Tan & Au LLP v Goh Teh Lee

Judith Prakash J:

[1] This action started in the Subordinate Courts as a claim by a firm of solicitors against a former client for payment of their fees. The defendant resisted the claim vigorously and mounted a counterclaim for damages, both against the firm and one of its partners, on the basis that as a result of the negligent handling of his case, he had sustained loss. The action was subsequently transferred to the High Court.

[2] The plaintiff in the original action is Tan & Au LLP (“the firm”), a firm of solicitors in which the partners are Tan Beng Hui Carolyn (“Ms Tan”) and Tony Au Thye Chuen (“Mr Au”) who are also husband and wife. The defendant in the original action and the plaintiff in the counterclaim is Goh Teh Lee (“Mr Goh”) who was the firm’s client between about June 2007 and March 2009.

[3] The firm’s claim is for the sum of $27,203.66 being fees and disbursements payable under two invoices rendered on 25 November 2008 and 23 March 2009 and includes a sum of interest claimed against the firm by Merill Legal Solutions.

[5] In June 2007, Mr Goh and his ex-wife, Mdm Sng Siok Ching (“Mdm Sng”), were the co-owners under a joint tenancy of the property known as unit 136D Koon Seng House (“the unit”).

[6] The unit was one of the 24 apartment units comprising Koon Seng House, a 4 storey block of flats, which was built on one piece of freehold land which also contained nine terrace houses (Koon Seng House and the terrace houses are hereafter collectively called “the development”). The flats were not strata subdivided but were comprised in 999,999 year leases with no share in the land. The nine terrace houses were owned by the landowner. This statement of facts is taken from the judgment of Andrew Ang J in Goh Teh Lee v Lim Li Pheng Maria and others [2010] 1 SLR 1041 (“Goh Teh Lee HC”) which also contains in [4] thereof a history of how the development came about.

[7] Most of the apartment owners were keen on achieving a collective sale of the development. The landowner was also in favour of the sale. By late June 2007 when Mr Goh first approached the firm to act for him, the only persons opposing the collective sale were Mr Goh and the owners of apartments 134A, 134H and 136H. Mdm Sng had moved out of the unit some time previously and she had agreed to the collective sale.

[8] Mr Goh asked Ms Tan to give him legal advice on the actions and steps taken by the sale committee formed by some of the owners in the development to achieve a collective sale of the development.

[9] On 16 April 2008, the sale committee applied to the Strata Titles Board (“the Board”) for an order allowing them to proceed with the sale. This application, STB 33 of 2008 (“STB 33”), was required because not all the owners of the development had agreed to the sale. On 24 April 2008, the firm acting on behalf of Mr Goh filed written objections to the collective sale (“the Objections”) before the Board.

[10] Prior to the hearing of STB 33, two mediation sessions were held. The first mediation session was held on 28 May 2008. Present were Mr Goh and both partners of the firm as well as the members of the tribunal appointed by the Board to hear STB 33. At that time, there were two other dissenting owners, Mr and Mrs Han, and they and their lawyer were also present at the first mediation session.

[11] In May 2008, the owners of each apartment in the development stood to receive a sum of about $642,000 for that apartment if the collective sale was completed. As an incentive to Mr Goh and the Hans and with the consent of the proposed purchaser of the development, Mr Leong Kwok Yan (“Mr Leong”), the solicitor representing the majority owners, offered Mr Goh and the Hans $800,000 for their respective apartments if they were to withdraw their objections to the collective sale. Subsequently, Mr Leong wrote to Mdm Sng’s lawyers in the divorce proceedings making an offer of $200,000 above the original price for the unit. This offer was conveyed to the firm as well on 5 June 2008.

[12] Mdm Sng found the offer acceptable and signed the collective sale agreement but no reply was received from Mr Goh or the firm on his behalf. When the tribunal was informed of this non acceptance, it proceeded to give directions for the hearing.

[13] Mr Goh’s Objections were heard by the tribunal on 3 and 4 December 2008. By that time, he was the sole dissenting owner. Ms Tan represented him before the tribunal. The result of the hearing was in favour of the sale committee and the tribunal ordered the collective sale to proceed.

[14] Mr Goh then instructed the firm to appeal the decision in STB 33. On 29 December 2008, the firm filed an originating summons (OS 1627 of 2008) (“OS 1627”) in the High Court for the setting aside of the order made by the Board.

[15] Thereafter, the firm requested Mr Goh to place it in funds to continue representing him in OS 1627 and to pay the outstanding bills. No payment was received from Mr Goh. On 22 January 2009, the firm informed Mr Goh that if he failed to pay its outstanding bills, it would have no choice but to discharge itself from further conduct of the matter. In the same letter, it also asked Mr Goh for further funds if he wanted to retain the firm as his solicitors for the conduct of OS 1627.

