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Grounds publishedDecided 31 Dec 2014
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High Court

Freddie Koh Sin Chong v Singapore Swimming Club

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[2014] SGHC 276Case no. Suit No 634 of 2012

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Grounds of decision

Official text from eLitigation

  1. Lee Kim Shin JC:

  2. Introduction

  3. [1] The Singapore Swimming Club (“the Club”) represents itself as “The Premier Family Club” in Singapore. The objects of the Club are to promote and provide facilities for, amongst other activities, swimming. In recent years however, the Club has found itself swimming in a sea of litigation. Excluding the present proceedings, all proceedings connected with the subject matter of the present proceedings and all proceedings commenced in the State Courts, the Club has been named a party to seven unrelated sets of proceedings in the High Court brought by members of the Club since 2008.

  4. [2] There must be something in the water.

  5. [4] The Club denies that the Plaintiff is entitled to the indemnity which he claims on various grounds. The Club also counterclaims for the recovery of the sums that it had previously paid out pursuant to the aforesaid MC resolution. Its counterclaim is based on another set of resolutions passed at a member’s extraordinary general meeting held in 2012.

  6. [5] Values, intentions and sentiments, however long established or firmly held, are aspects of human nature that may change over time. To the extent these aspects are expressed as policies or principles approved as resolutions of a legal entity, it follows that resolutions of such nature may be amended, revoked or completely reversed to reflect a change in thinking. This present dispute involves a change in an established policy of the Club and the legal consequences that follow.

  7. [6] I delivered oral judgment on 12 December 2014. These are my detailed grounds.

  8. Background

  9. Key players

  10. [7] I first set out a list of the key persons involved in the present dispute.

  11. [8] The Plaintiff’s tenure as President of the Club lasted from May 2008 to March 2012. During this time, the composition of the MC changed. Two periods are significant.

  12. [9] The first is the period between May 2008 and May 2009 when the MC comprised the following 12 persons (“the 2008 MC”):

  13. (a) the Plaintiff as President;

  14. (b) Michael Ngu as Vice-President;

  15. (c) Tan Wee Tin as Honorary Treasurer; and

  16. (d) various other committee members, namely, Eric Ng, Loreen Teo, William Kwok, Ng Kok Seong, Ashok Sharma, Shahul Hassan, Mike Chia, Theresa Kay and Gary Oon.

  17. [10] The second is the period between May 2011 and March 2012 when the MC comprised the following 11 persons (“the 2011 MC”):

  18. (a) the Plaintiff as President;

  19. (b) David Poh as Vice-President;

  20. (c) Tan Wee Tin as Honorary Treasurer; and

  21. (d) various other committee members, namely, Eric Ng, Loreen Teo, William Kwok, Ng Kok Seong, Soh Kee Hock, Lim Khee Lim, Jane Loh and Andy Tang.

  22. [11] The other key persons in the dispute are:

  23. (a) Chua Hoe Sing, the Club’s current President;

  24. (b) Khoo Boo Beng (“BB Khoo”), a former general manager of the Club; and

  25. (c) Jennifer Wee, the Club’s financial controller from 31 January 2008 to the present.

  26. [12] In the present proceedings, the Plaintiff was represented by Mr Paul Seah (“Mr Seah”). Mr Tan Chee Meng SC (“Mr Tan”) represented the Club.

  27. [13] The constitutional document of the Club which sets out, inter alia, the powers of the MC, is known as the Rules of the Club, and will hereafter be referred to as “the Club’s Rules”.

  28. The defamation suit

  29. [14] The present proceedings have their origins in Suit 33 of 2009 (“Suit 33”). This was a defamation action commenced in the High Court against the Plaintiff by four members of the MC that preceded the 2008 MC (respectively “the Suit 33 Plaintiffs” and “the 2007 MC”). The alleged defamation arose from two statements made by the Plaintiff at separate MC meetings, which were subsequently published on the Club’s notice board in October and November 2008.

  30. [15] The thrust of these statements concerned the 2007 MC’s decision to purchase a new water system for the Club’s swimming pools. In making the purchase, the 2007 MC had relied on a provision in the Club’s Finance Operating Manual (“the FOM”), which allowed the MC to approve unbudgeted expenditure on the basis of it being an “emergency” before having the expenditure ratified at the next Annual General Meeting (“AGM”) of the Club.

  31. [16] The 2008 MC was elected at the Club’s AGM on 25 May 2008 (“the 2008 AGM”). When the expenditure for the water system was put forward for ratification at the 2008 AGM, a motion was instead carried for a Special Ad-Hoc Audit Committee (“the Audit Committee”) to be formed to investigate the said expenditure. The Audit Committee later submitted its report to the 2008 MC. The Audit Committee found that the expenditure was of an emergency nature and that the 2007 MC had not breached any Club procedures.

  32. [17] Subsequently, the Honorary Treasurer of the 2008 MC, Tan Wee Tin, found several documents which were not disclosed to the Audit Committee. These documents contained information which was inconsistent with representations made by the 2007 MC at the 2008 AGM. After further investigations, Tan Wee Tin reported his findings at two MC meetings on 29 October and 26 November 2008.

  33. [18] At the MC meeting on 29 October 2008, the Plaintiff made the first statement suggesting that the 2008 MC should correct a “misrepresentation of the facts made by the [2007 MC] to influence the ratification of the expenditure at the [2008 AGM]”. At the subsequent MC meeting on 26 November 2008, the Plaintiff made the second statement which consisted of several allegations including that, “[i]t could be a case of misrepresentation of facts to the [2008 AGM] to get ratification for a capital expenditure for a water system that could not be justified under the urgent/emergency reason”.

  34. [19] Both the first and second statements were recorded in the minutes of the respective MC meetings which were then published on the Club’s notice board, in accordance with Club practice.

  35. [20] On 22 December 2008, the Suit 33 Plaintiffs, through their solicitors, WongPartnership LLP (“WongPartnership”), sent a letter of demand to the Plaintiff. The letter of demand alleged that the statements made by the Plaintiff were defamatory of the Suit 33 Plaintiffs. It was further alleged that the Plaintiff had falsely and maliciously defamed the Suit 33 Plaintiffs. It was demanded that the Plaintiff, amongst other things, apologise and undertake not to repeat the defamatory statements and compensate the Suit 33 Plaintiffs for the damage to their reputation.

  36. Events preceding the 14 January 2009 MC meeting

  37. [21] On 23 December 2008, BB Khoo, acting on Eric Ng’s instructions, emailed the Club’s insurance brokers, Acclaim Insurance Brokers Pte Ltd (“Acclaim”), to enquire whether the Plaintiff’s case would be covered by the Club’s existing Directors & Officers Liability Insurance Policy (“the insurance policy”) that had just been renewed in October 2008. Eric Ng was then the Rules and Membership Chairman of the 2008 MC. On 26 December 2008, Acclaim replied to state that the insurer had not determined the policy liability.

