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Grounds publishedDecided 23 Oct 2009
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High Court

Satinder Singh Garcha v Uthayasurian Sidambaram and Another

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[2009] SGHC 240Case no. Suit 307/2008

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  1. Quentin Loh JC:

  2. [2] The Plaintiff also laid a complaint against Surian to the Law Society of Singapore on 25 September 2006 for alleged breaches of professional conduct under the Legal Profession Act (Cap 161, 2001 Rev Ed) (“the Act”). An Inquiry Committee found that a formal investigation ought to be initiated. A Disciplinary Committee was duly convened and 4 charges and 2 alternative charges were preferred against Surian pursuant to sections 83(2)(b) and 83(2)(h) of the Act. The Disciplinary Committee found Surian guilty on all charges and Surian was asked to show cause why he should not be dealt with under sections 83(2)(b) and 83(2)(h) of the Act. In a judgment dated 13 August 2009, a Court of Three Judges suspended Surian from practice for a period of one year, see Law Society of Singapore v Uthayasurian Sidambaram [2009] SGHC 184. As this action was still pending, the Court specifically emphasised at [87] that its findings in the show cause action “...should not be regarded as binding or determinative of issues that will be contested in the civil suit.”

  3. [4] This case arose from an apparent business venture, involving a property of over 117,000 square feet known as No. 7 Tanglin Hill, Singapore (“the Property”), which was owned by the Royal Government of Brunei (“RGB”). It appeared that the Property was initially on the market for an outright sale but this was withdrawn and turned into a project for a “joint development” by building a number of bungalows on this plot of land (“the Project”).

  4. [5] The words “apparent” and “appeared” are used above because only two persons gave evidence in this action, the Plaintiff and Surian. Other important participants in this venture, like Louis Ang (“Ang”), Pengiran Haji Mohammad Yusuf bin Haji Abdul Rahim (“PSN”), a former Pengiran Setiawan Negara of the RGB, his son, Pengiran Atamaya Yusuf (“Atamaya”), FK, Chin Bay Ching (“Chin”), Lim Peng Lee and Lim Beng Huat (“Ang’s driver”) were not called to give evidence. The background and the full details of the “deal” surrounding the Property (if indeed there was one), remain murky and there are questions to which the answers may never be known.

  5. The Plaintiff’s Case

  6. [6] The Plaintiff had set up a software company in the USA and sold it for a very large sum of money in or around 2000. He came to Singapore in 2001 and got involved in developing high end real estate in Singapore, viz, good class bungalows, from late 2005 or early 2006. He describes himself as a private investor, a high net worth individual who develops real estate, invests in companies and does a lot of private equity all over the world.

  7. [7] Sometime in February 2006, property agent Kelvin Tan (“Kelvin”), who had previously secured bungalows in good areas for the Plaintiff, informed him that the Property was available for sale. On or around the 24 February 2006, the Plaintiff made an offer for the property through Kelvin Tan and as requested, submitted his curriculum vitae at the same time (the Plaintiff denies that the signature on the letter was his but nothing turns on this as the fact that the Plaintiff made an offer through Kelvin is not disputed).

  8. [8] In or around March 2006, Kelvin introduced FK (the 2 Defendant), to the Plaintiff. At this meeting FK discussed the sale of the Property, confirmed the Plaintiff’s offer was still being considered and showed the Plaintiff properties owned by the Brunei royal family in the UK for recreational polo activities.

  9. [9] Surian’s firm acknowledged the Plaintiff’s offer on 23 March 2006, stating that they acted for Langston Key Investment Ltd (“Langston”), and that the Plaintiff’s offer had been forwarded to the owner. On or around 10 April 2006, whilst the Plaintiff was in Spain, FK called to inform him that Surian’s firm had rejected the offer as the owner was no longer considering an outright sale, however the owner was considering a joint development of the Property instead. To the Plaintiff this ended the matter as he was not interested in joint development.

  10. [10] On or about 13 May 2006, whilst the Plaintiff was at the Singapore General Hospital, FK called him and insisted on meeting him there. FK showed him a copy of a pre-contract agreement for the joint development of the Property, a power of attorney stating that Ang was the attorney for all matters concerning PSN and a photograph of Ang and PSN together. FK told the Plaintiff that PSN was the second most powerful man in Brunei after the Sultan and Ang was PSN’s right hand man and his representative for all his property deals in Singapore. The deal for the joint development of the Property was to be brokered by PSN and that for all intents and purposes, PSN was the representative of the RGB. FK explained that the deal had “been done” with Chin but the RGB had found him “undesirable” as he had outstanding tax issues with the Singapore authorities. Hence, they needed a reliable replacement for Chin. All the Plaintiff had to do was to put in S$300,000 into the Project to replace Chin and buy him out of the Project. The Plaintiff said he was not interested and was certainly not going to put in any money before entering into any contract.

  11. [11] On 15 May 2006, FK asked to meet as he wanted to introduce Ang to the Plaintiff. They met at an architect’s office at Keong Siak Road. FK arrived first and impressed upon the Plaintiff Ang’s importance and clout as the right hand man of PSN, who was in turn effectively a representative of the RGB. But FK did not tell the Plaintiff that Ang was an undischarged bankrupt. Ang arrived and spoke about the large number of properties owned by RGB and said there were a lot of investment opportunities with the RGB. Ang informed the Plaintiff that his profile fitted the kind of person RGB was looking for to enter into joint development deals with. He had been selected from about 15 to 20 others. But there was a tight timeline by which the deal had to be signed as PSN was scheduled to visit in the third week of May 2006; all details had to be tied up by then. The Plaintiff would have to pump in the money to build 6 good class bungalows, each would be sold for between S$12 to S$15 million and the proceeds would be split 60:40 in RGB’s favour. The Plaintiff told FK and Ang that he was still not convinced and said he was not interested.

  12. [12] On or around 16 May 2006, the Plaintiff again met up, at FK’s request, with FK and Ang at the Ritz Carlton. FK and Ang again attempted to convince the Plaintiff to enter into the Project. At this meeting the Plaintiff expressed his reservations about dealing with a foreign government and the difficulty of recourse against a foreign government in the event of a dispute. To this, Ang told the Plaintiff that the lawyer representing PSN/RGB would handle the documentation and provide for such issues. Ang also promised to introduce the Plaintiff to Surian so that Surian could reassure the Plaintiff on the legal aspects relating to the deal.

  13. [13] Between the 17 and 18 May 2006, the Plaintiff met with Atamaya on a couple of occasions and Atamaya confirmed everything that Ang had told the Plaintiff.

