Lin Jianwei v Tung Yu-Lien Margaret and another

• Jurisdiction: Singapore
• Court: Court of Three Judges (Singapore)
• Judge: Andrew Phang Boon Leong JCA,Steven Chong JCA,Belinda Ang Saw Ean JAD
• Judgment Date: 02 July 2021
• Neutral Citation: [2021] SGCA 67
• Citation: [2021] SGCA 67
• Docket Number: Civil Appeal No 137 of 2020 (Summonses No 90 of 2020 and 27 of 2021), Civil Appeal No 140 of 2020 (Summons No 91 of 2020) and Originating Summons No 42 of 2020
• Published date: 07 July 2021
• Defendant Counsel: Davinder Singh s/o Amar Singh SC, Cheryl Tan Siew Wei, Pardeep Singh Khosa, Tan Mao Lin, Kenneth Koh Tze Wei and Chua Shu Yuan Delvin (Davinder Singh Chambers LLC),The second respondent absent.
• Plaintiff Counsel: Eugene Singarajah Thuraisingam, Chooi Jing Yen and Joel Wong En Jie (Eugene Thuraisingam LLP),Kenneth Tan SC (Kenneth Tan Partnership) (instructed), Eng Zixuan Edmund, Tham Wei Chern, Brinden Anandakumar, Danica Gan Fang Ling and Chang Chee Jun (Fullerton Law Chambers LLC)
• Hearing Date: 01 April 2021
• Subject Matter: Striking out,Leave,Appeals,Civil Procedure

Andrew Phang Boon Leong JCA (delivering the grounds of decision of the court): Introduction

These grounds concern the latest instalment in the long running feud between Mr Lin Jianwei (“Lin”) and Mdm Tung Yu-Lien Margaret (“Tung”), the only two shareholders and directors of Raffles Town Club Pte Ltd (“RTC”). As we will elaborate upon later, this unfortunate episode takes the form of a tangled and costly procedural mess which serves no one, least of all, RTC.

By way of a brief overview, CA/SUM 90/2020 (“SUM 90”) and CA/SUM 91/2020 (“SUM 91”) are Tung’s applications to strike out Lin’s Notices of Appeal in CA/CA 137/2020 (“CA 137”) and CA/CA 140/2020 (“CA 140”), respectively.

CA/OS 42/2020 (“OS 42”) is Lin’s application for leave to appeal against the decision of the High Court judge (“the Judge”) in HC/SUM 3929/2020 (“SUM 3929”) or, in the alternative, leave to appeal against the Judge’s decision in HC/SUM 1281/2020 (“SUM 1281”) and the consequent grant of an extension of time (“EOT”) in respect of such leave.

CA/SUM 27/2021 (“SUM 27”) is Lin’s application to adduce further evidence in respect of his appeal in CA 137.

We heard these cross-applications (“Cross Applications”) on 1 April 2021 and allowed SUM 90 and SUM 91 to strike out the Notices of Appeal in CA 137 and CA 140, respectively, as Lin had filed the notices without first obtaining the requisite leave to appeal. In the light of our decision on SUM 91, we dismissed OS 42 which engaged much of the same issues. As for SUM 27, the question of whether leave ought to be given for Lin to adduce further evidence in SUM 27 for the substantive appeal in CA 137 was rendered nugatory in the light of our decision to strike out the Notice of Appeal for CA 137, and we thus dismissed it as well. We ordered Lin to pay Tung a global sum of $40,000 in costs (all-in) in respect of SUM 90, SUM 91, SUM 27 and OS 42. There were to be the usual consequential orders.

We now give the detailed grounds for our decision.

Facts and background

Lin is the Executive Director and Chairman of RTC. He owns 60% of RTC’s shares. Tung is the only other director of RTC and holds the remaining 40% of its shares. RTC did not take an active part in the Cross Applications.

The genesis of the Cross Applications can be traced to HC/OS 1446/2018 (“OS 1446”). This was commenced by Lin on 23 November 2018 to: (a) seek a declaration that one Mr Poon Hon Thang (“Mr Poon”) had been validly appointed as a third director of RTC; or, alternatively, (b) seek an order for the court to convene a shareholders’ Extraordinary General Meeting (“EGM”) to effect Mr Poon’s appointment. By way of her reply affidavit dated 18 January 2019, Tung counterclaimed in OS 1446 for orders and declarations that several notices of EGMs and the decisions taken at those EGMs, as well as several notices of board of directors’ meetings and the decisions made at those meetings, were invalid and of no effect.

On 11 October 2019, Lin withdrew his claims in OS 1446, leaving only Tung’s counterclaims. OS 1446 is stayed pending the outcome of HC/S 1048/2018 – a suit between Lin and Tung concerning the transfer of shares in RTC and its related companies, as well as certain sums owed between them in relation to RTC’s affairs.

A slew of related disputes subsequently arose between Tung and Lin, which resulted in a flurry of applications being filed in court. Unsurprisingly, the parties’ dispute in OS 1446 spawned a tangled procedural tapestry. Before laying out the chronology of these related disputes, it is helpful to provide a map of this tapestry.

In the course of OS 1446, Tung took issue with the fact that Lin’s then solicitors were also representing RTC in OS 1446. In her view, Lin was conflicted from appointing RTC’s lawyers and RTC had to be separately and independently represented by another set of lawyers in OS 1446. Tung thus engaged Nair & Co LLC (“N&C”) to act for RTC. In the face of Lin’s vehement objections to the same, Tung filed HC/SUM 4/2019 (“SUM 4”) seeking a declaration that only she was entitled to engage solicitors to act for and represent RTC in connection with OS 1446, and that N&C had been validly appointed.

