BMI Tax Services Pte Ltd v Heng Keok Meng and others [2019] SGHC 09

The dispute in this case concerns a claim for work allegedly done by the Plaintiff company (BMI Tax Services Pte Ltd or “BMI Tax”) for all four Defendants, in relation to certain actions taken by the Inland Revenue Authority of Singapore (“IRAS”) against the four Defendants. The Defendants deny any liability to pay the Plaintiff. In addition, they have brought a counter-claim against the Plaintiff and three other parties for breach of duty in the management of the accounts and tax affairs of the four Defendants, as well as alleged fraudulent misrepresentation by one of these other parties (one Kam You Kin or “Kam”). The present two appeals arise from the Defendants’ application in SUM 2085/2018 to strike out the entire Statement of Claim. The Defendants were unsuccessful in obtaining a striking-out before the Assistant Registrar (“AR”), who ordered instead that the Plaintiff make a number of amendments, as specified by the AR, to its Statement of Claim. The Defendants appealed against the AR’s decision. They succeeded partially in the appeal, which I heard. I ordered certain portions of the amended Statement of Claim to be struck out, but declined to order that the entire claim be struck out. Both the Plaintiff and the Defendants have appealed against my decision.

There is an error in the Plaintiff’s Notice of Appeal in CA 179/2018 in that it refers to my decision “on 30 August 2018”. There was no hearing before me on 30 August 2018. The Defendants’ appeal against the AR’s decision (RA 160/2018) was heard before me on 25 July 2018; and at the end of that hearing, I ordered that the Plaintiff be given leave to file and serve an amended Statement of Claim within 7 days and that parties appear before me again to submit on whether the Statement of Claim was saved by the amendments made. At the further hearing on 10 August 2018, the Defendants contended that the Statement of Claim (Amendment No. 3) should still be struck out in its entirety. After hearing submissions, I declined to strike out the entire claim but ordered instead that the following portions of the Statement of Claim (Amendment No. 3) be struck out:

(a) Paragraph 10, insofar as this paragraph purported to plead an oral agreement between the Plaintiff on the one hand and the 2nd to 4th Defendants on the other;

(b) (Consequential to the striking-out of paragraph 10) The words “Further and/or alternatively” at the start of paragraph 12;

(c) Paragraph 19, which purported to plead waiver and/or estoppel;

(d) Paragraph 19A, which purported to plead an alternative claim of restitutionary quantum meruit;

(e) (Consequential to the striking-out of paragraph 19A) The references in the prayers numbered (1) to (4) on the last two pages of the Statement of Claim (Amendment No. 3) to alternative claims for “such sums as may be assessed by this Honourable Court on a quantum meruit basis”.

The Defendants requested a further hearing, as they claimed the Plaintiff had included “prohibited amendments” in the Statement of Claim (Amendment No. 4) filed on 17 August 2018. Following some clarifications by the Plaintiff’s then counsel at the hearing on 10 September 2018, the Statement of Claim (Amendment No. 5) was filed on 11 September 2018. The Defence & Counterclaim (Amendment No. 1) was filed on 25 September 2018.

Another hearing took place on 1 October 2018 pursuant to parties’ request. At this further hearing, the Defendants’ counsel informed that they had only recently noticed the reference to “estoppel” in what was previously paragraph 18A of the Statement of Claim (Amendment No. 3) (renumbered as paragraph 19 in the Statement of Claim (Amendment No. 5)). The Defendants’ counsel submitted that the Plaintiff’s assertion of an estoppel, having been previously struck out, the reference to “estoppel” in paragraph 19 of the Statement of Claim (Amendment No. 5) could not stand. I ordered that paragraph 19 of the Statement of Claim (Amendment No. 5) be struck out.

For ease of reference, the original Statement of Claim is appended as Annex A. The Statement of Claim (Amendment No. 2) – which incorporated the amendments directed by the AR during the hearing of the Defendants’ striking-out application – is appended as Annex B. The Statement of Claim (Amendment No. 3) and the Statement of Claim (Amendment No. 5) are appended as Annex C and Annex D respectively. The original Defence and Counterclaim is appended as Annex E and the Defence and Counterclaim (Amendment No. 1) as Annex F.

Facts

The parties

Before I set out the reasons for my decision, I will summarise whom the parties are in these proceedings as well as the undisputed facts and the competing claims.

The Plaintiff (also the 2nd Defendant in Counterclaim), the 3rd Defendant in the Counterclaim (Corporatebuilders Consultancy Pte Ltd or “Corporatebuilders”) and the 4th Defendant in the Counterclaim (BMI Accounting Services Pte Ltd or “BMI Accounting”) are private limited companies incorporated in Singapore. The Plaintiff and Corporatebuilders provide general business and management consultancy services. BMI Accounting is a provider of book-keeping services. The 1st Defendant in the Counterclaim – Kam – is the General Manager of the Plaintiff (also the 2nd Defendant in the Counterclaim). He is an accountant and is also a director of, inter alia, BMI Accounting.

The 1st Defendant (also the 1st Plaintiff in the Counterclaim) is Dr Heng Keok Meng (“Dr Heng”), a medical doctor registered in Singapore. The 2nd Defendant (also the 2nd Plaintiff in the Counterclaim, KM Heng Women’s Clinic Pte Ltd or “KMHWCPL”), the 3rd Defendant (also the 3rd Plaintiff in Counterclaim, KM Heng Clinic & Surgery Pte Ltd or “KMHCSPL”) and the 4th Defendant (also the 4th Plaintiff in Counterclaim, The Medical & Aesthetic Clinic Pte Ltd or “TMaACPL”) are private limited companies incorporated in Singapore. They will be collectively referred to in these grounds of decision as “the Three Companies”, although I will also refer to the Three Companies and Dr Heng collectively as “the four Defendants” from time to time. Dr Heng is the sole director of the Three Companies. He is also the sole shareholder of TMaACPL and holds 99% of the shares in KHMWCPL and KMHCSPL.

The undisputed facts and the competing claims

Dr Heng and Kam got to know each other in 2002. The Three Companies’ accounts and tax affairs were managed by Corporatebuilders from their respective date of incorporation until Income Tax Year of Assessment (“YA”) 2009. For YA 2010 and YA 2011, their accounts were managed by BMI Accounting; and their tax affairs by the Plaintiff, BMI Tax.

On 7 April 2010, the Three Companies each signed a “Tax Retainer Service Agreement” (“TRSA”) confirming their engagement of the Plaintiff to assist with the companies’ tax affairs. Copies of the three TRSAs are exhibited in Dr Heng’s 1st affidavit of 4 May 2018. The terms of the three TRSAs are identical. The first page of each TRSA sets out a number of services under the heading “Our scope of services”. On the next page, a number of other services are set out under the heading “Other services offered”. The TRSA then sets out other matters under the headings “Taxpayer’s responsibility pursuant to the engagement”, “Limitation of liability”, “Professional indemnity”, “Ethical guidelines” and “Retention of records”. On the last page, under the heading “Fees”, it is stated:

I will refer to the above clause as the “Fees Clause” in these written grounds.

Dr Heng claims that BMI (and before that, Corporatebuilders) also assisted him and his sister, Vivian Heng (who took care of the Three Companies’ book-keeping functions), with filing their income tax returns. Dr Heng claims this assistance was rendered as “part of the work done for the Three Companies”.