  14. [14] On 19 May 2006, whilst Ang was at the Plaintiff’s house, Ang asked Surian to come over. Surian did so a couple of hours later. This was the first time the Plaintiff and Surian met each other. Surian explained the process to the Plaintiff as follows: (i) the Plaintiff would pay S$300,000 to remove Chin from the Project; (ii) the contract was a straight forward joint development agreement providing for a 60:40 split in profits, in favour of RGB; (iii) the Plaintiff would probably not need to find buyers for the bungalows as the RGB would probably buy them; (iv) alternatively, the parties could each take several bungalows, with Surian explaining that the corporate entity buying the bungalows had to be 100% owned by a Singaporean; (v) Surian proposed that the Plaintiff incorporate a company, with the Plaintiff as sole shareholder and to put the investment as paid up capital; (vi) Surian would insert a “sovereign clause” which would allow the Plaintiff to sue RGB in the event of a dispute; and (vii) Surian could arrange for a RGB representative from the RGB Embassy to sign administrative documents, such as the applications to URA for approvals (Surian said he had carried this out before in relation to other deals with RGB). The Plaintiff asked that (viii) the RGB execute a power of attorney in his favour so that the Plaintiff could sign documents and deal with the Property but Surian said RGB would never agree to this, and added that (ix) he had dealt with and acted for PSN and Ang before in relation to other deals, (x) PSN and Ang were credible and reliable parties and that Ang was PSN’s local representative in relation to the Project at hand and (xi) assured the Plaintiff that RGB had been in negotiations with respect to the Property for several months and was keen to enter into the joint development venture.

  15. [15] The Plaintiff was told he had to put in about S$20 million for the joint development and an additional S$300,000 to S$400,000 for expenses. Of these sums, S$300,000 was to be paid to Chin to remove him from the Project. At the end of the meeting, the Plaintiff maintained he was still not interested but that he would confirm his answer that afternoon and then left for Kuala Lumpur. The Plaintiff says because he met and spoke with Surian, he was beginning to be swayed into entering the Project.

  16. [16] The Plaintiff says he would never have entered into the deal if Surian had told him that Ang was an undischarged bankrupt.

  17. [17] Whilst in Malaysia, Ang asked the Plaintiff whether he would be interested to meet PSN as PSN was due to arrive in Singapore on 25 May 2006. The Plaintiff agreed.

  18. [19] On 23 May 2006, the Plaintiff went to Surian’s office with Ang and handed Surian two cheques of S$500,000 each and appointed Surian to act for him. The Plaintiff asked Surian whether there was any conflict of interest in acting for him as he was also acting for PSN, Atamaya, RGB, Ang and FK. Surian assured the Plaintiff that, since he (Surian) was already involved in the Project, it would be less complicated for him (Surian) to act for the Plaintiff, as opposed to finding a solicitor who was new to the Project. Not once did Surian mention any actual or potential conflict of interest in acting for the Plaintiff and all the other parties to the deal. There was also no discussion of fees. The Plaintiff told Surian he wanted control of the money and Surian told the Plaintiff that the S$1 million would be deposited with his firm and put into the Plaintiff’s company as paid-up capital. It was also agreed that S$300,000 would be paid to Chin and a further small amount for minor disbursements, especially minor travel expenses in relation to PGN and Atamaya.

  19. [20] On 24 May 2006, Ang met the Plaintiff at his house and they discussed the mechanics of payment to Chin and the minor expenses, especially for PSN and Atamaya’s coming trip to Singapore. Ang then suggested that the Plaintiff call Surian for advice on how to arrange for these payments to be made since the Plaintiff often travelled overseas. Surian advised the Plaintiff to execute a simple letter of authorisation as a temporary measure for Ang to handle these disbursements and Surian dictated a letter of authorisation which read:

  20. The Plaintiff wrote it down on a piece of paper and faxed it to Surian. The first fax was not received by Surian and the Plaintiff re-faxed it to Surian.

  21. [21] Later in the day, Ang sent an SMS to the Plaintiff:

  22. The Plaintiff was taken aback as he had no prior notice of payment to Langston in prior discussions with Surian and Ang over disbursements to be made from the S$1 million. Nonetheless, the Plaintiff replied:

  23. The Plaintiff called and queried Ang who vaguely replied that the payments were for some minor expenses that had been incurred and was “nuisance money” to keep Lim Peng Lee, the managing director of Langston, from disrupting the Project.

  24. [22] The Plaintiff did not know that Langston was a British Virgin Island company whose majority shareholder was Ang, an undischarged bankrupt. The Plaintiff did not know that further payments were made from the S$1 million deposited with Surian’s firm. Another S$300,000 was paid to Ang’s “driver” and Surian generated a bill for S$100,000 and made payment to his firm.

  25. [24] On 29 May 2006, the Plaintiff met with Surian, PSN and Atamaya at the Marina Mandarin Hotel. The Plaintiff expected to sign papers formally documenting the Project but all that was signed were incorporation documents for a company with the Plaintiff as sole shareholder and PSN, Atamaya and the Plaintiff as directors.

  26. [25] Immediately after PSN and Atamaya’s visit, the Plaintiff received several threatening and incoherent text messages and telephone calls from FK complaining that certain payments had not been made to him. FK was very unhappy with Ang. During this period, Ang also made a strange suggestion to the Plaintiff to send over his money to Brunei for “safekeeping”. The Plaintiff consulted Surian and when Surian also concurred with these suggestions the Plaintiff began to suspect Surian’s earnestness and honesty. With no formal contract yet signed with RGB, FK’s communications and this odd suggestion, the Plaintiff’s suspicions over the whole Project and the bona fides of the parties involved grew.

  27. [26] On 1 June 2006, the Plaintiff went to Surian’s office and was shocked to find only S$50,000 was left of his S$1 million deposit. Upon questioning he found out that in addition to the S$300,000 paid to Chin’s solicitors, S$250,000 had been paid to buy out Langston, S$300,000 had been paid to Ang’s “driver” and S$100,000 had been paid to Surian’s firm.

  28. [27] Later on that day, he arranged to meet Lim Peng Lee of Langston and Lim Peng Lee stated that neither he nor Langston had received any money from Ang, Ang’s driver or anyone else. Lim Peng Lee also informed the Plaintiff that Surian also acted for Langston.

  29. [28] The Plaintiff then retained WongPartnership LLP. Searches were made and the Plaintiff found out for the first time that Ang was an undischarged bankrupt. The Plaintiff and his lawyers met Ang at Surian’s office on 2 June 2006 to confront Ang. Ang quickly suggested they rescind the whole deal and the S$1 million would be returned. The S$1 million was never returned to the Plaintiff. Surian returned the S$100,000 he had paid out of his Client’s Account for his fees to the Plaintiff. The Plaintiff lodged a complaint with the Commercial Affairs Department.

  30. [29] WongPartnership LLP wrote to the High Commission of Brunei Darussalam to confirm the respective parties’ involvement with the RGB. The High Commission replied on 4 October 2006 stating that the parties referred to in WongPartnership LLP’s letter had neither been appointed nor recognised as the official representatives of RGB in any transactions of the Property.

  31. The 1 Defendant’s Case

  32. [30] Surian denies he was part of a conspiracy to defraud the Plaintiff. There was no agreement or common intention to injure the Plaintiff. Surian, FK and Ang were operating separately in their own individual roles in the Project and in the main, dealt with the Plaintiff separately, for example, Surian never met the Plaintiff together with FK. FK took a back seat in the later stages and was not involved in the disbursement of the S$1 million deposited with Surian.

  33. [31] As for the alleged acts of professional negligence, Surian very properly accepted that a Court of 3 Judges has found that he was in breach of the professional conduct rules in placing himself in a position of conflict of interest with respect to his multiple clients in the same matter. He was not going to contend otherwise in these civil proceedings.

