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Grounds publishedDecided 18 Oct 2013
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High Court

Then Khek Koon and another v Arjun Permanand Samtani and another and other suits

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[2013] SGHC 213Case no. Suit No 1084 of 2009 consolidated with Suit No 1085 of 2009 and Suit No 1086 of 2009

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Grounds of decision

Official text from eLitigation

  1. Vinodh Coomaraswamy J:

  2. Introduction

  3. Three consolidated actions

  4. [1] In these three consolidated actions, five plaintiffs seek equitable compensation against two defendants for breaches of fiduciary duties. All seven parties – the five plaintiffs and both defendants – are subsidiary proprietors of flats in a condominium known as Horizon Towers. Both defendants were members of the sale committee in charge of the collective sale. The plaintiffs’ claims arise from the ill-fated collective sale of Horizon Towers.

  5. [3] The STB and the High Court sanctioned the collective sale over the plaintiffs’ objections. Three of the five plaintiffs pursued their objections to the Court of Appeal. The appeal thoroughly vindicated the plaintiffs. The Court of Appeal upheld virtually the entirety of the plaintiffs’ suite of objections, both on the facts and on the law. The Court of Appeal set aside the collective sale. The plaintiffs kept their homes.

  6. Plaintiff’s case

  7. [7] To establish the fiduciary duties and to establish the breach of those duties, the plaintiffs rely on the Court of Appeal’s comprehensive judgment setting aside the collective sale in Ng Eng Ghee and Others v Mamata Kapildev Dave and Others (Horizon Partners Pte Ltd, intervener) and Another Appeal [2009] 3 SLR(R) 109 (“Ng Eng Ghee (CA)”). They do so in two senses. First, they rely on it as a matter of stare decisis: as precedent binding on me that members of a sale committee in a collective sale owe all subsidiary proprietors certain fiduciary duties. Second, the plaintiffs rely on Ng Eng Ghee (CA) under the extended doctrine of res judicata giving rise to an abuse of process: that Ng Eng Ghee (CA) – which considered precisely the same conduct by precisely the same defendants (amongst others) in precisely the same collective sale – precludes those defendants from denying that they owed fiduciary duties to the plaintiffs and from denying that they breached those fiduciary duties. Any attempt by the defendants to do so, the plaintiffs say, would amount to a collateral attack on the Court of Appeal’s decision in Ng Eng Ghee (CA) and is therefore illegitimate and impermissible.

  8. [8] The plaintiffs’ case, therefore, is that the only issue for me to determine in these proceedings is the quantum of the equitable compensation which the defendants should pay to the plaintiffs and not the liability of the defendants to pay that compensation.

  9. Defendants’ case

  10. [9] The defendants accept, at this stage of these proceedings, that I am bound as a matter of stare decisis by Ng Eng Ghee (CA) to hold that, as members of a sale committee overseeing a collective sale, the defendants owed the plaintiffs certain fiduciary duties. They do, however, reserve the right to challenge the existence of these fiduciary duties if this matter goes further. But the defendants submit that Ng Eng Ghee (CA) does not preclude them from seeking to prove to me that the defendants did not in fact breach those fiduciary duties. The defendants therefore assert in this action that they did in fact act in good faith throughout the collective sale process. They assert also that they would have been able to prove this in the collective sale proceedings if only they had been afforded the opportunity to give evidence.

  11. Parties

  12. The collective sale proceedings

  13. First SC is constituted

  14. [14] The detailed background to the collective sale of Horizon Towers is set out in full in Ng Eng Ghee (CA) at [6] to [74]. I will endeavour to summarise it here to the extent that it is relevant for my decision on the matters before me.

  15. [15] In October 2005, the first defendant was the chairman of the Management Committee of Horizon Towers. It was at that time that the idea of a collective sale of Horizon Towers was first mooted, though not by either defendant. The first defendant was attracted by the idea and was involved in the informal preparatory work for a potential collective sale. Starting in February 2006, First Tree Properties Ltd (“First Tree”), a property broker, made a series of presentations to increasingly-large groups of subsidiary proprietors on the feasibility of a potential collective sale. First Tree ultimately proposed a reserve price of $500m. At that price, each subsidiary proprietor stood to gain 80% more for his flat by a collective sale than by an individual sale. This margin is known as the collective sale premium.

