The Star Entertainment QLD Ltd v Wong Yew Choy and another matter

• Jurisdiction: Singapore
• Judge: Jeremy Lionel Cooke IJ
• Judgment Date: 07 July 2020
• Neutral Citation: [2020] SGHC(I) 15
• Docket Number: Suit No 3 of 2019 (HC/Summons 2109 of 2019 and SIC/Summons No 35 of 2019)
• Date: 07 July 2020
• Published date: 14 July 2020
• Plaintiff Counsel: Lim Than Lim Alfred, Lye May-Yee Jaime and Verna Goh (Fullerton Law Chambers LLC)
• Defendant Counsel: Vergis S Abraham and Lim Mingguan (Providence Law Asia LLC)
• Hearing Date: 21 August 2019,22 August 2019
• Court: International Commercial Court (Singapore)
• Subject Matter: Section 5(2) Civil Law Act (Cap 43, 1999 Rev Ed),Contract,Illegality and public policy

Jeremy Lionel Cooke IJ: Introduction

There are two applications before the Court, namely: the Plaintiff’s application for summary judgement under O 14 of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) (“ROC”) for the sum of AUD $43,209,853.22; and the Defendant’s application to strike out the claim under O 18 r 19 of the ROC on the grounds that the sums claimed are for gambling losses incurred by the Defendant at the Plaintiff’s casino in Queensland, Australia, and that the claim falls foul of s 5(2) of the Civil Law Act (Cap 43, 1997 Rev Ed) (“the Act”).

The Plaintiff relied on six affidavits from various personnel in its organisation who had dealings with the Defendant and the Defendant relied on three affidavits where he was the deponent.

The background

The Plaintiff is a public company limited by shares and is registered in Queensland, Australia. Its principal business activity lies in the provision of gaming services and it operates a casino called The Star Gold Coast in Queensland. The Defendant is a Singapore citizen who was a patron at that casino between 26 July 2018 and 2 August 2018. He is a seasoned customer of casinos, including The Star Sydney, which is operated by a company in the same group of companies as the Plaintiff.

The Plaintiff alleges, but the Defendant denies, that prior to his arrival at the Queensland casino, he agreed to the use of “the Blank Replacement Cheque” which had been provided by him to The Star Sydney during his visit there in May 2017. That cheque had not been utilised as a result of the Defendant’s gaming at The Star Sydney but was dishonoured when completed by the Plaintiff. The cheque was presented in September 2018 in respect of the gaming losses which the Defendant allegedly sustained as a result of his visit to The Star Gold Coast in July or August 2018.

The Plaintiff alleges that the Defendant was well aware that it was customary to provide such a blank cheque, prior to gambling, for completion by the casino in respect of any gaming losses, and that he agreed to the use of the Blank Replacement Cheque as a means of paying any losses he suffered at the Plaintiff’s casino prior to his arrival there on 26 July 2018. The Plaintiff had arranged for the cheque to be couriered to Sydney in order to be available for that purpose. On arrival at The Star Gold Coast, the Defendant executed a Cheque Cashing Facility (“CCF”) application form requesting a CCF limit of AUD $40 million. When the application was accepted, the CCF Agreement was concluded by the Plaintiff and entailed various express, and arguably, implied terms, the latter of which essentially tallied with the provisions of the Bills of Exchange Act (Cap 43, 2004 Rev Ed) (“the Bills of Exchange Act”). The relevant express terms were as follows:

I agree that the CCF & any cheques presented under the CCF will be subject to laws in force in New South Wales, Australia & I submit to the jurisdiction of the Courts of that State. In any proceedings under the CCF or in relation to any cheque presented under the CCF I expressly waive any right to object to any proceedings being brought in any Court of competent jurisdiction. I agree that service of any proceedings commenced by [the Plaintiff] against me may be effected by any one or more of the following means: (i) posting it to the address specified as my home address on this application or the Account Reference Card held by [the Plaintiff], (ii) posting it to the postal address in this application (iii) emailing it to the email address in this application or (iv) posting it or emailing it to any other address (postal or email) which I advise to [the Plaintiff] at the time of writing.

I agree to indemnify [the Plaintiff] for all reasonable losses, liabilities & costs including, but not limited to reasonable legal costs incurred by [the Plaintiff] on a solicitor & own client basis, in relation to enforcement of any rights under the CCF or in relation to my deposit accounts or in relation to the proceedings to recover monies owing by me to [the Plaintiff] as a result of a cheque being dishonoured.

If I provide a replacement cheque to [the Plaintiff] with the amount & date incomplete, I authorise [the Plaintiff] to complete details on that cheque in an amount equal to amounts outstanding under my CCF on settlement of any relevant program & to date the cheque on the date of banking either required by law or as otherwise agreed between me & [the Plaintiff].

