iVenture Card Ltd and others v Big Bus Singapore City Sightseeing Pte Ltd and others

• Jurisdiction: Singapore
• Judge: Steven Chong JCA
• Judgment Date: 12 October 2021
• Neutral Citation: [2021] SGCA 97
• Court: Court of Appeal (Singapore)
• Hearing Date: 03 December 2020
• Docket Number: Civil Appeal No 94 of 2020
• Plaintiff Counsel: Ang Hsueh Ling Celeste, Clarence Ding Si-Liang, Lee Zhe Xu and Tan Yi Wei Nicholas (Wong & Leow LLC)
• Defendant Counsel: Chia Jin Chong Daniel, Ong Xuan Ning Christine (Weng Xuanning) and Tan Ei Leen (Coleman Street Chambers LLC)
• Subject Matter: Contract,Breach,Repudiation of contract,Remedies,Damages,Confidence,Breach of confidence,Assessment
• Published date: 15 October 2021

Quentin Loh JAD (delivering the judgment of the court): Introduction

This appeal is against the decision of the High Court judge (the “Judge”) in iVenture Card Ltd and another v Big Bus Singapore City Sightseeing Pte Ltd and others [2020] SGHC 109 (“the Judgment”) on disputes arising out of a business collaboration on a Singapore tourist attraction pass that ended in a cloud of disagreements.

Facts

The appellants, iVenture Card Limited (“iVenture Card”), iVenture Card International Pty Ltd (“iVenture International”) and iVenture Card Travel Ltd (“iVenture Travel”) are part of the iVenture Group which is engaged in the business of developing and marketing tourist packages worldwide. iVenture Card and iVenture International were the 1st and 2ndplaintiffs in the proceedings before the Judge. iVenture Travel was not a plaintiff below but was the 3rd defendant to the counterclaim.

The first two respondents, Big Bus Singapore City Sightseeing Pte Ltd (“Big Bus”) and Singapore Ducktours Pte Ltd (“Ducktours”) are Singapore companies which are part of the Duck and HiPPO Group of companies, a Singapore tourism business. Since 2006, the Duck and HiPPO Group operated a local Tourist Attractions Aggregator Pass (“TAAP”) called the “Singapore Pass”. This allowed pass-holders to access various tourist attractions in Singapore. The third respondent, Mr James Heng See Eng (“Mr Heng”) was, at all material times, a director and the chief executive of Big Bus and Ducktours. Mr Low Lee Huat (“Mr Low”) was the only other director and shareholder of Big Bus and Ducktours. Mr Low was a defendant below but was not included as a respondent in the appeal.

As there can be confusion in the parties and actions inter se, it would be useful to set out their positions in the proceedings below: iVenture Card and iVenture International, as 1st and 2nd plaintiffs, sued Big Bus, Ducktours, Mr Heng and Mr Low as 1st, 2nd, 3rd and 4th defendants respectively; Big Bus brought a counterclaim against iVenture Card and iVenture International as 1st and 2nd defendants to the counterclaim and added iVenture Travel as a 3rd defendant to the counterclaim; and iVenture Travel, in turn, brought a counterclaim against Big Bus for repudiation of an agreement which we refer to as the Reseller Arrangement (see [6] below). Their respective causes of action are set out at [14] below.

We now turn to the relevant facts. On 17 December 2014, the iVenture Group and the Duck and HiPPO Group agreed to a business collaboration by which the iVenture Group’s Smartvisit technology solution would be used in a new co-branded TAAP, the “Singapore iVenture Pass”. The terms of their bargain were recorded in a Singapore Attractions Pass Preliminary Agreement dated 27 December 2014 (the “Preliminary Agreement”).¹ Pursuant to the terms of the Preliminary Agreement, Big Bus and iVenture Card entered into a Licence Agreement,² and iVenture Card and Smartvisit Pty Ltd (“Smartvisit”), a related company of iVenture Card, on the one part, and Big Bus, on the other, entered into a Service Level Agreement,³ both of which were dated 27 March 2015. Under the Licence Agreement, iVenture Card would sell the Singapore iVenture Pass on its online website and grant Big Bus a licence to operate the Singapore iVenture Pass business and to use the iVenture brand in Singapore. In exchange, Big Bus would pay iVenture Card a monthly fee, calculated as a percentage of the sales of the Singapore iVenture Pass. Under the Service Level Agreement, iVenture Card and Smartvisit would provide Big Bus with technical services and access to the “Smartvisit System” and Big Bus would pay the monthly fees to iVenture Card.⁴ The “Smartvisit System” was a transaction management system which managed the validation, reporting and invoicing of transactions for TAAPs. A major component of this system included the SORSE System, which allowed the user to “access data and reports, update information or process transactions”. Both the Licence Agreement and the Service Level Agreement contained a “Mutual Dependency Clause” which essentially stated that one agreement could be terminated immediately by notice in writing once the other had been terminated.

