Chen Qiming v Huttons Asia Pte Ltd and others [2024] SGHC 103

This dispute arises out of a sale and purchase of a condominium unit that went awry. The plaintiff, Mr Chen Qiming (“Chen”), was the purchaser. Throughout the transaction, Chen was attended to by a real estate agent – that agent was the second defendant, Mr Ong Jianlong (“Ong”).

Chen was granted an option to purchase a condominium unit and made substantial payments toward the purchase price. However, those payments were ultimately forfeited when Chen failed to exercise the option and pay the remainder of the purchase price within the time allowed. Chen now looks to hold Ong responsible for the loss that he has suffered. Chen also makes a claim against the first defendant, Huttons Asia Pte Ltd (“Huttons”). Chen alleges that Huttons is vicariously liable for Ong’s putative defaults.

Having carefully considered the evidence and the parties’ submissions, I dismiss all of Chen’s claims against both Ong and Huttons. These are my reasons.

The background

Chen is a national of the People’s Republic of China. According to Chen, he makes a living by trading in “futures, foreign currency and spot gold”.

The third defendant, Mdm Wu Lisha (“Wu”), is Chen’s former wife. Wu was joined in these proceedings on the defendants’ application, but she is only a nominal defendant. Chen is not pursuing any claims against Wu.

Chen acquired a Singapore-incorporated company sometime in 2017, which he renamed “Long Asia Capital Pte Ltd” (“Long Asia”). It appears that Long Asia is in the business of foreign currency trading.

Chen says that in or around May 2018, the Monetary Authority of Singapore gave its “in-principle approval” to Long Asia’s application for a foreign currency trading license. It appears that after this “in-principle approval” was given, Chen began to seriously consider the prospect of settling in Singapore on a more permanent basis. Specifically, Chen says that he “began to consider applying for [Permanent Residency] under the [Global Investors Programme] Scheme”.

Consistent with that intention, Chen resolved to purchase a residential property in Singapore. Towards that end, Chen sought the assistance of Mr Ong Yishan (“Yishan”) in or around June 2018. At that time, Yishan was the Chief Executive Officer of Long Asia. According to Chen, they had been friends for some five years by that point in time.

In response to Chen’s queries, Yishan introduced Ong to Chen sometime in June 2018. As I mentioned, Ong is a real estate agent by trade. He is “registered” with Huttons, and here I say “registered” because the parties disagree on the legal nature of Ong’s relationship with Huttons. However, nothing turns on this disagreement, as I explain at [166] below.

Ong introduced Chen to various properties in Singapore before eventually suggesting that Chen consider apartments for sale in the condominium development known as “Lloyd SixtyFive” (the “Development”).

TG (2010) Pte Ltd (“TG”) is the owner and developer of the Development. Huttons was the real estate agency appointed by TG to market the sale of units in the Development. On this point, Chen says that Huttons was also appointed by TG to sell units in the Development on TG’s behalf; the defendants reject that suggestion. Again, nothing turns on this difference of opinion for the reasons given at [166] below.

It is not disputed that between June 2018 and October 2018, Chen visited certain of the Development’s show unit(s) and/or actual unit(s) on three separate occasions:

By 25 October 2018 at the very latest, Chen had decided to purchase Unit #06-08 of the Development (the “Property”). That is because on that day, Chen paid to TG a sum of S$514,700.00 by telegraphic transfer. That sum was a booking fee amounting to 10% of the Property’s purchase price of S$5,147,000.00 (the “Booking Fee”). TG received that payment on 30 October 2018, whereupon it granted Chen an Option to Purchase (“OTP”) in respect of the Property on the same day. In essence, the OTP was valid for 24 months from the date it was issued, and would (unless exercised) expire at 4.00pm on 30 October 2020 whereupon it would be null and void. In order to exercise the OTP, Chen had to sign that part of the OTP marked “ACCEPTANCE COPY” and deliver the same to TG’s solicitors before the expiry of the OTP, upon which a binding contract for the sale and purchase of the Property would be formed. A failure to exercise the OTP (among other things) would result in the forfeiture to TG of all payments made prior thereto (ie, payments amounting to 30% of the purchase price) (see [14] below). If the OTP was exercised, completion of the purchase of the Property would take place eight weeks after the date on which the OTP had been exercised and, on the date fixed for completion, the remaining 70% of the purchase price would have to be paid.

In addition to the Booking Fee, Chen made the following payments towards the purchase price of the Property:

In total, Chen had paid S$1,544,100.00 (representing 30% of the purchase price) by 7 May 2019.

Chen failed to exercise the OTP by 4.00pm on 30 October 2020 in the manner described at [13] above. Chen therefore forfeited all of the S$1,544,100.00 he had previously paid to TG.

For easy reference, the following table sets out a chronology of the events that were either not disputed or were indisputable having regard to the objective evidence before me. Most of them I have already mentioned; those that I have not, I will come to at the appropriate juncture:

Apart from the events set out in the table above, there was virtually no common ground between the parties as to what happened in connection with the transaction.

If Chen’s version of events is to be accepted, then Ong and/or Huttons must answer for his loss. Specifically, Chen claims against Ong for fraudulent and/or negligent misrepresentation; breach of contract; negligence; and breach of statutory duty. As I have mentioned at [2], Chen is also seeking to hold Huttons vicariously liable for Ong’s defaults. If, on the other hand, the defendants’ version of events is to be accepted, then Chen’s claims must fail and he is responsible for his own loss.

The general principles on fraudulent and negligent misrepresentation

I begin with Chen’s claim in fraudulent and/or negligent misrepresentation. Before I turn to the alleged misrepresentations and the factual issues that surround them, it will be helpful to first summarise the general principles of law on fraudulent and negligent misrepresentation.

The cumulative ingredients to a claim in fraudulent misrepresentation are settled (see Panatron Pte Ltd and another v Lee Cheow Lee and another [2001] 2 SLR(R) 435 at [14]):

As regards negligent misrepresentations, the following cumulative ingredients have to be established (see Ma Hongjin v Sim Eng Tong [2021] SGHC 84 (“Ma Hongjin”) at [20]):

Again, the plaintiff must establish all five of the foregoing elements in order to successfully make out the claim in negligent misrepresentation.

The Occupation Representation

Chen’s case

It is Chen’s pleaded case that Ong had told him that he (ie, Chen) “could move into [the Property] immediately upon payment of a sum of $514,700 being 10% deposit”. I will refer to this as the “Occupation Representation”.

In his Statement of Claim, Chen pleaded that Ong had made the Occupation Representation “[d]uring the viewings and in particular at the final viewing”. It is similarly stated in Chen’s affidavit of evidence-in-chief (“AEIC”) that the Occupation Representation was made to him “over the course of the 3 viewings … repeatedly”, although he further elaborated that at some point during the First Viewing, Ong had told him that:

Chen says that he agreed to “pay 10% of the Sale Price upfront” because he found “[the] arrangement to be suitable and convenient for his needs”.

It was Chen’s undisputed evidence that:

The OTP in fact contained a clause (the “Tenancy Clause”) which provides – contrary to the Occupation Representation – that Chen will only be granted a tenancy over the Property upon payment of the Booking Fee and a further sum amounting to 20% of the purchase price (the “Further Sum”):

It was Chen’s evidence that sometime in early December 2018, he communicated to Ong his intention to immediately move into the Property upon his return to Singapore from China. He says that it was only then that Ong drew his attention to the Tenancy Clause and told him that he could only move into the premises upon payment of the Further Sum.