  34. [32] As for the breach of professional duty to his client, Surian points out that the Plaintiff was a seasoned businessman and was probably better acquainted with the risks of entering into any deal than Surian. Being the experienced businessman that he was, the Plaintiff had met others like FK, Ang and Atamaya on his own, even before he met and then retained Surian. He was well placed to form his own judgment on the persons involved and the deal before him. Further it was not within the scope of the retainer to advise on such commercial risks. Surian claims the Plaintiff knew Ang was an undischarged bankrupt and being the experienced businessman that he was, coupled with this knowledge, the Plaintiff well knew the risks of giving unfettered authority to Ang to disburse the Plaintiff’s S$1 million. Surian denies that he dictated the words set out in [20] above for the Plaintiff to fax back to him. Surian says Ang told him on 24 May 2006 that the Plaintiff had faxed him certain instructions. He checked and found no facsimile from the Plaintiff. Surian then sent an SMS to the Plaintiff and asked him to re-send his facsimile. Surian later received the handwritten note referred to at [20]. He denied dictating the wording of this instruction to the Plaintiff and he denied at any time persuading the Plaintiff to give such authority to Ang.

  35. [33] Surian first met the Plaintiff on the morning of 19 May 2006, when Ang asked Surian to come over to the Plaintiff’s house. The meeting was short, only some 10 or 15 minutes where Surian explained what he knew of the joint development in a quick factual summary and certainly not any sales pitch. The Plaintiff said he was not keen as he did not like the terms of the joint development. Surian said the choice was his and he never persuaded the Plaintiff or made any representations to induce him to enter into the deal. As far as he was concerned, Surian left the 19 May 2006 meeting with the Plaintiff’s decision that he was not interested in the deal.

  36. [34] On the afternoon of 22 May 2006 Ang informed Surian that the Plaintiff had agreed to the joint development proposal on the condition that there were no competing interests and that a company had to be set up with PSN and Atamaya for the joint development. Ang told Surian that the Plaintiff would be paying S$1 million as earnest money to buy out the interest of Chin and Lim Peng Lee, that Ang and the Plaintiff would meet at Surian’s office the next day, the Plaintiff would be retaining Surian to act for him and that the Plaintiff had agreed to pay Surian S$100,000 in relation to his fees for work done thus far. Atamaya and PSN had no objections to the company being formed and Atamaya would be in Singapore on 25 May 2006 and PSN on 27 May 2006. Surian called Atamaya and confirmed his arrival on 25 May 2006, confirmed the arrangements and that after the incorporation of the company, his father, PSN would be able to obtain the mandate and the Project would start in a couple of months.

  37. [35] In the afternoon of 23 May 2006, the Plaintiff and Ang came to Surian’s office. The Plaintiff confirmed Surian was to incorporate a company with PSN, Atamaya and the Plaintiff as directors, he would be discharging all existing liabilities and he would be taking the Project clean. He gave Surian two cheques totalling S$1 million. Surian then asked Ang about his long overdue legal fees in front of the Plaintiff, and the Plaintiff said he could deduct this from the monies he was depositing. Ang indicated the figure of S$100,000 for the legal fees and the Plaintiff agreed. The Plaintiff then signed the warrant to act. It was at this meeting that Ang joked about his being a bankrupt, in the presence of the Plaintiff, as otherwise the cheques could be made out in his favour. Surian came up with the company name, “Tanglin Hill Development Pte Ltd” and suggested that the Plaintiff be the sole shareholder since he was the one coming out with the funds and that PSN and Atamaya would be directors without shares. The Plaintiff agreed.

  38. [36] Surian felt at that time – wrongly, he now admits – that there was no conflict of interest, but instead a confluence of interest as all the parties were setting up a company to jointly develop the Property. Surian also admits that he did not at any time inform or tell the Plaintiff that Ang was an undischarged bankrupt and he did not do so because the Plaintiff knew that fact. Surian also added that Ang often joked, and made no secret about it, that he was a property developer who was made a bankrupt.

  39. [37] On 24 May 2006, Ang came to Surian’s office with Ang’s driver and personal friend and who had previously met Lim Peng Lee, Chin, FK and Atamaya. Surian was not sure at that time whether Ang’s driver had met the Plaintiff. Ang then authorised Surian in writing to pay S$300,000 to Chin’s lawyers, Messrs Derrick Wong & Partners. Ang also authorised Surian, in writing, to pay S$250,000 to Ang’s driver by an uncrossed cheque and obtained his signature to the payment voucher. This second payment was to discharge Lim Peng Lee and Langston’s interest in the deal. Ang said Lim Peng Lee was not in Singapore and had duly authorised Ang to collect this payment. Surian telephoned Lim Peng Lee who confirmed this. Ang told Surian that he had informed the Plaintiff of this disbursement. Hence Surian did not check with the Plaintiff since he had the written instruction sent earlier in the day.

  40. [38] Atamaya came to Surian’s office on 25 May 2006 with Ang and Ang’s driver. Atamaya told Surian that his father, PSN, was happy that Ang had managed to secure a suitable candidate for the joint development and that PSN was arriving in Singapore on Saturday morning, 27 May 2006. Surian then asked Ang, in Atamaya’s presence about his outstanding fees and both Atamaya and Ang confirmed he could deduct his fees of S$100,000 from the Plaintiff’s deposit with his firm. Surian obtained Ang’s written instructions to do so. Again Surian felt he did not need to check with the Plaintiff because the Plaintiff had agreed to this at the 23 May 2006 meeting at his office and also because of his written authority with full discretion to Ang to disburse the funds.

  41. [39] PSN arrived in Singapore on 27 May 2006. The Plaintiff met PSN together with Atamaya; Ang and Surian joined them halfway through the meeting. The Plaintiff invited PSN for lunch at his home the next day. After PSN retired to his room, Surian asked the Plaintiff whether he had discussed the joint development project with PSN and the Plaintiff confirmed that he had. FK was not present at this meeting. The Plaintiff also invited Surian to his house for lunch the next day. Atamaya then started to discuss 48 Nassim Road, (another RGB property), with the Plaintiff. Surian was later instructed to prepare a draft agreement in relation to this property. Atamaya also showed the Plaintiff a folder consisting of all the properties owned by the Brunei Investment Agency. Ang was there throughout the meeting, no one queried Surian on the disbursements and Ang and the Plaintiff were laughing and joking with each other. At the lunch the next day, Sunday, 28 May 2006, other parties connected to the Project were there, the managing directors of JP and BPL and an architect, Wong Chiu Man. The Plaintiff invited PSN to be the chairman of the company to be incorporated. PSN accepted.

  42. [40] On 29 May 2006, Surian prepared all the incorporation papers and met PSN, Atamaya and Ang at the Marina Mandarin Hotel. The papers were duly signed. Atamaya said that PSN had an audience with the Sultan on 3 June 2006 and PSN was confident of getting the mandate for the Project.

  43. [41] On 1 June 2006, the Plaintiff went to Surian’s office and asked how much of the S$1 million was left. The Plaintiff did not raise any queries save for the second S$300,000 payment to Ang’s driver. Surian said he did not know what it was for, that it was Ang who specifically authorised it and told Surian that the Plaintiff was aware of the purpose. The Plaintiff did not say anything to Surian other than that he would check with Ang and cancelled the written authority given to Ang on 24 May 2006.

