Lisa Oh v Ho Mew Lin and another

• Jurisdiction: Singapore
• Judge: Lewis Tan
• Judgment Date: 04 February 2021
• Neutral Citation: [2021] SGDC 22
• Court: District Court (Singapore)
• Docket Number: District Court Suit No 1265 of 2019 (Summons No 2273 of 2020)
• Year: 2021
• Published date: 17 February 2021
• Hearing Date: 25 January 2021
• Plaintiff Counsel: Yik Xin Ying (KSCGP Juris LLP)
• Defendant Counsel: First Defendant in person,Second Defendant in person.
• Subject Matter: Civil Procedure,Summary judgment,Extension of time to file application for summary judgment,Fraudulent misrepresentation,Conditional leave to defend,Res judicata,Issue estoppel,Identity of parties and subject matter
• Citation: [2021] SGDC 22

Deputy Registrar Lewis Tan: Introduction

This application for summary judgment arises from a botched “investment scheme” (“the Scheme”) between the plaintiff, Ms Lisa Oh (“the Plaintiff”), and Ms Lua Lay Eng (“Cyndi”). Under the Scheme, Cyndi promised to repay the Plaintiff a hefty sum of $160,000 in return for an advancement of $50,000. According to the Plaintiff, she had been induced by representations made by her former solicitor, Mr Paul Yong Wei Kuen (“the Second Defendant”), to make the advancements to Cyndi.

These advancements were made through a series of circuitous transfers, none of which were made directly to Cyndi. Instead, the funds were either handed to the Second Defendant in person or transferred to a bank account in the name of his mother, Ms Ho Mew Lin (“the First Defendant”). These funds were then routed by the Second Defendant to a Singapore bank account owned by Cyndi’s domestic helper, Ms Siti Ismujiati (“Ms Siti”). Supposedly, Ms Siti would then assist in sending the sums to Cyndi in Indonesia.

As it turned out, Cyndi was an undischarged bankrupt at the material time, and she has not paid any part of the promised $160,000. The Second Defendant was also struck off the roll of advocates and solicitors for his involvement in the Scheme.

After the Second Defendant was struck off, the Plaintiff applied for summary judgment against the First and Second Defendants, seeking damages in the sum of $196,249 and/or the recovery of the $49,500 that she had advanced. The grounds relied on are fraudulent misrepresentation, unlawful means conspiracy, and unjust enrichment and/or trust. The Plaintiff further alleges that the Second Defendant is estopped by the doctrine of res judicata from raising defences to the claims.

Facts

The Second Defendant was a solicitor of some 20 years’ standing, practicing at Thames Law LLP. Prior to introducing the Plaintiff to the Scheme, he had represented the Plaintiff in various conveyancing matters, as well as in the preparation of the Plaintiff’s will.¹

The advancements and failure to repay

Sometime in May 2016, the Second Defendant began approaching the Plaintiff, informing her that if she were to advance various sums to Cyndi, Cyndi would repay the Plaintiff the principal sum advanced along with large “incentive payments” within a short period of time.² Thereafter, the Plaintiff advanced a total of $40,000, as follows:³ On 16 May 2016, the Plaintiff handed $28,000 in cash to the Second Defendant. On 17 May 2016, the Plaintiff made a bank transfer of $1,000 to the First Defendant’s POSB account (“the First Defendant’s POSB Account”). On 24 May 2016, the Plaintiff transferred a further $8,000 and $3,000 to the First Defendant’s POSB Account.

After the above $40,000 was advanced by the Plaintiff, the Second Defendant represented to the Plaintiff that Cyndi required a further sum of $10,000. The Plaintiff agreed to extend an additional $10,000 on condition that Cyndi signed a document acknowledging the sums received, as well as the terms of repayment. In accordance with this, the Second Defendant drafted a document titled the “Acknowledgment of Receipt of Funds”, along with an annexure (collectively, “the First Agreement”), which read as follows:⁴

I, [Cyndi], … acknowledge that I had (sic) received a total sum of S$40,000.00 from [the Plaintiff] in tranches, that is, on 16 May 2016 and 24 May 2016 respectively.

In consideration of the receipt of the said sum of S$40,000.00 from [the Plaintiff], I agree to the following: (i) I shall repay [the Plaintiff] the said sum of S$40,000 within 2 weeks from 24 May 2016, together with a sum of S$80,000.00. For the purpose of clarity, I confirm that the said sum of S$80,000.00 does not constitute interest payable on the said sum of S$40,000.00, and [the Plaintiff] is not in the business of money-lending. (ii) Subject to the foregoing, if [the Plaintiff] agrees to advance a further sum of S$10,000.00…, I shall repay her the said further sum of S$10,000.00, together with a sum of S$40,000.00.

I further confirm that I am making this document voluntarily and without coercion from anyone.

Dated this 28 May 2016.

…

Further to the Acknowledgment of Receipt of Funds (AORF) dated 28 May 2016, I, [Cyndi] hereby confirm and agree that in addition to the terms of the AORF, I shall also pay for the same (economy class) for [the Plaintiff] and her assistant to Hong Kong to collect the repayment as per the AORF, when the funds are released from the banks.

