Freely Pte Ltd v Ong Kaili and Others

Woo Bih Li J:

[1] This was a small claims appeal against the decision of the referee (the “Referee”) of a Small Claims Tribunal (“SCT”). The grounds of decision of the Referee (“the GD”) are found in Tan Cheh Hiang @ Esther Tan Cheh Hiang & Others v Freely Pte Ltd in Claim No SCT/9162/2008 & Others.

[2] The appellant, Freely Pte Ltd (“Freely”), the respondent in the SCT below, is a private limited company in the business of running a private school. The 48 respondents (the “Claimants”) were the claimants in the SCT below and are persons with diverse backgrounds which, inter alia, include working adults, professionals and retirees. The Claimants had all enrolled in a three-day options trading course (the “Course”) conducted by Dr Clemen Chiang (“Dr Chiang”), who was, at all material times, Freely’s director, shareholder and the conductor of the Course. Although there were initially 51 claims before the SCT, three claimants were absent from the proceedings below. The present proceedings before me involved an appeal against the decision of the Referee vis-à-vis 48 claims, ie, the claims of the Claimants who were present before the SCT. All 48 claims were filed in the SCT between 29 October 2008 and 3 November 2008.

[3] In essence, the Claimants had each made individual claims against Freely for the repayment of the full price paid for:

[4] With regard to the conduct of the hearing in the SCT (which was held on 12 March 2009), the Referee first noted (see [5] of the GD) that “the strict rules of evidence and procedure do not apply in the [SCT]”, and that “the Referee conducts a SCT hearing in accordance with the principle of ex aequo et bono (which is by principles of what is fair and just in the circumstances”. As support for these propositions, the Referee referred to ss 28 and 30 of the Small Claims Tribunal Act (Cap 308, 1998 Rev Ed) (the “SCTA”). Section 28 of the SCTA reads:

while s 30 of the SCTA reads as follows:

[5] At this juncture, it bears mention however that the informality in the proceedings of the SCT does not mean that the SCT may ignore substantive legal principles. As noted by Louis D’Souza in “An Experiment in Informal Justice: The Small Claims Tribunal of Singapore” [1991] 3 SAcLJ 264 (“D’Souza’s Article”) at p 266:

[6] To my mind, the above view (viz, that although an SCT is not bound to give effect to strict legal forms or technicalities, it must nonetheless determine disputes according to substantive legal principles) is implicitly buttressed by s 38(1)(a) of the SCTA which gives an aggrieved party, who has obtained from the District Court leave to appeal (see s 38(1B) of the SCTA), an opportunity to appeal against an order of the SCT “on any ground involving a question of law” .

[7] The Referee then explained how the proceedings before the hearing proper and at the hearing itself (which was on 12 March 2009) were actually conducted:

[8] At this stage, it would be useful to reproduce the Summary of Claimants’ Statement of Facts and Freely’s Statement of Facts referred to above.

[9] The Summary of Claimants’ Statement of Facts, which as stated above, had been prepared by the Referee and which was affirmed by all of the Claimants, reads as follows:

[10] As summarised by the Referee, the Claimants had based their case on a statement published by Freely that Dr Chiang had a Doctor of Philosophy, ie, a Ph.D in options trading and had designed the Course around his Ph.D dissertation (the “representation”). On its part, Freely did not dispute making the representation as such.

[11] In reply to the Summary of Claimants’ Statement of Facts, Dr Chiang, on Freely’s behalf, stated as follows:

[12] After hearing evidence from the respective parties, the Referee concluded that “[Freely] should bear liability [under s 4(a) of the Consumer Protection (Fair Trading) Act (Cap 52A, 2004 Rev Ed) (the “CPFTA”)] for the unfair practice of misleading the [Claimants]” (see [25] of the GD) and made the following orders (see [26] of the GD):

(a) in respect of the Course, Freely was to pay to each Claimant a sum equivalent to the price paid less S$885.00, the latter amount being how much a pared-down version of Freely’s curriculum was worth in the market (see [23(b)-(c)] of the GD);

(b) in respect of the Software and the Webinar, Freely was to refund to each Claimant the full price paid (see [23(b) of the GD);

(c) Freely to pay each Claimant disbursements fixed at S$10.