I summarise Chen’s account of the events that followed:

(a) He felt “very indignant” and “deceived” upon learning that he could only move into the Property upon payment of the Further Sum. He then “furiously questioned Ong on the WeChat group chat (with Yishan, Ong and I [ie, Chen] as members) whether TG was a scam company”. He also allegedly told Ong that he was “seriously considering to cancel [sic] the entire purchase” and, according to his Statement of Claim, he “wanted to … obtain refund [sic] of the 10% deposit paid under the OTP”.

(b) It was pleaded in Chen’s Statement of Claim that Ong “persuaded” Chen not to abandon the transaction; in his AEIC, however, he said that Ong and Yishan “jointly persuaded” him not to do so.

(c) To resolve this issue, Ong negotiated for a better deal with TG. Ong subsequently informed Chen that TG was prepared to allow him to move into the Property upon payment of a further 5% (as opposed to 20%) of the purchase price, with the remaining 15% to be paid by 28 February 2019.

(d) Although Chen “still felt rather indignant, [he] decided not to abort the purchase altogether. After all, the next 20% would have to be paid sooner or later and Ong was recommended to [Chen] by Yishan and on account of Yishan, [Chen] decided to let the matter slide.” He thus agreed to the alternative arrangement negotiated by Ong.

(e) By 19 December 2018, Chen had made payment of the further 5% (amounting to S$257,350.00). He received the keys to the Property on the next day (ie, 20 December 2018).

The defendants’ case

The defendants, for their part, deny that Ong ever made the Occupation Representation to Chen. To the contrary, they say that Chen knew that he would only be entitled to move into the Property upon payment of both the Booking Fee and the Further Sum. For brevity, I will refer to this as the “Occupation Condition”. That was a point that was clearly and repeatedly explained to Chen before he decided to proceed with the transaction. In any event, Chen – having signed the Purchaser Particulars Form and Side Letter, both of which I will turn to shortly – was to be treated as having read and understood the terms of the OTP.

As a starting point, the defendants say that over the three viewings, Chen was accompanied by Ong, Yishan, one Mr Tang Chee Meng (“Tang”, who is sometimes also referred to as “Raymond”), and one Ms Rhea Fellazar (“Rhea”):

(a) Like Ong, Tang is a “real estate salesperson” registered with Huttons. According to Tang, he worked as a “project tagger” for the Development and his “primary responsibility was to market and promote [the] Development”. He explains that “[p]roject taggers have a strong familiarity with their particular development and undergo specialised training to enable them to provide potential buyers with the information they need to make informed decisions.”

(b) Rhea was not called as a witness in these proceedings but according to Tang, Rhea was TG’s “marketing executive” and she was present because “the Development was already completed and had residents living there. The keys to the show units and bare/empty units were held by the Developer’s staff for security reasons.”

It was Ong’s evidence that the Occupation Condition was explained to Chen as early as at the First Viewing on 15 June 2018:

The Enhanced Deferred Payment Scheme (“EDP Scheme”) mentioned in the extract of Ong’s evidence is a significant part of the context in which Chen decided to purchase the Property. I will come to this point shortly.

Ong further deposed that at the Second and Third Viewing, the terms of the EDP Scheme – including the Occupation Condition – were again explained to Chen in detail.

Ong says that when Chen indicated (in or around November 2018) his intention to move into the Property upon his return to Singapore from China, Ong reminded Chen that the Further Sum had to be paid if Chen were to be permitted to move into the Property. This was met by Chen’s request that TG allow him to move into the Property upon a further payment of 5% of the purchase price. That request was communicated to TG, who eventually agreed to the same.

I am not persuaded on a balance of probabilities that Ong made the Occupation Representation

I first consider if Ong in fact made the Occupation Representation to Chen. I start with the obvious point that Chen bears the burden of proving on a balance of probabilities that Ong made the Occupation Representation to him. In assessing the evidence, my focus was on the merits of Chen’s positive case and I bore in mind that Chen could not discharge his burden only by showing that his case was more credible than the defendants’: Ma Hongjin at [57].

The weight to be accorded to the witnesses’ affidavit and oral evidence

Four witnesses testified at the trial of the action: Chen, Ong, Yishan, and Tang. It is clear to me that Chen (being the plaintiff), Ong (being the second defendant), and Tang (being a representative of the first defendant, Huttons) have to be regarded as interested witnesses.

As regards Yishan, Chen challenges his credibility on two bases. First, Chen says that he and Yishan fell out with each other “sometime in late October 2019”. On Chen’s account, Yishan (who was then Chen’s business partner at Long Asia) had “incited [Long Asia’s employees] to leave their duties after the payment of salaries were delayed” and “even hatched a plot to force [Chen] to transfer ownership of the company to him at a low price”. They are not, it seems, on good terms.

Second, it emerged at trial that Yishan received a sum of money from Ong for having referred Chen to him. The characterisation of that payment was contested, but it was plainly intended by Ong as a reward to Yishan for having made the referral in the event Ong earns – as he in fact did – a commission from Chen’s purchase of the Property.

I accept that Yishan’s evidence should be approached with some circumspection for the reasons given by Chen. In any event, however, this is not a case that should be decided primarily on the basis of the witnesses’ testimony at trial. Even if I assumed their complete honesty and good faith, they were called to give evidence on disputed events that occurred some five years prior and their recollection of those events must be viewed with the appropriate measure of caution. In these circumstances, it is necessary to consider the objective and/or contemporaneous evidence available before me in greater detail.

The Purchaser’s Particulars Form

The defendants referred me to the “Purchaser Particulars Form” that Chen signed at (or shortly after) the Second Viewing on 18 October 2018. For context, the Purchaser Particulars Form is one of TG’s standard forms that intending purchasers would fill in to formally express their interest in purchasing a unit in the Development. It contains (among other things) details relating to the unit, the purchaser(s), and the purchase price. However, it was not suggested that the Purchaser Particulars Form was a contractually binding document.

Relevant for present purposes is a part of the Purchaser Particulars Form that reads:

I will refer to this as the “Confirmation Clause”.

The Confirmation Clause affirms – at least on its face – that Chen was given a copy of the OTP prior to him furnishing the Booking Fee, and that he had read and understood the OTP’s terms (including the Tenancy Clause). The defendants argue that having signed the Purchaser Particulars Form and thereby affirmed the statements contained in the Confirmation Clause, Chen must be taken to have known – at least from the time he signed the Purchaser Particulars Form – of the Occupation Condition.

Chen does not dispute signing the Purchaser Particulars Form. His response is simply that he had never been shown a copy of the OTP. The first time he had sight of the OTP’s terms was when the actual OTP was issued and a copy sent to him via WeChat on 30 October 2018 (as stated at [25] above).

In cross-examination, Ong took the position that the “salient points” of the OTP had been verbally explained to Chen on multiple occasions but admitted that Chen was never given a blank copy of the OTP or any other document setting out its terms prior to the issue of the actual OTP:

Ong later clarified that it was the “salient points” or “salient terms” of the EDP Scheme that were explained to Chen:

Given Ong’s clear evidence that Chen was never given a copy of the OTP’s terms before he signed the Purchaser Particulars Form, I find that the defendants’ reliance on the Purchaser Particulars Form is misplaced.

