Elias Xanthopoulos v Rotating Offshore Solutions Pte Ltd and others

• Jurisdiction: Singapore
• Judge: Quentin Loh JAD
• Judgment Date: 19 April 2022
• Neutral Citation: [2022] SGHC(A) 17
• Citation: [2022] SGHC(A) 17
• Docket Number: Civil Appeal No 101 of 2021
• Year: 2022
• Published date: 23 April 2022
• Plaintiff Counsel: Ronald Wong Jian Jie and Stuart Andrew Peter (Covenant Chambers LLC)
• Defendant Counsel: Ramachandran Doraisamy Raghunath and Kyle Gabriel Peters (PDLegal LLC)
• Subject Matter: Civil Procedure,Appeals,Contract,Contractual terms,Express terms,Remedies,Damages
• Hearing Date: 19 April 2022
• Court: High Court Appellate Division (Singapore)

Quentin Loh JAD (delivering the judgment of the court ex tempore): Introduction

AD/CA 101/2021 (“CA 101”) is an appeal by the appellant, Elias Xanthopoulos (“the Appellant”), against the High Court Judge’s decision (the “Judge”) in Xanthopoulos, Elias v Rotating Offshore Solutions Pte Ltd and others [2021] SGHC 197 (the “Judgment”) to dismiss his claim for unpaid fees pertaining to certain projects against the first respondent, Rotating Offshore Solutions Pte Ltd (“RO Solutions”) in HC/S 626/2019 (“Suit 626”). Parties have agreed to dispense with the third respondent’s, Lim Boon Chye Victor (“Mr Lim”), participation in CA 101 given that the issues on appeal do not concern him.

The Appellant was the managing director and minority shareholder (with 30% of the shares) of the second respondent, ROS Engineering Pte Ltd (“ROSE”) and the engineering director of RO Solutions. The first, second and third respondents will be referred to hereinafter as the Respondents. RO Solutions owned the remaining shares of ROSE. ROSE was set up as a joint venture with RO Solutions pursuant to discussions between the Appellant, Chia Kuan Wee (“Mr Chia”), the managing director of RO Solutions from 3 March 2015 to 13 September 2019, Mr Lim and Murugesan Srinivasan (“Mr Srinivasan”), a director of RO Solutions.

Under an agreement dated 1 May 2012 (“the ROSE Agreement”, which was rectified by the Judge below, but upon which no issues arise therefrom), the Appellant was appointed the managing director of ROSE; he (a) would receive a monthly salary of $10,000, (b) could retain any consultancy fees billed and performed by him directly with other parties, (c) would be entitled to commissions if he initiated any projects that were eventually secured by ROSE, and (d) as for compensation for managing and executing any in-house work, he would not charge any additional fee if he was billing independently under (b) and if he was not billing independently under (b), then “reasonable compensation agreed by both parties shall be paid to [him] to manage and execute this work”.¹

He also took on the role of engineering director of RO Solutions. From around July 2013, RO Solutions paid the Appellant an additional sum of S$15,000 per month though the reason for these payments is disputed.

The Appellant was also separately appointed as project manager for the MOPU BOSS1 Project from November 2013 to March 2014, the MODEC Project from November 2014 to June 2015, and the MOPU D18 Project from June 2015 to March 2016. In 2016, RO Solutions entered into a contract with Caevest Private Limited (“Caevest”) for a project (the “Caevest Project”).

On 1 July 2018, the Appellant resigned from his positions as engineering director at RO Solutions and managing director of ROSE. In Suit 626, he claimed for unpaid fees pertaining to certain projects against RO Solutions under the ROSE Agreement and sought relief as a minority shareholder of ROSE from the oppressive conduct of RO Solutions and Mr Lim.

The Judge allowed the Appellant’s minority oppression claim but dismissed all his other claims for unpaid fees. In relation to the Appellant’s claim for commission for the Caevest Project, the Judge found that the Appellant had not initiated the Caevest Project within the meaning of cl 5.4 of the ROSE Agreement and was not entitled to be paid a commission (Judgment at [86] to [93]). In relation to the Appellant’s claim for compensation as the project manager of the MODEC Project, the Judge found that cl 5.5 of the ROSE Agreement required prior agreement for such remuneration and there was no such agreement made (Judgment at [94] to [97]).

