Chua Chian Ya v Music & Movements (S) Pte Ltd (formerly known as M & M Music Publishing)

• Jurisdiction: Singapore
• Judge: Lai Siu Chiu J
• Judgment Date: 31 March 2009
• Neutral Citation: [2009] SGHC 75
• Published date: 01 April 2009
• Court: High Court (Singapore)
• Plaintiff Counsel: Jonathan Yuen with Shahiran Ibrahim and Samuel Seow (Samuel Seow Law Corporation)
• Defendant Counsel: K Nadarajan (Aequitas Law LLP)

31 March 2009

Lai Siu Chiu J:

1 In this Originating Summons (“the OS”) Chua Chian Ya (“the plaintiff”) applied to court for a declaration against Music & Movements (S) Pte Ltd (“the defendant” or “the company”) that the defendant no longer owned songs she had composed and which were the subject matter of two agreements signed between the parties.

2 I dismissed the plaintiff’s application and she has filed a notice of appeal (in Civil Appeal No.167 of 2008) against my decision.

The affidavits

3 The relevant facts are extracted from the parties’ affidavits. The plaintiff is a singer songwriter who is more popularly known as Tanya Chua in the entertainment world. She had signed an agreement dated 18 September 2002 with the defendant (“the first agreement”) wherein she agreed to write/compose songs (“Compositions”) exclusively for the defendant which business is in music publishing (and described as “the publisher” in the first agreement). The first agreement covered the entire world (defined in Schedule A as “the Licensed Territory”). It was for an initial period of three years in consideration of an advance royalty payment of $20,000 to the plaintiff from the defendant. The defendant agreed to collect royalties on the Compositions and pay the same to the plaintiff in accordance with the formula stipulated in cl 6.1(a) and set out in [4] below. There was a clause to renew the term for a further period of two years by mutual agreement.

4 The more salient clauses of the first agreement are the following:

3 The Writer hereby irrevocably and absolutely assigns, conveys and grants to the Publisher, its successors and assigns all rights and interests of every kind, nature and description in and to the Composition created by the Writer during the term of this Agreement..…

6.1 The Publisher shall pay to the Writer the fees and royalties specified in Schedule A attached hereto with respect to the Compositions.

(a) The fees and royalties provided for herein shall be computed on one hundred percent (100%) of earnings of the Compositions actually received and credited into the Publisher’s account, less after allowing for the following deductions:-

(i) standard commission actually retained by the performing and/or mechanical societies in the Licensed Territory;

(ii) VAT and other taxes required to be deducted in any part of the Licensed Territory;

(iii) administrative fees retained by foreign affiliates, sub-publishers, co-publishers, licensees or agents of the Publisher; and

(iv) any amounts paid by way of remuneration to arrangers, adaptors, translators and writers of new or revised lyrics referred to in clause 3(e).

6.2 Payment of all fees and royalties payable to the Publisher hereunder shall be made within sixty (60) days from June 30^th and December 31^st of each year for any and all income accrued from the Composition during the preceding six (6) months accompanied by the statement set forth in Paragraph 7 hereof. Such statements shall be deemed received unless otherwise notified in writing within 120 days from the end of each accounting period i.e.31^st October and 30 April.

6.3 The Writer shall collaborate with the Publisher in giving all necessary instructions to the performing right societies, mechanical rights societies or other collection agencies, as the case maybe, concerning the agreed divisions of fees and royalties hereunder and the payment thereof.

6.4 All sums payable to the Writer shall be subject to government permission to make remittance whenever such permission is required. All payments shall be subjected to deduction or withholding of income taxes or other taxes required to be deducted to withheld under the laws of any part of the Licensed Territory.

12 In the event that the Publisher fails to account and make payment hereunder or fails to perform any obligations required hereunder and in the event that such failure is not cured within thirty (30) days after written notice has been served on the Publisher, or in the event that the Publisher becomes inactive, ceases doing music publishing business or shall go into compulsory liquidation or bankruptcy, then and in any such events the Writer, in addition to such other rights or remedies which it may have at law or otherwise under this agreement, may elect to cancel or terminate this agreement without prejudice to any rights or claim it may have, and then all right in and to the Composition hereunder shall revert to the Writer and the Publisher may not thereafter exercise any rights hereunder.