[16] On 4 March 2009, Mr Goh filed a Notice of Intention to Act in Person in OS 1627. He duly represented himself at the hearing of OS 1627 before Andrew Ang J between July and October 2009. On 27 October 2009, Andrew Ang J provided his written grounds dismissing Mr Goh’s appeal. The reasons for his decision are set out in Goh Teh Lee HC. Mr Goh was not happy with this outcome and filed an appeal to the Court of Appeal. Again, he acted in person. The Court of Appeal’s written grounds for dismissing his appeal were released on 26 April 2010. The judgment of the Court of Appeal is reported at Goh Teh Lee v Lim Li Pheng Maria and others [2010] 3 SLR 364 (“Goh Teh Lee CA”).

[17] This action was commenced by the firm on 22 May 2009 in the Subordinate Courts as MC Suit 15426/2009. Mr Goh filed his defence and counterclaim on 3 August 2009. In August 2010, pursuant to an application made by Mr Goh, the action was transferred to this court. Subsequently, Mr Goh made an application to join Ms Tan as the second defendant to his counterclaim. This application was allowed and from 29 November 2010, Mr Goh’s counterclaim has been against the firm as the first defendant and against Ms Tan as the second defendant. The reliefs sought are, however, the same.

[18] The statement of claim filed by the firm is short and straightforward. The amount claimed is $27,203.66 as being the outstanding total sum payable by Mr Goh for professional services rendered to him and expenses incurred by the law firm as Mr Goh’s solicitors for and on his behalf and/or at his request including services rendered by Merill Legal Solutions for the audio transcription of the hearing before the Board.

[19] By his Defence and Counterclaim (Amendment No 1) filed on 2 June 2010, Mr Goh denied he was liable to pay the sums claimed. He asserted the following:

(a) He had not engaged the firm to act for him in STB 33 or in OS 1627.

(b) The firm had voluntarily acted for him on the mutual understanding that they would win STB 33 and 70% of their professional fees would be paid from the costs which would be awarded to him.

(c) The firm had not quoted its professional fees to Mr Goh for representing him in relation to STB 33 prior to filing his objection to the collective sale.

(d) The firm had not quoted its professional fees to Mr Goh for representing him in the High Court prior to filing OS 1627.

[20] As an alternative to his assertions that the firm had acted without instructions, Mr Goh averred that the firm was negligent in discharging its duties to him and/or had failed to properly advise him. The following particulars of negligence/failure to provide proper advice were given:

(a) The firm had never pointed out to Mr Goh and had not advised him that he had no right or locus standi to file objections to the collective sale. The firm should have advised him that as a joint tenant of his property, Mr Goh could only raise and file objections with the participation of the other joint tenant. The other joint tenant was his estranged wife who had already signed the collective sale agreement therefore making any objection impossible. In the event, the Court of Appeal ruled as a preliminary point that Mr Goh had no right or locus to file any objection because all the joint tenants of a property had to act together to object to the en bloc sale. The fact that joint tenants had to act together in a cause of action concerning the property of which they were joint tenants was an established principle of law.

(b) Mr Goh had raised and filed the Objections and proceeded all the way to the Court of Appeal because Ms Tan had advised him that he had a good case. However, both the High Court and the Court of Appeal subsequently said that Mr Goh’s case had no merits.

[21] Mr Goh gave the following particulars of loss and damage that he had sustained by reason of the firm’s negligence/failure to give proper advice:

(a) If he had been properly advised that he had no locus to object to the collective sale and/or that his case was weak, Mr Goh would have been able to make a properly informed decision whether to proceed before the Board, the High Court and the Court of Appeal.

(b) The work done by the firm in preparing and filing the Objections was unnecessary and unjustified and was done for a case that was hopeless from the start and therefore the firm should not be entitled to claim any fees for work done.

(c) Mr Goh had incurred unnecessary disbursements and expenses including stamp fees for which he was entitled to be indemnified by the firm.

(d) As a result of his not being properly advised, Mr Goh had turned down an offer by the purchasers in collective sale for pay him an additional $200,000 as an incentive to sign the collective sale agreement. If Mr Goh had known of his problems over locus and/or the weakness of his case, he would have accepted the money.

[22] Mr Goh then put in a counterclaim. He claimed an indemnity from the firm against payment of all unnecessary disbursements and expenses and payment of the sum of $200,000.

[23] The Defence quoted above was the defence to the original action by the firm. Subsequently, Mr Goh put in a separate Counterclaim against Ms Tan. The issues raised by the Counterclaim are in essence the same as those raised by the Defence and the claim made is also similar so I will not set out the allegations in the Counterclaim in detail.

[24] At the trial of the action before me, three witnesses appeared for the firm namely, Ms Tan and Mr Au and Mr Leong. Mr Goh was the only witness for the defence.