  44. [42] On 2 June 2006, Ang informed Surian that the Plaintiff wanted a meeting at his office. As Surian had a hearing, the Plaintiff and Ang met first. Surian joined them later and it appeared that the meeting between the Plaintiff and Ang had been completed. Surian noticed that the Plaintiff had brought his own solicitors. They adjourned to Surian’s meeting room and Ang told Surian that the Plaintiff was pulling out of the Project, that the Plaintiff would be paid his money back and a new partner found for the Project. Surian was confused and asked the Plaintiff what had transpired. The Plaintiff said that he had received aggressive emails from FK and he did not like being threatened, hence he wanted out from the Project. The Plaintiff told Surian he was discharging him as his solicitor and had appointed WongPartnership LLP to act for him. Surian met Atamaya who was still in Singapore. Atamaya was surprised and called PSN to inform him of the development and not secure the mandate as the Plaintiff had pulled out of the Project.

  45. Findings of Fact

  46. [43] I preface these findings of fact first, by pointing out that I have to do the best I can given that only two witnesses, the Plaintiff and Surian, were called to give evidence. None of the other persons who played a significant part in this deal gave evidence, not even FK.

  47. [44] Secondly, I have some assistance from the Agreed Bundles and the documents in the 1 Defendant’s Bundle for Cross-examination (“1 DBD”), which counsel agreed I could treat on the same basis as the agreed bundles. They were “agreed” in that formal proof was not required but the contents were not necessarily agreed. However an agreed bundle of this nature also means that the weight to be given to the contents of any document within the bundle, even if they are not touched upon in cross-examination or the opening or closing submissions, is entirely a matter for the court. A court must however exercise some caution in giving weight to such evidence because counsel, who must know the evidence best, did not think it relevant enough to refer to it in cross-examination or submissions and it remains untested. In the circumstances of this case, without any of the significant and key players as witnesses, some of these documents do shed light on what happened at the relevant time.

  48. [45] Having heard the parties and considered the evidence placed before me, I make the following findings of fact.

  49. [46] I find that the Plaintiff is an experienced businessman. He is also extremely intelligent, very sharp and very quick. This was very clear from the way he handled Mr Sreenivasan’s questions, which were often at a fast pace and unrelenting. He was very decisive in his answers, he hardly ever paused to think before answering and he readily conceded, equally quickly, where he had made a mistake in his affidavit evidence or his recollection of events. In arriving at this view, I have taken into account the fact that he has faced Mr Sreenivasan’s questions in an earlier round before the Disciplinary Committee hearing.

  50. [47] Surian, with respect, is nowhere as sharp or quick as the Plaintiff. Whilst I do not accept some parts of his evidence, on the whole I find that he is not cunning or devious nor particularly quick. He was misled by the lure of large fees for a large “deal” and was gravely remiss in how he viewed his professional duties and obligations to his clients with diverse interests.

  51. [48] I also find that he had put himself into a hopeless situation of conflict in acting for so many counter parties in a deal of this nature where clearly the interests of each party required independent legal advice. I find that he acted for PSN, Atamaya, Chin and Langston Key Investments Pte Ltd (“LKIPL”), Lim Peng Lee and Langston, Ang and of course, the Plaintiff.

  52. Did the Plaintiff know Ang was an undischarged bankrupt?

  53. [49] The first important issue of fact is whether the Plaintiff knew Ang was an undischarged bankrupt. I find that he did know. Besides observing the Plaintiff and Surian under cross-examination on this issue, my other reasons for this finding follow.

  54. [50] As both counsel agreed, the Plaintiff says he did not know and Surian says that he did, and it boils down to who I believe. Both maintained their versions before me. Surian’s candid evidence is that he never told the Plaintiff at any time that Ang was an undischarged bankrupt. Like the Court of 3 Judges, I find this lapse inexplicable. I also find it astonishing because Surian’s defence is that the Plaintiff knew because Ang was very open about his being a bankrupt. His defence and evidence amounted to this: because Ang was so open about his being a bankrupt, and joked about it in company, therefore the Plaintiff must have known this fact. Surian also claimed that on 23 May 2006, when the Plaintiff came to deposit his S$1 million, Ang openly joked, in the Plaintiff's presence, that if he was not a bankrupt the Plaintiff could give the money to him to disburse. Other than this incident, Surian does not claim hearing Ang say he was a bankrupt in the Plaintiff's presence and the Plaintiff hearing it. Having heard him under cross-examination on this point, he did appear to waver a little:

  55. (i)

  56. Prior to the meeting at his office on 23 May 2006, Surian never raised with the Plaintiff that Ang was an undischarged bankrupt, he said: “Never did your Honour. There was no reason to.”

  57. (ii)

  58. Surian admits that if Ang did not say anything about his being a bankrupt, Surian would not have raised it: “I do not see a reason to. He was the agent, and there was no reason for me to talk about [Ang’s] bankruptcy at that point in time”;

  59. (iii)

  60. Leaving aside his AEIC, in an unguarded moment during cross-examination, Surian goes from saying Ang did joke about his bankrupt status in front of the Plaintiff to a slightly more tentative answer: “Your Honour, [Ang] was talking in a normal tone, and we were just sitting across the table. I presume that he heard what he said”;

  61. (iv)

  62. He admitted he did not at any time advise the Plaintiff the implications of Ang being a bankrupt: “...because he never ask me.”

  63. However, I take Surian’s answer in sub-paragraph (iii) as an honest answer. He was not paying particular attention to whether the Plaintiff heard that joke. On balance, I would believe Surian’s version over the Plaintiff’s.

  64. [51] If Surian did not tell the Plaintiff that Ang was an undischarged bankrupt then is it likely that anyone else, ie, FK, PSN, Atamaya or even Ang himself, did? I bear in mind the great efforts made by FK and Ang to persuade the Plaintiff to go into the Project in a short period of time. Although the Property was first brought to the Plaintiff’s attention around February or March 2006, it was a different deal – an outright sale. From around early May 2006, it was Kelvin and FK talking to the Plaintiff. It was only on 15 May 2006 that the Plaintiff was introduced to Ang. On 19 May 2006 the Plaintiff met Surian. The monies were deposited on 23 May 2006 and disbursed by 24 and 26 May 2006. Given this tight timeline, would FK, Ang, Atamaya or PSN mention this fact? If they did know of it, and did not want to tell the Plaintiff this fact in case it dissuaded him from entering into the Project, then there would be an active and co-ordinated concealment on all their parts. But would they all really risk hiding this fact because a simple check would have revealed Ang’s status as a bankrupt and if it arose this way, the Plaintiff would definitely have stayed out of the deal. Further, the Plaintiff met with these individuals separately, not always as one group. I therefore think FK, Ang, Atamaya and PSN would not have effected a pre-meditated and concerted suppression of such a fact. In any case, this is not the Plaintiff’s pleaded case. In a strange way this would, in some oblique manner, explain why Surian never thought it was an issue for him to specifically bring up to the Plaintiff. On balance, I accept Surian’s evidence that Ang was very open about his bankruptcy and I find that he did mention it in the various meetings with the relevant parties, including the Plaintiff.