  38. [22] On 29 December 2009, Acclaim sent another email to BB Khoo to highlight that the Plaintiff’s case might fall within the “Insured v Insured” exclusion clause under the insurance policy (“the Insured v Insured Exclusion”). The effect of the Insured v Insured Exclusion was that the insurance policy would not cover a case where both the party suing and the party being sued fell within the definition of an “insured” person under the policy. Acclaim noted in its email that the definition of “insured” covered all past, present and future MC members, and therefore, the Plaintiff and the Suit 33 Plaintiffs would both fall under that definition.

  39. [23] BB Khoo forwarded Acclaim’s email to Eric Ng and the Plaintiff on 30 December 2008. On the same day, Eric Ng replied to BB Khoo stating as follows:

  40. [24] On 12 January 2009, Suit 33 was filed against the Plaintiff. The Suit 33 Plaintiffs’ principal claim was that the Plaintiff had falsely and maliciously made the statements which were defamatory of them. In his defence, the Plaintiff denied that the meaning of the statements were defamatory. Even if they were, the Plaintiff averred that they were justified.

  41. [25] On 13 January 2009, the insurer wrote to Acclaim to state its position that the Plaintiff’s case fell within the Insured v Insured Exclusion. On the same day, Acclaim forwarded a copy of the insurer’s letter to BB Khoo and the Plaintiff via email.

  42. The passing of the Indemnity Resolution

  43. [27] An MC meeting was held on 14 January 2009 (“the 14 January 2009 MC Meeting”). During this meeting, the 2008 MC first discussed the issue of the Club’s insurance coverage under its renewed policy. Suit 33 was discussed next. The latter discussion was concerned, in particular, with the issue of whether the Club should cover its MC members in the event that they were sued for acts done in their capacity as MC members. The 2008 MC then unanimously adopted and approved the following resolution:

  44. Both parties in the present proceedings referred to this resolution as the “Indemnity Resolution”. I will retain this term in these grounds.

  45. [28] It should be noted that there are two key disputes of fact in these proceedings regarding the circumstances under which the Indemnity Resolution was passed:

  46. (a) The first concerns a letter which was sent to the Club by 10 Club members on 14 January 2009, just before the MC meeting held on the same date (“the 14 January 2009 Members Letter”). In that letter, the 10 Club members expressed the view that the Club should not be liable for the tortious acts of its MC members; and that Club funds should not be used to pay for the Plaintiff’s legal costs, expenses or damages in Suit 33. The 10 Club members also asked that their letter be forwarded to the 2008 MC. It is disputed whether this was in fact done.

  47. (b) The second concerns the Insured v Insured Exclusion under the Club’s insurance policy. The parties disputed whether this exclusion was discussed at the 14 January 2009 MC Meeting and whether the 2008 MC, apart from the Plaintiff and Eric Ng, knew of this exclusion before adopting the Indemnity Resolution.

  48. [29] The minutes of the 14 January 2009 MC Meeting, which contained the Indemnity Resolution, were put up on the Club’s notice board. Thereafter, the Club proceeded to pay various sums in relation to the Plaintiff’s defence in Suit 33 and the further proceedings precipitated by it. In this regard, when payments were to be made, the Plaintiff would generally forward the relevant invoice to Jennifer Wee, the Club’s financial controller. Jennifer Wee would then prepare the necessary cheque or cashier’s order for Tan Wee Tin’s approval, as Honorary Treasurer, in accordance with the Club’s FOM.

  49. OS 469 - The challenge to the Indemnity Resolution

  50. [30] On 22 April 2009, a member of the Club, Poh Pai Chin, filed Originating Summons No 469 of 2009 (“OS 469”) against the 2008 MC members who had passed the Indemnity Resolution, with the exception of Gary Oon, Theresa Kay and Mike Chia. The Club was later joined as a defendant on 3 August 2009.

  51. [31] Poh Pai Chin sought:

  52. (a) a declaration that on a proper interpretation of the Club’s Rules, Club funds could not be used to pay the Plaintiff’s legal costs in Suit 33;

  53. (b) a declaration that the Indemnity Resolution was void and ultra vires the Club’s Rules;

  54. (c) a declaration that the defendants’ authorisation for Club funds to be used to pay the Plaintiff’s legal costs in Suit 33 was void and ultra vires the Club’s Rules;

  55. (d) an order that the defendants repay the Club all the funds which had been used to pay the Plaintiff’s legal costs in Suit 33; and

  56. (e) an order that the defendants be restrained from using Club funds to pay the Plaintiff’s legal costs in Suit 33.

  57. [32] Without diving too deep into the facts of OS 469, it is important to note that one of the main factual issues which surfaced in OS 469 related to the 14 January 2009 Members Letter. In this regard, Gary Oon filed an affidavit on Poh Pai Chin’s behalf, deposing that the letter had not been circulated at the 14 January 2009 MC Meeting, and that he would not have authorised the use of the Club’s funds for the Plaintiff’s defence in Suit 33 had the letter been made known to him. Against this, Ashok Sharma and BB Khoo filed affidavits for the defendants in which they both deposed that the letter was circulated at the 14 January 2009 MC Meeting. Ashok Sharma also deposed that the Indemnity Resolution was passed because the Club was not covered by insurance in respect of the Plaintiff’s defence in Suit 33. He stated that the Club had obtained insurance coverage in furtherance of the Club’s longstanding policy to indemnify the Club and its office bearers in respect of legal proceedings taken against them. However, the insurance policy contained the Insured v Insured Exclusion, which excluded any insurance coverage for Suit 33. Pursuant to the Club’s policy of indemnifying office bearers, the 2008 MC therefore passed the Indemnity Resolution in accordance with their powers.

  58. [33] OS 469 was dismissed by the High Court on 24 August 2009 without written grounds being issued. Poh Pai Chin did not appeal.

  59. The 2009 AGM

  60. [34] The Club’s members were informed about OS 469 at the Club’s AGM on 24 May 2009 (“the 2009 AGM”). This arose in the context of a motion to refer Gary Oon and Theresa Kay to the Club’s Disciplinary Committee for writing to Poh Pai Chin’s solicitors in connection with OS 469. The complaint in the motion was that Gary Oon and Theresa Kay had, without first consulting with the other 2008 MC members, informed Poh Pai Chin’s solicitors that they had both not authorised the use of Club funds for the Plaintiff’s defence in Suit 33 when the 2008 MC had, in fact, unanimously passed the Indemnity Resolution.

  61. [35] During the discussion of this motion at the 2009 AGM, the Plaintiff informed the Club’s members that it had always been the Club’s practice and policy to use Club funds to defend its MC members if they were sued in the course of discharging their duties and responsibilities. Gary Oon took the converse position and told the members that defamation was a voluntary act and could not be said to have been done in the discharge of duties as an MC member. He therefore said that defamation should not be covered by Club funds.

  62. [36] Thereafter, a member of the Club, Mr Rajsingham, proposed a motion that the general meeting re-affirm the Indemnity Resolution in the following terms:

  63. The minutes of the 2009 AGM show that a vote was taken, there were no objections and the general meeting unanimously adopted the re-affirmation of the Indemnity Resolution.

  64. [37] However, the Suit 33 Plaintiffs and two other members of the Club challenged the re-affirmation of the Indemnity Resolution at the 2009 AGM in Originating Summons No 826 of 2009. The High Court found the re-affirmation to be null and void on the ground that it was not a matter specified on the agenda for the 2009 AGM and that this amounted to a breach of the Club’s Rules.