[25] The issues arising in this case may be considered under three heads:

(b) In relation to Mr Goh’s defence and counterclaim:

(i) Were the firm and Ms Tan negligent in the discharge of their duties to him because they never pointed out to him that he had no locus standi to file objections to the collective sale; and

(ii) Did the firm and Ms Tan act to the standard of a reasonably competent and diligent advocate and solicitor in advising Mr Goh on the merits of his objections to the collective sale?

[26] This issue arises from Mr Goh’s denial in his Defence and Counterclaim (Amendment No 1) that he engaged or authorised the firm to act for him in the collective sale of the development and in OS 1627. The further elaboration of this point as set out in the Defence and Counterclaim (Amendment No 1) has been set out in [19] above.

[27] In his closing submissions, Mr Goh did not deal with these points at all. Further, since the firm obviously acted for him before the Board and in filing OS 1627 and Mr Goh’s main complaint is that it and Ms Tan acted negligently in the course of so doing, it would seem that these complaints are baseless. However, since Mr Goh was not represented, it would probably be useful to consider whether he was able to substantiate any part of his pleadings on this point in the course of the trial.

[29] As a preliminary point, I note that this position is a difficult one to establish because in the ordinary course of business, one would not expect a solicitor’s firm to represent a client who has not instructed it or to volunteer its services. Solicitors’ firms are in practice to do business and do not, in general, undertake to provide their services on a voluntary basis to persons who have no connection with them and are engaged in property disputes. Further, solicitors are well aware that it is against the rules of practice to provide services on a contingency basis.

[30] In support of his contention that he did not instruct and authorise the firm to act for him in the conduct of STB 33, Mr Goh stated in his affidavit of evidence-in-chief (“AEIC”) that Ms Tan had filed his objections to the collective sale on 24 April 2008 without discussing her legal fees with him or asking for a deposit. He concluded from this that Ms Tan had moved to secure herself to act in his case and had left him with no opportunity to decide whether to appoint her or not. He said that since she did not mention fees, she had volunteered to act for him without any agreement or fees. Mr Goh’s exact allegations (at [6]-[8]) are as follows:

[31] The objective evidence was, however, that by a letter dated 29 May 2008, the firm gave Mr Goh an estimate of its legal fees for representing him in the conduct of STB 33, which involved their preparatory work, attending two mediation sessions and one day of hearing. Mr Goh received this letter and subsequently asked for a discount to which the firm agreed on 10 June 2008. In its letter of that date, the firm lowered its fee estimate by $1,500. The firm’s reason for giving Mr Goh its fee estimate only after the Objections to the collective sale were filed was that STB 33 was commenced on 16 April 2008 and the firm had only ten days in which to put in the Objections. It therefore prepared these on an urgent basis first, leaving the issue of fees to be sorted out later.

[32] The fact that the firm did not quote its fees or have a warrant to act signed before the Objections were filed with the Board does not mean that Mr Goh had not authorised it to do so. He admitted receiving the letter of 29 May 2008 which contained the original fee estimate. He must have known then that the firm expected to be paid for its work. In fact, he did know it because he asked for a discount which he was given subsequently. At that stage, Mr Goh could have informed the firm that it was not entitled to charge him anything because it had acted without authority in filing the Objections and/or because it had agreed to conduct his case on a voluntary basis. He took no such action. I do not accept that he genuinely believed at that time that the firm was acting either without authority or as a volunteer.

[35] During cross-examination, Mr Goh admitted that the firm had, on and off, asked him for payment. He agreed that it had, on and off, also billed him for work done and chased him for payment when he had not paid. He admitted that when he was asked for payment, he did make some payments. He also agreed that he had never challenged the firm in respect of its requests for payment by saying that he was only supposed to pay 30% and the remaining 70% would only be recovered if he won.

[38] In his Defence and Counterclaim (Amendment No 1), Mr Goh also denied officially engaging the firm to act for him in OS 1627 and alleged that prior to filing OS 1627, it had failed to provide him with an estimate of its professional fees for doing so. OS 1627 was filed on 29 December 2008. In his AEIC, however, Mr Goh’s evidence did not support this allegation. He said there that after the Board dismissed his Objections, Ms Tan had advised him that he could make an appeal to the High Court and she sent him a written quotation dated 19 December 2008 on her professional fees for this appeal. Mr Goh asserted that up to the date of his AEIC, he had not agreed to or accepted the quotation. This evidence contradicted his pleading that he did not obtain an estimate of the firm’s professional fees before OS 1627 was filed. There was also evidence that on 19 December 2008 itself, after being asked by the firm to place it in funds, Mr Goh had a conversation with an employee of the firm in which he said the firm put payment at “number one” and that in priority his case only came after the payment. During this conversation he also indicated that he wanted OS 1627 filed by 26 December 2008.