  16. [16] On 21 March 2006, the second defendant took an option to purchase an additional flat in Horizon Towers at $1.2m. He exercised the option on 3 April 2006. He and his wife completed the purchase and became co-owners of the flat on 26 June 2006. Separately, on 24 March 2006, the first defendant took an option to purchase an additional flat in Horizon Towers at $1.35m. He exercised the option on 7 April 2006. He and his daughter completed the purchase and became co-owners of the flat on 16 June 2006. Each defendant financed his purchase with bank borrowings.

  17. [17] On 23 April 2006, the subsidiary proprietors of Horizon Towers held an Extraordinary General Meeting (“EGM”) to launch the collective sale process. The first defendant chaired the EGM. The second defendant was present at the EGM and played an active role in it. Neither defendant disclosed to all the subsidiary proprietors that he had purchased an additional flat in Horizon Towers. First Tree and Drew & Napier LLC (“D&N”) made presentations to the subsidiary proprietors. Following the EGM, nine subsidiary proprietors formed a sale committee (“the First SC”) to carry out a collective sale of Horizon Towers. The first defendant and the second defendant were among these nine. The first defendant was elected the Chairman of the First SC. On 26 April 2006, the First SC formally appointed First Tree as the sole marketing agent for the collective sale. The First SC also formally appointed D&N as its legal adviser for the collective sale.

  18. [18] In due course, a Collective Sale Agreement (“CSA”) dated 11 May 2006 was presented to the subsidiary proprietors for accession. On 6 July 2006, the press reported that if the collective sale went ahead, the $500m demanded for Horizon Towers would smash the existing collective sale price records. By 20 July 2006, subsidiary proprietors representing 80.65% of the share value of Horizon Towers had signed the CSA. The defendants still did not disclose to all the subsidiary proprietors that each of them had purchased an additional flat in Horizon Towers, whether in the CSA itself, when the CSA was circulated or while it remained open for accession.

  19. [19] The plaintiffs did not sign the CSA.

  20. [20] First Tree launched the public tender for Horizon Towers in July 2006. The tender closed in August 2006 with no bids. First Tree then solicited buyers by private treaty. In December 2006, First Tree learned from Hotel Properties Limited (“HPL”) that it was interested in purchasing Horizon Towers. On 3 January 2007, Vineyard Holdings (H.K.) Ltd (“Vineyard”) offered $510m for Horizon Towers. This offer was circulated to all members of the First SC. On 4 January 2007, at HPL’s request, a meeting took place between a representative of HPL and some of the members of the First SC including the first defendant. HPL indicated orally an interest in purchasing Horizon Towers at a price of $500m. HPL wanted to place a deposit of $5m with First SC and then take up to 30 days to consider whether to proceed with the purchase. HPL proposed that if it decided not to purchase Horizon Towers within those 30 days, the subsidiary proprietors would have to return the $5m but could keep the interest earned on it. The First SC rejected HPL’s proposal but invited HPL to come back with improved terms.

  21. [21] On the same day, one of the members of the First SC, Mr Henry Lim, informed Vineyard of HPL’s interest and suggested that Vineyard make a deposit of $50m as proof of its intent. Mr Henry Lim testified in later proceedings (see [50] below) that he received no response from Vineyard despite making efforts to contact Vineyard up until 16 January 2007.

  22. [22] On 6 January 2007, the First SC convened a meeting to consider the offers they had by then received and to discuss whether the reserve price should be raised above $500m due to the rising property market. A member of the First SC, Mr Bharat Mandloi, felt very strongly that the subsidiary proprietors should be consulted before accepting any offer. He gave two reasons. Both reasons were related to the rapidly-rising property market at the end of 2006 and into 2007. His two reasons were that a collective sale in January 2007 at a reserve price which had been fixed many months earlier meant that: (a) the collective sale premium had almost entirely disappeared as at January 2007; and (b) each subsidiary proprietor would no longer receive sufficient funds to buy an equivalent property as a replacement and leave surplus cash. The First SC decided not to seek a fresh mandate from the consenting subsidiary proprietors. The first defendant said that if they did that, they were unlikely to get that mandate and the collective sale would come to an end. The remaining eight members of the First SC, including both defendants, therefore voted in favour of negotiating with HPL with a view to a sale to HPL. Although Mr Mandloi was recorded as having abstained, in fact he abruptly walked out of the meeting.