[13] Before me, Freely argued that:

(a) the Referee had erred in his conclusion of the limitation period under s 5(3)(b) SCTA;

(b) the Referee had applied the wrong test for “unfair practice” under s 4(a) read with s 5(3)(a) of the CPFTA;

(c) there were breaches of natural justice in the manner in which the SCT hearing was conducted;

(d) the Referee had applied the wrong test in determining whether there was a price advantage in respect of the Software;

(e) the Referee had breached s 28(4) of the SCTA in producing his own evidence of a two-day course on options trading conducted by the Nanyang Technological University without giving Freely an opportunity to address such evidence; and

(f) damages for the Software contract should be nominal.

[14] After hearing the parties’ oral submissions and considering their written submissions, I dismissed Freely’s appeal. While I agreed with the final decision of the Referee, I would like to make some observations on certain aspects of this case to provide some guidance.

[15] At the second reading in Parliament of the Small Claims Tribunal Bill (Act 27 of 1984), the Minister for Labour and Second Minister for Law and Home Affairs, Professor S. Jayakumar, elaborated on the rationale behind the SCTA (see Singapore Parliamentary Debates, Official Report (24 August 1984) vol 44 at cols 1999-2002:

[16] As is clear from the foregoing excerpt, the SCTA was to provide a simple, informal and inexpensive way for a complaint involving a small claim to be heard (see also D’Souza’s Article at p 269).

[17] I now come to the CPFTA.

[18] Given that all 48 of the present claims were filed in the SCT between 29 October 2008 and 3 November 2008, references to the CPFTA are to the 2004 Revised Edition of this statute and not to the 2009 Revised Edition (ie, Consumer Protection (Fair Trading) Act (Cap 52A, 2009 Rev Ed) which incorporated amendments to the CPFTA (see Consumer Protection (Fair Trading) (Amendment) Act 2008 (No 15 of 2008)) which only took effect from 15 April 2009 (ie, after the claims in the present instance were filed).

[19] The CPFTA was passed on 11 March 2003 and came into effect on 1 March 2004. Professor Ravi Chandran (“Chandran”), in what appears to be the only local commentary on the CPFTA thus far, viz, “Consumer Protection (Fair Trading) Act)” [2004] S.J.L.S. 192 , has noted at p 192 that:

[20] I should stress however, that although the drafting of the CPFTA appears to have been inspired by equivalent legislation in various jurisdictions, it would be inappropriate to import, carte blanche, all principles applicable to the interpretation of the equivalent legislation in other jurisdictions, unless these principles accord with the wording of our CPFTA and Parliament’s intention in enacting the CPFTA in Singapore, the latter of which I will now come to.

[21] At the second reading in Parliament of the Consumer Protection (Fair Trading) Bill (Act 27 of 2003), the Minister of State for Trade and Industry, Mr Raymond Lim Siang Keat, elaborated on the rationale behind the introduction of the CPFTA, some of its key provisions, and the need to balance the interests of consumers and traders in its application (see Singapore Parliamentary Debates, Official Report (10 November 2003) vol 76 at cols 3352-3355:

[22] In his closing remarks at the conclusion of the second reading, the Minister also elaborated on the underlying philosophy behind the enactment of the CPFTA (see Singapore Parliamentary Debates, Official Report (11 November 2003) vol 76 at cols 3455-3457:

[23] The cruz of the legislation on consumer protection lies in ss 4 and 6(1) CPFTA. They state:

[24] The interplay between the SCTA and the CPFTA can be found in s 7(1) CPFTA which states:

The above provision in the CPFTA referring to the SCTA is significant because the SCTA itself does not expressly refer to the CPFTA.

[25] Having touched upon the legislative framework surrounding the respective enactments of the SCTA and the CPFTA, this would be a convenient juncture to refer to the relevant limitation period as this point was raised by Freely.

