Mycitydeal Ltd (trading as Groupon UK) and others v Villas International Property Pte Ltd and others
Court | High Court (Singapore) |
Judge | Steven Chong J |
Judgment Date | 09 October 2014 |
Neutral Citation | [2014] SGHC 196 |
Citation | [2014] SGHC 196 |
Defendant Counsel | Rasanathan s/o Sothynathan and Nazirah K Din (Colin Ng & Partners LLP) |
Published date | 14 October 2014 |
Plaintiff Counsel | Navinder Singh and Amirul Hairi (Navin & Co LLP) |
Hearing Date | 06 August 2014,07 August 2014,25 August 2014,05 August 2014 |
Docket Number | Suit No 281 of 2012 |
Date | 09 October 2014 |
Subject Matter | Admissions of fact,Evidence,Documentary evidence,Pleadings,Order 27 r 3,Breach,Civil Procedure,Judgments and orders,Contract,Proof of contents |
Prior to the trial of an action, it is quite usual for parties to engage in different forms of interlocutory applications of varying complexities. They are often either a source of distraction or useful ammunition for trial preparation. However when the dust is settled after the resolution of the interlocutories, it is essential for the claimant not to lose sight of or ignore the primary requirement to prove its claim. This is especially so if the claim is for a liquidated sum based on an allegedly unpaid contractual debt. This was, unfortunately for the claimant, precisely what happened in this case.
The trial of the action only concerned the defendants’ counterclaims against 13 Groupon entities from 13 different countries for numerous unpaid vouchers that had allegedly been redeemed, the plaintiffs’ claims having been dismissed for failure to comply with an “unless order”. Separate and distinct claim amounts were pleaded against each of the 13 Groupon entities. However, only bare particulars were provided in respect of each counterclaim. Not unexpectedly, this prompted the plaintiffs to apply for further and better particulars of the respective claim amounts. The application was successfully resisted by the defendants. They were able to convince the Assistant Registrar that the particulars sought relate to matters of evidence and hence need not be pleaded.
Having taken the position that the breakdown of each of the claim amounts relates to evidence, the defendants would be expected to provide the evidence at the trial to prove the respective claim amounts against each of the plaintiffs. Inexplicably, this was not done. In their Opening Statement, the defendants sought to advance their claim on an aggregate basis,
Recognising that there are severe gaps in exhibits D1 and D2, the defendants sought to address the flaws of their case in seeking to rely on alleged “admissions” by the plaintiffs’ representative in an earlier affidavit filed in connection with the defendants’ application to discharge a Mareva Injunction then in force against them. These “admissions” are not the usual admissions which a party relies on to obtain judgment under O 27 r 3 of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) (“Rules of Court”). None of them admits to the claim amounts. Instead they are statements in an affidavit (extracted from a different context) which the defendants seek to rely on to prove
As it turned out, this was not the only problem that the defendants faced in their quest to prove their claims. The contractual arrangement between the parties required the defendants to submit evidence of valid redemption of the vouchers to the plaintiffs within 28 days of the vouchers having been validly redeemed by the end-consumer failing which the defendants “shall lose its right to receive” payment. Both parties relied on the same clause for different purposes and each adopted diametrically opposing views on the question of the burden of proof. Was it for the defendants to prove that the evidence of valid redemption was submitted within 28 days or for the plaintiffs to establish that such evidence was submitted outside the 28-day window? The defendants claimed that this requirement was never previously insisted upon and was only pleaded by the plaintiffs at a late stage of the proceedings. Yet, no waiver or estoppel was pleaded by the defendants in response.
Having broadly set out my general observations on the relevant issues, I turn now to provide the background to the present dispute.
The facts The partiesThe 13 plaintiffs are related entities worldwide which are each partly owned by Groupon Inc, a company incorporated in the United States of America.1 Where relevant, each of these Groupon entities will be individually referred to with a suffix indicating its geographical location. Therefore the first plaintiff will be referred to as “Groupon UK”, the second plaintiff as “Groupon France” and so on.
The plaintiffs’ primary business is in the running of “deal-of-the-day” 2 websites where discount vouchers for a range of advertised goods and services may be purchased by internet users. To be clear, the actual provision of such goods and services to the end-consumer is not by the plaintiffs themselves; instead, this is typically undertaken by various merchants who have contracted with the plaintiffs to have their goods and services promoted at a discounted rate on the plaintiffs’ online platform.3 However there may also be instances where the contracting merchant is not the actual goods/service provider (as in the present case).4 To illustrate, this may occur where a merchant which contracts to advertise hotel stay packages on the plaintiffs’ websites is not actually the hotel itself but, for example, a travel agency. In all instances, however, the process which the end-consumer has to go through is the same: first, he purchases a voucher directly from the plaintiffs online; then, he looks to the contracting merchant to redeem the voucher and obtain the purchased good or service as the case may be, and this usually involves him having to present a computer print-out of the voucher to the merchant.5
Subsequently, the merchant would seek to obtain payment from the plaintiffs in respect of the redeemed vouchers according to the mechanism provided under the contract with the plaintiffs.6 The sum payable to the merchant is usually stipulated as the price of the voucher less an agreed success fee to which the plaintiffs are entitled and any tax which is payable.7
The first defendant was incorporated on 9 March 2011 as a private limited company of which the third and fourth defendants are listed as directors and equal shareholders. Its business is concerned with hotel management, consultancy services, luxury property management and booking services.8 The second defendant is a sole proprietorship registered on 24 August 2010 with the fourth defendant as its sole proprietor and it provides a similar but more limited range of services than the first defendant.9 However, according to its corporate profile maintained with the Accounting and Corporate Regulatory Authority, the second defendant had ceased carrying on business prior to the commencement of the trial.10 Both the first and second defendants are relatively young set-ups and they share the same registered address in Textile Centre along Jalan Sultan.11
The disputeThe first and second defendants contracted as merchants with the plaintiffs under agreements which shall hereinafter be referred to collectively as “the Co-operation Agreements”.12 It was agreed that the first and second defendants would provide packaged holiday villa stays at promotional rates in Bali, Indonesia13 and that the plaintiffs would advertise and sell vouchers for the enjoyment of these discounted services on their websites.
The present dispute arose from the plaintiffs’ alleged failure to make payment on numerous vouchers which were allegedly redeemed by end-consumers with the first and second defendants. The plaintiffs’ response, however, was that the first and second defendants have failed to prove their claims and in any event were not entitled to...
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