Mark Alexander Goodger v Sim Kiang Lee Thomas

• Jurisdiction: Singapore
• Judge: Ng Tee Tze Allen
• Judgment Date: 29 December 2023
• Neutral Citation: [2023] SGDC 304
• Court: District Court (Singapore)
• Docket Number: District Court Suit No 731 of 2021
• Hearing Date: 21 June 2023,17 April 2023,18 April 2023,31 October 2023
• Citation: [2023] SGDC 304
• Year: 2023
• Plaintiff Counsel: Nandhu and Lu Yanrong Elcia (RHTLaw Asia LLP)
• Defendant Counsel: Nicholas Narayanan (Nicholas & Tan Partnership LLP)
• Subject Matter: Agency,Classes of agent,Duties of agent,Breach,Equity,Remedies,Account of profits,Equitable compensation,Tort,Misrepresentation,Fraud and deceit,Negligent misrepresentation
• Published date: 05 January 2024

District Judge Ng Tee Tze Allen:

This case concerns the plaintiff’s three attempts at investing in Thai real estate. Two of these attempts were not terribly successful. He failed to complete two of the three transactions thereby forfeiting the sums which he paid for them. In this action, the plaintiff sought to recover these sums together with the losses which he claimed he suffered in respect of the third property from the defendant.

The defendant is the individual who recommended the properties to the plaintiff. The plaintiff alleged that the defendant was his agent and that he had breached his fiduciary duties. He also alleged that the defendant made negligent and/or fraudulent misrepresentations. These breaches, the plaintiff alleged, caused him loss for which the plaintiff seeks equitable compensation and in the alternative common law damages. The plaintiff also sought an account of profits for the alleged breaches of fiduciary duties.

The plaintiff also asserted that the defendant undertook to procure furniture and fitting for two of the properties. But instead of delivering them, the defendant either kept the furnishing or received refunds for the same. Accordingly, the plaintiff seeks return of the monies he paid for the same.

Having considered the submissions and evidence, I allow the plaintiff’s claim in part. These are my reasons.

Facts The parties

The plaintiff is a South African businessman, and the defendant is a Singaporean businessman.

The parties met in or around 2010. While their initial interaction was professional, they started interacting socially subsequently.¹

The defendant started assisting the plaintiff invest in Thai properties

The plaintiff’s interest in Thai properties started in or around 2016. At this point, the plaintiff was unfamiliar with the Thai property market.²

The defendant, by contrast, had experience investing in Thai properties by the time.³ After learning of the plaintiff’s interest, the defendant offered his help. On 9 May 2016, he sent the plaintiff WhatsApp messages to encourage him to invest in Thai properties. He claimed that he had “bought 5 condo units here in [Bangkok] already”,⁴ and encouraged the plaintiff to “invest in [Bangkok] to make monies”⁵ because the “market here still looks positive even though many markets are not depressing in most countries due to global melt down [and that it] is time to buy more here now as prices stabilised and poise for further growth [sic] in time to come”.⁶ The defendant also told the plaintiff that “if you [i.e. the plaintiff] have any interests, I [i.e. the defendant] can hold your hands in to enjoy the profits”.⁷

The plaintiff was keen. He responded on the same day stating, “I am indeed interested Thomas without a doubt”,⁸ “[i]n fact I was planning to go again to Thailand in August and investigate so your advice and partnership would do well …”⁹ A similar message was sent on 14 May 2016 where the plaintiff told the defendant “Thomas I have had a look at the Thailand apartment pictures you have sent me. I’m really interested in going in with you”.¹⁰

The defendant continued sharing his views on investing in Thailand in the messages that followed. These included various strategies “with regard property investments in this region” and claimed that his own investments “[a]lready yielded results”. The defendant offered again to “hand hold” the plaintiff.¹¹

The plaintiff accepted the defendant’s assistance. In this respect, and on the defendant’s own case, the defendant assisted the plaintiff by:¹² recommending Thai properties; sharing his views on the property market; arranging the relevant logistics for the plaintiff to attend in Bangkok to view the properties (if necessary) and complete the necessary paperwork; making instalment payments on behalf of the plaintiff; and helping the plaintiff open a Thai bank account.

Nature of the Thai properties

All in, the plaintiff agreed to purchase three properties that the defendant recommended. They are: a unit in a condominium project known as the Life Asoke project: Life Asoke, Unit No. N10B01, 46 Din Daeng Rd, Bang Kapi, Huai Khwang, Bangkok 10310, Thailand (the “Life Asoke Property”); a unit in a condominium project known as the Ideo New Rama project: Ideo New Rama 9, Unit No. 19-46, 1787 Ramkhamhaeng 7 Alley, Hua Mak, Bang Kapi District, Bangkok 10240, Thailand (the “Ideo New Rama Property”) ; and a unit in a condominium project known as the Metro Sky project: Metro Sky Prachachuen, Unit No. 769/189, 770 Pracha Chuen Rd, Wong Sawang, Bang Sue, Bangkok 10800, Thailand (the “Metro Sky Property”).

