General Division of the High Court · Decided 14 August 2025

The buyers' claims failed; trying to rent out units affirmed the contracts

Cheung Teck Cheong Richard and others v LVND Investments Pte Ltd

[2025] SGHC 161Case no. Suit No 204 of 2020

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Introduction
[1] On the corner of Macpherson Road and Aljunied Road, two commercial developments occupy the space formerly known as the Windsor Hotel. The first is the retail shopping centre, Macpherson Mall at 401 Macpherson Road (the “Development”). The second is a hotel, the Ibis Styles Singapore on Macpherson (“Ibis Hotel”). The former is the subject of this dispute.
[2] The plaintiffs had all purchased retail shopping units at the Development. When the Development was completed and the plaintiffs moved into their units, they allege that they had not been given what they bargained for. They accused the defendant of misrepresentation. The defendant claims that the plaintiffs suffer from a case of buyers’ remorse and sought to place blame on the defendant for their own poor decisions.
[3] Prior to the trial of this action, I was invited by the plaintiffs for a site visit to the Development so that I could view their complaints (the “Site Visit”). I accepted this invitation and attended for a site visit (at which the defendant was also present) on 7 October 2024.
Facts
The plaintiffs
[4] While there were initially 16 plaintiffs, a number of plaintiffs discontinued their claims at various points in this suit. The seven remaining plaintiffs are:
(collectively, the “remaining plaintiffs”).
Background to the dispute
[5] The Development was developed by the defendant, LVND Investments Pte Ltd (“LVND”). The core of this dispute centred around the sales process and documentation put forward by LVND and that is where I will start in describing the background.
[6] Sometime in 2013, LVND commenced its marketing efforts to sell the shop units in the Development. LVND engaged Huttons Asia Pte Ltd (“Huttons”) and Savills Singapore Pte Ltd (“Savills”) to market the Development at LVND’s sales gallery at 401 Macpherson Road (the “Sales Gallery”).
[7] At that time, the construction of the development had not been completed. The plaintiffs’ evidence was that the former hotel, Hotel Windsor, had not been demolished. The structure of the former Hotel Windsor remained in place. The Ibis Hotel and the Development were designed around and arose out of the existing structure.
[8] For the purposes of this dispute, two types of shop units were sold by LVND. The typical shop units comprised of a demarcated space within the floor area of the Development. Of the units purchased by the remaining plaintiffs, units #01-19, #02-04 and #02-20 were these typical shop units. Some special shop units were also sold, and these comprised not just the demarcated space within the floor area of the Development but also a separate advertising signage space. This advertising signage space was located on the outside of the Development and allowed the proprietor of that unit to use that advertising space for its own purposes or to rent it out to third parties albeit the extent to which this was allowed was disputed by the remaining plaintiffs. Of the units purchased by the remaining plaintiffs, units #03-01 and #03-02 were these special shop units.
[9] The Development did not use a central air-conditioning system. This meant that each shop unit had its own air-conditioning system. For both types of shop units, the air-conditioning indoor unit was located in the shop unit itself. The air-conditioning condenser was located elsewhere in the Development on identified air-con “ledges” (the “AC ledges”). This also emerged to be a subject of significant argument between the parties.
Brochures
[10] LVND issued two brochures to market the shop units of the Development. The first brochure (which was the one provided to all of the remaining plaintiffs save for the third plaintiff) was issued on or around July or August 2013 (the “Brochure”).
[11] The Brochure provided information to potential purchasers on, inter alia, the floor plans of the basement to the third storey of the Development. The “Area” of the units was set out in square feet against the unit number of each shop unit on a floor in a table next to the floor plan. Footnotes at the bottom of each page stated that the “[u]nit area includes air-con ledge [sic]”, save for select units which either included “air-con ledges and loft’s voids [sic]”, or “air-con ledges, advertisement panel ledges and advertisement panel voids”. Unlike in later versions of the Brochure, the location of the AC ledges was not indicated in the floor plans. A copy of the second storey floor plan as set out in the Brochure is replicated here as an illustration.
[12] The Brochure contained illustrations of the Development. The disclaimer “Artist’s Impression” was included at the bottom-right or bottom-left corner of such illustrations. The last page of the Brochure included a disclaimer that “[w]hile every reasonable care has been taken in the preparation of this brochure, the developer and its agents cannot be held responsible for any inaccuracies or omissions. All statements are believed to be correct but shall not be regarded as statements or representations of facts”.
Option to Purchase and Side Letter
[14] The parties disagreed on whether the Side Letter had to be signed before a purchaser would be issued with the OTP for their unit, or whether the OTP was issued first, and the Side Letter was provided after. I shall deal with this issue at [107] below.
[15] For now, it suffices to note that the Side Letter consisted of a cover letter (the “Cover Letter”), as well as various enclosures. The Side Letter and the documents comprising the sale and purchase agreement for each unit (“SPA”) formed the subject of substantial arguments between the parties so I will summarise the contents of the Side Letter and the documents comprising the SPA below.
(1) Cover Letter
[16] The Cover Letter stated that it “hereby enclosed the following”:
(collectively, the “Annexes”).
[17] The Cover Letter also contained LVND’s track record. LVND disclosed that it had “not carried out and completed any housing or other development project(s) in Singapore”. This section of the Cover Letter also included a table of the housing or other development project(s) in Singapore that had been completed and carried out by LVND’s related corporations.
[18] Finally, the Cover Letter informed purchasers that “[a] copy of the Schedule of Strata Units [or amended Schedule of Strata Units) for the Housing Project [was] available for [their] inspection at the [Sales Gallery], prior to [their] payment of the booking fee”.
[19] Purchasers were to acknowledge receipt of the Side Letter prior to making payment for the booking fee for the grant of the OTP by signing the “Purchasers’ Acknowledgment” portion of the letter.
(2) Annexes
[20] Not all the Annexes in the Side Letter were relevant to the dispute (or the subject of dispute themselves). As such, I will only summarise the relevant Annexes.
(A) Annex C
[21] Annex C contained the “Specifications of the Unit”. The notes to the “Specifications of the Unit” included a section on “Advertising Signage” and these referenced the special shop units with advertising space (see above at [8]). This section stated that “[a]ll advertising signage are accessory lots and should only be static advertisements”. The section titled “AC Ledges” also noted that “[t]he term of aircon ledge or aircon yard should be referenced to what was shown on the approved Building Plan”.
[22] Annex C also included a “Description of Building Project”, which stated in its notes that:
(B) Annex D
[23] Annex D would contain the “unit plan”, which was the floor plan and location of the relevant unit. This floor plan, like the floor plans in Brochure 2, also set out the location of air-con ledges on that floor. The small print at the bottom of the floor plan noted that “FLOOR AREA IS INCLUSIVE OF AIR CON LEDGE EXCEPT … UNITS (#03-01, #03-02 & #03-03) INCLUDE AIR CON LEDGE, ADVERTISEMENT PANEL LEDGES AND ADVERTISEMENT PANEL VOIDS”. The small print also stated that “AIR CON LEDGES ARE LOCATED ON 2ND,3RD,5TH,6TH STORY AND ROOF”.
[24] Where the relevant unit also came with an advertisement signage, Annex D also included a plan of the advertisement signage. This plan contained an isometric diagram which set out the dimensions of the advertisement signage (the following example is from Annex D of the Side Letter for unit #03-02):
[25] A diagram showing the location of the advertisement signage (the following example is from Annex D of the Side Letter for unit #03-02) was also provided:
[26] The plans in Annex D each contained an acknowledgment of receipt, which purchasers were required to sign.
(C) Annex E
[27] Annex E spelt out the estimated floor area of the relevant unit. This estimated floor area was categorised into the different components of the unit – ie, “Unit Size”, “Air-conditioner ledges” and, where applicable, “Advertising Spaces (ledge and void)”. Unlike the areas in the Brochures, which were in square feet, the areas in Annex E were in square metres.
