Gomez, Kevin Bennett v Bird & Bird ATMD LLP

JudgeBelinda Ang Saw Ean JCA,Kannan Ramesh JAD,Hoo Sheau Peng J
Judgment Date06 December 2022
Docket NumberCivil Appeal No 69 of 2021
CourtHigh Court Appellate Division (Singapore)
Gomez, Kevin Bennett
Bird & Bird ATMD LLP and another

Belinda Ang Saw Ean JCA, Kannan Ramesh JAD and Hoo Sheau Peng J

Civil Appeal No 69 of 2021

Appellate Division of the High Court

Civil Procedure — Appeals — Admission of further evidence on appeal — E-mails exchanged after decision below — Admissibility of evidence occurring after date of decision appealed against — Section 41(5) Supreme Court of Judicature Act 1969 (2020 Rev Ed)

Civil Procedure — Appeals — Whether appellant should be allowed to raise unpleaded claims on appeal

Legal Profession — Professional conduct — Professional negligence — Solicitor drafting e-mail on behalf of client to counterparty leading to agreement between parties — Whether e-mail drafted negligently — Whether solicitor negligent in failing to provide advice on available courses of action relating to such agreement — Whether solicitor negligent in failing to rectify counterparty's understanding of agreement

Res Judicata — Issue estoppel — Appellant alleging issues in appeal dealt with in prior foreign decisions — Whether issue estoppel arose

Tort — Negligence — Breach of duty — Solicitor drafting e-mail on behalf of client to counterparty leading to agreement between parties — Whether solicitor guilty of any error which no reasonably competent solicitor would have made

Held, dismissing the appeal:

The Negligent Advice Claim

(1) The Negligent Advice Claim was not pleaded by the appellant. It was a new claim with distinct allegations of negligence made against the respondents and did not form part of the appellant's case below. Being an unpleaded claim, it was not open to the appellant to raise it in the appeal without having obtained leave to amend his pleadings to introduce the claim, which was not done. The appellant's attempt to introduce this claim was therefore rejected: at [37] and [41].

The Negligent Drafting Claim

(2) It was settled law that in carrying out the work instructed by a client, a solicitor was expected to exercise the care and skill of a reasonably competent solicitor in discharging his duties under his retainer. It was therefore not disputed that the second respondent had owed such a duty of care to the appellant: at [43].

(3) In respect of whether the second respondent had breached his duty of care, the material issue was whether the second respondent had failed to discharge the standard of care expected of a reasonably competent and diligent solicitor in the drafting of the 22 February 2013 E-mail. The High Court judge (the “Judge”) rightly noted that it was unnecessary for her to adjudicate on the legal effect of the 22 February 2013 Agreement: at [44], [45] and [47].

(4) Foreign judgments were capable of giving rise to issue estoppel where three elements were met: (a) the existence of a foreign judgment that was capable of being recognised in the jurisdiction in which issue estoppel was invoked; (b) identity of issues; and (c) identity of parties: at [49].

(5) The findings made by the FCC and the FCA on the construction of the 22 February 2013 Agreement did not bind the Singapore courts. First, issue estoppel did not arise because the parties to the present proceedings were clearly not the same as the parties in the Australian proceedings. Second, the findings made by the FCC on the construction of the 22 February 2013 Agreement, which were largely upheld by the FCA, were not strictly necessary to its decision on Mr Kuhadas's application to set aside the Australian Bankruptcy Notice. In addition, the FCC did not have a complete picture of the available evidence, as compared to that adduced before this court: at [50] to [53].

(6) Chan J's decision did not assist the appellant's case. For the purpose of the appeal against the AR's decision to not set aside the Third Statutory Demand, Chan J would only have determined that there was a triable issue as to the debt. There was certainly no indication that he construed the 22 February 2013 Agreement to be a full and final settlement of the Judgment Sum. Moreover, it appeared that even the appellant had previously believed that Chan J's decision had such limited consequences: at [54] and [55].

(7) The Judge did not err in relying on the Preceding Correspondence in arriving at her finding that the second respondent did not breach his duty of care. She examined the Preceding Correspondence only to determine the key question of whether the second respondent had breached the standard of care, and not to construe the 22 February 2013 Agreement: at [56] and [57].

The Negligent Omission Claim

(8) Like the Negligent Advice Claim, the Negligent Omission Claim was not pleaded. For the same reasons given in respect of rejecting the former, the court rejected the appellant's attempt to introduce this new claim: at [80].

Conclusion on the negligence claim

(9) The appellant's claim in negligence against the second respondent was not established and the liability of the first respondent therefore did not arise for consideration: at [83].

Admissibility of the Category 3 documents

(10) The Category 3 documents comprised e-mails exchanged after the Judge dismissed the appellant's claims in Suit 198 on 30 June 2021, so it remained for this court to rule on the admissibility of the Category 3 documents. The contents of these documents were not relevant to the appeal and these documents were therefore not admitted: at [34], [87] and [88].

