De Montfort University v Stanford Training Systems Pte Ltd
Jurisdiction | Singapore |
Judge | Tay Yong Kwang J |
Judgment Date | 25 October 2005 |
Neutral Citation | [2005] SGHC 202 |
Citation | [2005] SGHC 202 |
Date | 25 October 2005 |
Year | 2005 |
Plaintiff Counsel | Chan Kia Pheng and Shaun Koh (KhattarWong) |
Docket Number | Companies Winding Up No 103 of (Summons in Chambers No 3176 of 2005) |
Defendant Counsel | Rajiv Nair and Felix Lee (Shook Lin and Bok) |
Court | High Court (Singapore) |
Published date | 27 October 2005 |
25 October 2005
Tay Yong Kwang J:
1 This was an application by the respondent for the following reliefs:
(a) that the Winding-up Petition filed by the petitioner on 17 May 2005 be struck out pursuant to the inherent jurisdiction of the court;
(b) alternatively, that the said Petition be stayed pursuant to s 258 of the Companies Act (Cap 50, 1994 Rev Ed) pending the determination of Suit No 432 of 2005; and
(c) that the costs of the application be paid by the petitioner to the respondent forthwith.
2 On 26 August 2005, after hearing the parties, I decided to stay the Winding-up Petition pending the outcome of Suit No 432 of 2005 (“Suit 432/2005”), an action commenced by the respondent and FTMS Consultants Pte Ltd (“FTMS”) against the petitioner. On 1 September 2005, the petitioner wrote to ask for further arguments to be made to the court. I declined to hear further arguments.
The Petition and the chronology of events
3 On 22 April 2005, the petitioner served a statutory demand on the respondent claiming that the respondent was indebted to the petitioner in the sum of £91,931.28 for services rendered between June 2002 and December 2003 under a Memorandum of Co-operation entered into by the parties on 1 November 2000. Under the said Memorandum of Co-operation, the respondent would provide access to physical resources for the delivery of the petitioner’s programmes in Singapore and would be responsible for operating, solely or jointly, the programmes or modules leading to awards of the petitioner. Attached to the statutory demand was a schedule containing a list of the invoices for which the petitioner had not received payment or full payment. These invoices were dated between 11 December 2002 and 22 December 2003.
4 On 9 May 2005, the respondent’s solicitors responded, stating that they were taking the respondent’s instructions and would revert. The 21-day notice under the statutory demand expired on 13 May 2005. On 16 May 2005, the petitioner’s solicitors wrote to the respondent’s solicitors to ask for their response by noon the next day. The respondent’s solicitors replied the same day, claiming that the respondent would be able to raise various counterclaims, including but not limited to a claim in respect of losses suffered as a result of the petitioner’s failure to deliver various programmes as agreed between the parties.
5 On 17 May 2005, the petitioner filed this Winding-up Petition. On 13 June 2005, the respondent and FTMS commenced Suit 432/2005 against the petitioner. On 24 June 2005, the respondent took out the present application, which was fixed for hearing on 1 July 2005, the same date as the hearing of the Petition. On 1 July 2005, directions for the filing of affidavits by the parties were given by the court.
6 On 15 July 2005, the petitioner filed its affidavit as scheduled and also filed its Defence and Counterclaim in the suit. The respondent missed its deadline (of 29 July 2005) for the filing of its affidavit in reply. On 29 July 2005, the respondent and FTMS filed their Amended Statement of Claim and their Reply to the petitioner’s Defence and Counterclaim in the suit. On 5 August 2005, the respondent filed its affidavit in reply in this Petition. On 15 August 2005, the petitioner filed its Amended Defence and Counterclaim in response to the respondent’s and FTMS’s Amended Statement of Claim in the suit.
The respondent’s case
7 The business relationship between the parties dated back to 1997. The petitioner is an English university with which the respondent made arrangements to deliver the petitioner’s courses in Singapore. The respondent’s related companies in Malaysia had a similar relationship with the petitioner.