[28] Annex E also contained an acknowledgment of receipt for purchasers to sign.
[29] There was a heated debate between the parties on whether Annex E was actually included in the Side Letters provided to the plaintiffs. I will deal with this below at [119]–[125].
(D) Annex G
[30] Annex G contained the amendments to be made to the prescribed SPA form.
[31] Amongst other things, it noted that a new clause on “AC Ledges” would be inserted into the SPA. This clause stated that “[a]ll AC ledges at roof terrace (open to sky) shall be free from any obstruction and/or storage” and that “[d]emarcation for each individual AC ledge will be provided”.
[32] Annex G also set out notes on “Advertising Signage” and “Air-con Ledges” that would be inserted into the First Schedule of the SPA form. The note on advertising signage stated that “[a]ll advertising signage are accessory lots and should only be static advertisements”. The note on “Air-con Ledges” stated that “[t]he term of aircon ledge or aircon yard should be referenced to what was shown on the approved Building Plan”.
S&P Package
[33] Within 14 days from the date of the OTP, LVND’s lawyers would issue (pursuant to cl 2.1 of the OTP) a copy of the SPA for execution, alongside a CD-ROM containing a package of documents relating to the Development and a cover letter (the “CD-ROM”) (collectively, the “S&P Package”). Thereafter, the purchaser would have three weeks from the date of receipt of the S&P Package to exercise the OTP and execute the SPA.
[34] Parties disagreed on whether the CD-ROM was included in the S&P Packages sent to the plaintiffs or their solicitors. Based on the evidence, the CD-ROM did not occupy a particularly clear space within the context of the parties’ contractual relationship. The CD-ROM was referred to in the cover letter of the S&P Package as containing documents “for your attention”. It was not explicitly stated in the cover letter or in the SPA that the documents contained in the CD-ROM would form part of the contract between the parties. However, the SPA referenced certain documents contained in the CD-ROM, meaning that such documents were incorporated by reference (see below at [44]).
(1) CD-ROM
[35] The CD-ROM contained the following documents:
(a) title deeds relating to the parent land lot(s) on which the Development was comprised;
(b) grant(s) of Written Permission and an e-mail dated 18 July 2013 from URA;
(c) notice(s) of Approval of Building Plans;
(d) the letter from the Comptroller of Property Tax approving the official address of the Development;
(e) the letter from the Street and Building Names Board approving the English name of the Development, and an e-mail from URA dated 17 July 2013;
(f) the Registered Surveyors’ Certificate on the area of the Development;
(g) the letter from the Commissioner of Buildings approving the amended schedule of strata units for share value allotment of the Development; and
(h) the letter from the paramount mortgagee relating to consent and release.
[36] In particular, the letter from the Commissioner of Buildings included the approved amended schedule of strata units (the “Schedule of Strata Units”). The Schedule of Strata Units listed all the units of the Development, and in relation to each unit, stated the total strata area of the unit, including the size and location of the air-con ledges and advertisement signage (where applicable).
[37] Similarly, the Registered Surveyors’ Certificate also listed the total strata areas of the unit, which included a breakdown of the areas of the shop, the air-con ledges, and the advertisement signage (where applicable).
(2) SPA
[38] The SPA consisted of:
(a) the main body of the SPA and the (First) Schedule;
(b) a Second Schedule, which set out the approved amendments to the standard form SPA;
(c) Annexure A and B, which were the second storey floor plan and third storey floor plan respectively;
(d) Schedule A, which set out restrictions on use and enjoyment;
(e) Schedule B, which contained the transaction particulars as well as the signature block for the SPA as a whole; and
(f) a to-scale diagrammatic sketch plan of the Development as well as the respective units (including the applicable accessory lots).
[39] In relation to the location and description of the air-con ledges, cl 27 of the SPA (inserted by operation of paragraph 17 of the Second Schedule of the SPA) provided that “[a]ll AC ledges at roof terrace (open to sky) shall be free from any obstruction and/or storage” and that “[d]emarcation for each individual AC ledge will be provided”.
[40] Similarly, paragraph l of the notes in the First Schedule of the SPA (inserted by paragraph 18 of the Second Schedule of the SPA) stated that “[t]he term of aircon ledge or aircon yard should be referenced to what was shown on the approved Building Plan”.
[41] In relation to the advertising ledges, paragraph (k) of the notes to the First Schedule of the SPA (inserted by paragraph 18 of the Second Schedule to the SPA) stated that “[a]ll advertising signage are accessory lots and should only be static advertisements”.
[42] The SPA also contained the following information regarding the strata area of the respective unit:
(a) Annexures A and B of the SPAs contained notes stating that “FLOOR AREA IS INCLUSIVE OF AIR CON LEDGE”;
(b) Schedule B of the SPA provided at paragraph 6 that “the Shop on the [X] storey(s) of the Building, compris[es] an estimated floor area of [X] square metres (including Ac Ledge as Accessory Lot, Void, Ac Ledge, Advertisement Signage as Accessory Lot (where applicable) as shown in the registered land surveyor’s certificate on strata area)”; and
(c) the to-scale diagrammatic sketch plan of the relevant unit and its accessory lots.
[43] As an example, the diagrammatic sketch plan included in the SPA for unit #03-02 is as follows:
[44] Schedule B of the SPA also incorporated the Registered Surveyors’ Certificate on the area of the Development (above at [35(f)] and [37]) into the SPA by reference (see above at [38(e)]).
Handover and subsequent events
[45] The units purchased by the plaintiffs were handed over to the plaintiffs in 2016.
[46] Around 2018, the first, third and fourth plaintiffs, and a Ms Nancy Ang, who represented the eighth, ninth and tenth plaintiffs, put themselves up for election and were elected as members of the Management Corporation Strata Title (the “MCST”) of the Development.
[47] Sometime at or around June 2018, the plaintiffs who had been elected as members attended the first meeting of the MCST and raised issues regarding alleged shortfalls in the gross floor areas of the shop units in the Development.
[48] On 25 June 2018, Ms Aishah, the building manager of the Development, brought the first and third plaintiffs and Ms Nancy Ang to the roofs of the fifth, sixth and tenth stories of the Development to view the AC ledges of the plaintiffs’ shop units.
The parties’ cases
The remaining plaintiffs’ case
[49] The core of the plaintiffs’ case is that they are victims of a scam concocted by LVND to sell off what are ordinarily commercially unusable and unsaleable parts of a property development to unsuspecting buyers. LVND cleverly structured the marketing processes, materials, as well as documentation for the sale of the units in a manner that would confer upon them a defence when the purchasers inevitably realised they had been scammed.
The alleged representations
[50] The remaining plaintiffs pleaded that the following five categories of representations were made to them by LVND or its agents:
(a) that the plaintiffs would receive shop units with a total usable area reasonably in line with the total floor areas emphasised in the Brochure and oral representations (the “Usable Area Representation”);
(b) that the plaintiffs would derive a higher rental yield based on the entirety of the floor area of the shop unit being rentable (the “Rental Yield Representation”);
(c) that there would be other popular brands and quality tenants taking up space in the Development, thus adding to the commercial desirability of owning a shop unit in the Development (the “Tenant Mix Representation”);
(d) that the plaintiffs would receive “air-con ledges” for the condensers of the air-conditioning systems of their respective shop units that are accessible, functional and otherwise fit for purpose (the “AC Ledge Representation); and
(e) that in the case of the third, 11th and 12th plaintiffs, they would receive as part of the purchase of their shop units, spaces for advertising signage which are additional to the total floor area of the shop units purchased by them, and which can generate additional rental income for them (the “Advertising Signage Representation”)
(collectively, the “Purported Representations”).
[51] According to the remaining plaintiffs, the Purported Representations were made to them by LVND or its agents by the following means:
The alleged falsity of the representations
[52] The remaining plaintiffs argue that all of the Purported Representations were false. In particular:
(a) The Usable Area Representation was false because the actual usable floor area of the shop units the remaining plaintiffs purchased was “far less than what the [remaining plaintiffs] had been led to believe”.
(b) The Rental Yield Representation was false because it was premised on the entire shop unit area being rented out, “notwithstanding the practical impossibility of the [AC ledge] and [advertising panel ledge] being subsequently rented out”.
(c) The Tenant Mix Representation was false because “at least one of the major retail entities specified by the … sales agents did not take up units in the [Development]”.
(d) The AC Ledge Representation was false because the AC ledges received by the remaining plaintiffs “were not in fact ‘ledges’ as commonly understood but were in fact marked out portions of the roofs of the building … or were metal frames placed on the floor of the roofs of the building”, and the AC ledges were not effectively functional or fit for purpose as they were “a considerable distance from the units themselves” and “the air-conditioning for the [remaining plaintiffs’] shop units frequently proved to be ineffective].
(e) The Advertising Signage Representation was false because the advertising panels were not digital and were in fact included within the area of their shop units.
The alleged fraudulence or negligence of the Purported Representations
[53] The remaining plaintiffs allege that LVNDs and/or its sales agents made the Purported Representations knowing they were false, or recklessly without regard as to their truth, or negligently. In particular, they rely on the fact that LVND had deliberately omitted Annex E, the only document which specifically set out the breakdown of the area of their units, from the Side Letter and only provided it to the remaining plaintiffs after they had executed their respective SPAs.
The remaining plaintiffs’ reliance on the Purported Representations and the damage suffered
[54] The remaining plaintiffs allege that they were induced by the Purported Representations to “execute their individual [SPAs] with the [defendant]”. Had the remaining plaintiffs not been misled by the Purported Representations, they would “either not have purchased their respective shop units at the prices they did, or would have purchased the same shop units at a lower price”.
LVND’s case
[55] LVND denies the existence of any such scheme or that any of the Purported Representations were made. Even if the Purported Representations were made, they would have been corrected by the Brochure, the Side Letter, the S&P Package and the terms of the SPA. Furthermore, the remaining plaintiffs are barred from rescinding their respective SPAs as they had affirmed said SPAs.
[56] It also argues that the third and fifth plaintiff’s claims are time-barred.
Issues to be determined
[57] The broad issues to be determined are as follows:
The applicable law
[58] The remaining plaintiffs’ claim in this action is that LVND induced them to execute their respective SPAs by making the Purported Representations and by doing so fraudulently, or in the alternative, negligently.
Fraudulent misrepresentation
[59] To succeed in fraudulent misrepresentation, the remaining plaintiffs must prove the following (Broadley Construction Pte Ltd v Alacran Design Pte Ltd [2018] 2 SLR 110 (“Broadley”) at [14])
Negligent misrepresentation
[60] It is unclear whether the remaining plaintiffs’ claim is based on s 2(1) of the Misrepresentation Act 1967 (2020 Rev Ed) (“MA”), or the tort of negligent misrepresentation.
[61] In their statement of claim, under the header “Negligent Misrepresentation”, the remaining plaintiffs “rely upon the provisions of Section 2 of the Misrepresentation Act entitling them in the circumstances to the reliefs claimed therein”. In other words, the remaining plaintiffs’ (alternative) pleaded case is that of a statutory claim for negligent misrepresentation under s 2(1) of the MA.
[62] However, in their written submissions, the remaining plaintiffs then refer to “the elements of the tort of negligent misrepresentation” (emphasis added). They thus appear to be arguing that that they have a common law claim for negligent misrepresentation.
[63] A claim under s 2(1) of the MA comprises the following five elements (Far East Opus Pte Ltd v Kuvera Properties Pte Ltd [2025] SGHC 109 (“Far East Opus”) at [121]):
(a) a misrepresentation is made by LVND to the claimant;
(b) the claimant was induced to enter into the contract on account of the misrepresentation;
(c) the claimant suffers loss as a result;
(d) LVND would be liable to damages if the misrepresentation had been made fraudulently (and therefore fraud is not a necessary element); and
(e) LVND is unable to prove that, up to the time that the contract was made, he had reasonable grounds to believe and did believe that the facts represented were true.
[64] The distinction between a statutory claim for negligent misrepresentation as compared to a claim in common law is that, for a statutory claim, the burden of proof is on the representor, rather than the representee, to prove that “he had reasonable ground to believe and did believe up to the time the contract was made that the facts represented were true”. Claimants tend to prefer a statutory claim for negligent misrepresentation for this reason. The other distinction is that a claim under s 2(1) of the MA is only available to one contracting party against another contracting party, whereas the tort of negligence applies to all cases where a claimant can establish a duty of care (see Trans-World (Aluminium) Ltd v Cornelder China (Singapore) [2003] 3 SLR(R) 501 at [124]). Hence, a representee making a statutory claim for negligent misrepresentation need not establish that he was owed a duty of care by the representor (Far East Opus at [122]).
[65] Given that the requirements for a statutory claim for negligent misrepresentation are similar and in fact more lenient than that for the tort of negligent misrepresentation, I will give the remaining plaintiffs the benefit of the doubt, and evaluate whether they have made out a claim under s 2(1) of the MA, rather than the tort of negligence.
Actionable misrepresentation
[66] At this point, I would note that the primary relief sought by the remaining plaintiffs is the recission of their respective SPAs.
[67] Once a claimant establishes actionable misrepresentation, that, without more, entitles the claimant to rescind the contract (RBC Properties Pte Ltd v Defu Furniture Pte Ltd [2015] 1 SLR 997 (“RBC Properties”) at [56]). Distinguishing between the specific types of misrepresentation is strictly only necessary when a claimant is seeking damages.
[68] The elements of actionable misrepresentation are thus elements common to both types of misrepresentation, namely, that:
[69] In particular, the element of reliance requires that the misrepresentation play a “real and substantial role” in inducing the plaintiff to act, though it need not be the sole or decisive factor (Crystal Beauty Pte Ltd v Xu Jasmine and another [2025] SGHC 86 (“Crystal Beauty”) at [36], citing Ma Hongjin v Sim Eng Tong [2021] SGHC 84 at [64]).
The third and fifth plaintiffs’ claims are not time barred
[70] LVND argues that the third and fifth plaintiffs’ claims are time-barred. The third and fifth plaintiffs’ causes of action accrued when they entered into their respective SPAs, on 27 September 2013 and 28 October 2013 respectively. The present suit was commenced more than 6 years later, on 4 March 2020. That being the case, LVND’s position is that the limitation period of six years under s 6(1)(a) of the Limitation Act 1959 (2020 Rev Ed) (“LA”) operates to bar the third and fifth plaintiffs’ claims in misrepresentation.
[71] The third and fifth plaintiffs argue that the date on which their causes of action accrued was when they took possession of their respective units in 2016. It was only after they were physically able to view their respective units that they realised that the Purported Representations were false and their losses became ascertainable.
[72] LVND relies on the case of Liew Soon Fook Micheal and another v Yi Kai Development Pte Ltd [2017] SGHC 88 (“Micheal Liew”), where the High Court held that if a contract was allegedly induced by a misrepresentation, the damage to the purchasers would have occurred, at the latest, at the time of entry into the contract. LVND asserts that Micheal Liew remains good law. Though the Court of Appeal “commented” on the High Court’s decision in Micheal Liew in the case of IPP Financial Advisors v Saimee bin Jumaat and another appeal [2020] 2 SLR 272 (“IPP”), IPP did not overrule Micheal Liew, and “can be distinguished as it concerned very different facts from those of the present case or those in [Micheal Liew]”. In particular and according to LVND, the Court of Appeal’s holding in IPP was in relation to cases of contingent loss, while the loss suffered in the present case and in Micheal Liew is not contingent loss.
[74] In other words, the Court of Appeal explicitly disagreed with the decision in Micheal Liew and found that the loss in Micheal Liew was purely contingent.