Sometime between late 2011 and January 2012, Dr Heng and the Three Companies came under investigation by IRAS. The investigations culminated in amended and/or additional Notices of Assessment being issued to all four of them by IRAS on 19 April 2012 (“the 19 April 2012 NAs”). Dr Heng also executed an agreement, on behalf of all four of them, to pay IRAS a total sum of $1,069,056.15 in full and final settlement of additional taxes and penalties.

The four Defendants blame Kam for their misfortune, as they claim he advised Dr Heng on various aspects of operating his medical practice and on the incorporation of the Three Companies – which IRAS allegedly found to be an illicit “tax planning scheme” which sought to “exploit” a “loophole in the tax system”. Kam disavows any responsibility.

In the present suit, it is asserted on behalf of the Plaintiff, BMI Tax, that in a telephone conversation on 5 January 2012, Dr Heng had informed Kam of the action taken by IRAS; and that in the same conversation, Dr Heng had engaged the Plaintiff to carry out the following work on behalf of all four Defendants:

(a) To “compute and assess the tax affairs” of [Dr Heng and the Three Companies] for the following years of assessment that were under investigation by IRAS, namely: -

(b) To “provide advice on the tax implications” as well as “attending to all queries from the IRAS in relation to the Notices of Amended/Additional Assessment” for [Dr Heng and the Three Companies] to IRAS.

I will refer to the above items collectively as “the Work”. In the Statement of Claim (Amendment No. 5), the Plaintiff has pleaded that insofar as Dr Heng was concerned, the agreement it had with him to carry out the above work was an oral agreement entered into during the telephone conversation of 5 January 2012; and that pursuant to this oral agreement, he was to pay the Plaintiff a “reasonable sum” for the said work, to be “computed on the basis of the degree of responsibility and skill involved and time spent by [BMI Tax] and/or its representatives”. As for the Three Companies, it is alleged that the Plaintiff was engaged in the same telephone conversation to carry out the said work for them “pursuant to the ‘Other services offered’ clause of the [TRSAs] with [the Three Companies]”; and that pursuant to the ‘Other services offered’ clause “read in line with the ‘Fees’ Clause”, the three Companies were to pay the Plaintiff “fees for the time spent to be computed on the basis of the degree of responsibility and skill involved of [BMI Tax] and/or its representatives”.

Dr Heng denies having a telephone conversation with Kam on 5 January 2012. He admits that he did have a telephone conversation with Kam on 6 January 2012 in which he told Kam about the punitive action taken by IRAS – but denies that he had during this telephone call requested Kam or the Plaintiff to carry out work as claimed by the Plaintiff in its Statement of Claim. It should be added that despite this denial, Dr Heng and the Three Companies do not appear to dispute that Kam and the Plaintiff did provide some advice and that they did carry out some work for all four Defendants in relation to the issue of a potential challenge to IRAS’ decision. Thus, for example, there are various references to such advice and work in the Defence and Counterclaim.

On 2 March 2015 and 16 June 2015, two invoices were issued to the 2nd Defendant, KMHWCPL, for the sums of $25,000 and $20,000 respectively. These invoices were issued by a company named Matrico SG Advisory Pte Ltd (“Matrico”) and stated to be for the attention of Dr Heng. The invoice of 2 March 2015 (numbered “M00415”) states, under the heading “Particulars”:

The invoice of 16 June 2015 (numbered M00458) states, under the heading “Particulars”:

The Plaintiff claims that both these invoices were “interim invoices” which it “caused” Matrico to issue on its behalf, “together with the respective time sheet indicating the number of hours and charge-out rate of various staff”. I will refer to these two invoices as “the 2015 Invoices”. According to Kam, he presented the 2015 Invoices to Dr Heng, and explained to the latter the work done by BMI Tax, the time-sheets and the staff’s charge-out rates. Dr Heng and the Three Companies deny that any time sheet or any explanation was given to them. However, they stated in the original Defence and Counterclaim that it “was understood between Mr Kam and Dr Heng” that the 2015 Matrico invoices were “for work done for the Three Companies prior to the date of [each] invoice”. Following the service of the Statement of Claim (Amendment No. 5), the Defence and Counterclaim was amended to plead that in respect of the 2015 Invoices, it was understood between Kam and Dr Heng that these invoices were “for work done for the Three Companies and Dr Heng prior to the date of [each] invoice” . It is not disputed that these two Matrico invoices were paid in full via cheques drawn on KMHWCPL’s account.

Prior to the issuance and payment of the 2015 Invoices, IRAS had responded to letters sent by the Plaintiff on behalf of the four Defendants, rejecting their objections to the 19 April 2012 NAs. On 12 February 2015, IRAS also rejected their request that a Notice of Refusal to Amend the 19 April 2012 NAs be provided. On 23 February 2015, the Plaintiff wrote to IRAS stating that a direct appeal to the Income Tax Board of Review (“Board of Review”) would be pursued. Further correspondence followed in the period of March to mid-June 2015 between Dr Heng and the Chairman of the Board of Review.

On 15 October 2015, a meeting was held at the office of Justicius Law Corporation, a law firm which the four Defendants claim was “appointed by, or on the advice of Mr Kam and/or the Plaintiff, to advise on the merits of and to prepare an application for judicial review for an order that the Comptroller of Income Tax be compelled to issue a Notice of Refusal to Amend” the 19 April 2012 NAs. Kam says the four Defendants never reverted on whether they intended to proceed with the judicial review. The Defendants say that Dr Heng was “not confident that the judicial review application would succeed”; and “no further action was taken in respect of the judicial review application”.

On 30 May 2016, one of Kam’s colleagues received an email from another firm – Highlight Business Services (“HBS”) – stating that HBS had been “appointed” by Dr Heng to “handle the accounting function” for KMHWCPL and TMaACPL. Kam texted Dr Heng to say:

On 7 June 2016, four invoices were issued by Matrico as follows:

The Plaintiff claims that it “caused” Matrico to issue the above invoices on its behalf, and that these were also “interim invoices” in respect of the Work. I will refer to the above invoices as “the 2016 Invoices”. Shortly after these were issued, Kam texted Dr Heng to say:

Kam received no response. On 30 August 2016 he texted Dr Heng again:

Dr Heng replied on the same day to confirm that “the new accountant will be taking over”, but said nothing about the payment of the 2016 Invoices. Kam then chased Vivian Heng about payment, but no payment was made. Nor does it appear that Dr Heng contacted Kam to discuss the invoices. On 3 July 2017 (nearly a year later), Kam sent both Dr Heng and Vivian a text message saying:

On 31 July 2017, Vivian Heng sent Kam a text message stating:

Kam replied that it was “ok to revert in mid Aug”. It appears nothing further was heard from Dr Heng. On 21 September 2017 Kam texted Vivian Heng to say:

On 22 September 2017, Matrico issued the following invoices:

The Plaintiff claims that it “caused” Matrico to issue the above invoices on its behalf, and that these invoices were “revised from the 2016 Invoices and were intended to supersede the 2016 Invoices”. I will refer to these invoices as “the 2017 Invoices”. It appears that Dr Heng again did not respond to Kam on payment of these invoices. On 13 October 2017, Kam texted Vivian Heng again:

On 23 October 2017, Dr Heng sent Kam a text message stating that he would be responding to him by letter; and that he would call the police and the relevant authorities if the debt collectors were to do as “threatened” by Kam in his text message to Vivian. This led to the following reply from Kam:

On the same day (23 October 2017), Dr Heng sent Kam a letter. The letter referred to the 2017 Invoices (as well as another separate set of invoices), and stated:

On 17 November 2017, the Plaintiff, BMI Tax, responded, enclosing inter alia a “List Of Work Done And Period Of Work”. There followed further correspondence between the parties before BMI Tax filed this suit on 14 March 2018.

