Foo Jong Long Dennis v Ang Yee Lim Lawrence and another

• Jurisdiction: Singapore
• Judge: Chan Seng Onn J
• Judgment Date: 28 January 2016
• Neutral Citation: [2016] SGHC 10
• Plaintiff Counsel: Daniel Chia, Kenneth Chua and Stephany Aw (Morgan Lewis Stamford LLC)
• Docket Number: Suit No 72 of 2013 and Summons No 4391 of 2015
• Date: 28 January 2016
• Hearing Date: 26 November 2015,25 November 2014,06 October 2015,15 October 2015,24 April 2015,23 April 2015,08 October 2015,18 November 2014,09 October 2015,12 October 2015,13 October 2015,14 October 2015,26 November 2014,27 November 2014
• Subject Matter: Fraud and Deceit,Tort,Conspiracy,Breach,Misrepresentation,Contract
• Published date: 17 January 2017
• Citation: [2016] SGHC 10
• Defendant Counsel: Andy Lem, Toh Wei Yi and Farrah Isaac (Harry Elias Partnership LLP)
• Court: High Court (Singapore)
• Year: 2016

Chan Seng Onn J: Introduction

The plaintiff, Dennis Foo (“DF”), the defendants, Lawrence Ang (“LA”) and William Tan (“WT”), and one Peter Lim (“PL”) were business partners in, inter alia, Raffles Town Club (“RTC”), Europa Holdings Pte Ltd (“EH”) and ABR Holdings Limited (“ABR”) prior to 2000. In the year 2000, their relationship broke down giving rise to a series of litigations that year (“the Year 2000 Suits”). 15 years after the breakdown of their relationship, the plaintiff and the defendants are still in litigation. Although PL is not a party to the present proceedings, as will be seen below, he has cast a long shadow on and shaped the events that form the subject of the present proceedings.

On 4 April 2014, the plaintiff applied in Summons No 1698 of 2014 for the present action to be bifurcated. I granted the plaintiff’s application for bifurcation and the present action was bifurcated on 28 April 2014.

This judgment relates to the trial on liability. In the present proceedings, the plaintiff claims that: The defendants breached the pre-emption provisions of the Articles of Association (“Articles”) of RTC and EH (“the Relevant Articles”) by allegedly selling the shares belonging to them to one Margaret Tung Yu-Lien (“TYL”) and Lin Jian Wei (“LJW”) on 14 April 2001 without allowing him to exercise his rights of pre-emption (“the Breach of Articles Claim”). The defendants unlawfully conspired to conceal the alleged agreement made on 14 April 2001 with TYL and LJW from the plaintiff and/or made certain express or implied representations fraudulently (or otherwise) to the plaintiff by rejecting a purchase mechanism proposed by PL, thereby inducing the plaintiff to enter into a deed of settlement on 19 April 2001 (“the Conspiracy, Fraud and Misrepresentation Claims”).

The plaintiff also initially claimed that the defendants breached certain disclosure rules of the Singapore Exchange Ltd (“the SGX”) by failing to disclose the sale of shares in ABR, a public-listed company. This claim is not pursued in the plaintiff’s closing submissions.

When shareholders decide to part ways there are, broadly speaking, two options available to them. They can liquidate the company and realise the equity that remains after the liabilities of the company have been satisfied or agree that one faction of shareholders buys out the other. In the latter scenario, the seller may have agreed to sell his shares for a number of reasons. He may, inter alia, not have sufficient funds to buy out the other shareholders or be unoptimistic about the prospects of the underlying company. These circumstances may change with the course of time. He may subsequently find the necessary funds and/or the prospects of the underlying company may have improved. With the benefit of hindsight, he may feel that he has struck a bad deal by agreeing to sell his shares earlier. The seller may then construct a fanciful claim to reverse the state of affairs or seek a remedy for his bad commercial judgment. In so doing, he will find himself grasping at straws and will have to concede his claim eventually. This is because the law does not provide remedies for bad bargains and poor commercial judgment without more, and cannot be used to get a “second bite” at the proverbial cherry.

The plaintiff made concessions in the trial before me that go to the core of the Breach of Articles Claim. Though he changed his evidence one day after he made the relevant concessions and attempted to lead evidence to rebut his own testimony, I find at the end of the trial that the plaintiff’s concessions reflect the state of affairs at the material time. I also find that the Conspiracy, Fraud and Misrepresentation Claims are brought on erroneous factual premises, rendering them complete non-starters.

Background to the present dispute

The plaintiff and the defendants together with one Tan Buck Chye (together, “the RTC Developers”) had bid for a site around Trevose Road, Singapore. This is the site on which RTC now sits (“the Site”). They wanted to develop a premium private recreation club on the Site. As their successful bid was almost 60% higher than the next highest bid, the RTC Developers had difficulty obtaining bank financing for the purchase of the Site.

At that point, the RTC Developers approached PL who arranged funding for the purchase of the Site. With the assistance of PL, RTC was conceived. It is uncontroversial that PL had a great degree of influence in the running of RTC. PL nominated his associates to the board of RTC, including one Ricky Goh (“RG”), but was not a director or a registered shareholder of RTC.