[41] The law relating to the standard of care and skill required of solicitors in the conduct of professional business was reiterated recently in Zhou Tong and others v Public Prosecutor [2010] 4 SLR 534 (“Zhou Tong”), by V K Rajah JA (at [15]):

[42] Mr Goh’s counterclaim against the firm and Ms Tan was based on his assertion that they had not met the necessary standard of care in two respects viz in relation to the basic issue of whether he was entitled to object to the collective sale at all and, second, in relation to their general care and conduct of his file especially since they wrongly advised him that he had a good case.

[43] Mr Goh’s case turned to a large extent on the applicability and the interpretation of s 84E of the Land Titles (Strata) Act (Cap 158, 1999 Rev Ed) (the “Act”). For convenience, the relevant provisions of s 84E are set out below:

[44] The issue of Mr Goh’s ability to lodge objections to the collective sale in accordance with s 85E(5) of the Act was not raised before the Board or in OS 1627. In fact, it was not raised in either the Appellant’s Case or the Respondent’s Case prepared for the purpose of Mr Goh’s appeal to the Court of Appeal against the High Court decision. This issue was raised by the Court of Appeal itself when, prior to the scheduled hearing of the appeal, it asked the parties for submissions on whether it was necessary, under the existing scheme for collective sales, for co-owners (whether by way of joint tenancy or common tenancy) to act together if they wanted to either support or oppose the sale. The Court of Appeal described the answer to this question as being “pivotal” because it determined Mr Goh’s ability to put his objections before any tribunal.

[45] In the result, after analysing and considering the submissions of both parties, the Court of Appeal concluded that all co-owners had to act together to either support or oppose a proposed sale. The relevant conclusions of the Court of Appeal are summarised in the headnote of Goh Teh Lee CA as follows:

[46] In this action, Mr Goh argued that the defendants were negligent in their handling of the issue of locus standi. He asserted that Ms Tan was negligent because she did not exercise due diligence in relation to this issue. She should have been aware that it was established law that a joint tenant must always act together with other joint tenants. Even if she could not be expected to remember all of the law all of the time, Ms Tan should have acted with due diligence to refresh her memory of that established law through research in order to equip herself to advise him properly and competently.

[47] Mr Goh further argued that the defendants’ assumption that he had standing was below the standard of care of a reasonably competent and diligent advocate and solicitor. He argued that the true position was that he did not have locus standi under s 84E(5) of the Act to file objections to the collective sale. Ms Tan should have placed this consideration before him in order to enable Mr Goh to make an informed decision whether or not to proceed with the hearing before the Board or to accept the offer of the additional $200,000 for his unit.

[48] In furtherance of his arguments, Mr Goh stated that a reasonably competent and diligent advocate and solicitor would have:

(a) Done proper and adequate research which would have reminded him or her that joint tenants had to act and sue together;

(b) Asked himself or herself whether anything in s 84E(5) or any other part of the Act showed a clear and unambiguous intention to depart from this established rule of law;

(c) Concluded that there was no such clear and unambiguous intention to depart from the established law that joint tenants had to act together and sue or be sued together;

(d) Concluded that Mr Goh did not come within any established exception to the common law rule requiring joint tenants to act together; and

(e) Concluded that the responsible advice to be given to Mr Goh was that, because of points (a) to (d), he, acting alone, did not have locus standi to file an objection under s 84E(5).

[49] The defendants submitted that they had exercised the reasonable care and skill required of a reasonably competent and diligent solicitor, and so were not negligent. They contended that the position they took was defensible. This was clear from paragraph 21-23 of Ms Tan’s AEIC, which read:

[50] These arguments were adopted by the defendants in their submissions as well. Accordingly, the defendants argued that they had reasonable basis for construing the Act in the fashion they did, and there were tenable bases for them to take the views they did. They then argued that the fact that a solicitor had erred in construing or in advising on the construction of a statute or document is unlikely to constitute negligence, so long as the construction which he favoured was a tenable one.

[51] Second, the defendants argued that the law was uncertain and any error was an error of judgment on the part of the defendants which did not amount to negligence. This second argument does not, however, appear to have much substance as even an error of judgment may be negligent. This was clearly pointed out by Chao Hick Tin J in Wai Wing Properties Pte Ltd v Lim, Ganesh & Liu (a firm) [1994] 1 SLR(R) 1004 (at [62]):

Accordingly, the court cannot exempt the solicitor from liability by simply describing his error as an error of judgment. It has to undertake the inquiry necessary to determine whether the error arose from negligence.

[52] In the analysis of the issue, the first thing to consider is whether the defendants should have alerted themselves to the law regarding joint tenants. This question arises from Mr Goh’s assertion that the defendants should have performed research, should have sought to have informed themselves of the law and should have avoided making assumptions as to his standing.