[75] Following IPP, the current case, being (as LVND itself argues) analogous to Micheal Liew, is a case of contingent loss. At the point of entering the SPAs, the remaining plaintiffs had yet to suffer any actual loss. This was because the Development had not yet been built. As such, the Court of Appeal’s holding in IPP would apply squarely to the current case. I thus agree with the third and fifth plaintiffs that their claim is not time barred. Their causes of action only accrued when they took possession of their respective units in 2016 when their losses became ascertainable allegedly as a result of the Purported Representations.
[76] In light of my finding that the third and fifth plaintiffs’ claims are not time barred, I do not have to consider if those claims need to benefit from a postponement of the limitation period as a result of fraud under s 29(1) of the LA.
The remaining plaintiffs’ claims in misrepresentation
[77] I will first address some preliminary issues raised by the parties. I will then address the factual findings that are relevant across all the claims for misrepresentation, before moving on to the remaining plaintiffs’ claim for fraudulent misrepresentation. Finally, I will address the remaining plaintiffs’ claim for negligent misrepresentation. As this last group of issues is highly fact-specific, I will also address each of the remaining plaintiffs’ cases on a standalone basis.
Other preliminary issues
Whether the Purported Representations applied to all of the remaining plaintiffs equally
[78] According to the remaining plaintiffs, the Purported Representations pleaded in the Statement of Claim (above at [50]) are “the misrepresentations made to the group acting as a group”. This “group” comprised different plaintiffs, who were each affected by the misrepresentations in different ways and this is summarised below.
[79] There were two “major operative misrepresentation[s]” which applied to all of the remaining plaintiffs, namely the Usable Area Representation and the AC Ledge Representation.
[80] In contrast, the Advertisement Signage Representation only applied to the third and 11th and 12th plaintiffs.
[82] The remaining plaintiffs’ counsel’s case on this last point is somewhat garbled. On one hand, he admits that the remaining plaintiffs who bought shop units for their own use “would not have attached much significance to possible rental yields and tenant mix”. On the other hand, he argues that “[t]he fact that these [representations] were not significant to those [plaintiffs]” does not mean they were not induced by these representations as part of LVND’s strategy to lure them into the purchase.
[83] It is not clear if counsel for the remaining plaintiffs is trying to say that even if the representations did not end up inducing those plaintiffs, LVND had still made such representations with fraudulent intent, or that even though the representations were not significant to those plaintiffs, they still induced those plaintiffs into executing their respective SPAs.
[84] Either way, this argument must fail:
(b) Regarding the element of reliance, while the misrepresentation need not be the sole or decisive factor in inducing the representee to act, it must still play a “real or substantive” role (see above at [69]). Given the remaining plaintiffs’ explicit concession that the Rental Yield Representation and the Tenant Mix Representation was “not significant” to certain plaintiffs, the element of reliance is not made out in relation to those representations for those plaintiffs.
Whether the Purported Representations constituted statements of fact
[85] Another preliminary issue raised by LVND was in relation to the first element of actionable misrepresentation – ie, that defendant had made statements of existing or past fact to the remaining plaintiffs.
[86] LVND argues that the Purported Representations all pertain to statements of future intention, rather than statements of existing or past fact. Therefore, the Purported Representations cannot constitute actionable misrepresentation.
[87] I agree with LVND that the Purported Representations were representations as to what the remaining plaintiffs “would” receive, which suggests that they were statements of future intention. However, as LVND itself notes, such statements may be re-characterised as statements implying that (a) the maker of the statement honestly believed at that point in time that the event would happen in the future, or (b) that the maker had, at that point in time, reasonable grounds for making such an assertion: Deutsche Bank AG v Chang Tse Wen [2013] 1 SLR 1310 at [96].
[88] As such, the mere fact that the Purported Representations pertained to statements of future intention does not preclude the remaining plaintiffs from establishing a claim in misrepresentation.
Whether the remaining plaintiffs must establish that they entered into the SPAs in reliance on the Purported Representations
[89] Another point of significant dispute between the parties concerns the element of reliance.
[90] LVND’s case is that the remaining plaintiffs could not have relied on the Purported Representations in entering their respective SPAs. It argues that even if there had been misrepresentations made to the remaining plaintiffs, such misrepresentations would have been corrected by the terms of the contract itself. It cites the Court of Appeal’s decision in Broadley. In Broadley, a subcontractor began defaulting on payments to its supplier as the subcontractor’s main contractor had itself defaulted on payments to the subcontractor (Broadley at [4]). The parties thus entered into a tripartite agreement where the subcontractor authorised its main contractor to pay the supplier on its behalf. The terms of this agreement were formalised in a written undertaking (Broadley at [6]). Before the parties drafted and signed the undertaking, the supplier told the subcontractor that if the main contractor did not pay, the subcontractor would remain liable for the outstanding sum. The subcontractor remained silent and did not respond (Broadley at [17]). However, the undertaking that was signed stated that the subcontractor was released of all liability to the supplier.
[91] The Court of Appeal found that the supplier could not rescind the undertaking for fraudulent misrepresentation. Even if the subcontractor’s silence amounted to a misrepresentation that it accepted that it would remain liable to the supplier if the main contractor failed to pay, any misimpression which the supplier was labouring under was corrected by the terms of the undertaking. That being the case, the supplier could not have been induced by the misrepresentation into signing the undertaking (Broadley at [32]).
[92] Whether a representee was induced by the representor’s misrepresentation to entering into a contract is a question of fact. Where a representor contends that the representee was not induced by the representation because it had already been corrected, the representor needs to show that he has brought the correction to the representee’s attention such that the representee is aware of the correction (Broadley at [34]).
[93] In the case of Broadley, because the undertaking expressly provided that the subcontractor was released from liability, the misrepresentation (if any) was dispelled by the express terms of the contract. The supplier should be taken to have actually read the contract it signed, and thus, known the falsity of the alleged misrepresentation. To hold otherwise would undercut the basis of the conduct of commercial life – that businessmen with equal bargaining power would read their contracts and defend their own interests before entering into contractual obligations, and that they would rely on their counterparties to do the same (Broadley at [36]). Furthermore, the subcontractor’s position was patently obvious from the undertaking. This was especially so as the indemnity clause was not buried in a mass of small print but clearly appeared just above the space for signature by the parties. If the supplier chose to sign the undertaking without seeking any clarification, this was pursuant to its own assumption that it reflected its own understanding of the agreement, and the consequences arising therefrom must therefore fall on it alone (Broadley at 38]).
[94] LVND claims that even if it had made the Purported Representations, this would have been corrected by the documents such as the Side Letter, the SPA and the S&P Package, which were provided to the remaining plaintiffs prior to the execution of the SPA and after the alleged representations made to the remaining plaintiffs.