CA 179/2018: The Plaintiff’s appeal

I will address CA 179/2018 first. This was the Plaintiff’s appeal against the striking-out of the following portions of their claim:

(a) Paragraph 18A of the old Statement of Claim (Amendment No. 3), since renumbered as paragraph 19 of the Statement of Claim (Amendment No. 5);

(b) Paragraphs 19 and 19A of the Statement of Claim (Amendment No. 3), which had pleaded waiver and/or estoppel and an alternative claim of restitutionary quantum meruit respectively;

(c) The consequential references in the prayers numbered (1) to (4) on the last two pages of the old Statement of Claim (Amendment No. 3) to alternative claims for “such sums as may be assessed by this Honourable Court on a quantum meruit basis”.

On the striking-out of paragraph 19 of the Statement of Claim (Amendment No. 3)

I will first deal with the striking-out of paragraph 19 of the Statement of Claim (Amendment No. 3). It will be recalled that the Plaintiff claimed that it had an Oral Agreement with Dr Heng to do the work set out in paragraph 10(1) and (2) of the Statement of Claim (Amendment No. 3); and that in relation to the 2nd to the 4th Defendants, it had been engaged pursuant to the “Other services offered” clause of the TRSAs, to do the work specified in paragraph 12 of the same Statement of Claim. Paragraph 19 of the Statement of Claim (Amendment No. 3) purported to plead that insofar as the Oral Agreement and/or the TRSAs “provided that any invoice was to be issued by the Plaintiff” (which the Plaintiff denied), the Defendants “had, by their conduct, waived this condition and/or is estopped from relying on the same”:

As can be seen from above, the Plaintiff relies on the payment of the 2015 Invoices and the alleged “acceptance” of the 2016 Invoices as the basis for contending that in respect of the 2017 Invoices which are the subject of the present claim, the Defendants have waived any contractual requirement for invoices to be issued by the Plaintiff, and/or are estopped from invoking any such contractual requirement. Paragraph 19 of the Statement of Claim (Amendment No. 3) did not state what the Plaintiff meant by the assertion that the Defendants had “through the 1st Defendant and/or Ms Vivian Heng, acknowledged the 2016 Invoices and accepted, either expressly or implicitly, the Defendants’ liability to make payment on the 2016 Invoices”. However, in oral submissions on 10 August 2018, the Plaintiff’s counsel stated that this referred to the text messages between the parties, in which Vivian Heng had asked Kam for “more time” and during which neither Dr Heng nor Vivian had objected to the 2016 Invoices being issued by Matrico.

Regrettably, the arguments by the Plaintiff’s counsel in respect of the basis for pleading “waiver and/or estoppel” were fractured and incoherent. In respect of the pleading of waiver, it appeared from his oral submissions that be believed the Plaintiff to be relying on the doctrine of waiver by election – but he admitted that he had “no authorities” to support an argument that a pleading of waiver by election could be upheld on the facts pleaded. He then purported to rely on the judgement of the Court of Appeal (“CA”) in Audi Construction Pte Ltd v Kian Hiap Construction Pte Ltd [2018] 1 SLR 317 (“Audi Construction”), an authority cited by the Defendants’ counsel. However, in Audi Construction, the CA made it clear that a waiver by election involved a party “communicating his choice whether to exercise a right which has become available to him”. As the Defendants’ counsel has pointed out (citing the authors of The Law of Waiver, Variation and Estoppel (Sean Wilken QC and Karim Ghaly)(Oxford University Press, 3rd Ed. 2012), as between two contracting parties X and Y, “waiver cannot permanently alter X and Y’s future obligations under the contract”: waiver by election relates “to X’s accrued remedies where there is a pre-existing breach of the primary obligations under the contract”.

Applying the above principles, if we assume that a contractual requirement exists for all invoices to be issued by the Plaintiff, then the most that can be said of the evidence of payment of the 2015 Invoices is that the Defendants have waived any remedies they have against the Plaintiff for breaching this contractual requirement in relation to the 2015 Invoices. The doctrine of waiver by election does not permit the Defendants to argue that payment of the 2015 Invoices constitutes waiver of the contractual requirement in relation to future invoices such as the 2017 Invoices.

As for the Defendant’s alleged “acceptance” of the 2016 Invoices, even making the generous assumption that Vivian’s request to Kam for “more time” and Dr Heng’s failure to query Matrico’s issuance of these Invoices can amount to an “unequivocal representation” (Audi Construction at [59]) that the Defendants waived any contractual requirement for invoices to be issued by the Plaintiffs, such waiver only operates in respect of the 2016 Invoices – and has no effect vis-à-vis the 2017 Invoices which are the subject of the present suit.

As to the pleading of “estoppel”, the Plaintiff’s counsel stated in oral submissions that he was relying on “promissory estoppel” – or what the CA in Audi Construction referred to as “waiver by estoppel” or an “equitable estoppel”. In Audi Construction at [57], the CA explained that the doctrine of equitable or promissory estoppel “requires an unequivocal representation by one party that he will not insist upon his legal rights against the other party, and such reliance by the representee as will render it inequitable for the representor to go back upon his representation… (A) party to an equitable estoppel is representing that he will in future forbear to enforce his legal rights… (T)his doctrine is premised on inequity, not choice, hence the requirement of reliance”.

I emphasize in particular the italicised words – because this is where the Plaintiff’s case on “promissory estoppel” falls apart. According to its counsel, its case is that the Defendants had – by paying the 2015 Invoices and by failing to object to Matrico’s issuance of the 2016 Invoices – represented that they would not enforce the contractual requirement for invoices to be issued by the Plaintiff, and the Plaintiff had relied on this representation by not complying with such requirement in issuing the 2017 Invoices. However, even assuming that the payment of the 2015 Invoices and the lack of objections to Matrico’s issuance of the 2016 Invoices constitute an “unequivocal representation” by the Defendants that they will in future forbear to enforce the contractual requirement for issuance of invoices by the Plaintiff, the element of reliance needed to establish promissory estoppel cannot be satisfied merely by the Plaintiff’s non-compliance thereafter with this contractual requirement. To quote the learned editors of The Law of Contract in Singapore (Andrew Phang Boon Leong gen ed) (Academy Publishing, 2012) at paras 4.078:

When the above principles were brought to the attention of the Plaintiff’s counsel, his only response was:

For the reasons stated in [37] to [44] above, I struck out the pleading of “waiver and/or estoppel” in paragraph 19 of the Statement of Claim (Amendment No. 3).

On the striking-out of paragraph 18A of the Statement of Claim (Amendment No. 3) (renumbered as paragraph 19 in the Statement of Claim (Amendment No. 5))

At the further hearing on 1 October 2018, the Defendants’ counsel submitted that the Plaintiff’s assertion of an estoppel in paragraph 19 of the Statement of Claim (Amendment No. 3) having been struck out, the reference to “estoppel” in paragraph 18A of the same statement of claim (renumbered as paragraph 19 in the Statement of Claim (Amendment No. 5)) similarly could not stand. Paragraph 19 of the Statement of Claim (Amendment No. 5) states that “the Defendants, by their conduct, are estopped from denying their liability to make payment on the Invoices (save for disputing the amounts in the Invoices)”.