[53] The evidence was that the defendants did not, in the course of advising Mr Goh on his objections to the collective sale, research the law on joint tenants. That area of the law appears not to have entered their minds at all.

[54] Ms Tan conceded that she did not advise Mr Goh that he had no locus standi to oppose the collective sale before the Board Proceedings. This was clear from paragraph 21 of her AEIC, which read:

[55] She further set out in her evidence:

[56] Instead, the defendants’ advice to Mr Goh was simply based on a literal reading of s 84E(5) of the Act. The defendants’ interpretation of the statute was that Mr Goh was a ‘proprietor’ within the meaning of s 84E(5). Ms Tan also stated that if it was the case that Mr Goh had to act with his ex-wife to fall within the meaning of ‘proprietor’ in s 84E(5), the defendants would have thought that it was arguable that as co-owner Mr Goh would have still had locus standi as an “other person (other than a lessee) with an estate or interest in the flat and whose interest is notified on the land-register for that flat”.

[57] As it turned out, this literal interpretation of the statute was an erroneous interpretation. However, the key question to be answered here is: has Mr Goh been able to show that the error was one which no reasonably competent solicitor would have made? I turn to the evidence.

[58] At the hearing before the Board, the Board only reviewed the case on the merits, and dismissed the Objections accordingly. This was repeated at the hearing of OS 1627 before the High Court Judge. In neither of these proceedings was the issue of standing brought up by opposing counsel. In neither of these proceedings was the issue of standing brought up by the Judge or the Board. This is some indication that the issue of standing was not an obvious one that would raise a red flag to persons who had possessed ordinary skill and care. In particular, it is noteworthy that opposing counsel who would have had every reason to assert a lack of locus standi on the part of Mr Goh failed to take this point before the Board, before the High Court and before the Court of Appeal until the latter coram specifically directed him to file submissions on the point.

[59] Much was made by Mr Goh about the fact that there were points in time prior to the hearing of STB 33 when the defendants should have been alerted to the issue of standing and acted accordingly. He submitted that they should have been alerted by the knowledge that Mdm Sng, the other joint tenant of the property, had given her consent for the sale to proceed. The defendants, it was argued, should have noted this and considered the issue of standing. In my view, this is not a strong argument because at the proceedings before the Board and the High Court, the Board and the Judge respectively had that particular piece of information, yet failed to realise that it might give rise to any issue about standing.

[60] Unfortunately, there was no evidence from any solicitors apart from Ms Tan and Mr Au regarding whether at the material time practitioners in this field would have been alert to the possibility of the existence of an issue regarding Mr Goh’s locus standi. However, some assistance may be gleaned from two articles that were subsequently written about the decision in Goh Teh Lee CA.

[61] In En Bloc Sales and Joint Tenancy [2011] Sing. JLS 564, Associate Professor Barry Crown (“Prof Crown”) states that “[i]n Goh Teh Lee v Lim Li Pheng Maria the Court of Appeal had to consider a novel point relating to the law of co-ownership”. The article goes on to state that the approach taken by the Court of Appeal “seems to place too much emphasis on the doctrinal nature of joint tenancy”. Prof Crown takes the view that Section 84E(5) can be read so as to include a single joint tenant, and argues that this can be supported by discerning legislative intent and by considering policy objectives.

[62] The purpose of citing Prof Crown’s view is not to endorse its merits, on which I make no comment, but to demonstrate what the state of the law could have been viewed to be prior to the Court of Appeal’s decision. His view lends credence to the argument that a reasonably competent solicitor could have taken the stand that one of several joint tenants acting singly was allowed by s 84E(5) to lodge an objection to a collective sale. Whilst the defendants did not articulate that perspective to Mr Goh, it was obviously the view that they took and acted upon in lodging the Objections before the Board.

[63] It might be argued that Prof Crown only reaches his conclusion after applying considered thought to the matter, as opposed to the less rigorous process the defendants undertook in reaching their interpretation. As such, he did ask himself the questions that Mr Goh argued Ms Tan should have asked herself (see [48] above). The situations before Prof Crown and the defendants were, however, somewhat different.

[64] First, Prof Crown had the benefit of reading the Court of Appeal’s judgment and then making arguments on it. He knew, at the point of writing his article, that the “novel” point was resolved in a particular fashion. The defendants did not. As stated in Jackson & Powell on Professional Liability (Sweet & Maxwell, 7 Ed, 2012) at [11-092]:

[65] In a similar vein (albeit in the context of auditors), the Court of Appeal in PlanAssure PAC (formerly known as Patrick Lee PAC) v Gaelic Inns Pte Ltd [2007] 4 SLR(R) 513 (“PlanAssure”) held, (at [54]):

[66] Prof Crown had the benefit of hindsight, the defendants did not.

