Cristian Priwisata Yacob and another v Wibowo Boediono and another and another suit

• Jurisdiction: Singapore
• Judge: George Wei J
• Judgment Date: 26 January 2017
• Neutral Citation: [2017] SGHC 8
• Court: High Court (Singapore)
• Docket Number: Suit Nos 71 and 169 of 2012
• Year: 2017
• Published date: 18 July 2018
• Hearing Date: 02 March 2016,19 March 2015,23 March 2015,24 March 2015,17 November 2015,01 March 2016,26 March 2015,20 November 2015,25 March 2015,29 February 2016,16 March 2015,12 November 2015,18 March 2015,17 March 2015,16 February 2016,18 November 2015,24 February 2016,11 November 2015,27 March 2015,17 February 2016,19 November 2015,18 February 2016,26 February 2016,09 November 2015,16 November 2015,01 June 2016,19 February 2016,20 March 2015,30 March 2015,15 February 2016,25 February 2016
• Plaintiff Counsel: Quek Mong Hua, Benjamin Yam and Jacqueline Chua (Lee & Lee)
• Defendant Counsel: Harish Kumar, Jonathan Toh and Michelle Lee (Rajah & Tann Singapore LLP),Sarjit Singh Gill SC, Tan Su Hui and Jamal Siddique (Shook Lin & Bok LLP),Khwaja Imran Hamid, M K Eusuff Ali, Lucinda Lim and Daniella Ong (Tan Rajah & Cheah)
• Subject Matter: Damages,Mitigation,Tort,Land,Registration of Title,Restitution,Unjust Enrichment,Misrepresentation,Fraud and Deceit,Negligent Misrepresentation,Negligence,Duty of Care,Breach of Duty,Causation,Contributory Negligence
• Citation: [2017] SGHC 8

George Wei J: Introduction

The present proceedings concern two actions commenced in the High Court: Suit No 71 of 2012 (“S 71/2012”) and Suit No 169 of 2012 (“S 169/2012”). For ease of reference, I will refer to them collectively as “the Suits”. The actions were not consolidated but had been ordered on 14 September 2012 to be tried together.

Given the complicated and interlocking narrative behind the claims in the Suits, I start with a brief summary setting out the dramatis personae, the essential claims and the general position taken by the parties.

Background Dramatis personae

Cristian Priwisata Yacob (“Cristian”), 48, is an Indonesian citizen educated in Indonesia up to high school level. Sometime in 1998, he started his own business in Surabaya which involved the raw timber trade. It appears that Cristian’s business was and is primarily within Indonesia. Cristian is married to Nila Susilawaty (“Nila”), with whom he has three children. The children were born in 1991, 1993 and 2006. Nila’s family home is in Surabaya and her family’s business is in the timber industry. Cristian and Nila owned, at the material time, a unit at a condominium in Singapore located at Lorong Chuan (“the Lorong Chuan condominium”). For convenience, I will refer to the unit owned by Christian and Nila as “the Chuan”.

Denny Suriadinata (“Denny”) is Cristian’s friend and business partner. Cristian had timber-related business dealings with Denny. These dealings started some time ago, possibly as early as 2006.¹ Cristian gave evidence that he also entered into joint investments with Denny outside Indonesia. Such investments included joint investments in shares listed in Singapore which were made through Pacific Heights Ltd (“Pacific Heights”), a company registered in the British Virgin Islands. Pacific Heights, which was owned by Cristian and Denny,² held an account at Credit Suisse in Singapore. Whilst the joint investments were primarily concerned with the stock market,³ it appears that Cristian and Denny were not averse to the idea of investment in the property market in Singapore.⁴ The evidence is that Cristian and Denny contributed equally to the funds of Pacific Heights.⁵ There is, however, no documentary evidence on the investment arrangement between Cristian and Denny nor on how Pacific Heights was funded.

Wibowo Boediono (“Wibowo”) was born in Indonesia in 1986. He became a Singapore permanent resident in 2012. Wibowo was educated in Canada and the United States, although his early schooling was in Singapore. Wibowo graduated in May 2007 and returned to Singapore permanently around September 2008. He is fluent in English.

Wibowo is married to Isabelle Koh Teng Teng (“Isabelle”), a Singaporean with a degree in Economics from the National University of Singapore, obtained in 1998. Isabelle had already graduated when the couple first met in 2001.⁶ At that time, Wibowo was 15 years old and Isabelle was 28 years old.⁷ They kept in contact whilst Wibowo was studying overseas. They met up again in 2007 and married in November 2007. Like Cristian and Nila, Wibowo and Isabelle owned a unit at the Lorong Chuan condominium. Whilst Cristian and Nila clearly do understand some English, it is apparent that Wibowo’s command of English is very much stronger. Indeed, the evidence is that Wibowo is more comfortable communicating in English rather than Bahasa Indonesia. It is significant to note that Isabelle’s evidence is that she is unable to converse in Bahasa Indonesia.

