Mohamed Shiyam v Tuff Offshore Engineering Services Pte Ltd

• Judge: Roger Giles IJ
• Judgment Date: 30 July 2021
• Neutral Citation: [2021] SGHC(I) 8
• Citation: [2021] SGHC(I) 8
• Defendant Counsel: Vijai Parwani and Lim Shu Yi (Parwani Law LLC)
• Hearing Date: 24 June 2021
• Plaintiff Counsel: Goh Wei Wei, Ling Jia Yu and Charlotte Tang (WongPartnership LLP)
• Docket Number: Suit No 5 of 2021 (Summons No 24 of 2021)
• Published date: 04 August 2021
• Court: International Commercial Court (Singapore)
• Subject Matter: Non-joinder,Lifting corporate veil,Amendment,Companies,Joinder,Incorporation of companies,Conspiracy,Pleadings,Tort,Parties,Civil Procedure

Roger Giles IJ:

The plaintiff applied for leave to amend the Writ and Statement of Claim, principally by adding three defendants and pleading new claims against them. The application was opposed by the defendant, and by the proposed defendants to whom notice of the application was given. For the reasons which follow, save in a small respect, the application should be dismissed.

Introduction The existing dispute

The defendant, Tuff Offshore Engineering Services Pte Ltd, is a Singapore incorporated company. At the time of the events of these proceedings, it was engaged in the design and construction of major infrastructure projects. The plaintiff, Mohamed Shiyam, is a United Kingdom citizen who provides consultancy services on infrastructure projects around the world.

In March 2017, the Government of the Republic of Maldives awarded a contract to construct and develop five domestic airports on islands in the Maldives (“the Five Airport Project”) to a company sufficiently identified as “Gryphon”, for a price of approximately US$57.5m. The plaintiff assisted Gryphon in obtaining the contract. When Gryphon became unable to perform the contract, in July 2017 it introduced the Five Airport Project and the plaintiff to the defendant, with a view to the defendant taking over the project.

According to the plaintiff, the defendant considered that the contract value was too low for it to easily obtain funding from its bank. Consequently, the plaintiff suggested that the defendant instead propose the construction and development of nine domestic airports on islands in the Maldives (“the Nine Airports Project), for a price of US$103.5m. Still according to the plaintiff, it was agreed that he would assist the defendant with securing a contract for the Nine Airports Project “and/or other construction contracts on its behalf”. While there was no agreement at the time on his fees, there was a mutual understanding that he would be paid fees for his work.

It may not have been irrelevant that the Director General of Regional Airports, the unit of the Ministry of Tourism of the Republic of the Maldives overseeing such projects, was the plaintiff’s brother or half-brother, Mr Saamee Ageel (“Saamee”). It is not surprising that in the affidavit opposing the application it is said that the plaintiff made clear that he was in a position to exert influence, given Saamee’s position. The defendant does not dispute that the plaintiff was asked to assist in obtaining funding for the Five Airports Project, on a promise of a commission if he were able to do so, and according to the defendant the Five Airports Project “progressively turned into the 9 Airports Project”. The plaintiff undertook various measures towards the Five Airports Project and the Nine Airports Project, including arranging a meeting with Saamee.

However, according to the plaintiff, it transpired that the defendant could not obtain sufficient funding and could not pursue the Nine Airports Project. In late August 2017, Regional Airports wrote to the defendant that neither the Five Airports Project nor the Nine Airports Project was available to it as there had been no progress on the defendant’s part in complying with its requirements. The plaintiff says that this was the end of the Nine Airports Project; the defendant disputes that the project was no longer pursued and says that discussions towards the Nine Airports Project continued.

The plaintiff and the defendant continued to work together with a view to other projects in the Maldives. In September 2017 there arose a proposal by Regional Airports to construct and develop an international airport on the island of Maafaru (“the Maafaru Airport Project”), a project which was funded externally. The plaintiff and the defendant worked together in preparing an initial expression of interest and then, on invitation, a bid for the Maafaru Airport Project. According to the defendant, however, because it was to be fully funded and was to be awarded by a bidding system, the plaintiff’s role in assisting the defendant with the bid was limited.

The bid was submitted on 17 December 2017. Three days prior to that date, from 14 to 16 December 2017, the plaintiff, Saamee, and M/s Ganesh Paulraj and Natarajan Paulraj (“Mr Ganesh” and “Mr Paul”, so referred to in the hearing of this application) on behalf of the defendant met in Singapore to discuss and finalise the bid. In the course of the meeting, on 16 December 2017 the plaintiff, Mr Ganesh and Mr Paul came to an agreement concerning the plaintiff’s remuneration, and a document was signed recording their agreement (“the Contract”).

