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Grounds publishedDecided 5 Feb 2025
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General Division of the High Court

Shares transferred to the plaintiff were held on resulting trust and must go back

Kok Kuan Hwa v Yap Wing Sang

[2025] SGHC 19Case no. Suit No 905 of 2021

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Shares transferred to the plaintiff were held on resulting trust and must go back

Summary by laws.sgParagraphs [5], [6]

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  1. Introduction

  2. [1] This action arises from a dispute between the 50% owner (the plaintiff) and the 25% owner (the first defendant) of a highly successful and vertically-integrated food and beverage business that they have built together over decades. Their relationship has now broken down irretrievably. The parties have therefore decided to terminate their business relationship and to part ways.

  3. [2] Although there are eight defendants to this action, only the first defendant is actively defending it. The remaining seven defendants are nominal defendants who are not represented and who have taken no part in the litigation. I shall therefore use the term “the defendant” to refer to the first defendant and the collective term “the parties” to refer to only the plaintiff and the first defendant.

  4. [3] The parties cannot today agree: (a) on the identity of the companies that comprise their business; and (b) the legal effect of the parties’ efforts since 2018 to terminate their business relationship and part ways.

  5. [4] Following the trial of this action, I have dismissed the plaintiff’s claim and allowed the defendant’s counterclaim in part. Both parties have appealed against my decision.

  6. [5] I now set out the grounds for my decision.

  7. Facts

  8. [6] The principal cause of the parties’ dispute is that, partly due to the rapid growth of their business over the decades, they have expanded the business organically and ad hoc. As a result, their business is not structured as a group of companies with an apex holding company in which they are both shareholders and with layers of intermediate holding companies and operating subsidiaries beneath it. Another cause of their dispute is that the parties dealt with each other over the decades with a high degree of trust and a great deal of informality. There is therefore little or no contemporaneous evidence of the intentions they held or of the agreements they reached over the decades in relation to their business.

  9. [7] From its inception, the parties have called their business “the Chang Cheng Group”. I shall use that term in these grounds, but purely for convenience. It must always be borne in mind that that term has purely commercial content. It does not, in itself, have any legal content.

  10. [8] The Chang Cheng Group comprises a number of companies in which each party holds or held a direct personal interest, in some cases together with third parties. The parties’ shareholding in any of these companies does not necessarily match their agreed interest in the capital and income of the Chang Cheng Group. One of these companies is Chang Cheng Group Pte Ltd (“CCGPL”). CCGPL is, in a commercial and administrative sense, the headquarters of the Chang Cheng Group. But it also has operational subsidiaries and owns valuable real estate. Most importantly, it is not the apex holding company for the Chang Cheng Group. It is simply another company in which the parties hold a direct personal interest.

  11. [9] The Chang Cheng Group is a highly successful operator of food and beverage stalls, coffeeshops and food courts in Singapore. The parties’ business relationship began in 1998 or 1999 when they agreed to set up and operate food and beverage businesses together. Their business started with an economy rice stall in Woodlands and expanded rapidly over the decades into owning and operating other types of food stalls and ultimately into owning and operating coffee shop and food court premises.

  12. [10] It is common ground that the Chang Cheng Group comprises several operating companies (“the Operating Companies”) in the food and beverage business.

  13. [11] Ten of the Operating Companies have a particular significance in this action. I have listed these 10 companies in Annex 1 of the judgment that I have entered in this action. I shall therefore refer to these companies as “Annex 1 Companies”.

  14. [12] The particular significance of the Annex 1 Companies is that in December 2018, in the course of the parties’ terminating their business relationship and parting ways, the defendant transferred all of his shares in the Annex 1 Companies to the plaintiff. At the same time, he resigned as an officeholder in all of the Operating Companies, ie including but not limited to the ten Annex 1 Companies. One of the principal disputes between the parties is over the legal causes and consequences of his having done so.

  15. [13] The Annex 1 Companies are:

  16. (a) Chang Cheng Food Tastic Pte Ltd;

  17. (b) Chang Cheng Mee Wah Holdings Pte Ltd;

  18. (c) Chang Rong Logistics (West) Pte Ltd;

  19. (d) Chang Rong Logistics Pte Ltd;

  20. (e) G5 Food House Pte Ltd;

  21. (f) Redhill 75 Food House Pte Ltd;

  22. (g) TPY 126 C&B Pte Ltd;

  23. (h) TPY 126 Food House Pte Ltd;

  24. (i) Trendy Marks Pte Ltd; and

  25. (j) WTL 261 Food House Pte Ltd.

  26. [14] Over time, real property was purchased from which to operate the Chang Cheng Group’s food and beverage stalls and ultimately their coffee shops and food courts. Each of these properties was purchased and is now held by a company incorporated between 2005 and 2011 for that single purpose. I have listed these companies in Annex 2 of the judgment that I have entered in this action. I shall therefore refer to these companies as “Annex 2 Companies”.

  27. [15] The Annex 2 Companies are:

  28. (a) TP406 Pte Ltd (“TP406”);

  29. (b) MS 136 Pte Ltd (“MS 136”);

  30. (c) MS 166 Pte Ltd (“MS 166”);

  31. (d) HOL 40 Pte Ltd (“HOL 40”);

  32. (e) NL 10 Pte Ltd (“NL 10”);

  33. (f) TP 802 Investment Pte Ltd (“TP 802”);

  34. (g) Hougang 631 Pte ltd (“Hougang 631”);

  35. (h) Aljunied 119 Pte Ltd (“Aljunied 119”);

  36. (i) TP 201 Pte Ltd (“TP 201”); and

  37. (j) MT59 Investment (“MT59”).

  38. [16] The plaintiff classifies CCGPL as an operating company. The defendant does not accept this and classifies CCGPL as a company incorporated to purchase and hold real estate. I have therefore not included CCGPL within the scope of either the term “the Operating Companies” or listed it in Annex 2. I shall treat CCGPL as being sui generis.

  39. [17] The principal dispute between the parties is whether the Annex 2 Companies and CCGPL are part of the Chang Cheng Group.

  40. [18] Mdm Lim Lai Hiang (“Mdm Lim”) is the plaintiff’s wife. It is common ground that, at least from 2011 onwards, the plaintiff, Mdm Lim and the defendant had agreed between them that the plaintiff would have a 50% interest in the capital and income of the Chang Cheng Group and that Mdm Lim and the defendant would each have a 25% interest in its capital and income (“the 2011 Agreement”). I shall refer to these three individuals as “the Owners”.

  41. [19] For reasons that are immaterial for present purposes, the parties’ relationship deteriorated over time. It is common ground that their relationship had broken down irretrievably by 2017 or 2018.

  42. [20] By the end of 2018, the parties had agreed that they would part ways, with the plaintiff acquiring the defendant’s interest in the Chang Cheng Group. Negotiations then took place between the parties through an intermediary, Mr Cho Kim Wing (“Mr Cho”).

  43. [21] It is both parties’ case that these negotiations gave rise to an oral contract between the parties. The parties however differ radically as to the genesis and terms of the oral contract. The plaintiff calls this oral contract “the First Agreement”. The defendant calls this oral contract “the Share Sale Contract”.

  44. [22] It was following these negotiations that the defendant transferred the Annex 1 Shares to the plaintiff and resigned as an officeholder of the Operating Companies.

  45. [23] In December 2020, the parties, together with the third-party shareholders of four of the Annex 2 Companies – namely, Hougang 631, Aljunied 119, TP 201 and MT59 (see [14] above) – entered into sale and purchase agreements relating to these companies (“the Second Agreement”). It is undisputed that the parties are bound by and have duly performed the Second Agreement in full and final satisfaction of their interest in these four Annex 2 Companies. As such, I do not have to deal with these four Annex 2 Companies.