In addition to the foregoing written agreements, the parties also entered into an informal “Reseller Arrangement” which was never reduced to writing. The Judge below stated, at [3(c)] of the Judgment, that under the Reseller Arrangement, both plaintiffs were permitted to resell the Singapore iVenture Pass “on behalf of the defendants”. The Judge went on to note that it was disputed whether this arrangement constituted a contractual agreement, the parties between whom the arrangement was made and its payment terms. Before us, it is disputed which iVenture Group entity entered into the Reseller Arrangement. The appellants claim the Reseller Arrangement was entered into on or about 27 March 2015 and that it was made between Mr Ryan Rieveley (“Mr Rieveley”), Chief Executive Officer of the iVenture Group, and Mr Heng.⁵ We shall deal with this and other disputed facts in relation to this issue below. What is undisputed is that the iVenture Group resold Singapore iVenture Passes, collected the proceeds on behalf of Big Bus, deducted their commission and paid the balance to Big Bus.

After the Singapore iVenture Pass was launched, the parties’ relationship deteriorated. Big Bus became unhappy about iVenture Card’s lateness in making payments which had fallen due under the Reseller Arrangement. This culminated in a heated exchange of emails between Ms Teo Zener (“Ms Teo”) of the Duck and HiPPO Group and Mr Rieveley, between 31 October 2017 and 6 November 2017. In the course of this exchange, Ms Teo informed Mr Rieveley on 6 November 2017 that “trading activity” would be temporarily suspended unless an invoice dated 30 September 2017 (the “30 September 2017 Invoice”) for sums due under the Reseller Arrangement by 30 October 2017 was settled before 9 November 2017.⁶ Mr Rieveley replied that same day, refusing to do so.⁷

In the meantime, on 8 November 2017, at or around 2.27 pm, Big Bus suspended the sales, activation and redemption of the Singapore iVenture Pass (the “Pass Suspension”).⁸ Upon learning of this, iVenture Card retaliated later that same day (sometime between 4.50pm and 5.30pm), locking out Big Bus from access to the SORSE System (the “SORSE System Suspension”).⁹ Sometime between 6.30pm that day and 9am of 9 November 2017, Big Bus followed up with another suspension (the “Second Suspension”), the scope of which was disputed.

iVenture Card subsequently paid the 30 September 2017 Invoice on 9 November 2017.¹⁰ However, Big Bus did not lift the Pass Suspension. Instead, by an email from Ms Teo to Mr Rieveley dated 10 November 2017 confirming receipt of payment, she demanded that iVenture Card pay them a “remittance of [S$]150k for sales collected on [Big Bus’s] behalf from 1 [October 2017] to 9 [November 2017], and a banker’s guarantee or drawdown deposit of S$200k to cover forward sales” as a condition for lifting the Pass Suspension. Big Bus also requested that iVenture Card “turn on the SORSE System for [Big Bus] to resume business”.¹¹ iVenture Card refused this request and demanded that Big Bus immediately rectify their breach of the parties’ agreements.¹²

On that same date, 10 November 2017, Ducktours also launched the HiPPO Singapore Pass, a TAAP which listed similar attractions as the Singapore iVenture Pass, but utilised different technologies for its back-end IT system. While the Singapore iVenture Pass authenticated pass users by a smart chip embedded in the pass itself which was linked to the Smartvisit System, the HiPPO Singapore Pass authenticated its users using QR Code technology¹³ and did not utilise the Smartvisit System at all.

Solicitors for iVenture Card, Big Bus and Ducktours then exchanged a series of letters in which iVenture Card alleged that Big Bus and Ducktours had misused confidential information belonging to iVenture Card (“Alleged Confidential Information”) to launch a competing business (the HiPPO Singapore Pass). The Alleged Confidential Information consisted of the following: Information relating to how the iVenture Card business should be run, ie, a system that standardized and optimized the manner in which such a business was set up and run in each destination in which it operated. This included the operating processes and procedures of the iVenture Card business, including but not limited to how attraction partners, customers and suppliers were to be approached and managed.¹⁴ This also included template supplier and sales agent agreements,¹⁵ pricing models, information on the performance of various product offerings¹⁶ and marketing and branding guidelines.¹⁷ Information relating to the SORSE System, including the programme management services brief as well as its functions, specifications, user guides and manuals.¹⁸

The parties’ correspondence culminated in solicitors for Big Bus writing to solicitors for the iVenture Group on 6 December 2017 (the “6 December 2017 Letter”),¹⁹ claiming that iVenture Card had repudiated the Licence Agreement and stating that they regarded both the Licence Agreement and the Service Level Agreement as at an end. On 8 December 2017, solicitors for iVenture Card responded by letter (the “8 December 2017 Letter”),²⁰ asserting that Big Bus’s notice of termination amounted to a repudiatory breach of both the Licence Agreement and the Service Level Agreement and giving notice of iVenture Card’s acceptance of Big Bus’s said breach and, in the alternative, serving notices of termination pursuant to both agreements.

A few months after these events, the appellants launched a replacement TAAP business by collaborating with Luxury Tours and Travel (“Replacement TAAP Business”) to mitigate their loss of profit as a result of Big Bus’s actions.²¹

The...