The Plaintiff’s counsel initially sought to argue that the “estoppel” in paragraph 19 of the Statement of Claim (Amendment No. 5) referred to “estoppel by convention” and was “a different kind of estoppel” from that pleaded in the struck-out paragraph 19 of the Statement of Claim (Amendment No. 3). However, after parties were given a short break to check the legal position, I was informed that both sides were “on the same page”: if the Plaintiff did indeed intend to put forward further arguments on why it should be permitted to plead “a different kind of estoppel”, it was out of time for requesting further arguments.

In any event, contrary to the initial submission of the Plaintiff’s counsel (which came regrettably out of the blue and unsupported by any authority or evidence), it appeared to me that paragraph 18A of the Statement of Claim (Amendment No. 3) was concerned with the same promissory estoppel pleaded in the struck-out paragraph 19. This was because paragraph 18A also made reference to paragraph 17B (which asserts that the Defendants failed to object to Matrico’s issuance of the 2016 Invoices) and paragraph 18 (which sets out the particulars of the 2017 Invoices). It appeared to me therefore that paragraph 18A should have been struck out for the same reasons that paragraph 19 was struck out.

For the reasons stated in [46] to [48] above, I ordered that paragraph 18A of the Statement of Claim (Amendment No. 3) (renumbered as paragraph 19 in the Statement of Claim (Amendment No. 5)) should also be struck out.

On the striking-out of paragraph 19A of the Statement of Claim (Amendment No. 3)

I will next deal with the striking-out of paragraph 19A of the Statement of Claim (Amendment No. 3). This read as follows:

At the hearing on 10 August 2018, the Plaintiff’s counsel confirmed that paragraph 19A was intended to plead a claim in restitutionary quantum meruit. It was then pointed out to counsel that the law required a party’s claim in restitutionary quantum meruit to be premised on its contract with the opposing party having been “terminated prematurely as a result of a breach of that [opposing] party”: counsel was referred to the CA’s judgement in Lee Siong Kee v Beng Tiong Trading, Import and Export (1988) Pte Ltd [2000] 3 SLR(R) 386 at [37] (“Lee Siong Kee”) and also at [35], where the CA noted the appellant’s reliance on the following passage from Goff & Jones, The Law of Restitution (Sweet & Maxwell, 5th Ed., 1998 at p 531):

Counsel initially stated that he did “not read Lee Siong Kee as saying there must be premature termination for a restitutionary quantum meruit claim”. There appeared to be no support whatsoever for this startling statement, nor did counsel attempt to substantiate it. Indeed, in virtually the next instant, he conceded that “there must be a breach, and the contract is rescinded, then the party becomes entitled to a claim in partial compensation”. When pressed to explain where or how the Plaintiff had pleaded the elements necessary for a claim in restitutionary quantum meruit, counsel conceded that “(w)e have not pleaded breach here”. His only other response on this issue was a non sequitur:

In any event, insofar as “the juridical basis for recovery under a claim in restitutionary quantum meruit is the doctrine of unjust enrichment”, the following elements of unjust enrichment should have been pleaded: “(a) a benefit had been received or the defendants had been enriched; (b) this benefit or enrichment was at [the plaintiff’s] expense; and (c) the enrichment was “unjust”: Higgins, Danial Patrick v Mulacek, Philippe Emanuel & others [2016] 5 SLR 848 (“Higgins”) at [54]. Even were I to assume that the references to work done for the Defendants scattered throughout the Statement of Claim (Amendment No. 3) sufficed to constitute a pleading of the first element of benefit or enrichment, it was not clear to me – nor did counsel attempt to elucidate – where or how the second and third elements of unjust enrichment had been pleaded. In the circumstances, I agreed with the Defendants that what the Plaintiff had pleaded was insufficient to support a claim in unjust enrichment.

For the reasons stated in [50] to [53] above, I ordered that paragraph 19A of the Statement of Claim (Amendment No. 3) should also be struck out. The Plaintiff’s claim in restitutionary quantum meruit having been struck out, it followed that the consequential references in the prayers numbered (1) to (4) on the last two pages of the statement of claim to alternative claims for “such sums as may be assessed by this Honourable Court on a quantum meruit basis” also had to be struck out.

On the costs awarded against the Plaintiff in RA 160/2018

CA 182/2018: The Defendants’ appeal

I turn next to the Defendants’ appeal in CA 182/2018. The Defendants have not stated in their Notice of Appeal the orders they are appealing, but given the nature of the relief they were seeking in RA 160/2018, I understand them to be appealing against my refusal to strike out the entire Statement of Claim, or alternatively to order that the Statement of Claim be struck out in entirety against the 1st Defendant Dr Heng. I will address below the main arguments raised by the Defendants in RA 160/2018.

On the Defendants’ argument that there has been “fatal” procedural non-compliance with the Fees Clause of the TRSAs

The Defendants have argued that the Fees Clause of the TRSAs sets out the following procedural requirements:

(a) Invoices must be issued only by the Plaintiff BMI Tax;

(b) Invoices must be issued “progressively” or sequentially, “as work progresses”. In this connection, I understand the Defendants to mean, for example, that if an invoice has already been issued for work done on a specific date (say Date X), the Plaintiff cannot then issue a later invoice claiming for work done prior to Date X;

(c) Fees charged in the invoices must be based on “the degree of responsibility and skill involved and time spent”; and

(d) Fees are “payable upon presentation” and not earlier.

It is the Defendants’ case that the Plaintiff’s right to bring an action for its fees only arises when these lleged procedural requirements have been complied with; and that in this case, the Plaintiff has no right to bring an action because it has failed to comply with these procedural requirements. The Defendants have cited Fairview Developments Pte Ltd v Ong & Ong Pte Ltd [2014] 2 SLR 318 (“Fairview”) and Ice Architects v Empowering People Inspiring Communities [2018] EWHC 281 (QB) (“Ice Architects”) in support of this argument.

In Ice Architects, the appellant (“ICE”) was an architectural practice, while the respondent (“EPIC”) was a registered provider of social housing. Pursuant to a letter dated 10 July 2007 sent by EPIC’s project manager, ICE was appointed as the architects for a housing project being developed by EPIC. This letter included the following passage under the heading “Basis of Payment”:

A dispute arose over an invoice issued by ICE on 23 April 2009 for the sum of £42,375 (plus VAT) for services provided under the terms of the contract. Following an adjudication process, ICE was awarded £24,033.85. ICE then commenced civil proceedings on 21 May 2015 to recover the balance of the invoice sum. The central argument advanced by EPIC at the first-instance hearing was that ICE’s cause of action arose when the relevant design work (for which payment was claimed in the invoice) was completed – which was sometime in 2008; and that ICE’s claim was accordingly time-barred under section 5 of the Limitation Act 1980 of the United Kingdom (“UK”), the civil proceedings having been commenced more than 6 years after the accrual of the cause of action. ICE, for its part, argued that the cause of action did not accrue until 30 days after receipt of the invoice issued on 23 April 2009. The first-instance judge found in EPIC’s favour; and on appeal, his decision was upheld by Lambert J. In gist, Lambert J upheld the following propositions:

(a) In the absence of agreement to the contrary, the starting point is that a provider of services is entitled to be paid once the work has been done and so its cause of action for payment arises at that time.

(b) Clear words are needed if the timing of the accrual of the cause of action in an action for work or services is to be displaced.

