Wibowo Boediono and another v Cristian Priwisata Yacob and another and other appeals

• Jurisdiction: Singapore
• Judge: Andrew Phang Boon Leong JA
• Judgment Date: 09 July 2018
• Neutral Citation: [2018] SGCA 38
• Plaintiff Counsel: Appellants in Civil Appeals Nos 23 and 24 of 2017 in person,Kuah Boon Theng SC, Vanessa Yong and Samantha Oei (Legal Clinic LLC),Sarjit Singh Gill SC, Tan Su Hui and Lin Ruizi (Shook Lin & Bok LLP)
• Docket Number: Civil Appeals Nos 23, 24, 36 and 37 of 2017
• Date: 09 July 2018
• Hearing Date: 16 January 2018
• Subject Matter: Tort,Fraud and deceit,Misrepresentation,Solicitors' duties,Negligence
• Year: 2018
• Defendant Counsel: Quek Mong Hua, Jacqueline Chua Yi Ying and Lee Jing Yan (Lee & Lee)
• Court: Court of Appeal (Singapore)
• Citation: [2018] SGCA 38
• Published date: 14 July 2018

Judith Prakash JA (delivering the judgment of the court): Introduction

These appeals arise out of two suits commenced in the High Court in 2012 by connected Indonesian parties to recover certain sums of money and an apartment unit that were allegedly transferred as a result of fraud practised on the plaintiffs by three of the defendants. The other defendants are solicitors whose alleged negligence allowed the main fraudsters to succeed in the fraud.

In the first action, Suit No 71 of 2012 (“Suit 71”), the plaintiffs were Cristian Priwisata Yacob (“Mr Yacob”) and his business partner Denny Suriadinata (“Mr Suriadinata”). The defendants were Wibowo Boediono (“Mr Boediono”) and his wife Koh Teng Teng Isabelle (“Mdm Koh”) (together “the Boedionoes”). Suit 71 concerned the payment of money to Mr Boediono for the purpose of investment and also the purchase of a car.

The second action, Suit No 169 of 2012 (“Suit 169”), was started by Mr Yacob and his wife, Nila Susilawaty (“Mdm Susilawaty”) (together “the Yacobs”), to recover an apartment unit in Singapore (the “Apartment”) that they had apparently transferred to Bodiono Kweh, Mr Boediono’s father. To avoid confusion we will call the elder gentleman, Mr Kweh. The defendants in Suit 169 were, in addition to the Boedionoes and Mr Kweh, two solicitors namely Toh Wee Jin (“Mr Toh”) and Tan Lay Pheng (“Mr Tan”) who did the legal work required to effect the transfer of the Apartment.

The parties were not in dispute over the fact of the transfer of the monies and the Apartment. What they disagreed on was the purpose of the transfers. The Yacobs claimed that the monies were transferred to Mr Boediono (a) for the latter to buy a car on Mr Yacob’s behalf and (b) as their contribution towards a joint investment in two condominium apartments known as the Oasis Garden and Parc Mondrian apartments. Mr Boediono asserted that the monies were transferred to repay Mr Yacob’s debt to Mr Kweh. As for the Apartment, the Yacobs claimed that the Boedionoes fraudulently procured its transfer to Mr Kweh. The Yacobs’ claim against Mr Toh and Mr Tan was in negligence.

The Judge in the court below found for the plaintiffs on all the issues: see Cristian Priwisata Yacob and another v Wibowo Boediono and another and another suit [2017] SGHC 8 (the “Judgment”). The essential findings made by the Judge were as follows: First, that Mr Yacob did not owe Mr Kweh a debt. The monies transferred by the Yacobs and Mr Suriadinata to Mr Boediono were not to repay any debt but to purchase a car on Mr Yacob’s behalf and as part of the joint investment. Secondly, that the Boedionoes and Mr Kweh fraudulently procured the transfer of the Apartment to Mr Kweh. Thirdly, that Mr Toh and Mr Tan had each breached his duty of care. They failed to verify their clients’ identities and instructions before facilitating the transfer of the Apartment.

In Civil Appeals Nos 23 and 24 of 2017 (“CA 23 and 24”), the Boedionoes appeal against the first and second findings made by the Judge and to aid understanding we will sometimes hereafter refer to them as “the appellants” as they are the primary disputants in the appeals. Mr Tan is the appellant in Civil Appeal No 36 of 2017 (“CA 36”) while Mr Toh is the appellant in Civil Appeal No 37 of 2017 (“CA 37”). These latter appeals were brought with the purpose of overturning the second and third findings of the Judge.

After considering the parties’ submissions, we reserved judgment. We now allow the appeals in part and give our reasons for doing so.

Background facts

The Indonesian parties in these appeals all hail from Surabaya, Indonesia. Mr Yacob and Mr Suriadinata were involved in the timber industry there and in the course of business, Mr Yacob became acquainted with Mr Kweh and the latter’s wife, Liem Landy (“Mdm Landy”). In about 2005, the Yacobs decided to send their children to school in Singapore. By 2007, Mr Boediono had finished his own education, married Mdm Koh, a Singaporean, and settled in Singapore. Mr Kweh and his wife also spent a considerable portion of their time here though their main home remained in Surabaya. As a consequence of their children’s Singapore schooling, the Yacobs also began to come to Singapore frequently and got to know the Boedionoes in 2008. The events that led to the two suits took place between 2008 and 2011.

