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

• Jurisdiction: Singapore
• Judge: Choo Han Teck J
• Judgment Date: 26 May 2020
• Neutral Citation: [2020] SGHC 109
• Court: High Court (Singapore)
• Docket Number: Suit No 1173 of 2017
• Published date: 29 May 2020
• Year: 2020
• Hearing Date: 15 January 2020,21 January 2020,16 January 2020,16 March 2020,17 January 2020,14 January 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 and Tan Ei Leen (Coleman Street Chambers LLC)
• Subject Matter: Contract,Discharge,Breach,Remedies,Damages,Tort,Inducement of breach of contract,Conspiracy,Confidence,Breach of Confidence
• Citation: [2020] SGHC 109

Choo Han Teck J:

The first plaintiff (“iVenture”) is a limited company incorporated in Hong Kong. The second plaintiff (“iVenture International”) is a company organised under the laws of Australia, and is wholly owned by iVenture. Both plaintiffs share a common director, Mr Ryan Rieveley. The third defendant in the counterclaim (“iVenture Travel”) is a wholly owned subsidiary of iVenture. These three companies (collectively, the “iVenture Group”) are part of the iVenture group of companies, which is in the business of developing and marketing tourist packages worldwide.

The first and second defendants (respectively, “Big Bus” and “Ducktours”) are private limited companies incorporated in Singapore. They are part of the “DUCK & HiPPO Group”, which is a group of companies engaged in the tourism business. At the material time, the third and fourth defendants, Mr Heng See Eng (“James”) and Mr Low Lee Huat (“Low”), were the only shareholders and directors of Big Bus and Ducktours. Ducktours has operated a local tourist attractions aggregator pass (“TAAP”), called the “Singapore Pass”, since 2006. A TAAP is a product that allows its holder to access various tourist attractions, usually at a discount.

Between 2014 and 2015, both groups of companies entered into a collaboration with the broad purpose of re-launching the Singapore Pass (hereinafter referred to as the “Relaunched Pass”). This resulted, inter alia, in the following: An agreement (“Licence Agreement”) between iVenture and Big Bus (dated 27 March 2015), under which the former would be paid monthly fees in exchange for selling the Relaunched Pass on its online website, and granting the latter a licence to operate the Relaunched Pass business and use the “iVenture” brand in Singapore. An agreement (“Service Level Agreement”) between iVenture, Smartvisit Pty Ltd (“Smartvisit”) (which is a related company of iVenture International), and Big Bus (dated 27 March 2015), under which the former two companies would be paid monthly fees in exchange for providing Big Bus with technical services and access to the “Smartvisit System” in order for it to operate the Relaunched Pass business. The Smartvisit System is a transaction management system which manages the validation, reporting and invoicing of transactions for TAAPs. Its frontend component comprises hardware terminals installed at various attractions, whilst the backend is an online portal known as the “SORSE System”. A reseller arrangement (“Reseller Arrangement”) under which both plaintiffs were permitted to resell the Relaunched Pass on behalf of the defendants. It is disputed, however, whether this arrangement constitutes a contractual “agreement”, the parties between whom the arrangement was made, and its payment terms. (collectively, the “Agreements”)

The iVenture Group has four claims against the defendants — first, iVenture claims that Big Bus repudiated and breached the Licence and Service Level Agreements, and iVenture Travel (or alternatively, iVenture) claims that Big Bus repudiated and breached the Reseller Arrangement; second, iVenture and iVenture Travel claim that Ducktours, James and Low are liable for inducing Big Bus’ aforesaid breaches of contract; third, both plaintiffs claim the defendants are liable for breach of confidence; and fourth, both plaintiffs claim that the defendants are liable for an unlawful means conspiracy to injure them. Big Bus first counterclaims against both plaintiffs on the basis that they had first repudiated the Licence and Service Level Agreements. Second, Big Bus also counterclaims against iVenture, or alternatively, iVenture Travel, for the payment of two outstanding invoices for October and November 2017 under the Reseller Arrangement.

I start with the iVenture Group’s first claim, and Big Bus’ first counterclaim. Although the defendants had initially pleaded that both plaintiffs also repudiated a preliminary agreement (dated 17 December 2014), this point was abandoned in their counsel’s closing submissions, and hence, it is not necessary for me to deal with it. I will dismiss Big Bus’ first counterclaim against iVenture International, given that it is undisputed that the company was not even a party to the Licence and Service Level Agreements.

