TYC Investment Pte Ltd and others v Tay Yun Chwan Henry and another

• Jurisdiction: Singapore
• Judge: Lee Kim Shin JC
• Judgment Date: 10 October 2014
• Neutral Citation: [2014] SGHC 192
• Plaintiff Counsel: Thio Shen Yi, SC, Lim Shaochun, Freddie and Tan Pei Qian, Rachel (TSMP Law Corporation)
• Docket Number: Originating Summons No 895 of 2013
• Date: 10 October 2014
• Hearing Date: 24 February 2014,11 August 2014,21 April 2014,27 March 2014
• Subject Matter: directors,implied terms,duties,powers,Companies,memorandum and articles of association,Contract
• Published date: 18 August 2015
• Citation: [2014] SGHC 192
• Defendant Counsel: Chelva Retnam Rajah, SC, Sayana Baratham and Megan Chia (Tan Rajah & Cheah),andEugene Thuraisingam and Jerrie Tan Qiu Lin (Eugene Thuraisingam)
• Court: High Court (Singapore)
• Year: 2014

Lee Kim Shin JC:

It is a basic principle of company law that a company’s powers of management are reserved to its board of directors, and not its shareholders. This principle is encapsulated in s 157A(1) of the Companies Act (Cap 50, 2006 Rev Ed) (“the Companies Act”).

Section 157A(2) of the Companies Act in turn provides that the directors may exercise all of a company’s powers except any power that the Companies Act or the memorandum and articles of association of the company require the company to exercise in general meeting. I will sometimes refer to a company’s memorandum and the articles as the company’s “constitution”.

The division of powers between directors and shareholders has given rise to frequent challenges in the courts. These challenges commonly arise when shareholders exercise a management power in circumstances where the directors are either unwilling or unable to act.

This present case concerns a family holding company, TYC Investment Pte Ltd (“TYC”), and a deadlocked board comprising just two directors who are also ex-spouses. The two directors are Dr Henry Tay Yun Chwan (“HT”) and Ms Jannie Chan Siew Lee (“JC”). HT and JC are also shareholders of TYC.

In 2012, HT, JC and TYC entered into an agreement, under which the approval of both HT and JC is required before payments can be made by TYC.

For various reasons, JC refused to approve certain payments by TYC. Pursuant to an ordinary resolution passed at a general meeting of TYC in September 2013, TYC commenced this action (“OS 895”) against JC on the basis that her refusal to approve these payments constitutes a breach of contract and/or her fiduciary duties.

The dispute involves an interesting conflation of contract terms as agreed between ex-spouses in the context of ancillary matters to matrimonial proceedings, and contract terms as agreed between a company and its shareholders.

The first plaintiff in this action is TYC, HT is the first defendant and JC is the second defendant. The second, third and fourth plaintiffs (“the 2nd, 3rd and 4th Plaintiffs”), all private companies limited by shares, are wholly-owned subsidiaries of TYC. I shall refer to the four plaintiffs collectively as “the Plaintiffs”.

The main legal issues arising from this action are as follows: Can shareholders of a company pass a resolution in a general meeting, held in accordance with the company’s articles of association, to approve the commencement of court proceedings to enforce a claim against a director, if such director is able to veto any proposed board resolution to commence such proceedings? Under what circumstances can a director of a company who has a contractual right to withhold approval of payments by the company, nevertheless be compelled by the court to approve those payments?

Background The TYC Group Structure

The Hour Glass Limited (“THG”) is a home-grown but well-known company that grew from a family business into a company listed on the Singapore Stock Exchange. It is a luxury watch retailer with some 30 watch outlets or boutiques across nine cities in the Asia Pacific region.

HT and JC are the founders of THG, and they are perhaps as well-known as THG. As husband and wife, they established THG in 1979 and have been responsible for the expansion of its business as described above. Sadly, after 41 years of marriage, HT and JC were divorced in May 2010.

HT and JC also established TYC in 1979, as the family holding company of THG and other family assets. These assets are substantial in worth. As at the financial year ended 31 March 2014, TYC held 108,288,397 ordinary shares representing approximately 46% of the issued share capital of THG. TYC also owns two bungalows, at 40A Nassim Road and 40C Nassim Road. The 2nd, 3rd and 4th Plaintiffs each own a condominium unit in the prime Nassim Road location.

As mentioned earlier, HT and JC are the only two directors of TYC. In fact, pursuant to Art 8 of TYC’s articles of association (“the TYC Articles”), HT and JC are permanent “Governing Directors”. The ambit of Art 8 is pivotal to the issues in the present case and the relevant portions of Art 8 are reproduced below:

Subject to Article 3, the said Dr Tay Yun Chwan and Mdm Chan Siew Lee shall be the permanent Governing Directors of the Company until they resign from the office, that is they will not whilst they hold such office be taken into account in determining the rotation of retirement of directors and the provision of Section 153 of the Companies Act will not apply to them and whilst they retain the said office, they will have authority to exercise all the powers, authorities and discretion by these Articles expressed to be vested in the directors generally including the power to convene a general meeting of the Company, and of all the other directors, if any, for the time being of the Company, shall be under their control and shall be bound to conform to their discretion in regard to the Company’s business.