(c) In the present case, based on an objective plain reading of the relevant paragraph of the 10 July 2007 letter, “(n)othing in the language of the relevant paragraph, viewed in isolation or in the context of the letter as a whole… suggests that the parties were intending that ICE’s entitlement to payment did not arise when the work was done” (see at [22] – [23]). A reasonable person in the position of the parties would have understood the relevant words to be an agreement concerning only the process of billing and payment, namely the monthly provision of an invoice with payment within 30 days thereafter. Further, in the context of the 10 July 2007 letter and having regard to the circumstances in this case, it was “common sense” that both parties would have wished to reach some agreement concerning the billing and payment arrangement: on an objective construction of the parties’ intention, the payment terms in the letter reflected just such an arrangement. Given the nature of the design work and the budgetary constraints faced by EPIC, monthly invoicing would have been important, certainly for EPIC, as a means of keeping a running check on the financial outlay on design services.

(d) More generally, whether the cause of action accrues on completion of the work or at some other time is a matter of construction of the relevant contractual term or other statutory provision. Thus, two of the cases cited to the first-instance judge – Henry Boot Construction Ltd v Alstom Combined Cycles Ltd [2005] EWCA Civ 814 (“Boot”) and Legal Services Commission v Henthorn [2011] EWCA Civ 1415 (“Henthorn”) – were both examples of the court undertaking such an exercise in objective construction; and the outcome of the construction exercise in each case was bolstered by common sense and logic. In neither case could the quantum of the debt have been identified at the completion of the work in question. In Boot, the entitlement was not to the true value of the work completed but the value attributed to that work by the engineer. In Henthorn, which concerned fees paid by the Legal Services Commission “on account” to counsel in a civil legal aid case, the extent of the Commission’s recoupment of the sums paid on account could only be known following taxation of the costs. No such difficulty arose in respect of the ICE invoices which required no further analysis or assessment.

In Fairview, it can be seen that the CA was undertaking the same “objective construction exercise” spoken of by Lambert J. In that case, the appellant (“Fairview”) was the developer of a plot of land. Fairview had engaged Ong & Ong Architects (“OOA”) to be the architect for the development of this plot of land in the 1970s, OOA being subsequently succeeded by Ong & Ong Pte Ltd (“OOPL”). In 2009, Fairview terminated OOPL’s services. Proceedings ensued in which the trial judge dismissed OOPL’s claim for wrongful termination of its services but allowed its claim for fees for abortive works on a quantum meruit basis. On appeal, Fairview argued inter alia that even if OOPL were entitled to claim for fees for the abortive works, such a claim had been time-barred under the Limitation Act. The CA therefore considered the question of when OOPL’s right to payment and corresponding cause of action to sue upon such right arose. It held at [87] – [88] that in this case, the terms in the SIA Conditions 1985 pertaining to the mode and time of payment applied; and that reading the opening paragraph of condition 6.1 and note (a) of the said terms –

Having regard to the decisions in Ice Architects and Fairview, what the present Defendants had to show was that there were “clear words” in the Fees Clause of the TRSAs which provided for specific procedural requirements (e.g. issuance of invoices only in the Plaintiff’s name and strictly in sequence according to the date when work was done) to be complied with before the Plaintiff’s right to bring an action for payment of its fees could arise. The Fees Clause is reproduced in [11] above. On a plain reading of this clause, I was not persuaded that it had this effect. If anything, a plain reading of the Fees Clause suggested that it was intended simply to provide for a mechanism for billing and payment. To use the words of Lambert J in Ice Architects, nothing in the language of this clause – viewed in isolation or in the context of the TRSA as a whole – suggested that parties were intending that the Plaintiff’s right to bring an action for its fees should not arise when the work was done and should, instead, only arise upon invoices being issued in its name, and issued moreover in strict chronology according to the sequence of work done. Nor was it clear to me why “common sense and logic” required that the Fees Clause be interpreted in this manner. This was not, for example, a case like Boot or Henthorn where the quantum of the debt was incapable of being ascertained upon the completion of the work in question.

To sum up: having reviewed the provisions of the Fees Clause, I did not accept that the clause provided for the Plaintiff’s right to bring an action for its fees to arise only when specific procedural requirements (such as the sequential issuance of invoices in the Plaintiff’s own name) had been complied with.

The Defendants also alleged in the course of the appeal that Kam must have arranged for Matrico to issue the invoices so as to avoid the Plaintiff having to pay any Goods and Service Tax (“GST”), the Plaintiff being GST-registered while Matrico was not. Given my decision on the Defendants’ proposed construction of the Fees Clause, I did not find it necessary to make any findings on these allegations.

On the Defendants’ argument that the Plaintiff has approbated and reprobated the TRSAs

The Defendants’ submissions on the “procedural requirements” of the Fees Clause and the Plaintiff ‘s “fatal” non-compliance with these requirements formed the lynchpin of their case that the Plaintiff’s claim was “legally unsustainable”. I next deal with their submissions on the “factual unsustainability” of the Plaintiff’s claim. In the main, these centred on the argument that the Plaintiff had “approbated and reprobated the TRSAs in a bid to evade striking-out”.

In Treasure Valley Group Ltd v Saputra Teddy and another [2006] 1 SLR(R) 358 (“Treasure Valley”) at [31], the doctrine of approbation and reprobation was explained by Belinda Ang J as follows:

In Lipkin International Ltd v Swiber Holdings Ltd and another [2015] 5 SLR 962 (“Lipkin”), Steven Chong J (as he then was) stated that there was “a wider dimension to the doctrine [of approbation and reprobation] which discourages the adoption of ‘inconsistent attitudes’ and warns that stark shifts in positions from previous proceedings would be viewed ‘with some circumspection and scepticism”. He added that even if the doctrine were strictly not applicable in Lipkin, he found it “simply fallacious” for the plaintiff to rely on the same single set of minutes of meetings to advance two different contracts against two different parties (see at [62]).

In the present case, the Defendants have drawn up in Annex A to their written submissions of 23 July 2018 a schedule of what they say represents the Plaintiff’s approbation and reprobation of the TRSAs. They have also cited in their written submissions numerous examples of the Plaintiff’s alleged approbation and reprobation of the TRSAs.

I do not think it can be the case that whenever a plaintiff is said to have shifted its position in the course of proceedings, its claim must immediately and invariably be struck out at the interlocutory stage. I do not understand Steven Chong J to be espousing such a position in Lipkin, nor did I understand the Defendants’ counsel to be advocating so sweeping an approach in the present case. It must surely be a question of degree as to how egregious the shifts in position are, and what reasons (if any) there may have been for the shifts in position. Thus, in Lipkin for example, the conduct which was held by Chong J to offend the spirit of the doctrine of approbation and reprobation was the plaintiff’s adoption of two starkly different positions vis-à-vis a meeting between parties on 15 April 2009, firstly in its pleaded case in arbitration proceedings against the second defendant, and secondly in its pleaded case in a separate and later set of civil proceedings against both defendants. As Chong J put it at [59] of Lipkin:

In the present case, the “flip-flopping” on the Plaintiff’s part which was decried by the Defendants related to the issue of whether the Plaintiff’s contractual relationship with each Defendant vis-à-vis the Work was based on the TRSAs, or whether such contractual relationship arose from some other agreement outside the TRSAs. It can be seen from Annex A to these written grounds that the Plaintiff’s position on this issue was not stated clearly in the original Statement of Claim. In Kam’s 3rd affidavit of 21 May 2018 which was filed in response to the Defendants’ striking-out application in SUM 2085/2018, Kam had stated that “(t)he Work was outside of and separate to the terms of the [TRSAs]”. Somewhat confoundingly, as recounted in the Defendants’ written submissions, the Plaintiff’s counsel took a series of differing positions on the issue during the hearing before the AR of SUM 2085/2018. It was only towards the tail-end of the hearing that counsel confirmed to the AR that the Plaintiff was “now saying” that in respect of the Three Companies, the Work fell within the “Other services offered” clause of the TRSAs; and that in respect of Dr Heng, the Work was undertaken pursuant to “an oral request”.

