Wong Kee Wah (trading as The Education Future Hub) v Sng Boon Chye

• Jurisdiction: Singapore
• Court: High Court Appellate Division (Singapore)
• Judge: Woo Bih Li JAD
• Judgment Date: 25 October 2022
• Neutral Citation: [2022] SGHC(A) 36
• Citation: [2022] SGHC(A) 36
• Docket Number: Civil Appeal No 47 of 2022
• Published date: 28 October 2022
• Plaintiff Counsel: Kong Man Er, Liang Fang Ling Elisabeth and Chua Ying Ying Erin (Drew & Napier LLC)
• Defendant Counsel: Kawal Pal Singh s/o Amarjit Singh and Lucella Maria Lucias Jeraled (Tito Issac & Co LLP)
• Subject Matter: Contract,Contractual terms,Interpretation
• Hearing Date: 25 October 2022

Woo Bih Li JAD (delivering the judgment of the court ex tempore): Introduction

This is a dispute between two individuals in respect of commissions earned on various programmes.

The plaintiff (or appellant in this appeal), Wong Kee Wah (“P”), is the sole proprietor of The Education Future Hub which is in the business of marketing programmes offered by Approved Training Organisations (“ATOs”) to the public. It receives a commission for each eligible student successfully enrolled in selected programmes. The ATOs in question are: Click Academy Asia Pte Ltd (“CAA”), The Leadership Institute Pte Ltd (“TLI”), and The Baking Industry Training College Pte Ltd (“BITC”).

The ATOs receive funding from government-linked agencies such as the Institute of Banking and Finance (“IBF”) and Skills Future SG (“SSG”).

The defendant (or respondent in this appeal), Sng Boon Chye (“D”), is one of P’s sub-contractors and he, in turn, receives a commission from P for each student who is successfully enrolled in the selected programmes.

On 1 January 2019, P and D signed an MOU (“the MOU”).¹

Decision Below

In Wong Kee Wah (trading as The Education Future Hub) v Sng Boon Chye [2022] SGHC 95 (“the Judgment”) at [27], the Judge found that D is liable to P for the following:

(a)	School fees collected by D which should have been paid to P	$290,310.75
(b)	Advance commission paid by P to D for CAA programmes in April 2020	$15,298.55
(c)	Loan extended by P to D	$40,000.00
	Total:	$345,609.30

The Judge also found that P is liable to pay D $763,035.80 as D’s commission for promoting CAA, TLI and BITC programmes from April to July 2020. The breakdown of the commission is as follows:

(a)	Commission for CAA programmes	$682,305.00
(b)	Commission for TLI programmes	$64,780.00
(c)	Commission for BITC programmes	$15,950.80
	Total:	$763,035.80

Consequently, the net sum payable by P to D was $763,035.80 – $345,609.30 = $417,426.50. Based on the Judgment at [26]–[27], it is not entirely clear whether the Judge took the view that of the $763,035.80 in commission owed, $15,298.55 in advance commission had already been paid by P to D. On appeal, parties do not dispute that this is the view which should be taken. Therefore, arguably, the Judge should have simply reduced the $763,035.80 by $15,298.55 and excluded the latter from the amounts to be paid by D to P.

P has appealed but D has not. The Judge’s main reason for finding P liable to D for $763,035.80 in commission is that the MOU applies only to Leadership People Management (“LPM”) and Service Leadership (“SL”) programmes. As it is undisputed that the programmes offered by CAA, TLI and BITC were not LPM and SL programmes, the MOU did not apply to the programmes offered by CAA, TLI and BITC.

Even if the MOU applies, the Judge was of the view that P was not entitled to rely on cl 3 to withhold payment to D. Clause 3 provides for P to pay D, “14 working days upon receiving disbursement of fund for completed [programmes] … and all terms stated on schedule1 being full filled” [sic]. In the present dispute, P alleged that he has not received his commission from CAA but he has received them from TLI and BITC.² In this appeal, P says that it is undisputed that P has not received the CAA commission in question.³ The Judge took the view that cl 3 referred to the time of payment rather than P’s obligation to make payment. The Judge found that if P sought to exonerate himself from his contractual obligation to pay commissions to D in the event that he does not receive disbursement of funds from the ATOs, he needed to draft such terms clearly and expressly. Applying the rules of contra proferentem, the Judge interpreted cl 3 against P.