[67] Second, the defendants as practitioners faced pressing time constraints. Baroness Hale, in assessing a claim against counsel for negligence in Moy v Pettmann Smith [2005] 1 WLR 581 (“Moy”), reaffirmed the position set out by Lord Hobhouse in Arthur JS Hall & Company v Simons [2002] 1 AC 615, where the learned Law Lord said:

[68] Accordingly, although Prof Crown showed more rigor and thought in coming to the same conclusion, the defendants, who had to make their decision and exercise their judgment in difficult circumstances, did not breach their standard of care and skill in not going through the same analytical process as he had done in writing the article.

[69] Quite apart from Prof Crown’s case note, there was a case note on Goh Teh Lee CA by two lawyers in private practice in Rodyk & Davidson. These lawyers argued that policy considerations and legislative intent must allow a single joint tenant to object to a collective sale. Otherwise, he would be deprived of his right to protect his interest in the property. They contended that each co-owner was no less an owner of the property concerned and should be entitled to raise valid grounds of objection to a collective sale. The conclusion drawn by these practitioners was the same as that reached by the defendants albeit that they had the benefit of hindsight and undertook more analysis in coming to their conclusion than the defendant had.

[70] One of Mr Goh’s main points supporting his contention that Ms Tan did not act with due diligence because she failed to pay attention to the law of joint tenancy and advise him on the requirements of joint tenants to act jointly was that this was an established legal point which would have been obvious to her had she paid attention to this area of the law. It is not so clear, however, that the principles laid down in Goh Teh Lee CA were simply reiteration of established law.

[71] First, Prof Crown has described it as a novel point. Second, in Strata Title in Singapore and Malaysia (LexisNexis, 4 Ed, 2012), Professor Teo Keang Sood described the Court of Appeal judgment as such (at 683-685):

It would appear from this passage that the interpretation of s 84E(5) was clarified by the Court of Appeal and was not established law prior to the decision.

[72] An analysis of the Court of Appeal’s judgment also indicates that its conclusion was a new point. The Court of Appeal first laid out the principles of joint ownership of land and then said at [24]:

Having laid out the general common law principle that joint tenants had to act jointly in order to effectively bind the estate that they owned, the Court of Appeal went on to apply this principle to a collective sale in the following way:

[73] The application of the established law on joint tenancy to the Act was, before the Court of Appeal’s decision, unexplored. The result was reached via an implication; that is, it was not clear on the face of the legislation that joint tenants had to act together in opposing a sale. It was stated as much in the judgment (at [17]):

[74] On the face of the legislation therefore, the interpretation which the defendants gave to s 84E(5) was a correct one and where they differed from the Court of Appeal was that they did not take the additional step of applying the principles of joint tenancy to the Act and modifying the plain wording of the Act in accordance with those principles.

[75] The interpretation given by the Court of Appeal was not shown by Mr Goh to have been common knowledge or the prevalent view held by other practitioners in Singapore at that time. In cross-examination, Mr Goh asserted that it had been an established legal principle for a long time and indeed had been established since Singapore was a British colony. However, when he was questioned further on this issue, he admitted that the only reference that he had for alleging that this principle was established was the Court of Appeal decision. On the other hand, the members of the Board included prominent members of the legal fraternity to wit Professor Tan Sook Yee who has published an authoritative text on land law in Singapore and District Judge Seng Kwang Boon. They would have known if it was an established legal principle that in a collective sale situation a single joint owner could not object to the sale. Yet, they did not raise the issue of locus standi. The same reasoning applies to the High Court judge who was a well known practitioner in, inter alia, commercial and land law before he was elevated to the bench. He would certainly have been aware of such an established principle.

Of the four reasons given in that case for the finding that the solicitors were not negligent, the last two definitely apply here. As regards the first reason, the situation here is even more in favour of the solicitors in that the plain reading of the statute is in favour of the interpretation that they held. Whilst the second reason does not apply in that there is no evidence that any research was done apart from looking at the language of the section, I do not think that balances the scale against the defendants.

[77] I hold that the defendants and Ms Tan in particular did not act negligently in failing to advise Mr Goh that he lacked the locus standi necessary to object to the collective sale.

[78] Mr Goh took the position that the defendants failed to act to the standard of a reasonably competent and diligent advocate and solicitor in advising him on the merits of his case. They had advised him that he had a good case when they should have advised him that his objections to the collective sale had no merit. He pointed out that Ms Tan had admitted in court that she had considered that his case was a good case and she was confident and felt that he had a good chance of succeeding. Yet, his case had failed at every level.