As part of the CCF arrangements, the defendant also signed third-party authorisation forms empowering his assistant, Mr Chan: to operate the CCF up to the agreed limits by obtaining chips for gaming; and to sign cheques on his behalf (which he duly did for AUD $40 million and AUD $10 million) and Chip Purchase Vouchers which were issued to the Defendant for exchange for chips with which he could bet at the private salon at the casino on the basis of the credit allowed to him by the Plaintiff on the security of the cheques.

The Defendant and his entourage of some 28 people were flown to Queensland at the expense of the Plaintiff and housed in the casino’s private salons where the Defendant played the game of baccarat. It is accepted by the Plaintiff that the Defendant encountered four dealing errors made by the casino’s dealers which took place in the late evenings and early mornings between 29 July 2018 and 1 August 2018.

The Plaintiff took corrective or remedial action and made goodwill payments of AUD $600,000 to the Defendant as a token of regret for the disappointment felt by him. It is said that the Defendant suffered no losses from the dealing errors and none has been alleged. It can be said that he, in fact, benefited from the goodwill payments. After these dealing errors, the Plaintiff’s gaming management met with the Defendant three times. At the first meeting on 30 July 2018, personal apologies were offered and during the two subsequent meetings on 1 August 2018 he was provided with a letter of apology signed on the Plaintiff’s behalf in two formats, the later letter superseding the former and “guaranteeing” the absence of future failures, as opposed to merely assuring it.

The terms of the letter of 1 August 2018 are relied on by both parties in the context of a dispute as to an agreement which was allegedly reached at that time. It is the defendant’s case supported by his affidavit that, to quote para 10 of the defence:

The [D]efendant denies that he incurred debts owing to the [P]laintiff or that he is liable to the plaintiff at all. On or around 1st August 2018, the [P]laintiff and the [D]efendant agreed that the [D]efendant would not have to pay for any of the losses that had been incurred up to 30th July 2018, no further mistakes would be made by the Star’s dealers when attending to the [D]efendant. And if there was a further mistake, the [D]efendant would not be required to pay for any losses at all.”

Particulars of the agreement are then given in the particulars to para 10 of the defence – sub-paragraphs (a) through to (j).

This agreement is denied by the Plaintiff’s witnesses on affidavit. They point to the terms of the letter itself as containing no such agreement. The Defendant’s case is that an agreement was reached and that the letter, although not containing the full terms of it, is some evidence in support of what is said to have been agreed.

At para 10(k) of the defence, the Defendant maintains that he resumed gaming on 1 August 2018 in reliance on the agreement that had been reached. But on the same day, the Plaintiff’s dealers made the same mistake that had been previously made which resulted in the Defendant’s immediately stopping his gaming.

The Defendant has an alternative plea of estoppel based on the same allegations of fact all of which are denied by the Plaintiff.

The Plaintiff says that the Defendant departed from the Star Gold Coast on the 2 August 2018 and in the process, known as a “settlement”, it was calculated that the total amount owed by the Defendant to the Plaintiff pursuant to the CCF agreement amounted to the sum to which I have previously referred, namely some AUD $43 million approximately. The details of the calculations were set out in affidavits filed on behalf of the Plaintiff. In early September 2018, the Plaintiff completed the details for the Blank Replacement Cheque pursuant purportedly to the authorisation given under cl 7 of the CCF agreement. The cheque was dated the 7 September 2018 and was made payable to the Star Gold Coast for a Singapore dollar sum equivalent to the amount outstanding in Australian dollars. Shortly after the Defendant’s return to Singapore, he instructed his bank to stop payment on the replacement cheque with the result that on presentation, it was dishonoured.

In addition to the defence based on the oral agreement to which I have referred, the Defendant has two additional grounds for resisting the claim. First, the Defendant maintains that the Blank Replacement Cheque which was presented was completed without his authority for two distinct reasons. The first reason is that there were no losses to be covered by it because of the oral agreement alleged by the Defendant. The second reason is that quite apart from this, the Blank Replacement Cheque had been furnished by the Defendant in 2017 for the payment of any losses incurred in the Sydney casino to a different company from the Plaintiff albeit one in the same group. He says that he never authorised its use to pay for losses incurred in 2018 at the Gold Star in Queensland. The second ground is that the Plaintiff is, by virtue of s 5(2) of the Act, unable to bring an action to recover money allegedly won on a wager.

The Plaintiff’s summary judgment application and the strike-out application

The law relating to summary judgment application and the principles to be applied were not in dispute between the...