  23. [23] On 8 January 2007, First Tree invited HPL to make a formal offer. On 12 January 2007, the second defendant emailed the first defendant and the other members of the First SC. He said that although he had voted with the majority at the meeting on 6 January 2007, he did so to maintain unanimity and in light of the legal advice received. He said, further, that two points were continuing to cause him concern: (a) the terms of HPL’s offer meant it could back out with little loss; and (b) the reserve price of $500m was too low in light of the changed market conditions. He therefore suggested that the First SC should protect itself by doing three things: (a) getting legal advice in writing that the First SC was entitled to accept HPL’s offer as it met the reserve price and that the First SC would be exposed to claims if it did not accept HPL’s offer and no better offer came along; (b) getting First Tree’s opinion that HPL’s offer was the best so far and the First SC should accept it; and (c) writing to all parties who had expressed earlier interest to note that none of them had followed through with a firm bid.

  24. [24] On 14 January 2007, as a result of an exchange of emails with D&N, the second defendant emailed D&N to say that he was changing his “yes” vote at the meeting on 6 January 2007 to an abstention. No other member of the First SC changed his vote.

  25. [25] On 15 January 2007, an HPL group company made an offer to purchase Horizon Towers at $500m. On 22 January 2007, the First SC issued an option to HPL’s special purpose vehicle, Horizon Partners Pte Ltd (“HPPL”) to purchase Horizon Towers en bloc (“the Option”) at a price of $500m. HPPL exercised the Option on 12 February 2007. On that date, therefore, the Option became a binding agreement (“the S&P”) for the sale of Horizon Towers to – and for the purchase of Horizon Towers by – HPPL, subject to its terms. One of the terms of the S&P was an express condition precedent that the STB approve the collective sale under s 84A of the Land Titles (Strata) Act (Cap 158, 1999 Rev Ed) (“the Act”).

  26. [26] The S&P imposed an obligation on the consenting subsidiary proprietors to apply for the STB’s approval expeditiously. But it imposed no obligation on the consenting subsidiary proprietors to obtain the STB’s consent, presumably because that was a matter not within their control, or at least not entirely within their control. Instead, the S&P provided simply that if the condition precedent was not fulfilled within six months from the date of the S&P – that is, on or before 11 August 2007 – the consenting subsidiary proprietors had the right, but not the obligation, to extend the deadline for up to another four months. The result was that if the consenting subsidiary proprietors applied to the STB expeditiously but the STB did not grant its approval, the S&P would lapse with no liability in damages on the part of the consenting subsidiary proprietors.

  27. [27] A general meeting of the subsidiary proprietors of Horizon Towers was held on 25 March 2007 to consider the collective sale. Lawyers from D&N attended the meeting to explain the terms and conditions of the CSA and the Option and to explain the collective sale procedure. As at the date of this meeting, subsidiary proprietors representing 82.98% of the total share value in Horizon Towers had signed the CSA. But many consenting subsidiary proprietors were unhappy about the S&P. Their concerns included the First SC’s failure to: (1) keep the consenting subsidiary proprietors informed; (2) to obtain a proper valuation before granting the Option and (3) to seek a fresh mandate to sell at the original reserve price despite the changed market conditions.

  28. [28] At the time of the S&P in January 2007 the $500m which HPPL agreed to pay for Horizon Towers was the highest price ever paid in a collective sale in Singapore. But by March 2007, the steadily-rising property market meant that the consenting subsidiary proprietors would be no better off selling their flats through a collective sale than they would if they were to sell them individually. As time went on after March 2007, the price agreed with HPPL became more and more unfavourable to the consenting subsidiary proprietors. The property market continued its surge and the record set by Horizon Towers in January 2007 was broken just six months later by the collective sale of a neighbouring and comparable property.

  29. [29] The consenting subsidiary proprietors were stuck with a bad bargain. What was worse, that bargain had been made for them by someone else: the First SC. The S&P bound them to sell their flats to HPPL at a price which was below what they could otherwise achieve. But if they refused to sell their flats to HPPL, they would find themselves liable to pay substantial damages. The only way for them to escape the bad bargain without any liability was to ensure that they applied expeditiously for the collective sale order and to hope that the STB did not order the collective sale, or at least, not on or before the deadline of 11 August 2007.

