Lim Seng Choon David v Global Maritime Holdings Ltd and another and another suit
Jurisdiction | Singapore |
Court | High Court (Singapore) |
Judge | Choo Han Teck J |
Judgment Date | 01 February 2018 |
Neutral Citation | [2018] SGHC 25 |
Citation | [2018] SGHC 25 |
Plaintiff Counsel | Twang Kern Zern and Lam Jianhao Mark (Central Chambers Law Corporation) |
Published date | 21 November 2018 |
Subject Matter | Oral Agreement,Duties,Contract,Directors,Formation,Companies |
Defendant Counsel | Audrey Chiang Ju Hua and Nerissa Tan Yin Shi (Dentons Rodyk & Davidson LLP) |
Date | 01 February 2018 |
Hearing Date | 06 December 2017,01 November 2017,31 October 2017 |
Docket Number | HC/Suit No 1236 of 2015 and HC/Suit No 239 of 2015 |
The two defendants are in the business of providing marine, offshore and engineering consultancy services. The second defendant (“the 2nd defendant”) in Suit 1236 of 2015 (“s 1236/2015”) is a wholly-owned subsidiary of the first defendant in s 1236/2015 (“the 1st defendant”). The plaintiff in s 1236/2015 (“the plaintiff”) was an employee of the 1st defendant and a director of the 2nd defendant.
Suit 239 of 2015 (“s 239/2015”) is the 2nd defendant’s counterclaim against the plaintiff. The plaintiff’s claim in s 239/2015 has been struck out and only the counterclaim (“the Counterclaim”) remains. The two suits have been consolidated. I deal first with the claim in s 1236/2015 (“the Claim”).
The Claim On 24 November 2014, the plaintiff met with Mr Gary Anthony Hogg (“Mr Hogg”). Mr Hogg was a director of both defendants. At the meeting, the plaintiff was asked to retire early. The core of this action concerns what transpired at this meeting. According to the plaintiff, he made an oral agreement between himself and the defendants, who were represented by Mr Hogg (“the Oral Agreement”) at that meeting. The plaintiff alleges that the terms of the Oral Agreement are as follow:
The defendants deny the Oral Agreement. They say that the negotiations between the plaintiff and Mr Hogg were subject to contract. They point out inconsistencies in the plaintiff’s account in relation to the terms of the alleged Oral Agreement and rely on the correspondence between the plaintiff and Mr Hogg after the meeting as well as a draft Separation Agreement and Share Purchase Agreement that were later circulated to the plaintiff to show that no binding agreement was arrived at during the meeting. The defendants also take the position that the plaintiff is employed by the 1st defendant and the obligations of the 1st defendant as the employer were at no time transferred to the 2nd defendant. So, even if the 2nd defendant did allow the unlimited accrual of unused holiday and payments in lieu of such unused holiday and “earned leaves”, these entitlements would not in any case apply to the plaintiff, who was an employee of the 1st defendant.
Relying on the Oral Agreement, the plaintiff claims
To establish an oral agreement, there must be clear evidence that all parties to the alleged agreement intended to create legal obligations by their exchange of words and conduct. This does not seem to be the case here. It appears to me that what transpired on the morning of 24 November 2014 were mere negotiations between the plaintiff and Mr Hogg in relation to the plaintiff’s immediate retirement. I do not doubt that in discussing the plaintiff’s immediate departure, the parties may have discussed the possible compensation that the plaintiff could be entitled to. But this did not necessarily mean that there was an agreement between the parties to be bound by these negotiations.
It is important to show that the terms orally agreed to are consistent with contemporaneous documents. This does not mean that the oral agreement has to be evidenced by a written form of the terms. But contemporaneous documents showing that some agreement was reached can support the plaintiff’s claim. In this case, the plaintiff adduced an email in which he wrote to Mr Hogg stating that he was entitled to “all dues plus 6 months’ salary”. The email was sent the very afternoon of 24 November 2014. There was also a draft Separation Agreement sent to the plaintiff shortly after his departure. Both the documents suggest that the parties were still at the stage of negotiations. Pertinently, the email sent on the very afternoon of the 24 November 2014 did not contain very much detail. If indeed the parties agreed to the specific terms as pleaded by the plaintiff, one would have expected the plaintiff to say something about these terms in his email to Mr Hogg and to make reference to them as being agreed or settled. More crucially, the draft Separation Agreement was also silent on the terms as pleaded by the plaintiff.
On the plaintiff’s best case, only a compensation of six months’ salary was agreed to, since it was expressly mentioned in the email of 24 November 2014. But even then, I find that the parties were at cross-purposes and had no meeting of minds in relation to its basis. While the plaintiff had thought that the offer of six months’ salary was in consideration of his agreeing to a non-competition period of the same duration, the defendants intended for it to be a compensation for his early retirement and had expected the plaintiff to adhere by a non-competition period of 12 months, as indicated in the draft Separation Agreement.
I do not think that the parties themselves believed that an agreement was entered into on the morning of 24 November 2014. From the emails he sent, it seems to me that plaintiff himself believed that negotiations were still ongoing. When asked during trial, the plaintiff candidly agreed that he was telling Mr Hogg what he had wanted in exchange for retirement in his email of 20 January 2015. He did not say that those terms had been agreed upon during the meeting on 24 November 2014. Judging by the language of both Mr Hogg and the plaintiff, I...
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