  65. The 2010 AGM

  66. [38] The Indemnity Resolution again came up for discussion at the Club’s AGM on 23 May 2010 (“the 2010 AGM”). Prior to the 2010 AGM, the Club’s 2009/2010 Annual Report was distributed to the Club members. The Club’s audited accounts for the financial year ending 31 January 2010, which were exhibited in the 2009/2010 Annual Report, indicated that the Club had spent $508,000 on legal and professional fees during that financial year.

  67. [39] This prompted two members, namely, Frances Wong and Chew Siong Lim, to request a breakdown of this expenditure item at the 2010 AGM. The minutes of the 2010 AGM state that the breakdown was projected on the screen during this AGM. It showed that the bulk of the expenditure, in the sum of $403,000, had gone towards the Plaintiff’s defence in Suit 33.

  68. [40] Thereafter, the use of the Club’s funds for the Plaintiff’s defence in Suit 33 was debated in some detail by the members at the 2010 AGM. It is recorded that the following was explained to the members:

  69. (a) a further $350,000 had been set aside in the Club’s budget for use in Suit 33 for the financial year ending 31 January 2011;

  70. (b) in the event that the Club (or to be more accurate, the Plaintiff) lost Suit 33, the Club would have to bear the total costs and damages itself because it was not covered by insurance; and

  71. (c) it would be difficult to predict what the total costs of the Plaintiff’s defence in Suit 33 would be.

  72. After this debate, the Annual Report and Accounts were confirmed and adopted by the members without objections.

  73. The High Court judgment in Suit 33

  74. [41] Suit 33 was dismissed by the High Court on 29 October 2010, with written grounds reported as Chan Cheng Wah Bernard and others v Koh Sin Chong Freddie [2010] SGHC 324. By its decision, the High Court found that the statements made by the Plaintiff were defamatory of the Suit 33 Plaintiffs based on their natural and ordinary meaning. However, the High Court found that the Plaintiff had justified the gist of the defamatory sting. The parties in Suit 33 filed appeals against those parts of the High Court’s decision which were adverse to them, the Suit 33 Plaintiffs’ appeal being Civil Appeal No 210 of 2013 and the Plaintiff’s appeal being Civil Appeal No 213 of 2013 (collectively, “the Suit 33 Appeals”).

  75. The 2011 AGM

  76. [43] It appears from the minutes that there was no discussion relating to Suit 33 at the 2011 AGM. However, as the members had done in the previous year, the Annual Report and Accounts were confirmed and adopted without objections.

  77. The CA Judgment in Suit 33

  78. [44] The Court of Appeal’s judgment for the Suit 33 Appeals was delivered on 21 November 2011. Its written grounds can be found in Chan Cheng Wah Bernard v Koh Sin Chong Freddie and another appeal [2012] 1 SLR 506 (“the CA Judgment”). The Court of Appeal allowed the Suit 33 Plaintiffs’ appeal and dismissed the Plaintiff’s cross-appeal. The Court of Appeal found that the statements were defamatory and had not been justified.

  79. [45] The Court of Appeal then went on to consider whether the statements were made on an occasion of qualified privilege, even though the issue was not canvassed in the Suit 33 Appeals. The Court of Appeal found that the statements were made on an occasion of qualified privilege, but that this defence was defeated by the Plaintiff’s malice in making the statements. On the issue of malice, the Court of Appeal observed that:

  80. Events following the CA Judgment

  81. The re-affirmations of the Indemnity Resolution

  82. [46] Shortly after the CA Judgment was delivered, a special confidential MC meeting was convened, on 14 December 2011, to discuss the verdict in the Suit 33 Appeals (“the 14 December Special Meeting”). It should be noted that the MC’s composition at this time was different from when the Indemnity Resolution was passed (see [9]–[10] above), in that five members of the 2011 MC were not in the 2008 MC. Only six members of the 2011 MC attended this meeting as the other five were overseas, on medical leave, or in the Plaintiff’s case, excused from attending because the subject matter of the meeting related to him.

  83. [47] During the 14 December Special Meeting, it was noted that D&N had asked the Club to reconfirm its indemnity to the Plaintiff should they be asked to represent the Plaintiff in the hearing on assessment of damages for Suit 33. The 2011 MC was of the view that there was no need to provide a further indemnity. It was noted that the Indemnity Resolution remained in effect and the Club’s ability to provide such an indemnity had been upheld when challenged in OS 469. Further, the 2011 MC unanimously agreed that the Club should provide an indemnity to all members who served on the MC or its sub-committees.

  84. [48] On 19 December 2011, a further special confidential MC meeting was convened. This time, 10 of the 11 members of the 2011 MC attended. The 2011 MC members, with the exception of the Plaintiff who was excused from attending on this item, were asked to confirm their agreement with the decisions and actions taken at the 14 December Special Meeting. They did so unanimously.

  85. [49] On 18 January 2012, the Club received a requisition for an Extraordinary General Meeting (“the EOGM”) from 538 Club members. The requisition was for the purpose of passing the following three resolutions (collectively, “the EOGM Resolutions”):

  86. (a) that the Club seeks return from the Plaintiff of all monies paid by the Club including legal costs and expenses arising out of or in connection with Suit 33 and the Suit 33 Appeals;

  87. (b) that no Club funds be authorised to pay for the legal costs, expenses and/or damages arising out of or in connection with Suit 33 and the Suit 33 Appeals; and

  88. (c) that the members have no confidence in the Plaintiff.

  89. [51] On the very same day that the Club received the requisition for the EOGM, a special confidential MC meeting was convened on an urgent basis. Having discussed the requisition, the 2011 MC decided to re-affirm the Indemnity Resolution. The minutes of the meeting state that:

  90. The payment of $1,021,793.48

  91. (a) On 31 January 2012, the Plaintiff’s then solicitors, Bajwa & Co, sent a letter to the Plaintiff and the Club to inform them of the outcome of the taxation of the Suit 33 Plaintiffs’ costs in Suit 33 and the Suit 33 Appeals. The Plaintiff forwarded this email to the rest of the 2011 MC on 2 February 2012.

  92. (b) On 3 February 2012, WongPartnership sent a letter to Bajwa & Co to demand payment of the Suit 33 Plaintiffs’ costs. Bajwa & Co forwarded this letter to the Plaintiff on 10 February 2012 via email. Bajwa & Co’s advice in their email was in the following terms:

  93. (c) The Plaintiff, in turn, forwarded Bajwa & Co’s email to Tan Wee Tin and Jennifer Wee on 13 February 2012. The Plaintiff indicated in the email to Jennifer Wee that:

  94. (d) On 13 February 2012, Tan Wee Tin reminded Jennifer Wee to make the payment as soon as possible to avoid accruing interest. The next day, Jennifer Wee received an email from Eric Ng suggesting that the monies be put in escrow pending the outcome of the review of taxation. Eric Ng’s concern was that there might have been collection issues between the Club and the Suit 33 Plaintiffs should the costs order be subsequently varied by the court. However, as Jennifer Wee did not receive further instructions to hold back the cheque, she prepared a payment voucher and a cheque for $1,021,793.48 which was approved and signed by Tan Wee Tin on the same day.