  46. [24] At the same time, the parties were discussing the terms on which they would part ways in CCGPL and the remaining six Annex 2 Companies, namely TP406, MS 136, MS 166, HOL 40, NL 10 and TP 802 (see [14] above). These discussions took place through Mr Paul Kok Kuan Pow (“Mr Paul Kok”) as intermediary. The plaintiff’s case is that the parties entered in another oral contract on or about 5 December 2020 (“the Third Agreement”) as a result of these discussions.

  47. Issues to be determined

  48. [25] There are four issues to be determined in this action:

  49. (a) First, whether the parties entered into the First Agreement (as the plaintiff claims) or the Share Sale Contract (as the defendant claims).

  50. (b) Second, whether the parties entered into the Third Agreement as the plaintiff claims.

  51. (c) Third, whether the defendant is the absolute owner of all of the shares in CCGPL and in each of the six remaining Annex 2 Companies (see [24] above) that are registered in his name.

  52. (d) Fourth, whether the defendant has a 25% interest in and the Operating Companies.

  53. [26] I take each issue in turn.

  54. Issue 1: The First Agreement and the Share Sale Contract

  55. [27] The plaintiff seeks a declaration that the parties are bound by the First Agreement. He alleges that the terms of the First Agreement are as follows:

  56. (a) The defendant will transfer to the plaintiff his interest in the Operating Businesses.

  57. (b) In consideration for this, the defendant’s interest in CCGPL and in each Annex 2 Company would be fixed in accordance with his registered shareholding in that company.

  58. [28] To determine whether the parties entered into the First Agreement, I must first decide two subsidiary factual issues:

  59. (a) First, are the Annex 2 Companies part of the Chang Cheng Group?

  60. (b) Second, what terms governed the parties’ interests in the Chang Cheng Group before the 2011 Agreement (see [18] above)?

  61. The Annex 2 Companies are part of the Chang Cheng Group

  62. [29] On the first subsidiary issue, I find that the Annex 2 Companies are part of the Chang Cheng Group. I exclude TP 201 from my analysis of this issue. The plaintiff accepts that TP 201 is not part of the Chang Cheng Group.

  63. [30] I now set out the factors I have relied on for my finding that the Annex 2 Companies are part of the Chang Cheng Group.

  64. [31] First, I find on the balance of probabilities that the Annex 2 Companies did not purchase the properties that they own with initial funds supplied by – and therefore attributable personally to – the parties. Instead, they purchased the properties with initial funding supplied by and therefore attributable to one or more of the following three companies: CCGPL, Chang Cheng Mee Wah Holdings Pte Ltd (“CCMWH”) and TP 177 Investment Pte Ltd (“TP 177”). The defendant accepts that all three of these companies are part of the Chang Cheng Group.

  65. [32] To support its argument that the Chang Cheng Group provided the initial funding for the Annex 2 Companies’ purchase of the real property, the plaintiff relies on a report from his expert witness, Mr Ang Keng Siang Terence (“Mr Ang”). In his report, Mr Ang draws the following conclusions from the contemporaneous documents that are available (eg, cheques, cashier’s orders, payment vouchers and receipts) relating to each purchase of property:

  66. (a) The initial funding for the properties purchased by MT59 and Aljunied 119 came from CCMWH and/or TP 177.

  67. (b) The initial funding for the properties purchased by MS 136, MS 166, TP406, TP 802 and Hougang 631 came from CCMWH through an intercompany loan extended to each of these companies.

  68. (c) The initial funding for the property purchased by NL 10 came from CCMWH, except for a deposit (amounting to 1% of the purchase price) which came from an unknown source.

  69. (d) It is not entirely clear where the initial funding for the property purchased by HOL 40 came from. But a substantial part of the funding came from CCGPL. It paid the stamp duty and the deposit of 5% of the purchase price. It also lent a sum of $698,600 to HOL 40, which covered more than 50% of the balance of the initial funding.

  70. [33] The defendant contends that – although the immediate source of the initial funding may have been CCGPL, CCMWH and TP 177 – these sums are ultimately attributable to the parties because they were eventually deducted from their personal share of the profits of the Chang Cheng Group.

  71. [34] The defendant relies for this contention on a report by his expert witness, Mr Tam Chee Chong (“Mr Tam”). Mr Tam concludes in his report that it is “reasonable” for the defendant to advance a case that the initial funding that the Annex 2 Companies required of the parties was based on their registered shareholding in each Annex 2 Company and that “any shortfall…not paid by…themselves would be paid through their respective share of profits from the Chang Cheng Group”. Mr Tam clarified during cross-examination that what he means by this conclusion is that it is “more than 50 per cent” likely that the initial funding for the Annex 2 Companies’ purchase of the real property came ultimately from the parties.

  72. [35] Mr Tam gives three reasons for drawing this conclusion:

  73. (a) First, the parties’ share of the Chang Cheng Group’s profits at the material time was more than sufficient to cover the capital that each Annex 2 Company required of each of them.

  74. (b) Second, it is possible that the initial funding advanced by the Chang Cheng Group was deducted from the parties’ share of profits only later, and not at or about the time of the advance.

  75. (c) Third, it is common ground that TP 201 was funded personally, ie from the parties’ share of the Chang Cheng Group’s profits.

  76. [36] When faced with conflicting expert evidence, the court may choose one of the experts’ views or reject them both. But it cannot adopt a third view of its own (Tengku Jonaris Badlishah v Public Prosecutor [1999] 1 SLR(R) 800 at [37]). Where expert evidence conflicts, the court will have regard to “the logic and common sense” of each expert in choosing which expert’s evidence to accept (Lee Hsien Loong v Review Publishing Co Ltd and another and another suit [2007] 2 SLR(R) 453 at [105]).

  77. [37] I accept Mr Ang’s evidence and reject Mr Tam’s. Mr Ang’s evidence, ie, that the initial funding for the Annex 2 Companies’ purchase of their properties was provided by the Chang Cheng Group, is supported by contemporaneous and objective documentary records. By contrast, Mr Tam’s conclusion that it is more likely than not that the initial funding came ultimately from the parties rests on reasoning and assumptions that are unpersuasive.

  78. [38] Even if the parties’ share of the profits of the Chang Cheng Group was sufficient to cover the initial funding that the Annex 2 Companies needed (see [35(a)] above), this establishes only that it was theoretically possible for the parties to have funded the Annex 2 Companies’ purchase of the properties out of their personal share of the Chang Cheng Group’s profits. That theoretical possibility does not go very far towards establishing that this is in fact what the parties intended and did. As the plaintiff argues, save only for TP 201, there is no objective evidence to show that the Annex 2 Companies’ initial funding was ultimately deducted from the parties’ share of the profits of the Chang Cheng Group.

  79. [39] As to the possibility that the funding advanced by the Chang Cheng Group was deducted from the parties’ share of profits only later, and not at the time of the advance (at [35(b)] above), the only evidence that Mr Tam relies on for this part of his evidence is a profit-sharing worksheet for the Chang Cheng Group for 2012. This document shows that the payment made by the Chang Cheng Group on behalf of its directors for personal investments in 2008 was deducted from their share of the Chang Cheng Group’s profits nearly five years later. But if the initial funding was deducted from the Owner’s profit share years after the money was advanced, then it is odd that no such deductions are reflected in any of the later profit-sharing worksheets. This is especially odd considering that (i) eight of the 10 Annex 2 Companies acquired their properties before 2010; and (ii) Ms Elaine Yaw (“Ms Yaw”), the ex-Head of Accounts for the Chang Cheng Group, gave evidence that any such deductions would “usually” be made within two years from the investment.