Before dealing with the main issues of repudiation of the Agreements, I must decide three preliminary issues — whether the Reseller Arrangement constitutes an agreement in the first place, the parties to it, as well as its payment terms. I agree with the plaintiffs that Reseller Arrangement constitutes an oral agreement. The defendants had denied this by claiming that the parties merely had a “reseller relationship” that continued “at will” on a “willing buyer, willing seller basis” in accordance with clause 4.3(c) of the Licence Agreement. In my view, this position makes no sense. The defendants’ allegation that there was a “willing buyer, willing seller” necessarily means there must be an agreement. In fact, the defendants claim that the plaintiffs are legally bound to accept certain commission rates and to comply with certain payment deadlines under this arrangement. The only apparent basis for these obligations must be contractual, as no other basis (ie, in unjust enrichment) was argued. Specifically, I find that the Reseller Arrangement was an oral agreement concluded between the parties separately from the Licence Agreement. Clause 4.3(c) of the Licence Agreement merely states that Big Bus will allow reselling “on execution of a standard sales agency agreement”. As Mr Chia himself pointed out, that clause clearly creates no legally binding contract in itself, and implies that a separate agreement would be required.

It is not disputed that Big Bus was a party to the Reseller Arrangement. The question is whether its counterparty was iVenture (as the defendants claim), or iVenture Travel (as the plaintiffs claim). In my view, it was iVenture. The parties’ correspondence shows that at all material times, Mr Rieveley discussed matters concerning the Reseller Arrangement as an officer of iVenture. While Big Bus’ invoices were issued to iVenture Travel, it is clear from the emails between Mr Rieveley, Smartvisit and the defendants (dated 14 July 2015) that this was only because the iVenture Group had set up the SORSE System to generate the invoices in that manner for billing purposes. In my view, iVenture was the proper contracting party all along, and iVenture Travel had merely accepted invoices under the Reseller Arrangement on its behalf as a matter of administrative convenience. That being the case, I dismiss iVenture Travel’s counterclaim against Big Bus for repudiation of the said agreement, and Big Bus’ second counterclaim against iVenture Travel for the invoices for October and November 2017 under the same agreement.

As for the terms of payment, it is undisputed that after the plaintiffs resold the Relaunched Pass, Big Bus would invoice them on a monthly basis for the sales proceeds (less the plaintiffs’ commission). It is also undisputed that around 25 to 29 March 2016, the parties agreed to a “contra arrangement” where Big Bus would deduct the fees it owed to the plaintiffs (under the Licence and Service Level Agreements) from its invoices (under the Reseller Arrangement), and bill them for the net amount. The defendants claim that at all material times, iVenture was required to pay Big Bus’ invoices within 30 days of the date of the invoice (“30 Day Credit Term”). The plaintiffs deny this, and say that the parties had only agreed that payment be made on “reasonable credit terms”. In my view, the defendants are correct. There were multiple email chasers from Big Bus to the iVenture Group referring to the number of days that an invoice was purportedly overdue, calculated on the basis of the 30 Day Credit Term. There is, however, no record of the iVenture Group ever objecting to these numbers. Further, the parties’ emails dated 29 March 2016 specifically indicate that the 30 Day Credit Term would continue to apply even with the “contra arrangement” in place. As a matter of commercial sense, I find it unbelievable that the plaintiffs would claim that any commercial party like Big Bus would agree that payments due to it need only be made within a “reasonable” period, with no specific timeline at all. I hence find that the Reseller Arrangement was subject to the 30 Day Credit Term.

I now address the main issues of whether any of the Agreements were repudiated by the parties. The defendants claim that since 2015, the iVenture Group had been consistently late in its invoice payments under the Reseller Arrangement. According to them, the final straw came on 3 November 2017, when Mr Rieveley outright refused to pay Big Bus’ invoice for September 2017 (“Sept 2017 invoice”), and iVenture continued to be in default in respect of the same until 8 November 2017. The defendants’ counsel, Mr Chia, submitted that this was in breach of the 30 Day Credit Term, and the Reseller Arrangement allowed Big Bus to terminate the plaintiffs’ reseller rights in such an event. Although I agree that iVenture’s non-payment amounts to a breach, I do not think it gave iVenture a right of termination. Mr Chia argued that the basis for this right was clause 4.3(c)(iii) of the Licence Agreement. This is obviously wrong because on Mr Chia’s own submission, that clause was subject to contract and created no legally binding obligation. Moreover, Mr Chia did not reconcile this submission with his other claim that the Reseller Arrangement was “terminable at will”. As he did not submit that Mr Rieveley’s refusal or iVenture’s default conferred a right of termination or suspension on Big Bus in any other way (ie, the 30 Day Credit Term was a condition), I find that neither act was a repudiation of the Reseller Arrangement.

The parties’ dispute did not end there. Instead, it carried over into a series...