Elbow Holdings Pte Ltd v Marina Bay Sands Pte Ltd

• Jurisdiction: Singapore
• Judge: George Wei JC
• Judgment Date: 14 February 2014
• Neutral Citation: [2014] SGHC 26
• Court: High Court (Singapore)
• Docket Number: Suit No 954 of 2012 (Registrar’s Appeal No 275 of 2013)
• Published date: 21 February 2014
• Year: 2014
• Hearing Date: 09 September 2013,08 November 2013
• Plaintiff Counsel: Gregory Vijayendran, Wendy Low Wei Ling and Dhiviya Mohan (Rajah & Tann LLP)
• Defendant Counsel: Alma Yong and Sim Mei Ling (WongPartnership LLP)
• Subject Matter: Civil Procedure,Discovery of Documents,Application
• Citation: [2014] SGHC 26

George Wei JC: Introduction

This is an appeal against the decision of the learned Assistant Registrar Kan Shuk Weng (“the AR”) in Summons No 2743 of 2013 (“SUM 2743/2013”) given on 25 July 2013. SUM 2743/2013 concerned a discovery order for certain documents which were allegedly covered by the Official Secrets Act (Cap 213, 2012 Rev Ed) (“OSA”). After hearing the arguments of both parties, with consideration given especially to the fact that the OSA was involved, I am dismissing the appeal and I now give my reasons.

Background facts

The plaintiff, Elbow Holdings Pte Ltd (“the Plaintiff”), is a private limited liability company incorporated in Singapore. The Plaintiff owns and operates an “Australian themed” bar and bistro called “South Coast Bar & Bistro” at Units “#01-R7” and “#B1-R7” of the Marina Bay Sands Shoppes Singapore (“the Premises”). The Premises were subsequently renamed “The Shoppes at Marina Bay Sands”. The unit numbers have also been renamed as “#01-85” and “#01-85 at B1 level” respectively. It appears that Unit “#01-85” is a kiosk located on the Promenade (“the Promenade Kiosk”), whereas Unit “#01-85 at B1 level” is a basement kitchen (“the Basement Kitchen”) used to serve the Promenade Kiosk.

The defendant, Marina Bay Sands Pte Ltd (“the Defendant”), is a private limited liability company incorporated under the laws of Singapore. It manages The Shoppes at Marina Bay Sands.

The dispute between the parties in the main suit, Suit No 954 of 2012 (“S 954/2012”), arises in connection with a lease agreement for the Premises (as well as the actual lease itself) which was signed by the parties on or around 8 March 2010 (“the Lease Agreement”). The Writ of Summons and Statement of Claim were issued by the Plaintiff on 7 November 2012. The Defence and Counterclaim was filed on 3 December 2012 and subsequently amended on 3 January 2013. This was followed by the Plaintiff’s Reply and Defence to Counterclaim filed on 20 December 2012 and further amended on 18 January 2013.

The Plaintiff’s case is advanced on two fronts, briefly summarised as follows. First, the Plaintiff argues that it was induced into concluding the Lease Agreement as a result of certain representations alleged to have been made by or on behalf of the Defendant during the pre-signing negotiations. These representations essentially concerned the right of the Plaintiff to use certain outdoor areas, and for the ease of convenience, these representations will be referred to as “the Outdoor Space Representations”. The Plaintiff’s assertion is that the Outdoor Space Representations were false, and on this basis, it has brought a claim against the Defendant for relief under s 2 of the Misrepresentation Act (Cap 390, 1994 Rev Ed). In addition, the Plaintiff has also brought a claim for breach of a collateral contract (where the Defendant was said to have permitted the Plaintiff to use the outdoor spaces) as well as a claim based on proprietary estoppel. Without delving into the precise details and substantive merits of the main action, the Plaintiff is essentially alleging that the space it was entitled to use turned out to be much less than what they had been led to believe. This, of course, is denied by the Defendant.

The second front advanced by the Plaintiff is the assertion that the Defendant had committed a number of breaches in relation to the Lease Agreement: namely, breach of an express and/or implied covenant in the Lease Agreement that the Defendant possessed a leasehold interest in the Premises, breach of an express term or covenant of the Lease Agreement that the term of the Lease was to be for a period of six years, as well as a general assertion of repudiatory breach of the Lease Agreement.

On 29 May 2013 the Plaintiff, by way of SUM 2743/2013, took out an application for specific discovery of certain documents. Subject to some minor variations, the AR on 25 July 2013 allowed the Plaintiff’s application. The Defendant is now appealing against the decision of the AR. Before I turn to the applicable legal principles, it will be helpful to first set out the background to the dispute (insofar as it is relevant to the claim for specific discovery) so as to provide the proper context in which the application for specific discovery was made.

