Infonation International Limited v Anthony Thomas Price

• Judge: Tan Puay Boon
• Judgment Date: 20 February 2017
• Neutral Citation: [2017] SGDC 42
• Citation: [2017] SGDC 42
• Court: District Court (Singapore)
• Published date: 03 March 2017
• Docket Number: District Court Suit No 3828 of 2015, Registrar’s Appeal No HC/RAS 1 of 2017
• Plaintiff Counsel: Mr Chenthil Kumar Kumarasingam (M/s Oon & Bazul LLP)
• Defendant Counsel: Mr Natverlal Deepak (M/s Crown Juris Law LLC)
• Subject Matter: Credit and Security,Money and Moneylenders,Illegal moneylending,Civil procedure,Setting aside default judgment
• Hearing Date: 09 January 2017,25 November 2016,20 February 2017,03 January 2017

District Judge Tan Puay Boon: The Plaintiff’s claim

The Plaintiff (Infonation International Limited) is a company incorporated in Hong Kong. The Defendant (Anthony Thomas Price) was a business associate of the Plaintiff.

This is an action commenced by the Plaintiff against the Defendant to recover the outstanding balance of two loans which totalled US$40,000 it made to the Defendant under two written loan agreements at the end of 2012, and a commission of US$4,400 (the Commission) which it paid to the Plaintiff in the middle of 2013 in anticipation of him obtaining a sponsor for one of the Plaintiff’s events, which he eventually did not succeed in doing.

Under the 1st Loan Agreement dated 5 November 2012, the Plaintiff transferred US$25,000 to the Defendant’s Singapore bank account on 8 November 2012 as a personal loan to him. The sum was to be repaid by 8 February 2013, failing which the Defendant had to pay contractual interest of 2% per month on the amount owing after that date. The Defendant also had to fully indemnify the Plaintiff for all costs, fees and expenses which it incurred for enforcing the 1st Loan Agreement.

The Defendant paid US$5,000 to the Plaintiff on 11 June 2014 in partial satisfaction of the 1st Loan.

Under the 2nd Loan Agreement dated 18 December 2012, the Plaintiff transferred US$15,000 to the Defendant’s Singapore bank account on 18 December 2012 also as a personal loan to him. Besides the date of repayment being 15 March 2013, the 2nd Loan Agreement had the same terms set out in [3] above otherwise.

The present suit was filed on 18 December 2015 when no payment was made after various demands were made to the Defendant.

The Defence and Counterclaim

In the Defence and Counterclaim filed on 29 January 2016 by the Defendant’s former solicitors, the Defendant did not dispute the two loan agreements and that he had received the moneys. However, he maintained that there were oral representations to him that the Plaintiff would not seek any contractual interest or indemnity costs against him.

The Defendant averred that “… The Plaintiff was aware and agreed that the only guaranteed payback of the loan would be from commercial offsets of joint business with the Defendant and any personal repayment could only happen at the election of the Defendant as personal funds were available and there were no off-sets owed by the Plaintiffs.”¹

The Defendant also averred that from June 2012 to the end of July 2013, he had invested over 3,000 man hours (valued at greater than US$600,000) and out of pocket travel expenses to promote and market the Plaintiff’s business ventures, helping to structure new business outlets, and introducing multiple (more than 25) potential commercial relationships that would bring benefits to both parties. But the Plaintiff had misrepresented the ability and intentions of the Plaintiff and its membership/clients to close financial transactions that would have properly and adequately compensated the Defendant’s investment, and offset any claims made by the Plaintiff against him. Moreover, the Defendant provided to the Plaintiff valuable intellectual property, editorial content and testimonials without compensation, which it continued to utilise to attract new business from both commercial and membership clients.²

Further, the Defendant averred that from December 2012 to December 2013, the Plaintiff damaged his commercial relationships through circumvention and misrepresentation, resulting in the immediate loss of income for both parties, and long term loss of commercial income that he would derive from other than his relationship with the Plaintiff. An example he gave was when the Plaintiff circumvented the Defendant’s relationship with a resort company that caused the cancellation of a contract estimated to be US$200,000 to US$1M to be shared equally between both parties.³

The Defendant added that since July 2013, the Plaintiff had continued to gain financial and other benefits from commercial relationships that he established without compensating him the residual commission of 20% of the gross revenue generated. He listed a non-exhaustive list of 5 companies where this took place.⁴

The Defendant also alleged that the Plaintiff took vindictive action to harm his commercial interests when it took action between 23 and 25 December 2015 to block his access to his company e-mail and company data that were hosted by the Plaintiff’s IT service provider. This has cost him over 100 hours of his time to attempt to restore the data and contacts, and is creating ongoing damages worth potentially hundreds of thousands of US dollars as commercial parties seeking business opportunities or negotiating deals are not able to contact him. He further said that the Plaintiff had prevented his rightful use of “The Private Network” branding which the Plaintiff has beneficial ownership of, resulting in losses and damages to him.⁵

The Defendant sought S$200,000 as damages from the Plaintiff as losses he suffered due to the Plaintiff’s action.

