Ng Bee Choo @ Ng Catherine v Mary Hoe-Tan and Anor

• Jurisdiction: Singapore
• Judge: Chiah Kok Khun
• Judgment Date: 28 September 2016
• Neutral Citation: [2016] SGDC 260
• Court: District Court (Singapore)
• Docket Number: District Suit No 576 of 2015
• Year: 2016
• Published date: 09 July 2019
• Hearing Date: 29 July 2016,12 April 2016,22 July 2016,21 January 2016,11 April 2016,14 April 2016
• Plaintiff Counsel: Simon Tan (Attorney Inc LLC)
• Defendant Counsel: Bernard Sahagar (Lee Bon Leong & Co)
• Subject Matter: Defamation - publication,Defamation,justification,malice,damages
• Citation: [2016] SGDC 260

District Judge Chiah Kok Khun: Introduction Background

This is a defamation case. Both the claim and counterclaim are for defamation. It is not a restraint of trade case. No causes of action in breach of restraint of trade clauses were pleaded. Yet the Defendants had focused much effort on a restraint of trade clause. Whilst the question of the existence of the restraint of trade clause served as part of the contextual background to the case, the contentions relating to the clause were unfortunately conflated with the defamation case in the course of the trial and closing submissions.

The claims and counterclaims in defamation in this case revolved round the business of a company, Hoe-Tan Co. (Pte) Ltd (“the Company”). The Company is in the business of providing managing agents (“MA”) to Strata Properties (“MCSTs”) and some estate agency work. The Plaintiff, Ms Catherine Ng (“Catherine”) was employed by the Company as a property manager (“PM”) responsible for all the MCSTs managed by the Company.

The Company was incorporated on 1 February 1974 and is owned and managed by the 1st Defendant Ms Mary Hoe-Tan (“Mary”). She has operated the Company for 40 years. By all accounts at the trial, she was fastidious in her management of the Company.¹ She had checklists for all aspects of her business operations, from hiring of employees to how the MCSTs were to be managed and operated. Correspondence and documents relating to MCST matters (including accounts) were vetted or “endorsed by about 5 to 6 persons”.²

The 2nd Defendant Ms Chung Jee Mean (“Jee Mean”) is the Office Manager of the Company. She is a licensed estate agent. She has been with the Company for almost 30 years. Catherine had said in evidence that she seldom saw Jee Mean in the office and hardly talked to her.³

Catherine’s employment with the Company

Catherine’s employment with the Company was short. It was not disputed that her period of employment for which she received salary was less than two years. There were several documents connected with the terms of her employment. There was a letter of appointment dated 28 January 2012, signed on 1 February 2012. The letter of appointment had a few attachments, identified in paragraphs 2, 5 & 11 therein. Under the letter of appointment Catherine undertook the duty to manage the day-to-day operations of MCSTs managed by the Company through delegation, supervision and/or control. Under another document, “Annex 1 (Duties & Responsibilities)”, apart from maintenance, upkeep and renovation of respective estates, the Plaintiff was required to keep proper records of all documents, architectural drawings and/or plans, as well as have “proper bookkeeping and proper accounting records”. There was yet another document, “Annex 3 (Code of Conduct)”, which was annexed to the letter of appointment, where Catherine had to undertake to “act honestly, diligently, with care and in good faith, without any personal gains and benefits”, to “not remove, amend or create any document, file, property of the Company and not breach any rules and regulations and procedures” and “at all times to conduct [herself] with respect, propriety and professionalism”.⁴ Finally there is what is referred to as the letter of undertaking (“LOU”). The LOU is a 2-year restraint of trade agreement dated 1 Feb 2012. Under the LOU, Catherine was to undertake “not work / be employed / contracted temporarily or permanently for any of the Management’s clients or in properties managed by the Management, including the Management Corporation or any member of the Management Corporation for the period of two years after her resignation/termination with the Company”.

Catherine’s positon was that to the best of her recollection & belief, she had never signed the LOU.⁵ The question of whether she signed the LOU was a matter that took up some time and effort of the parties at the trial. This was because as alluded to above, the defence had put great store in the existence of the restraint of trade clause. In my view, however, the existence or otherwise of the restraint of trade clause remained just that – the existence of the clause. The validity of the clause, which was entirely a different matter, had not been proven. The validity of the clause was not even a subject matter of the case. Moreover, to-date no action had been taken out by the Company to enforce the restraint of trade clause.

In the course of her employment with the Company, the Plaintiff had managed MCSTs contracted to the Company. Her job included liaising with the Management Council of each condominium under her care and looking after the interest, welfare, issues and complaints of and by the residents or subsidiary proprietors.