  65. [52] The Plaintiff, on the other hand, was someone who was willing to shape his evidence, in not insignificant areas, to suit his case. He was willing to say to the CAD on 28 June 2006, ie, within a month of his 2 June 2006 meeting with Surian and changing solicitors to WongPartnership LLP, that it was Ang and FK who kept persuading him to enter into the deal. He was willing, in order to make his case against Surian stronger before me, to state that Surian kept persuading him to enter into the Project and kept giving him assurances through several meetings between 11 to 23 May 2006 only to have to retract it under cross-examination. I will touch on these later. However there is at least one, if not two, pieces of objective evidence that I find telling:

  66. (a)

  67. There is an Attendance Note made by WongPartnership LLP, of the meeting at Surian’s office on 2 June 2006 with the Plaintiff and Surian. The note shows no protest or indignation at concealing Ang’s status as an undischarged bankrupt. If the Plaintiff had just discovered this ‘alarming’ fact by his new solicitor’s search, and would have sought advice on it, I would have expected some accusations to be made, whether to Ang directly or to Surian. Yet the minutes show no such protest or indignation. On the contrary, the Plaintiff's new solicitor talks about resuscitating the deal, not once, but twice: “Why don’t you do that Satinder? And start the deal afresh?” and later on: “…No need to write off the deal. We can just start again from Step 1, ie, the 1 million.”

  68. (b)

  69. Also when the Plaintiff met Lim Peng Lee on the afternoon of 1 June 2006, he never once said or even obliquely referred to Ang being a bankrupt, let alone his not knowing this fact.

  70. I therefore find, on balance, that the Plaintiff knew Ang was an undischarged bankrupt. I find that Ang was open about this fact and in the many meetings the Plaintiff had with Ang, especially in the company of others, Ang would have mentioned this fact and being the sharp, intelligent and experienced businessman that he is, the Plaintiff would have picked this up, but for the reasons set out below, that did not stop him entering into this Project.

  71. The 24 May 2006 letter of authority to disburse funds

  72. [53] This leads to the second important issue of fact: did Surian dictate the letter of authority on 24 May 2006 which gave Ang absolute authority “...to disburse funds as he deems fit ...” or did the Plaintiff write it out himself and/or at the instigation of Ang? This was strongly disputed with each party adamantly adhering to his version. The Plaintiff says that Ang discussed the problem of disbursing the funds with the Plaintiff travelling so often. The Plaintiff then telephoned Surian for advice and Surian dictated the simple letter of authority to the Plaintiff. The Plaintiff wrote it down and faxed it to Surian. The fax did not get through at first but on the second attempt it did. Surian on the other hand says Ang telephoned him on 24 May 2006 and told him that the Plaintiff had faxed certain instructions to Surian. Surian checked but there was no such fax and he sent an SMS to the Plaintiff asking him to resend the instructions. Surian therefore maintains he did not advise the Plaintiff to give the authority to Ang nor did he dictate the terms of such authority.

  73. [54] At first blush, the use of the words “...as he deems fit...” points to legal phraseology used by lawyers when granting absolute authority and discretion. However given the Plaintiff's background, business acumen and experience, such a phrase that would not have been alien to him. There is also a telling contemporaneous piece of evidence which points to Surian’s version being the true version. The terms of the SMS Surian sent the Plaintiff does not suggest at all that he was asking for something that he had just dictated to the Plaintiff:

  74. I therefore find that this handwritten letter of authority was initiated and drafted by the Plaintiff or the Plaintiff and Ang but not by Surian. This was another instance where the Plaintiff was willing to tailor his version of events to suit his purpose. This is not that kind of fact which one can forget.

  75. [55] Surian claims he called the Plaintiff after he received the faxed letter of authority to confirm the same and Surian says the Plaintiff did so. But Surian admits he did not advise the Plaintiff on the dangers and consequences of letting an undischarged bankrupt disburse funds. I doubt very much whether Surian called the Plaintiff upon receiving the fax. Otherwise it makes it all the more inexplicable and astonishing why he did not say anything about giving an undischarged bankrupt such untrammelled authority. Surian was clearly in breach of his professional duty to the Plaintiff in not advising him of the consequences of giving such absolute authority to disburse monies to an undischarged bankrupt, (see the Court of 3 Judges, [2009] SGHC184 at [58] on the consequences of dealing with an undischarged bankrupt). This would be so even if the Plaintiff knew that Ang was an undischarged bankrupt because a client may know someone is an undischarged bankrupt but may not know the full consequences, like the fact that there is no recourse against a bankrupt if he misappropriated the money. Whether the client then heeds the advice is another thing. If the client chooses nonetheless to go ahead, then the lawyer is absolved from liability for untoward consequences flowing from ignoring that advice.

  76. If the Plaintiff knew Ang was an undischarged bankrupt, would he still have participated in the Project?

  77. [56] The Plaintiff claims that if he knew Ang was an undisharged bankrupt he would not have entered into the venture at all. He points to his initial reluctance, right up to 19 May 2006. Having considered all the evidence, I find that the Plaintiff would still have entered into the venture, with the same structure as contemplated by the Plaintiff on 23 May 2006 for the reasons set out below, and the Plaintiff would still have given Ang the same absolute discretion to disburse the funds as Ang deemed fit.

  78. [57] This is prime property, introduced to the Plaintiff by Kelvin. Kelvin had successfully brought other good class bungalows to the Plaintiff in the past (see the DC proceedings, which refers to four plots at Swettenham Road, which apparently belonged to the Royal Cambodian Government, and two plots at Nassim Road). It was Kelvin who introduced FK to the Plaintiff and it was FK who was also instrumental in persuading the Plaintiff to enter into this venture. It is clear that the Plaintiff was initially not interested in a joint development but what made him change his mind after that 19 May 2006 morning meeting at his house?

  79. [58] I find that there were two main factors. First, the mechanics of the deal changed when the Plaintiff was no longer required to put up S$20 million to fund the construction of the bungalows (see the Plaintiff’s SMS: “However, I must admit it came as a surprise that an exit would only occur after spending approx 20 million equity. This makes the economics of the deal unworkable for me.”). He was now only required to put in S$1 million as earnest or seed money to meet some ‘expenses’. Commercially, the returns were very high. Secondly, and more importantly, it was an enticing opportunity to be introduced and enter into a business deal with one of the richest rulers in the world, the Sultan of Brunei, the Royal Family and RGB. He hoped to build a long-term relationship with such an illustrious, wealthy and famous ruler.