I pause to note that Isabelle comes from a well-to-do family. Her father provided considerable financial assistance to the newly married couple in respect of various property purchases. Isabelle’s evidence is that after her marriage in 2007, she essentially became a home-maker; all matters relating to finances and household income were left in Wibowo’s hands. It should be noted that in 2007, Wibowo had only recently graduated and was only just about to start his working life in Singapore. In contrast, it appears that by 2007, Isabelle must have been working for many years. Prior to her marriage and for some time thereafter, Isabelle worked in Singapore as a “guardian” for children from overseas who were studying in Singapore. It appears that this service continued for a while after her marriage as it was only stopped after the birth of her second child in 2010.⁸

Budiono Kweh (“Kweh”), Wibowo’s father, was married to Liem Landy (“Landy”). Kweh and Landy were in the plywood furniture business in Indonesia. They had some business dealings with Cristian in connection with the supply of timber. Cristian’s evidence was that his dealings were more with Landy rather than Kweh and that Landy was active and took a major role in the running of the plywood business. It is also significant to note that Kweh passed away after the Suits were filed. Wibowo’s evidence is that he has become the owner or part-owner of the Indonesian plywood business.⁹ This is so even though Wibowo has not been appointed as a legal representative of his father’s estate either in Singapore or Indonesia.

Toh Wee Jin (“Toh”) and Tan Lay Pheng (“Tan”) are both solicitors in Singapore who were involved in an allegedly fraudulent transfer of the Chuan owned by Cristian and Nila to Kweh. The facts pertaining to their involvement will become clearer later in this judgment.

The pleadings in S 71/2012

There are two distinct claims in S 71/2012. The principal claim is brought by Cristian and Denny against Wibowo and Isabelle for the recovery of monies invested by them in two properties, a unit at Oasis Garden and a unit at Parc Mondrian (“the Investment Claim”). The secondary claim is brought by Cristian for conversion/loss of use of a car that was purportedly bought and paid for by him but registered in Isabelle’s name (“the Car Claim”).

Whilst Wibowo and Isabelle accept that monies were indeed transferred by Cristian into their joint bank account in Singapore, they deny that any sums are owed or that they are in breach of any joint investment agreement. The crux of the defence was that the monies were paid over in part-satisfaction of a debt owed by Cristian to Kweh. According to Wibowo and Isabelle, the proposed investment and acquisition of units in Oasis Garden and Parc Mondrian never materialised although the investment had been discussed. Further, Wibowo and Isabelle deny entering into any joint investment agreement with Denny; Wibowo’s position is that the discussions which he had with Cristian were only in respect of a possible investment agreement with Cristian alone. In any event, Isabelle’s case is that she was not a party to the alleged joint investment agreement. As for the Car Claim, Wibowo and Isabelle deny that the car in question belonged to Cristian. They claim that the monies were provided by Cristian to satisfy the same debt owed by Cristian to Kweh.

The pleadings in S 169/2012

In S 169/2012, Cristian and Nila claim that Kweh, Wibowo and Isabelle engaged solicitors to fraudulently convey the Chuan to Kweh without their knowledge or consent (“the Fraud Claim”). Cristian and Nila claim damages for the loss of the Chuan and their belongings in the Chuan. According to Cristian and Nila, they only discovered the transfer to Kweh when Wibowo and Isabelle filed and served the defence in S 71/2012 on 22 February 2012.¹⁰ The defence stated that the Chuan had been transferred to Kweh in satisfaction of the balance of the alleged debt that Cristian owed to Kweh. According to Cristian and Nila, they knew nothing of the transfer of the Chuan before that date. They further assert that they never instructed solicitors to act in the supposed sale or transfer.

Cristian and Nila also brought negligence claims against Toh and Tan (“the Negligence Claims”). Toh was the solicitor who acted for Kweh (as the “buyer”) under the instructions of Wibowo and Isabelle in the conveyance of the Chuan. Toh had also applied for a Replacement Certificate of Title (“RCOT”) which was used to complete the transfer of the Chuan to Kweh. This was done, allegedly on the instructions of Cristian and Nila. Tan, on the other hand, was the solicitor who purported to act for Cristian and Nila (as the “sellers”) in the conveyance of the Chuan to Kweh.

The case against Toh and Tan is that Cristian and Nila never instructed them to act on any matter in relation to the Chuan. Any instructions were in fact provided by Kweh and/or Wibowo and/or Isabelle without the knowledge and authority of Cristian and Nila. The crux of the complaint is that Toh and Tan did not conduct proper checks to verify the source and authenticity of the supposed instructions that they thought they had received from Cristian and Nila. If this had been done, they would have discovered that they did not have any authority to act for Cristian and Nila. There is no assertion that Toh and/or Tan were complicit in the fraudulent plans of Wibowo, Isabelle and Kweh.

Toh, in turn, took out third party proceedings against Wibowo and Isabelle.¹¹ The crux of Toh’s claim is that if Cristian and Nila succeed in their claim against him, Wibowo and Isabelle are liable to him for fraudulently misrepresenting that Cristian and Nila had agreed to Toh acting in respect of the application for a RCOT. Toh also has a claim for contribution against Wibowo and Isabelle under the Civil Law Act (Cap 43, 1999 Rev Ed) (“CLA”).

Another set of third party proceedings was taken out by Tan against Toh. The crux of Tan’s claim is that if he is found liable to Cristian and Nila, Toh is liable to indemnify him, because Toh had negligently or recklessly misrepresented that Cristian and Nila had agreed to appoint him to act in the conveyance. Tan also has a claim for contribution against Toh under the CLA.

The relevance of Kweh’s demise

Kweh, the first defendant in S 169/2012, passed away in Penang on 17 November 2012. The estate of Kweh was...