Gao Shuchao v Tan Kok Quan and others

JurisdictionSingapore
JudgeSee Kee Oon J
Judgment Date11 May 2018
Neutral Citation[2018] SGHC 115
CourtHigh Court (Singapore)
Docket NumberDistrict Court Appeal 16 of 2017
Published date17 May 2018
Year2018
Hearing Date19 February 2018
Plaintiff CounselLee Ee Yang and Charis Wong (Covenant Chambers LLC)
Defendant CounselRaymond Wong and Rachel Ang (Wong Thomas & Leong)
Subject MatterTort,Defamation,Defamatory Statements
Citation[2018] SGHC 115
See Kee Oon J: Introduction

The present appeal arises from a defamation claim by members of the Third management council (“MC”) of the management corporation strata title number 3720 (“the MCST”). The MC was overseeing a residential strata development known as Duchess Residences at the material time.

The Appellant, Gao Shuchao, is the subsidiary proprietor (“SP”) of a unit in Duchess Residences, No. 108 Duchess Avenue. He is an associate professor of law at the Singapore Management University.

The First Respondent, Tan Kok Quan, was the chairman of the MC at the material time. He is a practising lawyer and a Senior Counsel. He has been a director of several banks and public-listed companies in Singapore and has served in prominent roles in the public sector. The Second Respondent, Kuah Kok Kim, was the treasurer of the MC at the material time and is presently its secretary. He is the chairman of a public company listed on the Singapore Exchange. The Third Respondent, Gn Hiang Meng, was the secretary of the MC at the material time and is presently its treasurer. He is an independent director of five public companies listed on the Singapore Exchange and a council member of the Teochew Federation (Singapore).

The Respondents brought the defamation claim against the Appellant in District Court Suit No 1361 of 2016 (“the Suit”). The Appellant responded with various counterclaims, namely misrepresentation, breach of statutory duty under the Building Maintenance and Strata Management Act (Cap 30C, 2008 Rev Ed) (“BMSMA”), breach of fiduciary duties as members and officers of the MCST, and defamation.

The matter proceeded to trial before a District Judge, who held that the Respondents’ claim against the Appellant was valid. He also held that the Appellant’s defences of justification, qualified privilege, and fair comment failed. The District Judge further held against the Appellant on all of his counterclaims. He ordered the Appellant to pay a sum of $40,000, inclusive of $10,000 in aggravated damages, to each Respondent. The decision of the District Judge is reported at Tan Kok Quan & 2 Ors v Gao Shuchao [2017] SGDC 152 (the “GD”).

The Appellant appealed against the District Judge’s decision in relation to the defences to defamation of qualified privilege, justification and fair comment, and in the event that the appeal on liability was unsuccessful, the quantum of damages. He did not appeal against the District Judge’s dismissal of the counterclaims.

Background to the Dispute

The Respondents’ defamation claim stemmed from disagreements over a Special Levy imposed by the MCST on all SPs of Duchess Residences to alleviate the impending cash deficits caused by the failure of 13 SPs to pay contributions to the management and sinking funds (“contributions”). These disagreements culminated in an exchange between the Appellant and the MC at the 2016 Annual General Meeting (“AGM”) where the alleged defamatory words were uttered. It is therefore appropriate to canvass the events that took place in late 2014 in relation to the failure of the 13 SPs to pay contributions to understand the entire context of the Suit.

Events prior to Annual General Meeting on 4 March 2016

In November 2014, the MCST commenced DC Suit No 3497 of 2014 against Duchess Walk Pte Ltd (“the Developer”), the developer of Duchess Residences, to recover arrears of contributions for 13 sub-divided lots in Duchess Residences. These 13 lots had been sold to various companies owned and/or controlled by Lee Tat Property Management (Pte) Ltd, and the SPs of these 13 lots (collectively referred to as “the 13 SPs”) had failed to pay contributions. It should be noted that the Appellant was not one of these 13 SPs.

The arrears gave rise to certain cash flow problems for the MCST. The total projected cash deficits were $138,400 in July 2015, $158,255 in August 2015, $180,410 in September 2015 and $200,465 in October 2015. As a result, on 12 June 2015, the Second Extra-ordinary General Meeting (“EGM”) of Duchess Residences was held and a special resolution (“the Special Levy resolution”) was passed to impose a one-time Special Levy (“the Special Levy”) to alleviate the MCST’s impending cash flow problems. The Special Levy was to be paid by all SPs in three instalments: one in July 2015, one in October 2015 and one in March 2016.

On 15 June 2015, the MCST sent the Appellant an invoice for the payment of the first Special Levy instalment. On 30 June 2015, the Appellant replied with an email to the MCST (“the June email”) highlighting the procedural and substantive errors in the imposition of the Special Levy and demanding that the MCST re-issue a Tax Invoice removing the payment of the Special Levy.

On 3 July 2015, judgment was granted to the MCST against the Developer in DC Suit No 3497 of 2014 and in September 2015, the MCST received payment of $261,055 from the 13 SPs (“the judgment sum”). However, orders of costs remained in contention at that point in time.

On 1 October 2015, the second instalment of the Special Levy fell due. The Appellant failed to pay both the first and the second instalments.

On 12 November 2015, the MC held a meeting to discuss whether the MCST’s receipt of the judgment sum should be disclosed to all the SPs. The First and Third Respondents were absent. At the meeting, the Second Respondent argued in favour of disclosure from the point of transparency and accountability.1 The MC, on the other hand, considered the disadvantages of disclosure, including the cost of convening another EGM to revoke the Special Levy, the unresolved issue of costs in DC Suit No 3497 of 2014, the risk that some SPs might not want to pay for further instalments of the Special Levy, and the fact that the Special Levy resolution had legal effect in any event until revoked.2 Eventually, the MC decided to withhold disclosure of the receipt of the judgment sum.

