Sakae Holdings Ltd v Gryphon Real Estate Investment Corp Pte Ltd and others (Foo Peow Yong Douglas, third party) and another suit

• Jurisdiction: Singapore
• Judge: Judith Prakash JA
• Judgment Date: 04 May 2017
• Neutral Citation: [2017] SGHC 100
• Court: High Court (Singapore)
• Docket Number: Suits Nos 1098 and 122 of 2013
• Year: 2017
• Published date: 07 July 2018
• Hearing Date: 22 January 2016,18 February 2016,24 February 2016,16 February 2016,28 January 2016,21 January 2016,26 February 2016,25 February 2016,26 January 2016,15 January 2016,19 February 2016,10 February 2016,23 February 2016,17 February 2016,19 January 2016,20 January 2016,24 June 2016,27 January 2016
• Plaintiff Counsel: Davinder Singh SC, Jaikanth Shankar, Zhuo Jiaxiang, Navin Shanmugaraj, Samantha Tan, V Kumar Sharma and Pradeep Singh Khosa (Drew & Napier LLC)
• Defendant Counsel: R Chandra Mohan, Vikram Nair, Jonathan Yuen, Tan Ruo Yu, Doreen Chia and Khelvin Xu (Rajah & Tann Singapore LLP),Samuel Chacko, Lim Shack Keong, Charmaine Chan-Richard and Cara Soo Min (Legis Point LLC),Siraj Omar and Alexander Lee (Premier Law LLC)
• Subject Matter: Civil Procedure,Third Party Proceedings,Companies,Directors,Duties,Oppression,Minority Shareholders,Costs,Principles
• Citation: [2017] SGHC 100

Judith Prakash JA: Introduction

In these consolidated actions, Suit 1098 of 2013 (“Suit 1098”) and Suit 122 of 2013 (“Suit 122”), the plaintiff is Sakae Holdings Ltd (“Sakae”). The defendant in Suit 122 is Ong Siew Kwee who is also known to all the parties as Andy Ong (“Mr Ong”). There are ten extant defendants in Suit 1098, the most important for present purposes being Mr Ong, the third defendant, Ho Yew Kong (“Mr Ho”), the fourth defendant, and Ong Han Boon, the fifth defendant.

The consolidated actions were the result of a dispute between the parties regarding a joint venture company, Griffin Real Estate Investment Holdings Pte Ltd (“the Company”), which Sakae and ERC Holdings Pte Ltd (“ERC Holdings”), a company belonging to Mr Ong, invested in in order to acquire most of the units in a commercial building known as Bugis Cube. Suit 122 was Sakae’s action against Mr Ong for breach of his fiduciary duty as a director of Sakae in relation to share options granted by the Company to another company in which Mr Ong had an interest. Suit 1098 was Sakae’s action against, inter alia, Mr Ong, Mr Ho and Ong Han Boon for conducting the Company’s affairs in such a way as to amount to oppression and unfair prejudice to Sakae as a shareholder of the Company.

The defendants denied liability to Sakae in the consolidated actions. Additionally, however, they commenced third party proceedings against Douglas Foo Peow Yong (“Mr Foo”). Mr Foo is a director and chairman of Sakae. He was, also, at all material times a director of the Company. The defendants’ allegations are that Mr Foo was in breach of his fiduciary duties owed to the Company and that these breaches contributed to the wrongful transactions that Sakae was complaining about. Accordingly, they asserted, if they were found liable to Sakae, Mr Foo in turn would be liable to indemnify them and contribute to any liability that they may have to Sakae. In this judgment, where it is necessary for clarity, I will sometimes refer to Mr Ong, Mr Ho and Ong Han Boon collectively as the “TP Plaintiffs”.

The trial of the suits was conducted before me. On 7 April 2017, I delivered judgment in respect of Sakae’s claims. In my judgment ([2017] SGHC 73) (“the Judgment”), I set out my reasons for finding Mr Ong, Mr Ho and Ong Han Boon liable to Sakae for various acts of oppression. I made orders against them ordering them to pay various amounts to the Company. I also ordered Mr Ong to pay Sakae the amount of its claim made in Suit 122. Since I have found liability on the part of these litigants, I have now to consider their third party claims against Mr Foo and to decide whether or not he bears any liability to them.

The Judgment contains a full account of Sakae’s claims, the defences put forward by the various defendants and the evidence and submissions that I considered. I will not repeat them here. In so far as anything in this judgment is unclear, please refer to the Judgment. Further, defined terms used herein are used in the same way as in the Judgment unless I state otherwise.

General basis of the third party claims

The third party claims against Mr Foo arise as follows: From a Third Party Notice in Suit 122 filed on 18 August 2014 by Mr Ong; From a Third Party Notice in Suit 1098 filed on 12 August 2014 by, amongst others, Mr Ong and Ong Han Boon; and From a Third Party Notice in Suit 1098 filed on 1 December 2014 by Mr Ho. In each of the Third Party Notices, the TP Plaintiffs claimed against Mr Foo to be indemnified against Sakae’s claims against the TP Plaintiffs and the costs of the action and, alternatively, for contribution to such extent of Sakae’s claims as the court may deem fit. In their closing submissions, however, the TP Plaintiffs dropped their claims for indemnification and concentrated only on their claims for contribution from Mr Foo.