All three properties were under construction when the defendant recommended them. As such, the plaintiff did not obtain title to them when he agreed to purchase them. Instead, he obtained a contractual right against the developer for title to vest if he completed the purchase. If, however, the plaintiff failed to complete the purchase, title will not vest, and the plaintiff will also forfeit his previous payments. For ease of reference, I shall refer to the aforesaid contractual rights as “purchase rights” in the remainder of my judgment.

There are two sources for these “purchase rights”: the plaintiff can obtain them either from the developer directly, or from third parties who owned such rights. Either way, the plaintiff would complete the purchase the same way. First, the plaintiff will need to pay whatever outstanding sums that is due for the property. This would include an initial booking fee (assuming the purchase rights were being obtained from the developer), monthly installment payments, and a final payment which becomes due once the property’s construction is complete.

Second, the plaintiff also needed to obtain Foreign Exchange Transaction (“FET”) certificate(s) for an amount equal to the contract sum with the developer.¹³ This requirement arose under Thai law because the plaintiff is not a Thai national. Without the FET certificate, the Thai Land Office would not register the transfer of title. FET certificate(s) are important for one further reason. They are needed to remit the sales proceeds out of Thailand after the property is sold. There are two ways to obtain FET certificate(s): A purchaser can transfer funds into his own Thai bank account. These funds must be transferred in as a foreign currency and subsequently converted into Thai Baht by the Thai bank. The Thai bank will then issue the FET certificate. Alternatively, a purchaser can remit the foreign currency to the developer who will obtain the FET certificate on his behalf.

I turn to what transpired for each of the three properties.

The defendant’s recommendation of the Life Asoke Property

The first property in question is the Life Asoke Property.

The defendant was the owner of the purchase rights to the Life Asoke Property. He acquired it on 8 February 2016 when he and one Mr Nattawit Dejatiwongse (i.e., the previous owner) signed a “Memo of Transferring Rights under the Agreement” wherein Mr Nattawit assigned his purchase rights in the Life Asoke Property to the defendant.¹⁴

Six months later, on 14 August 2016, the defendant sent the plaintiff an email to recommend the Life Asoke Property along with two other properties. Further emails and WhatsApp messages were exchanged which I will elaborate on later (see [81]-[83] below). Suffice to state, the plaintiff alleged, and the defendant denied, that various misrepresentations were made in these correspondences.

The plaintiff agreed to purchase the Life Asoke Property. On 16 August 2016, he sent an email to the defendant stating that the Life Asoke Property “sound[ed] best to [him].” On 24 September 2016, the plaintiff flew to Bangkok to complete the necessary paperwork. Before heading to the developer’s office to do that, the defendant handed the plaintiff a copy of an assignment agreement dated 16 August 2016 (the “16 August 2016 Assignment Agreement”) which read:¹⁵

WHEREAS, [Mr Nattawit] wishes to assign all of its rights and obligations under the Sell and Purchase Agreement to [the defendant], and [the defendant] hereby understands and agrees to be assigned all of [Mr Nattawit’s] rights and obligations under the Sell and Purchase Agreement and has fully paid the transferring fee [Mr Nattawit],

NOW THEREFORE, [Mr Nattawit] and [the defendant] agree as follows: 1. [Mr Nattawit] and [the defendant] agree that the price of the [Life Asoke Property] shall be Baht 5,000,000.00 … and the assignment fee to be paid by [the defendant] to [Mr Nattawit] on the assignment date paid as follows: · Down Payment: in the amount of Baht 1,517,456.00 … by 16 August 2016 to [Mr Nattawit] 2. Apart from the assignment fee to be paid to [Mr Nattawit], … [the defendant] is responsible for the remaining amount of the unit selling price … at the amount of Baht 231,921.00 … which is separated into 17 installments … and the last installment shall be payable to the Developer at the amount Baht 3,250,623.00.

The parties then headed to the developer’s office where they signed a Memorandum of Assigning Contract Rights whereby the defendant assigned his purchase rights to the plaintiff.¹⁶ Thereafter, the plaintiff became responsible for the remaining payments to the developer. This included the monthly instalment payments as well as the final payment which was due on 31 May 2018.¹⁷

All in, the plaintiff transferred a total of USD 39,279.20 and THB 533,120 to the defendant for the Life Asoke Property. It is common ground that these sums were supposed to pay for: the downpayment due to Mr Nattawit to acquire his purchase rights to the Life Asoke Property which comprised: (i) Mr Nattawit’s profit, as well as (ii) whatever sums Mr Nattawit had already paid the developer; and the subsequent monthly instalments due to the developer. However, the parties disagreed as to whether...