Lim Geok Lin Andy v Yap Jin Meng Bryan and another appeal

• Jurisdiction: Singapore
• Court: Court of Three Judges (Singapore)
• Judge: Sundaresh Menon CJ,Andrew Phang Boon Leong JA,Tay Yong Kwang JA
• Judgment Date: 14 August 2017
• Neutral Citation: [2017] SGCA 46
• Citation: [2017] SGCA 46
• Plaintiff Counsel: Alvin Tan Kheng Ann and Os Agarwal (Wong Thomas & Leong)
• Published date: 19 August 2017
• Subject Matter: Contract,Abuse of process,Extended doctrine,Variation,Res judicata,Oral agreement
• Hearing Date: 02 May 2017
• Defendant Counsel: Marina Chin Li Yuen, Calvin Liang Hanwen, Eugene Jedidiah Low Yeow Chin, Lee Hwee Yenn Amanda (Tan Kok Quan Partnership)
• Date: 14 August 2017
• Docket Number: Civil Appeals Nos 152 and 176 of 2016

Andrew Phang Boon Leong JA (delivering the judgment of the court): Introduction

The present proceedings constitute two appeals. The first (Civil Appeal No 152 of 2016 (“CA 152”)) is an appeal against the decision of the High Court judge (“the Judge”) in Lim Geok Lin Andy v Yap Jin Meng Bryan [2016] SGHC 234 (“the Judgment”), in which the Judge dismissed the plaintiff’s (“the Appellant”) claim against the defendant (“the Respondent”) in Suit No 1057 of 2013 (“S 1057”). CA 152 is the main appeal. The second (Civil Appeal No 176 of 2016 (“CA 176”)) is an appeal against the decision of the Judge in Lim Geok Lin Andy v Yap Jin Meng Bryan [2016] SGHC 261 (“the Supplemental Judgment”), which dealt with the issue of costs.

As the Judge aptly put it, these proceedings constitute “yet another chapter in the dispute between [the Respondent] and his former partners in his 2008 investment in properties located at … River Valley Road” (“the Properties”) (see the Judgment at [1]). As we shall see, the previous “chapters” in this narrative are, of crucial importance in the context of CA 152 – in particular because they affect the issue of whether or not, given his involvement in previous related proceedings, the claim by the Appellant in the present case constituted an abuse of process pursuant to the broader doctrine of res judicata laid down by the seminal English decision of Henderson v Henderson (1843) 3 Hare 100; 67 ER 313 (“Henderson”) and ought therefore to be dismissed on this basis alone. We shall consider this issue first (“Issue 1”). For the reasons set out below, we find that there had indeed been an abuse of process pursuant to the principle laid down in Henderson and therefore dismiss the present appeal on this ground.

However, as the Judge also spent a substantial part of the Judgment considering the Appellant’s claim on its merits, we will also consider this particular issue (“Issue 2”) – although it is, strictly speaking, unnecessary as the Appellant’s claim fails under Issue 1. For the reasons set out below, we find that the Appellant has not made out his case against the Respondent and we thus also find against the Appellant with regard to Issue 2.

In so far as the issue of costs that arises from the Supplemental Judgment (“Issue 3”) is concerned (for which leave to appeal was granted by consent vide High Court Originating Summons No 1324 of 2016), we allow the appeal for the reasons set out below.

We will first turn to the facts of, and the background to, the present appeals.

Facts and background Parties to the dispute

The Appellant is a director in his family company, Kim Hup Lee & Co Pte Ltd, a property developer. The Respondent was a managing director in the Global Market division of Deutsche Bank Group until April 2008. Lim Koon Park (“Park”) is an architect.

The Appellant had known the Respondent since their student days in the same junior college. The Appellant had known Park since 2000. The Appellant introduced Park to the Respondent in September 2006. Eventually, the three of them agreed to bring together their different expertise for investment purposes.

Background Setting up of Riverwealth

The Appellant, the Respondent and Park entered into a joint venture to acquire, redevelop and resell properties for profit. Riverwealth Pte Ltd (“Riverwealth”) was incorporated on 28 September 2007 as a joint venture vehicle for the acquisition of the Properties. The Properties were purchased in late April 2008 for a total of $48.5m and the purchase was financed by a $30m loan from Hong Leong Finance Limited (“HLF”) to Riverwealth which was jointly and severally guaranteed by the Appellant, Respondent and Park, with the balance provided by the Respondent to Riverwealth in the form of a personal loan and injection of equity capital. There was allegedly an oral agreement for profits from the sale of the Properties to be split in a 2:1:1 ratio (henceforth referred to as “the Initial Agreement”) among the Respondent, Park and the Appellant, respectively. It was undisputed that the Respondent paid for all the share capital in Riverwealth despite the shareholding indicating otherwise. The shareholding in Riverwealth as of April 2008 was as follows:

S/N	Name	Percentage
1	The Respondent	50%
2	Park’s wife, Wee Pek Joon (“Wee”)	25%
3	The Appellant	25%