  30. Consenting subsidiary proprietors file application to STB

  31. [30] It was against this background that three members of the First SC, acting on behalf of all consenting subsidiary proprietors, filed an application to the STB on 13 April 2007 by way of STB 43 of 2007 (“STB43”) to order the collective sale of Horizon Towers (“the Collective Sale Application”). The first defendant was one of the applicants. The STB’s order, if granted on or before 11 August 2007, would compel the objecting subsidiary proprietors – including the plaintiffs – to sell their flats against their will. But it would also force the consenting subsidiary proprietors to sell their flats at a price which no longer met their expectations.

  32. [31] Tan Kok Quan Partnership (“TKQP”) represented all five plaintiffs in opposing the Collective Sale Application. Harry Elias Partnership (“HEP”) represented another group of subsidiary proprietors who were also opposed to the Collective Sale Application, but on different grounds.

  33. [32] The five plaintiffs filed substantial written objections in the Collective Sale Application on 4 May 2007. To succeed in opposing the Collective Sale Application, they had to establish that the transaction was not one in good faith within the meaning of section 84A of the Act. They alleged that this test was satisfied because:

  34. (a) The price for the collective sale was too low and did not represent the true market value of Horizon Towers;

  35. (b) The First SC had inadequate justification or analysis to accept First Tree’s reserve price of $500m at the time it was set or at the time the First SC granted the option to HPPL, particularly in light of the rising property market;

  36. (c) The First SC failed to obtain a proper valuation before granting an option to purchase to HPPL;

  37. (d) The First SC should either have conducted a second tender exercise to take account of improved market sentiment since the first tender exercise failed to attract any bids or should have sought a fresh mandate from the subsidiary proprietors given First Tree’s inability to secure a purchaser above the reserve price;

  38. (e) The First SC granted an option to HPPL to buy Horizon Towers at $500m even though the basis on which the consenting subsidiary proprietors had given their mandate at that price – the opportunity to realise a collective sale premium sufficient to allow purchase of an equivalent replacement residence and leave a surplus – no longer held true in January 2007.

  39. (f) The First SC failed to consult the subsidiary proprietors before granting an option at a reserve price which the First SC knew or ought to have known was too low.

  40. (g) The First SC rushed the collective sale and should instead have consulted subsidiary proprietors on the method of sale and the reserve price.

  41. (h) Certain members of the First SC or their families had purchased additional flats in Horizon Towers and did not disclose this fact to all subsidiary proprietors. This put those members of the First SC in a position of potential conflict of interest as their interest in obtaining the highest price for the collective sale might have been outweighed by their interest in achieving a quick sale.

  42. (i) The First SC appointed First Tree as the exclusive property broker for the collective sale of Horizon Towers, apparently without properly evaluating its credentials. The First SC then relied exclusively on First Tree for information on the value of Horizon Towers and the state of the market. First Tree was in a position of apparent conflict of interest when it recommended that the First SC sell to HPPL at $500m because this came just a few days before First Tree’s exclusivity came to an end.

  43. [33] I have set out at length these points which the plaintiffs made to the STB on 4 May 2007 – at the very outset of the protracted collective sale proceedings – because these were the very points which ultimately won the day in the Court of Appeal almost 2 years later in April 2009 (see [75] below). I draw specific attention to the plaintiffs’ point at [32(h)] above. I do so for two reasons. First, this is the only one of the plaintiffs’ nine points which is clearly associated with a fiduciary duty: in this case, a fiduciary’s core duty of loyalty. All the remaining points are framed in the language of a breach of a duty to exercise care and skill, which could equally be a tortious duty at common law or a fiduciary duty in equity. Second, the plaintiffs framed this point in the language of a potential conflict, not an actual conflict. This, it will be seen, was also the basis on which the Court of Appeal in Ng Eng Ghee (CA) approached the issue.

