Isabel Redrup Agency Pte Ltd v A L Dakshnamoorthy and others and another suit

• Jurisdiction: Singapore
• Judge: Lee Seiu Kin J
• Judgment Date: 03 March 2016
• Neutral Citation: [2016] SGHC 30
• Date: 03 March 2016
• Docket Number: Suit Nos 755 and 381 of 2011
• Published date: 23 February 2017
• Plaintiff Counsel: Yeoh Oon Weng Vincent (Malkin & Maxwell LLP),Tay Yong Seng and Teh Shi Ying (Allen & Gledhill LLP)
• Hearing Date: 21 August 2015,19 August 2015,20 August 2015,26 August 2015,30 October 2015,28 August 2015,25 August 2015,27 August 2015,18 August 2015
• Defendant Counsel: Suresh s/o Damodara (Damodara Hazra LLP)
• Court: High Court (Singapore)
• Subject Matter: Tort,Damages,Qualified privilege,Defamation,Agency,Justification,Absolute privilege,Defamatory statements,Estate agents,Conspiracy,Malicious falsehood,Injunction

Lee Seiu Kin J: Introduction

This matter concerns two suits that arise largely out of the same set of facts, and were consolidated with the consent of the parties. Broadly speaking, Suit No 381 of 2011 (“S 381”) concerns claims in defamation, malicious falsehood and conspiracy. Suit No 755 of 2011 (“S 755), at its core, is a claim for commission for the collective sale of properties.

Background facts Dramatis personae

The sole plaintiff in S 755, who is also the first plaintiff in S 381, is Isabel Redrup Agency Pte Ltd (“Isabel Redrup”). It carries on the business of estate agency, and specialises in heritage and older properties. Its managing director is Ms Susan Eleanor Prior (“Susan”), who is the second plaintiff in S 381.

The first to eighth and 11th to 12th defendants in S 755 were the owners of the properties formerly located at 110, 112, 114, 116, 118, 120, 122 and 126 Sophia Road. The property located at 124 Sophia Road, which is also the subject of this dispute, was legally owned by the ninth and tenth defendants, who held it for the benefit of the 14th defendant, the Sikh Business Association (“the SBA”). The SBA was represented in the present proceedings by Mr Balbeer Singh Mangat, the President of the SBA, and Mr Bhupinder Singh, who was the Vice-President of the SBA at the material time. I shall refer to the Sophia Road properties as “the Properties” and their respective owners (legal or beneficial) as “the Owners”.

The 13th defendant in S 755, who is also the 1st defendant in S 381, is Mr Simon Loh (“Simon”). He is a businessman who deals in building and construction supplies, and was the original owner of 120 Sophia Road, having first purchased the property in 1991. In 1998, 120 Sophia Road was sold to his sister, who is the 6th defendant in S 755, and her husband. Notwithstanding the transfer of his title in 120 Sophia Road, Simon continued to live in the property from 2000 to 2011, and plays an integral role in the present suits by virtue of his appointment as the representative of the Owners in the negotiations over the sale of the Properties.

Ms Michelle Yong (“Michelle”) is a director of Aurum Land Pte Ltd (“Aurum”), a Singapore-registered company in the business of developing residential property. Aurum was the party that eventually purchased the Properties from the Owners.

The Properties

The Properties comprise a row of nine shophouses located along Sophia Road. Immediately adjacent to the Properties was Lot 99987V of Town-Subdivision 19 – an L-shaped plot of land of approximately 505 square metres (“the L-shaped Lot”). Just behind that was Lot 99988P – a triangular- plot of land of approximately 270 square metres (“the Triangular Lot”). I refer to these plots of land collectively as “the Lots”. The site plan showing the Properties and the adjacent land is shown below:

The Owners engage Susan as their agent

The Owners had formed the intention to put the Properties up for collective sale in as early as 2008. Sometime in that year, they agreed that Simon would represent them in the collective sale of the Properties.

It was in his capacity as the Owners’ representative that Simon met with Michelle sometime in 2008 to negotiate the sale of the Properties to Aurum. Those negotiations reached the stage where the terms of an option to purchase the Properties at $31.5m were discussed; however no agreement was concluded. This was because the Properties were subject to certain development restrictions that Aurum felt made redevelopment unfeasible.