The Side Letter to the OTP

The defendants also rely on a side letter that accompanied the OTP (the “Side Letter”), both of which Chen signed. The Side Letter contains a statement that reads:

As I noted at [45] in relation to the Purchaser Particulars Form, Chen never had sight of the OTP’s terms prior to 30 October 2018. By that time, Chen had already paid the Booking Fee on 25 October 2018 – in fact, he paid the Booking Fee in exchange for the OTP and the Side Letter. It is thus clear to me that the defendants’ reliance on the Side Letter is likewise misplaced.

The EDP Scheme and Chen’s further conditions

(1) The background

I now turn to the EDP Scheme, which I mentioned at [31] and [44] above. For context, an EDP Scheme – as its name suggests – is essentially an alternative payment scheme that affords the purchaser a longer window for exercising an option to purchase the property in question; the trade-off is a mark-up on the purchase price of the property. Whether an EDP Scheme is available – and if it is, its precise terms and conditions – may vary between developments.

Under the EDP Scheme offered by TG in respect of the Development, purchasers ordinarily had to pay:

(2) Chen’s further conditions

According to Ong, Chen decided at (or sometime shortly after) the Second Viewing to purchase the Property provided TG agreed to three of his requests:

Ong then says that “after several rounds of negotiations” between TG and Huttons’ staff, TG “substantially agreed to Mr Chen’s terms”. Specifically, TG agreed to Chen’s second and third request. As for the first, TG was prepared to offer Chen a 3% discount on the purchase price. This was, however, subject to Chen paying 10% of the purchase price upfront in exchange for the OTP (as opposed to the usual 1%). I will refer to this as the “Modified EDP Scheme”.

(3) The relevance of the EDP Scheme to the Occupation Condition and Occupation Representation

The defendants started from the position that the availability of an EDP Scheme was a consideration that weighed heavily on Chen’s assessment of the various properties he was introduced to. They submit that so far as the Property was concerned, Chen was thoroughly and repeatedly advised as to the terms of the EDP Scheme that TG offered. It was in that context that Chen would have learnt of the Occupation Condition (insofar as he was not already aware of it). That was the gravamen of Ong’s evidence in the extracts I reproduced at [31] and [44] above.

It was clear to me on the available evidence that Chen placed a premium on the availability of an EDP Scheme both in his search for a suitable property generally, and in deciding to purchase the Property specifically. I say so for two reasons.

First, Ong explained that Chen found the EDP Scheme attractive because he needed time to secure his permanent residency, which would in turn reduce the Additional Buyer’s Stamp Duty (“ABSD”) payable on the property. There is ample evidence to show that Chen’s priority was to reduce the ABSD he would have to pay, and that he intended to do so by securing Singapore permanent residency. Ong’s explanation as to why Chen placed a premium on the EDP Scheme appears to be externally consistent with other known facts, and I accept it as true.

Second, when questioned during cross-examination as to why he eventually decided to purchase the Property, Chen himself confirmed – perhaps somewhat reluctantly – that the EDP Scheme in fact contributed to his decision-making:

If the availability of an EDP Scheme was a consideration for Chen, one might infer that Chen would not have decided to purchase the Property unless he understood what TG’s EDP Scheme entailed. In this regard, I am mindful that it was Chen who sought to renegotiate the terms of the EDP Scheme offered by TG (see [50]–[51] above). Chen accepted on cross-examination that the Modified EDP Scheme was something that Ong negotiated and achieved on his behalf. Plainly, Chen understood enough about the EDP Scheme to have made counterproposals of his own.

Chen’s evidence (which I accept) is that he is not proficient in English and that he relied on Ong, Yishan, and (to a lesser extent) Tang in negotiating the transaction. If Chen depended on them for information and if he understood the EDP Scheme by the time he decided to purchase the Property (and I find that he did), it would follow that it is more likely than not that Ong, Yishan, and Tang did in fact properly explain the salient terms of the EDP Scheme to Chen.

It is of course true that (a) the general conclusion that the terms of the EDP Scheme were explained to Chen does not inexorably lead to (b) the specific conclusion that he was specifically apprised of the Occupation Condition. However, having regard to the inherent probabilities, I take the preliminary view that the Occupation Condition would in all likelihood have been explained alongside the other terms of the EDP Scheme (insofar as those terms were explained at all).

To frame the matter in another way, it is in my judgment unlikely that Ong and the others would have dutifully explained the other terms of the EDP Scheme – and even bargain with TG on some of them at Chen’s behest – only to omit reference to the Occupation Condition (or still worse, deceive Chen by fraudulently making the Occupation Representation).

The alleged confrontation between Chen and Ong

I now consider Chen’s evidence that he “furiously questioned Ong on the WeChat group chat” (see [28(a)] above). The messages themselves were not led in evidence, but Ong admitted on cross-examination that the confrontation as described by Chen in fact occurred:

I therefore accept Chen’s account of the confrontation as true, and that goes some way in showing that he genuinely believed he could move into the Property upon receipt of the OTP. At this point, it is useful to recall the real question at hand arising out of Chen’s pleaded case, which is whether Chen held that belief because Ong made the Occupation Representation. I must weigh that possibility against other likely scenarios, namely that (a) the Occupation Condition was explained to Chen, but he forgot or misunderstood it; and (b) the Occupation Condition was never explained but Chen assumed he could move in without Ong having made the Occupation Representation.

My finding set out at [61] above militates against scenario (a) because it is, in my judgment, unlikely that Chen would have misunderstood or forgotten a clear explanation of the Occupation Condition as otherwise, the confrontation would never have happened. However, that finding offers Chen little mileage in establishing that Ong made the Occupation Representation – that allegation is the foundation of Chen’s pleaded case, and it draws the evidential and legal line that Chen must cross if he is to succeed. My finding also says nothing about the probability of scenario (b) being true, and this head of Chen’s misrepresentation claim would fail even if scenario (b) is indeed true.

Conclusion

To summarise, for the purpose of determining if Ong had made the Occupation Representation, I place no weight on the Purchaser Particulars Form and the Side Letter. I also do not think that any individual witness’ evidence deserves greater weight than the others’. On the other hand, I have considered the circumstances surrounding the (Modified) EDP Scheme, as well as the confrontation between Chen and Ong. The inferences that can be drawn from the evidence in respect of those matters are limited and inconclusive at best. For all of that, the picture remains just as murky. Given the sparsity of the evidence and the limited usefulness of what is available, I find that Chen has not discharged his burden of demonstrating, on a balance of probabilities, that Ong made the Occupation Representation.

Even if Ong had made the Occupation Representation, I am not persuaded that Chen suffered any loss in reliance thereon

For completeness, I note that the only loss pleaded by Chen with respect to all his pleaded causes of action is a claim for the “sum of S$1,544,100 being 30% of the Sale Price” that was forfeited. This is material because even if I were to assume that Ong did make the Occupation Representation and that Chen did rely on it, there would still be no causative nexus whatsoever between Chen’s reliance on the Occupation Representation and his pleaded head of loss. Indeed, it is Chen’s evidence that:

As I noted at [20(d)] and [21(e)] above, proof of loss or damage flowing from the plaintiff’s reliance on the pleaded misrepresentation(s) is an essential ingredient of fraudulent and negligent misrepresentation claims. Were it necessary for me to decide the point, I would have concluded that this ingredient is also not made out in the present case (at least insofar as it relates to the Occupation Misrepresentation), with the result that Chen’s claim would fail in any event.

