Jump Solutions Pte Ltd v Tohtonku (S) Pte Ltd

• Jurisdiction: Singapore
• Judge: Clement Seah Chi-Ling
• Judgment Date: 11 January 2022
• Neutral Citation: [2022] SGDC 12
• Court: District Court (Singapore)
• Docket Number: District Court Suit No 1927 of 2020, District Court Appeal No 51 of 2021
• Year: 2022
• Published date: 22 January 2022
• Hearing Date: 06 August 2021,07 April 2021,16 June 2021,27 August 2021,07 June 2021,12 November 2021,08 April 2021
• Plaintiff Counsel: Darren Tan Tho Eng and Yeo Hsien Yang, Shane Anthony (Invictus Law Corporation)
• Defendant Counsel: Benjamin Yam Wen Ee (Ray Louis Law Corporation)
• Subject Matter: Contract,Contractual Terms,Rules of Construction,Conflicting Clauses,Contra Proferentem Rule,Variation
• Citation: [2022] SGDC 12

District Judge Clement Seah Chi-Ling: Introduction

This is the Plaintiff’s claim against the Defendant for an aggregate sum of S$150,035.40 representing amounts unpaid under two partially paid invoices. The invoices arose from the Plaintiff’s deployment, at the Defendant’s request, of product promoters for the Defendant’s products at various locations in Singapore under a contract dated 1 February 2019 (the “Contract”). The Defendant has, in turn, counterclaimed against the Plaintiff for, among other things, the sum of S$260,763.28, being amounts the Defendant alleged it had overpaid the Plaintiff as a result of the latter’s failure to furnish supporting documents for various specified deployments to the Defendant’s satisfaction.

The parties

The Plaintiff is a company incorporated in Singapore, and is in the business of providing promoter deployment and outsourcing management services.

At all material times, one Ang Meng Hwee Alvin (“Mr. Alvin Ang”) was a director of the Plaintiff, and the Plaintiff’s representative who entered into the Contract on the Plaintiff’s behalf.

The Defendant is a company incorporated in Singapore, and is in the business of, inter alia, the import/export and distribution of consumer products.

Mr. Lee Quan Feng, also known as Sean Lee (“Mr. Sean Lee”), was the former General Manager of the Defendant who entered into the Contract on behalf of the Defendant. It was not disputed that Mr. Sean Lee, as the then General Manager of the Defendant, had authority to enter into the Contract on the Defendant’s behalf.

Procedural History

On 21 January 2020, the Plaintiff commenced HC/S 62/2020 in the High Court against the Defendant, claiming the sum of S$401,644.06. On 23 March 2020, the Plaintiff filed an application for summary judgment vide HC/SUM 1362/2020. On 17 June 2020, the Assistant Registrar who heard the application made, inter alia, the following orders: That the Defendant does pay the Plaintiff the sum of S$251,608.66; and That the Defendant be given unconditional leave to defend the balance of the Plaintiff’s claim in the sum of S$150,035.40.

The sum of S$150,035.40 represents the balance of amounts remaining unpaid in respect of Deployments under two invoices – Invoice No. 1402486 dated 1 October 2019 and Invoice No. 1402056 dated 9 November 2019 (the “Unpaid Invoices”). Apart these two Unpaid Invoices, a further eight invoices were issued by the Plaintiff in respect of Deployments under the Contract, all of which had been paid in full by the Defendant¹.

The sum of S$251,608.66 ordered to be paid to the Plaintiff in the summary judgment proceedings was duly paid by the Defendant on or about 5 July 2020.

By an order of court dated 4 August 2020, HC/S 62/2020 was thereafter transferred to the State Courts in DC/DC 1927/2020, by consent. The Plaintiff’s claim against the Defendant in DC/DC 1927/2020 is for, inter alia, the sum of S$150,035.40. The Defendant’s Counterclaim in DC/DC 1927/2020 is, on the other hand, for the sum of $260,763.28, or alternatively, for the sum of $410,798.68 in the event this court allows the Plaintiff’s claim in full.

Background Facts The Project

In or around late 2018, the Defendant, Tohtonku (S) Pte Ltd, was looking to outsource its brand ambassadors (“BAs”) – i.e., persons who were tasked with marketing the Plaintiff’s consumer products at designated retail outlets in Singapore - to third parties instead of employing these BAs under its own payroll (the “Project”).

Mr. Sean Lee, the Plaintiff’s then General Manager, was tasked with overseeing and implementing the Project. Mr. Sean Lee proceeded to invite quotes from interested bidders.

Mr. Alvin Ang is the Director of the Plaintiff. Mr. Sean Lee had prior experience working with the Plaintiff during his previous employment with another company. By an email dated 25 July 2018 from Mr. Sean Lee to Mr. Alvin Ang, Mr. Sean Lee invited the Plaintiff to submit a quotation for the deployment of product promoters (the “Deployments”) to market the Defendant’s consumer products at the Defendant’s designated retail outlets in Singapore². Mr. Alvin Ang informed Mr. Sean Lee in person that the Plaintiff was keen to provide the Deployments, and they started negotiating the terms of such an engagement, including the total number and the rate for the Deployments, and the commission and fee payable to the Plaintiff.