  80. [40] As for Mr Tam’s reliance on TP 201 (at [35(c)] above), this is neither here nor there. That the shareholders of TP 201 provided the initial funding for the acquisition of its property is equally consistent with TP 201 being an exception rather than the norm. This is supported by the fact that TP 201 was the sole Annex 2 Company which had, as its shareholders, two other mutual friends of the parties. The shareholders of all the other Annex 2 Companies are either the parties alone, or the parties together with Mdm Lim, Mr Cho or employees of the Chang Cheng Group.

  81. [41] Further, the relevance of Mr Tam’s expert report is diminished by Mr Tam’s oral evidence. He confirms that he is not expressing a view on whether the parties’ share of the Chang Cheng Group’s profits was in fact used to provide the initial funding for the Annex 2 Companies, as such deduction “has not happened yet”. He also confirms that save for TP 201, he has not seen any document that suggests that the initial funding advanced by the Chang Cheng Group was ever deducted from the parties’ share of its profits.

  82. [42] For all of these reasons, I do not find Mr Tam’s evidence of assistance on this issue. In any event, counsel for the defendant clarified in oral closing submissions that the defendant was relying largely on Ms Yaw’s evidence to prove this part of his case. Unfortunately for the defendant, Ms Yaw’s evidence on this issue also does not carry much weight.

  83. [43] Ms Yaw’s evidence in chief is that CCMWH or some other company in the Chang Cheng Group provided the initial funding for the Annex 2 Companies’ purchase of their properties, and that she had personally calculated and deducted that sum from the parties’ share of the Chang Cheng Group’s profits. But under cross-examination, she either changed or qualified her evidence in chief. This diminishes significantly the weight I can attach to her evidence.

  84. [44] Ms Yaw’s evidence in chief was that the initial funding advanced by the Chang Cheng Group on behalf of the Annex 2 Companies was deducted from the parties’ profit share in 2009 and 2010, and that documents titled “BOD Profit Sharing For Year 2009” and “BOD Profit Sharing For Year 2010” reflected the parties’ share of the profits after the deductions. But when cross-examined on these documents, Ms Yaw accepted that no deduction were made in 2010 and suggested that the deduction could have been made from other pools of the Chang Cheng Group’s profits, such as CCMWH. This shift in her evidence, together with the fact that more than 13 years had passed from the time Ms Yaw had left the Chang Cheng Group, suggests to me that her recollection of the events may not be accurate.

  85. [45] Ms Yaw also qualified her evidence in chief by clarifying during cross-examination that she had personally made the deductions from the parties’ profit share for only “some of the transactions” and “not all”. The defendant submits that this does not undermine Ms Yaw’s involvement in the deduction process, as she “did not have to process the payments or to enter the deductions herself”. I disagree. Ms Yaw’s clarification during cross-examination meant that even if the parties intended to provide the initial funding for the Annex 2 Companies’ purchase of their properties ultimately from the parties’ share of the Chang Cheng Group’s profits, Ms Yaw had no personal knowledge as to whether the initial funding provided by the Chang Cheng Group was in fact deducted ultimately from the parties’ profit share after every purchase.

  86. [46] In sum, there is insufficient evidence – whether documentary, oral or expert – to establish the defendant’s contention that it was the parties who provided the initial funding for the Annex 2 Companies’ purchase of their properties. It is also clear that the parties managed the profit-sharing account of the Chang Cheng Group ad hoc, and with a high degree of informality.

  87. [47] As such, I find that the evidence adduced by the defendant does not suffice to prove on the balance of probabilities that the initial funding that CCGPL, CCMWH and TP 177 provided to the Annex 2 Companies was subsequently deducted from the parties’ share of the Chang Cheng Group’s profits.

  88. [48] I turn to the second factor which leads to my finding that the Annex 2 Companies are part of the Chang Cheng Group.

  89. [49] The plaintiff’s expert, Mr Ang, expresses the opinion that the Annex 2 Companies are “financially and operationally an integral part” of the Chang Cheng Group. This is because the Operating Companies and the Annex 2 Companies were under common management, financial and administrative control. Each Annex 2 Company is majority-owned by at least two of the Owners. The Owners also control the board of directors of all of the Annex 2 Companies. The defendant’s expert witness, Mr Tam, does not challenge Mr Ang on this point.

  90. [50] Although a court is not obliged to accept expert evidence by reason only that it is unchallenged, if the court finds that the evidence is based on sound grounds and supported by the basic facts, it can do little else than to accept the evidence (Saeng-un Udom v PP [2001] 3 SLR 1 at [26]).

  91. [51] I accept Mr Ang’s expert opinion. It is based on sound grounds and is supported by the evidence of Mr Jason Tay (“Mr Tay”) and Ms Yaw, who were ex-employees of CCGPL and CCMWH respectively.

  92. [52] Both Mr Tay and Ms Yaw confirmed their involvement in the finance, accounts and affairs of the Annex 2 Companies. For instance, as the former Chief Financial Officer, Mr Tay handled the finances and accounts of the Annex 2 Companies. Ms Yaw was involved in the incorporation of seven Annex 2 Companies and in the purchase of their properties. The defendant also admitted that employees of CCGPL were responsible for the financial and administrative affairs of the Annex 2 Companies.

  93. [53] As such, I am satisfied that the Annex 2 Companies were incorporated to be and were part of the Chang Cheng Group.

  94. [54] I turn to the third factor, which is the subsequent funding for the properties owned by the Property Holding Companies. After 2011, all of the properties owned by the Annex 2 Companies were leased to Chang Cheng Mee Wah Pte Ltd. The rent that each Annex 2 Company receives from Chang Cheng Mee Wah Pte Ltd is then applied to pay down its purchase-money bank loans. Neither party disputes that Chang Cheng Mee Wah Pte Ltd is part of the Chang Cheng Group. This leasing arrangement supports a finding that the Annex 2 Companies are part of the Chang Cheng Group.

  95. [55] The fourth relevant factor is the commercial purpose behind the decision to acquire the properties owned by the Annex 2 Companies.

  96. [56] At trial, Mr Paul Kok explained that it was he who had suggested to the parties that they should purchase properties. According to Mr Paul Kok, the intent in purchasing the properties was to “develop the food and beverage businesses of the Chang Cheng Group” and to enable the Chang Cheng Group to benefit from the properties’ capital appreciation over time. In other words, the properties were purchased to benefit the Chang Cheng Group rather than to benefit the parties personally or even to benefit the registered shareholders of the Annex 2 Companies. Indeed, there would be little commercial purpose for the Chang Cheng Group to fund the Annex 2 Companies’ purchase of the properties and their repayment of their purchase-money bank loans unless those properties were to be owned and managed for commercial purposes aligned with advancing the commercial and economic interests of the Chang Cheng Group.

  97. [57] For all of these reasons, I find that the Annex 2 Companies are part of the Chang Cheng Group.

  98. [58] The defendant submits that several indisputable facts are circumstantial evidence supporting his contention that the Annex 2 Companies are the personal investments of the Owners. I reject all of these submissions.

  99. [59] First, the defendant relies on the presence of third-party shareholders in TP406 and TP 802 as being inconsistent with these companies being part of the Chang Cheng Group. I reject this submission. It is undisputed that these other shareholders are employees of the Chang Cheng Group who made no financial contribution to the purchase of the property by the Annex 2 Company in question. These employees were gifted their shares in the Annex 2 Companies as an incentive to the employees. The question then is: who was the donor of these gifts? I find that it is more likely than not that it was the Chang Cheng Group rather than either of the parties in his personal capacity who was the donor of these gifts. I therefore do not consider the presence of these shareholders in the Annex 2 Companies to be circumstantial evidence supporting the defendant’s submission.