Soon after RTC was launched, PL proposed listing the business. Eventually, this was done through a back door listing. A substantial stake in ABR, a public listed company on SGX, was acquired by Sullivan Development Limited (“Sullivan”) and Goldhurst Properties Limited (“Goldhurst”). The pub and restaurant businesses held by EH were then injected into ABR in consideration for shares in ABR. Together, Sullivan, Goldhurst and EH owned 69.12% of ABR. The defendants, the plaintiff and RG in turn owned shares in Sullivan and Goldhurst. As noted, the relationship between the defendants and PL broke down following a meeting on 30 August 2000 when matters relating to the shareholding of PL in RTC were tabled. This breakdown engendered the Year 2000 Suits.

Of the Year 2000 Suits, Suit 742 of 2000 (“Suit 742”) is relevant to the present proceedings. In that suit, PL claimed for specific performance of an oral agreement between himself on the one hand and the defendants and the plaintiff on the other under which he was entitled to 40% of the shareholding in RTC and EH. He also averred that DF was to be a 10.1% shareholder of RTC and EH.¹

The defendants’ defence in Suit 742 was that there was no such oral agreement as alleged by PL, and that PL was a shadow director and beneficial shareholder of RTC and EH.² The defendants contended that PL was the beneficial owner of 39.21% of the shares in RTC and EH, while the plaintiff owned 10.6% of the same.³

Though the plaintiff was also initially a defendant in Suit 742, he agreed with PL’s averment that he was a 10.1% shareholder of RTC and EH and consented to judgment being entered against him.⁴

At the time of Suit 742, the registered shareholdings of the defendants, the plaintiff, RG and PL were as follows:

	EH	RTC	Goldhurst	Sullivan
LA	76.51%	76.51%	60%	60%
WT	11.00%	11.00%	15%	15%
DF	12.49%	12.49%	15%	15%
PL	0%	0%	0%	0%
RG	0%	0%	10%	10%
Total	100%	100%	100%	100%

In the Year 2000 Suits, LA was represented by Mr Michael Khoo SC of Messrs Michael Khoo & Partners who was instructed by Mr Terence Teo (“Mr Teo”) of Messrs Chee & Teo; WT was represented by Mr Harry Elias SC (“Mr Elias”) and Mr Michel Palmer of Harry Elias Partnership LLP (“HEP”); the plaintiff was represented by Mr Cheoh Chai Beng Johnny (“Mr Cheo”) of Cheo Yeoh & Associates LLC; and PL was represented by Mr Davinder Singh SC of Messrs Drew & Napier (“D&N”).

During the course of the Year 2000 Suits, the parties asked for an adjournment of the trial to mediate their disputes. The mediation of the Year 2000 Suits (“the Mediation”) took place in April 2001 in three tranches. It is not disputed that there were two factions in the Mediation viz, the defendants on one hand and PL, the plaintiff and RG on the other. The Mediation focused on one faction buying out the other on the basis that the two factions were equal shareholders ie, with each faction holding 50% of the shares. The parties therefore negotiated with the view that one faction would buy out all the legal and beneficial interests of the shares held by the other faction.

The first tranche of the mediation took place on 6 April 2001 at the Singapore Mediation Centre (“the SMC”). The mediators were Mr Goh Joon Seng, Mr Joseph Grimberg SC and Mr Peter Chi (“the SMC Mediators”). The negotiations during this tranche of the Mediation focused on the defendants selling their shares in RTC, EH and ABR (“the defendants’ Shares”) for S$40m to PL and the plaintiff. This tranche of the Mediation was unsuccessful as no settlement was reached.

According to the defendants, the second tranche of the Mediation was held on 6 and 7 or 8 April 2001 at the “office of Arfat Selvam’s law firm”.⁵ The plaintiff claims that he could not recall the existence of this tranche. Mr Cheo, his then solicitor, however confirmed at trial that this tranche took place albeit in his absence. The defendants gave evidence that during this second tranche, they took the position that they would be willing to sell the defendants’ Shares to the plaintiff and PL at a reduced price of S$36m instead of the hitherto proposed amount of S$40m.

The third and final tranche of the Mediation proceeded at the SMC from 9 – 12 April 2001 before the SMC Mediators. The parties never returned to court after the completion of the Mediation and entered into a deed of settlement on 19 April 2001 (“the Deed”) where, in essence, PL and the plaintiff sold their interests in ABR, EH and RTC registered or otherwise (“PL and DF’s Interests and Shares”) to the defendants at S$36m. Suit 742 was thereafter discontinued. A key issue that has to be resolved in the present case is whether an agreement was reached at the end of the Mediation on 12 April 2001 that PL and the plaintiff would sell PL and DF’s Interests and Shares to the defendants at S$36m if the defendants obtained financing (“Alleged Mediation Agreement”). There is before the court at least three versions of events as to what happened at the end of the Mediation on 12 April 2001.

I pause to note that during the course of the third and final tranche of the Mediation on or about...