By a letter dated 2 December 2015 from the MCST’s solicitors, Wong Thomas & Leong, to the Appellant, the MCST demanded payment of $2,050.73 in respect of the Special Levy. On 15 December 2015, the Appellant replied by way of an email to Wong Thomas & Leong (“the December email”), stating that the Special Levy was “invalid” due to its violations of the BMSMA. In response, the MCST filed the writ of summons against the Appellant on 23 December 2015 in MC Suit No 24066 of 2015 to claim the Special Levy of $2,050.73 with interest and costs. The MCST obtained judgment against the Appellant on 7 March 2017 and the trial judge’s grounds of decision is found at MCST Plan No. 3720 v Gao Shuchao [2017] SGMC 10 (“MCST Plan No. 3720”).

On 22 December 2015, a notice was sent by the MCST to the SPs to remind them about the payment of the last instalment of the Special Levy.

On 13 January 2016, the MCST received payment of costs of $40,728.48 in relation to DC Suit No 3497 of 2014 from the Developer. On 1 February 2016, the Management Council Report for 2015/16 (“MC Report”) was released, disclosing the receipt of the judgment sum and the costs payment and indicating that the MC would be proposing a resolution at the March 2016 AGM to seek approval to revoke the payment of the final instalment of the Special Levy due in March 2016.

Annual General Meeting on 4 March 2016

It was during the AGM on 4 March 2016 (“the Fourth AGM”) that the Appellant said the words giving rise to the Suit. The Appellant attended the Fourth AGM but was not allowed to vote as he did not pay the two instalments of the Special Levy.3

According to the Statement of Claim, the words that the Respondents claimed to be defamatory (“the Defamatory Words”) are contained in the following extract of the Appellant’s statements during the Fourth AGM4:

Well in the original justification which was listed in the er Chairman’s message to the 2nd AGM er to the 2nd EGM, you said the er justification for er imposing the special levy was to make for the potential shortfall er created by the er arrears by the 13 units and the shortfall according to your calculation actually this include not only the shortfall of the arrears but also the legal fees in er pursuing the er owners to pay the arrears. It comes to a total of $303K. So what this means is that by September you have already received more than $260K which should cover more than enough of the arrears that would have occurred before October 2015. Now why didn’t you notify the SPs of the receipt of the payment at that time? Was the management council deliberately concealing the receipt of the payment or was the management council misrepresenting to the SPs that you have not received the payment? ...

… based on the facts. I could only draw possible 2 possible conclusions. One conclusion is there has been deliberate conceal. The other conclusion is that … There was a misrepresentation …

… Mr. Chairman, first of all. Regarding er the debate on whether or not this is a concealment or misrepresentation, I do not want to debate about this. I just want to … I just want to point out the fact that this was not disclosed immediately after you received … the payment in September …

… As I said, as I said I do not want to debate on that I just want to point out the fact that it was not disclosed immediately … after you received the payment …

[emphasis added]

During the Fourth AGM itself, after hearing explanations from the MC members on the late disclosure, the Appellant withdrew his use of the wording of misrepresentation and deliberate concealment but refused to apologise:5

Gao:

First of all, I want to thank the gentleman for giving the much clearer explanation. This really help to provide us with a clear picture which I appreciate. I think had the management council been so forthcoming as this gentleman from the beginning, we wouldn’t have this debate as to the choice of the wording. So, had you include this in page 25 of the...

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5 cases
  • Jasmin Nisban v Chan Boon Siang and others
    • Singapore
    • District Court (Singapore)
    • 31 Julio 2023
    ...other improper motive. In relation to the first aspect of malice [see 355 (a)], the High Court in Gao Shuchao v Tan Kok Quan and others [2018] SGHC 115 (“Gao Shuchao”) at [39] and [40] explained that: (m)alice would not be present where the defendant was merely careless, impulsive or irrati......
  • Govinda s/o Aramvally Gopalan v Teoh Chooi Sian
    • Singapore
    • District Court (Singapore)
    • 20 Mayo 2020
    ...evidence of express malice. As to what could be regarded as occasions of privilege, the High Court in Gao Shuchao v Tan Kok Quan & Ors [2018] SGHC 115 (“Gao Shuchao”) at [35] had referred to the following passage from Gatley on Libel & Slander (Sweet & Maxwell, 12th Ed, 2013) at paragraph 1......
  • Govinda S/O Aramvally Gopalan v Teoh Chooi Sian
    • Singapore
    • District Court (Singapore)
    • 30 Abril 2020
    ...on Libel & Slander (Sweet & Maxwell, 12th Ed, 2013) at para 14.9, was relied on by the High Court in Gao Shuchao v Tan Kok Quan & Ors [2018] SGHC 115 (“Gao Shuchao”) at [35]: “… the tendency of the courts has been to regard most privileged occasions under the common law as very broadly clas......
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    • Singapore
    • High Court (Singapore)
    • 12 Octubre 2020
    ...in certain situations” (Ezion at [48]). Both DHKW Marketing and Ezion were also referred to in Gao Shuchao v Tan Kok Quan an others [2018] SGHC 115 at [53]. The real difficulty with paragraph 25 of the Amended Reply is not the mere fact that the particulars post-date the publication of the ......
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