  100. [60] Second, the defendant relies on the fact that the bank financing extended to each Annex 2 Company (except Aljunied 119) was secured by personal guarantees given by the registered shareholders and directors of that Annex 2 Company. I reject this submission. As both Mr Ang and Mr Tam confirmed, it is common for a financial institution that is lending money to a company to require and to take personal guarantees from each shareholder and each director of the company, without inquiring further into whether the shareholders actually own their shares outright or whether the directors are actually involved in managing the company. I therefore do not consider these personal guarantees to be circumstantial evidence supporting the defendant’s submission.

  101. [61] Third, the defendant relies on Mr Tay’s evidence. According to Mr Tay, the profits of each Annex 2 Company was not included in the profits of the Chang Cheng Group for distribution. Mr Tay’s analysis of the profit-sharing documents of the Chang Cheng Group shows that, since the Chang Cheng Group started keeping accounts in 2001, only the profits from the food and beverage business were distributed.

  102. [62] For instance, the document “BOD Profit Sharing For Year 2009” shows that only the profits from the food and beverage business of the Chang Cheng Group for that year were distributed. By contrast, the profits of the Annex 2 Companies then in existence (namely, TP406, TP 802, MS 136, MS 166, Hougang 631 and Aljunied 119), were not distributed.

  103. [63] I reject this submission. The fact that the profits of the Annex 2 Companies were not distributed to the parties is immaterial because, as the plaintiff points out, the profits of the Annex 2 Companies were not distributed to anyone, not even to the Annex 2 Companies’ shareholders. Both the plaintiff and the defendant confirmed in cross-examination that they have never received any dividends or profits from the Annex 2 Companies. As such, the fact that the parties received no share of the profits of the Annex 2 Companies does not indicate that these companies are not part of the Chang Cheng Group.

  104. [64] For completeness, I note that the plaintiff relies on a spreadsheet titled “Group of Companies (Mr Yap)” prepared by Mr Tay in August 2017 (“the 2017 Spreadsheet”). The 2017 Spreadsheet includes the consolidated financial position of the Annex 2 Companies. Based on this, the plaintiff submits that Mr Tay treated those entities as part of the Chang Cheng Group.

  105. [65] I reject this submission. Mr Tay states expressly that his understanding has always been that the Annex 2 Companies are not part of the Chang Cheng Group. Even on the plaintiff’s own case, the plaintiff was the one who instructed Mr Tay to assess the net asset value of the Chang Cheng Group, including the Annex 2 Companies, for the purpose of formulating a proposal for the parties to part ways. As Mr Tay was merely following the plaintiff’s instructions, the 2017 Spreadsheet cannot be said to reflect Mr Tay’s understanding of the Chang Cheng Group’s composition. I thus gave no weight to this document in arriving at my finding that the Annex 2 Companies are part of the Chang Cheng Group.

  106. [66] In summary, I find that the plaintiff has established on the balance of probabilities that the Annex 2 Companies (except TP 201) are part of the Chang Cheng Group because: (a) they were incorporated for the benefit of the Chang Cheng Group; (b) the purchase of their properties was funded by the Chang Cheng Group; and (c) they were integrated into the Chang Cheng Group.

  107. The contractual relationship between the parties before the 2011 Agreement

  108. [67] I turn to the second subsidiary issue.

  109. [68] Part of the plaintiff’s case is that – before the Owners entered into the 2011 Agreement – he and the defendant entered into an agreement in or around 2001 that the plaintiff would have a 50% interest in the Chang Cheng Group and that the defendant and Mdm Lim would each have a 25% interest in the Chang Cheng Group, (“the 25% Agreement”).

  110. [69] The defendant, on the other hand, argues that the parties agreed in or around 1999 that the plaintiff would have a 70% interest and that the defendant would have a 30% interest in the Chang Cheng Group (“the Shareholding Agreement”).

  111. [70] Neither party seeks any relief in relation to the existence or the enforcement of the 25% Agreement. But in their supplementary written submissions tendered after the oral closing submissions, both parties submit that I ought to make a determination on this issue that is not merely an intermediate and incidental determination but a final determination that is capable of binding the parties in future litigation by way of an issue estoppel.

  112. [71] As such, I have determined this issue as though the relief that the plaintiff seeks in his claim includes a declaration that the parties entered into the 25% Agreement; and as though the relief that the defendant seeks in his counterclaim includes a declaration that the parties entered into the Shareholding Agreement.

  113. [72] I find that the ownership of the Chang Cheng Group before the 2011 Agreement was governed by the Shareholding Agreement and not the 25% Agreement.

  114. [73] There is no evidence, other than the plaintiff’s own assertion, that the parties ever entered into the 25% Agreement. The circumstantial evidence relied on by the plaintiff does not support a finding that the parties entered into the 25% Agreement.

  115. [74] The plaintiff relies on the undisputed fact that, the Owners entered into the 2011 Agreement as support for his case that the parties entered into the 25% Agreement. But the fact that the parties entered into the 2011 Agreement in or about 2011 is irrelevant to the issue of whether the parties entered into a separate agreement to the same effect in 2001.

  116. [75] The plaintiff relies on a letter dated 6 February 2017 signed by the plaintiff, the defendant and Mdm Lim. The letter “served ‘to make good’ the shares of past years’ profit”, as the past profit-sharing “had NOT been distribute[d] based on the Director’s Ownership Percentage” of 50% for the plaintiff and 25% each for the defendant and Mdm Lim. This letter, however, provides no indication as to when the shareholding of 50:25:25 was agreed upon. It is equally likely that this letter was seeking to adjust the past distribution of profits in accordance with the 2011 Agreement and not pursuant to any agreement reached in 2001.

  117. [76] In fact, there is objective evidence which points against the existence of the 25% Agreement. The documents “BOD Profit Sharing for Year 2009” and “BOD Profit Sharing for Year 2010” show that Mdm Lim was entitled to only 3% of the profits of the Chang Cheng Group in 2009 and 2010. According to Ms Yaw, the parties decided to increase the total points of profit to 130, giving some of the remaining 30 points to key management employees of the Chang Cheng Group including Mdm Lim. That Mdm Lim was entitled to only 3% of the profits of the Chang Cheng Group in 2009 and 2010 contradicts the plaintiff’s case that the parties had agreed in 2001 that Mdm Lim should have a 25% interest in the Chang Cheng Group.

  118. [77] I thus reject the plaintiff’s case that the parties ever entered into the 25% Agreement.

  119. [78] By contrast, the contemporaneous and independent evidence suffices to prove on the balance of probabilities that the parties did enter into the Shareholding Agreement.

  120. [79] First, the document titled “BOD Profit Sharing for Year 2009” reflects an income split of 70% for the plaintiff and 30% for the defendant. Ms Yaw gave evidence that she prepared this document, as well as earlier profit-sharing documents from 2006 on the understanding that the parties’ interest in the Chang Cheng Group was based on the Shareholding Agreement. I found her evidence on this aspect of the defendant’s case to be credible and reliable.

  121. [80] Next, the 70:30 split of income is also reflected in the document titled “BOD Profit Sharing for Year 2010”. Both the plaintiff and the defendant signed and expressly approved this document. Their signatures confirm their agreement that the profit-sharing arrangement was in accordance with the Shareholding Agreement, at least for the year 2010.