  80. [59] I find that the Plaintiff was very keen to develop a relationship with the Brunei Royal Family and RGB. There are snippets of evidence supporting this finding in the documents. For example, there is an email, dated 24 March 2006, sent by FK to Lim Peng Lee. It refers to Surian’s letter dated 23 March 2006 to the Plaintiff (see also FK’s email, also of 23 March 2006, asking for a reply to the Plaintiff's letter of offer dated 24 February 2006), stating that the Plaintiff's offer to purchase the Property had been forwarded “to the owners” that the owners will revert by early April 2006 and that Surian’s clients thanked the Plaintiff for the offer and hoped to revert to him as soon as possible. FK reports to Lim Peng Lee that the letter was handed to the Plaintiff and the Plaintiff “...was rather pleased that there is this ‘acknowledgement’ … the thought was more important than the ‘contents’ of the letter.” FK also enthusiastically referred to the portfolio of polo properties owned by RGB and that the Plaintiff, a recognised polo player, had in fact played at one of the properties and said that it was wrongly spelt; (there is also an email dated 24 March 2006, from Lim Peng Lee to FK, where Lim Peng Lee refers to PSN as his superior, his son, Atamaya and to FK having himself met Atamaya. The emails that follow in the first volume of the Agreed Bundle show FK and Lim Peng Lee also referring to other properties owned by RGB).

  81. [60] By 14 April 2006, Lim Peng Lee/Langston, Chin/LKIPL and FK were working on the joint development plan. RGB would provide the land (the Property), and Chin/LKIPL would subdivide the land, construct 6 to 7 good class bungalows that could be sold from S$10.5 to S$13 million for each bungalow. The profits would then be split between RGB and the parties participating in the Project. An earnest fee would be paid to Langston. Later Langston requested for a joint contribution of S$25,000 each for an Expense budget. From the documents in the two Agreed Bundles, the first time Ang’s name appears is in an email of 20 April 2006, which was sent by FK to Chin and copied to Lim Peng Lee, Surian and Ang. It will be noted that Ang did not meet the Plaintiff until 15 May 2006.

  82. [61] The recitation of the above facts show that there were fairly intense negotiations going on between the parties, in which the Plaintiff was not involved until 15 May 2006. FK was very involved in these negotiations and it was FK who brought the deal to the Plaintiff when RGB apparently found Chin to be an unsuitable ‘partner’ for the joint development. Yet the Plaintiff ultimately choose to drop FK from this action, specifically withdrew any allegations of conspiracy to defraud against FK, and choose not to call FK to give evidence – a stark departure from his initial actions of alleging that FK was part of the conspiracy to defraud him, and making a report to the CAD of this fact. The emails also show that Surian was involved in the legal aspects of the “deal” but not the commercial aspects which were negotiated between FK, Lim Peng Lee and Chin. Ang was the person in the background and was copied in on many emails after 20 April 2006.

  83. [62] It is not disputed that the Plaintiff first met Ang at the architect’s office at Keong Siak Road on 15 May 2006. Two days before that, FK had shown the Plaintiff the pre-contract agreement, the power of attorney to Ang and the photograph of Ang and PSN. Nor was it really disputed that FK turned up first, emphasized Ang’s importance as the representative and holder of a power of attorney from PSN, before Ang arrived. Thereafter FK and Ang were the ones who did the ‘selling’ of the Project to the Plaintiff, not Surian.

  84. [63] It is also not disputed that the first time the Plaintiff met Surian was at the Plaintiff's house on 19 May 2006. The Plaintiff conceded that he made a mistake in his affidavit evidence in saying that this first meeting with Surian took place on 11 May 2006. I accept Surian’s evidence that the meeting was fairly short, it was certainly not a couple of hours as the Plaintiff alleged, as the evidence just did not fit his timing, and I also accept Surian’s evidence that he did not do any “hard selling” of the Project or give any sales pitch. This is corroborated by the Plaintiff’s own acknowledgement, in an SMS that was sent after this first meeting:

  85. Before me, the Plaintiff admitted more than once in cross-examination that Surian gave a balanced presentation on 19 May 2006 and that “[h]e wasn’t pushing the deal”. The Plaintiff again departed from his pleaded case and his AEIC on this important issue.

  86. [64] Yet in the short time between 19 May 2006 (when the Plaintiff said he was not interested in the deal) and 23 May 2006 (when the Plaintiff went to Surian’s office to deposit the S$1 million), the Plaintiff changed his mind. It will be remembered that the Plaintiff flew up to Kuala Lumpur after the meeting with Ang and Surian on 19 May 2006, a Friday. He did not return until Sunday evening, 21 May 2006.

  87. [66] There are a number of SMSes, saved by the Plaintiff himself from his PDA or similar device and printed out in the Agreed Bundle.

  88. (a) Ang sends an SMS to the Plaintiff. It appears to be after hosting a dinner for Atamaya (but before the first meeting with Surian on 19 May 2006): “My explanation is just a simple one. Its t[he] different ways of doing biz arising fm different cultures. If u r not in complete comfort zone, lets give this project a pass...” (emphasis added). The important point to note is that the Plaintiff is given a clear opportunity to pass on the Project. But he did not. From the evidence, it was certainly not because Surian was persuading him to participate in the Project.

  89. (b) There is an SMS from the Plaintiff to Ang: “Even if this doesn’t work out, I’m glad I spent time with Atamaya and yourself. Maybe we can do something together in the future. Rgds...” and to Ang’s SMS query whether he would like to meet PSN who was coming: “I’d be delighted to meet PSN based on everything you’ve told me. Also am interested in nassim. I’m back sun night” (emphasis added). This appears to have been sent after the meeting with Surian on 19 May 2006 but sometime before 21 May 2006. It also shows the Plaintiff was interested in other properties of RGB, viz, 48 Nassim Road and there are references to this particular property in quite a number of the documents in the Agreed Bundles.

  90. (c) Ang sends the following SMS to the Plaintiff: “Congratulations to yr move today. U may not realize it but just about to embark on a formal partnership with PSN leading to a bigger partner Brunei Govt. For t record u r actually t first individual I had penned such a drastic move at this level. Now we can proceed to put t plans to work. I start execution tmrw to clear t w y for PS arrival Fri. Tmrw we meet Jurong for u to register initial interest n get their in principle in writing.” and a few lines later, from the Plaintiff to Ang: “Looking forward to a long lasting relationship…” (emphasis added). From the contents, the last two text messages were probably sent on the day the Plaintiff deposited his S$1 million with Surian.

  91. (d) An SMS from Ang to the Plaintiff, sent sometime around or after 24 May 2006, when Atamaya arrived for his Singapore visit, ahead of his father PSN: “Maya came with superb news updates. Looks like sunny skies ahead n lets implement carefully.” and a few lines after that: “Pls block 14 to 16th of July to travel to Brunei. It will be formal Mr. & Mrs ie u n ur wife at t main palace on His Majesty event.” The Plaintiff replied: “Noted” (emphasis added).

  92. (e) Another SMS from Ang to the Plaintiff, probably during PSN’s visit, and before they arrive for dinner at the Plaintiff's house: “I have super good news n being briefed by PSN now. We shld be leaving in a few mins.” and a few lines down: “U will simply love whats happening. Cheers.”

