SH Cogent Logistics Pte Ltd and another v Singapore Agro Agricultural Pte Ltd and others

• Jurisdiction: Singapore
• Judge: Woo Bih Li J
• Judgment Date: 15 October 2014
• Neutral Citation: [2014] SGHC 203
• Plaintiff Counsel: Alvin Yeo SC, Koh Swee Yen, Sim Hui Shan, Chang Qi-Yang and Tang Shang Wei (WongPartnership LLP)
• Docket Number: Suit No 51 of 2012
• Date: 15 October 2014
• Hearing Date: 06 March 2014,14 March 2014,13 March 2014,28 April 2014,07 March 2014,04 March 2014,05 March 2014,12 March 2014,11 March 2014
• Subject Matter: Injunctions,Tort,Conspiracy,Interlocutory injunction
• Published date: 17 October 2014
• Citation: [2014] SGHC 203
• Defendant Counsel: Andre Yeap SC, Adrian Wong and Alywin Goh (Rajah & Tann LLP)
• Court: High Court (Singapore)
• Year: 2014

Woo Bih Li J: Introduction

This dispute is between the current and previous master tenants of a state-owned plot of land at the former Bukit Timah Turf Club at 200 Turf Club Road Singapore 287994 (“the Site”). The current master tenant of the Site alleges that the previous master tenant conspired with others to injure it in the period leading up to the handover of the Site.

The Site

The landlord of the Site is the Government of the Republic of Singapore (“the Government”). The Government was, at the relevant time, acting through the Singapore Land Authority (“SLA”). It is not necessary for present purposes to draw a distinction between the Government and SLA. I will henceforth make reference only to SLA.

The Site is one of the subdivided plots that make up the former Bukit Timah Turf Club. The approximate area of the Site is 178,762m2 (about 1,923,837ft2).¹ It comprises a two-storey car park and a grandstand. The car park was converted for use as a car mart. It was made up of 137 showroom units with attached offices.² The units were sub-tenanted or licensed to second-hand car dealers. The grandstand was converted for use as a retail block. It was made up of about 94 retail units.³ The units were sub-tenanted or licensed to shops, restaurants and other businesses.

The parties

There are various parties and witnesses. To minimise confusion, I will abbreviate the names of corporations and refer to the names of persons in full.

The plaintiffs are part of the Cogent group. The second plaintiff, Cogent Land Capital Pte Ltd (“Cogent Land”) is, and has been, the master tenant of the Site since 1 March 2012. It is responsible for the management and maintenance of the Site. The first plaintiff, SH Cogent Logistics Pte Ltd (“SH Cogent”), was the entity that bid for the tenancy which Cogent Land currently holds. When the tenancy was awarded to SH Cogent, Cogent Land was incorporated for the purpose of entering into the tenancy with SLA. Cogent Land is wholly-owned by SH Cogent.

The first defendant, Singapore Agro Agricultural Pte Ltd (“SAA”) was the previous master tenant of the former Turf Club plot. It became the master tenant in 2001. During SAA’s term as master tenant, the former Bukit Timah Turf Club plot was subdivided into smaller plots, one of which is the Site (the other plots are not material for present purposes). SAA’s tenancy expired on 29 February 2012, the day before Cogent Land’s tenancy commenced. The third defendant, Turf City Management Pte Ltd (“TCM”) was responsible for the management and maintenance of the Site. The second defendant, Tan Chee Beng, said he was the “real decision-maker” in SAA⁴. Tan Chee Beng was a majority shareholder and one of two directors of SAA (the other, Tan Bee Bee, was his sister) at the material time.⁵ He was also a shareholder and a director of TCM at the material time. The fourth defendant, Koh Khong Meng, also known as Roger Koh, was a shareholder and a director of TCM at the material time.

Assuming that there was a conspiracy, Cogent Land, the current master tenant, would presumably have been the entity that suffered the loss, if any, caused by the conspiracy. TCM would presumably have been the entity which executed the acts pursuant to the conspiracy. SAA and TCM would also presumably have been acting in accordance with the instructions and the intention of Tan Chee Beng, Roger Koh, or both. They were directors of one or both companies at the material time.

The parties, however, have not attempted to distinguish the various entities and persons in their pleadings and submissions. Further, none of the defendants sought to distance himself or itself from the intention or conduct of any of the others. Therefore, for the sake of convenience, I will make reference to “the Plaintiffs” and “the Defendants” instead of the individual entities and persons, unless it is appropriate to refer to an individual entity or person.

The cases of the parties

The Plaintiffs allege that the Defendants conspired to injure the Plaintiffs by damaging their business of sub-tenanting and licensing the units as the subsequent master tenant of the Site. The Defendants did so by preventing the Plaintiffs from hitting the ground running when the Plaintiffs took over the Site from the Defendants. The Defendants did this in two ways.