In the Judgment, I have found one or more of the TP Plaintiffs liable to make payment to the Company or Sakae of various amounts. I have held: Mr Ong and Ong Han Boon jointly and severally liable to pay the Company the sum of $2,826,335.17 in respect of excessive management fees paid to Gryphon Capital Management Pte Ltd (“GCM”) (see [303] of the Judgment). Mr Ong and Ong Han Boon jointly and severally liable to pay the Company the sum of $7.9m in respect of the First Loan and the First Loan Agreement (see [315]–[316] of the Judgment). Mr Ong and Mr Ho jointly and severally liable to pay the Company $16m in respect of the Lease Agreement and the payment of compensation to ERC Institute (see [318]–[319] of the Judgment). Mr Ong and Mr Ho jointly and severally liable to pay the Company the sum of $160,500 in respect of the Consultancy Agreement (see [321]–[322] of the Judgment). Mr Ong and Mr Ho jointly and severally liable to pay the Company the sum of $8m in respect of the May PMA (see [332] of the Judgment). Mr Ong liable to pay Sakae the sum of $2,641,975 and interest thereon from the date of the writ in Suit 122 (see [329] of the Judgment).

It would be seen from the above list that Mr Ong is liable for all six heads of claim. Ong Han Boon is liable only in respect of the claims referred to in [7(a)] and [7(b)]. As for Mr Ho, he is liable only for the claims referred to in [7(c)], [7(d)] and [(7(e)].

Legal basis for contribution from a third party

The TP Plaintiffs and Mr Foo agreed that any entitlement that the TP Plaintiffs may have to contribution from Mr Foo is governed by ss 15 and 16 of the Civil Law Act (Cap 43, 1999 Rev Ed) (“CLA”). So far as is relevant, these sections provide:

15.—(1) Subject to subsections (2) to (5), any person liable in respect of any damage suffered by another person may recover contribution from any other person liable in respect of the same damage (whether jointly with him or otherwise).

…

16.—(1) Subject to subsection (3), in any proceedings for contribution under section 15, the amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that person’s responsibility for the damage in question.

(2) Subject to subsection (3), the court shall have power in any such proceedings to exempt any person from liability to make contribution, or to direct that the contribution to be recovered from any person shall amount to a complete indemnity.

There are two points to emphasise here. First, for a claimant to succeed under s 15(1) of the CLA, it is essential that both the person from whom contribution is sought and the person who is claiming the contribution be liable in respect of “the same damage”. Second, s 16(2) gives the court power to exempt any person from contribution to liability. This power is not circumscribed in any way.

The test which is applied to decide the issue of whether the liability is in respect of “the same damage” is the three-step test set out by the Court of Appeal in Tan Juay Pah v Kimly Construction Pte Ltd and others [2012] 2 SLR 549 (“Tan Juay Pah”) which the court adopted from the English case of Royal Brompton Hospital NHS Trust v Hammond [2002] 1 WLR 1397 (“Royal Brompton”). Adapted to the circumstances of this case, the three-step test can be stated as follows: What damage was suffered by Sakae as a result of the actions of the TP Plaintiffs? Are the TP Plaintiffs liable to Sakae in respect of that damage? Is Mr Foo also liable to Sakae in respect of that very “same damage” or some of it?

I discuss the first question in [29] below.

The answer to question (b) depends on the answer to question (a). The parties, making their submissions on the third party claims in advance of my decision on the main action, treated the answer to the question in a very general way. Mr Ong and Ong Han Boon submitted that if any of the transactions were wrongfully entered into, the damage suffered by Sakae would be the losses it allegedly suffered as claimed in Suits 1098 and 122 and they would be liable to Sakae in respect of these losses. Mr Ho made the general point, relying on Airtrust (Singapore) Pte Ltd v Kao Chai-Chua Linda [2014] 2 SLR 673, that where one director is found liable to a company for breach of fiduciary duty, he can claim contribution from another director who is also in breach of such duty. In doing so, he indicated that he was regarding himself and Mr Foo as equally liable to the Company. He did not distinguish between damage to the Company and damage to Sakae. Now that findings on liability in the main action have been made, I can answer the second question more specifically and do so later in this judgment.

The third question, one that also which needs to be dealt with in this judgment in some detail, is whether Mr Foo is also liable to Sakae in respect of the very same damage or some of it.

Prior to dealing with the substantive aspects of the claims, I need to consider a procedural argument which Mr Foo has fielded in answer to the claims of Mr Ong and Ong Han Boon.

The procedural defence

At the end of Sakae’s case in Suits 122 and 1098, Mr Ong and Ong Han Boon elected to call no evidence on the basis that there was no case to answer. Mr Ho took a different course and that is why the procedural defence was not mounted against him as well.

Mr Foo submitted that the claims brought against him by Mr Ong and Ong Han Boon should be dismissed as these TP Plaintiffs did not open their case against Mr Foo in respect of, and did not adduce any evidence to support, their respective third party claims. As such, Mr Foo contended that there was no evidence before the court to support these claims and they could not be maintained.

The basis of the argument is that third party proceedings, while somewhat connected to the main action, are regarded as separate and independent proceedings in their own right. The third party proceedings involve pleadings which are separate and distinct from...