At the first hearing of RA 160/2018 on 25 July 2018, the Plaintiff’s counsel reiterated to me that his instructions from the Plaintiff were that the Work done for the Three Companies was pursuant to the “Other services offered” clause of the TRSAs whereas in relation to Dr Heng, there was a separate oral agreement. Regrettably, when counsel filed the Statement of Claim (Amendment No. 3) on behalf of the Plaintiff on 1 August 2018, it included a pleading in the alternative of an oral agreement between the Plaintiff and the Three Companies.

I eventually ordered the striking-out of this alternative pleading of an oral agreement between the Plaintiff and the Three Companies, but I declined to strike out the entire Statement of Claim on the ground of the Plaintiff’s alleged approbation and reprobation of the TRSAs. My reasons were as follows. It was clear to me, from a review of the notes of the hearing before the AR and from the various hearings before me, that much of the “flip-flopping” that had apparently occurred on the Plaintiff’s part vis-à-vis the TRSAs was the result of what I can only describe as bizarre conduct on the part of its counsel. For one, as the Defendants’ counsel pointed out, it appeared from the remarks made by the Plaintiff’s counsel to the AR that he had only perused the terms of the TRSA for the first time during the lunch break on the day of the hearing on 4 June 2018. Indeed, just before the adjournment for the lunch break, he had informed the AR that “the Work falls outside the scope of the TRSA” – but upon the hearing resuming after lunch, he had stated:

That counsel should have informed the AR that he had only looked through the TRSA and noted the “Other services offered” clause on the day of the hearing was bizarre when he claimed – in the hearing before me on 25 July 2018 – that the Plaintiff’s instructions to him “from the start” had been that the Work done for the Three Companies was under the “Other services offered” clause of the TRSAs whereas there was a separate oral agreement with Dr Heng, concluded in the telephone conversation of 5 January 2012. I should add that there was some evidence which suggested that this had in fact been the Plaintiff’s position at the outset. On 17 November 2017, in responding to Dr Heng’s letter of 23 October 2017 requesting inter alia the “signed terms of engagement relating to the [2017] Invoices”, the Plaintiff had referred to the TRSAs in respect the Three Companies and expressly cited the “Other services offered” clause. On 29 December 2017, counsel’s own firm had written to Dr Heng in his personal capacity regarding the sum of $30,000 claimed in the 2017 Invoice addressed to him, and had referred in this letter to the Plaintiff being “engaged” by Dr Heng “(i)n or around 5 January 2012” to do the Work. I should also add that at the hearing on 10 August 2018, counsel reiterated that his instructions on the Plaintiff’s reliance on the “Other services offered” clause of the TRSAs vis-à-vis the Three Companies and on an oral agreement of 5 January 2012 vis-à-vis Dr Heng remained – but indicated that he had taken it upon himself to consider “whether, based on [the] phone conversation [of 5 January 2012], an alternative pleading [of an oral agreement] could be made vis-à-vis the Three Companies. Counsel stated at one point that having had the “benefit of [the] Court’s directions” at the hearing on 25 July 2018, he had “[spoken] to [the] Plaintiffs again to see how [the] pleadings could be improved” – but he stopped short of saying that the Plaintiff had given him fresh instructions on an alternative case of an oral agreement with the Three Companies. In fact, he repeated more than once that the “Plaintiff’s instructions to [him] all along have been, there was a phone conversation with 1st Defendant, and following from that conversation, work was carried out. 2nd to 4th Defendants [the Three Companies] had existing TRSA with Plaintiff, and the requirement for work to be done for them was pursuant to the “Other services offered” clause”.

Having regard to the above circumstances, I decided that this was not a case where the Plaintiff’s conduct had so offended the doctrine of approbation and reprobation that it warranted the striking-out of the entire claim.

On the Defendants’ argument that the entire Statement of Claim should be struck out because the Plaintiff is relying on “fabricated” time-sheets

The Defendants have also argued that even putting aside the Plaintiff’s alleged approbation and reprobation of the TRSAs, the Statement of Claim should be struck out in entirety because the time-sheets relied on in support of the 2017 Invoices are “blatantly fabricated ex post” and demonstrate that the Plaintiff’s claim is “bogus”. In this connection, the Defendants have made a number of submissions which I summarise and address as follows.

The Defendants have pointed out that the Plaintiff’s 2015 Invoices were in respect of work done between 13 March 2015 and 1 December 2015, whereas the 2016 Invoices purported to bill for work done in an earlier period from 25 April 2012 and 23 February 2015. The Defendants argued that it is “commercially illogical” for the Plaintiff to bill for work done “in such a haphazard manner”. With respect, however, whilst it might be somewhat “haphazard” practice, to call it “commercially illogical” – or “incredible” – seemed to me to be overstating the case. Certainly I did not find this particular practice sinister in itself, or necessarily indicative of fraud.

The Defendants also reprised the argument that the Fees Clause of the TRSAs required work to be billed “sequentially” before the Plaintiff’s cause of action to sue for its fees could arise. I have earlier explained at [58] to [64] why I did not accept this argument. As Lambert J held in Ice Architects at [27], “whether the cause of action accrues on completion of the work, or at some other time, is a matter of construction of the relevant contractual term or other statutory provision”. In the present case, I did not find that there were “clear words” in the Fees Clause which made sequential billing a strict “procedural bar” to the accrual of the Plaintiff’s cause of action to sue for fees. I also did not find that the Fees Clause in this case was “akin” to the provisions considered by the High Court in Libra Building Construction Pte Ltd v Emergent Engineering Pte Ltd [2016] 1 SLR481 (“Libra Building”).

In Libra Building, the High Court considered the objective construction of s 10(1) of the Building and Construction Industry Security of Payment Act (Cap 30B, 2006 Rev Ed)(“the Act”) and clause 21(a) of the Contract between the parties before concluding that the language in these provisions prohibited the defendant sub-contractor from serving more than one payment claim in the same payment claim period even if they covered different reference periods (see [24] – [34], [70] – [72], [80] – [87] of Libra Building). The second of two payment claims served by the defendant within the month of December 2014 was accordingly held to be invalid. In so deciding, Kannan Ramesh JC (as he then was) took pains to explain that given the nature of the construction industry – in particular, the need to facilitate cash flow versus the need to prevent abuse – there were good reasons why the relevant provisions should be understood as having “firmly shut” the door on the service of multiple payment claims in the same payment period. I was not persuaded that in the present case there existed a similar framework of considerations which would support the construction of the Fees Clause argued for by the Defendants.

The Defendants have also challenged the figures stated in the Schedule annexed to the Plaintiff’s Statement of Claim. They have argued that there are differences between the figures stated in this Schedule and the figures in the time-sheets which were forwarded via the Plaintiff’s letter of 17 November 2017. They have also argued that the 2017 Invoices covers work already billed for and paid for; further, that in any event, the figures stated in the Schedule do not make sense because they purport to record the time spent on the Work by Kam and his colleague and their hourly rates, which “completely contradicts” the figures stated in the 2017 Invoices.

