Route One Consulting Pte Ltd v Tymoshchuk Oleksii (Cano Laskin Alexandro David, third party)

• Jurisdiction: Singapore
• Judge: Tan May Tee
• Judgment Date: 13 June 2022
• Neutral Citation: [2022] SGDC 119
• Court: District Court (Singapore)
• Docket Number: District Court Suit No 2257 of 2019
• Published date: 22 June 2022
• Year: 2022
• Hearing Date: 27 September 2021,07 July 2021,08 July 2021,14 April 2021,12 January 2022
• Plaintiff Counsel: Bala Chandran s/o A Kandiah and Tay Jing En (Mallal & Namazie)
• Defendant Counsel: Lim Ying Sin Daniel (Joyce A Tan & Partners LLC)
• Subject Matter: Civil procedure,Pleadings,Unjust enrichment,Money had and received,Moneys lent,Contract,Oral contract,Companies,Directors,Piercing the corporate veil
• Citation: [2022] SGDC 119

District Judge Tan May Tee: Introduction

The plaintiff is a company incorporated in Singapore engaged in the provision of management consultancy services. Mr Cano Laskin Alexandro David (“Mr Cano”) is the majority shareholder owning 94.56% of the plaintiff’s shares and one of its two directors¹. He was a Russian national who moved to Singapore in 2004 and has since become a Singapore citizen². Mr Cano has been joined as a third party in these proceedings and has been referred to as “Alex” in the pleadings³. In this judgment, he will be referred to as “Mr Cano” or the “Third Party”.

The defendant, Tymoshchuk Oleksii, is stated as a Ukrainian in the court records. He reportedly also holds a Russian passport under the name of “Alexey Timoshchuk”⁴. He was employed under an employment pass by a company called Russian Singapore Pte Ltd from 2012 but he also had business interests outside Singapore and frequently travelled overseas for business purposes⁵.

Mr Cano is the sole shareholder and director⁶ of Russian Singapore Pte Ltd which he incorporated in 2008 with a view to better serve the Russian community in Singapore⁷. The principal activities of Russian Singapore Pte Ltd are stated to be publishing of journals, periodicals and magazines as well as exhibition organisers.⁸

Although the defendant’s employment with Russian Singapore Pte Ltd ceased in 2015, both he and Mr Cano continued to have dealings with each other. The nature of these dealings and the reasons for them are in dispute. According to the defendant, it was because Mr Cano had borrowed money from him, and was paying off his debt whereas Mr Cano says that they had continued to have business dealings with each other⁹.

The claim and counterclaim in this action arise from the different characterisations by Mr Cano and the defendant of their dealings with each other.

The plaintiff’s claim

The plaintiff’s pleaded claim against the defendant is for the repayment of the sum of S$79,296.94 being the equivalent of US$58,850. This sum of money had been transferred from the plaintiff’s bank account to the defendant’s bank account for the defendant to make payment to one “Sergey” in Moscow¹⁰.

According to the plaintiff, the defendant had agreed to carry out the payment of the money as evidenced by messages exchanged on the WhatsApp platform between Mr Cano and the defendant from 2 July 2019 to 4 July 2019¹¹. The defendant knew that the sum of S$79,296.94 had been transferred to him solely for him to deliver the equivalent sum of US$58,850 to “Sergey” in Moscow on behalf of the plaintiff¹². However, the defendant subsequently failed to carry out the payment to “Sergey” and also refused to return the money to the plaintiff. Mr Cano’s repeated WhatsApp messages to the defendant sent between 5 July to 12 July 2019 to verify if the transfer to “Sergey” had been carried out were ignored¹³.

The plaintiff claims that it is entitled to be repaid the sum of S$79,296.94 which had been transferred from its bank account to the defendant being monies had and received by the defendant for the plaintiff¹⁴.

The defence

The defendant denies the plaintiff’s claim altogether and denies that the plaintiff is entitled to any of the reliefs sought. He says that he had not agreed to carry out any payment on behalf of the plaintiff¹⁵.

The defendant says that at all material times, he had dealt with the Third Party and at no material time did the Third Party disclose the involvement of the plaintiff in their messages exchanged on WhatsApp. While he did receive the sum of S$79,269.94 into his account with DBS Bank, he denies that he had received it for, or to the use of, the plaintiff. He had no knowledge of which party had transferred the sum of S$79,269.94 into his DBS bank account¹⁶.

The Third Party had also not disclosed the full name of “Sergey”, the full address of “Sergey” nor any reason why US$58,850 was needed to be given to “Sergey” in Moscow in cash. The identity and location of the proposed recipient as well as the purpose of the transfer of the monies were not sufficiently ascertainable nor disclosed by the Third Party ¹⁷.

Further, as the defendant was not travelling to Moscow physically, it was never intended that the defendant himself would hand over US$58,850 to “Sergey” in Moscow in cash¹⁸.