It is not disputed that Wee held the Riverwealth shares on Park’s behalf. On 19 November 2008, Riverwealth’s equity shareholding was restructured to comply with the terms of the HLF loan, resulting in the following shareholding:

S/N	Name	Percentage
1	The Respondent	74%
2	Wee	13%
3	The Appellant	13%

The global financial crisis and breach of the HLF loan

It was originally envisaged by the parties that Riverwealth would try and “flip” the Properties for profit within a few months of their purchase. However, Riverwealth’s ownership of the Properties coincided with the onset of the global financial crisis in 2008 and 2009, which made it difficult to sell the Properties. One of the key terms of the HLF loan was that Riverwealth had to submit final plans for the proposed development of the Properties by October 2008, which term was not complied with. It is not disputed that the failure to submit these plans put Riverwealth in breach of the terms of the HLF loan, with the result that HLF was entitled to cancel the loan arrangement. On 3 December 2008, HLF demanded that Riverwealth place a $1m fixed deposit pursuant to the terms of the HLF’s loan. This $1m deposit was eventually placed by the Respondent. The Respondent claims that this event changed the complexion of the Initial Agreement – if the profit sharing agreement was to be sustained, capital had to be injected by the Appellant and Park.

The Uluru meeting and the Appellant’s transfer of shares to the Respondent

The Appellant, the Respondent and Park subsequently met at the Uluru restaurant on 17 December 2008 (“the UIuru meeting”). The events that transpired at this meeting are disputed. The only near-contemporaneous record of what occurred at the meeting was an email dated 19 December 2008 sent from the Respondent to Park, copied to the Appellant, recording Park’s purported agreement to transfer his remaining 13% shareholding in Riverwealth (held in Wee’s name) for a nominal sum of $1 and having Wee step down as a director, in exchange for the Respondent undertaking to discharge Park’s obligation under the HLF guarantee and indemnifying Park for any claims arising from the guarantee. However, by an email dated 2 January 2009, Park refused to follow any of the actions outlined in the 19 December 2008 email, citing legal concerns. It is undisputed that Park held on to his 13% of shares.

In contrast, the Appellant executed two deeds of transfer in favour of the Respondent on 30 January 2009 and 27 March 2009, respectively, effectively divesting his remaining 13% of shares in Riverwealth to the Respondent. He also resigned from his position as director on 27 March 2009. The reasons for these actions, which are material to the Appellant’s claim, are disputed. The Respondent transferred 1000 shares to the Appellant on 13 May 2009, which shares were returned to the Respondent on 29 September 2009; however, these transfers are peripheral to the dispute.

The 2010 Suit between Park and the Respondent

The Properties were eventually sold for a sum of $60.08m on 8 October 2009. A dispute between Park and the Respondent first arose over the profits from this sale. Park brought a claim against the Respondent for his share of the profits made under this investment (“the 2010 Suit”), based on the terms of the Initial Agreement. The 2010 Suit was also heard by the Judge. It is crucial to note that the Appellant was a witness in the 2010 Suit for Park, the plaintiff in the 2010 Suit, a matter which will take on greater significance later in this judgment (see [45]–[47] below).

Although the Judge dismissed Park’s claim and allowed the Respondent’s counterclaim based on Park’s misrepresentation (see Lim Koon Park v Yap Jin Meng Bryan and others [2012] SGHC 159 (“the 2012 HC Judgement”)), this court allowed Park’s appeal and affirmed the existence of the Initial Agreement whereby the Respondent and Park (as well as the Appellant in the present proceedings) would share profits from the sale of the Properties in the ratio of 2:1:1 (see Lim Koon Park and another v Yap Jin Meng Bryan and another [2013] 4 SLR 150 (“the 2013 CA Judgment”) at [79]). More importantly, this court also found (at [16]) that with the extra cash injections and increased risk exposure, the Respondent wanted the Appellant and Wee to “either pay for, or transfer to him, their remaining allotment of shares in Riverwealth”, and that the Appellant opted to transfer his shares in Riverwealth to the Respondent.

Pursuant to an order by this court that an inquiry be conducted to determine Park’s share of the profits from the gross sale proceeds of the Properties less specified deductions, the Judge allowed deductions amounting to $5,408,676.58 to be effected from the said gross proceeds (see Lim Koon Park and another v Yap Jin Meng Bryan and others [2015] SGHC 284). At a further hearing, the Judge determined the rate and amount of interest to be awarded to the Respondent in relation to his personal loan extended to Riverwealth (see Lim Koon Park v Yap Jin Meng Bryan [2016] SGHC 29). Both parties appealed to this court; Park’s appeal was allowed in part (in Civil Appeal No 44 of 2016) whilst the Respondent’s appeal was dismissed (in Civil Appeal No 51 of 2016) on 27 October 2016.

What is of special significance for the purpose of CA 152 is the fact the Appellant commenced his claim in these proceedings against the Respondent just a few months after the 2013 CA Judgment (which finally confirmed the success...