[95] The remaining plaintiffs seek to distinguish the facts of Broadley from the facts in the present case. I will address this at [208]–[211] below. The remaining plaintiffs also raise an argument relating to a point of law. They argue that following Broadley, the element of inducement may be made out when there is any act of reliance on the representation, not just when the representee entered into the contract in reliance on the representation. In making this argument, they rely on the Court of Appeal’s holding in Broadley that a correction “must have been made prior to the representee’s entry into the contract or any other act of reliance on the statement” [emphasis in original in italics, emphasis added in underline]. Hence, as the remaining plaintiffs had acted in reliance on the Purported Representations by signing the OTP, even if the Purported Representations were corrected by the terms of the SPA, there was still actionable misrepresentation entitling the remaining plaintiffs to rescind the SPA.
[96] I was not persuaded by the remaining plaintiffs’ argument.
[97] In my judgment, the Court of Appeal’s reference to “any other act of reliance” was likely made with a damages claim in mind, rather than a claim for recission of contract. The very basis for allowing rescission of a contract induced by a misrepresentation is that a contract that results from misrepresentation is one that is “defective in its formation” (Pearlie Koh, “Misrepresentation and Non-disclosure” in ch 11 of The Law of Contract in Singapore (Andrew Phang Boon Leong gen ed) (Academy Publishing, 2nd Ed, 2022) at para 11.101). By rescinding the contract, the representee is able to “escape from the contract which he has been inveigled into making by the false representation of the other contracting party” (Attwood v Small (1838) 6 Cl & Fin 232 at 266). Hence, where the misrepresentation has no link to a contract (ie, where there is “some other act of reliance”), that misrepresentation would not entitle parties to rescind said contract. Hence, the Court of Appeal has been very clear that “[i]n the contractual context”, a claimant is required to establish that they relied on the representation by “entering into the contract with the representor” (Strait Colonies Pte Ltd v SMRT Alpha Pte Ltd [2018] 2 SLR 441 (“Strait Colonies”) at [33]).
Whether the remaining plaintiffs may raise their argument regarding the Sale of Commercial Properties Rules
[99] At the hearing, the remaining plaintiffs’ counsel also argued for the first time that the SPAs had breached r 7 of the Sale of Commercial Properties Rules. According to the remaining plaintiffs, this was because the schedules other than the Second Schedule of the SPA were not approved by the URA. Therefore, LVND could not rely on corrections in Schedule B of the SPA to claim that the remaining plaintiffs did not rely on the Purported Representations in entering into their respective SPAs.
[100] In response, LVND argued that this contention was not pleaded and should not be allowed as the remaining plaintiffs should not be allowed to catch LVND by surprise.
[101] I agree with LVND. This argument was not pleaded and was raised only in the oral closing submissions. This point was also not raised to any of LVND’s witnesses in cross-examination. While the remaining plaintiffs’ counsel argues that there is no evidence that Schedule B of the SPA was approved by the URA, I agreed with LVND that the evidence was not presented because this point had never been raised by the remaining plaintiffs. The SPA had been in evidence since the start of the proceedings so the remaining plaintiffs’ counsel cannot say (as he did) that he was just responding to the LVND’s counsel’s closing submissions. For those reasons, the remaining plaintiffs should not be allowed to make this argument at this late stage in the proceedings.
[102] In any case, I do not see how the alleged breach of the Sale of Commercial Properties Rules would mean that LVND could assert the corrections in Schedule B of the SPA to claim that the remaining plaintiffs did not rely on the Purported Representations in entering their respective SPAs. LVND relies on Court of Appeal’s holding in Broadley that parties are expected to read the terms of the contracts they sign (see above at [93]). As far as the parties were aware at the point of signing, Schedule B of the SPA formed a part of the SPA. There is no evidence that the remaining plaintiffs had received advice from their respective lawyers representing them in the SPA that Schedule B of the SPA was unenforceable and thus irrelevant. That being the case, Broadley would apply with equal force to this case whether or not Schedule B of the SPA is enforceable.
General factual findings
[103] Before I evaluate the factual matrix of each remaining plaintiff’s claim in turn, I set out some key findings I have made from the evidence that are relevant across all the claims for misrepresentation.
The remaining plaintiffs’ level of experience in buying property
[104] One point of dispute between the parties was whether the remaining plaintiffs constituted experienced property investors. Counsel for the remaining plaintiffs alleged that none of the remaining plaintiffs were “savvy or experienced property investors”. On the other hand, during cross-examination, counsel for LVND sought to establish that all of the remaining plaintiffs were experienced property investors, having purchased multiple investment properties.
[105] All of the remaining plaintiffs acknowledged their prior property purchasing experience, though their purchase of shop units in the Development was their first venture into commercial real estate within a shopping mall:
(a) The first plaintiff had previously purchased seven different properties – of these, six were as personal residences, and one was for investment purposes.
(b) The third plaintiff’s representative is also an experienced property investor, having purchased more than ten industrial properties and four residential properties (namely, a HDB, a condominium, and two landed properties). However, this was his first time purchasing a shop unit.
(c) The fifth plaintiff had previously purchased “two or three” properties in Singapore and “two or three” properties “around the world”. However, this was his first purchase of a commercial property.
(d) The 11th plaintiff had previously purchased four properties in China – two residential properties, one “small supermarket”, and one “small office”. She had also purchased four properties in Singapore with the 12th plaintiff, namely, three residential properties and one two-storey shop in an HDB.
(e) The 15th plaintiff’s representative had previously purchased units in three industrial developments, three commercial developments and two residential developments.
[106] As such, I agreed with LVND that the remaining plaintiffs were experienced property investors.
The order of documents provided and signed
[108] LVND called a number of witnesses to give evidence on their general sales process. I consider their evidence first.
(1) Mok Mun Hon Derek (Development Manager)
[109] Mr Mok Mun Hon Derek (“Mr Mok”) is an employee of Nobel, which is one of the shareholders of LVND. He has been deployed as the Development Manager of LVND.
[110] His role as the Development Manager of the Development, involved, inter alia, preparing sales documents for the units at the Development, including the Side Letters and OTPs; and overseeing the sale and purchase process for the units at the Development.
[111] According to Mr Mok, the sales process proceeded in the following manner:
(a) The sales agents would present the Development to potential purchasers using the model of the Development in the Sales Gallery. The sales agents were briefed on the process to be adopted in marketing the Development. In particular, sales agents were told that the units consisted of “air-con ledges, advertisement ledges and the location”. When a potential purchaser expressed interest in a unit, sales agents were to check with their project-in-charge (the “Project I/C”) for the breakdown of the area of the unit, as set out in the schedule of units, and inform the potential purchaser of the same.
(b) Thereafter, if the potential purchaser decided to purchase the unit, the sales agents would provide two sets of the Side Letters to the potential purchaser to be signed.
(c) Mr Mok had instructed the Project I/Cs to brief their agents to go through each of the Annexes of the Side Letters with the potential purchasers, and to obtain their acknowledgement by way of their signature or initials on each page of the Side Letters.
(e) Mr Mok would check that all the Annexes were present, and that each page of both sets of the Side Letters had been signed by the potential purchaser. Only after ensuring that all pages of the Side Letters were present and signed, would Mr Mok obtain two sets of the OTP (signed by one of LVND’s directors) and hand the same to the Project I/C.
(2) The Project I/Cs
[112] LVND also called all four Project I/Cs (two from Huttons and two from Savills) as witnesses. The Huttons Project I/Cs were Ms Lim Geok Kee @ Tan Geok Kee (“Ms Allyson Lim”) and Mr Cheong Yeon Lai (“Mr John Cheong”). The Savills Project I/Cs were Ms Jen Wong Hong Lay Hong (“Ms Jen Wong”) and Mr Daniel Phua Wee Kwong, Daniel (“Mr Daniel Phua”). In particular, Ms Allyson Lim was retired and hence had no incentive to be untruthful in presenting her evidence.
[113] The Project I/Cs’ evidence was generally consistent. The Project I/Cs’ role involved:
(a) training and briefing the core team of sales agents on information pertaining to the Development;
(b) preparing the Side Letters by writing the names and address of the potential purchasers, the unit that the potential purchasers were interested in purchasing, and the transaction details, to be given to potential purchasers;
(c) checking the Side Letters upon the same being returned to them by the sales agents to ensure that every page was signed and initialled by potential purchasers;
(d) explaining the contents of the OTP to the sales agents (as they were the persons presenting the OTP); and
(e) submitting the Side Letters to LVND in exchange for the OTP.
[114] According to the Project I/Cs, the sales process was as follows:
(a) As a general practice, potential purchasers would be provided with a copy of the brochure for the Development when they visited the Sales Gallery. The sales agents would present the units to potential purchasers based on the sales kit provided by Huttons or Savills.
(b) The Project I/Cs also instructed the sales agents on how to present information about the unit to potential purchasers.
(i) Both the Huttons’ and Savills’ sales agents were instructed to not commit to any definitive answers on the potential rental yield of the units and to tell potential purchasers to conduct their own independent inquiries as to rental yield.
(ii) The Project I/Cs also instructed sales agents that potential retailers that might take up a unit in the Development could only be presented as possible tenants when there was confirmation that they would operate in the Development. For example, it was only after LVND informed the Project I/Cs that NTUC Fairprice would be leasing a unit in the Development on 27 January 2014, that they informed the sales agents that such information could be provided to potential purchasers.
(iii) The Project I/Cs instructed their sales agents to inform potential purchasers that the AC ledges for each unit would be located on a different floor from their unit. The Savills Project I/Cs also informed their sales agents that they could refer potential purchasers to information within the brochure to explain that the area of each unit included the AC ledges. The Project I/Cs’ evidence also differed from Mr Mok’s in that they did not appear to have instructed sales agents to inform potential purchaser who expressed interest in a unit of the breakdown of the area of said unit. Rather, their evidence was that if a potential purchaser asked about the breakdown of the area of each unit, the sales agents could ask them for the same. Ms Allyson Lim noted that none of the Huttons sales agents had asked her for such information.
(c) After a sales agent informed the Project I/Cs that a potential purchaser was interested in purchasing a unit in the Development, the Project I/Cs would then prepare two identical sets of the Side Letter by writing the potential purchasers’ details into the Side Letter.
(d) The Side Letter would then be explained to the potential purchasers. The Savills Project I/Cs testified that the Side Letters would be explained by Mr Daniel Phua, with Ms Jen Wong assisting. The Huttons Project I/Cs testified that their sales agents would explain the Sales Letters to the purchaser. The Huttons sales agents were instructed to explain each Annex to the potential purchasers.
(e) After the potential purchasers had signed both copies of the Side Letter, the Project I/Cs would check each page was signed or initialled, and there were no missing Annexes. Thereafter, they would hand both sets of the Side Letter to Mr Mok, who would check through each page to confirm that they had been signed or initialled and there were no pages missing.
(f) Mr Mok would then issue two sets of the OTP to the Project I/Cs. The OTP was then passed to the sales agents to be explained to the potential purchasers and signed (in the case of Huttons) or explained by the Project I/Cs themselves (in the case of Savills).
(3) Sales agents
[115] LVND also called some of the sales agents who had attended to the remaining plaintiffs. Of these, two of the sales agents – Mr Davidz Wan Chee Wai (“Mr Davidz Wan”) attended to the fifth plaintiff, and Ms Kit Toh Zhi Qi (“Ms Kit Toh”) attended to the 11th and 12th plaintiffs. Mr Davidz Wan and Ms Kit Toh gave evidence on the process of issuing the Side Letter and the OTP. Ms Kit Toh was part of the Savills core team of sales agents for the Development, while Mr Davidz Wan was not.
[116] The evidence from both Ms Kit Toh and Mr Davidz Wan corroborated that of Mr Mok and the Project I/Cs, namely, that the Side Letter was provided to purchasers and signed first, and the OTP would only be issued after the Side Letter was signed.
[117] Ms Kit Toh also corroborated the evidence of the Savills Project I/Cs that the Project I/Cs, rather than the agents, would present the Side Letter and OTP to the purchasers. Her evidence as regards informing buyers of the breakdown of the area of their units mirrored that of the Project I/Cs, rather than Mr Mok. She made no mention of the instructions suggested by Mr Mok. While she testified that she would inform potential purchasers who expressed interest in a unit of the breakdown of the area of that unit, she explained that was because she, personally, wanted buyers to know what they were buying.
[118] Based on the above evidence, I am satisfied that LVND had put in place the aforementioned sales process. However, it is open for the remaining plaintiffs to show that something different from the stated process happened in their specific interactions with the sales agents or Project I/Cs. This is an issue that needs to be considered in respect of the facts related to each plaintiff and I address this in detail (see below at [175], [241], [280], [326] and [348]).
Annex E
[119] Another point of contention between the parties was whether Annex E was included in the Side Letters provided to them, or if it was signed at a separate point in time. It is common to the remaining plaintiffs’ cases that even though they could not personally testify as to the fact that Annex E was not included in their Side Letters (as their case is that they had not read or paid sufficient attention to their Side Letters at the time of signing: below at [159], [231], [271], [309] and [340]), the documentary evidence showed that Annex E was issued and signed at a different time from their Side Letters. The common points raised by all plaintiffs are as follows:
(a) The shop unit number of the relevant unit in Annex E is printed, whereas the shop unit number in the other sections of the Side Letters are handwritten (namely, on the first page of the Cover Letter, and in Schedule B in Annex G). This suggests that Annex E was produced at a different time from their Side Letters.
(b) Annex E contains an acknowledgment of receipt that is to be signed by the purchaser. Such acknowledgement would only be necessary if Annex E was provided to the purchaser separately from the Side Letter.
(c) Annex E did not provide for a date to be entered, which allegedly allowed LVND to claim that Annex E was issued at the same time as the Side Letter even though it was only issued sometime later.
[120] I was not persuaded by these points.
[121] In relation to the first point, LVND’s explanation as to why the unit number in Annex E was printed is because each unit had a different breakdown of unit particulars (including, amongst other things, in terms of unit size, location and size of AC ledge). Such information being unit-specific, it made sense to prepare and print a different Annex E for each unit, rather than printing a blank Annex E and filling in the particulars of the unit by hand, as this reduced the possibility of errors.
[122] The same applied to Annex D, to a more limited extent – the Annex Ds for typical shop units (ie, those that came without advertising space) comprised the floorplan of the floor which the unit was located (above at [23]). As such, different Annex Ds were prepared for each floor, rather than for each unit. However, the plans of the advertisement signage (above at [24]) that were included in the Annex Ds for the special shop units (above at [8]) were prepared on a per-unit basis, much like Annex E, as the location, dimensions and shape of the advertising signage was unique to each special shop unit.
[123] On the other hand, the contents of the other sections of the Side Letters were not specific to any particular unit. Therefore, it did not make sense to print different versions of the other sections of the Side Letters for each unit. Instead, the particulars (including the unit number) in the other generic sections of the Side Letters were left blank, to be later filled in by hand by the Project I/C when a potential purchaser expressed their interest in purchasing a unit.
[124] This explanation is logical and I have no reason to doubt it. Hence, I do not accept the remaining plaintiffs’ argument that Annex E being printed must suggest that it was issued and signed separately from the rest of the Side Letter.