5 Under Schedule B of the first agreement, the plaintiff assigned all her rights in the Compositions to the defendant.

6 Prior to the first agreement, the plaintiff’s songs were published by a company called Ping Pong Music Publishing Singapore (“Ping Pong”) under an agreement she had signed with Ping Pong dated 18 August 1999 (“the Ping Pong agreement”). The chief executive of Ping Pong was Lim Sek (“Lim”) who was also the chief executive of the defendant. The defendant is the parent company of Ping Pong.

7 By another agreement dated 25 May 2005 (“the second agreement”) signed by the parties, the first agreement was extended to at least 17 March 2007. As consideration, the plaintiff received an advance of $40,000 from the defendant for royalties. The salient clauses of the second agreement state:

1 The Writer agrees to extend the Term of the Said Agreement at least to 17^th March 2007 (hereinafter called the Extending Term”).

5 Immediately after the 17 March 2007, the Writer may, if she deems fit, have the option to continue with the Extended Term and agree to a new extended date, or agree to do so upon such other terms and conditions and/or amended terms and/or conditions as she may agree with the Publisher. If and unless a new agreement is executed in writing between the Writer and the Publisher, the Writer’s obligations as set out above and in prior agreements, in particular in the agreement dated 18 September 2002 and with M&M Music Publishing, shall cease immediately upon the termination of the Extended Term, in particular the obligations as set out in paragraphs 2, 3 and 4 of the agreement dated 18 September 2002. The Writer shall no longer be bound under any agreement, term and/or condition, with the Publisher, thereafter.

6 The obligations of the Publisher namely to promote, publish and to commercially exploit (“to exploit”) all Compositions (which shall mean to refer to the entire catalogue, list and set of songs as at 17 March 2007) so as to generate royalties, revenue and income therefrom and to pay the same to the Writer, shall survive 17 March 2007, and the Publisher shall undertake and shall continue to undertake to the Writer to expend all reasonable work and efforts to this end, and shall not neglect and/or fail to exploit any part, portion, or particular Composition.

7 Paragraph 12 shall survive 17 March 2007.

8 Except as hereby amended and extended, and provided for above, all of the terms and conditions of said Agreement referred to above shall remain and continue in full force and effect, in particular shall survive 17 March 2007.

8 The plaintiff asserted that when the Ping Pong agreement ended, the rights to the Compositions that she had assigned to Ping Pong reverted back to her. Similarly, as she opted not to extend the second agreement beyond 17 March 2007, all her rights and interests in the Compositions assigned to the defendant under the first and second agreements reverted to her absolutely.

9 The plaintiff complained that the defendant continued to exploit her rights and interests in the Compositions after 17 March 2007. Her solicitors had written to the defendant on 11 June 2007 to state the legal position to no avail. However, as a gesture of goodwill, she had allowed the defendant a final extension until 30 June 2007 in which to exploit her rights and interests in the Compositions.

10 The plaintiff also criticised the “cavalier fashion” in which the defendant declared that there were errors in its accounts on payments it had made to her over the years not to mention that it failed to meet the deadline for payment set out in cl 6.2 under the first agreement (see [4] above).

11 The plaintiff contended that the defendant had breached cl 12 of the first agreement in that the company had failed to properly account to her for the royalties it collected. Further, when she requested for accounts, the defendant was duty-bound but failed, to deliver the same to her in about 30 days from the date of her notice. Consequently, her solicitors by their letter dated 7 May 2008 to the defendant gave notice (under cl 15 of the first agreement) that the company owed a fiduciary duty to the plaintiff and was accountable to her for monies due to her under both agreements. The solicitors demanded that the defendant provide detailed and proper accounts for the period January 2005 to 31 December 2007, pointing out that the defendant’s email summary of accounts dated 18 March 2008 to them was inadequate.

12 The plaintiff’s solicitors’ letter referred to cll 10.1, 10.5 and 15 of the first agreement. Those provisions read:

10.1 A statement of all accounts shall be provided and delivered to the Writer by the Publisher whether or not any royalties or fees are then due to the Writer, and all monies due thereunder pursuant to Paragraph 6 hereof shall be paid by the Publisher to the Writer, by bank order or in cheque, in Singapore Dollars.

10.5 In the event of a dispute between the Writer and Publisher pursuant to this clause, the Writer shall have three months from the end of the 1 year mentioned in the preceding paragraph to file suit to remedy such a dispute. If the Writer fails to file suit within the said 3 months period, the Writer shall be forever barred from using in connection with claims pertaining to accounting periods for which Writer’s rights have expired.

15 All notice, accounting or payment which...