Larpin, Christian Alfred and another v Kaikhushru Shiavax Nargolwala and another

• Jurisdiction: Singapore
• Court: International Commercial Court (Singapore)
• Judge: Roger Giles IJ
• Judgment Date: 24 November 2020
• Neutral Citation: [2020] SGHC(I) 24
• Citation: [2020] SGHC(I) 24
• Published date: 27 November 2020
• Plaintiff Counsel: Christopher Anand Daniel and Harjean Kaur (Advocatus Law LLP)
• Defendant Counsel: Ramesh Kumar s/o Ramasamy, Alyssa Tan Shu-Ning and Amanda Lim Min Li (Allen & Gledhill LLP)
• Docket Number: Suit No 3 of 2020 (Summons No 59 of 2020)
• Hearing Date: 06 November 2020
• Date: 24 November 2020
• Subject Matter: Civil Procedure,Costs,Security

Roger Giles IJ: Introduction

Through their holding of the shares in Querencia Ltd (“Querencia”), a British Virgin Islands (“BVI”) company, the Defendants held rights to Villa 29 in the Andara Resort in Phuket, Thailand (“the Villa”): sufficiently for present purposes, a form of ownership. In late 2017, the Defendants sold the Villa to the First Plaintiff (“Mr Larpin”), by the sale and transfer of the shares in Querencia to his beneficially owned company, the Second Plaintiff, Quo Vadis Investments Limited (“Quo Vadis”). In these proceedings, the Plaintiffs claim orders for rescission of the sale, return of the purchase price of US$7.9m, and damages.

This is the Defendants’ application for an order that the Plaintiffs provide security for their costs, up to and including closing submissions post-trial, in the amount of S$350,000, together with the usual ancillary orders. The basis for the application is the “foreign plaintiff” ground in O 23 r 1(1)(a) of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) (the “Rules”), that the plaintiff is ordinarily resident out of the jurisdiction.

For the reasons which follow, the application should be dismissed.

These Proceedings

For the submissions in the application, a brief summary of the claim and the defence to it is desirable. The pleadings are quite extensive, and the summary necessarily does not capture their detail.

Mr Larpin attended a viewing of the Villa on 25 or 26 October 2017, conducted by the Defendants’ selling agent Mr Martin Phillips. He expressed interest, and on 8 November 2017 a Reservation Agreement between Quo Vadis and the Defendants was executed. On 14 November 2017 a Share Purchase Agreement between the same parties was executed. Completion of the Share Purchase Agreement took place on 16 November 2017.

The Plaintiffs allege that by executing the Agreements, and orally by a telephone conversation between Mr Larpin and the First Defendant (“Mr Nargolwala”) on 15 November 2017, the Defendants made a number of representations concerning the sale of the Villa via the Querencia shares. The representations include that all information which would materially affect the sale of the Villa had been disclosed. The Plaintiffs allege that the representations were false, and that they were made fraudulently or recklessly or, if not, in circumstances attracting relief under the Misrepresentation Act (Cap 390, 1994 Rev Ed). They allege that they relied on the representations in entering into the Agreements and completing the Share Purchase Agreement; that they would not have entered into the Agreements or purchased the Villa had they known the undisclosed information; and that they were prevented by the representations and by concealment of the undisclosed information from electing not to do so.

At the heart of the alleged falsity and nondisclosure are dealings in October 2017 between a Mr Solomon Lew and Mr Daniel Meury of the Andara Resort, in so far as they were communicated by Mr Meury to the Defendants. The dealings culminated in an offer by Mr Lew to purchase the Villa for US$5.25m and, on the Plaintiffs’ case, a possible agreement for sale at that price. The Plaintiffs allege that on 14 November 2017 the Defendants were made aware that Mr Lew claimed to have an agreement for the sale of the Villa and threatened legal action to enforce it; but, they say, in the telephone conversation on 15 November 2017 Mr Nargolwala said that the claim was unsustainable. In broad terms, on the Plaintiffs’ case the undisclosed information is the dealings between Mr Lew and Mr Meury as known to the Defendants and the details of Mr Lew’s claim and threat; and the possible adverse claim to the Villa and the threat of legal action by Mr Lew, and the failure to disclose the information to the Plaintiffs falsified the representations made in the Agreements...