District Judge Loo Ngan Chor:
Introduction:
The plaintiff sought damages for an alleged repudiation by the defendant of a distribution agreement or a promise to give the plaintiff a distribution agreement. At the end of the trial, I dismissed the plaintiff’s claim. On a later date, I fixed costs payable to the defendant at $24,000 which they were to pay along with reasonable disbursements to be taxed if not agreed. The plaintiff has appealed my decision. These are my grounds.
Background:
The plaintiff is in the business of importers, exporters and wholesale of sundry products. It says that it is or was the exclusive distributor for Pentax and Steiner binoculars in Singapore and for Sanyo Digital in Singapore and Malaysia.
The defendant’s parent company is a German company called Leica Camera AG. The defendant’s business is the retail sale of cameras, sport optics and photographic products. Leica Camera AG was ending a decade-long sole distributorship of the same products on 31st January 2011. The defendant was to take over the distributorship. It was not disputed that the market of the initiated, dealers in the said products, soon caught wind of this news.
The plaintiff’s efforts at securing distribution rights from the defendant led to this claim. The sole question before me was whether the parties’ communications and the plaintiff’s efforts crystallised in anything that amounted to a cause of action. My decision was premised on my finding that the whole thing was writ in air. In the instant case, my decision is best explained by recounting, where necessary verbatim, the parties’ documents, including their pleadings and emails which, in the main, originated from Vishinu.
The early cause papers:
The Statement of Claim (Amendment No. 1)
The plaintiff’s pleaded claim was that: There was an (oral) agreement on 30th November 2010 between the parties under which the defendant “agreed inter-alia to supply Leica products such as cameras, lens, and other related paraphernalia to the plaintiff for distribution and sale at duty free counters at Sprint-Cass Pte Ltd (“Sprint Cass”) at Terminal 3 in Changi International Airport, the outlets of Best Denki (S) Pte Ltd particularly at Vivo City, Takashimaya and thereafter at Terminals 1 and 2” of the airport. It was pleaded also that “the Agreement between the parties was made partly orally and/or partly by conduct and/or as a result of a course of dealings between the plaintiffs and the defendants.” The oral aspect of the formation of the agreement was the meeting on 30th November 2010 between Mr Sunil Kaul (“Sunil”), the defendant’s managing director, and the plaintiff’s director, Mr Vishinu s/o Metharam (“Vishinu”), and deputy general manager, Mr Patrick Chen (“Patrick”). The pleaded conduct and course of dealings lay in: The plaintiff requesting the defendant to take part in meetings with Sprint Cass and Best Denki with a view to eventually selling at their outlets. The defendant’s choosing not to attend the meetings and “entrust[ing] the matters to the” plaintiff. The defendant’s inquiring via an email dated 13th December 2010 at 12.42pm about the progress of discussions between the plaintiff with Sprint Cass and Best Denki. The plaintiff’s email dated 13th December 2010 at 2.48pm updating the defendant with the information that “Sprint Cass agreed to allow Leica products to be displayed at their counters at Terminal 3 on condition that 18% profit margin be given to them to which the plaintiff agreed.” The plaintiff’s sending to the defendant drawings for the proposed design for the Leica concept display stand for approval and comments. The terms of the said agreement were pleaded as the granting of distribution rights to the plaintiff at the named outlets, the supplying of Leica products to the plaintiff and the plaintiff (being tasked) to liaise with Sprint Cass and Best Denki towards the contemplated distribution. The defendant was said to have repudiated the pleaded agreement following a series of identified emails and an SMS when the defendant failed to respond to the plaintiff’s email dated 7th January 2011 at 7.52pm where the plaintiff served notice that “if the plaintiff did not hear from the defendant by 10th January 2011, the plaintiff would conclude that the defendant were no longer interested in the space at Terminal 3.” By a new paragraph 10, an amendment which I allowed following Mr Assomull’s argument that there was currently basis to think that estoppel could now be a cause of action, ie, be used as a sword rather than just a shield, it was pleaded that the “defendant’s conduct as pleaded in paragraphs 4 and 7 [outlined in paragraphs 5(4) and 5(6)] above amounted to a representation that the defendant had promised to supply Leica products as set out in paragraph 1 [outlined in paragraph 5(1)] above, with the result that the plaintiff relied on the same to their detriment and the defendant are now estopped from saying otherwise (that there was no representation) and or that there was no agreement and it could be unconscionable from so doing.”