It is true that some differences exist between the Schedule annexed to the Statement of Claim (Amendment No. 3) and the time-sheets enclosed in the Plaintiff’s letter of 17 November 2017. The time-sheets forwarded on 17 November 2017 purported to set out the work done – and the corresponding number of hours spent on the work by Kam and his colleague – for the period between 25 April 2012 and 1 December 2015. The Schedule, on the other hand, purports to particularise the work done - and the corresponding number of hours spent on the work by Kam and his colleague – for a shorter period between 25 April 2012 and 23 February 2015.

It would appear that in preparing the Schedule, the Plaintiff removed the last eight items which previously appeared in the time-sheets of 17 November 2017. These were the eight items of work listed for the period between 13 March 2015 and 1 December 2015, which were stated to relate to correspondence with the Income Tax Board of Review, the preparation of a Notice of Appeal under section 79(1) of the Income Tax Act, discussions with Justicius Law Corporation on a potential application for judicial review and drafting of various documents in relation to the potential judicial review. The description of these eight items approximates to the description of the work billed for in the 2015 Invoices. It will be recalled that the 2015 Invoices had stated the work billed for as being a “professional fee for attendance to Board of Review” on behalf of the four Defendants (in respect of Invoice No. M00415), and a “professional fee for attendance to Judicial Review of Appeal for Notice of Assessment” on behalf of the four Defendants (in respect of Invoice No. M00458). The removal of these eight items from the Schedule would seem, therefore, to address one of the Defendants’ complaints – namely, that at least part of the work the Plaintiff was claiming payment for in this suit had already been billed in the 2015 Invoices and paid.

The Defendants’ other major complaint about the Schedule was that the figures stated therein for the time spent by Kam and his colleague, and their hourly charge-out rates, could not be reconciled with the figures stated in the 2017 Invoices. In gist, the Schedule sets out the number of hours spent by Kam and his colleague on various major items of work done in the period between 25 April 2012 and 23 February 2015, as well as their hourly charge-out rates, before applying a discount to Kam’s hourly rate so as to arrive at the concluding figures for the total fees claimed against each Defendant: $30,000 in respect of Dr Heng; $105,000 in respect of KMHWCPL; $90,000 in respect of KMHCSPL; and $60,000 in respect of TMaACPL. It should be noted that in setting out in the Schedule the number of hours spent by Kam and his colleague on major items of work, the Plaintiff has not given a breakdown of the number of hours spent per each individual Defendant. It should also be noted that in respect of each Defendant, work was – according to the Plaintiff – done in respect of a different number of Years of Assessment (“YAs”): two YAs for Dr Heng (YA 2003 and YA 2004); seven YAs for KMHWCPL (YA 2005 to YA 2011); six YAs for KMHCSPL (YA 2003 to YA 2008); and four YAs for TMaACPL (YAs 2008 to 2011). In the Schedule, the Plaintiff does not include a breakdown of the number of hours spent in respect of each YA.

In the 2017 Invoices, the same figures for total fees were stated in respect of each Defendant ($30,000 for Dr Heng; $105,000 for KMHWCPL; $90,000 for KMHCSPL; and $60,000 for TMaACPL): what the Plaintiff then did was to divide the total fee figure for each Defendant by the number of YAs worked on for that Defendant, which resulted in what the Defendants’ counsel has termed a “flat fee” of $15,000 per each YA per each Defendant.

It is true that the manner in which the number of hours worked and the hourly charge-out rates has been set out in the Schedule does not explain the apparent apportionment of a flat rate of $15,000 per each YA per each Defendant. The question, though, is whether the apparent inconsistencies in the Plaintiff’s figures give rise – as the Defendants claim – to a clear inference of fraud warranting the striking-out of the claim in entirety. On balance, I did not think that there was such clear evidence of fraud in this case, or that this was a plain and obvious case for striking-out. As I alluded to earlier, the Defendants in this case appear to concede that Kam and the Plaintiff did provide some advice and that they did carry out some work on behalf of all four Defendants in relation to the issue of a potential challenge to IRAS’ decision. Nor – on the evidence adduced – is it clear that all of the work done was subsumed under the 2015 Invoices which were paid via KMHWCPL’s cheques. Both the Defence and Counterclaim and the Defence and Counterclaim (Amendment No. 1) refer, for example, to advice given by Kam and letters drafted by Kam and/or the Plaintiff BMI Tax in April 2012, May 2013, and August 2013 – that is, in the period of time preceding the correspondence with the Income Tax Board of Review and the discussions regarding a potential judicial review application. It may be that the total fees claimed by the Plaintiff cannot at the end of the day be justified, whether on the basis of the amount of time spent, or on the amount of responsibility and skill involved – but that should be a matter left to be determined through the full process of trial. In this connection, I would add that I did not find the Defendants’ reliance on several remarks made by Kam to be helpful, as these remarks appeared to me to be either neutral in effect or ambiguous at best. Thus, for example, Kam’s remark at his meeting with Dr Heng and the latter’s son on 3 December 2016 – “I think I deserve something” – appeared to me to be at best (or I should say, at worst) a display of truculence by one of the parties to a broken business relationship: I certainly did not see it as evidence that Kam was “himself unsure of [the Plaintiff’s] right to the sums claimed in the 22 September 2017 Matrico invoices”.

On the material before me, I did not find that this was an obviously sustainable case where it would be “impossible, not just improbable, for the claim to succeed” (Foo Chee Hock (gen ed), Singapore Civil Procedure 2018 (Sweet & Maxwell, 2018) at para 18/19/6).

On the Defendants’ argument that the Plaintiff’s claim constitutes an abuse of process

Next, the Defendants argued that the Plaintiff’s claim constitutes an abuse of process: the claim was said to be “actuated by malice”; and vis-à-vis the 1st Defendant Dr Heng, it has been argued that the “sole reason for naming [him] as a defendant in this action is to use [his] alleged personal liability as a pressure point”.

The Defendants contended that the “timing” of the 2016 Invoices was “revealing”: they were issued one week after the receipt by Kam’s colleague of the 30 May 2015 email from HBS which made it clear that the Plaintiff was to be replaced by HBS, and so clearly Kam must have been “unhappy about this, and wanted to make it as difficult as possible for the Defendants to replace him and uncover the full extent of his fraud”.

It would appear that by “fraud”, the Defendants were referring to their allegation that Kam had advised Dr Heng to set up his clinics in such a way as to amount to an illegal tax evasion scheme. In this connection, whilst the Defendants were indubitably subjected to investigation and punitive action by IRAS, there was no evidence before me of IRAS’ actual findings, and certainly no evidence on which I could infer at this stage that Kam was responsible for advising the Defendants to act illegally.

