Phua Seng Hua and others v Kwee Seng Chio Peter and another

• Jurisdiction: Singapore
• Judge: Belinda Ang Saw Ean JAD
• Judgment Date: 14 March 2022
• Neutral Citation: [2022] SGHC(A) 11
• Citation: [2022] SGHC(A) 11
• Docket Number: Civil Appeal No 74 of 2021
• Published date: 17 March 2022
• Year: 2022
• Plaintiff Counsel: Chelva Retnam Rajah SC, Shobna Chandran, Muhammad Taufiq bin Suraidi and Thaddaeus Aaron Tan Yong Zhong (instructed) (Tan Rajah & Cheah), Lau Kah Hee (BC Lim & Lau LLC)
• Defendant Counsel: Vikram Nair, Foo Xian Fong and Tan Mazie (Rajah & Tann Singapore LLP)
• Subject Matter: Tort,Misrepresentation,Fraud and deceit,Negligence,Contract,Remedies,Damages,Wrotham Park damages,Compensation and damages
• Hearing Date: 11 February 2022
• Court: High Court Appellate Division (Singapore)

Woo Bih Li JAD (delivering the grounds of decision of the court): Introduction

The appellants (“Appellants”) initially represented 170 members of a club known as The Pines (“the Club”) in bringing an action against the respondents (“Respondents”). The clubhouse was initially located at 30 Stevens Road (“30SR”) owned by the 2nd Respondent Exklusiv Resorts Pte Ltd (“Exklusiv”). The 1st Respondent Peter Kwee Seng Chio (“PK”) is a director and indirect shareholder of Exklusiv.

Exklusiv is wholly owned by Laguna Golf Resort Holding Pte Ltd (“LGRH”) which is in turn wholly owned by Group Exklusiv Pte Ltd (“Group Exklusiv”). The latter is owned at all material times by PK, his wife, his son and his daughter. In effect, PK controls Exklusiv. LGRH manages the Laguna National Golf & Country Club (“Laguna Club”) in Singapore.

The Appellants claimed against the Respondents for the tort of deceit, negligence and breach of its contract with each of the Club’s members. The claim related to decisions by Exklusiv to redevelop 30SR, demolish the clubhouse at 30SR, sell 30SR to Oxley Gem Pte Ltd (“Oxley Gem”), amend the Club’s rules to allow the relocation of the clubhouse and relocate the clubhouse to the premises of the Laguna Club.

On 30 June 2021, the trial judge (“the Judge”) issued his judgment (“Judgment”). He dismissed the claims under the tort of deceit and negligence. He allowed the claim for breach of implied terms of contract. He awarded damages of $1,500 to each plaintiff as nominal damages. The Appellants then appealed against the dismissal of their claims in tort and the damages awarded. There was no cross-appeal by the Respondents against the finding of breach of contract or the damages awarded. On 14 December 2021, the Appellants informed the Registrar that 31 of the 170 members have withdrawn from the appeal.

We heard the appeal on 11 February 2022 and dismissed it with costs. We set out the grounds of our decision below.

Deceit

The crux of the claim on deceit focussed on Exklusiv’s letter dated 14 March 2013 to members which allegedly made various representations set out in the Appellants’ Skeletal Arguments at para 8: “[A] decision has therefore been made [by Exklusiv] to comprehensively redevelop the premises in order to provide members with a brand-new, up-to-date clubhouse and facilities and at the same time to optimize the use of the land currently occupied by the Club” (ie, the “Confirmed Redevelopment” and “Confirmed Redevelopment Representation”); the Club will remain at 30SR (ie, the “Location Representation”); the members will get a new dedicated clubhouse at 30SR which will be half its existing size (ie, the “Size Representation”). At the Club’s dialogue session with its members on 21 August 2012 (the “Dialogue Session”), the Respondents informed the members that the new clubhouse after redevelopment would be half its existing size (the Club’s existing clubhouse and amenities occupied the whole of 30SR, ie, 18,477.2m2 [approx. 198,889 sq ft]). However, on 27 February 2013, the Urban Redevelopment Authority (“URA”) issued a “Provisional Grant” in respect of the re-development plans which allocated only 882.2m2 out of 29,556.5m2 for the new clubhouse. The Respondents did not correct their earlier representation in Exklusiv’s 14 March 2013 letter and thus the Size Representation was repeated; and the members will enjoy access to and use of the facilities and amenities of a hotel that will be built on 30SR in addition to the facilities at the Club’s own dedicated clubhouse (ie, the “Facilities Representation”). (collectively, the “Representations”)

The crux of the deceit claim was that at the time of the 14 March 2013 letter, the Respondents knew that the Representations were false and/or they knew they had no proper basis to make the Representations.