  95. The EOGM

  96. Events after the EOGM

  97. [56] Civil Appeal Nos 63 and 68 of 2012 were heard on 18 March 2013. On appeal, the Court of Appeal varied the High Court’s orders as follows:

  98. (a) the Plaintiff was to pay the Suit 33 Plaintiffs $200,000 in damages, with interest on the said sum to run from the date of assessment in the High Court to the date of payment at the rate of 3% per annum;

  99. (b) each party was to bear his own costs for the appeals as well as for the assessment of damages in the High Court;

  100. (c) the costs of the trial for Suit 33 was fixed at $200,000 plus disbursements fixed at $80,000;

  101. (d) the costs of the Suit 33 Appeals was fixed at $45,000 inclusive of disbursements, to be paid by the Plaintiff to the Suit 33 Plaintiffs; and

  102. (e) the surplus amount paid by the Plaintiff for the costs of Suit 33 was to be refunded to the Plaintiff with interest at the rate of 3% per annum to run from the date the money was paid to the date it was refunded.

  103. The present action

  104. [57] The present action has its origins in two separate actions, namely, Originating Summons No 309 of 2012 (“OS 309”), filed by the Plaintiff against the Club on 28 March 2012, and Suit No 510 of 2012/X (“Suit 510”), filed by the Club against the Plaintiff on 18 June 2012. Pursuant to orders made by an Assistant Registrar on 27 July 2012, OS 309 was converted into a writ action and consolidated with Suit 510 to comprise the present suit, Suit No 634 of 2012 (“Suit 634”).

  105. [58] In Suit 634, the Plaintiff makes three principal claims for relief:

  106. (a) a declaration that the Indemnity Resolution is valid and binds the Club;

  107. (b) a declaration that the EOGM Resolutions are ineffectual to vary and/or alter the Plaintiff’s right to be indemnified under the Indemnity Resolution for costs and damages incurred by him in respect of Suit 33 and its related actions; and

  108. (c) an order that the Club pay the Plaintiff the sum of $248,900.91 and the costs and expenses of defending OSB 35 (see [55] above) pursuant to the Indemnity Resolution.

  109. The sum of $248,900.91 in item (c) above comprises sums which the Plaintiff personally paid in respect of his legal costs and damages in Suit 33 and its related proceedings, that is, $41,010.50 in legal fees paid to Bajwa & Co and $200,000 in damages paid to the Suit 33 plaintiffs plus interest at $7,890.41.

  110. [59] The Club denies that the Plaintiff is entitled to the relief he claims. In addition, the Club counterclaims for the sum of $1,520,685.44 (and pre-judgment interest on this sum at 5.33% per annum from 18 June 2012) comprising:

  111. (a) $1,033,810.35 paid prior to the CA Judgment delivered on 21 November 2011; and

  112. (b) $486,875.09 paid after the CA Judgment delivered on 21 November 2011.

  113. These comprise various sums paid by the Club in respect of the Plaintiff’s legal costs in Suit 33 and its related proceedings.

  114. Issues

  115. [60] Based on parties’ arguments, the issues before me broadly are as follows:

  116. (a) the effect of the EOGM Resolutions on the Indemnity Resolution;

  117. (b) whether the Indemnity Resolution is void or voidable for material non-disclosure;

  118. (c) whether the Indemnity Resolution is voidable for breach of fiduciary duties by the Plaintiff and/or the other MC members; and

  119. (d) whether the Club had paid the Plaintiff’s legal costs under a mistake.

  120. The Effect of the EOGM Resolutions on the Indemnity Resolution

  121. [61] Before turning to the parties’ arguments proper, there is a preliminary issue which needs to be addressed. This concerns the legal character of the Indemnity Resolution, and more specifically, whether the Indemnity Resolution is a contract as between the Plaintiff and the Club. Neither party addressed this issue squarely; although both parties at some point in submissions seemed to suggest that the Indemnity Resolution did have contractual force.

  122. [62] As will become evident below, the legal character of the Indemnity Resolution is important in two respects:

  123. (a) The first relates to whether the Club could revoke the Indemnity Resolution by way of the EOGM Resolutions.

  124. (b) The second relates to the principles to be applied in the interpretation of the Indemnity Resolution.

  125. [63] In analysing this preliminary issue, it is helpful to first consider the Club’s legal personality.

  126. [64] The Club is an unincorporated association and it is not a legal entity in and of itself. The Club is instead a creature of the contract as between its members, and which is encapsulated in the Club’s Rules: see In re Sick and Funeral Society of St John’s Sunday School, Golcar [1973] Ch 51 at 60; McGuire Graeme and others v Rasmussen John and others [1998] 1 SLR(R) 892 at [13]; Petrie Christopher Harrisson v Jones Alan and others [2005] 2 SLR(R) 387 (“Petrie Christopher Harrisson”) at [18]. The Club’s Rules govern the relationship between the members and define their rights, duties and liabilities.

  127. [65] Given the private nature of the contract between the members, it has been observed that an unincorporated association is run by the members for the members, with no outside control: see David Ashton and Paul W Reid, Ashton and Reid on Club Law (Jordans, 2005) (“Ashton and Reid on Club Law”) at para 1-09. However, it is commonly the case that the general management and the day-to-day operations of an unincorporated association are left to a committee. Taking the example of the present case, the MC manages the Club pursuant to Rule 21(a)(i) of the Club’s Rules. Rule 21(j), in turn, defines the MC’s powers in the following terms:

  128. [66] In this regard, the power exercised by the committee of an unincorporated association is a delegated power. In other words, the right of each and every voting member to decide how the unincorporated association is to be managed and run is vested in the committee. To this end, committee members are considered to be agents or servants of their associations, and therefore, responsible to and subject to the control of the members of the association. Flowing from this, it is axiomatic that the committee is to exercise its powers for the benefit of the unincorporated association as a whole: Woodford and another v Smith and another [1970] 1 WLR 806 at 816. I should also note that it was common ground in these proceedings that the MC owes fiduciary duties to the Club’s members.

  129. [67] Against this background, I return to the issue I had raised earlier, that is, whether the Indemnity Resolution is a contract as between the Plaintiff and the Club. This turns on the more general issue of what is the legal effect of resolutions passed by committees or members of unincorporated associations. Surprisingly, there seems to be little clear authority on the issue.

  130. [68] In its simplest form, a resolution may be defined a “formal determination by an organised meeting”: see N E Renton, Guide for Meetings and Organisations Volume 2: Guide for Meetings (LBC Information Services, 7th Ed, 2000) at para 4.1. In other words, resolutions are formal decisions of an entity, be it a company or some other association of persons. Importantly, however, it is also observed in Tan Cheng Han ed, Walter Woon on Company Law (Sweet & Maxwell, 3rd Ed, 2009) (“Walter Woon on Company Law”) at para 6.69, albeit in the context of resolutions passed by the organs of a company, that whilst “a resolution may be a decision of the company, it does not ipso facto amount to a contract”. The authors cite two cases as authority for this proposition, to which I now turn to consider in some detail.