The plaintiff’s opening statement:
In the plaintiff’s opening statement (at [36-38]), Mr Assomull stated that “It was agreed between the parties that the margin profit was 35% of the sales turnover. As Sprint Cass was asking for 18%, the plaintiff would receive the balance 17%. Using the annual sales turnover of Sanyo camera of about S$1,471,8924.00 and based on the margin profit of 17% which the plaintiff were to receive, the plaintiff would receive a profit of S$250,210.08 pursuant to the agreement… As the jurisdiction of the District Court is limited to a sum of S$250,000.00, the plaintiff are prepared to accept the sum of S$250,000.00 as loss and damage suffered by the plaintiff as a result of the defendant’s breach of the Agreement.”
The Defence (Amendment No. 1):
The defendant’s pleaded defence included the following: The oral agreement was denied because, while the meeting did take place (because Vishinu had been making “cold calls” to Sunil who said he was busy and had a flight to catch on 30th November 2010, Vishinu said he would meet Sunil at the airport), it was a brief meeting lasting five to seven minutes in which in which Vishinu “expressed interest to do Leica sales [at a Terminal 3 store] and tried to sell to Sunil his idea of selling Lieca products at a space… represented to be large, exclusive and next to the Apple store.”, nothing “conclusive or specific” was discussed. The agreement by conduct or course of dealing was denied: Because there was no mention of any meeting to be attended and Leica’s products were “of a higher price range and cater to a higher end category of clientele than the kind of clients who attend at Best Denki outlets.” Because there was no mention of meetings nor “any matters for the defendant to entrust the plaintiff.” Because the defendant’s email of 13th December 2010 at 12.42pm only asked “for developments on the plaintiff’s discussion with Sprint Cass on the Terminal 3 outlet and not Best Denki. The defendant was only asking this to consider the plaintiff’s proposal of having Leica products sold at a Terminal 3 outlet and it was very preliminary.” Because “the defendant had not at any time agreed with the plaintiff the cost price of Leica products, profit margin or supply of Leica products to the plaintiff for the plaintiff to display them at a Terminal 3 Sprint Cass counter.” Because while the plaintiff did furnish drawings, these drawings “were not for the kind of space that the plaintiff’s Vishinu mentioned to the defendant’s Sunil at the short meeting at Terminal 3 on 30th November 2010.” The defendant denied the plaintiff’s pleaded terms of the agreement or any agreement at all and averred that in any case the pleaded terms were “too uncertain, ambiguous and incomplete to constitute a binding legal agreement.” Repudiation was denied because, there having been no agreement, the question did not arise, and for other reasons pleaded. The plaintiff’s new plea of an alleged estoppel was denied. The defendant pleaded that: “The plaintiff was over zealous and acted as it did to try to get the defendant to agree to supply Leica products to the plaintiff to sell but in the end, the defendant was not interested and did not so agree. This was acknowledged by the plaintiff in its email dated 10th January 2011.” Estoppel could not be invoked because “it acts as a shield and not a sword.” Moreover, being an equitable remedy, the plaintiff was not entitled to invoke estoppel as the plaintiff “has not come to Court with clean hands in using various tactics (set out … above) to try to get the defendant to agree to supply Leica products to the plaintiff to sell.”
The witnesses:
The plaintiff’s witnesses were Vishinu, Patrick (Patrick Chen Ah Beng @ Patrick Chen Yaming) and Elias Wong Kam Meng (“Elias”), a buyer for Sprint Cass. The defendant’s witnesses were Sunil, Poon Tai Weng (also known as Danny Poon) (“Danny”), the defendant’s sales manager, Michel Ellert (“Michel”), a director of Special Sales of Leica Camera AG, Casey Lim (“Casey”), Chief Operating Officer of Sprint Cass; and Ms Tan Cai Ping (“Ms Tan”), at the material time an assistant manager in Changi Airport Group (Singapore) Pte Ltd.
The plaintiff’s case:
Vishinu’s evidence:
Vishinu’s affidavit of evidence-in-chief stated that after several described attempts to make contact with Sunil, he had “a telephone conversation with Sunil where I made an offer to the defendant for exclusive distribution and sale at duty free counters at Sprint-Cass Pte Ltd at Terminal 3 of Changi International Airport, the outlets of Best Denki (S) Pte Ltd, particularly at Vivo City, Takashimaya and thereafter at Terminals 1 and 2 in the Changi International Airport. At the time, the defendant had no distributors of...