[26] Section 12(1) of the CPFTA states:

[27] The applicable provision is s 12(1)(b)(i) CPFTA. On the other hand, s 5(3) SCTA states:

[28] The Referee applied s 12(1)(b)(i) to the Claimants’ claims. He was of the view that the date of accrual of their cause of action for the purpose of the SCTA was the date they had knowledge that Freely’s representation was misleading. This was the date of publication of the article in the Straits Times of 29 August 2008.

[29] While I accept that s 5(3) SCTA should logically incorporate the knowledge provision of s 12(1)(b) CPFTA, it does not. In other words, the terms of s 5(3) SCTA do not explicitly state that the date of the cause of action is the date the consumer had knowledge that the supplier had engaged in the unfair practice in question.

[30] Accordingly, it is arguable that the Referee was not correct when he effectively applied s 12(1)(b) CPFTA to s 5(3) SCTA. However, although counsel for Freely invited me to make a ruling on the point as it was likely to be relevant for the other pending claims, I declined to do so for the time being. Counsel for the Claimants had declined to present any argument on the point since it was irrelevant to the Claimants he represented as they did not face an issue of limitation unlike the other claimants.

[31] In the present instance, the Referee had invoked s 26 of the SCTA, which reads as follows:

for all 51 (which, as mentioned above, was the original number of claims supposed to be heard) claims to be heard together in a single sitting because “it would have been highly impractical and uneconomical for the SCT to host 51 separate hearings especially since the claims involve common question[s] of law and fact” (see [5] of the GD). The Referee had also likened the present proceedings to a “class action” (see [2] of the GD).

[32] I am not entirely convinced that a class action should be dealt with by an SCT under s 26 of the SCTA, which is in pari materia with s 20 of the Hong Kong Small Claims Tribunal Ordinance. Indeed, the Class Actions Sub-committee of The Law Reform Commission of Hong Kong (“Hong Kong Law Reform Commission”), in its recent Consultation Paper on Class Actions published on 5 November 2009, recommended at p 243, that an SCT should not be empowered to hear class action proceedings. It noted at p 242, [9.36] that:

[33] Given that the SCTA was established to provide, inter alia, a simple way for a complaint involving a small claim to be heard, the view of the Hong Kong Law Reform Commission may be said to apply with equal force in the Singapore context. In addition, the total quantum of claims in a class action may exceed the monetary limit for any one of such claims (ie, $10,000 at the material time) by a large margin, as was the case before me. Be that as it may however, given that:

(a) the view of the Hong Kong Law Reform Commission was only a recommendation; and

(b) section 26 of the SCTA, as presently worded, is sufficiently wide, on a literal reading, to encompass the class action in the present instance,

it seems that an SCT may hear a class action.

[34] However, Parliament may wish to review whether the machinery of an SCT is indeed intended, and well equipped, to deal with class actions especially where they involve allegations of misrepresentation. Such actions may become more prevalent in the future. As already mentioned, there are more than 400 claims pending against Freely before an SCT. Parliament may also want to consider whether the machinery of an SCT should apply to class actions where the total quantum of claims exceeds the monetary limit of any one of such claims.

[35] I now move on to examine what constitutes an “unfair practice” under the CPFTA.

[36] The material provision which underpinned the Referee’s decision vis-à-vis the Course was s 4(a) of the CPFTA (see [23] above).

[37] Section 4(a) of the CPFTA closely resembles s 5(a) of the Saskatchewan Consumer Protection Act (S.S. 1996, c. C-30.1) (“SCPA”) which reads as follows:

[38] As to how s 4(a) of the CPFTA should be interpreted, Chandran concludes at pp 201-203 that “whether…conduct has been misleading or deceptive has to be tested against the standard of a reasonable man”, ie, objectively:

[39] In commenting on the SCPA, Tamara M. Buckwold in “Statutory Regulation of Unfair Business Practices in Saskatchewan: Possibilities and Pitfalls” (1999) 62(1) Sask.L.Rev. 45 (“Buckwold”), notes at p 53:

[40] A similar, albeit, general view, which did not involve a consideration of the effect of a provision similar to s 5(3)(a) of the CPFTA (which provides that “In determining whether or not a person has committed an unfair practice, the reasonableness of the actions of that person in those circumstances is to be considered”), has also been endorsed by Colin Lockhart in The Law of Misleading or Deceptive Conduct (Lexis-Nexis Butterworths, 2nd Ed, 2003) (“Lockhart”) in the context of s 52 of the Australian Trade Practices Act 1974 at pp 65-67:

[41] Reference can also be made to the following observations by Corones and Clarke in Consumer Protection and Product Liability Law: Commentary and Materials (Lawbook Co, 2nd Ed, 2002) (“Corones & Clarke”) at p 95 where the learned authors recognise that s 52 of the Australian Trade Practices Act 1974 is wider than the common law of negligent or fraudulent misrepresentation, both of which require the plaintiff to establish that the defendant was guilty of some form of fault:

[42] It would also be useful to refer to the position in New Zealand under its Fair Trading Act 1986, where s 9, the relevant provision, reads as follows:

[43] In commenting on this provision , Hill and Jones in Fair Trading in New Zealand – The Fair Trading Act 1986 (Butterworths, 1989) (“Hill & Jones”) make the following pertinent observations at pp 5-6:

[44] Hill & Jones elaborate further at pp 26-29 on the scope of s 9 of the New Zealand Fair Trading Act 1986:

[45] Given the foregoing, this would now be an appropriate juncture to summarise, what in my view are some (ie, non-exhaustive) principles applicable to s 4(a) of the CPFTA, bearing in mind the differences in wording between this provision, s 52 of the Australian Trade Practices Act 1974, s 9 of the New Zealand Fair Trading Act 1986 and any similarity with the SCPA:

(a) whether conduct has been misleading or deceptive under s 4(a) of the CPFTA, which specifically refers to the word “reasonable”, has to be tested objectively, in relation to one or more identified sections of the public, the Court considering all who fall within an identified section of the public, including the astute and the gullible, the intelligent and the not so intelligent, the well educated as well as the poorly educated, men and women of various ages pursuing a variety of vocations;

(b) it would appear, from a plain reading of s 4(a) of the CPFTA which makes no express reference to knowledge or intention, that an intention or knowledge to mislead or deceive (ie, a fault element) is not a necessary ingredient. The emphasis in s 4(a) of the CPFTA is on the effect on a reasonable consumer rather than on the state of mind or knowledge of the supplier. In this case, the absence of a state of mind requirement gives s 4(a) of the CPFTA a wider ambit than other analogous common law causes of action, viz, fraudulent and negligent misrepresentation, which are founded on the fault of the defendant. That said, while the supplier’s state of mind is not an essential element in the notion of misleading or deceptive conduct, a decision as to whether the supplier’s conduct conveyed a misleading or deceitful meaning may involve consideration of whether the maker of the statement had a particular state of mind when the statement was made (ie, it is probative in establishing whether s 4(a) of the CPFTA has been breached).

(c) That the emphasis in s 4(a) of the CPFTA is on the effect on a reasonable consumer is consistent with Parliament’s underlying philosophy behind the enactment of the CPFTA (see [25] above), viz, that there should be a balancing of the interests of consumers against that of businesses and traders. If the emphasis in s 4(a) of the CPFTA was on the effect on any consumer, not only would this be inimical to the principle of caveat emptor emphasised by Parliament, this would also be contrary to its intention in ensuring that “[t]here should be business certainty and not undue costs in complying with [the CPFTA]”.

(d) Pursuant to s 5(3)(a) of the CPFTA, it would appear that a supplier who has engaged in an unfair practice may be excused by acting reasonably although the CPFTA offers no guidance as to what is or is not reasonable.

[46] The Referee said (at [10] of the GD) that the representation mentioned that Preston University had awarded Dr Chiang the Ph.D in 2004 on his dissertation on options trading. The representation also indicated that the taught method of options trading was designed around his doctorate dissertation. He said (at [11] of the GD) that:

[47] The Referee found (at [12a] of the GD) that a reasonable consumer with the belief that Dr Chiang is an academic expert on options trading would be materially influenced by the representation. He also found (at [13] of the GD) that the representation was misleading. He concluded there was unfair practice on the part of Freely (see [17] of the GD) and, in doing so, he said he considered (at [17] of the GD) whether Freely’s actions were reasonable in the circumstances but did not think that they were.