The defendant denies that he had ignored the Third Party’s WhatsApp messages sent between 5 July 2019 and 12 July 2019. He pleaded that the messages received from the Third Party were difficult to understand, such as,

“He is sitting there and waiting for them. He get nervous”; “It’s not my money”; “it’s not mine”; “It will start such a mess, it will be impossible to stop”; “there is very little time left”; “Have mercy on me!”; “It’s not my money”; “But this is not my money and the consequences will be terrible”; and “In Moscow, I have to give back not $58,850, but + $1,500 (a penalty for the late payment) May I bring this money by cash?”¹⁹.

The defendant avers that he learnt for the first time of the alleged involvement of the plaintiff in the matter of handing over US$58,850 to “Sergey” in Moscow in cash only when he received the letter of demand from the plaintiff’s solicitors dated 22 July 2019 demanding payment of $79,269.94 by 12.00pm on 24 July 2019. The letter of demand had alleged an agreement between the plaintiff and the defendant which he denies²⁰.

In the event that the Third Party had caused S$79,269.94 to be paid out from an account of the plaintiff into the defendant’s DBS Bank account for handing over of the sum of US$58,850 to “Sergey” in Moscow in cash, the defendant was unaware of any business reason for the plaintiff to do so. Consequently, the Third Party’s action in making the payment to the defendant would be in breach of his statutory and fiduciary duty owed to the plaintiff²¹.

The defendant pointed out that prior to the Third Party’s request to hand over US$58,850 to “Sergey” in Moscow in cash, he had alleged that his personal accounts, and also company accounts of the plaintiff, had been closed. The Third Party had, in particular, provided the defendant with a letter issued by Standard Chartered Bank (Singapore) Limited (“SCB”) to the plaintiff dated 14 June 2019 entitled “Notice of account closure”. SCB’s letter stated that due to increasing standards on client due diligence across the financial industry, after a recent review of the plaintiff’s account/s, SCB was no longer able to continue its banking relationship with the plaintiff. Reference was made to the SCB website on “Customer Due Diligence” or “CDD” wherein it was mentioned that the bank’s CDD procedures ensure that it knows who its customers are and the need to spot any suspicious occurrence, in particular money laundering²².

The defendant further disclosed that on a date and for reasons not clear to him, the sum of S$79,269.94 in his DBS Bank account had been frozen by an order issued by the Singapore Police Force. In the circumstances, the defendant awaits the direction or order from the court²³.

As for the plaintiff’s pleaded claim, the defendant stated that there is no such cause of action as “monies had and received”. In the event that the plaintiff was seeking equitable relief, it was the defendant’s position that the plaintiff had not come to court with clean hands²⁴.

If the defendant were found liable to the plaintiff on its claim, he seeks to set off against such liability such sums as he may be awarded by way of his counterclaim.

The counterclaim and third party claim

The defendant had launched a counterclaim as well as a third party claim which is premised on the exact same set of facts.²⁵

The defendant had pleaded that if he were found liable to the plaintiff on its claim, he would counterclaim against the Third Party for contribution for the whole of the plaintiff’s claim on account of the latter’s breach of his statutory and fiduciary duty owed to the plaintiff²⁶. Additionally, the defendant had pleaded a set-off based on his counterclaim²⁷.

Defendant’s claim for repayment of outstanding loan given to the Third Party

In chronological sequence, the first head of the defendant’s counterclaim is premised on a loan allegedly provided by the defendant to the Third Party at the latter’s request in 2013 as outlined below²⁸: The Third Party had borrowed S$195,700 from the defendant on or around 22 June 2013 and has been indebted to the defendant since. Over the years, the Third Party had made part payments of various sums to the defendant pursuant to such debt, viz once in 2014, six times in 2015, ten times in 2016, 11 times in 2017, and six times in 2019 with the last part payment made on 15 May 2019, leaving a balance of S$56,500 outstanding. The Third Party had made a significant portion of such part payments of his personal debt through the accounts and credit cards of the plaintiff, making no distinction between himself and the plaintiff in respect of which he controls as a director and majority shareholder with 94.56% shareholding. Despite repeated demands, the Third Party has failed to repay the defendant. In the premises, the defendant claims that the Third Party and/or the plaintiff are jointly and severally liable to the defendant for the repayment of the outstanding debt of $56,500.

Defendant’s claim for work done at the Third Party’s request

The defendant’s second head of claim is for work done in relation to a website development project²⁹: At the Third Party’s request, the defendant had on or around May 2019 agreed to procure the provision of services related to certain websites (“Russian Visa”/russianvisa.sg and “Visa-Singapore” / singaporevisa.sg) and their underlying systems based on blockchain technology, which websites were to be run or managed by the plaintiff. An offer to commence work was accepted by the Third Party on or around 18 March 2019. The work was completed...