Case(s) referred to

BNX v BOE [2018] 2 SLR 215 (folld)

Cristian Priwisata Yacob v Wibowo Boediono [2017] SGHC 8 (folld)

JWR Pte Ltd v Edmond Pereira Law Corp [2020] 2 SLR 744 (refd)

Lie Hendri Rusli v Wong Tan & Molly Lim [2004] 4 SLR(R) 594; [2004] 4 SLR 594 (folld)

Man Financial (S) Pte Ltd v Wong Bark Chuan David [2008] 1 SLR(R) 663; [2008] 1 SLR 663 (folld)

Merck Sharp & Dohme Corp v Merck KGaA [2021] 1 SLR 1102 (folld)

Pilgrim Private Debt Fund v Asian Appraisal Co Pte Ltd [2022] SGHC 10 (refd)

Sandar Aung v Parkway Hospitals Singapore Pte Ltd [2007] 2 SLR(R) 891; [2007] 2 SLR 891 (refd)

Tat Seng Machine Movers Pte Ltd v Orix Leasing Singapore Ltd [2009] 4 SLR(R) 1101; [2009] 4 SLR 1101 (folld)

V Nithia v Buthmanaban s/o Vaithilingam [2015] 5 SLR 1422 (folld)

Wei Ho-Hung v Lyu Jun [2022] SGHC(A) 30; [2022] 2 SLR 1066 (folld)


In HC/S 700/2008 (“Suit 700”), the respondents acted for the appellant who claimed against Mr Kuhadas Vivekananda (“Mr Kuhadas”) and Magnetron Insurance & Financial Services Pte Ltd (“Magnetron”) for commissions that Magnetron had failed to pay the appellant when he was previously working for Magnetron. Mr Kuhadas was the managing director and a major shareholder of Magnetron. The first respondent is a law firm and the second respondent was its partner at the material time.

On 1 April and 28 April 2011, the appellant obtained default judgment against Mr Kuhadas and Magnetron respectively for the sum of $140,967.87. Subsequently, the total damages owed to the appellant were assessed to be $1,226,289.70, and judgment for this amount was granted against Mr Kuhadas and Magnetron jointly and severally on 28 October 2011 (the “Judgment Sum” and the “October 2011 Judgment” respectively).

On 18 February 2012, the respondents served on Mr Kuhadas a statutory demand (the “First Statutory Demand”) for the Judgment Sum with interest. On 20 June 2012, the respondents filed a bankruptcy application against Mr Kuhadas. This was withdrawn on 19 July 2012 because it was filed a day or two after the First Statutory Demand had lapsed.

On 18 July 2012, the respondents served a second statutory demand on Mr Kuhadas. On 30 August 2012, the appellant filed a second bankruptcy application against Mr Kuhadas (the “Second Bankruptcy Application”). Negotiations then took place between Mr Kuhadas and the second respondent (on behalf of the appellant), with an exchange of e-mail correspondence leading up to 22 February 2013 (the “Preceding Correspondence”). On 22 February 2013 at 11.36am, the second respondent sent an e-mail to Mr Kuhadas (the “22 February 2013 E-mail”) in which Mr Kuhadas agreed to, inter alia, pay a total of $50,000 in consideration for the appellant to “withdraw the [Second Bankruptcy Application]”.

It was not in dispute that an agreement was reached between the appellant and Mr Kuhadas, on the terms contained in the 22 February 2013 E-mail (the “22 February 2013 Agreement”). However, it was disputed whether that agreement constituted a full and final settlement of the Judgment Sum. Mr Kuhadas fulfilled the terms of the agreement. On 7 March 2013, leave was granted for the appellant to withdraw the Second Bankruptcy Application.

In November 2013, the appellant engaged a different solicitor, Mr Vijai Parwani from Parwani Law LLC, to issue another statutory demand against Mr Kuhadas (the “Third Statutory Demand”). On 11 December 2013, Mr Kuhadas wrote to the second respondent. He claimed that he did not know that the appellant had not, by the 22 February 2013 Agreement, given him an unconditional discharge of the Judgment Sum.

On 14 February 2014, the appellant registered the October 2011 Judgment in the Supreme Court of New South Wales and served a bankruptcy notice on Mr Kuhadas on 4 March 2014 (the “Australian Bankruptcy Notice”). Mr Kuhadas successfully applied to the Federal Circuit Court of Australia (“FCC”) to set aside the Australian Bankruptcy Notice. In its judgment of 30 May 2014 (“FCC Judgment”), the FCC reasoned that Mr Kuhadas had at the very least “raised an arguable case that the effect of [the 22 February 2013 Agreement] was to discharge Mr Kuhadas of his obligation to satisfy the [October 2011 Judgment]”. Thereafter, the appellant appealed to the Federal Court of Australia (the “FCA”). The appeal was dismissed on 5 June 2015.

Meanwhile, the Third Statutory Demand was served on Mr Kuhadas by Parwani Law LLC on 8 April 2014. Citing the FCC Judgment in...

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