[48] Yet, Freely submitted that the Referee had erred in law. Freely’s ground was that the test was the reasonableness of its action. While Freely elaborated as to why its conduct was reasonable, this was a question of fact and the Referee did have valid reasons for his conclusion. Therefore, I rejected this ground of appeal.

[49] Freely also alleged various breaches of natural justice by the Referee.

[50] First, Freely alleged that it had very little time to respond to the claims. On the other hand, the Claimants pointed to a schedule of Freely’s attendances to dispute this. Dr Chiang had attended on three dates of consultation for the claims, ie, 10, 11 and 13 November 2008. Subsequently, a Notice of Hearing dated 26 February 2009 was issued. The Notice stated the hearing to be on 12 March 2009. It was clear to me that given that Dr Chiang had already attended consultation sessions since early November 2008, he had enough time to respond to the claims by 12 March 2009. Moreover, it was undisputed that Freely did not ask for the hearing date to be postponed. The first allegation was without merit.

[51] The second allegation of breach of natural justice was that the Referee had contravened s 28(4) SCTA when he decided not to give copies of the individual statement of evidence from each Claimant to Freely and instead prepared a summary. Section 28(4) SCTA must be read together with s 28(3) SCTA. They state:

[52] As can be seen, s 28(4) was not applicable because it refers to s 28(3) which in turn refers to evidence which an SCT receives from its own initiative.

[53] As for the making of a summary, I was of the view that the Referee was entitled to have one prepared and forwarded to the other side under the informal and expeditious process envisaged under the SCTA so long as the summary was an accurate one and Freely knew what it had to respond to. There was no suggestion that it was either an inaccurate summary or a vague one.

[54] The third allegation of a breach of natural justice was that the Referee was biased or that there was an appearance of bias when he stated the following in a sarcastic manner:

[55] There was no verbatim record of the proceedings before the SCTA. However, even if the alleged remarks had been made and had been made sarcastically, which was not necessarily the case, I was of the view that they did not demonstrate bias or gave an impression of bias, even though they would have been inappropriate.

[56] The next allegation about bias was that the Referee appeared to have made up his mind even before the hearing was concluded as he had a prepared text of his decision thereafter which took him about two hours to read (with translation into Mandarin). Yet, Freely’s counsel accepted that it was not uncommon for a tribunal to prepare a draft text of the decision and amend it, if needs be, as a hearing progresses in the interest of efficiency. That would explain how a tribunal is able to come up with a prepared text soon after a hearing. However, he submitted that this point should not be seen in isolation and, considered together with the other allegations about breaches of natural justice, it demonstrated bias on the part of the Referee. I did not agree.

[57] Having considered all the allegations of such breaches, I was of the view that they were not made out and that there was no bias, apparent or otherwise.

[58] Section 7(4) CPFTA states:

[59] The orders that an SCT can make pursuant to the provisions of the SCTA are laid out in s 35 of the SCTA, of which s 35(1)(a) is the most relevant in the present proceedings given that the Claimants were seeking a full repayment of the price paid for the Course, the Software and the Webinar . This section reads as follows:

[60] However, while a tribunal may order a party to the proceedings to pay money (which, as the Referee recognised at [22] of the GD, can represent damages, debt or even restitution of sums paid in part or in full) to another party, the more interesting question, in the context of damages, is what exactly is the measure of these damages? Should a tortious or contractual measure of loss or damages be adopted? Also, must the unfair practice be the sole cause of the loss or damage suffered and must there be reliance on the unfair practice?

[61] In the context of s 7(4)(b) of the CPFTA, Chandran first observed at p 205 and at p 218 respectively, that:

and then as follows as p 219:

[62] In relation to the first portion of the above observation on causation (viz, that the unfair practice need not be the sole cause of the loss) Chandran notes further, at p 218, footnote 176 that:

[63] As noted by Lockhart at pp 292-293:

[64] In relation to the second portion of the above observation on causation (viz, in order to establish causation, the consumer must show that he had placed reliance on the unfair practice), Lockhart observes as follows at pp 296-297:

[65] Subsequent cases suggest that reliance is a pre-requisite to a claim for damages under Australian legislation.

