M2B World Asia Pacific Pte Ltd v Matsumura Akihiko

• Jurisdiction: Singapore
• Court: High Court (Singapore)
• Judge: Judith Prakash J
• Judgment Date: 06 November 2014
• Neutral Citation: [2014] SGHC 225
• Citation: [2014] SGHC 225
• Date: 06 November 2014
• Docket Number: Suit No 944 of 2013 (Registrar’s Appeals Nos 41 and 45 of 2014)
• Defendant Counsel: Zheng Sicong (Rajah & Tann LLP)
• Subject Matter: Summary Judgment,Civil Procedure
• Published date: 12 November 2014
• Plaintiff Counsel: Tang Gee Ni (G N Tang & Co)
• Hearing Date: 07 March 2014

Judith Prakash J: Introduction

The claim in the present proceedings arises out of a purported oral agreement between M2B World Asia Pacific Pte Ltd (“the Plaintiff”) and Mr Matsumura Akihiko (“the Defendant”). The Defendant had allegedly agreed to secure advertising contracts worth at least US$10m annually for the Plaintiff’s new web-based television channel in return for an annual commission of US$1m. No advertising contracts materialised. In April 2010, the Plaintiff sent the Defendant a letter of demand claiming the return of US$1m it said it had paid him as advance commission. The Defendant denied liability.

On 16 October 2013, the Plaintiff commenced this action. The Plaintiff pleaded that at its request, on 24 October 2007, Central Point Co Ltd (“Central Point”) had paid US$1m to the Defendant on its behalf as advance payment of the commission payable under the oral agreement. The Plaintiff claimed repayment of that sum for total failure of consideration. On 18 December 2013, the Plaintiff took out a summary judgment application (Summons No 6467 of 2013 (“Sum 6467/2013”)) pursuant to O 14 r 1 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) (“ROC”). The Defendant resisted the summary judgment application on the basis that there were triable issues arising from his contention that there was never any oral agreement as alleged.

Sum 6467/2013 was heard by an Assistant Registrar (“the AR”) on 29 January 2014. The AR granted the Defendant leave to defend the action on the condition that the Defendant provided a banker’s guarantee for the sum of $100,000. Subsequently the parties filed cross-appeals against the AR’s decision.

I heard both appeals on 7 March 2014. I dismissed the Defendant’s appeal but allowed the Plaintiff’s appeal. The Defendant has since filed an appeal against my decision.

Background

The Plaintiff is a Singapore incorporated company whose business involves, among other things, the provision of internet entertainment content. In connection with this business, the Plaintiff created WOWtv, a web-based television channel.

In or around July 2007, the Defendant was asked to help the Plaintiff secure advertisement contracts for WOWtv so as to generate advertising revenue for the Plaintiff. The Plaintiff claimed that one of its directors, Mr Torisawa Sakae (“Mr Sakae”), was its sole point of contact with the Defendant. The Defendant, however, claimed that he was approached by Mr Sakae and Mr Eddie Lim (“Mr Lim”), a shareholder of the Plaintiff. The significance of this fact will become apparent in the course of these grounds of decision. It ought to be pointed out that Mr Sakae and the Defendant had been acquainted with each other since 2002. The Defendant was a director of Transcu Ltd, of which Mr Sakae was also a director from 23 April 2007 until his resignation on or about 24 April 2008.

The Plaintiff and the Defendant gave varying accounts of what transpired after the Defendant’s help was sought. I set out their cases below.

Plaintiff’s Account

The Plaintiff claimed that the Defendant mentioned that he knew the senior management of Dentsu Co Ltd (“Dentsu”), a large and well-known advertising agency. The Defendant told Mr Sakae that he was confident that he would be able to obtain Dentu’s commitment to annually channel advertising contracts worth over US$10m to the Plaintiff. In or around October 2007, the Plaintiff and the Defendant reached an oral agreement for the Defendant to get Dentsu to channel at least US$10m worth of advertising contracts to WOWtv annually in exchange for which the Plaintiff agreed to pay the Defendant US$1m in commission annually (“the Agreement”).

Subsequently, the Defendant asked the Plaintiff for advance payment of the commission payable under the Agreement with the promise that if the Defendant failed to deliver on his aforementioned obligation under the Agreement, he would refund the Plaintiff the full commission paid. Relying on this undertaking, the Plaintiff effected payment of US$1m to the Defendant’s Credit Agricole (Suisse) SA account on or about 24 October 2007. The payment was made through Central Point. The Plaintiff exhibited bank debit and credit statements to evidence this transfer.

Thereafter, the Defendant introduced Mr Sakae to the then Senior Managing Director of Dentsu, Mr Haruyuki Takahashi (“Mr Takahashi”). Mr Takahashi arranged meetings for Mr Sakae in Dentsu’s Shanghai and Beijing offices in a bid to help the Plaintiff procure advertising for WOWtv. However, these meetings came to nought and Dentsu did not award a single advertising contract to WOWtv.

Defendant’s Account

There are a number of permutations of the Defendant’s case. The common elements in the various permutations are that (a) there was no agreement between the Plaintiff and the Defendant as alleged by the Plaintiff; and (b) the sum of US$1m that was paid to the Defendant on or about 24 October 2007 was received by him on behalf of a third party. At this juncture, I will simply set out the final version of the Defendant’s case as it was presented before me.

The Defendant claimed that Mr Sakae and Mr Lim approached him sometime during or around July 2007, seeking his assistance to secure advertising revenue for WOWtv. Mr Sakae and Mr Lim asked if he had any business contacts within Dentsu. The Defendant did not personally know anyone within Dentsu. However, he introduced Mr Sakae and Mr Lim to his close business partner of more than 30 years, Mr Kunio Kubota (“Mr Kubota”), who was personally acquainted with Mr Takahashi. The Defendant also requested Mr Kubota to explore the possibility of setting up a meeting between Mr Sakae, Mr Lim and Mr Takahashi. Mr Kubota acceded. The Defendant was present only for the first of a series of meeting between these parties. The Defendant claimed that he helped to set up the meeting, “as a personal favour to [Mr Sakae] and entirely on a gratuitous basis”. He denied ever agreeing to obtain Dentsu’s commitment to annually channel advertising contracts worth over US$10m to the Plaintiff in return for commission.

The Defendant also claimed that he did not receive any money from the Plaintiff. He did not deny that US$1m was credited to his Credit Agricole (Suisse) SA account from Central Point. He claimed that the money in fact came from Mr Lim. He asserted that the Plaintiff had been unable to provide any evidence to show that Central Point had disbursed money on behalf of the Plaintiff despite his expressly disputing that the money had come from the Plaintiff.

The Defendant’s explanation as to why Central Point had transferred US$1m to him is as follows. He claimed that Mr Lim wanted to pay Mr Kubota US$1m to: Reward Mr Kubota and Mr Takahashi so that they would continue to...