  131. [69] The first is the decision of the Malaysian High Court in Lam Eng Rubber Factory (M) Sdn Bhd v Lim Beng Yew & Ors [1994] 3 MLJ 405 (“Lam Eng Rubber”). In that case, the plaintiff company claimed repayment of various sums of money that it had allegedly advanced to the defendants, who were shareholders of the plaintiff. In this regard, the plaintiff relied on a directors’ resolution to the effect that the company would advance sums totalling RM 360,000 to the defendants as interest-free loans. The plaintiff contended that the resolution amounted to a contract in writing and therefore, under s 91 of the Malaysian Evidence Act 1950 (Act 56), extrinsic evidence could not be admitted to contradict its terms. In rejecting this argument, KC Vohraj J observed as follows at 409:

  132. [70] This aspect of Lam Eng Rubber was subsequently approved by the Malaysian High Court in EON Bank Bhd v KSU Holdings Bhd [2011] 8 MLJ 498. There, the plaintiff bank claimed against the defendant company for specific performance of a corporate guarantee which the defendant had allegedly given to the plaintiff. Although a guarantee document had been sent to the defendant, this was never executed. Instead, the plaintiff relied on a board resolution of the defendant authorising it to provide the guarantee as evincing the relevant contract. Hanipah Farikullah JC found that such reliance was misplaced as the resolution was not a contract. Having cited the above passage in Lam Eng Rubber, Farikullah JC continued (at [57]–[59]):

  133. [71] The second decision cited in Walter Woon on Company Law is that of the Singapore High Court in Goh Kim Hai Edward v Pacific Can Investment Holdings Ltd [1996] 1 SLR(R) 540 (“Goh Kim Hai Edward”). The issue in that case was whether the plaintiff’s employment contract with the defendant company had been renewed by a board resolution in the following terms:

  134. [72] Judith Prakash J was of the view that it had not. She observed as follows (at [57]–[58]):

  135. [73] Finally, reference may be made to the decision of the New South Wales Court of Appeal in Ex parte Forster; Re University of Sydney [1964] NSWR 1000. There the view was stated that:

  136. [74] I agree with the observations made in the above authorities. In my view, the authorities can be distilled into the following set of principles:

  137. (a) resolutions are formal decisions made by an entity;

  138. (b) resolutions do not have legal effect in and of themselves:

  139. (i) a resolution is not a contract as between the members of the entity themselves or between the entity and third parties;

  140. (ii) a resolution may however be binding as between the members if the constitutional documents of the entity or a statutory provision provides it to be so;

  141. (iii) legal rights and obligations may be independently created if the entity acts pursuant to the resolution and enters into legally binding transactions; and

  142. (c) resolutions, unlike a contract, may be rescinded or amended at any time.

  143. (a) In the minutes of the 14 January 2009 MC Meeting it was recorded that:

  144. (b) Likewise, the minutes of the 17 February 2009 MC meeting record that:

  145. (c) Finally, during the 2009 AGM, the Plaintiff explained to the members that it had always been the practice and policy of the Club that Club funds be used to defend its MC and other committee members if they were sued in the course of discharging their duties and responsibilities.

  146. [76] In my judgment, it is clear from the above that the Indemnity Resolution, by itself, did not give the Plaintiff an irrevocable contractual right to be indemnified by the Club.

  147. Payments made by the Plaintiff after the EOGM Resolutions were passed

  148. [77] In closing submissions, Mr Seah submitted that the EOGM Resolutions do not vary the Club’s obligation to indemnify the Plaintiff. Mr Seah submitted that since delegated power had been exercised by the 2008 MC in passing the Indemnity Resolution, its decision cannot be challenged in the absence of special provision in the Club’s Rules. In this regard, Mr Seah relied on a passage in Madeline Cordes et al, Shackleton on the Law and Practice of Meetings (Sweet & Maxwell, 12th Ed, 2011) (“Shackleton”) where the view is stated at para 9-04 that:

  149. [80] Mr Seah raised an alternative submission that the Club is estopped from denying that the Plaintiff is entitled to rely on the Indemnity Resolution. To the extent that Mr Seah sought to rely on the doctrine of estoppel (whether by representation or by convention) to buttress his claim that the Plaintiff has a right to be reimbursed for payments which the Plaintiff made personally after the EOGM Resolutions were passed (as opposed to being used as a defence to the Club’s claim for the recovery of the payments which the Club had made), his contentions do not hold water.

  150. [81] As I observed earlier, the Plaintiff does not have a contractual right to be indemnified by the Club. Hence, to allow him to rely on the doctrine of estoppel in the manner which he proposes would be tantamount to the use of the doctrine as a sword in the sense of a free-standing cause of action and not merely as a shield. So far, the Singapore courts have not accepted that the doctrine of estoppel may be used in this way (see for example Sea-Land Service Inc v Cheong Fook Chee Vincent [1994] 3 SLR(R) 250 at [23]; OMG Holdings Pte Ltd v Pos Ad Sdn Bhd [2012] 4 SLR 201 at [72]; Rudhra Minerals Pte Ltd v MRI Trading Pte Ltd (formerly known as CWT Integrated Services Pte Ltd) [2013] 4 SLR 1023 at [52]).

  151. Payments made by the Club before the EOGM Resolutions were passed

  152. Grounds for Recovery

  153. The Club’s case

  154. [83] I now turn to consider the Club’s arguments as to why it is entitled to recover the sums it paid pursuant to the Indemnity Resolution. In closing submissions, Mr Tan made three principal arguments.

  155. [84] First, Mr Tan submitted that the Plaintiff and his “cronies” in the 2008 MC had concealed the 14 January 2009 Members Letter, and the fact that the Plaintiff’s defence in Suit 33 fell under the Insured v Insured Exclusion in the Club’s insurance policy, from the other 2008 MC members at the 14 January 2009 MC Meeting. According to Mr Tan, the Indemnity Resolution was passed under a fundamental mistake arising from the deception of the Plaintiff and his “cronies” in the 2008 MC, and therefore, the Indemnity Resolution is void or voidable at the Club’s instance. Alternatively, Mr Tan submitted that the Indemnity Resolution should be voidable at the Club’s instance given the Plaintiff’s “sharp practice” in procuring the Indemnity Resolution.

  156. [85] Second, Mr Tan submitted that the Indemnity Resolution was voidable due to various breaches of fiduciary duties on the part of the Plaintiff and his “cronies” in the 2008 MC. In particular, it was alleged that:

  157. (a) at the 14 January 2009 MC Meeting, the Plaintiff had actively participated and influenced the 2008 MC in passing the Indemnity Resolution, in breach of the Club’s Rules and the Plaintiff’s fiduciary duties;

  158. (b) the Plaintiff and his “cronies” had a vested interest in passing the Indemnity Resolution. The Indemnity Resolution was passed to cover the Plaintiff’s liabilities in Suit 33. Further, the Plaintiff’s “cronies” may also have been implicated in the defamatory statements as they were present during the MC meetings when the defamatory statements were made. Therefore, the Indemnity Resolution was not passed in the Club’s interests;

  159. (c) the Plaintiff and his “cronies” had breached their fiduciary duties to the Club in re-affirming the Indemnity Resolution even after the Court of Appeal had found, in the CA Judgment, that the Plaintiff had acted with malice in making the defamatory statements; and

  160. (d) the Plaintiff had breached his fiduciary duties by procuring payment of his legal costs despite knowing that he would not be covered by the Indemnity Resolution because of his own malice.