  122. [81] Further, comparing the profit-sharing documents for 2009 and 2010 with those for years 2011 to 2017 shows that 2011 was the first year when the 70:30 profit sharing proportion was changed to reflect the 50:25:25 profit sharing proportion under the 2011 Agreement. This is consistent with the defendant’s case that the parties departed from the Shareholding Agreement only when they entered into the 2011 Agreement with Mdm Lim. It is also undisputed that the parties’ shared the profits of their first business, ie, the economy rice stall in Woodlands (see [9] above), in the proportion of 70% for the plaintiff and 30% for the defendant. I find it more likely than not that the parties agreed to continue this arrangement under the Shareholding Agreement until they entered into the 2011 Agreement.

  123. [82] Finally, Mr Paul Kok gave evidence that he prepared the profit and loss accounts of the Chang Cheng Group from 1998 to around 2001. His evidence was that before 2001, he had prepared the accounts on the basis that the plaintiff was the sole owner of the businesses. But after 2001, the plaintiff instructed Mr Paul Kok to prepare the profit and loss accounts based on the terms of the Shareholding Agreement. I found Mr Paul Kok’s evidence on this point reliable and credible.

  124. [83] Considering all of this evidence, I find that the parties entered into the Shareholding Agreement. In view of the parties’ common position that I ought to decide this issue formally and with finality, I have included in the judgment that I have entered in this action a formal declaration that the parties did not enter into the 25% Agreement and did enter into the Shareholding Agreement.

  125. The plaintiff failed to prove that the parties entered into the First Agreement

  126. [84] On the first main issue, the plaintiff has failed to prove on the balance of probabilities that the parties entered into the First Agreement. I start with the law on oral contracts.

  127. The law on oral contracts

  128. [85] The substantive requirements for an oral contract are the same as the requirements for a written contract, namely, (a) an offer and an acceptance; (b) an intention to create legal relations; (c) certainty of terms; and (d) consideration (Tan Swee Wan and another v Johnny Lian Tian Yong [2018] SGHC 169 at [222]).

  129. [86] In determining whether the substantive requirements for an oral contract to arise have been met, the following principles apply:

  130. (a) The court will consider the relevant documentary evidence and the contemporaneous conduct of the parties at the material time (ARS v ART and another [2015] SGHC 78 (“ARS”) at [53(a)]).

  131. (b) Where possible, the court should look first at the relevant documentary evidence (ARS at [53(b)]). If there is little or no documentary evidence, the court will nevertheless examine the precise factual matrix to ascertain if the parties concluded an oral contract (ARS at [53(g)]).

  132. (d) Oral evidence may be less reliable as it is based on the witnesses’ recollection and may be coloured by subsequent events, such as the dispute that has arisen between the parties (ARS at [53(d)]). Oral evidence becomes even less reliable where many years have passed since the disputed events (ARS at [54]).

  133. (e) Credible oral evidence may clarify the existing documentary evidence (ARS at [53(e)]).

  134. (f) Where the witness is not legally trained, the court should not place undue emphasis on the choice of words (ARS at [53(f)]).

  135. [87] Finally, as emphasised in Chan Tam Hoi (alias Paul Chan) v Wang Jian and other matters [2022] SGHC 192 (“Chan Tam Hoi”), the burden of proof is on the plaintiff to prove its positive case (at [38]). It is “especially important” to bear this in mind in cases involving oral contracts, where there will be gaps in evidence precisely because there is no direct evidence pointing to a written agreement (Chan Tam Hoi at [38]).

  136. [88] With the above principles in mind, I start by considering the relevant documentary evidence.

  137. The 2017 Spreadsheet is of minimal relevance

  138. [89] The plaintiff places significant weight on the 2017 Spreadsheet to support his case that the parties entered into the First Agreement. As noted above at [64]–[65], Mr Tay prepared this spreadsheet on the plaintiff’s instructions to calculate the value of the defendant’s interest in the Annex 2 Companies on two alternatives: (a) the defendant’s registered shareholdings in the Annex 2 Companies; and (b) the defendant’s 25% interest in the Chang Cheng Group.

  139. [90] The plaintiff’s original case was that the First Agreement arose from an offer that the defendant made to the plaintiff in October 2018 through Mr Cho as intermediary and that the plaintiff accepted the defendant’s offer, again through Mr Cho. In support of this case, the plaintiff submitted in his written closing submissions that the 2017 Spreadsheet is evidence that the parties entered into the First Agreement because it shows that the plaintiff asked Mr Tay to prepare the spreadsheet to evaluate the commerciality of the defendant’s offer. But in oral closing submissions, the plaintiff now relies on the 2017 Spreadsheet to advance a different case: “that this [spreadsheet] was in fact the basis of [the plaintiff’s] proposal … for the [F]irst [A]greement which was ultimately accepted” by the defendant.

  140. [91] The plaintiff’s new case as to who made the offer that led to the First Agreement is materially inconsistent with his original case. This inconsistency in itself casts doubts on whether the parties in fact entered into the First Agreement.

  141. [92] Leaving that point aside, I consider that the 2017 Spreadsheet supports neither version of the plaintiff’s case. I take the plaintiff’s oral closing submissions as stating his final position on how the First Agreement was formed. The 2017 Spreadsheet is little support for this case for three reasons.

  142. [93] First, the 2017 Spreadsheet is not a contemporaneous document. It was prepared in August 2017. The plaintiff’s case is that the parties started discussing how they were to part ways only in August 2018. At best, all that the 2017 Spreadsheet suggests is that the plaintiff in August 2017 was considering making an offer to the defendant of the terms of the First Agreement. It does not warrant any inference that the plaintiff in fact made any such offer in August 2018, let alone that the defendant accepted any such offer.

  143. [94] Second, the 2017 Spreadsheet does not suggest that the defendant had any incentive to accept any offer from the plaintiff to enter into the First Agreement. I reject the plaintiff’s argument that the spreadsheet shows that the defendant had a meaningful upside in entering into the First Agreement. The 2017 Spreadsheet shows that entering into the First Agreement would involve the defendant giving up an interest worth $3,751,246.18 in the food and beverage businesses in return for an interest worth $2,782,656.99 in the Annex 2 Companies. Taking the plaintiff’s case at its highest and assuming that these figures amount to reliable and accurate evidence of the exchange of value between the parties under the First Agreement assessed in August 2017, it is unclear how accepting an offer in terms of the First Agreement would bring any upside to the defendant. It is undisputed that in August 2018, the defendant rejected the plaintiff’s offer to purchase the defendant’s interest in the Chang Cheng Group for $25m. That being the case, it is inherently unlikely that the defendant would have contracted to sell the same interest just two months later in return for a mere $2.78m. Even based on the plaintiff’s own figures, entering into the First Agreement would have left the defendant worse off by over $1m ($3,751,246.18 - $2,782,656.99).

  144. [95] Finally, the plaintiff points out that the defendant himself has described a sub-worksheet from the 2017 Spreadsheet in his list of documents as the plaintiff’s “proposed recalculations”. I do not accept this as any sort of admission by the defendant. The phrase “recalculations” is ambiguous. It can indeed refer to recalculations of the parties’ interests in the Annex 2 Companies, which is what the plaintiff suggests. But it could equally refer to recalculations of profits, which is Mr Tay’s evidence. I therefore do not place any weight on the defendant’s characterisation of this sub-worksheet.

  145. [96] For the same reasons, the 2017 Spreadsheet does not even support the plaintiff’s original case: that the defendant made an offer to the plaintiff which the plaintiff accepted. I add that it makes no sense for the plaintiff to have approached Mr Tay in August 2017 with the terms of the First Agreement allegedly in mind, when it is also the plaintiff’s case that it was the defendant who made the offer to the plaintiff in terms of the First Agreement.

