MIDAS Promotions Pte Ltd v LAMC Productions Pte Ltd and others

• Jurisdiction: Singapore
• Judge: Koh Juay Kherng
• Judgment Date: 15 September 2016
• Neutral Citation: [2016] SGDC 189
• Court: District Court (Singapore)
• Docket Number: District Court Suit No. 1720 of 2012
• Published date: 21 October 2016
• Year: 2016
• Hearing Date: 07 January 2016,07 July 2016,11 February 2016,10 February 2016
• Plaintiff Counsel: Han Wah Teng (M/s Toh Tan LLP)
• Defendant Counsel: Salem Ibrahim (M/s Salem Ibrahim LLC)
• Subject Matter: Contract,Breach of Contract
• Citation: [2016] SGDC 189

District Judge Koh Juay Kherng:

On 7th July 2016, I gave my oral grounds of decision and dismissed the Plaintiff’s claim with costs. The Plaintiff has appealed against my decision. I now set out the written grounds of my decision.

Introduction

Russell Dominic Peters (“Peters”) is a Canadian comedian and actor. Forbes had at one time rated him as the third-highest-paid comedian.¹ His success can be hugely rewarding for event organisers and promoters like the Plaintiff and the Defendants in this action.

The key players mentioned in this dispute are as follows: Michael Desmond Hosking (“Hosking”), a Director of the Plaintiff, Midas Promotions Pte. Ltd. (“Midas”). Hosking was the prime mover of the Peters event in Singapore and of this action; James Ross Knudson (“Ross”), is the 2nd Defendant and Director of the 1st Defendant, LAMC Productions Pte Ltd (“LAMC”); Alabons Anastasia Lauretta (“Lauretta”), is the 3rd Defendant and Director of LAMC; Clayton Peters (“Clayton”), the brother and manager of Peters; Marlene Tsuchii (“Marlene”) of Creative Artists Agency (“CAA”), the Events Agent representing Peters and Clayton. The 1st, 2nd and 3rd Defendants will be referred to collectively as the “Defendants” where appropriate.

This action was commenced by the Plaintiff against the Defendants for breach of an agreement allegedly made between the parties to promote a live event (“Event”) in Singapore featuring Peters. The Event was then scheduled to be staged on or around 5 or 6 May 2012². The Plaintiff’s case is that the parties had an agreement on a joint venture basis, whereby the Plaintiff and the 1st Defendant were to share the rights and obligations of staging the Event; as well as to share all revenues arising from the Event, on an agreed 50/50 basis (the “Agreement”). The Plaintiff also claimed that the Defendants had conspired to cause harm or losses to them. The Plaintiff alleged that the predominant intention of the 2nd and 3rd Defendant was to exclude the Plaintiff from bidding by “offering” to negotiate for a flat deal (for and on behalf of the 1st Defendant and the Plaintiff) with the Events Agent. At this juncture, I make the observation that it was the Plaintiff who approached the 2nd Defendant (Ross) and not the other way round. To suggest that it was the 2nd and 3rd Defendants who offered to negotiate for the flat deal on behalf of the parties is plainly misleading.

The Plaintiff claimed that pursuant to the Agreement, the parties had subsequently agreed, inter alia, that :- the Plaintiff and the 1st Defendant would each submit identical bids on a flat fee deal basis (“flat deal”) to Marlene of CAA, so as to establish for the purposes of the Events Agent a “market rate” which would be charged by two significant concert promoters in Singapore. In this case, it would be the Plaintiff (Midas) and the 1st Defendant (LMAC). This was done in a hope to prevent an unreasonably exaggerated view on the part of CAA about the pricing for events of the same sort in Singapore; and whoever gets selected by the Events Agent to promote the Event shall share, with the other, the revenues from the deal with the other on a 50/50 basis³.

Lauretta explained the artiste’s remuneration structure on a flat deal and percentage deal basis as follows: a. “Flat Deal i. The promoter agrees to pay the artiste a fixed sum for the event; ii. Where an event reaps a large profit, the promoter enjoys high earnings because the artiste is only paid a flat fee and nothing further; and iii. This is the preferred structure by the promoter. b. Percentage deal i. The artiste and the promoter agree that the artiste is paid the higher of an agreed artiste fee or a percentage split of the profits of the event in percentages such as 90/10, 80/20 or 70/30 in favour of the artiste; ii. Such a percentage deal is not usually preferred by the promoter as the promoter’s eventual earnings may not be very high. ⁴ ”

The Plaintiff alleged that in breach of the Agreement, the 1st Defendant submitted a bid based on a percentage deal basis, instead of the agreed flat deal, on their own and/or failed to withdraw their previous percentage deal bid and entered into a contract with Marlene to promote the Event to the exclusion of the Plaintiff, resulting in damages and loss of income to the Plaintiff.

Brief Chronology of Events according to the Plaintiff.