First, the Defendants removed electrical fittings, utilities equipment and structures while carrying out reinstatement work at the Site prior to the handover. The Plaintiffs complain, in particular, of the Defendants’ deliberate removal of 18 items (these items are listed in the annexure to this judgment, and I shall refer to them collectively as “the 18 Items”).⁶ The Defendants accept that they removed five of the 18 Items, but dispute having removed the rest. The Plaintiffs allege that they had to incur expense and time to replace these removed items.

Second, the Defendants obstructed existing sub-tenants and licensees at the Site from continuing with their sub-tenancies and licences under the Plaintiffs. This obstruction was the cumulative result of two acts of the Defendants: The Defendants created an air of uncertainty and anxiety which caused then-existing sub-tenants and licensees to leave the Site. The Defendants sent letters to the sub-tenants and licensees insisting that all of them (even those that were prepared to consider entering into new agreements with the Plaintiffs) vacate their units by 31 January 2012. This was disruptive to the businesses of those sub-tenants and licensees who intended to continue under the Plaintiffs as they would have to vacate their units for a month or more before returning when the Plaintiffs’ tenancy commenced on 1 March 2012. The Defendants deliberately stopped supplying utilities and waste-disposal services at the Site between 31 January 2012 and 29 February 2012, even though there were sub-tenants and licensees still occupying units at the Site. According to the Plaintiffs, many sub-tenants and licensees left because of the Defendants’ acts. The Defendants’ acts foiled the Plaintiffs’ attempts at persuading these sub-tenants and licensees to continue under the Plaintiffs, leading to loss of income from rent and licence fees.

The Defendants deny intending to cause damage to the Plaintiffs. The Defendants say that their position and actions were motivated by their desire to comply with obligations owed to SLA under their tenancy, and the Urban Redevelopment Authority (“URA”) under certain regulations.

On 20 January 2012, the Plaintiffs obtained an injunction (“the Injunction”) restraining the Defendants from carrying out reinstatement work at the Site and from acting in a manner prejudicial to the sub-tenants and licensees who remained at the Site. The Defendants applied to discharge the Injunction on 20 February 2012, and it was discharged on 24 February 2012. In the present action, the Defendants counterclaim for damages against the Plaintiffs for obtaining the Injunction wrongly.

The law on conspiracy

I will touch on the law on conspiracy in brief before stating the issues that arise in this case. As a preliminary point, the Singapore Court of Appeal in EFT Holdings, Inc and another v Marineteknik Shipbuilders (S) Pte Ltd and another [2014] 1 SLR 860 at [90] questioned whether the tort of conspiracy should even continue to be part of the law of Singapore. The Court of Appeal eventually refrained from deciding the point.

I recognise the force in the argument that the tort of conspiracy appears to be an aberration in the common law. It is difficult to explain why an act, when committed pursuant to an agreement between a number of persons triggers liability, while the very same act, when committed by one person alone does not. However, I do not think that it is for the High Court to say that the tort of conspiracy should no longer apply.

In Lonrho Ltd v Shell Petroleum Co Ltd (No 2) [1982] AC 173 at 188, Lord Diplock (whose speech the rest of the House of Lords agreed with) expressed dissatisfaction at the rationale underlying the tort of conspiracy. Lord Diplock nonetheless held that the tort was too well-established for it to be discarded. If the tort of conspiracy is abolished, the lacuna could possibly be filled by a widening of the unlawful interference tort coupled with joint tortfeasorship. But as these issues do not arise for consideration, I shall say no more.

I turn now to the law on conspiracy proper. The essence of conspiracy is an agreement between two or more persons to act in a manner that is intended to, and does injure another. There are two branches to the tort of conspiracy. The first, where the acts committed pursuant to the conspiracy are lawful. The second, where the acts committed pursuant to the conspiracy are unlawful. I will refer to the former as “lawful means conspiracy” and the latter as “unlawful means conspiracy”.

The elements of the tort of conspiracy were set out in Nagase Singapore Pte Ltd v Ching Kai Huat and others [2008] 1 SLR(R) 80 at [23]: an agreement between two or more persons to do certain acts; if the conspiracy involves: unlawful means, the conspirators must have intended to cause damage to the claimant; lawful means, then the conspirators must additionally have had the predominant purpose of causing damage to the claimant; the acts must have actually been performed in furtherance of the agreement; and damage must have been suffered by the claimant.

The elements of the two forms of conspiracy are therefore similar, save for one distinction: the mental element is less stringent where unlawful means, as opposed to lawful means, are employed pursuant to the conspiracy.

The issues

The Plaintiffs’ claim in conspiracy raises four issues: whether the Defendants committed acts pursuant to an agreement between themselves; whether the Defendants’ predominant purpose (or intention) was to...