  93. [68] A search showed that the Property was indeed owned by the RGB. The Plaintiff was also eyeing another RGB property, 48 Nassim Road. The Plaintiff had spent a lot of time, independent of Surian, with FK and Ang. FK had shown the Plaintiff, independent of Surian, the pre-contract agreement, the power of attorney in favour of Ang and the photograph of Ang and PSN on 13 May 2006. As noted, the Plaintiff had met Atamaya and later PSN himself; he could form his own commercial judgment of them and on the deal they were bringing to the table. He had hosted them to meals at his house. He could and did make his own checks on the internet. PSN was a former Prime Minister of Brunei. It is not disputed that the Plaintiff had met Lim Peng Lee at the Hilton Hotel, before their meeting on 1 June 2006. The potential return was very large and the construction risk was borne by a reputable third party. I therefore do not accept the Plaintiff’s claim that he would not have entered into the deal if he had known Ang was an undischarged bankrupt. Ang was just a representative of PSN and Atamaya. The Plaintiff did not only deal with Ang, he dealt just as much with FK, which he now drops from the action and withdraws any allegations of conspiracy to defraud him. The key person to any such deal was still PSN and his son Atamaya.

  94. [69] I have already made reference to the Attendance Note made by WongPartnership LLP of the meeting on 2 June 2006. The ‘discovery’ that Ang was a bankrupt had just been made through WongPartnership LLP’s searches. Yet the minutes show no protest or indignation. On the contrary, the Plaintiff's new solicitors talked about resuscitating the deal. If the Plaintiff was truly outraged at this concealment, he would have discussed the same with WongPartnership LLP. If so, it seems very strange that at a meeting the next day WongPartnership LLP can say: “No need to write off the deal. We can just start again from Step 1, i.e., the 1 million”. This shows that first, the Plaintiff knew Ang was an undischarged bankrupt and secondly, that fact did not alter the complexion of the deal. If Ang’s bankruptcy was indeed such a deal breaker, I would have expected this to have been raised with Surian on 2 June 2006. To date the Plaintiff has taken no action against Chin or Lim Peng Lee to recover the monies paid to them. Instead the Plaintiff sued Surian and FK and then dropped FK from the action and concentrated his efforts against Surian.

  95. [70] Considering all the evidence, I make the following important findings of fact. The Plaintiff:

  96. (i)

  97. was, on his own evidence before the Disciplinary Committee, a private investor, a high net worth individual who developed real estate, invested in companies and did a lot of private equity all over the world;

  98. (ii)

  99. had previous experience with Singapore lawyers – WongPartnership LLP acted for him in his previous real estate ventures – and/or foreign lawyers in his private equity and investments in companies around the world;

  100. (iii)

  101. from using the services of one of the largest firms in Singapore with undoubted expertise in multiple areas of the law, especially in commercial law, chose to retain, again with no disrespect, Surian’s very modest firm:

  102. (a)

  103. the Plaintiff admits he was “a bit surprised that the Brunei government didn’t use a big or well known firm”; and

  104. (b)

  105. he also agreed that he could have asked WongPartnership LLP, if he wanted to check anything, but he did not;

  106. (iv)

  107. decided to participate in the Project because just as he had sized up the other players in the Project, he had the measure of Surian, Surian’s experience and ability and decided he could make use of him, including the knowledge that if anything went wrong, there was a fall back, ie, professional indemnity;

  108. (v)

  109. knew this was anything but a standard transaction; a more appropriate description might be “shady” because:

  110. (a)

  111. he knew he brought no ‘value add’ to the Project, other than providing the funds for various ‘disbursements’;

  112. (b)

  113. he was not putting up any money for the design and construction and taking the construction risk, someone else was doing so; and

  114. (c)

  115. the RGB was certainly not the kind of entity that needed someone to put in S$1 million into a project that was expected to yield about S$70 million in gross sales and give that person 40% of the profits, if such a transaction was above board; the RGB was far more likely to enter into an agreement direct with a company like JTC and share profits with them for the work that they would do in design and construction of the good class bungalows; and

  116. (d)

  117. to a loaded question: “Do you think it was sensitive because facilitation fees or under-table money was being paid to Atamaya?” like Oscar Wilde, he gave a telling answer: “No. They told me it was sensitive for another reason.”

  118. There is no doubt in my mind that the Plaintiff was so keen to get close to someone like PSN that he threw caution to the winds, take a chance with his S$1 million (which was not by any means an enormous sum to him), and as a final fall back, he had Surian’s professional indemnity. I therefore find that on the totality of evidence that the Plaintiff would still have entered into this contract despite Ang being an undischarged bankrupt. This golden opportunity to get close to PSN and get to know the RGB and the Royal Family, the possibility of future business opportunities with such an illustrious and incredibly wealthy entity, not just in Singapore but around the world, was simply too good to pass up.

  119. Did the Plaintiff and Surian Meet on Monday 22 May 2006 when Surian Persuaded the Plaintiff to Participate in the Project?

  120. [71] Were there a number of meetings on Monday, 22 May 2006, after the Plaintiff returned on Sunday evening, 21 May 2006 from Kuala Lumpur, where Surian persuaded the Plaintiff to enter into the venture?

  121. [72] The Plaintiff stated there were a number of meetings over a number of days before the Plaintiff turned up at Surian’s office to deposit his S$1 million on 23 May 2006. However, since the Plaintiff conceded that the first time he met Surian was on 19 May 2006 (and not 11 May 2006 as he claimed in his AEIC), then these alleged number of meetings had to be compressed into one day, 22 May 2006 (20 and 21 May being the weekend). The Plaintiff then claimed these meetings were held at the Marina Mandarin Hotel lobby. Surian came in and out of the meetings the Plaintiff was having there with Ang and FK as Surian had other meetings or matters that he had to attend to, hence his reference to multiple meetings. I find that to be more than just a gloss on facts to try and fit the contents of the mistaken affidavit into a new time frame. I therefore accept Surian’s evidence that he did not meet with the Plaintiff on Monday 22 May 2006. I also accept the evidence of Surian and reject the evidence of the Plaintiff on Surian’s role in persuading him to enter into the Project and find that Surian did not persuade the Plaintiff to enter into the venture or otherwise through any “sales talk” prior to the Plaintiff calling at Surian’s office to deposit his cheques. All the encouragement or even enticement came from FK and Ang. This is again another telling change of evidence by the Plaintiff and departure from his pleaded case and his AEIC.

  122. The Deal the Plaintiff Entered Into

  123. [73] I also find on the evidence that the ‘deal’ the Plaintiff knew he was getting into was as follows.

  124. (a)

  125. Originally, the whole basis for the joint development deal was for PSN to obtain the mandate or In-principle Approval letter from RGB. RGB would then enter into a joint development agreement (“JDA”), with Langston/Lim Peng Lee. Langston/Lim Peng Lee had entered into a pre-contract agreement with Chin/LKIPL for the development, subject to a condition precedent of obtaining the mandate from RGB. Both parties would jointly negotiate the JDA with RGB and once that was signed, Chin/LKIPL would pay S$700,000 to Langston as an advance for Langston’s fixed and agreed fee or share of Langston’s profits. Chin/LKIPL would fund all the costs and expenses of the development of the property until successful completion. The profits would then be shared between RGB, LKIPL and Langston (special management fee) in the proportion 60:35:5. Chin paid S$300,000 even though there was no In-principle Approval letter from RGB and obviously, no JDA. This S$300,000 was later paid to Atamaya in exchange for a guarantee of repayment in the event the mandate did not materialise. There would also be other fees for agents like FK and Kelvin.

  126. (b)

  127. Chin was then found to be an unsuitable ‘joint developer’ and had to be replaced. This is where the Plaintiff came in.