The relevant events, according to the Plaintiff, are as follows:-:

Time	Event
16 December 20115	The Plaintiff’s Hosking was approached by Clayton, to submit offers to promote and organise shows for Peters in Dubai, Abu Dhabi, Bangkok and Jakarta.
Around 15 March 2012	The Plaintiff approached the Defendant(s) and entered into the Agreement to co-promote the Peters show on a joint venture basis. Each party was to have submitted a flat deal valued at US$200,000 to Marlene. (Note by Court: The Plaintiff’s did not disclose to the Defendants that his proposals were already rejected by Marlene at CAD.)
15 March 2012 at 8.17am6	The Defendant(s) submitted a flat deal of US$300,000.00 for two shows to Marlene.
15 March 2012 at 3.45pm7	Hosking emailed the Defendants to remind them of the terms of the Agreement to send identical bids for a flat deal and also that “whoever gets the deal will share it with the other.”
15 March 2012 at 6.44pm8	Ross, the 2nd Defendant, confirmed in writing, the Defendants’ position that he would write to Marlene on the flat deal. Ross was not aware that Lauretta and Marlene had agreed on an 80/20 percentage deal at 4.56am.
16 March 20129	Ross sent an email to Marlene offering a bonus of US$25k upon reaching 6500 tickets and another additional bonus of US$25k for every 500 tickets sold. This was made known to Hosking.
17 March 2012 8:31 AM10	Lauretta, the 3rd Defendant, sent an email to representatives of the Plaintiff saying that the Marlene wants a percentage deal.
20 March 201211	Marlene wrote to the Defendants to confirm with them, a deal at a percentage basis of 80/20.
28 March 2012 at 10:03:1712	Ross sent an email to the Plaintiff stating he had tried everything possible for a flat deal but it was rejected “outright” by Marlene.

Issues

The issues may be set out as follows: Was there an agreement between the Plaintiff and the 1st Defendant to work together on a 50-50 basis for the Event? If so, was it on a flat deal or percentage deal basis? If the answer to (i) is yes, did the Defendant(s) breach the Agreement? Did the Defendant(s) make any representations to the Plaintiff causing the Plaintiff to withdraw its bid and deprive them any opportunity of submitting any competing bid until it was too late? At the time of the Agreement, was there a contract between the Defendant(s) and the Events Agent (Marlene)? Did the Defendant(s)’s alleged breach of the Agreement lead to a loss of income for the Plaintiff?

Was there an agreement between the Plaintiff and the 1st Defendant to work together on a 50/50 basis with relation to the Event? If so, was it on a flat deal or percentage deal basis?

The Plaintiff argued that there was “clearly an agreement between the parties¹³that was made partly orally, partly in writing and partly by conduct and/or as a result of a course of dealings between the Plaintiff and the 1st Defendant.” They said that the terms of the Agreement can be identified partly through the email exchanges between Hosking, and Ross and Lauretta on the 15th, 16th and 17th March 2012.

The Plaintiff submitted that from the email reply by the Defendants, it was clear that they had accepted and agreed to act in accordance with the Agreement reached, i.e., to write to Marlene “following from our discussion and agreement” as well “as agreed”. The Plaintiff submitted that these are terms used in the commercial context to convey the agreement to work together by having “whoever gets the deal” to “offer the other party 50%”¹⁴. They contended that there was therefore clearly an agreement in place to work together on a 50-50 basis as per the Agreement.

On the other hand, the Defendants argued that the Agreement was to put in a bid based on a flat deal and that they did faithfully put in such a flat deal bid as agreed.¹⁵ Indeed, Ross even followed up with an improvement to the flat deal by offering a bonus. This is evident in Ross’ email of 16 March 2012 at 11.41p.m, offering a flat deal of US$200,000 plus a bonus on ticket sales¹⁶ . [Emphasis added]

The Defendants pointed out that Hosking himself conceded in cross-examination that the Defendants had put in flat deal bids to Marlene pursuant to their agreement¹⁷ :

“Court:	… do you not agree that after your conversation with Ross to do a JV based on the flat fee bid basis that he then put in a bid in performance of that agreement?”
Hosking:	“I agree with that.”

Hosking also agreed that Ross had tried his best to make the flat deal with Marlene¹⁸. Therefore, the Defendants submitted that even if there was an agreement as alleged, they did not breach the agreement. As for the Plaintiff’s claim that there was a percentage deal¹⁹ the Defendants denied such an agreement and argued that it made “no commercial sense for a percentage deal” on a 50/50 sharing for this Event as the margin was too thin for the Plaintiffs and 1st Defendants to share. To illustrate this point, the Defendants set out the following table:

	Flat deal of US$200,000 for 1st Defendant	Flat deal of US$200,000 assuming shared 50:50	Percentage deal for 1st Defendant 80:20 basis [ACTUAL]	Percentage deal on 80:20 basis assuming shared 50:50
Gross Ticket Sales	US$916,544.62	US$916,544.62
Net Ticket Sales			US$469,760.55	US$469,760.55

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