  44. First SC resigns, save for the second defendant

  45. [34] By June 2007, the consenting subsidiary proprietors’ unhappiness over the S&P was mounting. Anonymous letters circulated at Horizon Towers called for the consenting subsidiary proprietors to withdraw from the CSA and to remove the members of the First SC from office. As a result, the first defendant resigned from the First SC and Ms Doreen Siow (“Ms Siow”) became a sale committee member. Although this was in law simply a change in the persons constituting the First SC rather than the dissolution of the First SC and the reconstitution of a new SC, I will call this the “Second SC”. The second defendant and Mr Henry Lim did not resign and continued to serve on the Second SC.

  46. STB sets a compressed timeline

  47. [35] In light of the deadline under the S&P to satisfy the condition precedent (see [25] above), the STB held a procedural hearing on 4 July 2007 to decide whether to set a compressed procedural timeline to ensure that the Collective Sale Application could be heard and determined on or before 11 August 2007. The plaintiffs, not surprisingly, objected to a compressed timeline. Their stated ground was that it did not allow them enough time to prepare properly their case in opposition to the Collective Sale Application. The consenting subsidiary proprietors, not surprisingly (see [29] above), took a neutral position. They left it to the STB to decide whether to fix the hearing before or after 12 August 2007 and declined to commit themselves as to whether they would or would not agree to extend the deadline under the S&P if the hearing took place after on or after 12 August 2007. HPPL was the only party whose interests would be prejudiced without a compressed timeline. Not surprisingly, it was the only party who submitted positively that the timeline should be compressed. The STB agreed. It gave directions for an expedited hearing to ensure that the Collective Sale Application could be heard and determined on or before 11 August 2007.

  48. Plaintiffs apply for judicial review

  49. [36] All five plaintiffs applied on 12 July 2007 by way of Originating Summons No 1057 of 2007 (“OS1057”) for leave to seek judicial review of the STB’s decision to expedite the hearing of the Collective Sale Application. TKQP represented the plaintiffs in their application. If their application had been allowed, the timing was such that it would have been practically impossible to satisfy the condition precedent by obtaining the STB’s consent on or before 11 August 2007. That result would benefit all the subsidiary proprietors – both objecting and consenting – by bringing the S&P to an end without any liability.

  50. STB dismisses the Collective Sale Application

  51. Condition precedent is not satisfied and the S&P lapses

  52. [41] On 11 August 2007, the six-month deadline for the consenting subsidiary proprietors to secure the STB’s approval of the collective sale expired. No approval had been obtained. As was their right, the consenting subsidiary proprietors chose not to extend the deadline for obtaining the STB’s approval.

  53. [42] The Second SC took the view that this meant that the collective sale had come to an end in failure. It disbanded. Everyone at Horizon Towers was happy. The plaintiffs were happy: their fight to save their homes had succeeded. The consenting subsidiary proprietors were happy: they had been relieved of any obligation to sell their flats to HPPL at a price which no longer met their expectations without breaching their contract with HPPL.

  54. HPL sues the consenting subsidiary proprietors for $1bn

  55. [43] HPPL, of course, was unhappy: they had lost an opportunity to buy Horizon Towers at $500m. That was a price which was becoming a better and better price – from their perspective as buyers – as the property market continued its surge upwards during 2007.

  56. [44] On 23 August 2007, HPPL commenced legal proceedings by way of Originating Summons No 1238 of 2007 (“OS1238”). In it, HPPL alleged that the consenting subsidiary proprietors had breached the S&P by failing to do everything in their power to obtain a collective sale order from the STB. HPPL claimed $1bn against the consenting subsidiary proprietors collectively as damages for this breach.

  57. High Court sets aside the STB’s decision

  58. [45] HPPL’s action in OS1238 had its desired effect. On 30 August 2007, the consenting subsidiary proprietors appealed to the High Court by way of Originating Summons No 1269 of 2007 (“OS1269”) seeking to reverse the entirety of the 1st STB decision. They filed this appeal without exercising their right to extend the 11 August 2007 deadline under the S&P. Presumably, therefore, the consenting subsidiary proprietors continued to take the position that the S&P had lapsed while reserving to themselves the right to exercise their option at some later date to extend the deadline for fulfilment of the condition precedent.

  59. [47] On or about 7 September 2007, a new Sale Committee (“Third SC”) was constituted with one Mr Lim Seng Hoo as its chairman. The second defendant did not stay on to serve as a member of the Third SC. The Third SC granted HPPL the extension of the S&P that it wanted.