  161. [86] Third, Mr Tan submitted that even if the Indemnity Resolution remains valid, it was only intended to cover office bearers acting in the proper discharge of their duties. In this regard, Mr Tan submitted that because the Plaintiff had acted with malice when he made the defamatory statements, he cannot be said to have acted in the proper discharge of his duties and he is therefore not entitled to rely on the Indemnity Resolution. Hence, Mr Tan said, the Club had paid the Plaintiff’s liabilities in respect of Suit 33 under a mistake and is entitled to restitution of the sums it paid under the law of unjust enrichment.

  162. [87] Two preliminary observations should be made at this juncture.

  163. Consistency with the Club’s pleaded case

  164. [89] In the Club’s Counterclaim, there was also no prayer for a declaration that the Indemnity Resolution was void or voidable, whether for mistake, unconscionability or for breach of fiduciary duties, nor was there a prayer for relief in the form of equitable rescission (of the Indemnity Resolution and the payments made pursuant to it). Rather, the Club’s Counterclaim was ostensibly pleaded solely as a claim in unjust enrichment for restitution of payments made by the Club. I will return to the specific issues arising from the Club’s pleadings later in these grounds.

  165. The Club’s allegation that certain members of the 2008 MC and the 2011 MC were the Plaintiff’s “cronies”

  166. [90] Next, a common thread running through the Club’s closing submissions is that certain members of the 2008 and 2011 MC were the Plaintiff’s “cronies”. In particular, the impression which this seeks to convey is that these MC members had acted in concert with the Plaintiff and had advanced his interests over the interests of the Club. In my view, the Club’s position is untenable for the following reasons.

  167. [91] First, the Club did not plead this as a fact. Instead, the Club only pleaded that the other 2008 MC members had a vested interest in passing the Indemnity Resolution because of the risk of them being implicated in Suit 33. In my view, there is a fundamental difference between saying that the other 2008 MC members had a vested interest in passing the Indemnity Resolution in this sense, and saying that they were acting in concert with the Plaintiff and advancing his interests.

  168. [92] Second, the Club did not identify in closing submissions who these alleged “cronies” were; and more importantly, whether these MC members were in fact the Plaintiff’s “cronies”. I note in this regard that seven of the 12 members of the 2008 MC were not called as witnesses in this Suit 634. Without their evidence, I am not in a position to impute any sinister motives in passing the Indemnity Resolution to each and every one of them.

  169. [93] Third, the Club’s submissions largely gloss over the fact that the composition of the 2011 MC, which had re-affirmed the Indemnity Resolution at three separate MC meetings after the CA Judgment (see [46] – [51] above), was different from the composition of the 2008 MC which had passed the Indemnity Resolution. This is significant because:

  170. (a) there were five newly elected members of the 2011 MC who were not members of the 2008 MC. These new 2011 MC members would have no fear of being implicated in Suit 33, and they would not have had a vested interest in ensuring that the Indemnity Resolution remained in force to protect the Plaintiff; and

  171. (b) the Club has not proven that the members of the newly constituted 2011 MC were also the Plaintiff’s cronies. In this regard, I do not think it is open to the Club to barely assert (without any evidence), as it has done in closing submissions, that the new members of the 2011 MC had a vested interest in protecting the Plaintiff and the rest of the 2008 MC because of their close relationships with the 2008 MC members who had nominated them.

  172. [94] Along the same lines, the Club also submitted that the minority in the 2008 MC were bullied and intimidated into agreeing with the Plaintiff and his “cronies” at MC meetings. To make good this submission, the Club relied on statements made by Theresa Kay and Gary Oon at the 2009 AGM, which were recorded in the minutes of this AGM.

  173. [95] As regards Theresa Kay’s statement, I find that it is inadmissible hearsay as she was not called as a witness at trial and I therefore say nothing further on it.

  174. [96] As for Gary Oon’s statement, the minutes of the 2009 AGM record it as follows:

  175. [97] I am mindful that Gary Oon’s statements at the 2009 AGM were made in response to the motion to censure him at this AGM (see [34] above), for not consulting with the 2008 MC before replying to the 14 January 2009 Members Letter. His statements at this AGM may therefore have been motivated by self-preservation.

  176. [98] Moreover, the evidence does not support Gary Oon’s assertion that he was under “undue duress” to agree to the Indemnity Resolution. The agreed transcripts of the 14 January 2009 MC Meeting show the 2008 MC freely discussing the Indemnity Resolution at some length. Pertinently, they show Gary Oon actively participating in the discussion and enquiring whether the law allowed the 2008 MC to pass the Indemnity Resolution. Furthermore, Gary Oon did not object to the Indemnity Resolution when it was passed. Instead, he only did so belatedly, after receiving the 14 January 2009 Members Letter. In cross-examination, Gary Oon conceded that he had changed his mind because of the 14 January 2009 Members Letter:

  177. [99] In his affidavit, Gary Oon also referred to a 2008 MC meeting on 17 February 2009 (“the 17 February 2009 MC Meeting”) and a chain of emails which preceded that MC meeting as an instance where he was “overwhelmingly shot down” by the other members of the 2008 MC. The difficulty with Gary Oon’s evidence in this respect is that it ignores the reasons why the other 2008 MC members had expressed irritation with him. In this regard, Gary Oon had sought to amend the minutes of the 14 January 2009 MC Meeting to read that:

  178. (a) no votes were taken on the Indemnity Resolution and it thus could not be said that the 2008 MC had unanimously agreed to it;

  179. (b) making defamatory allegations was the responsibility of the MC member concerned and the Club should not be responsible for it; and

  180. (c) Gary Oon had disagreed that the Club should assume all liability in the defence of such cases.

  181. [100] During the 17 February 2009 MC Meeting, Gary Oon likewise objected to the confirmation of the minutes of the 14 January 2009 MC Meeting on the basis that the Indemnity Resolution was not passed unanimously.

  182. [101] In my view, Gary Oon was attempting to re-write history by raising the technical objection that the Indemnity Resolution was not passed unanimously as no vote had been taken, and instead, the 2008 MC members had been asked whether they had any objections to the Indemnity Resolution. This informal manner of voting accorded with past practice at MC meetings and Gary Oon knew this. It is plain on the evidence that Gary Oon did not object to the Indemnity Resolution at the 14 January 2009 MC Meeting. In the circumstances there was no reasonable basis for Gary Oon to claim during the 17 February 2009 MC Meeting that the Indemnity Resolution was not passed unanimously. Pertinently, in cross-examination, Gary Oon accepted that the other MC members were irritated with his attempts to amend the minutes of the 14 January 2009 MC Meeting to reflect statements which he had not made during that meeting, and when he could have properly raised these matters later in the 17 February 2009 MC Meeting under “matters arising” and not in the confirmation of the previous meeting’s minutes:

  183. [102] In the circumstances, I find that the Club has not proven its claim that the minority in the 2008 MC were bullied and intimidated into passing the Indemnity Resolution by the Plaintiff and his “cronies” in the 2008 MC.