  146. [97] For all of these reasons, I do not accept that the 2017 Spreadsheet supports the plaintiff’s case that the parties entered into the First Agreement.

  147. The meeting between the plaintiff and Mr Cho has little weight

  148. [98] I turn to the next item of evidence that the plaintiff relies on, which is an audio recording of a meeting between the plaintiff and Mr Cho on 15 October 2021.

  149. [99] The plaintiff submits that this audio recording shows that Mr Cho clearly confirmed in this meeting that the defendant had agreed to withdraw from the food and beverage businesses of the Chang Cheng Group unconditionally, in exchange for retaining his interest in CCGPL and the Annex 2 Companies as reflected in those companies’ register of shareholders. The plaintiff points to the following exchanges between himself and Mr Cho at this meeting:

  150. [100] I give these statements by Mr Cho very little weight. I consider them to be unreliable for the following reasons.

  151. [101] First, Mr Cho’s statements are not contemporaneous evidence of the parties’ contractual intention objectively ascertained in October 2018. That is the critical time, because that is the time at which the plaintiff alleges that they entered into the First Agreement. Mr Cho made these statements almost three years later.

  152. [103] Third, it is obvious from listening to this recording that both the plaintiff and Mr Cho were intoxicated during this meeting. The plaintiff confirms that he and Mr Cho had been drinking alcohol for about two hours before the meeting. Mr Cho’s evidence is that he had “drunk a lot” – about seven or eight bottles of beer.

  153. [104] In all the circumstances, I consider it likely that Mr Cho was saying at this meeting what he thought the plaintiff wanted to hear. As Mr Cho puts it, he responded to the plaintiff in a manner intended “to humour” the plaintiff. This is very often what an intermediary does when there is a breakdown between the two principal parties. I therefore consider Mr Cho’s statements to be unreliable evidence of the parties’ intentions in October 2018 and worthy of very little weight.

  154. [105] In any event, even if I go into the content of Mr Cho’s statements, they are not of much assistance to the plaintiff. During the meeting, the plaintiff says to Mr Cho: “And if he withdraw [sic] without conditions and took all the real estate, he wouldn’t have… This is actually 25%. The businesses are 35%, 40%, right?” (see [99] above). This is at most a vague statement which alludes to the defendant receiving a larger interest in the Annex 2 Companies. But this is slender evidence from which to infer that the parties entered into the First Agreement.

  155. The statement made by the plaintiff to his former solicitor was inadmissible

  156. [106] The plaintiff also relies on the evidence of his former solicitor, Mr Lim Kok Meng (“Mr Lim”). The plaintiff instructed Mr Lim in July 2020 in relation to the Second Agreement. Mr Lim was not advising the plaintiff in relation to or at the time of the First Agreement.

  157. [107] According to Mr Lim, the plaintiff told him in July 2020, as part of his instructions on the background to the Second Agreement, that the defendant had already agreed to relinquish 25% of his share in the Chang Cheng Group and in return, “in terms of the [Annex 2] companies, notwithstanding that [the defendant] should have only been entitled to 25 per cent, … he would be given whatever that was in ACRA, which would be higher than 25 per cent”.

  158. [108] Mr Lim’s evidence does not assist the plaintiff to prove that the parties entered into the First Agreement.

  159. [109] First, Mr Lim’s evidence of the plaintiff’s out-of-court statement to him that the parties had entered into the First Agreement is inadmissible to prove the truth of its contents. Section 62(1) of the Evidence Act 1893 (2020 Rev Ed) (“the Evidence Act”) states that oral evidence “must in all cases be direct”. Specifically, if the oral evidence refers to a fact which could be heard, it must be the evidence of a witness who says he or she heard that fact (s 62(1)(a) Evidence Act). What the plaintiff must prove on this branch of his case is that offer and acceptance coincided in October 2018 to give rise to the First Agreement as a contract. I assume for present purposes that this is a question of pure fact. Mr Lim, however, did not witness this fact directly. In other words, Mr Lim’s evidence of the plaintiff’s statement to him is not direct evidence of the contents of the statement within the meaning of s 62(1) of the Evidence Act. As such, the plaintiff cannot rely on Mr Lim’s evidence to prove that the parties did indeed enter into the First Agreement.

  160. [110] Second, even if the plaintiff’s out-of-court statement to Mr Lim in July 2020 were admissible despite s 62(1) of the Evidence Act, it is of very little weight. The plaintiff relies on Mr Lim’s evidence to prove what is in truth a mixed question of fact and law or perhaps even an opinion (ie, that offer and acceptance coincided in October 2018 to give rise to the First Agreement), and not to prove an issue of pure fact. In this context, the plaintiff’s out-of-court statement to Mr Lim in July 2020 is of very little weight as it is self-serving evidence. Indeed, it is perhaps even inadmissible as a mere statement of opinion.

  161. [111] Section 159 of the Evidence Act does not assist the plaintiff. Under this provision, a former statement made by a witness “relating to the same fact at or about the time when the fact took place” may be proved at trial to corroborate the witness’s evidence (see eg, Auto Lease (Pte) Ltd v San Hup Bee Motor LLP and others [2023] SGHC 141 at [118]–[119]). As the defendant submits, s 159 of the Evidence Act is relevant only where the former statement was made “at or about the time when the fact took place”. Here, there is a significant gap of almost two years between the date on which the plaintiff alleges the parties entered into the First Agreement and the date on which the plaintiff made these statements to Mr Lim.

  162. [112] Finally, the test of whether parties intend to enter into a contract is objective (Tribune Investment Trust Inc v Soosan Trading Co Ltd [2000] 2 SLR(R) 407 (“Tribune Investment”) at [41]). A party’s subjective belief that a counterparty has entered into a contract with him is immaterial (Tribune Investment at [41]). As such, even taken at its highest, all that the plaintiff’s statement to Mr Lim in July 2020 establishes is that the plaintiff subjectively believed in July 2020 that the parties had entered into the First Agreement in October 2018. It is not evidence that they actually did so.

  163. The alleged 25% Agreement does not assist the plaintiff’s case

  164. [113] The plaintiff also relies on his case that the parties entered into the 25% Agreement as evidence that the parties entered into the First Agreement. The submission is that it was because the defendant had only a 25% interest in the Annex 2 Companies pursuant to the 25% Agreement that the defendant had an incentive to enter into the First Agreement, ie, to increase his interest in the Annex 2 Companies so that it matched his registered shareholding in those companies.

  165. [114] I have rejected the plaintiff’s claim that the parties entered into the 25% Agreement (see [77] above) even though I have accepted the plaintiff’s claim that the Annex 2 Companies are part of the Chang Cheng Group (see [66] above). It follows from my rejection of the plaintiff’s case on the 25% Agreement that he cannot rely on it as evidence to support his claim that the parties entered into the First Agreement.

  166. [115] Even if I were to find that the parties did enter into the 25% Agreement, I reject the plaintiff’s submission that the 25% Agreement, which gave rise to merely personal obligations, could have had the proprietary effect of limiting the defendant’s interest in the Annex 2 Companies to 25%. I explain my reasons for this conclusion below.

  167. The parties’ subsequent conduct does not assist the plaintiff

  168. [117] Having said that, I am prepared to assume in favour of the plaintiff that I may consider the parties’ subsequent conduct as evidence to support this branch of his case, at least up to the point where a dispute arose, and the parties’ relationship became adversarial. It appears to me that the parties’ conduct after this point is unlikely to be reliable evidence for the reasons I have given. I therefore do not consider any conduct by the parties after January 2021. That is when the parties assumed adversarial positions in anticipation of proceedings to resolve the dispute between them.

