Golden Season Pte Ltd and others v Kairos Singapore Holdings Pte Ltd and another

• Judge: George Wei JC
• Judgment Date: 09 February 2015
• Neutral Citation: [2015] SGHC 38
• Docket Number: Suit No 888 of 2012
• Year: 2015
• Published date: 12 February 2015
• Hearing Date: 19 September 2013,26 September 2013,18 September 2013,20 September 2013,24 September 2013,31 March 2014,25 September 2013,27 September 2013
• Plaintiff Counsel: Leo Cheng Suan and Grismond Tien (Infinitus Law Corporation)
• Subject Matter: fair comment,Defamation,defamatory statements,justification,Passing off,Licenses,damages,COPYRIGHT,malicious falsehood,TORT,qualified privilege,Malice
• Defendant Counsel: Adrian Tan and Lim Siok Khoon (Stamford Law Corporation)
• Citation: [2015] SGHC 38
• Court: High Court (Singapore)

George Wei JC: Introduction

Suit 888 of 2012 was started by the Writ of Summons filed on 16 October 2012, and involved a claim by the Plaintiffs against the Defendants for defamation and/or malicious falsehood, and a counterclaim by the Defendants against the Plaintiffs for copyright infringement and passing off.

After hearing the parties and considering their arguments, I find that the Plaintiffs’ action in defamation succeeds in part. The Defendants’ counterclaim for copyright infringement succeeds. The Defendants’ counterclaim for passing off fails.

The Facts

There were a large number of factual disputes and issues which the parties raised. After introducing the parties, I set out a brief summary of the events leading up to the dispute first, and only later discuss my specific findings and further details where relevant to the legal issues before the Court.

The Parties

Golden Season Pte Ltd (“the First Plaintiff” or “Golden Season”) is a company incorporated in 1982 specialising in military and humanitarian relief products. These include ready meals, rescue and medical equipment and military battery assemblies. Designer.SG Pte Ltd (“the Second Plaintiff”) is a company specialising in contemporary home décor products. Ling Yen Wu (“the Third Plaintiff” or “Tedric”) is the sales director of the First Plaintiff and the design director of the Second Plaintiff (the plaintiffs collectively referred to as “the Plaintiffs”).

Whilst Golden Season is in the business of providing (selling) military and humanitarian relief products to organisations including non-governmental organisations (“NGO”) such as Mercy Relief, it is also apparent that they are active in various charitable causes. This includes donating relief products and providing services during disasters, for example, during the Szechuan Earthquake in 2007. Mercy Relief was not just a “customer” of Golden Season: it was also an NGO with whom Golden Season worked with on charitable causes connected with disaster relief. This included help with fund raising.

Kairos Singapore Holdings Pte Ltd (“the First Defendant” or “Kairos”) was incorporated in July 2010 and provides inflatable boats, marine products and yacht charter services. The inflatable boats were suitable for activities such as fishing as well as for use in flood disaster relief work. Roy Soeigiarto (“the Second Defendant” or “Roy”) is the director of the First Defendant (the defendants collectively referred to as “the Defendants”).

Events leading to the dispute

This dispute was set against the backdrop of the 2011 monsoon season which caused severe and prolonged flooding in Thailand. This resulted in an urgent need for rescue equipment including inflatable boats and related gear to assist the disaster relief effort.

The First Order and donation to Mercy Relief

On 12 October 2011, Tedric contacted Roy (through a message on an internet site) expressing his interest to purchase inflatable boats and other suitable equipment for donation purposes in aid of the floods in Thailand. For convenience, the message is set out below:11 AB pp 58-59

Hello, our company is intending to donate inflatable boats for the recent floods in Thailand. May i [sic] know what you have in stock for supply? We would also appreciate if you are able to quote your best prices as this is intended for disaster relief.

It would appear that Tedric had initially made the purchase representing the Second Plaintiff, but later decided that it would be the First Plaintiff who would be making the purchase. In any case, it is not disputed that the purpose of the boats (ie, for use in the Thailand floods) was made known to the Defendants. After some correspondence, Tedric placed an order on 13 October 2011 for 16 inflatable boats (comprising 10 KB 430 boats and 6 KB 528XL boats) and two outboard motors (comprising one 5.8hp motor and one 10hp motor) (“the First Order”)21 AB p 61. Golden Season paid S$ 23,844 to Kairos for the first order. Along with the first order, Roy also donated two additional KB 430 boats, one used generator and two used chainsaws (“the Kairos Donated Items”).

There were two other purchases of boats from the Defendants, which will be elaborated on later, but in total, the Plaintiffs would donate 18 inflatable boats (not including the two boats that the Defendants donated) and 4 motors to Mercy Relief.