The Loft Representation

I turn to the next head of Chen’s misrepresentation claim. For ease of explanation, I reproduce below an annotated floorplan of the Property’s second floor that was used by Chen in these proceedings to illustrate his case:

As Figure 1 shows, a study is located on the second floor (the “Study”). In its unrenovated state, the Study would be enclosed by walls on all sides.

The show unit that Chen visited over the three viewings exhibited a renovated second floor that had a loft adjacent to the Study. That loft extended five square metres in floorspace. To construct that loft, the wall in the Study facing the living and dining area on the first floor would have to be removed and the flooring extended over the area marked on Figure 1 as the “VOID OVER LIVING AND DINING AREA”. It is marked out in Figure 1 in red lines as the “Developer’s Loft”, and I will refer to it accordingly.

Chen’s case

According to Chen’s pleaded case, Ong had told him that “[p]rior to completion of the purchase, [Chen] could construct a loft to extend the length of the study room by five metres starting from the inner wall of the study room”. I will refer to this as the “Loft Representation”. The loft described in the Loft Representation is marked out in Figure 1 in green lines over the Developer’s Loft and is labelled as the “Proposed Loft”, and I will refer to it accordingly.

Chen says that the Loft Representation was made to him as early as at the First Viewing. In his AEIC, Chen stated that:

He further contends that the Loft Representation was repeated to him at the Third Viewing.

In his Statement of Claim, Chen states that he engaged contractors to undertake the construction of the Proposed Loft “[i]n or about May or June 2019”. After the contractors inspected the Property, he found out that “it was not possible to extend the length of the study room by 5 metres, contrary to the [Loft Representation]”. The reason it was “not possible” to do so was not pleaded, and I will return to the significance of this shortly.

According to Chen, he called Ong and confronted him with the contractors’ news:

The defendants’ case

The defendants deny Chen’s suggestion that Ong had made the Loft Representation. They accept that Chen was told he could create a loft of five square metres – that was what the Developer’s Loft was intended to show. However, they reject Chen’s allegation that Ong had specifically told him that he was at liberty to construct the Proposed Loft.

However, a further nuance emerges from the evidence given by the defendants’ witnesses. Ong, Tang, and Yishan have all said the same thing: Chen was explicitly told that if he wished to construct a loft that was larger than five square metres, he would require the permission of the relevant authorities. This was in addition to their evidence denying that Chen was told outright that he could construct the Proposed Loft.

The preliminary issue of whether Chen’s pleaded case discloses a representation of fact that was untrue

As a preliminary point, it is not immediately clear to me from Chen’s Statement of Claim that the Loft Representation as pleaded is a representation of fact that is untrue.

The Loft Representation as framed by Chen in his Statement of Claim states that Chen “could construct a loft to extend the length of the study room by 5 metres starting from the inner wall of the study room” (see [68] above). In the particulars that follow, it is stated that:

Chen repeated this pleaded case in his closing submissions. Thus, on its face, Chen’s pleaded claim is that the Loft Representation was made despite it having been impossible to construct the Proposed Loft. As I noted at [70] above, nowhere in Chen’s pleadings is the nature of the alleged impediment or impossibility particularised.

There are only two sensible interpretations that can be given to the allegation that Chen subsequently “found out that it was not possible” to construct the Proposed Loft. The first and strictly literal interpretation is that it was physically or structurally impossible to construct the Proposed Loft – but that was not the position that Chen took at trial. Nor was any evidence led in support of such a contention.

The second (and, in my view, more likely) interpretation is that it was “not possible” to construct the Proposed Loft because Chen needed the relevant authorities’ approval(s) to do so – but that too is not strictly true on the evidence. Chen himself never took the position that the approval requirement itself rendered construction of the Proposed Loft impossible. Indeed, it was the defendants’ case that it was, in principle, possible to construct the Proposed Loft, subject to securing the necessary approval from the authorities. There was no evidence that Chen made any applications to the relevant authorities for the requisite approval, or even attempted to do so.

Looking past the Statement of Claim for the moment, Chen deposed in his AEIC that “[his] renovation contractor informed [him] that approval from the relevant authority would be required in order to construct a loft large enough”. This suggests that Chen’s real grievance was that Ong had made the Loft Representation without informing him that the relevant authorities’ approval(s) would be required. To that extent, Chen’s claim – or intended claim – was in truth one of misrepresentation by silence or omission. This is apparent from the following question that Chen’s counsel, Mr Christopher Chuah (“Mr Chuah”), put to Ong towards the end of the latter’s cross-examination:

However, if that was the case that Chen intended to advance, it was in my judgment not adequately pleaded. This deficiency in Chen’s case has not gone unnoticed by the defendants. In their closing submissions, the defendants have argued that:

In my judgment, there is nothing in Chen’s pleadings to put the defendants on notice that this part of his misrepresentation claim is premised on a misrepresentation by silence or omission – or, in other words, that Chen was alleging that Ong had made an actionable misrepresentation by the fact of his alleged non-disclosure of the approval requirement. This deficiency is, in my view, significant and has gone unrectified despite three rounds of amendments to Chen’s Statement of Claim. In my judgment, the deficiency is not a merely technical one – it goes to the very substance of Chen’s misrepresentation claim. As the Court of Appeal held in JTrust Asia Pte Ltd v Group Lease Holdings Pte Ltd and others [2020] 2 SLR 1256 (at [116]), “allegations of fraud or misrepresentation must be pleaded with utmost particularity” and this means that:

Ultimately, the defendants were entitled to meet Chen’s case as it was pleaded and on any reasonable interpretation of it, the Loft Representation was true. Insofar as Chen now says that the Loft Representation was false because it was incomplete, he seeks to advance an unpleaded (or at the very least, inadequately pleaded) case. In my judgment, this head of Chen’s misrepresentation claim has to fail for these reasons.

I am not persuaded on a balance of probabilities that Ong made the Loft Representation

Assuming that the conclusions I expressed at [81] above are wrong – and given the extensive evidence led and submissions made in relation to the Loft Representation – I will nevertheless set out below my conclusions on the matter, for completeness.

For the purposes of this analysis, I will read the Loft Representation as a statement by Ong that Chen could construct the Proposed Loft prior to completion of the purchase without also informing him that the approval of the relevant authorities would be required if he wished to do so. I proceed on this basis because it was never suggested by Chen that Ong’s representations extended to positive statements that Chen would not require any approvals from the relevant authorities.

Framed in that way, the question resolves itself into two parts:

(a) First, was the Loft Representation made?

(b) Second, was it disclosed to Chen before he paid the Booking Fee that if he wished to construct a loft that was larger than five square metres, he would first have to procure the relevant authorities’ permission?

To succeed, Chen had to persuade me that on a balance of probabilities, the answers to those questions are “yes” and “no” respectively. Having considered the evidence before me, I am of the view that Chen has failed to discharge that burden.

The steps taken by Chen and/or Ong Yi Song to procure the necessary approvals for the construction of a loft

At this juncture, I will briefly recount the sequence of events as they unfolded according to Chen:

(a) After Chen’s contractors looked into his request to construct the Proposed Loft, he was told that he could only proceed with the relevant authorities’ approval.

(b) He then confronted Ong with this information, whereupon Ong did not deny making the Loft Representation. Ong however clarified that “what is permitted was the construction of a loft to extend the liveable area by up to 5 square metres and not that the study room wall could be extended by 5 metres outwards”.

(c) Chen “asked Ong whether [he] could instead seek special approval from TG and/or the relevant authority to build the Proposed Loft”.