The MCSTs managed by Catherine included: Villa Chancerita (MCST No. 1760); Holland Court (MCST No. 1930); and Adam Place (MCST No. 1781).

The facts surrounding the departure of Catherine from the Company was a subject of some dispute between the parties. The evidence presented by both sides was imprecise in this regard. The evidence showed that Catherine tendered a letter of resignation on 1 June 2013. However, both sides had alluded to the fact that Mary had to travel to the USA for a month to attend a wedding in August 2013 and Catherine was asked to stay until her return.⁶ Catherine therefore continued to work after 1 June 2013 and the Company continued to pay her salaries. She carried on working after Mary’s return from USA. This continued until 2 October 2013. After 2 October 2013, Catherine stopped going to the office and the Company ceased paying her. She however continued to perform work for the Company whenever she was asked by the staff or the MCSTs to assist.⁷ Mary stated that she was not sure when Catherine stopped work and had assumed that she “was still working for the Company and had a change of heart about leaving”. She said that Catherine did not keep regular hours or sign in and out of office like the other staff.⁸ Mary also alluded to asking her staff in November 2013 to arrange a lunch meeting with Catherine to discuss her future in the Company, but the meeting had to be postponed due to urgent work.⁹ The objective evidence was that from 2 October 2013, Catherine was not paid any salary. It would therefore appear that whilst the Company was aware that Catherine was performing work for the Company after 2 October 2013, the Company was not paying her. It would also appear that the parties’ position was that although she carried out work in respect of the MCSTs, Catherine was either not keeping regular hours at the office or did not go to the office at all after 2 October 2013.

This state of affairs persisted until sometime in January 2014. On 10 January 2014 Catherine sent an email to the MCSTs she was managing to inform them of her resignation from the Company. In the email, she referred to 2 October 2013 as the date of her resignation.¹⁰

Soon after Catherine’s resignation, the relationship between her and Mary became acrimonious. Catherine subsequently took over the management of the following three MCSTs:¹¹ Villa Chancerita (MCST No. 1760) – on 13 February 2014; Holland Court (MCST No. 1930) – on 7 August 2014; and Adam Place (MCST No. 1781) – on 27 February 2015.

The Small Claims Tribunal case

One manifestation of the acrimony was a Small Claims Tribunal (“SCT”) action. The SCT proceedings formed part of the contextual background to this action. On 16 June 2014 under SCT Claim No. SCT15653/2014 the Company claimed outstanding Management Fees (January & part February 2014 fees) from Villa Chancerita, one of the MCSTs that appointed Catherine as MA in place of the Company. On 3 July 2014, Villa Chancerita filed a SCT counterclaim seeking six items¹² not handed over by the Company to the MCST when Catherine took over the MCST. The value of the missing items was estimated at $788.05.

The SCT proceedings also involved a dispute over the handing over by the Company of MCST minutes. Another item of dispute in the SCT proceedings was the issue of the Company failing to return petty cash in the sum of $263.00 to the MCST. A staff of the Company Ng Lye Soon (“Ng”) (who was a witness for Catherine at the trial) had omitted to return the petty cash to the MCST. Sometime before the SCT hearing, Ng wanted to return the petty cash by way of his personal cheque in the amount of $155.79. The reason for the reduced amount was that deductions to the petty cash were made by the Company for expenditure on certain stationery. The MCST did not agree to the reduced amount and rejected the cheque. Eventually the Company made an offer to refund part of the deducted amount, if the stationery were returned to the Company. Ng’s cheque for $155.79 was re-delivered to the MCST. As of the time of the SCT hearing, the stationery was not returned and the cheque for $155.79 was not banked in by the MCST. On 28 August 2014, SCT delivered its decision and rejected the MCST claims for the missing items. On the issue of the petty cash, the SCT held that the Company & the MCST had privately resolved the issue. It was only on 16 September 2014 that the petty cash issue was resolved between the Company and the MCST. As will be seen below, what transpired at the SCT in regard to the petty cash amount of $263.00 formed the subject matter of the letter from which the defamation counterclaim arose.

The First Letter

Chronologically the next significant background event was Holland Court MCST terminating the services of the Company on 7 August 2014.¹³ On the next day, the honorary secretary of the MCST Lily Chang sent an email to the Company. The MCST wanted the Company to hand over documents and rubber stamps and seals of the MCST. In response, the Company sent an email dated 11 August 2014 which repeated an earlier letter from the Company to the MCST that Catherine had “retired” and “resigned” from the Company and was not...