Nevertheless, the Owners were not dissuaded from pursuing the sale of the Properties. Sometime in June 2009, Simon approached Susan and invited Isabel Redrup to market the Properties. This culminated in a Letter of Appointment dated 26 August 2009 (“the Letter of Appointment”), signed by Simon on behalf of the Owners, which appointed Isabel Redrup as the “sole and exclusive marketing agent for the project for a period of 6 months [from] 25 August 2009”. However, an email enclosing an unsigned copy of the Letter of Appointment shows that this arrangement was not exclusive in nature:

… Please note that as per our discussion, this letter is purely meant as a marketing tool and as such, we have your understanding that [you] will not hold the contents of the letter of appointment against us should the other agent, who is a friend of the owner of 3 of the units, be able to close the deal at an acceptable price before you do, something that I feel is unlikely anyway. …

The initial negotiations over the sale of the Properties

Susan started to market the Properties by contacting investors and developers directly and through advertising. One of these advertisements caught the attention of Michelle, who contacted Susan on 31 December 2009. Michelle discovered, through inquiries conducted by Aurum’s architect, that the developmental restrictions that the Properties were subject to had been removed by URA. She contacted Susan and expressed Aurum’s interest in the Properties. This resulted in a letter of offer (“Letter of Offer”) dated 20 January 2010 executed by the Owners and Aurum, as well as a commission agreement dated 21 January 2010 (“the Commission Agreement”) by which it was agreed that Susan would be paid 2% of the sale price plus GST upon the successful completion of the sale of the Properties. However, there was no final agreement within the period stipulated in the Letter of Offer. The Owners, represented by Simon, nevertheless continued negotiations with Michelle through Susan over the next few months. In the meantime, Susan also continued to work with Simon as well as Simon’s cousin, Ms Kay Swee Tuan (“Kay”), whom the Owners had engaged as their solicitor. Susan was also assisted by an architect friend of Simon, Mr Cyril Seah, who would meet the prospective buyers and inform them of the developmental potential of the Properties.

While negotiations with Aurum carried on, other parties also showed interest in the Properties. In particular, there was a pair of potential buyers, Mr Tan Cheng Siong and his daughter Jessica, whom the 11th plaintiff in S 755 (known by the Owners as “Arthur”) introduced to Simon in June 2010. Parallel negotiations were conducted by Simon with Jessica at the same time that Susan was trying to reach an agreement with Michelle. Simon’s discussions with Jessica proved to be fruitful at first, to the extent that a draft option agreement to purchase the Properties at $32.5m was circulated between Simon and Jessica (“the Jessica Option”). A copy of the Jessica Option was sent by Simon via email to Susan on 10 August 2010, the email stating “[a]s per your agreement, it is not to be shown to anyone”.

As at 12 August 2010, the state of affairs was as follows: Kay had been liaising with the Singapore Land Authority (“SLA”) to ensure that the L-shaped Lot, which belonged to an estate the administrator of which was deceased, would be converted to state land. There was also an issue in respect of the SBA’s power to sanction the sale of 124 Sophia Road because at that time it was held in the name of trustees who had passed away. Aurum was nonetheless willing to purchase the Properties at $33.8m subject to SLA’s approval to alienate the Lots to them, with a 4% deposit for the grant of the option to purchase. A major sticking point was the Owners’ insistence that 1% of the sale price be released to them upon grant of the option (“the 1% Option Release”). This was the issue that precipitated the fallout between the parties. In her email to Susan on 12 August 2010, Michelle set out Aurum’s position on the 1% Option Release in the following terms:

Hi Susan,

[Aurum’s] Board is firm on not releasing the 1% to the [owners] until we have received SLA’s in-principle approval to alienate [the Lots] to us. The request to release the 1% is very unorthodox in collective sales cases. It is only commonplace in individual unit transactions (which is where the HSR and Propnex agents may be confused).

…

In addition, I would like to highlight that we have already agreed to pay a 4% deposit upfront (instead of the usual 1%) in a show of good faith. This means that we are bearing the opportunity cost on $1.352m for at least 6 months with no guarantee that SLA will successfully forfeit the land or alienate it to us. Further, we will need to pay another $338k when we sign the Option hopefully early next year, and the remaining 95% = $32.1m upon completion hopefully by mid next year. However, we will not be able to take possession of the land and commence sales until 2012! This is a very long period for us to have locked in so much money.

…

Negotiations with Aurum intensify

Despite a declaration on 18 August 2010 by the Collector of Land Revenue that the L-shaped Lot would be deemed to be forfeited to the state within six months if no claim was laid, the negotiations with Aurum made little progress. Aside from the issue of the 1% Option Release, there remained some disagreement over matters such as whether the purchase should be conditional on the Lots being alienated on a fee simple basis or simply upon forfeiture of the L-shaped Lot, and whether the land premium payable should be based on a set formula. In an attempt to get Aurum to come to a decision, Susan forwarded the Jessica Option, which did not contain those conditions, to Michelle on 23 August 2010, saying:

To be fairer than fair to you, I am (CONFIDENTIALLY) enclosing the Jessica Option. [Please] do not tell anyone (not even Simon). I will get into BIG trouble.

While this did not have an immediate effect, Michelle did eventually waive those conditions. On 2 September 2010, Michelle sent to Susan a draft option agreement that had been adapted from the Jessica Option, thanking Susan for the right of “first refusal”. This draft option agreement was forwarded to Simon by Susan on the same day, attached to an email that simply...