The Reply and Defence to Counterclaim

In the Reply and Defence to Counterclaim, the Plaintiff maintained that the two loan agreements were standalone agreements, and independent of any relationship or other arrangement between the parties.

The Plaintiff averred that at the material time, the Defendant was a business associate of the Plaintiff, and that was why it had agreed to provide the 1st Loan to him at his request when he was alleging facing financial difficulties then. The 1st Loan Agreement provided that it was to have been repaid within 3 months. It was for the same reason that the 2nd Loan Agreement was entered into when the Defendant again approached the Plaintiff the following month. As before, the loan was to be repaid within 3 months.

The Plaintiff said that at all times, the loan agreements were agreed and understood between the parties that they were independent of any relationship or other arrangement between the parties. Further, there was no agreement or representation by the Plaintiff that it would waive or not enforce any of the express terms of the loan agreements, or that the Defendant was not required to comply with them.

The Plaintiff added that the Defendant had on multiple occasions admitted without any qualification the principal sums in the loan agreements, and also the Commission.⁶ These included signing an Audit Confirmation of Account, issued by the Plaintiff’s accountant, admitting that he owed the loan sums, and various e-mail from the Defendant acknowledging the loans.

From April 2012 to December 2015 the Defendant was nominally a business associate of the Plaintiff, and tried to generate business opportunities for the Plaintiff in the hope of receiving a share of revenue successfully generated. Parties had then agreed that the Plaintiff would pay to the Defendant, as commission, 20% of all revenue successfully earned by the Plaintiff. To support the Defendant’s efforts to generate incremental revenue for it, the Plaintiff had permitted him to use its company name and web domain “The Private Network”, a trademark of the Plaintiff. It also created an e-mail account for the Defendant and granted him access to the account which was hosted within the Plaintiff’s corporate e-mail account.

The Plaintiff maintained that it owes no commission to the Defendant at all, and pointed out that he had never claimed to be entitled to any outstanding payment from the Plaintiff or made any demand for such payment before the filing of the Defence and Counterclaim.

The Plaintiff ceased all business relationships with the Defendant in December 2015. He was informed by e-mail at 11.16 pm on 22 December 2015 that his access to the e-mail account will be withdrawn, and had until 3.00 pm on 25 December 2015 to transfer his e-mail. Further, he was to stop using the domain name “The Private Network” by 29 December 2015. The access was eventually withdrawn at 10.00 am on 25 December 2015.

The Plaintiff denied the Defendant’s counterclaim of S$200,000.

The Plaintiff’s application for summary judgment

The application for summary judgment was dealt with by a Deputy Registrar on 27 April 2016. At this time, the defences of illegal moneylending and vitiating factors were not yet raised by the Defendant, whose only defence was that the loans were to be paid by off-setting commissions due to him. This was a defence that could only be considered based on evidence that the Defendant has to put forward. None was, as the show cause affidavit was not filed, and the averments in the Defence & Counterclaim were unclear. The Defendant, who had filed a Notice to Act in Person on 25 April 2016, also did not attend. Judgment was therefore entered for the Plaintiff with interest at the contractual rate for the unpaid sums under the loan agreements. Costs were fixed at $4,000 all in.

The Defendant’s application to set aside the summary judgment

The Defendant’s application to set aside the summary judgment was heard by another Deputy Registrar over 3 sessions on 16 and 30 August, and 5 September 2016. When the Defendant applied to set aside the judgment, the affidavit filed by him stated that the Plaintiff had lent money without being licensed in Hong Kong and Singapore, and blamed his previous solicitors for not including these and other defences.⁷ He also blamed his previous solicitors for not preparing his show cause affidavit.⁸ However, nothing was placed before the court on what GJC’s response was, or whether their response was even solicited before these affidavits were filed. The Deputy Registrar dismissed the application, and the Defendant appealed.

The appeal

The Defendant raised a number of issues on appeal that were similar to those raised before the Deputy Registrar. These are dealt with below.

Whether the O.14 judgment is irregular

The entire set of...