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

• Jurisdiction: Singapore
• Judge: Woo Bih Li J
• Judgment Date: 17 October 2017
• Neutral Citation: [2017] SGHC 255
• Plaintiff Counsel: Adrian Tan, Ong Pei Ching, Yeoh Jean Wern, Lim Siok Khoon, Joel Goh and Hari Veluri (Morgan Lewis Stamford LLC)
• Docket Number: Suit No 27 of 2009
• Date: 17 October 2017
• Hearing Date: 19 September 2017,24 August 2017,28 August 2017
• Subject Matter: Inducement of breach of contract,Conspiracy,Unlawful means,Tort
• Published date: 27 November 2018
• Defendant Counsel: 8th defendant unrepresented.,Irving Choh, Melissa Kor and Christine Chuah (Optimus Chambers LLC),Kelvin Poon, Alyssa Leong and David Isidore Tan (Rajah & TannSingapore LLP)
• Court: High Court (Singapore)
• Citation: [2017] SGHC 255
• Year: 2017

Woo Bih Li J: Introduction

This judgment is issued as a supplement to an earlier decision of this Court dated 6 August 2015 in Yeo Boong Hua and others v Turf Club Auto Emporium Pte Ltd and others [2015] SGHC 207 (“the HC Judgment”). The HC Judgment concerned the setting aside of the Consent Order entered into by the parties in settlement of then-ongoing litigation (ie, the Consolidated Suits), and the consequences arising therefrom should that order be set aside. I held that the Consent Order should be set aside on grounds of the Defendants’ repudiatory breaches of that order, and that the Consolidated Suits should therefore be reinstated.

On 22 March 2017, the Court of Appeal in Turf Club Auto Emporium Pte Ltd and others v Yeo Boong Hua and others and another appeal and other matters [2017] 2 SLR 12 (“the CA Judgment”) agreed with my findings on the repudiatory breaches. However, in relation to the remedies that should flow from those breaches, the Court of Appeal held that there was no basis for the Consent Order to be set aside or for the Consolidated Suits to be reinstated. The Court of Appeal requested further submissions on the consequential issues arising from the findings in the CA Judgment.

On 15 August 2017, the Court of Appeal heard the parties on their further submissions and reserved judgment. By a letter through the Registry dated 24 August 2017, the Court of Appeal directed that the Plaintiffs’ claims in the torts of conspiracy and inducement of breach of contract were to be concurrently remitted to this Court for determination. These claims were pleaded and advanced in the Consolidated Suits, and in the HC Judgment I left them to be dealt with as part of the reinstated Consolidated Suits. I now consider these claims on the merits.

Background

The background facts leading to this supplementary judgment were set out in the HC Judgment after a trial of the action (at [5]–[56]) and in the CA Judgment (at [4]–[50]). I do not propose to repeat them except where necessary or desirable to provide easier understanding or context. I will also adopt the same descriptions and definitions as were used in the HC Judgment.

The Joint Venture

The Plaintiffs and the SAA Group represent two business groups in the Joint Venture. The Plaintiffs are the three individuals in the first group, and the latter SAA Group comprises five individual Defendants (ie, Roger Koh, Tan Senior, Samuel Ng, Tan CB, and Ong CK). The Joint Venture concerned the development and operation of the Site, which was a large plot of land (roughly 557,000m2) located in Bukit Timah, Singapore.

In January 2001, the SLA, which was then known as the Singapore Land Office, invited tenders for the lease of the Site. The Tender Notice put up by the SLA indicated that the lease was to commence from 1 September 2001 and the tenure was described as “3+3+3 years”, which referred to a term of three years with an option to renew for a three year term plus a further option for the third tranche of a three year term. By the time the tender closed on 2 March 2001, SLA had received only two bids. One was submitted by the Plaintiffs through their corporate vehicle, BTC; the other was submitted by the SAA Group through their corporate vehicle, SAA.

The Plaintiffs and the SAA Group came to know that the other group had placed or was planning to place a bid for the Site. Thereafter, a consensus was reached between the two groups that they would enter into the Joint Venture to develop and operate the Site regardless of which group would win the tender. While there was some dispute as to whether the two groups had had a discussion about the Joint Venture on 2 March 2001, just before the their respective bids were submitted that same day, there was no dispute that the MOU to develop and operate the Site was signed on 8 March 2001 by the Eight Individuals who comprise the Plaintiffs and the SAA Group. The MOU envisaged that a Joint Venture company, ie, the New Company, would be incorporated to develop and operate the Site, and that the Plaintiffs and the SAA Group would hold 37.5% and 62.5% of the shares in the New Company respectively.

Eventually, instead of one company, two new companies were incorporated (ie, TCAE and TCPL, which collectively comprise the JV Companies) to develop and operate the Site. The business model for the Project was to use part of the Site as a used car centre and another part as a shopping mall. The plan was for the successful bidder, which turned out to be SAA, to grant a sub-tenancy to each of the JV Companies on identical terms as the head lease between the SLA and SAA. Each of the JV Companies would then rent or license out individual lots or units to the ultimate sub-tenants.

