyancing projects to the plaintiff as the law firm in which she was practising was too small. This reason for wanting to move to a larger firm, as alleged by Ms Teh, does not sit well with the undisputed fact that the plaintiff was looking for practice with another firm because her employer was ceasing practice.

10 Ms Teh further mentioned that during their first meeting, she had asked the plaintiff how CNP could be assured that the work from the land developer and its associated companies would be assigned to CNP if the plaintiff were to join CNP. According to Ms Teh, it was then that the plaintiff in response told her of her (the plaintiff’s) personal relationship with the CEO. The plaintiff, she claimed, further assured her that the CEO had promised to retain the plaintiff in major conveyancing projects if she joined a larger law firm. Ms Teh added that the plaintiff also indicated that she could “persuade” the CEO to direct the litigation and corporate work of the land developer and its associated companies to CNP, provided CNP paid her a profit share for bringing in such work. Whilst the plaintiff would naturally have promoted herself at a job interview, by mentioning the strength of her goodwill in connection with work done for clients including the land developer, I accept the plaintiff’s point that it was a commercial negotiation, and her further assertion that she did not discuss her personal social life with Ms Teh. It was unlikely, in my view, that in the circumstances Ms Teh would have sought any assurance from the plaintiff about the work coming in. It was also highly unlikely that the plaintiff had mentioned her relationship with the CEO to advance her prospects. In my view of her, she was simply not that kind of person, even if she had to fend for herself. Further, I would assume that Ms Teh herself no doubt would welcome work based on professional merits, and certainly not on any unmeritorious consideration.

11 The plaintiff joined CNP in 1994 as a junior partner. In 1995 she was appointed as a consultant on the basis that she had a pre-determined share of the fees likely to be earned from her introduction of clients. In the event, she brought in quite a lot of work and fees to CNP and her “rain-making” abilities were well regarded. In mid-1994, Mr Colin Ng and Ms Teh had an acrimonious partnership dispute. That the partnership’s name had been changed to Colin Ng & Engelin only months earlier did not avoid the acrimony between the two of them. Ms Teh left the firm which was reconstituted as CNP. After that most unfortunate encounter, Ms Teh went on to form her new firm, then known as M/s Engelin Teh & Young (“the first partnership”).

12 The plaintiff stayed on in CNP until 1996 when she left to join the first partnership. The plaintiff had received retainers for new conveyancing projects and she found in the first partnership a quick and suitable “base” to continue her practice. The plaintiff joined the first partnership in September 1996 as a consultant. It is material to note that by that time, her relationship with the CEO had ended.

13 The terms of the plaintiff’s appointment as a consultant were set out on the letterhead of the first partnership dated 9 September 1996. She had a profit-sharing arrangement with the first partnership. She was neither an employee nor a partner. The material terms of the 9 September 1996 agreement are as follows:

(a) The plaintiff was engaged as a consultant of the first partnership on a profit-sharing basis and was not deemed to be an employee (cl 1).

(b) The term of the agreement was three years from the commencement date, with an extension to be agreed upon (cl 3).

(c) The basic fee payable to the plaintiff would be $7,000, payable at the end of each month (cl 4).

(d) In relation to the profit-sharing arrangement, the terms were:

(i) In addition to the fee, the plaintiff would receive in respect of all files directly brought in by the plaintiff, 30% of the legal fees billed and collected (for each year) for each file brought in directly and handled by the plaintiff, and...