(d) To Chen’s dismay, Ong then told him that “approval may not be given and even if given, the approval process would take very long”.

There is an implication – although admittedly not a very clear one – in Chen’s AEIC that all of this transpired over a phone call.

At this juncture, I test Chen’s account against the objective evidence that is before me. In this regard, I refer to two text conversations between Chen and Ong. The first conversation took place on 30 May 2019:

As this conversation shows, Chen had enlisted the help of Yishan’s older brother, Mr Ong Yi Song (“Yi Song”), in constructing a loft for the Property. Notwithstanding Chen’s reference to multiple “contractors” in his Statement of Claim, it appears – at least so far as the evidence goes – that Yi Song was the primary (and perhaps the only) contractor that Chen liaised with in connection with his intended renovation works.

The second conversation took place on 3 June 2019. In this conversation, Chen relayed to Ong a set of requirements that Rhea had earlier communicated to Yi Song by an email sent on the same day (ie, 3 June 2019):

For the moment, I leave aside the suggestion in Chen’s AEIC that the events recounted by Chen (as set out at [86] above) all unfolded over a single phone call. On one hypothesis, the two text conversations track point (c) of Chen’s sequence of events (ie, when Chen discussed the procurement of approvals with Ong). This is because the first message in the conversation on 30 May 2019 refers to a “renovation application to the developer”. This implies that before Ong and Chen had that conversation, Chen already knew – or had been made aware – that some form of approval would be required for him to proceed with the renovation works he had in mind.

There was no evidence whatsoever to show that Chen had previously confronted Ong upon learning that the relevant authorities’ approvals were required (see [86(b)] above). Having regard to the tone of the text conversations, there was no indication that Chen was upset at having to seek approval to proceed with the renovation works. As I mentioned, Chen’s explanation was that the confrontation happened over the phone. Ong however denied that this phone call ever happened and pointed out that if Chen had indeed been upset, it did not show in the text conversations that followed:

There is also not a shred of evidence to substantiate the allegation that Ong later told Chen that “approval may not be given and even if given, the approval process would take very long” (or anything to a similar effect) (see [86(d)] above).

On another hypothesis, the two text conversations were concerned only with TG’s approval and not the relevant authorities’ approval (such as, for example, the Building and Construction Authority). Here, I refer to the emails between Yi Song and TG (which I alluded to at [88] above). On 7 June 2019 (which was four days after the second text conversation between Chen and Ong referred to at [88] above), Yi Song sent an email to Rhea asking, among other things:

Rhea forwarded this inquiry to two colleagues in TG by the name of Jave Hecita (“Jave”) and Ong Kai Hoe. Jave gave Rhea a response on 12 June 2019, which Rhea promptly forwarded to Yi Song on the same day. Relevant for present purposes is the part that reads:

As a starting point, it is striking that Yi Song considered it necessary to “clarify” if the proposed extension by three metres “is allowed to be done”. I accept that Yi Song might have been seeking confirmation that Chen could proceed with the proposed renovations. However, the way in which Yi Song’s question was framed equally suggests that he had hitherto been told nothing by Chen about the approvals that were required (or not required) in respect of the works Chen had in mind. If Ong had told Chen in affirmative terms that an extension by five metres could be carried out, one would assume that Chen would have conveyed the same to Yi Song.

I now consider the possibility that upon reading Jave’s response, Yi Song – and by extension, Chen – learnt for the first time that the relevant authorities’ approval would be needed if the proposed works were to proceed. On that premise, it would mean that all the events described by Chen (at [86] above) occurred after 12 June 2019. There is, however, simply no evidence of what was said and done post-12 June 2019.

Even if I were to assume that the events recounted by Chen occurred after 12 June 2019, certain aspects of Chen’s account do not gel with the available evidence. First, by that time, Chen had already begun taking steps (see [87] above) to seek TG’s approval and did not seem to have any qualms with seeking a professional engineer’s approval; there is nothing to shed light on why Chen would react so strongly upon finding out that he would also need the relevant authorities’ approval (as Chen says he did).

Second, I am mindful that in Jave’s response, he did not say that the authorities’ approval was required in respect of the proposed works. He only said that TG had no objections subject to “MCST approval and any authority approval needed for the proposal”. This non-committal answer by Jave weighs against any finding that it was upon reading Jave’s email that Yi Song or Chen first discovered that if the proposed works were to proceed, they would require the relevant authorities’ approval.

Third, there is no evidence whatsoever of Chen having asked Ong if he could procure the necessary approvals from the authorities; nor is there (as I indicated above at [91]) any evidence corroborating Chen’s case that Ong told Chen that “approval may not be given and even if given, the approval process would take very long”.

I am mindful that the available evidence paints an incomplete picture. Neither side had access to contemporaneous WeChat messages exchanged between them which would likely have shed some useful light on the issue, and which meant that there were significant gaps in the narrative. All that notwithstanding, Chen’s account of what happened after his contractor Yi Song inspected the Property is difficult to reconcile with the evidence that is available; to that extent, the evidential hurdle that Chen must surmount is raised.

The possibility that Chen confused or misheard “5 square metres” for “5 metres”

Chen says that after he visited the Development’s show units at the First Viewing, he inquired if he could construct a loft larger than the Developer’s Loft. His evidence is that the question was met with the first instance of the Loft Representation by Ong (see [69] above).

It is clear that when Chen conceived the idea of building the Proposed Loft – if he conceived that idea at all – he must have done so with the Developer’s Loft as a frame of reference. He visited the show unit and saw the Developer’s Loft for himself. Insofar as Chen was told anything about the size of the Developer’s Loft, in my judgment, he must have been told that it was five square metres in size – there is no reason to think that any other answer would have been given to that specific question.

The peculiarity of the Loft Representation (as pleaded by Chen) lies in its specificity (see [68] above). “5” is the magic number. Chen maintained in his AEIC and on cross-examination that Ong had told him that he could construct the Proposed Loft extending “5 metres” from the inner wall of the Study (see Figure 1 at [66] above).

Here, I return to the parties’ evidence and the inherent probabilities. If Chen had asked if he could construct a larger loft (as Chen maintains he did) and on the assumption that Ong was prepared to say anything (right or wrong) to please Chen, it would have sufficed for Ong to say that Chen was free to build a larger loft. There was, in my view, no rhyme nor reason for Ong to have fixed a limit at 5 metres from the inner wall specifically.

Weighing the unusual specificity of the Loft Representation against what Chen was probably told about the size of the Developer’s Loft, it suggests that there is an alternative and not implausible explanation for Chen’s avowed belief that he could build the Proposed Loft and it is this: Chen misunderstood what was said to him. This is also a possibility that I must account for in deciding if Chen’s misapprehension was caused by a false statement of fact that Ong had made dishonestly or recklessly.

In my view, there is in fact some evidence indicating that Chen himself accepted the possibility that he had misunderstood what he was told about the loft. Here, I reproduce a part of the Mandarin transcript of the First Recorded Conversation (which took place on 13 July 2020) and the accompanying certified translation. For context, the First Recorded Conversation relates to a phone conversation between Ong and Chen that took place on 13 July 2020, which Chen recorded without Ong’s knowledge:

On the face of the translation, Chen admits to the possibility that he and Ong had miscommunicated or otherwise misunderstood each other in relation to the amount of ABSD payable by Chen. However, the word “also” suggests that Chen was moving on to a separate topic – ie, the topic of the loft – and this in turn suggests that the matter of the loft was not something in respect of which there had been any miscommunication (at least, from Chen’s perspective).

