Gomez, Kevin Bennett v Bird & Bird ATMD LLP and another

• Jurisdiction: Singapore
• Judge: Belinda Ang Saw Ean JCA
• Judgment Date: 06 December 2022
• Neutral Citation: [2022] SGHC(A) 42
• Published date: 09 December 2022
• Docket Number: Civil Appeal No 69 of 2021
• Plaintiff Counsel: The appellant in person
• Defendant Counsel: Anparasan s/o Kamachi and Vinodhan Gunasekaran (WhiteFern LLC)
• Subject Matter: Civil Procedure,Appeals,Admission of further evidence on appeal,Leave to raise new points,O 56A r 9(5)(b),of the Rules of Court (2014 Rev Ed),Legal Profession,Professional conduct,Tort,Negligence,Breach of duty,Causation,Damages,Res judicata,Issue estoppel
• Hearing Date: 26 August 2022
• Court: High Court Appellate Division (Singapore)

Hoo Sheau Peng J (delivering the judgment of the court): Introduction

This is an appeal by the appellant against the decision of the High Court Judge (the “Judge”) in HC/S 198/2019 (“Suit 198”), dismissing his claim against the respondents for professional negligence. The first respondent is a law firm and the second respondent was its partner at the material time. The appellant was a former client of the respondents.

Background

The background facts are stated in the Judge’s grounds of decision in Gomez, Kevin Bennet v Bird & Bird ATMD LLP and another [2021] SGHC 230 (the “GD”) at [2]–[43]. The brief facts are as follows.

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.

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 for “[o]ver-riding commissions” for April and May 2008, with damages to be assessed for “[f]ull commissions from June to July 2008”.¹ 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).

Many events transpired in relation to the enforcement of the October 2011 Judgment, and we highlight only the material ones.

On 18 February 2012, the respondents served on Mr Kuhadas a statutory demand (the “First Statutory Demand”) for the Judgment Sum with interest.² On 20 June 2012, the respondents filed a bankruptcy application against Mr Kuhadas (the “First Bankruptcy Application”).³ This was withdrawn on 19 July 2012⁴ because it was filed a day or two after the First Statutory Demand had lapsed.⁵

On 18 July 2012, the respondents served a second statutory demand on Mr Kuhadas.⁶ On 30 August 2012, the appellant filed a second bankruptcy application against Mr Kuhadas (the “Second Bankruptcy Application”).⁷ 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 the following e-mail to Mr Kuhadas (the “22 February 2013 E-mail”):⁸

Dear Sir,

In response to your e-mail:

1. The first tranche of S$25,000 shall be paid to us by no later than 1 March 2013 at 4 p.m. 2. The second tranche of S$25,000 shall be paid to us upon sale of of [sic] your unit in Ballota Park, with interest at the rate of 10% p.a. from 1 March 2013 until date of full payment. 3. We shall continue to retain your cheque of S$50,000 as security for the above payment. 4. You shall sign and return the properly and duly executed documents for the issuance of new Magnetron shares by today, 4 p.m.

In consideration of the same, our client is agreeable to withdraw the bankruptcy application [referring to the Second Bankruptcy Application] once items 1 and 4 have been done, and you have unequivocally given your agreement to item 3.

For completeness, we digress to explain the term in paragraph 4 of the 22 February 2013 E-mail in relation to the “Magnetron shares”. Sometime in October 2012, certain Magnetron shares belonging to Mr Kuhadas were seized pursuant to a writ of seizure and sale. Mr Kuhadas claimed to have lost the share certificates. Therefore, paragraph 4 provided that in his capacity as director of Magnetron, Mr Kuhadas was to issue new “replacement” shares to facilitate the enforcement process. As it was, on the same day, at 3.53pm, Mr Kuhadas replied by e-mail, enclosing the documents for the issuance of new Magnetron shares and indicating his agreement to the other items.⁹

It is 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 is disputed whether that agreement constituted a full and final settlement of the Judgment Sum, and that became one of the primary issues before the Judge and the central issue in the appeal. It should be noted that Mr Kuhadas did not testify in the proceedings below before the Judge. However, as we will explain below (at [11]‒[12]), Mr Kuhadas’ position in December 2013 and thereafter in bankruptcy proceedings brought by the appellant against him in other courts was that the 22 February 2013 Agreement had been a full and final settlement, and that his fulfilment of its terms discharged him from any further obligation to pay the balance of the Judgment Sum. In contrast, during that period, the appellant disagreed with Mr Kuhadas, and took the position that Mr Kuhadas’ fulfilment of the terms of the 22 February 2013 Agreement did not effect such a discharge. Notably, there was no negotiation on the complete discharge of the Judgment Sum. Instead, the negotiation was limited to the appellant withdrawing the Second Bankruptcy Application upon Mr Kuhadas’ fulfilment of the terms of the 22 February 2013 Agreement in order to facilitate the sale of a property at Ballota Park (the “Ballota Park property”) co-owned by Mr Kuhadas, his wife and his sister-in-law. The bankruptcy proceedings against Mr Kuhadas were an impediment to the sale. While this remains the respondents’ stance in these proceedings, the appellant has departed from his earlier position.

