Choong Cher Siong Ronnie v Florensia Leovanny Liong and others

• Jurisdiction: Singapore
• Judge: Ng Tee Tze Allen
• Judgment Date: 13 December 2022
• Neutral Citation: [2022] SGDC 286
• Citation: [2022] SGDC 286
• Court: District Court (Singapore)
• Published date: 21 December 2022
• Docket Number: District Court Suit No 74 of 2021, District Court Appeal No. 41 of 2022
• Plaintiff Counsel: Lei Chee Kong Thomas (Lawrence Chua Practice LLC)
• Defendant Counsel: Cai Enhuai Amos (Yuen Law LLC),The second defendant absent and unrepresented,The third defendant absent and unrepresented
• Subject Matter: Contract,Formation,Parties
• Hearing Date: 23 July 2022,05 July 2022,23 September 2022

District Judge Ng Tee Tze Allen:

This action arose out of Mr Choon Cher Siong Ronnie’s (the “plaintiff”) attempt to leave a joint venture.

The fact of the joint venture is undisputed. The plaintiff entered it with Ms. Florensia Leovanny Liong (the “1st defendant”), Mr Tan Tor Teng Jerome (the “2nd defendant”), and Mr Patrick Chong Tah Lick (the “3rd defendant”). The joint venture was for the purchase (and subsequent sale) of a property at B30-2 Tower B, South Bay Plaza, Penang, Malaysia (the “Property”). In furtherance to the joint venture, the plaintiff and the 1st defendant took a loan from HSBC Bank Malaysia Berhad (“HSBC”) to finance the purchase of the Property (the “HSBC Loan”).

In 2016, disagreements emerged between the plaintiff and the 2nd defendant. The plaintiff claimed that this eventually led to all four parties agreeing on 4 December 2017 for him to exit the joint venture (the “alleged Exit Agreement”) and for, amongst other things, the three defendants to continue servicing the mortgage of the Property and to reimburse him for his initial outlay for the Property.

The plaintiff also claimed that the defendants breached the alleged Exit Agreement by failing to service the HSBC Loan. This led to HSBC auctioning the Property, applying the sales proceeds to the HSBC Loan, and suing the plaintiff and the 1st defendant for the balance.

The plaintiff sued for an indemnity and/or damages to be assessed.

I heard the trial on 23 June 2022 and 5 July 2022. Only the plaintiff and the 1st defendant attended. They exchanged written closing submissions on 26 August 2022 and made oral reply submissions on 23 September 2022. After considering the evidence and their submissions, I dismissed the plaintiff’s claim against the 1st defendant. I also fixed costs at S$15,000 plus GST and reasonable disbursements to be paid by the plaintiff to the 1st defendant.

As for the 2nd and 3rd defendants, The plaintiff sought no order against the 2nd defendant. He submitted that a bankruptcy order had been made against the 2nd defendant and as such the proceedings against him were stayed.¹ No order was made against the 2nd defendant. The plaintiff sought final judgment against the 3rd defendant in his absence. In this respect, the plaintiff’s counsel submitted that he had already obtained judgment against the 3rd defendant for the reimbursement of his initial outlay for the Property, and as such, he was only seeking judgment for the outstanding sum under the HSBC Loan.² I acceded to the plaintiff’s request. Pursuant to ROC 2014, O 35, r 1(2), I gave final judgment to the plaintiff for the sum of RM637,227.15 with interest fixed at 5.33% to run from the date of writ to judgment. Costs was fixed at S$8,000 (all in) plus GST to be paid by the 3rd defendant to the plaintiff.

The plaintiff has appealed against my decision to dismiss his claim against the 1st defendant. As such, I set out the full grounds of my decision.

Facts The joint venture

Unless otherwise stated, the following facts are undisputed as between the plaintiff and the 1st defendant.

The parties entered the joint venture on or around 1 September 2012. This was by way of two agreements: The first was a written agreement (the “written JV Agreement”). The parties to the written JV agreement were the plaintiff, the 1st defendant, and 2nd defendant. They agreed to invest in the Property pursuant to the written JV Agreement.³ The second agreement was an oral agreement (the “oral JV Agreement”). The parties to the oral JV Agreement were the plaintiff and all three defendants. The net effect of the oral JV Agreement was that the 3rd defendant joined the joint venture and undertook the obligations under the written JV Agreement.⁴

Broadly speaking, the net effect of the written JV Agreement and the oral JV Agreement (collectively, the “JV Agreement”) was that all four parties joined the joint venture to invest in the Property. The terms of the joint venture were largely found in the written JV Agreement save for the parties’ respective share in the joint venture. Under the oral JV Agreement, it was agreed that the 2nd defendant had a 50% share in the investment and the other parties had a 16.667% share in the investment.⁵ I will refer to the terms of the JV Agreement later in my judgment, if necessary.