[66] In Ford Motor Company of Australia Ltd v Arrowcrest Group Pty Ltd [2003] 134 FCR 522, Lander J (delivering the judgment of the Federal Court of Australia) rejected, at [123] of the plaintiff’s submission that causation can be established in a misrepresentation case without proof that the misrepresentations were relied upon. He stated, at [107]-[109], that Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 (“Wardley Australia”) is not authority for the proposition that a plaintiff does not need to establish reliance in a claim for damages and that the High Court in Wardley Australia confirmed that causation in cases where the plaintiff had entered into a transaction because of the defendant’s misrepresentations would be established by proof of reliance.

[67] In Digi-Tech (Aust) Ltd v Brand (2004) LexisNexis BC200401385 (23 March 2004, Unreported Judgment), the Court of Appeal of New South Wales stated at [159] that:

[68] I come now to the position under the New Zealand Fair Trading Act 1986. As already noted above at [43], Hill and Jones states that “it is unnecessary that any person be actually misled or deceived”.

[69] However, the position in New Zealand may not be as clear as suggested above.

[70] In McVicker v Vodafone (NZ) & ors (HC AK CIV 2005-404-180 3 April 2006), Judge Abbott said at [62]:

[71] In Reference No MVD 31/07 [2007] NZMVDT 40 (19 March 2007), the Motor Vehicles Dispute Tribunal was concerned with a claim by a car purchaser who alleged that the seller had misrepresented the mileage of the car she purchased. The tribunal referred to, inter alia, Bennett and held at [19] that as the purchaser did not rely on the seller’s misleading conduct, there was no damage flowing from it.

[72] In the recent decision of David v TFAC Ltd [2009] 3 NZLR 239 , the New Zealand Court of Appeal considered the elements required to establish that the conduct in question was “misleading or deceptive” under s 9 of the New Zealand Fair Trading Act 1986 and stated at [40]-[41] that the critical question was whether there was misleading or deceptive conduct that caused the loss suffered by the plaintiff. It cited AMP Finance New Zealand Ltd v Heaven (1997) 8 TCLR 144 at 152 where the Court of Appeal stated that whether there was such conduct should be determined by asking whether:

[73] What then is the position in Singapore? I accepted that the unfair practice need not be the sole cause of the loss or damage. As for reliance, s 6 SCTA is worded differently from s 82(1) of the Australian Trade Practices Act 1974. The latter provides that, “A person who suffers loss or damage by conduct of another person that was done in contravention … may recover the amount of the loss or damage by action…”. Section 6 SCTA does not refer to loss or damage “by conduct of another person”. It simply states and I reiterate, “A consumer who has entered a consumer transaction involving an unfair practice may commence an action …”. From a literal interpretation, there is no suggestion that the consumer needs to establish that the unfair practice caused him to enter into the transaction. Section 35(1) SCTA which is the provision on the orders which an SCT may make does not take the matter further. The Referee said (at [8(e)] of the GD) that Chandran suggests that reliance is only relevant in so far as it forms part of the court’s inquiry under the objective test at the liability stage (ie, the question being whether a reasonable consumer would have relied on the representation to make the contract). The Referee concluded (at [20(a)] of the GD) as follows:

[74] The situations under which a claim may be made under the SCTA are diverse. Nevertheless, I was of the view that, generally speaking, it is not sufficient to show that a reasonable consumer would have relied on the representation. A claimant must also show that he did rely on the representation. For example, he cannot claim relief under s 6 CPFTA if he was not even aware of the representation or thought nothing of it. Otherwise the balance would tilt too much in favour of consumers. Accordingly, I am of the view that the Referee erred when he said that it was not a defence to say that the Claimants did not sign up for the Course because of the Ph.D. Nevertheless, this was not a ground of appeal, presumably because he nevertheless concluded that the Claimants were in fact influenced by the representation.