[125] As regards the second and third points, I would note that contrary to what was suggested by the remaining plaintiffs, Annex E is not the only Annex in the Side Letter which requires a separate signed acknowledgment of receipt. Annex D requires the same (above at [26]). Much like Annex E, it did not provide for any date to be entered. However, none of the remaining plaintiffs have raised the same complaints in relation to Annex D, as they have with Annex E. As such, I also disagree with the remaining plaintiffs’ position that as Annex E requires a separate acknowledgment of receipt, it must mean that it was signed at a different time from the rest of the Side Letter.
The CD-ROMs
[126] The remaining plaintiffs allege that no CD-ROMs were provided in their S&P Packages, contrary to the cover letter of their S&P Packages. However, all the remaining plaintiffs testified that they had not looked through their S&P Package before sending it to their solicitors, or that their S&P Package had been sent directly to their solicitors and they had no personal knowledge of it. Hence, their testimony that no CD-ROMs were not included in their S&P Packages holds little weight. Whilst the remaining plaintiffs’ evidence on Annex E was similar (ie. they did not read or pay attention to the Side Letter, they at least pointed to some documentary evidence as to why they allege Annex E was not originally contained in their Side Letter (above at [119])). That is not the case for the remaining plaintiffs’ assertion regarding the alleged missing CD-ROM.
[127] I also accept LVND’s evidence that the CD-ROMs were provided to the remaining plaintiffs. LVND called one of the legal secretaries, Ms Sally Ang who assisted on the cover letters sent to all the remaining plaintiffs in this matter as a witness. She testified that in view of the standard practice adopted in relation to sending the S&P Packages, the CD-ROM would have been provided to all the remaining plaintiffs at the same time as the SPAs. She also noted that while she recalled certain purchasers complaining of not being able to access certain documents in the CD-ROM (to which they would send replacement CD-ROMs), there was no mention of any instances where the CD-ROM was inadvertently omitted when sent to the purchasers. Under cross-examination, Ms Sally Ang conceded that she could not recall if she was the legal secretary specifically responsible for the S&P Packages for the remaining plaintiffs. She also conceded that she did not check the contents of each CD-ROM before it was sent to purchasers.
[128] These concessions are however not fatal to LVND’s position that the CD-ROMs were provided in the S&P Packages. There is no good reason as to why the remaining plaintiffs’ respective lawyers (acting for them in the conveyancing) did not write to LVND or their lawyers to ask for the CD-ROM if the CD-ROM had indeed not been provided. No correspondence or documentary evidence had been put forward by the remaining plaintiffs to suggest otherwise. The remaining plaintiffs also did not call their solicitors to testify to the contrary. I therefore conclude that the CD-ROMs had been provided to the remaining plaintiffs as part of their S&P Packages.
The alleged fraud
[129] The remaining plaintiffs allege that LVND is the perpetrator of a fraudulent scheme – ie, to sell off usually unsaleable portions of the Development by packaging them into the accessory lots (especially the AC ledges) to unsuspecting purchasers. In pursuance of this scheme, the AC ledges were made unnecessarily large and placed on the rooftops (ie, the unsaleable parts of the Development). The remaining plaintiffs also allege that the documentation prepared by LVND was purposefully prepared to give the false impression that the remaining plaintiffs were aware of the size of the AC ledges. For example, the Side Letter was unnecessarily voluminous to hide the true relevant information within its many pages. To that end, Annex E, which contained the most critical information, was also purposefully not given at the same time as the Side Letter.
[130] In contrast, LVND’s position is that the provision of the Side Letter (and all the information contained therein) to potential purchasers was not an unknown practice. In fact, it was a standard practice for residential developments. Residential developers were required to detail unit specifications to potential purchasers before entering into purchase options. At the time, even though the Side Letter was not a requirement for commercial developments, according to Mr Terence Goon’s evidence, LVND decided to adopt the PDI (Side Letter) approach as a “gold standard” so that potential purchasers of the Development were given more rather than less information about their purchase.
[132] Finally, this approach is also supported by the project architect, Mr Liu Yaw Lin. In cross-examination, he made the observation that to include all detailed unit information in the brochure would make the brochure a confusing document to read as it would be too cluttered. According to him, that is why the presentation of other information in the Side Letter is complementary with the approach of a brochure as a document that only provides general information to potential purchasers. Mr Liu Yaw Lin adds that with the footnotes in the Brochures addressing the AC ledge, he assumed potential purchasers would be interested as to where those ledges were located.
[133] I am not persuaded by the remaining plaintiffs’ arguments that LVND’s approach to the documentation for the sales of the units in the Development demonstrate fraudulent conduct. In my judgment, there was clearly a logic to LVND’s approach to the Side Letter and its contents. It was an approach that was used in other parts of the industry and the reason for adopting that approach had been adequately explained by LVND. The remaining plaintiffs had also presented no evidence that LVND’s approach to the Side Letter was unusual. In particular, no expert evidence was presented to demonstrate that LVND’s approach was out of the ordinary and raised suspicions of unethical conduct.
[135] The AC ledges were placed on the roof as there was minimal space within the building to locate the AC ledges. Moreover, many of the units were designed to be located along the perimeter of the building, so the installation of air-conditioning condensers next to each unit would clutter the façade for the building. Installing AC ledges outside the units would also not be possible for internal units without any external facing. Mr Terence Goon confirms in his re-examination evidence that it was not unusual for accessory air-con lots to be located on the roof. Mr Liu Yaw Lin also explained in his re-examination why for aesthetic, environmental and fire safety reasons, the AC ledges were placed on the roof of the Development.
[136] The evidence from LVND’s witnesses in this regard is entirely logical and I see no reason why I should disbelieve them in favour of attributing a nefarious intention as the remaining plaintiffs suggest. Again, I will point out that the remaining plaintiffs have not offered any contrary evidence from experts in property development, architects or engineers to suggest that LVND’s decisions were unusual and motivated by anything other than what LVND’s evidence had suggested.
[137] To summarise, I find that no fraudulent conduct on LVND’s part has been demonstrated by the remaining plaintiffs. What appears to have occurred is that LVND thought best practices should prevail in a situation where they were selling units in a commercial transaction (in a commercial shopping mall context). That being the case, LVND erred on the side of more rather than less detail and documentation. This was not an unfair assumption bearing in mind commercial parties ought to be dealing on an arms-length basis with parties represented by counsel. LVND had also expressly encouraged prospective purchasers who had not yet engaged counsel to seek immediate legal advice on the execution of the SPA by way of the cover letter to the S&P Package. Looking at the same situation from the perspective of the remaining plaintiffs, they were, for the most part, retail parties (albeit also represented by counsel) investing in a commercial transaction. The documentation that was provided by LVND, whilst well intentioned, reached a saturation point that went beyond the boundaries of what the remaining plaintiffs were willing to endure in terms of the time and effort required to absorb the information comprehensively.
Fraudulent misrepresentation
[138] Given that I find that the remaining plaintiffs had failed to demonstrate any fraudulent conduct on the part of LVND, I also find that the remaining plaintiffs have failed to make out their claim for fraudulent misrepresentation.
[140] As I noted above, LVND had tried to adopt best practices in relation to disclosure by erring on the side of more detail and documentation. It clearly intended for potential purchasers to rely on this documentation, which corrected the alleged misrepresentations, rather than any of the alleged misrepresentations made by the Brochure or LVND’s sales agents.
Negligent misrepresentation