In the event, Mr Kuhadas fulfilled the terms of the agreement, and made the payments amounting to $50,000. On 7 March 2013, leave was granted for the appellant to withdraw the Second Bankruptcy Application. The second respondent informed Mr Kuhadas of this on the same day by way of an e-mail (the “7 March 2013 E-mail”).¹⁰

In November 2013, the appellant engaged a different solicitor, Mr Vijai Parwani (“Mr Parwani”) from Parwani Law LLC, to issue another statutory demand against Mr Kuhadas (the “Third Statutory Demand”).¹¹ On 11 December 2013, Mr Kuhadas wrote to the second respondent. Referring to the 7 March 2013 E-mail, 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.¹²

The appellant registered the October 2011 Judgment (see [4] above) in the Supreme Court of New South Wales on 14 February 2014¹³ and served a bankruptcy notice on Mr Kuhadas on 4 March 2014 (the “Australian Bankruptcy Notice”).¹⁴ Mr Kuhadas successfully applied to the Federal Circuit Court of Australia (“FCC”) to set aside the Australian Bankruptcy Notice.¹⁵ In its judgment dated 30 May 2014 (the “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]”.¹⁶ For the hearing before the FCC, the appellant was represented by his solicitor in Australia, Mr Nicholas James Christiansen (“Mr Christiansen”) from Sparke Helmore Lawyers. Thereafter, acting in person, the appellant appealed to the Federal Court of Australia (respectively, the “Australian Appeal” and the “FCA”). The Australian Appeal was dismissed on 5 June 2015,¹⁷ with the FCA adopting largely the same reasoning and coming to the same conclusion as the FCC.

Meanwhile, on 8 April 2014, the Third Statutory Demand was served on Mr Kuhadas by Parwani Law LLC.¹⁸ Citing the FCC Judgment in support, Mr Kuhadas then applied to set aside the Third Statutory Demand.¹⁹ On 18 July 2014, the Assistant Registrar (“AR”) dismissed the application.²⁰ On 7 August 2014, Parwani Law LLC filed the appellant’s third bankruptcy application against Mr Kuhadas (the “Third Bankruptcy Application”). However, Mr Kuhadas appealed against the decision of the AR dismissing his setting aside application. On 1 September 2014, Chan Seng Onn J (as he then was) allowed the appeal and set aside the Third Statutory Demand.²¹ For the appeal before Chan J, the appellant acted in person.

On 21 February 2019, the appellant commenced Suit 198 against the respondents, alleging professional negligence relating to the enforcement of the October 2011 Judgment.

The decision below

As identified by the Judge, based on the Statement of Claim (Amendment No 1) (the “SOC”),²² the particulars of negligence pleaded by the appellant concern three aspects of the second respondent’s conduct: That the second respondent failed to apply for the taxation of costs of Suit 700 (see paras 10 to 12 of SOC and GD at [44(a)]). That the second respondent had “carelessly allowed” the First Statutory Demand to lapse (see [6] above) and provided Mr Kuhadas with a “window of opportunity” to sell two of his properties, namely, the “Thane St Property” and the “Changi Court Property”, which were sold on 23 May 2012 and 29 May 2012 respectively (see paras 13 to 16 of the SOC and GD at [44(b)]); and That the 22 February 2013 E-mail was “poorly drafted”, failed to communicate the appellant’s intentions to Mr Kuhadas “more clearly”, and “ran contrary” to the appellant’s instructions to the second respondent to “allow Mr Kuhadas the freedom to sell Ballota Park without encumbrances, and to receive Mr Kuhadas’ share of the proceeds (i.e. an aggregate sum of S$50,000) from the sale … and then to recommence bankruptcy proceedings against Mr Kuhadas so that the Official Assignee can investigate the sale of Thane St and Changi Court, among other things” (see paras 21 to 25 of the SOC and GD at [44(c)]). In this judgment, we refer to this as the “Negligent Drafting Claim”. Finally, the...