This claim was based on the fact that on the next day, ie, 15 March 2013, Exklusiv had granted an Option to Purchase (“OTP”) to Oxley Gem to buy 30SR. Under the OTP, Oxley Gem had granted to Exklusiv the first right of refusal to lease from Oxley Gem part of the intended development at 30SR which would include a clubhouse and club facilities. However, the right of refusal did not oblige Oxley Gem to have a clubhouse in the intended development. Hence, the Appellants argued that the Respondents knew that the Representations were false or had no proper basis to make the Representations because Exklusiv would no longer be able to ensure that the Representations were fulfilled.

According to the Judge, the Appellants had submitted that the Size Representation was made at the Dialogue Session (and not in the letter dated 14 March 2013). He rejected the submission as it was not pleaded.

The other representations centred on the question of whether the Respondents had intended to provide a new clubhouse for members at 30SR. Based on the evidence before and after 15 March 2013, the Judge found that they had so intended and the Appellants had failed to prove otherwise.

We noted that para 31 of the Statement of Claim (Amendment No 4) (“SOC”) sets out the representations in the 14 March 2013 letter. The Size Representation was not pleaded. There was some mention at para 27 of the SOC of a representation of size at the Dialogue Session but that is not mentioned as one of the Representations arising from the 14 March 2013 letter. In any event, we did not agree that the Size Representation was made at the Dialogue Session. Furthermore, the Appellants’ focus in arguments below was not so much the size of the clubhouse but rather the absence of a clubhouse at 30SR.

We were also of the view that the Appellants failed to prove that the Respondents had not intended to provide a new clubhouse at 30SR. The Appellants had pitched their case too high in relying on deceit. They had conflated the matter of absence of control over the redevelopment of 30SR with evidence of intention not to provide a new clubhouse.

While it was true that from 15 March 2013, when the OTP was granted to Oxley Gem, Exklusiv was no longer able to ensure that a new clubhouse would be redeveloped at 30SR, this did not necessarily mean that Exklusiv did not intend to procure such a clubhouse at 30SR for the members. While the Appellants had suggested that the first right of refusal in the OTP was “a red herring” and referred to “carefully choreographed moves” to amend plans for a clubhouse, the Judge was of the view that it was highly unlikely that the Respondents would have gone to the extent of obtaining the first right of refusal or continued to include a clubhouse in the plans submitted to the relevant authority, if there was no intention to include a clubhouse in the redevelopment of 30SR. Furthermore, the Appellants did not plead any conspiracy between the Respondents and Oxley Gem. Nor was such a conspiracy alleged in evidence. We agree with these views.

On the particular facts of the case, the evidence before 15 March 2013 showed that Exklusiv had intended to redevelop 30SR with a new clubhouse. Even from 15 March 2013, Exklusiv had entered into an agreement with Oxley Gem with a view to providing a new clubhouse. The correspondence and oral evidence showed that this was pursued for some time until about the end of 2015 when the clubhouse at 30SR was no longer viable. This was not a case where the Respondents had merely provided lip service to give the impression that they were genuine about the intent to provide a new clubhouse at 30SR. They were genuine about it and pursued it but failed. That cannot constitute deceit in the circumstances.

In the course of oral arguments before us, the Appellants mentioned that there was a provision in the OTP under which Exklusiv undertook to notify members of the Club of the sale to Oxley Gem. This was not done. The suggestion was that this was part of the deceitful conduct of the Respondents. However, this was not pleaded. Furthermore, this was not a point raised in the appeal before us until the hearing on 11 February 2022.

Negligence

The Judge said that the Appellants had alleged that the Respondents owed a duty of care to provide timely, true and accurate information as regards the redevelopment of the clubhouse at 30SR and that the Respondents had breached this duty.

However, the Judge was of the view that the SOC “ought to state the facts upon which the supposed duty is founded” and it failed to do so. Also, the SOC should allege the precise breach of duty. Instead, the Appellants pleaded the following: not calling for “general meetings of the Club members, in a timely fashion, to accurately and truthfully inform them of milestones in the completion of the Confirmed Redevelopment, or of any purported obstacles or difficulties”; hiding the “truth of what was in fact happening or had already happened” from the Club’s members; and/or making the misrepresentations as to the Proposed Redevelopment and the Confirmed Redevelopment.

“Proposed Redevelopment” refers to the proposed redevelopment of the Club’s clubhouse at 30SR presented at the Dialogue Session, and dealt with in a list of questions and answers circulated to members who attended the Dialogue Session. “Confirmed Redevelopment” refers to the Club’s confirmation that it had reached a decision to “comprehensively redevelop the premises in order to provide members with a brand-new, up-to-date clubhouse and facilities and at the same time to optimize the use of the land currently occupied by the Club”.

The Judge was of the view that the Appellants failed to plead particulars as to: (a) the milestones or obstacles mentioned; and (b) what was the truth that the Respondents had allegedly hid from the Appellants. As for the misrepresentations, he had found that there was no misrepresentation as to the Respondents’ intention to provide a new clubhouse at 30SR. Hence, the Judge concluded that the negligence claim...