[79] The defendants replied that they only informed Mr Goh that they were confident of his case insofar as STB 33 was concerned. They said that for the proceedings in OS 1627, they acted under Mr Goh’s instructions when they filed the appeal because they had advised him that an appeal against the sale order made by the Board would be an uphill task. Whilst Ms Tan was confident, based on procedural irregularities, that Mr Goh had a good case before the Board, she did not use percentages to gauge his chances of success and she did not guarantee success as there could be no guarantee in litigation.

[80] The objections to the collective sale that Mr Goh placed before the Board were recorded in the Grounds of Decision of the Board in Lim Li Pheng Maria and Others v Goh Teh Lee [2009] SGSTB 2 (at [9]):

[81] From the closing submissions of Mr Goh at STB 33 (where he was still represented by Tan & Au LLP), it emerges that though there were six grounds of objections as set out in the decision of the Board, the defendants were emphasising the following in particular:

(a) The method of distribution of sale proceeds was unfair;

(b) The nine terrace structures were not entitled to participate in the collective sale;

(c) The threshold 80% of signatures to the Collective Sale Agreement had not been obtained.

[82] All the Objections as put forward by the defendants were rejected by the Board. That in itself does not mean that the defendants were negligent in advising Mr Goh that they had confidence in his case. The question that arises is whether the advice that these lines of argument had merit was so erroneous that the quality of advice fell below the standard required of a reasonably competent solicitor.

[83] In Zhou Tong, the court set out what was required of a solicitor in assessing the merits of a client’s case (at [19]-[20]):

[84] A relevant (but not conclusive) factor to take into account in assessing whether a solicitor’s advice on the merits of a case has been so erroneous that it breaches the relevant standard of care is to assess whether the arguments as set out in the advice gained any traction with the court or tribunal in question. In this regard, it would be helpful to set out the reasons the Board gave for approving the sale and rejecting Mr Goh’s arguments:

[85] As mentioned above (at [81]), there were three lines of argument which were emphasised more than the rest. Even on a cursory glance, it is evident that:

(a) For the 80% objection, the procedural argument that was mounted by the defendants was disregarded because the relevant rule had been satisfied “in substance”. The Board made no finding on the validity of the procedural argument itself.

(b) On the argument that the owner of the terrace houses were not entitled to process, the Board simply stated that they disagreed with counsel’s arguments, as the terrace houses and apartments sit on the same plot of land. Suffice to say, a disagreement by an adjudicatory body with an argument proffered by counsel does not mean that the argument was unmeritorious to the point that no reasonably competent solicitor would advise that the point be taken.

(c) On the argument that the distribution method was unfair, the Board weighed competing arguments mounted by both sides and came to a finding that the distribution method of the majority was fair. Again, the fact that the defendants’ arguments did not succeed in persuading the Board does not mean that they were negligent in their advice that there was a case to be mounted.

[86] Before the defendants were discharged, they provided Mr Goh with advice relating to the setting aside of the order by the Board. The defendants informed Mr Goh that his chances of succeeding on appeal were slim. The specifics were as follows: On 12 January 2009, Mr Goh wrote to the defendants. The letter read:

[87] In a reply dated 29 January 2009, the defendants stated:

[88] This advice was very different from the earlier advice given to Mr Goh, in that the defendants’ confidence in the case had evaporated. In short, the advice was that the appeal would be uphill, and, as it turned out, the appeal was unsuccessful. There is no merit to any criticism of this second round of advice as negligent. In fact, this advice was realistic. In any event, this advice that the appeal was difficult was not heeded, as Mr Goh conceded repeatedly while being cross-examined before me.

[89] Whilst the appeal did not succeed, Andrew Ang J made a thorough analysis of Mr Goh’s arguments which were not very different from those mounted before the Board. His analysis is interesting in that it shows that in certain respects, at least, the arguments mounted by the defendants in STB 33 were plausible arguments.

[90] Dealing with the argument before him that the owner of the terrace houses was not entitled to process and that the method of distribution between the landowner and the unit owners was unfair, Andrew Ang J held (see Goh Teh Lee HC at [27] – [32]):

[91] It can be seen from the above discussion, that Andrew Ang J was fully aware that there was a serious argument to be made that s 84E did not apply to the development and that because of the way in which the collective sale had been conducted the landowner was not entitled to process under that section. It was because the judge considered that the same objective could have been achieved by resorting to a two-stage approach which would have the result of making s 84E applicable and because he was alert to the parliamentary intention behind the legislation, that Andrew Ang J decided to give a wide interpretation to the section and to reject the defendants’ argument. It was not a foregone conclusion by any means that the judge would have upheld the Board’s determination since, as he pointed out himself in [30], it was inappropriate that the terrace houses were assigned notional share values.