As for the timing of the 2016 Invoices, the evidence of the contemporaneous text messages between parties indicated that Kam had in fact been informed by Vivian Heng on 16 May 2016 of plans for another accounting firm to take over the accounts of the clinics, and that he had not appeared unduly enraged or distraught at the prospect of this coming to pass. His text messages to Dr Heng on 16 May 2016 were mainly concerned with follow-up action in respect of feedback from Vivian about “some issues and fines in gst filing” which he said the Plaintiff had not been aware of, and his text message the following day actually spoke quite matter-of-factly about handing over:

The above text messages appear to have gone unanswered by Dr Heng. Nevertheless, even on 30 May 2016 and in the several months thereafter, Kam’s text messages to Dr Heng (reproduced above) did not disclose any signs of rage or distress despite his continuing to receive no reply from the latter. I would add that having seen Kam’s exchange of text messages with Dr Heng on 30 August 2016, it appeared to me the evidence did indicate that he had genuinely believed in May 2016 that HBS would only be taking over the “accounting function” in relation to the clinics (as per HBS’ email), and had only been informed by Vivian on 30 August 2016 that HBS would “also take over tax and corp sec work from next year”. This would appear to militate against the Defendants’ suggestion that by 30 May 2016, Kam had started stewing about the possibility of the Defendants “uncovering” his “fraudulent” tax advice and had issued the 2016 Invoices on 7 June 2016 in a malicious attempt to “make it as difficult as possible for [them] to replace him”.

By the second half of 2017, the tone of Kam’s text messages to Vivian and Dr Heng had become noticeably more strident. On the other hand, considering that Dr Heng had apparently failed to answer most of Kam’s text messages and also refrained from responding to queries about the payment of the 2016 Invoices, it was perhaps unsurprising – if not at all commendable – that Kam’s stated concern about the need to “sort out the tax case billing” and “move forward” had boiled over into ire which manifested itself at times in pugnacious behaviour (such as the dispatch of debt collection agents to the Defendants’ clinic premises). This did not necessarily warrant the inference, however, that the 2017 Invoices and the present suit represented a bogus claim launched solely to pressure the Defendants into paying the Plaintiff monies it was not entitled to.

In particular, vis-à-vis Dr Heng, I did not find the evidence adequate to support an inference that he was named as a defendant solely as a mala fide tactic to force capitulation by all the Defendants. Inter alia, I would reiterate my observation that the Defendants did not appear to deny that the Plaintiff had given advice and done work in relation to the potential challenge to IRAS; and that not all of this work was covered in the 2015 Invoices (see [85] above). I also noted that whilst the Defendants argued before me that it was unprecedented and highly irregular for an invoice to be addressed to Dr Heng personally in June 2016, there was no evidence of any queries or protests by Dr Heng – and this despite a number of chasers from Kam regarding payment of the 2016 Invoices. It may well be that Dr Heng has a reasonable explanation for these aspects of his behaviour. My point is, the determination of the credibility of Kam’s and Dr Heng’s opposing narratives should lie with the trial judge: on the material before me, there was simply insufficient evidence at this interlocutory stage to find the Plaintiff’s claim mala fide and/or an abuse of process.

On the Defendants’ argument that the Plaintiff’s pleading of “alternative statements of facts” should not be permitted

As a final point, I address the Defendants’ argument that the Plaintiff should not be permitted to plead “alternative statements of facts”. This appeared to be an argument raised chiefly in respect of the pleading in [11] of the Statement of Claim that it “was an express, or alternatively, an implied term of the Oral Agreement that the 1st Defendant [i.e. Dr Heng] would pay to the Plaintiff a reasonable sum for the 1st Defendant’s Work and that such work would be computed on the basis of the responsibility and skill involved and time spent by the Plaintiff and/or its representatives”. In support of their arguments on this point, the Defendants cited inter alia the following passage from Ng Chee Weng v Lim Jit Ming Bryan [2012] 1 SLR 457 (“Ng Chee Weng”):

Pollmann, Christian Joachim v Ye Xianrong [2017] SGHC 229 (“Pollman”) is an example of a case where a party was held to have put forward inconsistent alternative cases that offended common sense. In Pollman, the defendant (the driver of the accident vehicle) admitted he had been negligent in colliding into the plaintiff’s bicycle but asserted that the plaintiff was partly to blame for the collision. In so asserting, he put forward two alternative cases. The first was that the plaintiff had been travelling at or near the double yellow lines, out of the defendant’s way, but had suddenly swerved to the right and into the defendant’s path in the split second before impact. The second was that the plaintiff had failed to keep to the left of the lane and had instead been riding near the middle of the lane, thereby obstructing the defendant’s path and riding in a manner which contravened rule 8 of the Road Traffic (Bicycles) Rules (Cap 276, R 3, 1990 Rev Ed). Not surprisingly, the trial judge held that where the plaintiff had been cycling before the impact was a fact within the defendant’s own knowledge; and that accordingly these alternative cases were inconsistent and offended common sense (see [91] – [92] of Pollman).

Conversely, in Higgins, the trial judge rejected the defendants’ submission that the plaintiff’s alternative case of a claim in restitution was inconsistent with his pleaded claim in contract. Referring to Ng Chee Weng, the trial judge stated at [53]:

In the present case, the Plaintiff’s case is that in the event the court does not find that the remuneration terms it has pleaded formed an express term of the alleged oral agreement with Dr Heng, it claims in the alternative an implied term to the same effect. I did not find these pleadings to be fatally inconsistent and/or to offend common sense. This was not a case of a party – like the defendant in Pollmann – deliberately putting forward two inconsistent versions of the material facts when the truth or otherwise of the alternative sets of facts was well within his own knowledge.

The Defendants have further argued that the particulars pleaded by the Plaintiff in [11] of the Statement of Claim fail to “support the implication of a term in that [the Plaintiff] has not pleaded: (a) how there is a gap in the alleged contracts between [the Plaintiff] and the Defendants; (b) how the term is necessary for business efficacy; and (c) facts which establish how the “officious bystander” test is fulfilled”: Sembcorp Marine Ltd v PPL Holdings Pte and anor [2013] 4 SLR 193 (“Sembcorp Marine”) at [101]. The particulars stated in [11] were as follows:

From the CA’s judgement in Sembcorp Marine at [109] – [128], it is clear that whilst a party has to particularise in its pleadings the material facts it proposes to rely on in arguing for the implication of a contractual term, much of the detailed explanation as to how the proposed implied term addresses a gap in the existing contract, how it is “necessary for business efficacy”, and how the “officious bystander” test is satisfied is a matter of submission. For present purposes, I did not find that the particulars pleaded were so inadequate and/or inapt as to provide no basis for the pleading of the implied term.

Conclusion

The various iterations of the Plaintiff’s Statement of Claim in this case have not been well-drafted; and regrettably, as I have indicated, a major cause appears to me to have been the manner in which the case was conducted by the Plaintiff’s counsel. I have struck out what appeared to me to be those aspects of the claim which were plainly and obviously unsustainable, but for the reasons I have explained, I did not agree with the Defendants that this was a case where the entire claim must be struck out. Nor did I agree that the amendments which have been allowed would be “unfair” and “prejudicial” to the Defendants: EA Apartments Pte Ltd v Tan Bek and others [2017] 3 SLR 559 (“EA Apartments”). Conversely, given the evidence available, it would have been unfair to the Plaintiff to accept wholesale at this interlocutory stage the Defendants’ allegations of fraud, fabrication and malice on the Plaintiff’s part.

Mavis Chionh Sze ChyiJudicial Commissioner

Choo Ching Yeow Collin and Nigel Hoe (Tan Peng Chin LLC) for the plaintiff;Calvin Liang (Essex Courts Chambers Duxton) & Eugene Jedidah Low Yeow Chin, Aditi Ravi and Sean Zhen Wei Paul (Tan Kok Quan Partnership) for the first defendant, second, third and fourth defendants.