Suit 71

Suit 71 was commenced on 30 January 2012. It was started to recover various sums of money that Mr Yacob and Mr Suriadinata had transferred to Mr Boediono between 2008 and 2010. The transfers fell into two categories. The first comprised sums of money that Mr Yacob had remitted to Mr Boediono allegedly for the latter to buy a car on his behalf. Two sums were transferred for this purpose: $100,000 on 7 April 2008 and a further $140,100 in August 2009.

The second category comprised transfers made by both Mr Yacob and Mr Suriadinata to the appellants in December 2010. Specifically, Mr Yacob remitted $607,700 on 7 December 2010 while Mr Suriadinata transferred sums totalling $624,570.19 by various remittances in December 2010 and January 2011. Mr Yacob and Mr Suriadinata claimed that the purpose of the transfers was to enable the appellants to buy apartments in Oasis Garden and Parc Mondrian as joint investments for the four of them (ie, Mr Yacob, Mr Suriadinata and the appellants).

In April 2011, Mr Boediono emailed Mr Yacob, asking whether he wanted to convert the condominium investment into a cluster bungalow investment. In June 2011, the Yacobs flew to Singapore to meet the appellants. The parties dispute the precise dates of these meetings and what happened during the meetings. Mdm Susilawaty said she met the appellants on 20 June 2011 while Mr Yacob said his meeting with them took place on 21 June 2011. During these meetings, according to the Yacobs they signed documents relating to the sale of the Oasis Garden apartment. The appellants’ version was completely different. They said that only one meeting took place and that the documents signed were for the transfer of the Apartment.

In July 2011, the appellants met the Yacobs in Bali to discuss yet another investment.

In August 2011, Mr Yacob allegedly became suspicious of the appellants after seeing an Indonesian news report that stated that Mr Kweh and his wife were wanted in Indonesia for fraud. He sent an email expressing his concern to Mr Boediono on 24 September 2011. After some correspondence, they agreed to meet on 1 November 2011, but this meeting did not materialise in the end. Finally, in December 2011, the Yacobs visited Singapore to check on the condominium properties but discovered that no units were registered in the appellants’ names. Mr Yacob then sent an urgent SMS message to Mdm Koh.

Mr Boediono denied receiving any follow-up emails or messages from Mr Yacob in September 2011, but asserted that he met Mr Yacob on 31 October 2011. At that meeting, Mr Yacob handed over a statutory declaration that he had made for an application for a replacement certificate of title (“RCOT”) in relation to the transfer of the Apartment. Mr Yacob denied that this meeting happened.

Suit 169

The factual background to Suit 169 was that in 2007, the Yacobs agreed to buy the Apartment which was a unit in a condominium development in Singapore known as The Chuan. The intention was to make the Apartment a home for their children. The purchase was completed in 2008 and the Apartment was registered in the joint names of the Yacobs. The allegation made in Suit 169 was that the Boedionoes and Mr Kweh had wrongfully procured the fraudulent transfer of the ownership of the Apartment to Mr Kweh using the RCOT. The Yacobs claimed that the transfer documents, which included the RCOT, were fraudulently procured by the appellants. They further claimed that in both the RCOT application and the eventual transfer, Mr Toh and Mr Tan acted negligently. It should be noted that Mr Toh acted for the Yacobs in the RCOT application and Mr Kweh in the transfer of the Apartment, while Mr Tan acted for the Yacobs in the transfer of the Apartment.

Mr Kweh died before the trial commenced. The court granted leave for the appellants to adduce an affidavit which Mr Kweh had made eight months before he passed away to set out his response to the allegations made by the Yacobs.

The following is a brief account of events relating to the transfer of the Apartment: On about 14 June 2011, Mr Toh (acting for Mr Kweh) prepared a draft sale and purchase agreement between the Yacobs and Mr Kweh which stated that the purchase price of the Apartment was $1.8m and further that the Yacobs acknowledged that they had received sums totalling $1,792,750 from Mr Kweh over a period of time prior to the signing of the agreement. He also prepared a formal instrument of transfer. On 21 June 2011, Mr Boediono allegedly handed over a cashier’s order to Mr Yacob. This cashier’s order represented a refund of an amount of about $7,000 due to Mr Yacob because the Apartment’s purchase price was slightly higher than Mr Yacob’s debt to Mr Kweh. According to the appellants, this buttressed their claim that the transfer of the Apartment was made to satisfy Mr Yacob’s debt to Mr Kweh. After the meeting, the parties flew to Surabaya where they passed the documents mentioned in (a) above to Mr Kweh. On 27 June 2011, Mr Kweh passed the signed sale and purchase agreement and transfer instrument, and a written statement confirming receipt of the remaining sum owed by Mr Yacob to Mr Kweh to Mr Boediono. The documents appear to have been signed before an Indonesian notary public. In late June or early July 2011, Mr Kweh informed Mr Boediono that Mr Yacob had misplaced the certificate of title issued in respect of the Apartment and asked his son for Mr Yacob’s contact details so that Mr Toh could help the Yacobs apply for an RCOT. Mr Boediono provided Mr Toh with an...