The judgment continues past this page. Read the rest at eLitigation.

The buyers' claims failed; trying to rent out units affirmed the contracts

Laws this judgment relies on

Grounds of decision

Introduction

Facts

The plaintiffs

Background to the dispute

Brochures

Option to Purchase and Side Letter

(1) Cover Letter

(2) Annexes

(A) Annex C

(B) Annex D

(C) Annex E

(D) Annex G

S&P Package

(1) CD-ROM

(2) SPA

Handover and subsequent events

The parties’ cases

The remaining plaintiffs’ case

The alleged representations

The alleged falsity of the representations

The alleged fraudulence or negligence of the Purported Representations

The remaining plaintiffs’ reliance on the Purported Representations and the damage suffered

LVND’s case

Issues to be determined

The applicable law

Fraudulent misrepresentation

Negligent misrepresentation

Actionable misrepresentation

The third and fifth plaintiffs’ claims are not time barred

The remaining plaintiffs’ claims in misrepresentation

Other preliminary issues

Whether the Purported Representations applied to all of the remaining plaintiffs equally

Whether the Purported Representations constituted statements of fact

Whether the remaining plaintiffs may raise their argument regarding the Sale of Commercial Properties Rules

General factual findings

The remaining plaintiffs’ level of experience in buying property

The order of documents provided and signed

(1) Mok Mun Hon Derek (Development Manager)

(2) The Project I/Cs

(3) Sales agents

Annex E

The CD-ROMs

The alleged fraud

Fraudulent misrepresentation

Negligent misrepresentation