In the course of cross-examining Chen during the trial, counsel for the defendants, Ms Sharon Lin (“Ms Lin”), suggested that the certified translation was not entirely accurate and invited the Court interpreter, who was interpreting Chen’s evidence on the stand, to provide her translation of what Chen had said based on the transcript of the conversation. Mr Chuah objected to the issue being raised for the first time during Chen’s cross-examination. Given the potential relevance of this evidence and materiality surrounding the accuracy of the translation of that particular part of the transcript, I allowed the Court interpreter to review that part of the transcript, provide her translation, and for Ms Lin to put her questions to Chen:

When the Court interpreter was invited to repeat her translation, she prefaced her response by saying that she was not privy to the context of the entire conversation and could therefore only offer a literal translation of the spoken words. With that in mind, she provided the following translation:

I am mindful that the defendants only disputed the accuracy of the certified translation for the first time during Chen’s cross-examination. However, the Court’s task is to deduce the meaning – and therefore the weight – to be ascribed to the evidence before it, and here we are concerned with the meaning of words Chen himself used in the First Recorded Conversation. In this connection, the Court is entitled to consider competing translations (including those supplied by court interpreters): Mann Holdings Pte Ltd and another v Ung Yoke Hong [2018] SGHC 69 at [81]–[84].

In any event, there was no question of me disregarding the certified translation entirely and it is unnecessary for me to decide if one translation should be preferred over the other. The fact of the matter is that there exists an alternative interpretation of the part of the conversation between Chen and Ong that (a) is not inherently unbelievable; and (b) if correct, would disclose a prior concession by Chen that he could have misunderstood what he was told in relation to the loft. To that extent, the contents of the First Recorded Conversation lend credence to the hypothesis that Chen may have misunderstood what he had been told. This, in turn, makes it less likely that Chen’s misapprehension was induced by the Loft Representation.

Returning to Chen’s evidence at trial, this was Chen’s response during cross-examination to Ms Lin’s suggestion to Chen that he could have misunderstood what Ong said to him:

There are two points to note about Chen’s responses to Ms Lin’s questions. First, Chen says that if he misheard Ong, Ong would have “corrected [him] on the spot but he did not”. That, in my view, is not a complete answer to Ms Lin’s hypothetical – if Chen misunderstood what Ong had told him, Ong would only correct Chen if Chen repeated to Ong what Chen thought was told to him by Ong. This brings me to my second observation, which is that Chen goes on to insist that the Loft Representation was made to him. His evidence is that there was a discussion in which the “sixth cove light” was used to visualise a distance of 5 metres. Leaving aside the fact that this aspect of Chen’s evidence is uncorroborated, it goes to show that Chen wholly rejects any notion of him having misunderstood what he had been told.

Overall, the available evidence points, in my view, to a real possibility that Chen misunderstood what Ong had said about constructing a loft on the second floor of the Property. Chen rejects this notion, but he has otherwise adduced no evidence to demonstrate its improbability. It is, to that extent, harder to accept Chen’s case that Ong told him he could construct the Proposed Loft without also informing him of the approvals that would be required.

Yi Song’s Mock-up

At trial, Chen relied heavily on a mock-up of the Proposed Loft that Yi Song had apparently prepared for Chen (the “Mock-up”). For ease of reference, the Mock-up is annexed to this judgment as Annex A. On Chen’s case, the Mock-up shows that Chen in fact intended to build a loft which, together with the Study, would extend over a “space of approximately 4.5m by 3.162m”.

Very little is known or understood about the Mock-up. Yi Song was not called as a witness to explain the Mock-up and the circumstances in which it was prepared; while Chen had initially applied for a subpoena to be issued against Yi Song, that application was eventually withdrawn at the start of the trial. The authenticity of the Mock-up was not challenged and the document was admitted into evidence, but its contents remained hearsay. More importantly, even if I accept Chen’s explanation of what the Mock-up illustrates – ie, a loft that extends approximately 5 metres from the inner wall of the Study – the Mock-up would still shed no light whatsoever on the material issues at hand. Let me explain why.

It was Chen’s evidence in cross-examination that Yi Song visited the Property with him “in or around end of May 2019 to the beginning of … June 2019”. The Mock-up was presumably prepared around that time, and it would therefore have been contemporaneous with the text conversations set out at [87]–[88] above (which took place on 30 May 2019 and 3 June 2019).

With that context in mind, the Mock-up only reinforces a possibility that has already been established – namely, that in or around late-May/early-June of 2019, Chen was taking active steps to proceed with his plans to construct the Proposed Loft. The Mock-up does not lend itself to any meaningful inferences as to (a) whether Ong ever made the Loft Representation and, if he did; (b) whether Ong had told Chen before Chen paid the Booking Fee that the relevant authorities’ approval would be required in the event that he decides to construct a loft larger than five square metres. For this reason, very little assistance can be derived from the Mock-up.

Conclusion

Overall, I am not persuaded, on the balance of probabilities, that Ong made the Loft Representation to Chen. On the one hand, there is a total lack of objective and/or contemporaneous evidence to corroborate Chen’s evidence that Ong had made the Loft Representation; on the other hand, there is some evidence, although also far from complete, that gels more with the defendants’ theory – and which I accept as probably true – that Chen may have misunderstood what he had been told by Ong. As mentioned above at [34], it is Chen’s burden to prove his positive case to the requisite standard of proof. This he has failed to do.

While it is strictly not necessary for me to decide if the defendants have established their case, based on the totality of the evidence I have considered above, it is, in my view, more likely than not that Chen was told prior to payment of the Booking Fee that (a) the Developer’s Loft was five square metres in size, and that (b) he would require the relevant authorities’ approval if he wished to construct a loft larger than that. On either count, Chen’s claim pertaining to the Loft Representation cannot succeed. For these reasons, I dismiss Chen’s misrepresentation claim insofar as it relates to the Loft Representation.

The Resale Representation

The third misrepresentation that Chen relies on in this action is Ong’s alleged representation that:

I will refer to this as the “Resale Representation”.

Chen further pleads that:

As with the other alleged misrepresentations, the defendants deny that Ong had ever made the Resale Representation. The defendants further rely on the Court of Appeal’s decision in Tan Chin Seng and others v Raffles Town Club Pte Ltd [2003] 3 SLR(R) 307 (“Tan Chin Seng”) (at [12] and [21]) and submit that even if the Resale Representation was made, it was either a representation of intention or belief (and not fact), or a contractual promise in substance.

Given that the Resale Representation forms part of Chen’s claim pleaded in misrepresentation, the relevant question is whether it was a representation of Ong’s intentions or beliefs at the time it was made. In my judgment, the answer to that question must be ‘yes’. A representation by Ong that he “would be able to re-sell the Property without much difficulty” is clearly a representation that speaks to Chen’s estimation of what he could achieve at some later point in time.

It is trite that implicit in a representation of one’s intentions or beliefs is an underlying representation of fact, namely that the maker (a) genuinely holds the relevant intention or belief; and (b) has objectively reasonable grounds for holding the relevant intention or belief: Tan Chin Seng at [12]–[13] and [16]–[17]. There was no evidence led nor submissions made to show that insofar as Ong in fact made the Resale Representation, he either did not genuinely believe it to be true or had no reasonable grounds to entertain that belief. Indeed, the pith of Chen’s case was that Ong’s subjective beliefs were irrelevant because he effectively gave Chen an undertaking and guaranteed the re-sale of the Property – I will turn to this point shortly when I consider Chen’s alternative claim in contract. For present purposes, it suffices to say that Chen’s misrepresentation claim premised on the Resale Representation is without merit and I have little hesitation in dismissing it.

