Dextra Partners Pte Ltd and another v Lavrentiadis, Lavrentios and another appeal and another matter

• Jurisdiction: Singapore
• Judge: Andrew Phang Boon Leong JCA
• Judgment Date: 25 March 2021
• Neutral Citation: [2021] SGCA 24
• Court: Court of Appeal (Singapore)
• Docket Number: Civil Appeals Nos 134 and 143 of 2020, and Summons No 13 of 2021
• Published date: 30 March 2021
• Year: 2021
• Hearing Date: 04 February 2021
• Plaintiff Counsel: Philip Fong Yeng Fatt, Koh Xian Wei Jeffrey and Kevin Koh Zhi Rong (Harry Elias Partnership LLP)
• Defendant Counsel: Sim Bock Eng, Tan Kia Hua and Lee Yu Lun Darrell (WongPartnership LLP)
• Subject Matter: Courts And Jurisdiction,Appeals,Threshold for intervention,Equity,Fiduciary relationships,When arising,Trusts,Breach of trust
• Citation: [2021] SGCA 24

Andrew Phang Boon Leong JCA (delivering the judgment of the court): Introduction

These are appeals against the decision of the High Court judge (“the Judge”) in Lavrentiadis, Lavrentios v Dextra Partners Pte Ltd and another [2020] SGHC 146 (“the Judgment”). The present case arises out of a number of transactions that Dextra Partners Pte Ltd (“Dextra”) and Mr Bernhard Wilhelm Rudolf Weber (“Weber”) undertook utilising funds held on trust for Mr Lavrentios Lavrentiadis (“Lavrentiadis”). Following discrepancies in the statements of accounts provided to him, Lavrentiadis commenced the suit below, arguing that a vast number of transactions had been entered into without his authorisation.

At the hearing before the Judge, parties had agreed that Dextra had in fact received the following sums for Lavrentiadis’s account (see the Judgment at [37]): EUR 39,735,362.82 and USD 12.67m between 30 November 2011 and 4 January 2012; and USD 630,160.39 on 10 October 2014. These amounted to a total of EUR 39,735,362.82 and USD 13,300,160.39.

Following the Judge’s directions at a pre-trial conference on 16 September 2019, the parties prepared a table setting out how Lavrentiadis’s monies had been applied and their respective positions on each item (“the Table of Parties’ Positions”). The transactions that were undertaken using the funds above at [2] were highly disputed and set out in the Table of Parties’ Positions (see the Judgment at [30]). In addition to these disputed transactions, the issues raised before the Judge also included the following (see the Judgment at [40]): Whether an investment swap on 30 September 2013 was entered into and was authorised (“the Investment Swap”); Whether Dextra breached its duties as trustee; Whether Weber owed fiduciary duties to Lavrentiadis and whether he had breached the same; Whether Weber was liable for any losses caused by Dextra because Dextra was his alter ego; and Whether Weber had dishonestly assisted Dextra in its breaches of its duties.

The Judge helpfully summarised his findings in relation to Dextra at [229] of the Judgment. We adopt the Judge’s terminology in relation to the disputed transactions, as well as the entities and persons involved. Further explanations on the disputed transactions and the entities and persons involved may also be found in the Judgment. For convenience, the summary, at [229] of the Judgment, is reproduced in full as follows:

