Super Group Ltd v Mysore Nagaraja Kartik

• Jurisdiction: Singapore
• Judge: Vinodh Coomaraswamy J
• Judgment Date: 14 September 2018
• Neutral Citation: [2018] SGHC 192
• Citation: [2018] SGHC 192
• Court: High Court (Singapore)
• Published date: 05 July 2019
• Docket Number: Suit No 273 of 2015
• Plaintiff Counsel: Bryan Ghows and Ahmad Firdaus Daud (Taylor Vinters Via LLC)
• Defendant Counsel: Edmond Pereira and Goh Chui Ling (Edmond Pereira Law Corporation)
• Subject Matter: Contract,Breach,Evidence,Presumptions,Electronic records,Proof of evidence,Standard of proof for fraud,Limitation of Actions,Extension of limitation period,Acknowledgement
• Hearing Date: 26 April 2017,14 August 2017,27 April 2017,25 April 2017

Vinodh Coomaraswamy J: Introduction

In early 2008, a company controlled by the defendant – and known as Master Beverage Industries Russia Pte Ltd (“MBIR”) – owed the plaintiff about US$1.3m. It is the plaintiff’s case that the defendant signed a written agreement in April 2008 in which he undertook to settle MBIR’s debt by personally paying to the plaintiff US$600,000 and procuring the transfer to the plaintiff of a property in Russia valued at US$700,000.¹ It is common ground that the defendant has not paid the plaintiff US$600,000 and has not procured the transfer of the Russian property to the plaintiff. The plaintiff therefore brings this action against the defendant to claim the liquidated sum of US$1.3m, alternatively damages to be assessed for breach of contract.²

The defendant denies liability to the plaintiff.³ His case is that he did not sign any written agreement, whether as alleged by the plaintiff in April 2008 or at any other time. In any event, he says that the plaintiff’s action is time-barred.

Following a trial on liability alone,⁴ I have found that the defendant did sign a written agreement in April 2008, and that he did so in the terms alleged by the plaintiff. I have also found that the plaintiff’s action is not time-barred. I have accordingly entered interlocutory judgment against the defendant for the liquidated sum of US$600,000 and ordered an assessment of the plaintiff’s damages arising from the defendant’s failure to procure the transfer the Russian property to the plaintiff as agreed.

The defendant has appealed against my decision. I now set out my grounds.

Background facts

The plaintiff is a public listed company in the business of manufacturing and exporting food products and beverages. It is best known for its coffee products.⁵

The defendant is a Singapore citizen who now resides permanently in Russia.⁶

MBIR is a general wholesale trader trading in, amongst other things, coffee products.⁷ At all material times, MBIR was owned and controlled by the defendant and a Russian business associate of his.⁸

In September 2006, the plaintiff agreed to supply coffee products to MBIR.⁹ The defendant nominated a company other than MBIR to be the counterparty to the supply contract.¹⁰ But the understanding was that it was MBIR who would receive and pay for the products which the plaintiff was to supply under the contract.¹¹

The plaintiff duly entered into the supply contract in October 2006.¹² Pursuant to the parties’ understanding, the plaintiff duly supplied coffee products to MBIR beginning in 2007 and invoiced MBIR for those products.

By early 2008, MBIR had accumulated unpaid invoices for the products totalling about US$1.39m.¹³ It appears also that MBIR had raised some disputes with the plaintiff which were alleged to give rise to set-offs and cross-claims against the US$1.39m due under the unpaid invoices.

In an effort to resolve all of their claims and cross claims, MBIR and the plaintiff had a meeting on 22 February 2008.¹⁴ MBIR was represented at the meeting by the defendant. The plaintiff was represented at the meeting by, amongst others, Mr David Teo and Mr Lee Chee Tak. Mr Teo was then the chairman and managing director of the plaintiff. Mr Teo did not give evidence at trial. Mr Lee was then a director of the plaintiff.¹⁵ Mr Lee did give evidence at trial.¹⁶

The defendant accepts that he attended the February 2008 meeting.¹⁷ But his account of the meeting and of the events that followed it diverges sharply from the plaintiff’s account. It is therefore convenient from this point forward to summarise the parties’ accounts separately.

The plaintiff’s account

The plaintiff’s account of the February 2008 meeting is that the defendant proposed to settle MBIR’s debt to the plaintiff by personally paying the plaintiff the sum of US$600,000 and by transferring to the plaintiff the Russian property as security for MBIR’s debt.¹⁸ As evidence of this, the plaintiff relies on three emails sent by the defendant to the plaintiff in February and March 2008, after the February 2008 meeting, by which the defendant reiterated and confirmed this proposal.¹⁹

First, on 29 February 2008,²⁰ the defendant sent to Mr Lee a draft undertaking which had been prepared by the plaintiff and amended by the defendant’s then solicitors.²¹ In the draft undertaking, the defendant proposes in his personal capacity to procure a transfer of the Russian property to the plaintiff “forthwith” in consideration of the plaintiff reducing MBIR’s debt by US$700,000²² and forbearing to sue MBIR for the remainder of its debt.²³ This undertaking was never signed.

