District Judge Lynette Yap:
Background
Sometime before 3 August 2013, the 2nd Defendant entered into an agreement with one Starhigh Asia Pacific Pte Ltd for extracting and importing sand (the “Starhigh Agreement”).
The Plaintiff’s claim is that in consideration of his “assistance and financial and business contribution” which were rendered at the request of the Defendants, the parties entered into a contract on 3 August 2013 that: From 21 August 2013, the Plaintiff was entitled to a monthly payment of Singapore 30 cents for every cubic meter of sand supplied under the Starhigh Agreement. The payment would be made by the Defendants on a monthly basis on or before the 21st of each month starting from August 2013, until the supply of sand under the Starhigh Agreement came to an end.
The Plaintiff alleged that this contract between the parties was evidenced in writing and this document (“the Document”) was drafted by the Defendants and signed by the parties on 3 August 2013. The Plaintiff’s case was that while the Document was labelled a “Deed”, it was not intended to be a deed, but it instead evidenced the contract entered into between the parties.
As the total sand supplied under the Starhigh Agreement was 602,195.63 cubic meters of sand, the Plaintiff’s claim was for the sum of $180,658.68.
The Defendants argued that the Document was intended to be a deed. However, the deed was invalid, as it was not sealed and delivered. In particular, the common seal of the 2nd Defendant was not affixed on the Document. In any event, the Defendant also argued that the 2nd Defendant had not empowered the 1st Defendant to execute deeds on its behalf, and that the 1st Defendant’s signatures were forged.
The Defendants further argued that even if the Document was a contract, the contract was invalid as no consideration had been provided by the Plaintiff.
At the conclusion of the trial, I allowed the Plaintiff’s claim and awarded judgment to the Plaintiff. The Defendants have appealed against my decision. I now give the reasons for my decision.
The Plaintiff’s case
The Plaintiff had 2 witnesses: PW1, Ms Nellie Cheng, a Senior Forensic Scientist with the Health Sciences Authority and PW2, the Plaintiff himself.
PW2 stated in his Affidavit of Evidence-in-Chief (“AEIC”) that in consideration of his assistance and financial and business contribution, which were rendered at the request of the Defendants, the Defendants agreed with him on 3 August 2013 that from 21 August 2013, he would be entitled to a monthly payment of Singapore 30 cents for every cubic meter of sand supplied under the Starhigh Agreement, and that the payment would be made by the Defendants on a monthly basis on or before the 21st of each month starting from August 2013. PW2 stated that the total sand supplied under the Starhigh Agreement was 602,195.63 cubic meters of sand and he annexed copies of the Bulk Vessel Survey Sheets to evidence the total tonnage of sand supplied.
In cross-examination, the Defendants contended that the assistance PW2 had allegedly provided to the Defendants was provided in his capacity as director and shareholder of the 2nd Defendant, thereby the assistance did not constitute consideration. However, PW2 testified that at the time of signing of the Document on 3 August 2013, he was not a shareholder or director of the 2nd Defendant. The Defendants subsequently conceded this fact. In response to further cross-examination, PW2 explained that the nature of his assistance was the information he could provide to the Defendants from his background as a professional engineer of 30 years, his industry connections and his technical expertise on the quality of sand and reclamation projects in Singapore. In re-examination, PW2 clarified that he provided technical assistance by physically inspecting the quality of sand on the ship. He stated that his technical assistance was provided after the contract was entered into on 3 August 2013. He also elaborated that he was able to provide business contributions as he was a consultant and knew when tenders would be called for reclamation projects and where sand would be needed.
PW1 was a Senior Forensic Scientist with the Health Sciences Authority. She was engaged by the Plaintiff to verify the 1st Defendant’s signatures on the Document. The 1st Defendant was alleged to have affixed his signature 3 times on this Document, the first on the bottom of the first page of the document, the second next to the 2nd Defendant’s name and the third next to his own name on the second page of the Document. PW1 stated that she examined the 3 signatures allegedly belonging to the 1st Defendant and compared them with twelve exhibits in the form of cheques, director’s resolutions, contracts and payment vouchers signed by the 1st Defendant.
During cross-examination, PW1 explained that there are 8 possible conclusion levels in the examination of handwriting as follows, in decreasing order of likelihood: The writer wrote the signature It is highly probable It is probable The possibility cannot be ruled out Inconclusive No evidence to show Unlikely Writer did not write. PW1’s opinion was that it was probable that the 1st Defendant wrote the signatures, i.e. conclusion level 3.
The 1st and 2nd Defendants’ case
Both the Defendants had only 1 witness, the 1st Defendant. In his AEIC, which was filed on behalf of himself and the 2nd Defendant, where he was a director, he admitted that the Document was drafted and/or prepared by the Defendants but stated that it was done so on the Plaintiff’s instruction. The Defendants contended that the Document was not a valid deed and put forward numerous arguments in this respect: that the Document was not sealed and not delivered to the Defendants. that the Document was not witnessed. that the 1st Defendant was not empowered to sign on behalf of the 2nd Defendant.
The 1st Defendant further testified that the Plaintiff had not provided any assistance, financial or business contributions, and that even if any had been provided, he had done so in his capacity as shareholder or as director of the 2nd Defendant. However, in re-examination, the 1st Defendant admitted that the Plaintiff only became a shareholder and director of the 2nd Defendant on 17 September 2013, after the contract was entered into on 3 August 2013.
During cross-examination, the 1st Defendant admitted that the signature next to his own name on the Document was his. But he could not confirm if the signature next to the 2nd Defendant’s name was his. When the 1st Defendant was asked if he agreed with the term in the Document that stated that the Plaintiff would be entitled to a monthly payment of S$0.30 for every cubic meter of sand supplied under the Starhigh Agreement, the 1st Defendant replied that there was no shipment and no sources of supply of sand. He was unable to explain why this was not pleaded in his Defence.
The Issues before the Court
Two main issues are before the Court. Firstly, whether the arrangement between the Plaintiff and the Defendants was in the nature of a deed or a contract. Secondly, whether the arrangement met the respective requirements to be either a valid deed or contract.
The Court’s findings
After having considered the evidence and the submissions of both Counsel, I find that the Plaintiff’s claim has been made out for the following reasons:
The Document was not meant to be a deed
The Defendants contended that the Document was a deed but that it was invalid. In their closing submissions, the Defendants cited the High Court case of Kuek Siew Chew v Kuek Siang Wei [2014]...