The parties eventually reached a consent order dated 4 March 2019 (“4 March 2019 Consent Order”). The 4 March 2019 Consent Order provided that Lin’s solicitors were to provide a list of 30 law firms in Singapore to Tung, from which Tung would choose one to represent RTC in OS 1446 and all appeals therefrom. It also stated that RTC would pay the costs of the chosen firm as well as those of N&C and that only Tung (or anyone on her behalf) would be entitled to give instructions to the firm on RTC’s behalf.

The pertinent terms of the 4 March 2019 Consent Order are as follows: 2. [Lin’s lawyers] will provide a list of 30 law firms in Singapore by noon, Monday, 11 March 2019, from which [Tung] shall be entitled, in her discretion, to select one and to engage that law firm in the name and on behalf of RTC to act for and represent RTC, as well as give instructions to and receive advice from such solicitors, in and in connection with this OS and all appeals therefrom. RTC will pay for all that law firm’s fees and expenses without requiring for that or for any other purpose the law firm or [Tung] to produce the instructions from [Tung] or anyone on her behalf to the law firm, the advice from that law firm or communications, oral or otherwise, between that law firm and [Tung] or anyone on her behalf; 3. The selected law firm shall act only in what it considers to be in the best interests of RTC in and in connection with this OS and all appeals therefrom; 4. Lin accepts that only [Tung], and anyone on her behalf, and no one else (including Lin), shall be entitled to give instructions to that selected law firm and to receive and be privy to any instructions, advice and communications, oral or otherwise, with and from that selected law firm, including but not limited to instructions, advice and communications, oral or otherwise, with and from Nair & Co LLC (‘N&C’); 5. Lin accepts that all instructions, advice and communications in and in connection with this OS and any appeals therefrom between [Tung] and N&C and between [Tung] and the selected law firm, as well as between [Tung] and RTC (and their respective solicitors) are privileged and that Lin is not entitled to them; and

…

7. RTC shall reimburse [Tung] for the costs incurred and paid or to be paid by her to N&C in connection with her engagement of N&C on behalf of RTC in and in connection with this OS.

[emphasis added]

In connection with this, Tung chose Joseph Tan Jude Benny LLP (“JTJB”) to act for RTC. From 11 March to 25 October 2019, Tung personally made payments totalling $458,125.16 to N&C and JTJB for their work done in, and in connection with, OS 1446 (ie, $66,531.70 to N&C and $391,593.46 to JTJB). According to Tung, she did so as she was concerned that Lin would withhold his approval for RTC to pay the fees. To prevent this from impacting the law firms, Tung paid them upfront and planned to seek reimbursement from RTC later. When Lin learned of Tung’s request for reimbursement, he wrote to RTC’s staff instructing them not to reimburse her. This is because he took the view that the fees were not fair or reasonable. On 11 February 2020, Lin wrote to Tung officially, in his capacity as the Executive Director and Chairman of RTC, informing her that the fees charged by N&C and JTJB were “unreasonable, disproportionate and/or exorbitant” and that it would be in RTC’s interests to tax their invoices. We refer, collectively, to the fees of N&C and JTJB as the “Lawyers’ Fees”.

On 16 March 2020, Lin filed HC/OS 320/2020 (“OS 320”) seeking leave under s 216A of the Companies Act (Cap 50, 2006 Rev Ed) (“Companies Act”) to bring proceedings under RTC’s name for the taxation of the Lawyers’ Fees.

On 17 March 2020, Tung filed SUM 1281 seeking an order that RTC reimburse her for the Lawyers’ Fees paid to JTJB and N&C, on the basis of the 4 March 2019 Consent Order.

On 27 July 2020, the Judge released his ex tempore judgment in Lin Jianwei v Tung Yu-Lien Margaret and another and another matter [2020] SGHC 158 (“the First Judgment”) dismissing OS 320 and allowing SUM 1281. He held that: Leave should not be granted under s 216A of the Companies Act in OS 320 as: The evidence did not show that Lin was acting in good faith (see the First Judgment at [13]). Section 122 of the Legal Profession Act (Cap 161, 2009 Rev Ed) (“LPA”) applied such that special circumstances were required to warrant an order for taxation, as payment of the Lawyers’ Fees had been made and/or more than 12 months had passed since the delivery of the bills for some of the fees. However, special circumstances had not been shown (see the First Judgment at [17]–[20]). The import of the 4 March 2019 Consent Order was that Lin had agreed that Tung would be solely responsible for liaising with RTC’s solicitors and managing its affairs in connection with this. There was no expectation of any involvement on Lin’s part. As such, Tung was entitled to assess the Lawyers’ Fees and make payment for the same on RTC’s behalf and to seek reimbursement from RTC subsequently (see the First Judgment at [22]). Lin did not take the position that he was not willing to pay the Lawyers’ Fees at all. Instead, his request was for the fees to be sent for taxation. As s 122 of the LPA precluded taxation, SUM 1281 was allowed and Tung was entitled to be reimbursed (see the First Judgment at [24]–[28]).

On 12 August 2020, Lin filed CA 137 against the Judge’s refusal to grant leave for him to commence a derivative action under s 216A of the Companies Act. On 14 August 2020, Lin filed CA 140 against the Judge’s decision in SUM 1281 to order RTC to reimburse Tung for the Lawyers’ Fees.

On 27 August 2020, Tung took out SUM 90 and SUM 91 to...