On or around 4 January 2019, Mr. Sean Lee informed the Mr. Alvin Ang via email that the Defendant had decided to engage the Plaintiff for the Deployments.

The Contract

The terms of the engagement were contained in a contract dated 1 February 2019 (the “Contract”). The Plaintiff first provided the Defendant with a draft Contract by an email dated 13 February 2019.

By an email dated 4 March 2019 (the “4 March Email”) from Mr. Sean Lee to Mr. Alvin Ang, the Defendant accepted the terms of the Contract and provided the Plaintiff with a signed copy of the Contract. The Contract was executed by Mr. Sean Lee on behalf of the Defendant. The email enclosing the signed Contract was copied to: the Defendant’s director, Mr. Lim Chee Keong, also known as “Jasper Lim” (“Mr. Lim”); the Defendant’s Head of Marketing, Mr. Soon Eu Jin (“Mr. Soon”); and the Defendant’s Finance Manager, Ms. Elyn Low (“Ms. Low”).³

Based on the Contract, the start-date of the Project was to be 1 May 2019.

The salient terms of the Contract⁴, so far as material for present purposes, were as follows: The commencement and end dates of the Services are 1 May 2019 and 30 April 2021, respectively (the “Period”); The Plaintiff would provide 5,440 “activation points island wide” in respect of the Services, i.e. the Plaintiff is obligated under the Contract to provide 5,440 Deployments within the Period, at the Defendant’s request; and The Activation Charges, provided that the Defendant utilises a minimum of 5,440 activation slots during the Period, would be $164.00 per slot.

Two other provisions in the Contract which are relevant for present purposes were: a “conclusive evidence clause” contained in Clause 2 (Time Records & Invoicing) of the Contract (the “Conclusive Evidence Clause”), as follows: “2. Time Records & Invoicing

Jump Solutions Pte Ltd will invoice Tohtonku (S) Pte Ltd on a project-ending basis for its project management services and the Tohtonku (S) Pte Ltd shall be conclusive and binding to the work performed by Jump Solutions Pte Ltd employees.”

a payment clause in Clause 3(i) (Client Warranties) of the Contract (the “Payment Clause”), as follows: “3. Client Warranties

…

Tohtonku (S) Pte Ltd shall make prompt settlement of the undisputed amount, which are supported by Jump Solutions accurate invoices within payment terms, and when Tohtonku (S) is satisfied that the work has been performed in accordance with this agreement as invoices largely represents work performed and consumed.”

The First Invoice

Pursuant to the Contract, the Plaintiff commenced providing the Deployments to the Defendant in the month of May 2019, and issued an invoice dated 4 June 2019 to the Defendant for the Deployments (the “First Invoice”). The First Invoice was in respect of Deployments for the month of May 2019 and the amount billed (inclusive of GST) was S$66,311.28⁵.

To support the Plaintiff’s claims for the Deployments under the First Invoice, the Plaintiff had attached a schedule (the “Summary Schedule”) which detailed the following: The number of Deployments for each day of the month; and The store outlets (the “Outlets”) specified by the Defendant that the Deployments were to be deployed at for each day of the month.

An example of a Summary Schedule can be found at Mr. Alvin Ang’s affidavit at page 38⁶. It could be observed from the sample Summary Schedule that while it showed the number of Deployments on each day of the month at each named Outlet, it did not include the names of the BAs that were physically deployed, nor did it include any acknowledgement by the Outlet personnel that the Deployments did in fact take place. The Summary Schedule was therefore, in essence, a summary of the number of units of BAs deployed for a given month broken down by days and by Outlets.

On 9 June 2019, Mr. Sean Lee sent an email to Mr. Alvin Ang, copied to Ms. Low, Mr. Soon and Mr. Kelvin Cheong (the Defendant’s Head of Sales, hereinafter, “Mr. Cheong”), among other things, instructing Ms. Low to proceed with payment once Mr. Soon and Mr. Cheong have “confirmed on the slots and additional vouchers purchased”⁷.

The Second, Third and Fourth Invoices

On or around 2 July 2019, a second invoice was issued by the Plaintiff for the sum of $79,510.18 (“the 2nd Invoice”), together with the accompanying Summary Schedule in the same format.

Thereafter, on 5 August 2019 and 5 September 2019, the Plaintiff issued its third and fourth invoices for Deployments in the months of July 2019 and August 2019 in the sums of $88,946.96 and $100,791.86 respectively⁸.

In summary, by the beginning of October 2019, the Plaintiff had issued the following four invoices in respect of Deployments for the months of May 2019 through August 2019 in an aggregate sum of S$335,560.28⁹. All four invoices were paid in full by the Defendant (the “Paid Invoices”). Copies of the Paid Invoices and the corresponding Summary Schedules are collectively annexed at PBA [37-45]:

S/No	Date of Invoice	Invoice No.	Description	Amount (Inclusive of GST)	Date Paid
1	4 Jun 2019	1402416	Deployment for the month of May 2019	S$66,311.28	5 Aug 2019
2	2 Jul 2019	1402425	Deployment for the month of Jun 2019	S$79,510.18	25 Jul 2019
3	5 Aug 2019	1402447	Deployment for the month of Jul 2019	S$88,946.96	12 Sep 2019
4	5 Sep 2019	1402475

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