On 1 March 2013, the plaintiff and the 1st defendant took the HSBC Loan for the purchase of the Property.⁶ The parties serviced the HSBC Loan by making payments into a HSBC Account No XXX (the “HSBC Account”). HSBC would deduct the mortgage payments from the HSBC Account.⁷

The plaintiff’s attempt to leave the joint venture

In 2016, a dispute arose between the plaintiff and the 2nd defendant.⁸ I do not need to go into the details of this dispute. Suffice to state, the plaintiff sought to leave the joint venture because of this dispute. To that end, the following correspondence, amongst others, was exchanged: On or around 3 October 2016, the plaintiff sent a letter to the 1st defendant titled “HANDING OVER OF ITEMS AND DOCUMENTS FOR SOUTHBAY PLAZA B-30-2, TOWER B”. The letter listed various items which the plaintiff wanted to handover to the 1st defendant. The letter also purported to set out the following “T&Cs in relation to the three [defendants] taking over [of the plaintiff’s] shares of the property”:⁹

This letter also serves to inform you that we had agreed on 27 Oct on the following T&Cs in relation to the three of you taking over my shares of the property: 1. All legal and finance costs related to this will be shared equally by all 4 investors 2. I shall be refunded for whatever money I had paid up for this investment till 3 Oct 2016. 3. The amount to refund me is $17,145.1. Please see the worksheet attached. 4. This is not a property sales. It is just a withdrawal of my investment. 5. I will not be responsible for any more finance matter from 27 Oct 2016.

On 29 October 2016, the plaintiff followed up with an email to the 1st defendant on the handover. He copied the 2nd defendant. The email stated:¹⁰

Vanny

My wife will contact you next week to collect the whole bag from Mah Seng we took during the Penang trip.

All the keys, access cards, remote controls and documents are inside as original.

I do not [sic] need to keep anything since I am no more a partner.

I will let you know soon the fund to return to me being my share paid up so far.

My lawyer can only take action to contact HSBC and his Malaysia associate in my exit from this investment after we have received your letter confirming what we agreed in the sms on 27 Oct.

So please expedite this once you collect the bag next week.

Thanks

Choong.

On or around 11 November 2016, the 1st defendant acknowledged receipt of the 3 October 2016 letter and the items listed therein. She also wrote “KIV” next to the terms reproduced at [13(a)] above and wrote the following note at the end of the 3 October 2016 letter:¹¹

Note: Can send me the working sheet for the payment so I can check through the payment done by our side & [the 2nd defendant]?

The plaintiff testified that he stopped paying into the HSBC Account around this point.¹² The 1st defendant did not contest this.

That said, the plaintiff’s case was not that the parties agreed for him to leave the joint venture in 2016 or that the above correspondence evidenced such an agreement. Instead, his case was that the above correspondence showed that the 1st defendant knew that he intended to leave the joint venture.¹³ Accordingly, the correspondence was “the lead-up to the agreement expressed in [the 2nd defendant’s] email of 4.12.2017 to [the plaintiff], copied to [the 1st and 3rd defendants].”¹⁴

This brings us to the emails which the plaintiff premised the alleged Exit Agreement on. My analysis together with the full text of these emails are set out at [52] below. For now, it suffices to summarise these emails: On 27 November 2017, the plaintiff sent an email to the 1st defendant, copying the other two defendants. In that email, the plaintiff referred to an SMS from the 1st defendant on the topping up of the HSBC Account. He refused to do so. In support, the plaintiff referred to “the series of events that had taken place over the past years”, his agreement with the 2nd defendant, and asserted that he was “already out of this partnership from that point”.¹⁵ On 4 December 2017, the 2nd defendant replied, copying the 1st and 3rd defendants. He confirmed the contents of the plaintiff’s 27 November 2017 email and stated that the plaintiff “will not be liable for any losses or have any share if there is a profit from the sale of this property. However, [the plaintiff] will receive whatever money [he had] invested in this property when the property is sold.”¹⁶ The next day, on 5 December 2017, the plaintiff responded to thank the 2nd defendant and to “agree to [the 2nd defendant’s] confirmation on the latest state of the partnership.”¹⁷

The 1st defendant did not dispute receiving the above emails. However, she claimed that she did not see the 4 December 2017 email at the material time. She also denied agreeing to the plaintiff’s withdrawal from the joint venture and asserted that she was not privy to any agreement between the plaintiff and the 2nd defendant.¹⁸

State of the joint venture after the plaintiff’s attempt to leave

The plaintiff remained a borrower under the HSBC Loan despite the alleged Exit Agreement.¹⁹ For this reason, he received late payment notices from HSBC which he would forward to the defendants.²⁰ He was omitted from a number of correspondence exchanged by the three defendants relating to the joint venture.²¹

The 1st defendant remained a party to the joint venture and continued to receive emails on the same. One instance of this is Mr Jeremiah Kwan’s email of 26 July 2019. Mr Kwan had sent this email on the 2nd defendant’s behalf. In...