The Kairos Donated Items were also passed on to Mercy Relief. Mercy Relief later acknowledged these donations in a letter dated 21 October 2011 addressed to Tedric and the First Plaintiff (“the Acknowledgement Letter”). It is not disputed that the Acknowledgement Letter was not made known to the Defendants until sometime later. As will be seen, this was the cause of much unhappiness.

The inflatable boats stocked and sold by Kairos were sourced from a Chinese Original Equipment Manufacturer (“OEM”). The boats were sold by Kairos under the Kairos Mark comprising the name “Kairos Inflatable” set out within a fish symbol. The term “Inflatable Sampans” was also used in marketing the boats.

The meeting at the Plaintiffs’ office and the Exclusive Reseller Agreement

The parties continued to correspond with each other primarily through email. The contents of these emails generally entailed discussions of prices and features of the various boat models that the Defendants offered.

In the midst of such discussions, a meeting between the Plaintiffs and the Defendants was arranged. While parties are not certain at which date this meeting occurred, it is clear that it occurred before 28 October 2011, the day a training session on how to operate the Kairos boats was held (see below at [20]).

During this meeting, the Plaintiffs allege that they entered into an agreement with the Defendants, whereby the Plaintiffs would become the exclusive reseller of the Defendants’ boats, outboard motors and electrical pumps (at least to humanitarian organisations) (the “Exclusive Reseller Agreement”). It is also during this meeting that the Plaintiffs allege that the Defendants had given the Plaintiffs permission to use photos of the boats owned by the Defendants, and even allowed the Plaintiffs to remove the logo of the Defendants on such photos so that the Plaintiffs could market the goods as their own. Furthermore, the Plaintiffs also claim that the Defendants agreed to remove their prices from the Internet and not to publish their prices anymore.

Clearly, what was agreed upon during this meeting is an issue of dispute between the parties. This will be especially relevant for the purposes of the Defendants’ counterclaim in copyright infringement and passing off.

The Second and Third Order

Tedric later placed a second order on 27 October 2011 for two KB 528XL boats, one 5.8HP motor, and one 10 HP motor (“the Second Order”)3See AB Vol 1 p83. Finally, on 31 October 2011, Tedric made a final order of ten more inflatable boats (comprising eight KS 320 boats and two KS 330 boats) (“the Third Order”)4See AB Vol 1 p 95. Including the first order, Tedric purchased 28 boats and four motors from the Defendants in total: 10 KB 430 boats (all during the First Order); 8 KB 528XL boats (six during the First order and two during the Second order); 8 KS 320 boats (all during the Third Order); 2 KS 330 boats (all during the Third Order); 2 5.8hp motors (one during the First Order and another during the Second Order); and 2 10hp motors (one during the First Order and another during the Second Order).

Although the Plaintiffs eventually purchased a total of 28 boats from the Defendants, only 18 of these were donated to Mercy Relief as mentioned above. According to the Plaintiffs, the remaining boats were “earmarked for [Mercy Relief]’s future missions and were warehoused”5SOC para 9 by the Plaintiffs. The Defendants claim that they were unaware of this, and were under the impression that all the boats would immediately be deployed in the Thailand floods.

Up to this point, there is also dispute as to whether discounts were offered and provided by Roy, and if they were, the reason why these discounts were offered. What is also in dispute is whether Roy knew of the existence of Mercy Relief and that the boats were intended for use by Mercy Relief (as opposed to simply for flood relief work) before 28 October 2011. This will be dealt with later.

The training session on 28 October 2011

On 28 October 2011, the Defendants carried out a training session to demonstrate how to operate the Defendants’ boats and other equipment. This training session was arranged by the Plaintiffs. However, it was attended by Mr Francis Lee (“Francis”), previously the Strategic and Partnership Director of Mercy Relief. During this training session, Francis took the following items from the Defendants: 1 portable electric pump GP80DT (“the electric pump”); 1 bale of rope of 100 metres length (“the rope”); and 4 units of LED waterproof blinker lights (“the LED blinker lights”).

According to the Defendants, it was agreed that Francis would be buying the rope “through Golden Season”. This would mean that Mercy Relief would pay Golden Season, and after which, Golden Season would pay the Defendants for the price of the rope. For the remaining two items, it is in dispute as to whether or not the items were on loan to Mercy Relief, or whether the same payment arrangements as the rope had been agreed upon. Whatever it is, the Defendants claim that the Plaintiffs never paid them for any of the above items.

The chain of emails after the training session

After the training session, Roy sent the Plaintiffs an invoice on 31 October 2011 billing the Plaintiffs for the electric pump, the rope and the LED blinker lights. Roy followed up with an email dated 1 November 2011 mentioning that Francis had taken the electric pump to Thailand.6ABD 103

On 2 November 2011, a...