Millsopp, Michael Joseph v Then Feng

• Jurisdiction: Singapore
• Court: High Court Appellate Division (Singapore)
• Judge: Woo Bih Li JAD
• Judgment Date: 13 July 2022
• Neutral Citation: [2022] SGHC(A) 27
• Citation: [2022] SGHC(A) 27
• Docket Number: Civil Appeal No 119 of 2021
• Published date: 15 July 2022
• Plaintiff Counsel: Tay Wei Loong Julian and Wong Wai Keong Anthony (Lee & Lee)
• Defendant Counsel: The respondent in person.
• Subject Matter: Civil Procedure,No case to answer
• Hearing Date: 13 July 2022

Woo Bih Li JAD (delivering the judgment of the court ex tempore):

This is the appellant’s appeal against the decision of a judge of the High Court (General Division) (“the Judge”) to dismiss all of his claims against the respondent for misrepresentation, breach of contract, conversion and unjust enrichment.

On or around 7 February 2019, the appellant had transferred a sum of £1,571,394.13 (“the Funds”) to a Singapore bank account held by Ling Capital Pte Ltd. The transfer itself was not disputed but the nature of the agreement between the parties, pursuant to which the Funds were transferred, is disputed. In his pleaded case, the appellant, alleged that he had entered into a foreign exchange services agreement with the respondent (“FX Agreement”), under which the respondent was to convert the Funds into US dollars (“USD”) within 48 to 72 hours after receiving them, and remit the same to a designated UK bank account after deducting the respondent’s commission. The respondent denied having entered into any FX Agreement with the appellant and contended that the Funds had instead been transferred as an interest-free loan to be repaid in British pounds (“GBP”) to the appellant’s UK bank account, and that the respondent was merely to coordinate this loan in return for a fee. In any event, the Funds or their equivalent were not returned to the appellant, and the appellant thus commenced proceedings against the respondent.

At the close of the appellant’s case at trial, the respondent made a submission of “no case to answer” and gave the required undertaking not to adduce evidence. The respondent’s “no case to answer” submission was upheld by the Judge, who found that all of the appellant’s claims were premised on the agreement between the parties being an FX Agreement, and that the appellant had failed to prove the FX Agreement on the evidence before the court. Accordingly, the Judge dismissed the appellant’s claims.

Having considered the parties’ arguments before us, we are of the view that the appellant has not shown that the Judge had erred in his conclusion. In our judgment, the appellant’s entire pleaded case is inextricably intertwined with his characterisation of his agreement with the respondent as an FX Agreement. This is an essential factual premise of the appellant’s pleaded case.

This is not disputed for the appellant’s claim based on breach of contract. Turning to the appellant’s misrepresentation claim, this is premised on the respondent having made certain false representations which (as pleaded at paras 6, 7 and 9 of the appellant’s Statement of Claim (Amendment No 2) dated 5 July 2021 (“the SOC”)) centred around the respondent providing his foreign exchange services to convert the appellant’s GBP to USD at a preferential rate. The appellant alleges that these representations induced him to enter into the FX Agreement and transfer the Funds to the respondent. Hence, the appellant’s misrepresentation claim is also premised on the existence of the FX Agreement.

The FX Agreement is also an essential premise of the appellant’s conversion and unjust enrichment claims, as presented by the appellant. We note that in his Appellant’s Case for the appeal, the appellant argues that the existence of the FX Agreement is pure background and is not a necessary legal element of an action in conversion (or unjust enrichment). However, the appellant’s conversion claim as pleaded at para 33(b) of the SOC is premised on his having the right to immediate possession of the Funds due to the respondent acting in a manner repugnant to the terms of the FX Agreement by causing the wrongful withdrawal, utilisation or transfer of the Funds, and thereby terminating the FX Agreement. Importantly, this is reinforced by what the appellant’s counsel admitted during his oral closing submissions before the Judge, when he said that the conversion claim was “based on the [t]ransaction being an FX Agreement”.

We turn now to the appellant’s unjust enrichment claim, which is premised on two unjust factors: mistake of fact and total failure of consideration. The relevant mistake, as pleaded at para 38(a) of the SOC, was the appellant’s mistaken belief in the truth of the respondent’s representations. As we have noted, these representations centred around the alleged agreement between the parties being an FX Agreement. As for the aspect of the unjust enrichment claim based on failure of consideration, the appellant contends that para 38(b) of the SOC encompassed “two independent routes to liability”, with one being dependent on the agreement between the parties being voidable and rescinded because of the respondent’s fraudulent misrepresentation (such that it is the absence of the agreement that is a key factor), and the other being a free-standing claim premised on the tort of conversion. Paragraph 38(b) of the SOC reads:

There is a total failure of the consideration for the transfer of the Funds by the Plaintiff [ie, the appellant], because the FX Agreement is voidable and has been rescinded by the Plaintiff in consequence of the 1st Defendant’s [ie, the...