I set out in Annex A a table of relevant persons and their directorships and shareholdings in the various companies. In this regard, I note that there is an inaccuracy in the HC Judgment, where it is stated (at [22]) that “[o]n 25 June 2001, the Eight Individuals [defined as the Plaintiffs and the SAA Group collectively]¹ were appointed as directors of TCPL.” Rather, it would appear that Tan Senior and Ong CK had been directors of TCPL from 12 May 2001,² and that on 25 June 2001, only 6 and not 8 persons were approved as directors of TCPL (ie, Roger Koh, Samuel Ng, Tan CB, and the Plaintiffs).³ Nothing in the HC Judgment is affected by this discrepancy.

On 10 July 2001, the SLA granted the first tranche of the head lease, ie, the 2001 Head Lease, to SAA for three years starting from 1 September 2001. On the same day, SAA in turn entered into the first sub-tenancies, ie, the 2001 STAs, with each of the JV Companies for a period of three years less one day.

Disputes and the Consent Order

Unfortunately, disputes then arose between the Plaintiffs and the SAA Group in relation to the Joint Venture. These disputes culminated in two actions commenced by the Plaintiffs, ie, OS 1634/02 and S 703/04, against various individuals and corporate entities. The two actions were consolidated on 28 January 2005 and were referred to as the “Consolidated Suits” in the HC Judgment.

While the court proceedings in the Consolidated Suits were pending, two sets of events occurred: The 2001 Head Lease and the 2001 STAs expired. On 10 September 2004, the SLA granted a second tranche of a three years lease to SAA in respect of the Site, ie, the 2004 Head Lease. On the same day, SAA granted the second tranche of the sub-tenancies, ie, the 2004 STAs, to each of the JV Companies for a period of three years less one day. Samuel Ng, Tan Senior, and Ong CK were adjudged bankrupts on 25 April 2003, 29 August 2003, and 5 March 2004 respectively. As a result of their bankruptcy, the three individuals could no longer hold directorships in the JV Companies. Tan CB and Roger Koh were the ones formally in charge of operations from 2004 onwards.

On 22 February 2006, the Consent Order was entered into. The Plaintiffs and some of the Defendants were named parties to the Consent Order, but not Tan CB and Ong CK. As for Tan Senior, it was disputed whether he was a party to the Consent Order and whether he had been represented by Tan CB at the hearing at which the Consent Order was recorded (see CA Judgment at [28]).

I have set out the aim and the mechanism originally envisaged under the Consent Order in [30] to [34] of the HC Judgment. Broadly speaking, the Consent Order envisaged (a) an investigation into the Plaintiffs’ allegations regarding the financial affairs of the JV Companies, (b) a valuation of the JV Companies, and (c) a closed bidding exercise, at the end of which the higher bidder would purchase the shares of the lower bidder in the JV Companies and representatives of the lower bidder would also resign from directorship positions in the JV Companies. The Joint Venture would therefore come to an end.

To give effect to the above, the Consent Order envisaged that the KPMG entities designated to conduct the investigation and valuation would submit the Valuation Report in relation to the JV Companies to the parties to the Consent Order by 2 July 2006, and that the bidding exercise would be carried out within 28 days thereafter. However, the Valuation Report was eventually issued on 10 August 2007, more than 13 months after the envisaged deadline.

The present action

Importantly, on 8 September 2006, while the Valuation Report was pending, SAA obtained in-principle approval for the renewal of the 2004 Head Lease for the third tranche. The formal agreement with the SLA for this third tranche, ie, the 2007 Head Lease, was signed on 22 May 2007. However, this time round, SAA did not grant any sub-tenancy to either of the JV Companies.

In the circumstances, the Plaintiffs commenced the present suit against the Defendants to set aside the Consent Order on grounds of repudiatory breach, frustration, and mistake. In particular, the Plaintiffs claimed that the non-renewal of the sub-tenancies constituted repudiatory breaches of the Consent Order. I found in their favour (see HC Judgment at [121]–[178], [227(a)]), and the Court of Appeal agreed with this finding (see CA Judgment at [112]–[148]).

However, while I had set aside the Consent Order and allowed the reinstatement of the Consolidated Suits as a consequence of the repudiatory breaches (see HC Judgment at [210], [227(d)]), the Court of Appeal held that the Consent Order could not be set aside ab initio and that the Consolidated Suits could not be reinstated by the Plaintiffs (see CA Judgment at [149]–[173]).

On invitation of the Court of Appeal, the parties subsequently addressed the Court of Appeal on 15 August 2017 regarding the remedies that should flow from the Defendants’ repudiatory breaches of the Consent Order (see CA Judgment at [174]–[175]). Thereafter, the Court of Appeal gave directions for certain claims to be remitted to the trial judge. The directions were...