Thereafter, on 30 May 2016, the Plaintiff gave the Second Defendant a further sum of $9,500 in cash. The shortfall of $500 to make up the sum of $10,000 was then allegedly paid for by the Second Defendant on the Plaintiff’s behalf.⁵

In total, the Plaintiff advanced $49,500. In return for the advances, she expected to receive $160,000, being the sum of the principal and the promised returns, as set out in the First Agreement. Per the terms of that agreement, the $160,000 was to be paid by Cyndi in Hong Kong, and the Plaintiff (and her assistant) would also be reimbursed by Cyndi for their flights there.

However, when the Plaintiff arrived in Hong Kong on 16 June 2016, Cyndi failed to make payment of the $160,000. Instead, Cyndi sought an extension of time until 22 June 2016 to make payment.⁶ To compensate the Plaintiff for her wasted trip to Hong Kong as well as for the delay in payment, a new document was drafted by the Second Defendant, and signed by the Plaintiff and Cyndi, wherein Cyndi agreed to pay an additional $36,249 atop the $160,000 that was previously payable (“the Second Agreement”). Hence, the total sum payable by Cyndi was increased to $196,249, this being the sum of the Plaintiff’s claim in the present action.⁷

Despite signing the Second Agreement, no sums were forthcoming from Cyndi. Pressed by the Plaintiff, the Second Defendant then proceeded to draft four further agreements (namely, the Third Agreement to the Sixth Agreement) from October 2016 to May 2017. Each successive agreement recorded an ever-increasing sum that was due and outstanding from Cyndi to the Plaintiff for the advancement of $50,000 (being the $49,500 that was advanced by the Plaintiff, and the $500 that was allegedly advanced by the Second Defendant on the Plaintiff’s behalf). By the Sixth Agreement dated May 2017, the sum due from Cyndi to the Plaintiff had ballooned to $593,736.47.⁸

Notwithstanding the above agreements, till date, nothing has been paid by Cyndi and/or the Second Defendant to the Plaintiff. Sometime in June 2017, the Second Defendant and Cyndi also ceased all communication with the Plaintiff, who later discovered that Cyndi was made a bankrupt on 30 April 2015, before the Plaintiff made any of the advancements.⁹ As at November 2020, Cyndi remained an undischarged bankrupt.¹⁰

Commencement of present proceedings

In February 2018, the Plaintiff commenced an action against the First Defendant, seeking the return of the $12,000 which had been transferred to the First Defendant’s POSB Account (see [6(b)]–[6(c)] above). The Second Defendant was subsequently joined as a defendant, and by her amended Statement of Claim dated 18 March 2019, the Plaintiff claimed:¹¹ Against the Second Defendant only: the sum of $196,249 or a sum to be assessed, being damages for fraudulent misrepresentation; and/or the sum of $37,500, being the aggregate of $28,000 and $9,500 that was given to the Second Defendant in cash, which the Second Defendant holds on trust or which he has been unjustly enriched by. Against the Defendants jointly and severally: the sum of $196,249 or such other sum which the Court deems fit, being damages for their unlawful conspiracy to defraud the Plaintiff; and/or the sum of $12,000, being the aggregate sum that was transferred to the First Defendant’s POSB Account, which the Defendants hold on trust or which they have been unjustly enriched by.

The First Defendant did not file an amended Defence to the new Statement of Claim. Instead, she stood by the position set out in her Defence dated 26 March 2018, namely that her bank account had been utilised by the Second Defendant, who was granted full autonomy in respect of the usage of the account, and that she did not therefore have any knowledge of the transfers that were made into her bank account.¹²

By his Defence and Counterclaim dated 1 July 2019, the Second Defendant claimed that he was a mere proxy between the Plaintiff and Cyndi with regard to the Scheme. While he had approached the Plaintiff on Cyndi’s behalf, he “was not in any way privy to the transaction between them, nor did he profit from the same, financially or otherwise”.¹³ Cyndi had acknowledged receipt of the entire $50,000, which were advanced to her for different purposes that were legitimate, such as to pay for outstanding taxes owed by Cyndi’s company to the land authority.¹⁴ As such, the Second Defendant “never made any misrepresentations to the Plaintiff as alleged”, and he did not benefit in any way from the Scheme.¹⁵ By his counterclaim, the Second Defendant also sought the repayment of the $500 which he allegedly transferred to Cyndi on the Plaintiff’s behalf.¹⁶

The Plaintiff filed her Reply and Defence to Counterclaim on 31 December 2019, wherein she alleged that she had advanced the $49,500 due to the Second Defendant’s representations and the relationship of mutual trust and confidence that stemmed from their solicitor-client relationship.¹⁷ She also refuted the Second Defendant’s counterclaim for $500, as the Second Defendant had allegedly agreed to cover that sum to induce the Plaintiff to advance the final tranche of $10,000 to Cyndi.¹⁸

The Disciplinary Proceedings of the Second Defendant

While the present action was underway, on 31 January 2018, the Plaintiff filed a complaint with the Law Society of Singapore (“the Law Society”) against the Second...