  128. (c)

  129. By Monday, 22 May 2006, the deal had changed. This was the deal the Plaintiff knew he was getting into. There was to be a JDA with RGB and a Singapore company set up and wholly owned by the Plaintiff; the original development parties, Chin/LKIPL were to be bought out with Chin being repaid the S$300,000 he had paid Atamaya; Langston/Lim Peng Lee also had to be bought out, but the sum to do so is not clear; the Plaintiff had to put in S$1 million as earnest monies to pay Chin/LKIPL and Lim Peng Lee/Langston and to fund expenses like travel and accommodation; either JP or BPL would come in to design and bear the construction cost of the bungalows and were prepared to wait for payment.

  130. [74] At this stage, the Plaintiff knew there was no pow.er of attorney possible from RGB, nor could he register any caveat or charge against the Property. The Plaintiff accepted the idea that this deal had been in the oven for quite a few months, that the time window to put it into effect was short, that it required a change of joint development partner, that the earlier parties had to be bought out and replaced, and that PSN was to get the mandate from RGB upon returning to Brunei after his visit to Singapore from 25 to 29 May 2006. My findings, especially at [70] above should be repeated here. I find that the Plaintiff, on his own assessment, fully expected PSN to deliver on the mandate. The contract between the Plaintiff's company, and the constructor of the bungalows, be it JP or BPL, was to be entered into later. The Plaintiff also expected to fund the expenses of PSN and Atamaya’s trips down to Singapore and for some visits to Brunei.

  131. [75] I find that the Plaintiff was expecting to pay off Lim Peng Lee/Langston because after the Plaintiff had deposited his S$1 million with Surian, and after the Plaintiff had faxed over his Letter of Authority granting Ang the discretion to disburse the S$1 million as he deemed fit, Ang sent an SMS to the Plaintiff on 24 May 2006:

  132. The Plaintiff replied:

  133. The Plaintiff never protested as to why an “additional S$250,000” was being paid. The Plaintiff's evidence in court was that he was not happy. He said his reply, “Noted,” did not mean approval of the payment. I find that difficult to accept. The Plaintiff was quite capable of saying, in no uncertain terms, “no” or “do not pay out” if he had wanted to. The word “noted” itself is telling. It certainly does not mean: “I am not giving my approval” as the Plaintiff would have us believe. It is more than just acknowledging receipt of a message; it means the Plaintiff has made a note of that fact. The phrase: “Rest can wait till tmrw” is also not without its significance, ie, there were more payments to be made. To that the Plaintiff also did not protest or ask what those payments were for (see [70(v)] above).

  134. [76] There is also other evidence corroborating the fact that the Plaintiff was willing to buy out Lim Peng Lee/Langston. This is found in the transcript of the recording he made when he met Lim Peng Lee on 1 June 2006. The Plaintiff, in speaking to Lim Peng Lee said:

  135. Again, further down in the transcript:

  136. [77] Finally under cross-examination, two matters arose in connection with this issue. First, the Plaintiff tried to claim, belatedly, that he did not even know why Chin had to be paid S$300,000 but he did not ask Surian why. This I find quite unconvincing and inconsistent with the evidence – right from the start he was told Chin had to be paid S$300,000 to get him out of the Project and for the Plaintiff to take it over. The Plaintiff was forced to admit a number of times that he knew right from the start that Chin had to be bought out and he accepted that. In his earlier meeting with FK, the Plaintiff says he found it odd that he had to pay Chin when it was so much simpler to just return Chin his money. I find that the Plaintiff must have raised this with FK or Ang. I therefore find the Plaintiff knew the S$300,000 had already been paid over to Atamaya, so Chin was out-of-pocket and had to be reimbursed. Secondly, and more importantly, both Mr Sreenivasan and Mr Maniam were quizzed by me during oral submissions over the evidence which showed the Plaintiff did not make any fuss about paying off Lim Peng Lee/Langston. The answer that emerged was that they were part of the original deal and no one wanted “fish bones”. I understood this to mean that no one wanted the Project to be underway only to suddenly find Lim Peng Lee kicking up a fuss about having put in money and not being reimbursed. This would embarrass the principals as they would not want to be involved in an apparent scandal. Getting fish bones lodged in one’s throat can be a very uncomfortable and inconvenient experience, as both Mr Sreenivasan and Mr Maniam acknowledged.

  137. [78] I therefore find that the Plaintiff also knew he had and was prepared to pay off Lim Peng Lee/Langston as well. Chin/LKIPL and Lim Peng Lee/Langston were the first two parties identified to go ahead with the joint development. Exactly what that sum was in Lim Peng Lee/Langston’s case, S$200,000 or S$250,000, the Plaintiff did not exactly know but he knew he had to buy out Lim Peng Lee/Langston’s interest. He wanted the Project “clean” from any earlier claims to an interest therein. Any attempt by him to claim otherwise now is an afterthought.

  138. S$100,000 taken in payment of Surian’s bill

  139. [79] It is not disputed that Surian rendered a bill which on its face recites work done from September 2005 to 23 May 2006. It also states that the work was done for Langston/Lim Peng Lee, Ang, PSN and Atamaya. The Plaintiff is not named as a client on the bill. Surian claims he raised the payment of his fees with Ang and Atamaya several times in the past. He was told to wait until the investor came into the Project. Before the Plaintiff came onto the Project, Surian had already done considerable work on the Project. Surian also claimed that on 23 May 2006 when the Plaintiff came to deposit the S$1 million, he asked whether he could render his bill. Surian says the Plaintiff agreed. It is also not denied that upon Ang’s authorisation on 25 May 2006, in the presence of Atamaya, Surian drew up his bill, sent it off to the Plaintiff and in breach of rules 7 and 8 of the Legal Profession (Solicitors’ Accounts) Rules and the Law Society Council’s Circular dated 1 March 1991 (which required a solicitor to allow a lapse of 2 working days after giving notice of his bill before transferring any money from the client’s account in payment of the bill), immediately issued a cheque from his client’s account and banked it into his firm’s account on the same day in settlement of this bill.

  140. [80] I do not accept Surian’s evidence that the Plaintiff agreed on 23 May 2006 that he could render the bill nor do I accept his evidence that the Plaintiff agreed he could make payment from the S$1 million deposit. Surian has therefore rendered a bill which recited work done before the Plaintiff entered into the Project, the bill did not name the Plaintiff as a client for whom the work was done (in fact it named others) and if the Plaintiff were to challenge the bill, I find that Surian will be very hard put to justify the same. In the circumstances, I was not surprised to find that Surian returned the S$100,000 to the Plaintiff. That speaks for itself.

  141. Application of the Law

  142. Conspiracy to Defraud

  143. [81] On his pleaded case, having dropped FK from the action and withdrawing any allegation of conspiracy against him, the Plaintiff was left with Ang and Surian as the parties to the conspiracy. The Plaintiff has not pleaded a conspiracy to injure. The Plaintiff has pleaded a conspiracy to defraud him and consequently he must meet the standard of proof required in Derry v Peek (1889) LR 14 AC 337 at 374 per Lord Herschell (with whom Lord Halsbury LC agreed), which was adopted in Panatron Pte Ltd v Lee Chew Lee [2001] 3 SLR 405:

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