  60. STB allows the Collective Sale Application

  61. [50] The Collective Sale Application therefore returned to the STB for a second tranche of hearings in STB43. The hearing in this second tranche took place over 12 days between 16 October and 15 November 2007. The Third SC offered three members of the First SC as witnesses during this hearing. The defendants were not amongst these three witnesses. The defendants did not take any steps to offer themselves for cross-examination. The plaintiffs did not seek to compel either defendant to testify by subpoena.

  62. [51] On 25 October 2007, the group of objecting subsidiary proprietors represented by HEP (that is, the group not including the plaintiffs (see [31] above) applied to the STB for a subpoena to compel the first defendant to testify. Nobody attempted to subpoena the second defendant. The STB rejected the application on the basis that the applicants had failed to provide sufficient particulars of the first defendant’s proposed testimony. This was a significant procedural decision. The Court of Appeal later found in Ng Eng Ghee (CA) (at [56]) that by this decision, the STB had deprived itself of key information.

  63. Plaintiffs appeal to the High Court and lose

  64. [54] On 4 January 2008, all five plaintiffs (together with another objecting subsidiary proprietor) applied to the High Court to set aside Ng Eng Ghee (STB). They did so by way of Originating Summons No 11 of 2008 (“OS11”). Also on 4 January 2008, the group of objecting subsidiary proprietors represented by HEP filed a similar but separate appeal. Their appeal was by way of Originating Summons No 10 of 2008 (“OS10”). A day earlier, a third group of three objecting subsidiary proprietors led by one Mr Lo Pui Sang filed their own application to set aside Ng Eng Ghee (STB). Their appeal was by way of Originating Summons No 5 of 2008 (“OS5”). However, Mr Lo and one of his two co-plaintiffs in OS5 discontinued their application before it could be determined, leaving the third co-plaintiff to go it alone.

  65. [55] Choo J heard OS5, OS10 and OS11 on 19 March 2008, 20 March 2008 and 30 April 2008. Although the plaintiffs were represented at the outset of OS11, they soon discharged their solicitors and acted thereafter in person. Mr Darmawan appeared in person and on behalf of Ms Seteono and Ms Sadeli. Ms Tan appeared in person and on behalf of Mr Then. Both Mr Darmawan and Ms Tan put forward substantial principal and reply written and oral submissions in OS11. It is no false compliment to say that, despite the odds being stacked against them, they presented their case ably to Choo J both on the facts and on the law.

  66. Plaintiffs appeal to the Court of Appeal and win

  67. [58] On 15 August 2008, Mr Darmawan, his wife and Ms Sadeli appealed to the Court of Appeal against Choo J’s decision in Ng Eng Ghee (HC). They did so by way of Civil Appeal No 120 of 2008 (“CA120”). They filed their notice of appeal through HEP but acted in person thereafter through Mr Darmawan for virtually all of CA120. Mr Then and Ms Tan did not appeal against Choo J’s decision. On the same day, 15 August 2008, the objecting subsidiary proprietors represented by HEP also filed an appeal to the Court of Appeal by way of Civil Appeal No 119 of 2008 (“CA119”).

  68. [59] The Court of Appeal heard CA120 and CA119 together on 3 February 2009. Mr Darmawan argued the appeal as a litigant in person and also on behalf of his wife and Ms Sadeli. Again, despite the odds being stacked against him, he presented his case ably on the facts and the law.

  69. [60] On 2 April 2009, the Court of Appeal delivered its judgment in Ng Eng Ghee (CA). It allowed the appeals. The Court of Appeal accepted virtually all of Mr Darmawan’s arguments (see [32] above). The Court of Appeal’s decision saved the plaintiffs’ homes from compulsory sale.

  70. Court of Appeal gives the plaintiffs costs

  71. The issues raised in these proceedings

  72. Plaintiffs’ case

  73. [63] The plaintiffs collectively rely on the holdings of law and findings of fact in Ng Eng Ghee (CA) to claim this sum from the defendants as equitable compensation for breach of fiduciary duties.

  74. First defendant’s case

  75. [64] The first defendant says that he is not liable to pay equitable compensation to the plaintiffs for the following reasons:

  76. (a) As a member of the First SC, he did not owe any fiduciary duties to the subsidiary proprietors of Horizon Towers, including the plaintiffs.