  169. [118] I now turn to the items of subsequent conduct on which the plaintiff relies.

  170. [119] The first item is the defendant’s conduct in resigning as an officeholder in the food and beverage businesses of the Chang Cheng Group and transferring the Annex 1 Shares to the plaintiff in December 2018 (see [20] above). But this conduct is consistent only with defendant’s alleged obligation under the First Agreement. The defendant’s conduct gives no indication as to the plaintiff’s obligation in return. In fact, the defendant’s conduct is equally consistent with his case that the parties entered into the Share Sale Contract (see [129] below). As such, this conduct is of little weight as evidence that the parties entered into the First Agreement.

  171. [120] Next, the plaintiff relies on the parties’ subsequent conduct in relation to CCGPL. As I have mentioned, CCGPL occupies a special position in the Chang Cheng Group. It owns real property while also owning operating subsidiaries. CCGPL is not an Annex 1 Company. As such, the defendant continues to be a shareholder of CCGPL to this day. After the defendant transferred the Annex 1 Shares to the plaintiff, CCGPL transferred all of its shares in its own subsidiaries directly and only to the plaintiff and Mdm Lim. None of CCGPL’s shares in its subsidiaries were transferred to the defendant.

  172. [121] According to the plaintiff, CCGPL’s transfers of the shares in its subsidiaries only to the plaintiff and Mdm Lim is evidence that the parties entered into the First Agreement. It is part of the defendant’s agreement to relinquish entirely his interest in the food and beverage businesses and to retain only his registered interests in the Annex 2 Companies and in CCGPL (because it owns real property).

  173. [122] The existence of the First Agreement is not the only, or even a more likely, explanation for CCGPL’s transfer of the shares in its subsidiaries to [the plaintiff and Mdm Lim. Once again, this conduct is equally consistent with the defendant’s case that the parties entered into the Share Sale Contract (see [129] below). As such, this conduct is of little weight as evidence that the parties entered into the First Agreement.

  174. [123] In fact, as the defendant points out, his conduct in resigning as a director of CCGPL contradicts the terms of the First Agreement. Under the First Agreement, the defendant was required to resign as an officeholder in the food and beverage businesses. On the plaintiff’s own case, CCGPL is not a food and beverage business because it owns real property. In oral closing submissions, counsel for the plaintiff explained that “it [was] part of the [F]irst [A]greement that he would relinquish all his interest[s] in the businesses of the Chang Cheng Group [and] to take no further part of the business operations”. This explanation does not address the inconsistency between the defendant’s resignation as an officeholder of CCGPL and the alleged terms of the First Agreement.

  175. [124] I thus find that the parties’ conduct in relation to CCGPL does not support a finding that the parties entered into the First Agreement.

  176. [125] The plaintiff next relies on the parties’ subsequent conduct in entering into the Second Agreement. Under the Second Agreement, the parties agreed to part ways in four of the Annex 2 Companies (ie, MT59, TP 201, Hougang 631 and Aljunied 119) by divesting their interest in these companies to these companies’ third-party shareholders in accordance with the parties’ registered shareholding. According to the plaintiff, this conduct is consistent with the terms of the First Agreement and hence supports his case that the parties entered into the First Agreement.

  177. [126] Once again, the existence of the First Agreement is not a likely explanation for the parties’ conduct in agreeing to the terms of the Second Agreement. That the parties dealt with their interests in these four Annex 2 Companies in accordance with their registered shareholdings is equally consistent with the defendant’s case that the parties’ interest in the Annex 2 Companies equalled their registered shareholding from the outset. As such, I do not accept that the Second Agreement supports a finding that the parties entered into the First Agreement.

  178. [128] For all of these reasons, I find that the plaintiff has failed to establish on the balance of probabilities that the parties entered into the First Agreement. The defendant is therefore entitled to a declaration that the parties did not enter into the First Agreement.

  179. The defendant failed to prove that the parties entered into the Share Sale Contract

  180. [129] I turn to the defendant’s case that the parties entered into the Share Sale Contract. The defendant’s case is that the terms of the Share Sale Contract are as follows:

  181. (a) The defendant would transfer all his shares in ten companies in the Chang Cheng Group to the plaintiff and resign as an officeholder of the companies in the Chang Cheng Group.

  182. (b) The plaintiff would fully and fairly compensate the defendant for his 25% share in the Chang Cheng Group within seven months after he transferred these shares to the plaintiff.

  183. [130] Because the defendant does not accept that the Annex 2 Companies are part of the Chang Cheng Group, the implicit consequence of the Share Sale Contract is that the defendant retains his registered shareholding in the Annex 2 Companies absolutely.

  184. [131] It is common ground that the defendant has not received any compensation for the Annex 1 Shares that he transferred to the plaintiff in December 2018. The defendant’s counterclaim therefore seeks damages from the plaintiff for his breach of the Share Sale Contract.

  185. [132] The defendant originally pleaded that the ten companies whose shares he was to transfer to the plaintiff were the Annex 1 Companies. In oral closing submissions, however, the defendant withdrew this list, leaving the ten companies whose shares he was to transfer to the plaintiff unspecified in the Share Sale Contract.

  186. [133] I find it inherently unlikely that the defendant would have agreed to enter into a contract on such uncommercial terms. The Share Sale Contract: (a) allowed the plaintiff to dictate the ten companies whose shares the defendant was to transfer to the plaintiff; (b) obliged the defendant to resign as an officeholder from the companies in the Chang Cheng Group; (c) required the defendant to wait patiently up to seven months for payment; and (d) left entirely unquantified the sum that the plaintiff was to pay the defendant within those seven months.

  187. [134] Leaving aside the lack of commerciality in the alleged Share Sale Contract, there is also insufficient evidence to establish on the balance of probabilities that the parties ever entered into this contract. For instance, Mr Cho, who the defendant alleges conveyed the plaintiff’s offer of this contract to the defendant, gave evidence that the plaintiff’s offer was “not about the interest in [the] Chang Cheng Group” but about “the sign[ing] [of] the documents for [the plaintiff] so that the company could continue its operations”. This evidence contradicts the defendant’s pleaded case. There is in fact little or no evidence to prove that the parties ever entered into the Share Sale Contract.

  188. [135] Even on the assumption that that the plaintiff made on offer of the Share Sale Contract to the defendant through Mr Cho and the defendant accepted it again through Mr Cho, I find that the terms of the Share Sale Contract are insufficiently certain to give rise to a contract.

  189. [136] On the defendant’s own case, the Share Sale Contract did not specify which ten companies’ shares the defendant was to transfer to the plaintiff or how “the full and fair compensation” was to be quantified. The pleaded terms of the Share Sale Contract suggest that the agreement between the parties, if any agreement was reached, was no more than an agreement to negotiate. A mere agreement to negotiate is too uncertain to be enforceable and therefore cannot give rise to a contract (JVL Agro Industries Ltd v Agritrade International Pte Ltd [2016] 4 SLR 768 at [99]–[100], citing Walford v Miles [1992] 2 AC 128).

  190. [137] The defendant has also not specified with the necessary certainty when the parties entered into the Share Sale Contract. In Independent State of Papua New Guinea v PNG Sustainable Development Program Ltd [2019] SGHC 68 (“PNG”), it was held that although it is not necessary for a party to plead “the exact date” [emphasis in original] when an alleged oral contract was made, the party must plead a date with “reasonable certainty” (at [148]). The plaintiff in PNG identified 20 days in October 2001 as the relevant period in which an alleged oral contract was entered into (PNG at [149]). On the facts of PNG, this did not satisfy the requirement of reasonable certainty.

