Thio Syn Kym Wendy and others v Thio Syn Pyn and others and other appeals

• Jurisdiction: Singapore
• Judge: Andrew Phang Boon Leong JA
• Judgment Date: 08 August 2018
• Neutral Citation: [2018] SGCA 46
• Plaintiff Counsel: Cavinder Bull SC, Kong Man Er and Fiona Chew Yan Bei (Drew & Napier LLC),Chan Tai-Hui, Jason, Ong Min-Tse, Paul, Mak Sushan, Melissa and Afzal Ali (Allen & Gledhill LLP),Alvin Yeo SC, Tan Whei Mien Joy, Liew Yik Wee, Ho Wei Jie, Seet Tian Long, Rich and Jeremy Tan (WongPartnership LLP)
• Docket Number: Civil Appeals Nos 146, 147, 148, 198, 200 and 201 of 2017
• Date: 08 August 2018
• Hearing Date: 03 August 2018
• Subject Matter: Minority shareholders,Legitimate expectations,Companies,Quasi-partnerships,Oppression,Separate legal personality
• Published date: 14 August 2018
• Defendant Counsel: Siraj Omar (Premier Law LLC)
• Court: Court of Appeal (Singapore)
• Citation: [2018] SGCA 46
• Year: 2018

Andrew Phang Boon Leong JA (delivering the oral judgment of the court): Introduction

These six appeals arise out of a series of suits between the members of the Thio family. In the previous suits in 2008, Mr Thio Keng Poon (“Mr Thio”), the patriarch of the family, commenced proceedings against the Thio siblings and their mother for minority oppression and for being irregularly removed from his directorships. Mr Thio was in turn sued for breaches of directors’ duties.

In the aftermath of the previous suits, the relationship between the Thio siblings fell apart. Three of the Thio siblings, namely, Thio Syn Kym Wendy (“Wendy”), Thio Syn San Serene (“Serene”) and Thio Syn Ghee (“Michael”), are the plaintiffs in this case. Their two brothers Thio Syn Pyn (“Ernest”) and Thio Syn Wee (“Patrick”), along with their mother, Mdm Kwik Poh Leng (“Mdm Kwik”), are the defendants. The plaintiffs sought relief from minority oppression for acts committed by the defendants and asked for a buyout order in respect of their shares in three of the companies in the Thio family’s group of businesses (“the Thio Group”), namely, Malaysia Dairy Industries Pte Ltd (“MDI”), Thio Holdings Pte Ltd (“THPL”) and United Realty Pte Ltd (“URL”).

The trial judge (“the Judge”) found for the plaintiffs in part (see Thio Syn Kym Wendy and others v Thio Syn Pyn and others [2017] SGHC 169 (“the Judgment”)). She first held that the parties were not in a quasi-partnership and did not have any other legitimate expectations independent of any quasi-partnership. She then held that some, but not all, of the acts complained of constituted minority oppression. However, she held that only Ernest and Patrick, and not Mdm Kwik, were involved in the acts of oppression. Hence, the Judge ordered Ernest and Patrick to buy out the plaintiffs’ shares, but only in respect of one of the companies, MDI.

In these appeals, the plaintiffs appeal against the Judge’s findings in respect of four acts that the Judge found did not constitute oppression. The plaintiffs also submit that they are entitled to a buyout order not only in respect of MDI, but also THPL and URL. Ernest and Patrick, on the other hand, appeal in respect of three other acts that the Judge found constituted acts of oppression.

Having carefully reviewed the parties’ written and oral submissions, we now give our decision. We shall first deal with three issues that form the context against which we evaluate Ernest’s and Patrick’s conduct in order to ascertain whether their acts constituted oppression and, if so, the appropriate remedy that should be applied in this case. Together, these five issues correspond directly to the five issues that the Judge dealt with in the court below (see the Judgment at [41]).

Our decision on the first three issues

We first affirm the Judge’s finding that the Thio Group was not run as a quasi-partnership. Mr Thio was a traditional patriarch who had selectively groomed his sons to take over the family business. Hence, while there could be said to be mutual trust and confidence between Mr Thio on the one hand and Ernest and Patrick on the other, at least up to the 2008 proceedings, there was no such relationship between Mr Thio and the plaintiffs. The evidence shows that the plaintiffs were only given shares by Mr Thio because Mdm Kwik had insisted that they be given financial provision and Mr Thio considered that the shares were a means of financial provision that the plaintiffs could not squander.

Second, we also affirm the Judge’s finding that the plaintiffs did not have a legitimate expectation that they would remain directors of the companies in the Thio Group as long as they were shareholders. Apart from the reasons stated by the Judge, it is significant, in our view, that the parties had entered into the Deed of Settlement as a means of resolving the conflict between them by setting out their rights and obligations in concrete form. It is improbable that the plaintiffs would have been guaranteed directorships as a form of protection for their shares without this agreement being reflected clearly in the Deed of Settlement.

However, we allow the appeal against the Judge’s finding that the separate legal personality of all of the companies in the Thio Group had to be strictly maintained. While we agree with the Judge that the acts in MDI cannot be considered in an oppression claim in respect of URL, we consider that the acts of MDI and URL are relevant in an oppression claim in respect of THPL. THPL’s only assets are the shares of its subsidiaries, and its only roles appear to be to allow Ernest and Patrick to maintain majority shareholding of MDI and to guarantee the banking facilities required for MDI’s operations. Thus, the acts of MDI and URL would inevitably affect THPL, similar to how the business of the holding company in the decision of this Court in Ng Kek Wee v Sim City Technology [2014] 4 SLR 723 would invariably have been affected by the businesses of its subsidiaries because the only assets of the holding company were the shares of the subsidiaries. Accordingly, we allow the appeal against the Judge’s finding on this ground to this limited extent.

Our decision on whether Ernest’s and Patrick’s acts constituted minority oppression

We turn now to the issue of whether Ernest’s and Patrick’s acts constituted oppression. We will first address the plaintiffs’ appeals followed by Ernest’s and Patrick’s appeals.

The plaintiffs appeal against the Judge’s findings that the following acts did not constitute oppression: the non re-election of Wendy and Serene to the boards of MDI and THPL respectively; the sale of Village Tower #07-03 (“Unit 07-03”) by URL; the payment of the performance bonuses to Patrick and Ernest in 2010, which was used as a guise to repay them for legal fees incurred in the 2008 proceedings; and the delay in providing information that the plaintiffs requested.

We affirm the Judge’s findings that all four of these acts did not constitute oppression. In respect of the non re-election of Wendy and Serene to the boards of MDI and THPL respectively, since the plaintiffs could not expect that they would remain directors as long as they held shares, there was nothing in law that prevented their non re-election. Although counsel for the plaintiffs, Mr Alvin Yeo SC, pointed us to cl 13 of the Deed of Settlement, there was nothing in that clause that positively contributed to his clients’ case that they were entitled to remain directors of MDI and THPL. Hence, Wendy’s and Serene’s non...