Chen’s claim for breach of contract

I turn now to Chen’s contractual claim against Ong. This claim was pleaded in two parts. The first – which Chen referred to as the “Oral Understanding” – relates to events prior to Chen paying the Booking Fee in return for the OTP. Specifically, it was pleaded that:

The second part – which Chen referred to as the “Oral Agreement” – relates to events said to follow Chen’s decision to sell the Property:

Chen’s Statement of Claim indicates that he is claiming for breach of the putative Oral Agreement.

The parties’ positions

Chen says that from as early as the First Viewing, he had expressed to Ong his concerns about the consequences of failing to exercise the OTP before it lapsed. According to him, Ong had assuaged his concerns by representing that he would sell the property before the deadline if Chen decided not to see the purchase through:

This assurance was later repeated at the Third Viewing when “Ong assured [Chen] yet again that in the event that [Chen decided] not to continue with the purchase in the next 2 years, he will be responsible to get the Property sold for [Chen].”

As it turned out, Chen “made a final decision not to proceed with the purchase of the Property and requested Ong sometime in July 2019 to sell it at the earliest opportunity”. Ong attempted – unsuccessfully – to locate a buyer for the Property. In the premises, the 30% that Chen had paid was forfeited on 30 October 2020.

The defendants’ position is simple. Ong never made any promises in connection with the re-sale of the Property when Chen expressed his decision to let go of the Property (or at any time thereafter). The defendants do not dispute that Ong took steps to help Chen on-sell the Property, but their case is that Ong had only assisted Chen out of goodwill.

The defendants also say that even if a contract was formed between Ong and Chen, it certainly “did not impose any obligation or duty on [Ong] to ensure the sale of the Property at a predefined price within a specified timeframe”. The defendants vigorously reject the contention that Ong had promised that an on-sale would materialise.

I am not persuaded that the Oral Agreement was concluded between Ong and Chen

There is no document that purports to record or evidence the Oral Agreement. I am called on by Chen to infer the existence of the Oral Agreement. In my judgment, the evidence – or rather, the abject lack thereof – makes it impossible to do so. In fact, the evidence that is available militates against the existence of the putative agreement.

Here, I refer to the Third Recorded Conversation, which relates to a phone conversation between Ong and Chen that took place on 22 September 2020 (which Chen also secretly recorded). It clearly shows that as of that date, Chen and Ong were still strategising with a view to achieving the sub-sale and Chen was considering the discount he was prepared to offer on the Property:

Later in the same conversation, the discussion turns to the agents’ commission payable on the sub-sale:

This plainly indicates that there was no prior agreement between Chen and Ong as to the compensation the latter could expect in return for his services; indeed, the parties still had different expectations at the time the conversation took place.

Overall, the weight of the evidence makes it impossible for me to say that the Oral Agreement was ever concluded; when it was concluded; or that there was any consensus between Chen and Ong as to the terms of the purported Oral Agreement. All of this militates against any finding being made that Chen or Ong had made an offer on the terms set out at [125] above which Ong or Chen respectively then accepted. It also demonstrates such uncertainty of terms, which itself erodes the very basis of the Oral Agreement.

In addition to the foregoing, I add that it is inherently difficult to believe that a real estate agent would promise (or undertake) to secure a buyer for a property at a defined price-range and within a specified period of time – all in return for “[c]ommissions of 2%”, which pales in comparison to Ong’s exposure under the alleged Oral Agreement. On cross-examination, Ong took the position that:

On that basis, Ong categorically rejected Mr Chuah’s suggestion that he had promised to sell the Property “within 3 to 6 months”. Ong explained that “3 to 6 months” was his estimation of how long it would take to do so – an estimation that was only given in response to Chen’s inquiries on the matter:

Ong’s explanation is, in my view, consistent with what was said between him and Chen during the Third Recorded Conversation:

The inherent unlikelihood of Ong agreeing to such uncommercial and onerous terms must be placed on the scales in deciding if the Oral Agreement was ever concluded. I also find it more likely than not that when Ong spoke about the on-sale materialising within “3 to 6 months”, he was only offering an estimate of how long it would take to sell the Property, and not an affirmative undertaking to procure an on-sale within that time.

Having regard to the lack of positive evidence pointing to the existence of the Oral Agreement or what its alleged terms were – and the existence of evidence pointing in the opposite direction – I also dismiss Chen’s claim for breach of contract.

Chen’s claim in negligence

Chen’s pleaded claim in tort was that Ong owed a duty of care to Chen as a “duly licensed salesperson”, and that “[w]rongfully and in breach of his duty of care, [Ong] had made the said Representations to [Chen] fraudulently and/or negligently with a motivation for his personal gains.”

The gravamen of this claim is that Ong had made various misrepresentations in breach of his duty of care in tort. In my judgment, this claim is duplicative of Chen’s claim in negligent misrepresentation, which I have dismissed in toto. On that basis, I also dismiss this alternative claim in tort.

Chen’s claim for breach of statutory duty

I turn now to Chen’s claim for breach of statutory duty. Specifically, Chen claims that Ong has:

As a preliminary matter, the defendants resist this claim on the basis that Chen has no private right of action under the Estate Agents (Estate Agency Work) Regulations 2010 (the “Regulations”) read with its authorising act, which is the Estate Agents Act 2010 (2020 Rev Ed) (the “EAA”). If the defendants are correct on this point, then whether Ong in fact breached his statutory duties is moot.

I note at the outset that Chen has not specified in his pleadings the relevant statutory provisions that he seeks to rely on. The most that was given by way of specifics is the allegation in the Statement of Claim that:

Leaving that aside, it was not seriously argued by Chen that there is anything in the EAA or the Regulations that expressly confer upon him a private right of action in respect of Ong’s putative breaches of statutory duty. Chen instead relies on the case of Loh Luan Choo Betsy (alias Loh Baby) (administratrix of the estate of Lim Him Long) and others v Foo Wah Jek [2005] 1 SLR(R) 64 (“Loh Baby”) to argue that his right of action is implied in the EAA and/or the Regulations.

In Loh Baby, Judith Prakash J (as she then was) endorsed the following summary of the relevant principles (at [25]), which I gratefully adopt:

The present inquiry therefore proceeds in two stages. First, Chen must persuade me that (a) Ong’s statutory duties were imposed for the protection of a “limited class of the public” to which Chen belongs; and (b) Parliament intended to confer on members of that class private rights of action in respect of breaches of those duties.

Accordingly, Chen’s case is that:

For the reasons that follow, I am unable to agree with Chen.