The second email is dated 5 March 2008.²⁴ In this email, the defendant refers to the February 2008 meeting and acknowledges that the sum of US$1.3m appears to be due to the plaintiff while reserving MBIR’s rights on its alleged cross claims.

The third and last email is dated 11 March 2008.²⁵ This email bears the subject line “Minutes of meeting of 22nd Feb 2008”. The defendant begins the email by referring to an exchange of correspondence between the parties’ solicitors on 4 March 2008 before summarising the discussions at the February 2008 meeting. He confirms that the discussions resulted in a settled account between the parties showing US$1.3m owing by MBIR to the plaintiff. This sum is arrived at by taking into account the value of all goods supplied by the plaintiff to MBIR and deducting from that all of MBIR’s cross claims against the plaintiff.

The defendant concludes the email with an offer to procure a transfer of the Russian property to the plaintiff and personally to pay the plaintiff an additional sum of up to US$600,000 to resolve the parties’ claims and cross claims amicably:

… with a view to resolving the matter amicably, I as a director of MBIR, has already provided a security on his property in Russia to [the plaintiff] which is actually valued at USD900,000. As [the plaintiff] is aware, land in Russia cannot be owned by foreigners. Hence the legal owner of the land is Promfinaktiv, which is 100% owned by me and not MBIR. The land alone is more than sufficient as a security of any debts owed to [the plaintiff] by MBIR. However, as indicated in the meeting on 22 February 2008, I in my personal capacity as a director of MBIR is willing to pay [the plaintiff] a sum of up to US$600,000 from his own personal resources when such resources are available. My discussions with Lee Chee Tak and Mr. David Teo in respect of MBIR’s accounts with [the plaintiff] have been on this basis.

We trust that [the plaintiff] will view this issue practically. Any litigation proceedings will not be in the interest of any party. With my personal assurances, we trust that the matter can be resolved amicably without the necessity of bringing all issues before the court.

The defendant in this email introduces a Russian company called Promfinaktiv, a corporate vehicle owned and controlled by the defendant though which he holds the Russian property. The defendant explains in this email that, because Russian law does not allow foreigners to own Russian land, a transfer to the plaintiff of his shares in Promfinaktiv is the only way in which he can effect a transfer of the Russian property to the plaintiff.

The parties met again on 2 April 2008. At this meeting, the defendant undertook to the plaintiff to do the same two things in full and final settlement of MBIR’s debt to the plaintiff:²⁶ First, the defendant undertook to procure a transfer of Promfinaktiv, and with it the Russian property, to the plaintiff. Second, the defendant undertook to pay US$600,000 to the plaintiff. The defendant proposed to do this by way of two post-dated cheques in the sum of US$300,000 each, with the final cheque to clear by 9 May 2008.

The following day, 3 April 2008, Mr Lee sent an email to the defendant²⁷ enclosing a document recording in writing the agreement reached on 2 April 2008.²⁸ Mr Lee asked the defendant to print and sign the written agreement and to forward it to the plaintiff as soon as possible. It is the plaintiff’s case that both the plaintiff and the defendant duly signed the written agreement. The defendant denies ever signing the written agreement.

The plaintiff tendered the written agreement at trial.²⁹ I pause at this point to describe it. As I have mentioned, it is drawn up, not in the form of a contract, but as a record of the parties’ agreement at the 2 April 2008 meeting. It does not bear any date indicating when it was drawn up or when it was signed. Two signatures appear at the foot of the document, side by side. The signature on the left is identified as Mr Teo’s, signing for and on behalf of the plaintiff. The signature on the right is identified as the defendant’s, signing “for himself and for and on behalf of Promfinaktiv Ltd”.³⁰

Pursuant to the April 2008 agreement, in order to fulfil his obligation pay the plaintiff US$600,000, the defendant issued in favour of the plaintiff five post-dated cheques bearing various dates in May 2008 in various amounts totalling US$600,000.³¹ All of the cheques were dishonoured upon presentation.³²

The next four emails on which the plaintiff relies were exchanged in April 2009, a year after the April 2008 meeting. In these emails, Mr Lee urges the defendant to perform his obligations under the April 2008 agreement: On 4 April 2009,³³ Mr Lee sends the defendant an email with the subject line “Our Agreement dated 2/04/2008”. Mr Lee begins the email by referring to “said agreement to settle the outstanding account between our two companies”. He notes that the matter is still not yet resolved and warns the defendant that the plaintiff will commence legal action to recover the debt owed by MBIR to the plaintiff if the defendant does not give a “satisfactory final settlement proposal” by 7 April 2009. On the same day,³⁴ the defendant emails Mr Lee...