The parties’ pleaded case

In its Statement of Claim, the Plaintiff asserts that prior to the conclusion of the Lease Agreement, the Plaintiff and the Defendant were engaged in negotiations on the commercial and legal terms of the lease.¹ These negotiations were said to have commenced in around March 2009 and were only concluded about a year later. The Plaintiff alleges that the Defendant made a number of representations during the course of negotiations concerning the Plaintiff’s right, as tenant of the Premises, to use certain outdoor spaces without further payment. The essence of the representations was that the Plaintiff would have the use of the “biggest outdoor area along the Marina Bay Sands Promenade”, which would “be able to accommodate hundreds of customers drinking all the way to the waterfront edge of the Promenade.”² The Outdoor Space Representations were allegedly made both orally and in writing by a number of alleged agents of the Defendant. The Plaintiff asserts that the Defendant induced the Plaintiff to believe throughout the course of negotiations that it had a right to use the outdoor space area around and at the front of the Kiosk.³ It was on the basis of these Outdoor Space Representations that the Plaintiff entered into the Agreement for Lease (and also the Lease itself) on 8 March 2010 and thereafter commenced design and fitting works for the establishment of the South Coast Bar & Bistro.

Subsequently (between April and June 2010), the Plaintiff was informed by the Defendant that the Urban Redevelopment Authority (“URA”) had imposed restrictions over the use of the outdoor spaces described as Outdoor Areas A, B and C.⁴ In mid-June 2010, the Defendant was granted a Temporary Occupation Licence (“TOL”) to occupy Outdoor Areas A and B on a monthly basis. The TOL did not allow the construction of any pergolas or other cover over the outdoor seating areas. Later, in November 2011, the Defendant instructed the Plaintiff to stop using Outdoor Area B and to remove all outdoor furniture in that area.⁵ Finally, on or about 29 February 2012, the URA amended the TOL, limiting the area of use that is subject to the TOL to just Outdoor Area A. The Plaintiff’s case is that the Defendant never informed the Plaintiff during the lease negotiations that URA approval was necessary for the Plaintiff’s use and occupation of the outdoor areas.

The Defendant denies most of the alleged representations and specifically asserts in its Defence and Counterclaim dated 3 January 2013 that the Plaintiff had been informed that its use of the outdoor areas was subject to the approval of both the Defendant and the URA.⁶ Indeed, the Defendant asserts that:⁷

… the Plaintiff knew that The Shoppes at Marina Bay Sands was a new development under construction and accordingly, the lease of the Premises (including the conditions relating thereto) would be subject to the approval of the Government of the Republic of Singapore (the “State”) and/or relevant authorities. ...

The Defendant is also relying on the Entire Agreement Clause in the Lease Agreement to exclude any representations that may have been made in the course of negotiations. This includes: Clause 6.18.1 which states, inter alia, that:

The STB [Singapore Tourism Board] is seized of the Land to be comprised in a State Lease (“Head Lease”) to be issued in favour of the STB by the President of the Republic of Singapore ... for a leasehold estate for an unexpired portion of a term of 60 years…

Clause 6.18.2 which states that:

The Landlord [Marina Bay Sands] has an interest in the Land on which the Development is situated comprised in a superior Lease granted or to be granted by the STB to the Landlord ...

Clause 6.12.2 which states that:

The Landlord is not bound by any representations or promises with respect to the Development or the Premises if they are not stated in the Entire Agreement whether written or oral, express or implied by common law, statute, or custom…

Clause 6.12.3 which states that:

The Tenant confirms that it has not agreed to, or executed this Lease relying on any representations made by the Landlord or on its behalf which is not stated in the Entire Agreement.

Leaving aside (for the moment) the claims brought in respect of the Outdoor Space Representations, a number of connected issues arise in this case concerning: (i) the right or title of the Defendant to enter into the Lease Agreement (and the Lease) (“the Title Term”); and (ii) the obligation to provide the Plaintiff with a lease of the Premises for a period of six years (“the Duration Term”).

Put at its most basic, the Plaintiff claims that the Defendant did not in fact possess the leasehold interest in the Premises at the time when it signed the Lease Agreement with the Plaintiff⁸ and that the Defendant had committed an anticipatory breach of the Duration Term on 11 June 2012 when the Plaintiff was informed by the Defendant that a licence for Unit “#01-R7” [“#01-85”] would be issued for the remainder of the term of the Lease.

With respect to the claim that the Defendant had breached the express/implied Title Term, the Plaintiff has made reference to the Development Agreement (“DA”) between the Defendant and the Government of Singapore, as well as the Head Lease and the Superior Lease.⁹ At this juncture, it is noted that the DA was concluded between the Defendant and the Singapore Tourism Board (“STB”). Whether the STB is to be regarded as the Government or as having concluded the contract on behalf of the Government is a matter in dispute. The Defendant denies any breach of the...