In CA 101, the Appellant appeals against the Judge’s findings in relation to the Caevest Project and the MODEC Project. In our judgment, the Appellant’s appeal with regard to the Caevest Project has, for the reasons set out below, no merit and must be dismissed. However, we find that the Appellant is, for the reasons set out below, entitled to reasonable compensation for his work as project manager of the MODEC Project. We accordingly allow CA 101 in part.

Our decision

Before turning to our decision on the Caevest Project and the MODEC Project, we address two preliminary issues.

First, we make no order on HC/SUM 12/2022 (“SUM 12”), the Respondents’ application to strike out the Appellant’s Reply on the basis that the Appellant’s Reply was filed in contravention of O 56A r 9(7) of the Rules of Court (2014 Rev Ed) (“ROC”). At the outset, the plain language of O 56A r 9(7) of the ROC provides for when an appellant must file a reply. It does not state that the court must strike out an appellant’s reply if it takes the view that it was not required to be filed. This decision would be left to the discretion of the court to act in the best interests of the dispute and justice. For example, in Global Yellow Pages Ltd v Promedia Directories Pte Ltd and another matter [2017] 2 SLR 185 at [22], the Court of Appeal made no order on a summons filed by the first respondent seeking to strike out the Appellant’s Reply for non-compliance with O 57 rr 9A(5A)–9A(5B) of the ROC because it was “inclined to consider the arguments raised in the reply in any event”. In this case, we consider it arguable that the respondents relied on arguments and/or evidence which were not clearly considered or relied on by the Judge. For instance, the Respondent’s Case made submissions on why the evidence of Mr Ernest Enver of Caevest and Mr Chia on the Caevest Project were contradictory.² It also made submissions on the contra proferentem rule for the interpretation of cl 5.5 of the ROSE Agreement even though the Judge did not rely on that rule.³ In substance, this was a submission that the Judge’s decision should be affirmed on grounds other than those relied upon in the judgment. We therefore decline to strike out the Appellant’s Reply.

Secondly, the Appellant’s ground of appeal regarding the Judge’s findings relating to the Appellant’s failure to raise his claims for unpaid fees at an earlier stage at [98] to [102] of the Judgment is misconceived. While the Appellant seems to be under the impression that the Judge found that he “should not be entitled to any of his project claims because of his failure to ask for payment until the last day of his notice period”,⁴ the Judge never found that the Appellant’s failure to raise the three claims at an earlier stage meant that he was not entitled to any of his claims for unpaid fees. The Judge’s observations on the timing of which the payment claims were stated in the Judgment only after the Judge had dismissed the Appellant’s claims for unpaid fees. It is clear to us that the Judge was merely summing up her assessment of witness testimony and evidence given on those claims. The Judge did not rely on those findings to support her decision to dismiss his claims for unpaid fees relating to the projects.

Caevest Project

We affirm the Judge’s dismissal of the Appellant’s claim for commission for initiating the Caevest Project. Clause 5.4 of the ROSE Agreement (as rectified by the Judge) states:⁵ 5.4 A Commission in addition to the salary as provided in Clause 5.1 shall be as follows for any projects initiated by Appointee and secured by Company or RO Systems:

5% of the value of the contract up to S$5M (million).

3% of the value of the contract up to S$5M~50M

2% of the value of the contract up to S$50~100M

1% of the value of the contract up to S$100M

The amount shall be computed as follows: As an example, a purchase order in the amount of 8 million dollars would generate a Commission of 5 million x 5% = S$250,000, plus 3 million at 3% = S$90,000 for a total of S$340,000.

To further clarify the commission described above and to preclude any future misunderstanding: a. For any orders from “NEW” Clients initiated by Appointee and/or his team, Appointee to receive 100% of Commission described above. b. For all other orders for modules/packages that Rotating Offshore Solutions Pte. Ltd., Rotating Offshore Systems Pte. Ltd. or other affiliated group businesses (refer to all aforementioned as “ROS Group”) do not currently offer to “NEW” or existing Clients, requiring assistance from Appointee and/or his team, Appointee shall receive 50% of Commission described above.

[emphasis added in italics and bold italics]

On a contextual approach, considering the negotiation context in the emails from 8-9 February 2012 as admissible extrinsic evidence, the Judge found that parties envisioned that the Appellant would only be paid a commission for extra work that he brought to RO Solutions using his expertise and contacts...