Yeo Boong Hua and others v Turf Club Auto Emporium Pte Ltd and others

• Jurisdiction: Singapore
• Judge: Woo Bih Li J
• Judgment Date: 06 August 2015
• Neutral Citation: [2015] SGHC 207
• Plaintiff Counsel: Adrian Tan, Ong Pei Ching, Roy Paul Mukkam and Lim Siok Khoon (Stamford Law Corporation)
• Date: 06 August 2015
• Docket Number: Suit No 27 of 2009
• Hearing Date: 26 September 2014,13 August 2014,29 January 2014,21 January 2014,12 August 2014,19 September 2014,22 August 2014,20 August 2014,14 January 2014,26 August 2014,06 August 2014,29 September 2014,19 August 2014,04 September 2014,23 September 2014,22 January 2014,19 June 2015,29 August 2014,03 September 2014,14 August 2014,25 September 2014,24 September 2014,18 September 2014,30 September 2014,21 August 2014,15 January 2014,05 January 2015,28 August 2014,16 September 2014,23 January 2014,17 September 2014,05 August 2014,02 September 2014,17 January 2014,07 August 2014,24 January 2014,08 August 2014,27 August 2014,16 January 2014,28 January 2014
• Subject Matter: Contract,implied terms,contractual terms,Res Judicata,issue estoppel,breach
• Year: 2015
• Defendant Counsel: Sim Chong and Kate Loo (JLC Advisors LLP),Khor Wee Siong (Khor Thiam Beng & Partners),Kelvin Poon, Farrah Salam, Chai Wei Han and Alyssa Leong (Rajah & Tann Singapore LLP)
• Court: High Court (Singapore)
• Citation: [2015] SGHC 207
• Published date: 27 November 2018

Woo Bih Li J: Introduction

This case concerns a number of parties. The three plaintiffs (“the Plaintiffs”) are: Yeo Boong Hua, also known as “Johnny Yeo”; Lim Ah Poh, also known as “Michael Lim”; and Teo Tian Seng, also known as “Raymond Teo”.

The 1st defendant, Turf Club Auto Emporium Pte Ltd (“TCAE”) and the 4th defendant, Turf City Pte Ltd (“TCPL”), are nominal defendants. The other defendants are: the 2nd defendant, Singapore Agro Agricultural Pte Ltd (“SAA”); the 3rd defendant, Koh Khong Meng (“Roger Koh”); the 5th defendant, Tan Huat Chye (“Tan Senior”); the 6th defendant, Ng Chye Samuel (“Samuel Ng”); the 7th defendant, Tan Chee Beng (“Tan CB”) who is the son of Tan Senior; and the 8th defendant, Ong Cher Keong (“Ong CK”). I will refer to these eight defendants collectively as “the Defendants”.

This action may be described as the latest saga in a longstanding dispute between two business groups of a joint venture. The two groups have been engaged in legal tussles with each other for more than 12 years. The Plaintiffs make up one group. The five individual defendants viz, Roger Koh, Tan Senior, Samuel Ng, Tan CB, and Ong CK make up the other faction along with SAA which is a company. However, Samuel Ng has not taken any substantive role in the present action. I will refer to these five individual defendants collectively as the “SAA Group”. TCAE and TCPL are companies incorporated under the joint venture.¹ More will be said later on the background of these two groups as well as TCAE and TCPL, but suffice to say for now, these two companies are the subject of the dispute between the two groups.

The Plaintiffs’ primary relief is to set aside a consent order which they had entered into with the 1st to 6th defendants (“the Consent Order”) on 22 February 2006. The Consent Order was meant to settle the minority oppression actions brought by the Plaintiffs for various reliefs including an account of profits of the joint venture. As it turned out, disputes arose over the implementation of the Consent Order, and these disputes have brought the parties into the courtroom on a number of occasions. In the present action, the Plaintiffs’ goal is to set aside the Consent Order. If they succeed, they intend to reinstate the minority oppression actions.

Background facts The formation of the joint venture

The joint venture between the two groups concerned the development and operation of a site known as Parcel A of the former Bukit Timah Turf Club (“the Site”). The Site was a large plot of land (roughly 557,000 m2)² located in Bukit Timah.

On 5 January 2001, the Singapore Land Authority (“SLA”), which was then known as the Singapore Land Office, invited tenders for the lease of the Site. An advertisement of the tender invitation was published in the Straits Times on 5 January 2001 and in the Lian He Zao Bao on 9 January 2001. Amongst other information, the following was stated in the advertisement:³

Tender of the State Property for Parcel A at former Bukit Timah Turf Club with use as Commercial, Institution/ Community, Sports & Recreation, Residential; 3+3+3 years Tenure

To facilitate the tender exercise, SLA also put up a Tender Notice⁴ which contained general information of the tender. In the Tender Notice, the “duration of period contract” was stated to be “(From) 1 September 2001 … (To) 30 August 2010 …”. Under a section called “General Information”, the tenure was described to be “3+3+3 years”. The “Guide Rent” was $380,000 per month. The “3+3+3 years” tenure was repeated under a section called “Property Description”.⁵

When the tender exercise closed on 2 March 2001, SLA received only two bids. The first bid was submitted by the Plaintiffs through their own joint venture vehicle named Bukit Timah Carmart Pte Ltd (“BTC”). All of them are businessmen who at the material time were in the used car trading business. They had their own businesses but the three also had experience working with each other before. For instance, on 15 March 2000, they incorporated Leng Kee Carmart Pte Ltd, a used car centre which sublets spaces to car dealers.⁶ Today, they are still in this trade.