The Judge was of the view that it was not necessary for him to decide whether D actually breached the marketing guidelines. P did not plead damages for breach of contract and the Judge had found that D’s entitlement to commission was not conditional upon his compliance with marketing guidelines.

Our decision

P’s appeal covers two main areas: the CAA commission; and the TLI and BITC commissions.

On the latter, P’s appeal is only in respect of the quantum which the Judge ordered P to pay D. P argues that the Judge overlooked some payments that he had already made to D and the correct sums payable by P are:⁴

(a)	TLI programmes ($64,780.00 – $21,916.00)	$42,864.00
(b)	BITC programmes ($15,950.80 – $2,375.60)	$13,575.20

D does not address P’s argument in detail and simply denies that the Judge had erred.⁵ There are also WhatsApp chat records supporting the fact that the said payments have already been made to D.⁶ In any event, the reduced quantum as mentioned by P for the TLI and BITC programmes exceed the quantum claimed by D in his Reply to Defence to Counterclaim. Therefore, the commissions due from P to D in respect of TLI and BITC programmes should be reduced to $42,864.00 and $13,575.20 respectively.

In respect of the main dispute regarding the CAA commission, P now alleges that there is no discernible basis to impose an obligation on P to pay D the CAA commission, although this was not P’s main argument below. P argues that D did not plead nor establish any contract alternative to the MOU which would entitle D to payment of commissions.⁷ We are of the view that it is important not to conflate pleadings and evidence. Notwithstanding the lack of elaboration and poor drafting, the Defence and Counterclaim (Amendment No 1) (“DCC”) does plead a contractual claim although not based on the MOU.⁸ Although DCC at [28] refers to the Statement of Claim (Amendment No 1) (“SOC”) at [2] and [4] and SOC at [4] in turn refers to the MOU as the contractual basis, it is quite clear from the other paragraphs of DCC that D does not accept that the MOU applies. In the circumstances, it is clear from D’s pleadings that D is relying on a contract other than the MOU. Therefore, D did plead a contractual entitlement. The question of evidence will be addressed later.

P argues that D did not elaborate on matters such as when the other contract was made. While this is true, it is not fatal to D’s claim because P himself proceeded below on the basis that there was a contract applicable to the initial LPM/SL programmes and the programmes from the three ATOs in question. It is just that P’s case was that the MOU was the contract or, at least, that the terms of the MOU apply to the contract. Furthermore, P’s affidavit of evidence-in-chief (“AEIC”) elaborated on the commission structure (for the programmes from the three ATOs) between P and D.⁹ This structure was not based on quantum meruit but obviously on some sort of oral agreement between the parties which neither party elaborated upon.

In the circumstances, it is too late for P to now argue on appeal that there was no contract at all between P and D in respect of the programmes from the three ATOs.

The next question is whether: the MOU applies as initially entered into; or was extended by the parties through their conduct to cover the programmes from the three ATOs; or some contract, other than the MOU, applied.

In this appeal, P does not elaborate as to why the MOU should apply if there was a contract between parties in respect of the programmes from the three ATOs. P simply assumes that the MOU applies and goes on to submit that cl 3 is applicable to defer P’s obligation to pay D until CAA pays P.¹⁰ The Judge seems to have proceeded on the premise that P has not yet received such payment from CAA as alleged by P. D has no knowledge of this and does not dispute it as such. Accordingly, we accept that P has not received payment from CAA.¹¹ As mentioned, the Judge decided that the MOU did not apply or, alternatively, cl 3 did not preclude D’s claim (see [8]–[9] above).

Based on the terms of the MOU, we agree with the Judge that the terms do not explicitly cover the programmes from the three ATOs. In reaching this conclusion, we consider the question of whether it can be said that the reference in the fourth paragraph of the MOU to “SFC” programmes (meaning Skills Future Credits) applies to programmes from the three ATOs. We note that “SFC” is not actually a programme. It is a credit that may be used for programmes. Notwithstanding the poor drafting of the MOU, the question is whether SFC could be used for CAA programmes and if so, whether this means that the MOU applies to CAA programmes.

The Judge did not deal with this point. In P’s Reply and Defence to Counterclaim (Amendment No 1), P alleges that the MOU covers SFC programmes and the CAA (and LTI and BITC) programmes are SFC applicable.¹² In P’s AEIC, P alleges that students were entitled to use SFC for CAA programmes.¹³ In D’s Reply to P’s Defence to Counterclaim, D does not specifically deny that SFC may be...