Space Executive Pte Ltd v Transferclear Pte Ltd

• Jurisdiction: Singapore
• Judge: Samuel Wee
• Judgment Date: 07 August 2023
• Neutral Citation: [2023] SGMC 61
• Court: Magistrates' Court (Singapore)
• Docket Number: Magistrate’s Court Originating Claim No 3760 of 2022
• Hearing Date: 24 May 2023,26 July 2023
• Citation: [2023] SGMC 61
• Year: 2023
• Plaintiff Counsel: Nicholas Poon and Daniel Lee (Breakpoint LLC)
• Defendant Counsel: Noel Oehlers and Chua Su Ann (Characterist LLC)
• Subject Matter: Contract,Formation,Acceptance by conduct,Civil procedure,Damages,Interest,Whether contractual interest based on a floating rate should be awarded when there is no evidence of the indexed rate for the entire period,Evidence,Adverse inferences,Whether adverse inferences should be drawn from the failure to call a material witness and submit material documents
• Published date: 29 August 2023

District Judge Samuel Wee: Introduction

This case revolved around the payment for recruitment services provided by the Claimant to the Defendant. The Defendant accepts that the Claimant provided recruitment services leading to the hiring of Mr Ng Chee Siang (“Mr Ng”) as its Chief Compliance Officer (“CCO”). However, it alleges that it did not agree to the terms of the Claimant’s remuneration and disputes the Claimant’s fees of $51,039 for the recruitment services – being remuneration at the rate of 30% of Mr Ng’s annual remuneration package of $159,000 plus 7% GST. The Claimant therefore commenced this action to seek payment of its fees for the recruitment services.

After considering the evidence and submissions, I allow the Claimant’s claim with interest.

Undisputed facts

The Claimant is a recruitment agency specialising in recruiting senior management and executive level personnel.¹

The Defendant is a company in the payment services industry.²

In February 2022, the Defendant’s Mr Sam Yap (“Mr Yap”, who was the Chief Executive Officer (“CEO”)³) began liaising with the Claimant’s Ms Agnes Chan (“Ms Chan”) to assist with the recruitment of a CCO for the Defendant.⁴

On 21 February 2022: Mr Yap and Ms Chan exchanged WhatsApp messages relating to the Claimant’s fees:⁵

Mr Yap:	can you remind me what is the fee your side will charge for this pls?
Ms Chan:	Hey Sam, sure [emoji] Our standard terms are 25% and 30%. I’ll have to get mgmt. approval for any negotiation
Mr Yap:	sorry, when you say 25% and 30%, what are you referring to?
Ms Chan:	of annual base.
Ms Chan:	Just emailed you our standard terms & brochure.

Ms Chan sent an email with the Claimant’s Terms of Business Contingent Mandates Agreement (“Claimant’s Terms”) to Mr Yap.⁶ The relevant provisions of the Claimant’s Terms are as follows: 3.3 The Company will send an invoice to the Client (the “Invoice”) for its fees which will be a minimum fee of S$20,000 or as calculated below, whichever is the higher (the “Fee”):

	Variable Fee
	For Remuneration Package equivalent to up to S$149,999 per 12-month period	For Remuneration Package equivalent to S$150,000 and above per 12-month period
Permanent Engagement	25% of Remuneration Package during first 12 months of the Engagement	30% of total Remuneration Package during first 12 months of the Engagement
Fixed Engagement	25% of Remuneration Package during (i) first 12 months of the Engagement (ii) total Engagement, if less than 12 months.	30% of total Remuneration Package during (i) first 12 months of the Engagement (ii) total Engagement, if less than 12 months.

…

4.1 The Client shall pay the Fee to the Company, together with any applicable taxes, within 14 days of the date of the Invoice. 4.2 If the Client fails to make any payment when due the Company shall be entitled to charge interest on the amount unpaid at the rate of 4% over the prime lending rate from time to time of DBS Singapore. Such interest shall accrue from the due date until payment is made in full.

…

Thereafter, Mr Yap and Ms Chan continued to liaise regarding the recruitment of a CCO for the Defendant. Ms Chan proposed various candidates, some of whom were interviewed by Mr Yap. In particular, Ms Chan introduced Mr Ng to the Defendant on 22 March 2022.⁷

Between 6 April 2022 and 9 May 2022, Ms Chan followed-up with Mr Yap on the Defendant’s endorsement of the Claimant’s Terms. On 6 April 2022, Mr Yap requested that Ms Chan send the Claimant’s Terms to him again in response to Ms Chan’s WhatsApp message to “get terms signed”.⁸ Ms Chan thereafter sent an email to Mr Yap to forward the Claimant’s Terms.⁹ On 11 April 2022, Mr Yap and Ms Chan exchanged WhatsApp messages relating to the Claimant’s Terms:¹⁰

Ms Chan:	Oh wanted to follow up on Andrew [ie. Mr Ng] and the terms
Mr Yap:	just issued Andrew [ie. Mr Ng] with the letter of offer
Mr Yap:	the terms – let me chase up ok?
Mr Yap:	how is the payment made ah by the way?
Ms Chan:	Alright thank you [emoji]
Ms Chan:	Oh we will email the invoice on start work date
Mr Yap:	great :) thanks!