  184. Whether the Indemnity Resolution was passed under a fundamental mistake or procured by sharp practice

  185. [104] As previously noted at [88] and [89] above, it is not clear from the Club’s Defence and Counterclaim that the Club was seeking to have the Indemnity Resolution, and the payments made pursuant to it, invalidated on this ground. In particular, the Club only pleaded that the Plaintiff did not bring the 14 January 2009 Members Letters and the Insured v Insured Exclusion to the attention of the other 2008 MC members when he had knowledge of these matters. The Club did not further plead an operative mistake on the part of the other 2008 MC members in passing the Indemnity Resolution. Nor did the Club furnish particulars of unconscionable conduct on the part of the Plaintiff and his “cronies”. Moreover, the Club’s Defence and Counterclaim did not pray for relief in the form of equitable rescission. Be that as it may, I need not say more on this point of pleading because I find the Club’s contentions untenable on substantive grounds (see [124]–[153] below).

  186. Res judicata

  187. [105] As a preliminary objection, Mr Seah submitted that the Club was precluded from raising the factual issues of the Plaintiff’s failure to disclose the 14 January 2009 Members Letter and the Insured v Insured Exclusion during the 14 January 2009 MC Meeting, by the doctrine of issue estoppel, or alternatively, the extended doctrine of res judicata.

  188. The law on res judicata and issue estoppel

  189. [106] The doctrine of res judicata comprises two related concepts. The first is cause of action estoppel, which, broadly speaking, prevents re-litigation of the same cause of action between the same parties. Cause of action estoppel did not feature in the proceedings before me. I therefore say nothing further on it.

  190. [107] The proceedings before me concerned the second concept of issue estoppel instead. Issue estoppel may arise even if the earlier decision did not determine the same cause of action being sued upon in the later proceedings; issue estoppel applies so long as the earlier decision determined an issue that was an essential step in the reasoning of that earlier decision. Should this issue prove to be relevant in later proceedings between the same parties, further consideration of that issue may be foreclosed: Goh Nellie v Goh Lian Teck and others [2007] 1 SLR(R) 453 (“Goh Nellie”) at [18].

  191. [108] Four requirements must be met before issue estoppel will arise (Lee Tat Development Pte Ltd v Management Corporation of Strata Title Plan No 301 [2005] 3 SLR(R) 157 (“Lee Tat”) at [14]–[15]):

  192. (a) there must be a final and conclusive judgment on the merits;

  193. (b) that judgment must be of a court of competent jurisdiction;

  194. (c) there must be identity between the parties to the two actions that are being compared; and

  195. (d) there must be an identity of subject matter in the two proceedings.

  196. [109] In the present case, parties did not dispute that the first two requirements were met and their arguments centred on the third and fourth requirements instead. I will therefore only set out the principles in relation to the third and fourth requirements.

  197. [110] With regard to the third requirement, namely, identity between the parties, the courts have not taken a narrow view of what this means. Instead, the courts have looked past the form to consider whether, in substance, the parties involved in the two sets of proceedings were effectively the same (see Lee Tat at [14] and Goh Nellie at [33]). As Lord Diplock observed in Hunter v Chief Constable of the West Midlands Police [1982] AC 529 at 541, issue estoppel may arise in civil actions between “the same parties or their privies”.

  198. [111] As for the fourth requirement of identity of subject matter, this turns on two factors. The first is that the issue in question must have been raised and argued in the earlier proceedings (Goh Nellie at [38]). The second is whether the previous determination of the issue in question was fundamental (and not merely collateral) to the previous decision so that the previous decision cannot stand without that determination (Goh Nellie at [35]).

  199. [112] If issue estoppel does not arise, because there is no identity between the parties or the subject matter of the earlier decision and the later proceedings, a party may also rely on the extended doctrine of res judicata, which is otherwise known as the defence of an abuse of process (see Goh Nellie at [19] and [23]).

  200. [113] The extended doctrine of res judicata is a matter of weighing competing interests. The courts are concerned with ensuring finality in judicial decisions and preventing a party from being unjustly hounded given the earlier history of the matter. The question is whether the issue ought to have been raised with reasonable diligence in the previous proceedings. However, the mere fact that the issue was not raised in the earlier proceedings does not necessarily render raising the issue in the later proceedings abusive. Thus the courts must consider whether it is in fact an abuse of process to raise the issue only at the later proceedings (see generally Goh Nellie at [52]).

  201. Application to the present case

  202. [114] With regard to the third requirement of issue estoppel, which is identity between the parties, I am of the view that the parties to OS 469 and to this Suit 634 were different. First, Poh Pai Chin is not a party to Suit 634. Second, and more importantly, the Club took a position in OS 469 which was aligned with its co-defendant, the Plaintiff, against a member of the Club. Affidavits had been filed on behalf of all the defendants in OS 469 and they stated, amongst other things, that the Indemnity Resolution was valid and intra vires the Club’s Rules, and that the 2008 MC and the Club could authorise the payment of the Plaintiff’s legal expenses. The undercurrent running through the affidavits filed by the defendants was that the Club, through the 2008 MC, had intended to pay the Plaintiff’s legal expenses.

  203. [115] In this Suit 634, however, the Club’s interests and the Plaintiff’s interests are diametrically opposed. While the Plaintiff is seeking to uphold the Indemnity Resolution, the Club is now opposing it in view of the EOGM Resolutions. The Club no longer wants to pay the Plaintiff’s legal expenses, and is further attempting to claw back payments it had already made. In effect, the Club has adopted an opposing position because the Club is now run by a different MC from the 2008 MC. The privies of the Club are different, and hence the position the Club now adopts is different too. I am not convinced that, in substance, there is identity between the Club in OS 469 and the Club in this Suit 634. Therefore, the third requirement to establish issue estoppel is not met.

  204. [116] With regard to the fourth requirement of issue estoppel, which is identity in subject matter, I am also not satisfied that this is made out. The central issue in OS 469 was whether the Indemnity Resolution was intra vires the Club’s Rules. In other words, OS 469 turned on whether it was within the 2008 MC’s power, as derived from the Club’s Rules, to pass the Indemnity Resolution in the first place. Poh Pai Chin had relied on the 14 January 2009 Members Letter to argue that point.

  205. [117] The issue in this Suit 634 is different. Here, no question of ultra vires arises. The Club accepts that it was within the 2008 MC’s power, under the Club’s Rules, to pass the Indemnity Resolution. However, the Club argues that the 2008 MC’s decision to do so has been vitiated on the grounds of mistake or unconscionability. The Club relies on the 14 January 2009 Members Letter and the Insured v Insured Exclusion to make out its case on these grounds.

  206. [118] I am mindful that it was disputed in the affidavits filed in OS 469 whether the 14 January 2009 Members Letter had been disclosed to the 2008 MC during the 14 January 2009 MC Meeting. Poh Chai Chin and Gary Oon deposed that it was not whilst Ashok Sharma and BB Khoo deposed that it was. However, based on the outcome in OS 469, it is unclear whether the 14 January 2009 Members Letter was fundamental to the decision there, such that the decision could not stand without that determination (see Goh Nellie at [35]).