  77. (b) Even if he did, he did not breach those fiduciary duties in the collective sale of Horizon Towers because:

  78. (i) His purchase of an additional flat in Horizon Towers was not a conflict of interest which could be a breach of fiduciary duties;

  79. (ii) Even if it was, the first defendant made an effort to disclose the potential conflict to D&N and was not advised that he needed to disclose this purchase to the other subsidiary proprietors;

  80. (c) The finding in Ng Eng Ghee (CA) that the first defendant breached his fiduciary duties was arrived at in breach of natural justice because the first defendant did not have an opportunity to be heard before those findings were made;

  81. (d) In any event, the plaintiffs are precluded from bringing these claims as their entitlement to costs has been disposed of as a by-product of the collective sale proceedings and, in particular, in Ng Eng Ghee (Costs). The first defendant therefore asserts that the plaintiffs’ claims in the actions before me are barred by res judicata or as an abuse of process.

  82. Second defendant’s case

  83. [65] The second defendant’s defence focuses on the lack of causation and failure to prove loss. He contends that:

  84. (a) The second defendant did not breach his fiduciary duties. He disclosed his purchase of an additional unit to D&N and was not advised that he needed to disclose this to all subsidiary proprietors. He also changed his vote to one of abstention when the First SC voted on the sale to HPPL;

  85. (b) The plaintiffs’ loss was not caused by the second defendant’s alleged breaches of fiduciary duties. The responsibility for the final sale to HPPL lay in the hands of the Third SC. It was the Third SC which granted an extension of the S&P to HPPL when there was no obligation to do so. After the 1st STB decision, the 11 August 2007 deadline passed without extension and it was agreed that the collective sale was at an end. The Third SC succumbed to pressure from HPPL and revived the collective sale. The second defendant contends that this broke the chain of causation between the second defendant’s alleged breach and the plaintiffs’ loss.

  86. (c) In the alternative, the plaintiffs’ losses are too remote to be recovered.

  87. (d) In the alternative, the quantum of loss and damage claimed is manifestly excessive or unreasonable or includes items which were unreasonably incurred.

  88. (e) In any event, the second defendant argues that the plaintiffs are barred by the doctrine of res judicata from making any claims for costs over and above those awarded in the collective sale proceedings and, in particular, in Ng Eng Ghee (Costs).

  89. Four issues to be decided

  90. [66] I therefore have to determine the following four issues:

  91. (a) Did the defendants owe the plaintiffs fiduciary duties?

  92. (b) If so, did the defendants’ breach their fiduciary duties to the plaintiffs?

  93. (c) If so, did the defendants’ breach of their fiduciary duties cause loss to the plaintiffs?

  94. (d) If so, can the plaintiffs recover equitable compensation for their unrecovered legal costs?

  95. First issue: did the defendants owe the plaintiffs fiduciary duties?

  96. Interpretation of section 84A before Ng Eng Ghee (CA)

  97. [67] The plaintiffs based their objection to the Collective Sale Application on s 84A(9)(a)(i)(A) of the Act. At the time the Collective Sale Application was filed, that material parts of that provision stood as follows:

  98. [68] Until Ng Eng Ghee (CA), s 84A(9)(a)(i)(A) of the Act was understood and applied as follows:

  99. (a) The legislature’s underlying intention in enacting these provisions “was to facilitate – and not to place unnecessary obstacles in the way of – collective sales”: see Ng Swee Lang and another v Sassoon Samuel Bernard and others [2008] 2 SLR(R) 597 at [8]; Tsai Jean v Har Mee Lee and others [2009] 2 SLR(R) 1 (“Tsai Jean”) at [21].

  100. (b) There was a core meaning to the expression “good faith” as used in this section which involves “honesty or the absence of bad faith”: see Dynamic Investments Pte Ltd v Lee Chee Kian Silas and others [2008] 1 SLR(R) 729 at [18]. Therefore an objecting subsidiary proprietor could not resist a collective sale application unless he could show outright dishonesty or the presence of bad faith in the transaction, and not merely egregious recklessness which approached but did not constitute intent. “To construe good faith in any other manner would tend to undermine the legislative intent as it would lower the threshold for objectors to cross”: Tsai Jean at [21]. This was also how the STB understood the concept of good faith in this provision in Ng Eng Ghee (STB). It found that “good faith” within the meaning of s 84A(9)(a)(i) of the LTSA simply meant “honesty, fairness and absence of unconscionable and perhaps even reckless behaviour” (at [60]).