On 18 April 2022, Ms Chan sent a WhatsApp message to Mr Yap: “Btw can we get terms agreed soon [emoji] my boss is coming after me lol”. Mr Yap did not respond. On 6 May 2022, Ms Chan sent another WhatsApp message to Mr Yap: “Hi Sam, we will be sending the terms via DocuSign, and only the recipient will be able to sign off on the document. Will you be signing off? If not, may I have the email address of the signee please? Will CC you in the email too”. Mr Yap did not respond. On 9 May 2022, Ms Chan sent an email to Mr Yap on the signing of the Claimant’s Terms by DocuSign.¹¹ Mr Yap did not respond.

The Claimant issued its invoice for $51,039 for its services on 16 May 2022. This was after Mr Ng was hired by the Defendant around late April 2022.

On 12 July 2022, Mr Yap sent an email to the Claimant stating “Thanks for your email. This is the first time I saw this invoice. I understand that your colleague who was dealing with us left before the candidate joined us. Please give me some time to organise payment for this. Thanks.”.¹²

On 28 July 2022, Mr Yap sent an email to the Claimant stating “… Andrew [ie. Mr Ng] currently draws a monthly gross of SGD11500 (please see attached 2 months payslips). Can you advise the breakdown of the calculation of the commission?”).¹³

Subsequently, the Claimant continued to follow-up with the Defendant on the payment of its invoice.

In September 2022, the Defendant first raised questions on the applicability of the Claimant’s Terms and suggested paying fees based on the market standard price.¹⁴ Prior to this, there is no documentary evidence of Mr Yap ever informing Ms Chan or the Claimant that the Claimant’s Terms did not apply.

Consequently, the Claimant commenced this action to seek payment of its fees together with interest.

The Defendant must pay the Claimant its remuneration based on the Claimant’s Terms The Claimant’s Terms were accepted by virtue of the Defendant’s conduct

The crux of this case is whether an agreement based on the Claimant’s Terms was reached. The Claimant’s position is that the Claimant’s Terms were accepted by the Defendant’s conduct.¹⁵ The Defendant disagrees. It takes the position that there was no acceptance in writing or by conduct; and the specific terms of the Claimant’s engagement would be negotiated and agreed upon later.¹⁶ The Defendant also takes the position that Mr Yap was not able to agree to the Claimant’s Terms as this was a matter to be decided by his superiors.¹⁷

The law is clear that the acceptance of an offer can be implied from conduct, which may evince consensus ad idem and an intention of the offeree to be bound (Cooperatieve Centrale Raiffeisen-Boerenleenbank BA (trading as Rabobank International), Singapore Branch v Motorola Electronics Pte Ltd [2011] 2 SLR 63 at [47]; Tonny Permana v One Tree Capital Management Pte Ltd and another [2021] 5 SLR 477).

Based on the evidence before the Court, I find that the Claimant’s Terms were accepted by virtue of the Defendant’s conduct; and reject the Defendant’s assertion that the specific terms of the Claimant’s engagement would be negotiated and agreed upon later, which was simply unbelievable. My reasons for this are as follows.

First, Mr Yap continued to work with Ms Chan after she provided him with the Claimant’s Terms; and did not try to negotiate the said terms in any way. The evidence shows that Mr Yap understood the Claimant’s fees would be based on 25% or 30% of the annual base pay of the recruited staff (ie. Clause 3.3 of the Claimant’s Terms) and asked how payment would be made. This is reflected in (a) the WhatsApp messages and email on 21 February 2022, when Mr Yap broached the issue of the Claimant’s remuneration, and was told by Ms Chan that the “standard terms are 25% and 30% … of annual base” before she sent over a copy of the Claimant’s Terms to Mr Yap;¹⁸ and (b) the WhatsApp messages on 11 April 2022, when Mr Yap asked how payment would be made, to which Ms Chan responded “we will email the invoice on start work date [of the recruited candidate]”, before Mr Yap replied “great :) thanks!”.¹⁹ Against this backdrop, there is no evidence of Mr Yap ever questioning or raising doubts on the payment terms; or trying to negotiate the same. Instead, it is not disputed that Mr Yap was in frequent communication with Ms Chan regarding the recruitment of a CCO and that Ms Chan introduced Mr Ng to the Defendant on 22 March 2022, more than a...