  207. [119] As mentioned earlier, OS 469 was centred on the issue of ultra vires. In that context, it may be surmised that the interpretation of the Club’s Rules would have been the foremost issue. The 14 January 2009 Members letter would only become a relevant consideration if the Club’s Rules required the 2008 MC to take the 10 members’ wishes into account. Because OS 469 was dismissed without written grounds being delivered, it is unclear how the court arrived at its decision. There are two possibilities:

  208. (a) the court may have found that the 2008 MC was not required to take members’ wishes into consideration. In that case, the court could have dismissed OS 469 on the basis that the 2008 MC was acting within its power in passing the Indemnity Resolution – no finding on the 14 January 2009 Members Letter would have been necessary; or

  209. (b) the court may have found that the 2008 MC was required to take members’ wishes into consideration. The court would then have also had to find that the 14 January 2009 Members Letter was in fact disclosed and considered by the 2008 MC before passing the Indemnity Resolution.

  210. As the decision in OS 469 could have been arrived at in either of the two scenarios above, I cannot be satisfied that the issue of whether the 14 January 2009 Members Letter had been disclosed during the 14 January 2009 MC Meeting was fundamental to the court’s decision.

  211. [120] In any event, the Insured v Insured Exclusion was not even raised and argued by Poh Pai Chin in OS 469 as a basis for invalidating the Indemnity Resolution (see Goh Nellie at [38]).

  212. [121] In the circumstances, I am not satisfied that the requirement of identity of subject matter is met. It follows that the Plaintiff’s contentions regarding issue estoppel must fail.

  213. [122] The question then is whether it would nonetheless be an abuse of process for the Club to be allowed to raise the non-disclosure of the 14 January 2009 Members Letter and the Insured v Insured Exclusion in this Suit 634, such that it would engage the wider doctrine of res judicata. In my judgment, there is no abuse of process because:

  214. (a) the Club is now prosecuting an action which involves allegations by the Club of wrongdoing by its previous MC. The fact is that the 2008 MC may have caused the Club to take positions in OS 469 which were aligned with their own interests;

  215. (b) OS 469 was an action commenced by an individual member of the Club and not the Club itself. Poh Pai Chin elected to run his case to invalidate the Indemnity Resolution on the basis of ultra vires alone. Poh Pai Chin’s election to do so should not be held against the Club. Further, even if Gary Oon should reasonably have raised the non-disclosure of the Insured v Insured Exclusion as a basis for invalidating the Indemnity Resolution in OS 469, this should not preclude the Club from doing so now; and

  216. (c) it is impossible to ascertain precisely what was determined in OS 469 in the absence of written grounds.

  217. [123] In my view, therefore, the Club is not precluded from canvassing these issues of fact in this Suit 634. I will now turn to consider each of these issues, starting with the Insured v Insured Exclusion.

  218. Was the Insured v Insured Exclusion discussed at the 14 January 2009 MC Meeting?

  219. [124] Based on the agreed transcripts of the 14 January 2009 MC Meeting, it would appear that the meeting proceeded without any mention of the Insured v Insured Exclusion. Reference to the Club’s insurance policy during the discussion on the Indemnity Resolution was made in a different context. The following points summarise the 14 January 2009 MC meeting in this regard:

  220. (a) the Plaintiff was being sued for defamation and although the claim was against him personally, the statements had been made in his capacity as the President of the Club;

  221. (b) as a matter of Club policy, all MC members should be protected by an indemnity from the Club for acts done in their discharge of their duties to the Club by virtue of their positions;

  222. (c) the insurance policy obtained by the Club was in furtherance of such a Club policy, and, even if the insurance policy did not cover certain acts, the Club should nevertheless provide coverage for MC members;

  223. (d) the indemnity by the Club would be for any sort of action that could be brought against the MC members and not just defamation actions;

  224. (e) there was nothing, legally, that prevented the MC from passing an indemnity resolution and it would be for the MC to decide; and

  225. (f) the Club’s funds would be used for this indemnity.

  226. [125] Eric Ng also testified at trial that the discussion was conducted in such a manner so as to focus on the Indemnity Resolution and not the Club’s insurance policy. Because of that, the Insured v Insured Exclusion was not specifically mentioned. Eric Ng had proceeded on the basis that in the event the Club’s insurance policy did not apply, all office bearers would nevertheless be covered by an indemnity from the Club. This was repeated to the 2008 MC members at the 14 January 2009 MC Meeting more than once.

  227. [126] This is corroborated by what the Plaintiff had said in relation to insurance coverage (or the lack thereof) at the 14 January 2009 MC Meeting:

  228. Based on my reading of the evidence, the Plaintiff was effectively saying that the Club should still cover the costs of defending MC members whether or not there was insurance coverage.

  229. Was the 2008 MC aware of the Insured v Insured Exclusion?

  230. [127] It is crucial to the Club’s case that the other 2008 MC members, apart from the Plaintiff and Eric Ng, did not know about the Insured v Insured Exclusion. If they knew about the Insured v Insured Exclusion but did not mention it, then the Insured v Insured Exclusion could not have been material to, or have affected, their decision making. This point was not made explicitly clear by the Club. On the other hand, the Plaintiff argued that the other 2008 MC members knew of the Insured v Insured Exclusion on or before the 14 January 2009 MC Meeting.

  231. [128] In my view, the respective cases of both parties were lacking in one key respect: the evidence of all 2008 MC members. This is not a case where the objective evidence from the agreed transcripts and the meeting minutes speak for themselves. On its face, the objective evidence did not reveal any discussion on the insurance policy’s limitations or, more specifically, the Insured v Insured Exclusion. Yet, it seemed to me at the same time during the trial that at least some 2008 MC Members knew about the Insured v Insured Exclusion by the time of the 14 January 2009 MC Meeting. In any event, I propose to say no more on this given my conclusion below that the Insured v Insured Exclusion was not material to the passing of the Indemnity Resolution, and that the Indemnity Resolution was not passed under a fundamental mistake.

  232. Was the 14 January 2009 Members Letter disclosed at the 14 January 2009 MC Meeting?

  233. [129] The Club also asserted that the 14 January 2009 Members Letter was not disclosed to the members of the 2008 MC at the 14 January 2009 MC Meeting.

  234. [130] The 14 January 2009 Members Letter was not mentioned in the agreed transcripts or the minutes of the 14 January 2009 MC Meeting. This is also corroborated by the agreed transcripts for the subsequent 17 February 2009 MC Meeting where Gary Oon asked why the letter had not been circulated at the 14 January 2009 MC Meeting and BB Khoo had confirmed that the letter had not been circulated. At this juncture, it is pertinent to note that BB Khoo was the recipient of the said letter and the non-disclosure of the said letter is thus attributable to him. In this regard, I observe that there is no evidence that the Plaintiff or Eric Ng had directed him to not disclose the said letter at the 14 January 2009 MC Meeting.

  235. [131] In my judgment, it is plain on the evidence that the 14 January 2009 Members Letter was not disclosed at the 14 January 2009 MC Meeting. I also note that Mr Seah did not assert the contrary in closing submissions.

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