Subject to Article 3, the said Dr Tay Yun Chwan and Mdm Chan Siew Lee whilst they hold the office of Governing Directors, may from time to time, and at any time, appoint any other persons to be directors of the Company, and may define, limit and restrict their powers and may fix and determine their remuneration and duties and may at any time, remove any director howsoever appointed. Every such appointment or removal must be in writing under the hands of Dr Tay Yun Chwan and Mdm Chan Siew Lee.

Subject to Article 7, in the event of the death of any of the two Governing Directors, the surviving person shall be entitled to exercise all or any of the powers previously held by the Governing Directors jointly.

Subject as aforesaid and to these Articles, the rights of all the shareholders shall be the same in every respect.

[emphasis added in italics and bold italics]

In terms of shareholding, HT and JC each hold a founder share giving them 46% and 44% of the voting rights in TYC respectively. Pursuant to Art 7 of the TYC Articles, all issued shares other than these two founder shares are classified as ordinary shares, and no person other than HT or JC may hold these two founder shares.

The remaining ordinary shares in TYC are divided amongst HT and JC’s three children. Of the three children, it is only necessary to highlight that their son, Michael, holds 5% of the voting rights in TYC. Michael’s role will be evident in due course (see [42]–[45] below).

Divorce Settlement Agreements

The ancillary matters in HT and JC’s divorce were settled amicably. As part of the divorce settlement, three agreements were entered into: a Deed of Settlement (“the DOS”) between HT and JC dated 9 April 2010. The DOS settled the issues relating to the division of matrimonial assets and JC’s claim for maintenance; an Agreement for Amendment to the DOS and Settlement of Litigation between HT and JC dated 15 May 2012 (“the SSD”). The SSD involved amendments to the DOS and matters pertaining to the management of TYC; and a Deed among HT, JC and TYC dated 11 June 2012 in respect of certain matters relating to TYC as agreed in the DOS and the SSD (“the TYC Deed”).

In the divorce settlement, the TYC Deed was the only agreement to which TYC was a party. I shall refer to all three agreements as the “Divorce Settlement Agreements”.

Although divorced, HT and JC continued to be closely involved with TYC. They remained permanent “Governing Directors” of TYC, and the TYC group continued to hold a substantial part of the family assets. Accordingly, HT and JC sought to bind TYC by way of the TYC Deed, to matters relating to TYC as earlier agreed between HT and JC in the DOS and the SSD.

Under cl 15 of the SSD, the SSD would be “ineffective, null and void” if any of the four conditions below were not satisfied: TYC’s shareholders unanimously approve all the matters in the SSD relating to TYC; TYC enters into the TYC Deed; the TYC Articles are amended to give effect to the terms of the SSD; and HT and JC obtain an order of court approving the SSD if the above three conditions are satisfied.

It is not disputed that the above four conditions were satisfied. Central to the present dispute is cl 2 of the TYC Deed. Pursuant to cl 2, TYC became entitled to the benefit of the terms and conditions of, and became bound by the obligations in, the DOS and the SSD that relate to TYC, as if it were a party to the SSD.

Article 16 of the TYC Articles provides as follows:

[TYC] may not amend, vary or waive any of its rights and/or obligations under or pursuant to the TYC Deed unless such amendment, variation or waiver has been unanimously consented to by all the shareholders of [TYC].

Article 16 itself expressly provides that it can only be amended, varied or repealed with the unanimous consent of all TYC shareholders.

In summary, the TYC shareholders had unanimously agreed to the provisions of the SSD; TYC became bound by these provisions by virtue of the TYC Deed; and no provision of the SSD can be amended unless all TYC shareholders agree. The SSD is therefore indirectly entrenched as part of TYC’s constitution.

Disputes relating to TYC JC’s refusal to approve payments

Clause 10 of the SSD (“the Payment Clause”) provides that payments to be made by TYC require the approval of both HT and JC. The exact mechanism provided in the Payment Clause reads:

Payment voucher system for all future payments for TYC. Neither HT nor JC will sign a cheque on TYC’s bank accounts unless the other has signed a voucher approving.

Because cheques could only be signed by either HT or JC if there is a corresponding payment voucher approved by the other, HT and JC were in a position whereby each could, by either refusing to sign a payment voucher (or a cheque for a signed payment voucher), prevent the other from causing TYC to make any payment. This arrangement was, perhaps with the full benefit of...