[92] In addition, Andrew Ang J also addressed his mind to the contention that the method of distribution was unfair (at [41]-[44]):

[93] It is worth reiterating that once the proceedings went on appeal to the High Court, Mr Goh’s case had to be approached from a different angle because the High Court, under s 98(1) of the Building Maintenance and Strata Management Act (Cap 30C, 2008 Rev Ed) which provided the avenue for appeal, could only set aside the Board’s decision if it was satisfied that the Board had made an error of law. As the judge pointed out, it was not possible for him to say that the Board had made an error of law in relation to whether or not the transaction was lacking in good faith. Whilst that argument might not have flown at the High Court level because of this restriction it was, however, an arguable point on the facts, which was correctly argued before the Board.

[94] From this analysis, it can be seen that some at least of the points brought up by the defendants before the Board were points that were arguable and which could possibly have succeeded. They were not points that no reasonably competent solicitors would have brought up. Accordingly, the defendants’ advice to Mr Goh to argue these points was not negligent. Even if the other points did not have much merit, these points on their own show that the defendants were not negligent. Solicitors cannot be held negligent because not all the points they put across for a case are winning or even good points. Unsuccessful arguments are a daily occurrence but that does not mean the solicitors proffering them are substandard practitioners much less negligent ones.

[95] As regards the point about the 80% share value not having been obtained, this was rejected by the High Court in the following terms:

[96] It would seem that the High Court had little difficulty in finding that the point had no substance. However, there is textbook support for the defendants’ position in raising the point as a procedural objection. In Tan Sook Yee’s Principles of Singapore Land Law (Tang Hang Wu and Kelvin FK Low gen ed) (LexisNexis, 3 Ed, 2009), the learned authors state (at [22.106)]:

[97] The Board did not comment on the procedural objection. It preferred to decide the application on the substantive points. Since the procedural objection did have some academic support, it should not be considered so unmeritorious that the defendants should be held to have provided negligent advice because they put it forward.

[98] As I have now found that Mr Goh’s defence and counterclaim cannot be sustained, I turn to the specifics of the firm’s claim for unpaid fees and disbursements.

[99] The outstanding fees amounting to $27,048.47 are shown in the two invoices mentioned in [3] above. The additional $155.19 comes from the interest that Merrill Legal Solutions had charged the firm for late payment for the transcripts of the proceedings in STB 33 that Merrill Legal Solutions had provided to the firm, for and on behalf of Mr Goh.

[100] The firm argued that it is properly entitled to payment of its unpaid bills for its representation of Mr Goh in STB 33. In addition, the firm argued that until its retainer was terminated by Mr Goh, it carried out its work in respect of OS 1627 with expediency and competence and ought to be paid its outstanding bills.

[101] In his submissions, Mr Goh stated that:

[102] It would appear that Mr Goh had, over the course of the trial, moved to take a new position, that he was willing to pay the firm for work done up to the point where he suffered from the lack of advice on standing, and that this was a fair position. This would imply that Mr Goh considered that if there was no negligence, it would only be fair to pay the firm for all work done.

[103] I have found that Mr Goh engaged the firm’s services right up to the stage that it discharged itself. Accordingly, Mr Goh must pay for the work done. The only question is as to quantum.

[104] For convenience, I set out the relevant bills:

It can be seen from the above that the firm rendered two bills numbered 4602, the first for $8,240 and the second, replacement, bill for $11,740, an increase of $3,500. The total amount billed by the firm was $34,738.47. As against this sum, Mr Goh paid the firm a total of $7,690 between July 2007 and February 2009. The firm is accordingly claiming the balance of $27,048.47.

[105] The question is whether it was reasonable for the firm to amend its bill 4602 from $8,240 to $11,740. This bill was for work done between 31 May 2008 and 25 November 2008. Mr Goh pointed out that no reason had been given for the change in the amount charged for this work. He cross-examined Ms Tan about this but she was unable to offer any reason why the sum charged had been increased by $3,500. Instead, she pointed the finger at her partner, stating that he was in charge of the sums:

[106] However, while he was being cross-examined, Mr Au was equally unable to give a complete explanation for the difference in the fees. He stated that he amended the original bill because it did not sufficiently reflect the time taken and work done:

He did not, however, give a reason why the original figure did not reflect the amount of time taken or the work done. No breakdown was given of either component.

[107] Mr Au then attempted to explain the increase by stating that it was in response to Mr Goh saying that the bill was too low:

This was not a believable explanation. It was clear from Mr Goh’s conduct throughout the case that he wanted to be charged less rather than more. He would never have complained that a bill was too low. However low it was, he would have asked for a discount. Since neither partner of the firm was able to explain why bill no 4602 had to be increased by $3,500 from the original charged, I cannot accept the amended bill as being a reasonable reflection of the work done. I will therefore assess the firm’s fees on the basis of the original bill no 4602 which was for $8,240. Using this figure, the total amount remaining payable to the firm would be $23,548.47. No questions were raised about the reasonableness of the other bills.