8 From 1999, with the encouragement of the Ministry of Education in Malaysia, the relationship there was placed on a more formal footing. This included the formation of a joint-venture company in 2000 and the signing of an Academic Agreement between the joint-venture company and the petitioner on 6 April 2000. This Academic Agreement covered the delivery of the petitioner’s degree courses in Malaysia as well as in Singapore. The disputed debt on which the Petition was premised arose under this Academic Agreement. The degree courses in Singapore would continue to be delivered by the respondent, which incurred expenses and earned revenue in doing so. A Memorandum of Co-operation was signed between the petitioner and the respondent, described therein as “partners”, on 1 November 2000, setting out the respective responsibilities of the parties in broad terms. This Memorandum of Co-operation did not purport to be the entire agreement between the parties although it evidenced the existence of a contract. It also suggested that the legal relationship between the parties was intended to be complementary to the joint venture arrangements in Malaysia.
9 In 2002, in breach of the requirements of the contractual relationship between the petitioner on the one hand and the respondent and the Malaysian companies on the other, the petitioner obstructed the delivery or continued delivery of its degree courses in Malaysia and in Singapore. As a result of the breach, there was no further intake of students in Singapore from the second half of 2002 onwards, causing the respondent to incur wasted costs and suffer loss of revenue. Legal proceedings were commenced in Malaysia in 2002 by the respondent’s related companies against the petitioner.
10 A settlement of those legal proceedings was eventually reached and a settlement deed of 6 June 2003 (“the Settlement Deed”) was entered into, pursuant to which there was to be a transition to a new university partner in place of the respondent. Balbeer Singh Mangat, a director of the respondent, met with the petitioner’s vice-chancellor and its acting dean on 16 May 2003 when it was orally agreed that, pending the execution and implementation of the Settlement Deed, all outstanding payments due from the respondent to the petitioner would be held in abeyance until after the said transition was completed. The respondent would forebear from commencing action against the petitioner in respect of the latter’s breaches of their contractual relationship.
11 As the Settlement Deed was taking longer than expected to implement, a supplemental deed of 9 February 2004 (“the Supplemental Deed”) was executed. While the Supplemental Deed was being negotiated towards the end of 2003 or at the beginning of 2004, it was also orally agreed between the parties that while outstanding invoices up to December 2003 would continue to be held in abeyance, the respondent would pay on invoices issued in 2004. Accordingly, the petitioner only demanded payment of outstanding invoices issued in 2004 and not those which had been issued earlier. Payment was subsequently made on the 2004 invoices. No party was to commence legal action before 31 July 2005, the date stipulated in cl 3.1 of the Supplemental Deed.
12 In 2005, in bad faith and/or in breach of the said oral agreements, the petitioner commenced winding-up proceedings against the joint-venture company in Malaysia and against the respondent here.
13 In Suit 432/2005, the respondent claimed for moneys paid to the petitioner by mistake in respect of fixed costs. These fixed costs, amounting to £54,080.45, were mistakenly paid as a result of invoices issued which wrongfully included fixed costs when the various annexes to the Academic Agreement expressly provided that no fixed costs were payable from the respondent to the petitioner in respect of the Master of Business Administration (“MBA”) and Master of Science (Computing) (“MSc Computing”) courses run in Singapore. The debt alleged in the Petition also included such fixed costs.
14 Similarly, the said annexes provided that an annual per capita cost of £375 was payable from the respondent to the petitioner in respect of the MSc Computing course. This meant that a quarterly per capita cost of £93.75 was due to the petitioner for each student enrolled in the MSc Computing course. However, the respondent mistakenly paid some £12,750 in excess of what was due because the petitioner’s invoices wrongfully stated the said quarterly per capita cost as £125 instead of £93.75. The debt alleged in the Petition included such excessive per capita costs as well.
15 The respondent also claimed for loss of profits caused by the petitioner’s omission, neglect or refusal to validate the Bachelor of Arts (Accounting and Finance) (“BA Accounting and Finance”) and the Bachelor of Science (Computer Science) (“BSc Computer Science”) courses in breach of its agreements, thus rendering the respondent unable to conduct those courses. In April 2002, the petitioner also unilaterally and wrongfully cancelled the MBA and MSc Computing courses, which were running at a profit in Singapore, and refused to provide programmes for...
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