By the two page document said by the plaintiff to constitute the Contract, he would “guide, assist and work with“ the defendant to achieve a contract for the Maafaru Airport Project, and be paid a lump sum of US$3m or US$5m in the event of a contract being awarded, depending on whether the contract was awarded for US$35m or US$38m. However, although it is agreed that a document was signed, there is marked dispute over the authenticity of the document said by the plaintiff to constitute the Contract, and so over the subject-matter of the agreement.

According to the defendant, discussions relating to the Nine Airports Project had continued until December 2017 and continued thereafter until it was finally abandoned only in March or April 2018. The defendant maintains that it and the plaintiff were working on both the Nine Airports and Maafaru Projects in December 2017 and the discussions from 14 to 16 December 2017 had included discussions of the Nine Airports Project. The defendant says that the Contract was an agreement upon the plaintiff’s remuneration in relation to the awarding of a contract for the Nine Airports Project, not the Maafaru Airport Project. The defendants allege that the Contract was reached upon Saamee indicating that he was ready to issue a letter of intent to the defendant for the Nine Airports Project if the defendant agreed to pay the plaintiff a commission if he was able to provide funding for it. While it accepts that the signature on the second page of the document is that of Mr Ganesh, the defendant says that the document that was signed was a draft already prepared by the plaintiff which was not just two pages but had several attachments, and that the first page of the document which the plaintiff said constituted the Contract, tying it to the Maafaru Airport Project, is a fabrication.

On 17 December 2017, there was a further discussion between the plaintiff and the defendant about the plaintiff’s remuneration. According to the plaintiff, the defendant wanted the bid for the Maafaru Airport Project to be “at the highest price possible in order to increase its profile and the number of projects under its name”. According to the defendant, the plaintiff asked for a higher commission if he was able to secure a higher funding for the Nine Airports Project. A hand-written note (“the Further Contract”) recorded that the defendant would pay the plaintiff “any amount exceeding US$38m he can achieve as total value for” the contract stated in the Contract, in addition to the amount in the Contract. The authenticity of the document constituting the Further Contract is not disputed, but the dispute over whether the Contract related to the Nine Airports Project or the Maafaru Airport Project carries through into its subject-matter.

In December 2017, Regional Airports awarded the defendant a contract for a total price of US$52m, of which US$46m related to the Maafaru Airport Project and US$6m related to an associated hotel development. The Maafaru Airport Project was in due course completed. Also in December 2017, Regional Airports issued a letter of intent for the Nine Airports Project for a total price of US$103.5m conditional on, amongst other things, proof of funding. The plaintiff says this was a mistake and meant to be for the Maafaru Airport Project. The defendant says it was genuine, and that funding could not be obtained and thus the Nine Airports Project did not come to fruition.

The plaintiff contends that the defendant became obliged to pay him a total of US$13m, being US$5m under the Contract and US$8m (US$46m less US$38m) under the Further Contract. The defendant responds that, since the Contract related to the Nine Airports Project as to which no contract was awarded, nothing became payable. However, the defendant did pay US$215,000 on an invoice for US$2m received in January 2018 as what it considered reasonable remuneration for the plaintiff’s work in relation to the Maafaru Airport Project. The plaintiff says that the invoice was for further work done, but nonetheless treats the US$215,000 as a credit against his claim under the Contract and the Further Contract.

A brief procedural history

The plaintiff commenced the proceedings in the High Court on 13 December 2019. In the Statement of Claim he sued on the Contract and the Further Contract, as agreements in relation to the Maafaru Airport Project, claiming US$12,785,000.

The Defence was filed on 15 January 2020. In a rather narrative fashion, it explained the defendant’s position as outlined above (including as to the US$215,000 payment). It denied that the document signed on 16 December 2017, and the note of 17 December 2017, related to the Maaafaru Airport Project, and challenged the authenticity of the two-page document said by the plaintiff to constitute the Contract. It also alleged non est factum, unilateral mistake, unenforceability for want of consideration, and failure in execution as a deed. It further asserted that the plaintiff was not entitled to payment because Regional Airports had not paid the defendant, and that the proceedings were brought in bad faith.

The Reply was filed on 30 January 2020. It responded to some of the narrative, including the defendant’s explanation of the US$215,000 payment,...