The SAA Group used SAA to submit a second bid, pursuant to a joint venture between the five individuals in the SAA Group.⁷

SAA had previously developed a farm-style mall known as “Farmart Centre” located near Sungei Tengah. Tan CB and Ong CK were directors⁸ and shareholders⁹ of SAA. Tan Senior, who is the father of Tan CB, used to be a shareholder and director of SAA until he sold his shareholding to Tan CB and ceased to be a director on 23 February 2001.¹⁰ Tan Senior and Ong CK had been business partners for over ten years.¹¹ The other two individuals, Roger Koh and Samuel Ng, were neither directors nor shareholders of SAA. However, they were business partners with Tan Senior in a separate company called Kallang Auto Centre Pte Ltd (“Kallang Auto”) which sublets spaces to car dealers.

The SAA Group’s initial plan was to rely on their internal expertise in developing the Site. Architects Group Associates Pte Ltd (“AGA”), an architectural consultancy firm, would be in charge of the architectural aspects. Ong CK was an architect. He was a shareholder and principal director¹² of AGA.¹³ Goodland Development Pte Ltd (“Goodland”), a construction and property development company in which Tan CB was a director and shareholder,¹⁴ would be in charge of the construction works. Tan CB was previously working as a civil engineer at the Housing and Development Board.¹⁵

The two bids were both submitted on the tender closing date of 2 March 2001. The Plaintiffs submitted a bid of $260,000 rent per month while the SAA Group submitted a bid of $390,000 rent per month. The submissions were to take place at the SLA office which was formerly located at 8 Shenton Way, #24-01 Temasek Tower, Singapore 068811. There, the Plaintiffs bumped into Tan Senior, Roger Koh and Tan CB. Tan Senior and Roger Koh had been acquainted with Raymond Teo previously through the car trading industry.¹⁶ It was during this encounter that each group came to know that the other group had placed or was planning to place a bid for the Site. The two groups commenced discussions about jointly developing and operating the Site, although there was some disagreement as to whether the discussions commenced before or after the bids were submitted.¹⁷

A consensus was reached that the two groups would enter into a joint venture to develop and operate the Site (“the Joint Venture”). A Memorandum of Understanding (“MOU”) was signed on 8 March 2001 by the Plaintiffs and the SAA Group (“the Eight Individuals”). It is common ground that before the MOU was signed, SLA had already released information on the identity of the bidders and the bid amounts but SLA had not yet awarded the tender to either bidder. Even though the Eight Individuals signed the MOU, parties disputed as to whether Tan CB and Ong CK signed the MOU in their personal capacity or whether they entered into the MOU using SAA.

The salient terms of the MOU may be summarised as follows: a new joint venture company (“New Company”) would be incorporated to develop and operate the Site; Johnny Yeo, Michael Lim and Raymond Teo would hold 37.5% of the shareholding of the New Company, and the remaining 62.5% shareholding would be collectively held by the other group; only shareholders are deemed to be directors of the New Company; and the development of the Site would be jointly headed by AGA and Goodland.

The Plaintiffs’ case was that the terms of the Joint Venture were not exhaustively contained in the MOU. Apart from the MOU, they alleged that there were two separate oral agreements between the Eight Individuals. The first was entered into on 2 March 2001 before the signing of the MOU at a Starbucks Café located on the ground floor of Temasek Towers¹⁸ and later at Tung Lok Restaurant located at East Coast Recreation Centre (“OA1”).¹⁹ The second was entered into after the signing of the MOU, either on 8 March 2001²⁰ or sometime in April 2001²¹ (8 March 2001 being the Plaintiffs’ latest position) at Punggol Marina (“OA2”). A summary of the salient terms allegedly contained in OA1 and OA2 are as follows:²² The Eight Individuals who were party to the Joint Venture would jointly exploit the lease of the Site in equal shares of 12.5% each. The lease of the Site would be held beneficially by the Eight Individuals jointly so long as SLA continued to grant leases to either the Plaintiffs or SAA. Instead of the New Company, two newly incorporated Joint Venture companies, TCAE and TCPL (“the JV Companies”), would develop the Site. The previous name of TCAE was Turf Club Auto Megamart Pte Ltd.²³ The JV Companies would sublease the Site from either BTC or SAA on identical terms as the lease between BTC/SAA and SLA. The monthly rent of the sub-tenancies between SAA and the JV Companies would be fixed at 3% above the tender rate payable by SAA to SLA.²⁴

It was the Plaintiffs’ case that flowing from the alleged oral agreements and the MOU, there was an understanding that so long as a head lease was in place between SAA/BTC and SLA, the JV Companies would be granted sub-tenancies on identical terms (“the Back-to-Back Arrangement”). The Defendants disputed the existence of the two oral agreements and the existence of the Back-to-Back Arrangement, but they agreed that subsequent to the MOU there was an oral agreement to form two joint venture companies instead of one.²⁵ The parties spent a significant part of the trial arguing about the existence of the Back-to-Back Arrangement although the outcome of the present action does not turn on whether this arrangement did in fact exist before the Consent Order was recorded.

It was not really disputed that the parties to the Joint Venture agreed that the business model of the JV Companies was to develop part of the Site...