[75] I pause here to caution that this is one aspect of a class action that requires attention. An SCT should be careful and consider whether each and every claimant relied on a representation. While this may make an SCT hearing more tedious, it is a route that must be travelled. This may well be part of the reasons why an SCT is not suited to hear a class action, especially of one involving allegations of misrepresentation, but I need not say more for now.

[76] While Freely did not raise the absence of reliance as a ground of appeal, one of its other grounds was that the Referee was incorrect in concluding that there was no price benefit to the Claimants in purchasing the Software. Freely submitted that the correct test was whether the Software was worth more than the price at which it was sold, ie, $960 and not whether the software was worth the $16,000 that Dr Chiang had mentioned the usual price of the Software to be. I did not agree with Freely. Dr Chiang had suggested that the usual price for the Software was $16,000. This was shown to be untrue. This was an unfair practice (see also para 7 of the Second Schedule of the CPFTA).

[77] I now move on to examine the appropriate measure of damages to be awarded where there is an unfair practice and reliance.

[78] Chandran suggests, pointing to Australian and New Zealand decisions in support, that the correct measure to be adopted is the tortious measure of damages. That this is the appropriate measure of damages under the CPFTA was also accepted by the Referee (see [8(f)-(g)] of the GD).

[79] In this vein, Lockhart makes the following observations, at pp 333-335, on the tortious measure of damages (footnotes omitted):

[80] In a similar vein, Corones & Clarke note at p 510:

[81] For the same reasons offered by Chandran and Lockhart, I accepted that the appropriate measure of damages under the CPFTA for loss or damage which arises from unfair practice is, generally, the tortious measure of damages, viz, the difference between the value of what has been purchased and what was paid.

[82] In the present instance, the Referee calculated the measure of damages in respect of the Course in the following manner:

[83] As may be seen, the method of calculation of damages adopted by the Referee, viz, price actually paid for the Course less the actual value of the Course accords with the tortious measure of damages.

[84] The “unfair practice” in relation to the Software and Webinar was expressed by the Referee in the following terms:

[85] In the present instance, the Referee had calculated the measure of damages in respect of the Software and the Webinar Contracts in the following manner:

[86] In calculating the amount of damages in relation to the Software and the Webinar, the tortious measure of damages was not explicitly referred to by the Referee. Was the full refund ordered by the Referee then in accordance with the tortious measure of damages? With regard to the Software, it would appear from the respondents’ evidence on record that:

(a) there was no technical support;

(b) many respondents could not log on to the website; and

(c) the password was only given to the students on 17 May 2008.

These factors, in addition to the Claimants’ evidence (see [7(b)] of the Summary of Claimants’ Statement of Facts at [9] above) that all or most information contained in the Software was freely available on the Internet as they were links to online websites (which was not disputed by Freely), all mean that the actual value of the Software, which some of the respondents had purchased for S$960, was negligible. In accordance with the tortious measure of damages, this effectively translates to a full refund of the price actually paid for the Software.

[87] With regard to the Webinar, the evidence on record was that it was only for three views. It was also undisputed by Freely that after the Straits Times report was published, Freely stopped sending the Claimants (who had purchased the Webinar) materials and sessions on the Webinar (see [7(c)] of the Summary of Claimants’ Statement of Facts at [9] above). In these circumstances, as with the Software, the actual value of the Webinar was negligible. In accordance with the tortious measure of damages, this effectively translates to a full refund of the price actually paid for the Webinar.

[88] On the issue of damages in respect of the Course, Freely submitted that the Referee had adduced evidence of his own investigation of a 2-day course on options trading without giving Freely an opportunity to address such evidence, contrary to s 28(4) SCTA which I have set out above (see [51]). However, the notes of evidence showed that the Referee did raise such evidence with Dr Chiang. Furthermore, it was for Dr Chiang to adduce his own evidence on the issue of the quantum of damages, without prejudice to Freely’s denial of liability, but he did not do so.

[89] As for damages for the Software, Freely submitted that there should only be minimal damages but did not show how the Referee had erred in law in his decision to order a full refund. There was also inadequate elaboration as to why the damages should be nominal. I rejected this ground of appeal as well.

[90] For all the foregoing reasons, I saw no reason to disturb the Referee’s decision against Freely.