  191. [138] In the present case, the defendant pleads that: (a) the plaintiff made an offer of the Share Sale Contract to him “[i]n or around early-mid December 2018”; (b) the defendant accepted the offer; and (c) the defendant transferred the Annex 1 Shares to the plaintiff “on 20 December 2018”. Like the plaintiff in PNG, the defendant has failed to plead with reasonable certainty the date when the parties entered into the Share Sale Contract.

  192. [139] Indeed, the defendant himself acknowledges the lack of certainty in the Share Sale Contract. Although his primary submission is that the parties are bound by the Share Sale Contract, his alternative submission is that the Share Sale Contract is void for uncertainty.

  193. [140] In my view, an offer in the terms of the Share Sale Contract, even if it were made and accepted, could not, as a matter of law, amount to a contract. It would have been nothing more than an unenforceable agreement to agree.

  194. [141] For these reasons, I find that the defendant has failed to prove on the balance of probabilities that the parties entered into the Share Sale Contract. As such, it is unnecessary for me to consider whether the plaintiff has breached the Share Sale Contract.

  195. The plaintiff holds the Annex 1 Shares on resulting trust for the defendant

  196. [142] I have found that the parties did not enter into either the First Agreement (the plaintiff’s case) or the Share Sale Contract (the defendant’s case). In oral closing submissions, counsel for the plaintiff accepted that, if the plaintiff failed to prove on the balance of probabilities that the parties had entered into the First Agreement, then the result would be that the plaintiff would hold the Annex 1 Shares on a resulting trust for the defendant.

  197. [143] Quite apart from the plaintiff’s concession, it is clear that the legal requirements for a resulting trust are satisfied. A resulting trust arises where a transferor transfers property or causes property to be transferred to a transferee in circumstances in which the transferor lacks an intent to benefit the transferee (Lau Siew Kim v Yeo Guan Chye Terence and another [2008] 2 SLR(R) 108 at [35]). It is undisputed that the defendant did not intend the transfer of the Annex 1 Shares to the plaintiff to an unconditional benefit the plaintiff, ie, to be a gift to the plaintiff. Even on the plaintiff’s own case, the defendant was to receive consideration in the form of an increased interest in the Annex 2 Companies.

  198. [144] This suffices to give rise to a resulting trust over the Annex 1 Shares binding the plaintiff in favour of the defendant. It is thus unnecessary for me to address the defendant’s alternative case to recover the Annex 1 Shares in unjust enrichment or on a constructive trust.

  199. [145] The plaintiff is therefore liable to deliver the Annex 1 Shares up to the defendant for no consideration. He is also liable to account to the defendant for any and all benefits that the plaintiff has received since the defendant transferred the Annex 1 Shares to him in December 2018 where those benefits are referable to the Annex 1 Shares.

  200. Issue 2: The Third Agreement

  201. [146] I turn to the second issue, which is whether the parties entered into the Third Agreement. According to the plaintiff, the parties entered into the Third Agreement on 5 December 2020 when the defendant accepted, through Mr Paul Kok, the plaintiff’s offer in the following terms:

  202. (a) The plaintiff would purchase the shares registered in the defendant’s name in CCGPL and the remaining six Annex 2 Companies (ie, TP406, MS 136, MS 166, HOL 40, NL 10 and TP 802). The purchase price would be based on the values of the properties held by those companies.

  203. (b) Each party would procure valuations of the properties held by those companies from reputable property valuers by 5 January 2021. In the event of a difference in the two valuations for any given property, the sale price of the shares in that entity would be based on the average of the two valuations.

  204. [147] The plaintiff seeks a declaration that the parties are bound by the Third Agreement. The plaintiff also seeks a declaration that the defendant breached the Third Agreement and should be compelled specifically to perform it or to pay damages in lieu of specific performance.

  205. [148] In my view, the parties had arrived by 5 December 2020 at, at most, a consensus ad idem on a possible way forward for a parting of the ways. But this consensus ad idem did not give rise to a contract because the parties lacked the intention to create legal relations on 5 December 2020.

  206. [149] I start with the undisputed facts. It is undisputed that in November or December 2020, the parties were negotiating through Mr Paul Kok as their intermediary the terms on which the defendant would sell to the plaintiff his interest in CCGPL and the remaining six Annex 2 Companies. More specifically, it is undisputed that the plaintiff met Mr Paul Kok on or around 2 December 2020 and conveyed a proposal for the defendant to purchase the defendant’s shares in CCGPL and the remaining Annex 2 Companies based on a valuation of the real property held by these seven companies at $100m. On the same day, the plaintiff asked Mr Paul Kok to give the defendant a handwritten note from the plaintiff. The plaintiff’s note set out his valuation of each of the seven real properties held by CCGPL and the remaining Annex 2 Companies. The defendant confirms that Mr Paul Kok conveyed to him the plaintiff’s proposal and his handwritten note.

  207. [150] The parties’ dispute of fact is over the subsequent events.

  208. [151] According to the plaintiff, Mr Paul Kok informed him on 5 December 2020 that the defendant had accepted the plaintiff’s proposal. Additionally, the plaintiff alleges that the defendant counteroffered the term set out at [146(b)] above, and that the plaintiff told Mr Paul Kok that he accepted the term. The plaintiff’s case is that the defendant’s counteroffer and the plaintiff’s acceptance of it gave rise to the Third Agreement on 5 December 2020.

  209. [152] The defendant and Mr Paul Kok, on the other hand, assert that the defendant did not accept the plaintiff’s offer. According to them, Mr Paul Kok suggested that the parties obtain their own valuations, and it was the plaintiff who then altered his own offer by proposing the term set out at [146(b)] above on 10 December 2020. The defendant alleges that he rejected the plaintiff’s offer and asked Mr Paul Kok to communicate his rejection to the plaintiff. Mr Paul Kok confirms that he conveyed the defendant’s rejection to the plaintiff in or around March 2021.

  210. [153] As cautioned in ARS, parties’ oral evidence tends to be less reliable in ascertaining whether the parties entered into a contract (see [86(d)] above). Oral evidence is based on recollection, which may be inaccurate and tainted by subsequent events. I thus place little weight on resolving this discrepancy in the parties’ oral evidence.

  211. [154] Before I address other items of evidence that I have considered in arriving at a finding on the Third Agreement, I deal with a preliminary objection by the defendant. The defendant contends that the alleged terms of the Third Agreement are too uncertain to give rise to a contract because important commercial terms remain unresolved. I reject this argument.

  212. [155] It is well-established that the requirement of certainty may be satisfied even if some contractual terms have not yet been finalised (Toptip Holding Pte Ltd v Mercuria Energy Trading Pte Ltd and another appeal [2018] 1 SLR 50 (“Toptip”) at [40]). The test is whether an “objective appraisal of the conduct and language of the negotiating parties leads to the conclusion that, having agreed on the essential terms, [the parties] intended to be bound immediately” (Toptip at [40]).

  213. [156] The essential terms of a contract of sale generally include the parties, the price and the subject matter (Tan Ngiap Tong v Tan Ngep Hong [2021] SGHC 220 at [5]). I accept the plaintiff’s submission that each of these essential terms can be found in the alleged terms of the Third Agreement. The plaintiff and the defendant are the parties to the contract. The subject matter is the defendant’s registered shareholdings in CCGPL and the remaining Annex 2 Companies. The purchase price is based on the values of the properties held by those companies. The alleged terms of the Third Agreement even include a mechanism for establishing those values. It is true that the alleged terms of the Third Agreement make no provision for “the completion date, the signing date, bank financing and pre-emptive rights and the companies’ liabilities”. But in my view, the lack of agreement on these issues does not introduce so much uncertainty that no contract could arise. The essential terms were agreed.

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