Cosmic Insurance Corp Ltd v Khoo Chiang Poh

JurisdictionUK Non-devolved
CourtPrivy Council
JudgeLord Edmund-Davies
Judgment Date15 October 1980
Neutral Citation[1980] SGPC 5
Citation[1980] SGPC 5
Published date19 September 2003
Date15 October 1980
Docket NumberPrivy Council Appeal No 13 of
Defendant CounselRespondent ex parte
Plaintiff CounselChristopher Clarke (Linklaters & Paines)

This appeal is brought from a judgment of the Court of Appeal in Singapore (Chua, Choor Singh and Rajah JJ) dated 20 July 1977, leave to appeal having been granted by that court on 13 October 1977. By their judgment the Court of Appeal allowed an appeal by the respondent from a judgment of the High Court of Singapore, Kulasekaram J dated 25 February 1976 in favour of the appellants. The respondent as plaintiff had brought an action against the appellants as defendants in the High Court for damages for breach of an alleged contract of service as managing director of the appellants, claimed to have been in writing and dated 15 August 1971. That alleged contract was said to have been contained in a letter which the appellants admitted had been sent to H. T. Sam & Co, a firm of advocates and solicitors in Singapore dated 15 August 1971 and signed by the twelve promoters of the appellants, of whom the respondent was one. The respondent claimed that by that letter the appellants agreed in writing to appoint him as their managing director for life. The appellants by their defence pleaded, inter alia, that if, which they did not accept, that letter amounted to such an agreement, it was not binding upon them since those promoters were not and could not have been the appellants` agents to make such an agreement on the appellants` behalf, the appellants not having been incorporated in Singapore until 16 September 1971. Though the point was not expressly pleaded by the respondent in his reply, he sought to answer that defence by reliance upon s 35(1) of the Companies Act 1967, as amended, of Singapore.

This being the principal issue between the parties it was agreed between counsel when the trial began before the learned trial judge, that he should be asked to determine two preliminary questions is a matter of law.
The first was whether the letter of 15 August 1971, to which their Lordships have already referred, `constituted a pre-incorporation contract between the plaintiff on the one hand and the remaining 11 persons on the other hand, as agents for the defendants, - the defendants having been subsequently incorporated on 16 September 1971`. The second was whether, if that letter constituted such a contract, `the said contract was ratified by the defendants by resolutions of the defendants` directors passed on 26 September 1971`.

That last-mentioned resolution was the second of twenty-three resolutions passed at the first board meeting of the directors of the appellants held in Singapore on 26 September 1971, ten days after the date of the appellants` incorporation.
The resolution read thus:

Resolved that Mr Khoo Chiang Poh be appointed managing director and holds office for life in accordance to the Articles and Memorandum of Association and is responsible to the board of directors.



Their Lordships would observe at this juncture that at no time did the respondent aver in his pleadings or in the courts below that the terms of his contract of employment as managing director of the appellants, which must undoubtedly have existed since he served the appellants as managing director until he was subsequently removed by them by resolution dated 30 November 1973, were contained in the resolution of 26 September 1971.
Nor was there any reference to that resolution in the text of the first of the two preliminary issues as being the foundation of any contract of employment of the respondent by the appellants.

The learned trial judge decided both those preliminary issues in favour of the appellants.
As he recognised, in view of his decision upon the first, strictly the second did not arise. But helpfully he determined both issues. The respondent appealed to the Court of Appeal who answered both questions in the affirmative, thus reversing the decision of the learned trial judge, the restoration of whose judgment the appellants now seek. Though the respondent was represented both before the learned trial judge and in the Court of Appeal he was not represented nor did he appear in person before their Lordships` board. Learned counsel for the appellants read their Lordships a letter that made it clear that the respondent was well aware of his rights but had...

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