Ong’s statutory duties were not imposed for the protection of a “limited class of the public” to which Chen belongs

To make good his position that the EAA was enacted to protect “real estate purchasers” as a limited class of persons, Chen relied on the speech by Mr Mah Bow Tan (who was the then-Minister for National Development) (the “Minister”) at the Second Reading of the Estate Agents Bill on 15 September 2010. In this regard, Chen cited the following parts of the Minister’s speech in his closing submissions:

In my judgment, the Minister’s speech in fact contradicts the case that Chen seeks to advance. As a starting point, the EAA polices the conduct of “estate agency work”, which s 3(1) EAA defines in the following terms:

The EAA makes no distinction between the types of properties (eg, private or public, commercial or residential) or dealings therein (eg, sales, purchases, or leases). The EAA is ultimately concerned to regulate the conduct of estate agency work in order to protect all persons relying on estate agents in dealing with property. The extracts from the Minister’s speech reproduced at [151] above plainly evinces that intention. The Minister also referred in his speech to the prevalence of home-ownership (and, by extension, estate agency work) as giving impetus to stricter regulation:

It is therefore obvious to me that Parliament regarded the problem as one that afflicts (or may afflict) a sizeable demographic and it would, in my judgment, be a misuse of language to describe such a wide demographic as a “limited class” of persons that the EAA was intended to protect.

The better view is that the EAA was enacted to protect the public as a whole, and here I am guided by Lord Browne-Wilkinson’s observations in the English case of X (Minors) v Bedfordshire County Council [1995] 2 AC 633 (at 731–732) (which Prakash J referred to in Loh Baby at [25]):

For this reason, Chen’s case fails at the first step of the analysis.

It was not Parliament’s intention for private individuals to have rights of action under the EAA or the Regulations

I also state for completeness that even if I were to assume that Chen belongs to a “limited class” of persons that the EAA was intended to protect, I am unconvinced by the argument that Parliament intended to confer any private rights of action upon that class.

Although Parliament’s ultimate objective may have been to protect the public at large against “unscrupulous practices by errant estate agents”, the sole mechanism by which the EAA achieves that aim is the direct regulation of estate agency work. In his speech to Parliament, the Minister described the EAA as “[putting] in place a robust legislative and regulatory framework to better protect consumer interest and raise the professionalism of the industry”. I also note that the EAA, by its long title, is explicitly described as “[a]n Act to establish an enhanced framework for the regulation of real estate agents and their salespersons and to form a Council for Estate Agencies”. In short, the EAA brings the force of law to bear on estate agents, but otherwise says nothing about the position of aggrieved clients. I do not therefore think that Chen’s arguments can be supported by recourse to the overarching objectives of the EAA.

I am fortified in this view by the enforcement mechanisms that are expressly provided for under the EAA:

(a) As a starting point, s 49(1) EAA allows for complaints to be lodged to the Executive Director – ie, the chief executive of the Council for Estate Agencies (the “Council”) – who must then refer the complaint to the Council;

(b) Section 49(4) EAA provides that the Council may thereafter refer the matter for investigation pursuant to s 50 EAA “if it is of the opinion that there is a sufficient case for investigation”;

(c) Section 49(6) empowers the Council to impose a financial penalty not exceeding $5,000.00, or to censure the errant estate agent/registered salesperson;

(d) The Council may alternatively refer the matter to a Disciplinary Committee if it considers it appropriate, pursuant to s 49(11) EAA; and

(e) Under s 52 EAA, the Disciplinary Committee is empowered to mete out punishments that include admonitions/reprimands, financial penalties, and suspensions/revocations of licenses.

Apart from the enforcement measures I have just described, the EAA also creates various criminal offences punishable by fines or imprisonment (eg, performing certain acts without a valid license; giving false or misleading information in registering for or renewing one’s license).

Separately, the Regulations also expressly provides for specific enforcement mechanisms. The First Schedule to the Regulations is entitled “Code of Ethics and Professional Client Care”, and the Second Schedule is entitled “Code of Practice for Estate Agents”. Paragraphs 3 of both Schedules are identical:

In my view, the overall scheme of the EAA and the Regulations plainly shows that Parliament intended for the enforcement of estate agents’ duties to be within the purview of specialised bodies formed for that specific purpose. It offers aggrieved clients an avenue for lodging complaints that will then be acted upon by the appropriate body. Importantly, however, the steps that follow from those complaints are matters within the prerogative of the responsible body. The entire procedure is governed by clear and elaborate statutory provisions. The penalties that may be handed down are disciplinary or quasi-criminal (if not actually criminal) in nature. Against that backdrop, I find it impossible to say that Parliament intended for powers of enforcement to concurrently reside in the hands of private individuals by way of rights of private action. Chen’s claim for breach of statutory duty therefore also stumbles at the second step of the analysis.

In any event, Chen cannot prove that his pleaded losses were caused by Ong’s alleged breaches of statutory duty

Before moving on, I add that even if (a) Ong breached certain provisions of the EAA or the Regulations by failing to “[explain] to [Chen] the meaning and consequence of the provisions under the OTP before requesting [Chen] to sign the same” (see [145] above) and (b) Chen has a private right of action in respect of those breaches, (c) it is still incumbent on Chen to demonstrate that he suffered loss in consequence of the hypothesised breaches.

As I noted at [64] above, the loss that Chen has pleaded and particularised relates to the “sum of S$1,544,100 being 30% of the Sale Price” that was forfeited. Taking Chen’s pleaded case at face value for the moment, I am unable to see how that loss would have been avoided had Ong dutifully explained to Chen the terms and implications of the OTP:

(a) The OTP had nothing to say about Chen’s liberty to construct a loft on the second floor of the Property.

(b) The OTP spelt out the Occupation Condition – which Chen says he learnt of only after he paid the Booking Fee – but as I observed at [64] and [28(d)] above, it was Chen’s evidence that he was content to proceed with the arrangement negotiated for by Ong anyway on account of Yishan and because “the next 20% would have to be paid sooner or later”.

(c) Chen knew that under the terms of the OTP, the sums he had paid would be forfeited in the event that he failed to complete the transaction – it is for precisely that reason that Chen now places considerable emphasis on Ong’s alleged affirmations in respect of the on-sale of the Property (ie, the Resale Representation and the alleged Oral Agreement). Even if I were to accept Chen’s bare assertion that he only learnt of the forfeiture mechanism “[o]n or about 20 December 2018, [when] the keys to the Property were handed over to [him]”, the fact of the matter is that still he went on to pay a further 15% of the purchase price between 1 April 2019 and 7 May 2019.

I also note Chen’s allegation that “by way of the said Representations … [Ong] had failed to act with honesty, fidelity and integrity in accordance with the professional standards set out in the Code” (see [145] above). It suffices to say at this juncture that Chen has failed to prove that any of the pleaded misrepresentations were in fact made to him by Ong. On that basis also, this part of Chen’s claims for breach of statutory duty must fail.

Conclusion

To summarise, I am not at all persuaded that Chen has any private right of action in respect of Ong’s alleged breaches of statutory duty. Chen has failed to demonstrate that the relevant statutory provisions were enacted to protect a limited class of the public to which Chen belongs and even if that were the case, I am not convinced that Parliament intended for those provisions to confer private rights of action. In any event, Chen has failed to establish a causative nexus between his pleaded losses and Ong’s alleged defaults. Accordingly, I dismiss Chen’s claim for breach of statutory duty.

Whether Huttons can be held vicariously liable for Ong’s defaults

In light of my decision that Chen has failed to make out any of his claims against Ong, it follows that there is also no basis upon which Huttons can be held vicariously liable. In the premises, it is unnecessary for me to delve into the precise nature of the legal relationship between Ong and Huttons, or Huttons’ role vis-à-vis the Development. Accordingly, Chen’s claims against Huttons are also dismissed.

Conclusion

For all the foregoing reasons, Chen’s claims against Ong and Huttons are dismissed entirely.

Annex A: The Mock-up