…

(a) The Investment Swap was an afterthought and was not in fact entered into as the defendants have claimed. (b) The defendants’ reliance on the 2012 Mandate was also an afterthought. The plaintiff did sign the 2012 Mandate but: (i) the 2012 Mandate did not authorise Dextra to make any investments on his behalf; and (ii) in any event, he did not authorise asset protection structures as an investment strategy under the 2012 Mandate, pursuant to which Straits Invest would then have full discretion as to what to invest in. (c) The Investment Swap, the Far West Loans, the Windris Loan and the sale of the JB Gold Fund units, ZKB ETF units and Geldbuchungem A951 securities were not authorised. (d) Dextra is to pay the plaintiff the following: (i) €13,315,749.42 in relation to the Investment Swap; (ii) €2,768,085.59 and US$824,542 in relation to the Far West Loans; (iii) US$29,500 in relation to the Windris Loan; and (iv) the value of the JB Gold Fund units, ZKB ETF units and Geldbuchungem A951 securities at their respective prices as at the date of this judgment (less the amounts for which they were sold, and which have been accounted for). (e) The payments to Carnelia for annual service fees were not authorised. The payments to Carnelia for set-up fees and other expenses incurred were also not authorised, save to the extent accepted by the plaintiff. Dextra is to pay the plaintiff the amounts of €644,448.88 and US$194,746.72. (f) Payments to Dextra in respect of its: (i) invoices to Cruise for fiduciary and management fees were authorised; (ii) invoices to Carnelia (in relation to the Amadeus Trust and the GG Trust) and Women Magazine (in relation to the phone charges) were not authorised. The payments in relation to Ressos’ fees, secretarial fees and Women Magazine (service fee) were authorised. Dextra is to pay the plaintiff €14,516.65 (in relation to the Amadeus Trust), €13,023.74 (in relation to the GG Trust), and S$1,367.67 (in relation to the phone charges); (iii) invoices to Orex were not authorised. Dextra is to pay €49,673.07 to the plaintiff; (iv) invoices to Women Magazine were authorised except for the payments in relation to phone charges. Dextra is to pay the plaintiff the total amount of the phone charges. (v) invoices to Chengdu Foundation and its entities were authorised; (vi) invoices to Escalda Foundation and its entities were unauthorised save for the payments in relation to mobile phone services for the period from January to June 2015. Dextra is to pay the plaintiff: (A) in respect of the invoices to Escalda Foundation, the sum of €17,894.18 (ie, the disputed amount of €19,474.85 less the total amount of €1,580.67 paid for mobile phone services for the period from January to June 2015); and (B) €19,439.05, €19,439.05 and €39,404.16 in respect of the invoices to Sinam, Surataya and Fanaul respectively; (vii) invoices to Mercury were not authorised. Dextra is to pay €19,440.35 to the plaintiff. (g) The payment of €12,537.22 to Weber (director’s fees for 2012) was authorised to the extent of Jade AP1’s share of the fees proportional to its AUM. Dextra is to pay the plaintiff the amount of fees that are attributable to Jade Monega. (h) The custody fees paid to DBS for the period after 8 September 2019 in proportion to the Jade AP1 Hellenic Bank shares were authorised. Dextra is to pay the plaintiff any custody fees paid by him that are not attributable to the Jade AP1 Hellenic Bank shares. (i) In relation to Jade DCC: (i) the payments amounting to €79,898.96 in connection with Jade Monega were not authorised. Dextra is to pay this amount to the plaintiff; (ii) the payments of €781,058.57 and €38,309.88 to Pearl Investment for management fees in connection with Jade AP1 were authorised only to the extent of €50,000; however, Dextra is entitled to include the AUM in Jade AP1 in computing its fees under the 2012 Mandate. Dextra is to pay the plaintiff the total amount of €819,368.45 less (A) €50,000 and (B) Dextra’s fees computed at 0.5% of the book value of the AUM in Jade AP1 (to the extent that such fees have not been invoiced for or paid); (iii) the payment of €47,273.96 to Pearl Investment in respect of Weber and Chris were authorised to the extent of Jade AP1’s share proportional to its AUM. Dextra is to pay the plaintiff the amount that is attributable to Jade Monega; (iv) the payment of €21,272.83 to Kreis was authorised to the extent of Jade AP1’s share proportional to its AUM. Dextra is to pay the plaintiff the amount that is attributable to Jade Monega; (v) the payment of €9,000 to Dextra was not authorised but the payment of €12,516.43 to Weber was authorised to the extent of Jade AP1’s share proportional to its AUM. Dextra is to pay the plaintiff the sum of €9,000 and such portion of €12,516.43 that is attributable to Jade Monega; and (vi) the payment of €53,222.33 for miscellaneous expenses was not authorised. Dextra is to pay this amount to the plaintiff. (j) The payments amounting to €486,006.05 to Ritter Attorneys were not authorised. Dextra is to pay this amount to the plaintiff. (k) The payments to Straits Invest in respect of its invoices for management fees to Cruise (€10,428.59), Golden Moon (€15,292.60) and Dextra (€78,664.40) were not authorised. Dextra is to pay these amounts to the plaintiff. (l) The payment in the amount of €9,989.10 to Wintrust in relation to Ambrosia Trust, Calmness Trust and Sea Diamonds Trust was not authorised. Dextra is to pay this amount to the plaintiff. (m) The payments amounting to €5,906.66 to HEP were not authorised. Dextra is to pay this amount to the plaintiff. (n) The payment of €187,303 to Bartha was authorised. (o) The payment of €100,000 as a fiduciary fee to a third-party nominee was authorised only to the extent of €50,000. Likewise, only half of the related bank charges of €922.50 was authorised. Dextra is to pay €50,461.25 to the plaintiff. (p) The payment of €3m to New Anchor should be charged to the plaintiff’s account with Dextra. The payment of €22.22 as bank charges was not authorised. Dextra is to pay €22.22 to the plaintiff. (q) The ILC Dubai-Far West Loans and the Far West Loans breached the no-conflict rule.

The Judge also held that Weber was personally liable to Lavrentiadis to the same extent as Dextra because: (a) Weber had breached his fiduciary duties relating to the use of Lavrentiadis’s assets; (b) Dextra was Weber’s alter ego; and/or (c) Weber had dishonestly assisted Dextra in its breaches of trust (see the Judgment at [246]).

CA 134 of 2020 (“CA 134”) is Dextra’s and Weber’s appeal against the bulk of the Judge’s findings below. On the other hand, CA 143 of 2020 (“CA 143”) is Lavrentiadis’s appeal against several specific portions of the remainder of the Judge’s decision.

Broad observations

Before turning to the respective appeals, we pause to make several interconnected observations on appellate intervention, which we hope will serve as a timely reminder for all. First, in relation to the assessment of the evidence – notwithstanding the staggering amount of evidence adduced by both sides, it is immediately evident from the Judgment that the Judge had gone through the evidence with a fine-toothed comb. Each and...