  101. (c) The STB and the High Court specifically rejected any suggestion that a sale committee owed to the subsidiary proprietors the same duty to act in good faith and to take reasonable care to obtain the true market value of the property which a mortgagee owes a mortgagor when exercising its power of sale: see Tsai Jean at [22]; Ng Eng Ghee (STB) at [58]; cf Thevasan Gnanasundram & Others v Khaw Seng Ghee & Another [2000] SGSTB 4. That duty is, of course, a less stringent duty than the duty which a trustee owes a beneficiary when exercising a power of sale: see Beckkett Pte Ltd v Deutsche Bank AG and another and another appeal [2009] 3 SLR(R) 452 at [27] and the cases cited there. The understanding of s 84A typified in Tsai Jean, therefore, impliedly excluded any scope for a sale committee to be bound by the more onerous duty of a trustee exercising a power of sale: cf. Ng Eng Ghee (CA) at [121].

  102. (d) The High Court accepted that s 84A(9)(a)(i) of the Act is not so narrow as to require the court to focus only on the sale price in applying the section. Section 84A(9)(a)(i) was therefore seen to permit the court to consider also an independent valuation of the property and, possibly, how the sale price had been arrived at: Tsai Jean at [24]. But the general approach of the High Court was that so long as the sale price was within an acceptable range from the market value of the development, the STB ought to approve the collective sale: Tsai Jean at [31]. Further, the market value was to be determined at the time the development was sold: a sale did not lack good faith for the sole reason that it became apparent later – for example, while the collective sale application was pending but before it was finally determined – that the sale committee could have sold the development at a higher price if they had waited longer: Chang Mei Wah Selena and others v Wiener Robert Lorenz and others and other matters [2008] 4 SLR(R) 385 at [33]; on appeal on other points sub nom Kok Chong Weng and others v Wiener Robert Lorenz and others (Ankerite Pte Ltd, intervener) [2009] 2 SLR(R) 709.

  103. (e) The STB’s role was to determine whether the proposed sale was a bona fide and arm’s length transaction by considering the minority’s objections in light of the interests of all the subsidiary proprietors and in light of the scheme and intent of the collective sale provisions of the Act, paying particular attention to: the sale price; the method of distributing the sale proceeds, ensuring that the minority owners are treated no less favourably than the majority; and the relationship of the purchaser to the owners to ensure that there is no collusion: see Ng Eng Ghee (STB) at [49].

  104. [69] The old thinking outlined above kept the concept of a “transaction... not in good faith” within strict bounds so as to avoid (i) too easily defeating the statutory majority’s will to sell; (ii) too easily defeating the purchaser’s interest in his bargain with the statutory majority; and (iii) too easily defeating the purpose of the Act. The Act envisages a collective sale process which results in a collective sale price and ultimately, with the approval of the STB, in an actual collective sale to the purchaser. An objecting subsidiary proprietor is an unwilling seller. He therefore has a legitimate interest in both the collective sale process (which he has refused to participate in) and the collective sale price (at which his property will be monetised against his will). A consenting subsidiary proprietor, by contrast, is a willing seller and must be taken to be motivated by price. It was therefore thought that the law would go too far to vindicate an objecting subsidiary proprietor’s interest in the collective sale process if the court were to strike down a collective sale on grounds of defective process alone, when the collective sale price was within an acceptable range from the market value of the development, assessed at the time of sale and without the benefit of hindsight. To reject the collective sale in these circumstances, it was thought, would defeat the will of the consenting subsidiary proprietors even though the price which resulted from the collective sale process provided, within an acceptable margin, a fair monetary exchange for the property rights of both the objecting and the consenting subsidiary proprietors. Cited in support of this approach was the scenario of the property market falling after the collective sale price was agreed: should the consenting subsidiary proprietors be deprived of their bargained-for price simply because of defects in the collective sale process in circumstances where the objecting subsidiary proprietors would receive fair compensation for their property rights? If the defective process had caused the objecting subsidiary proprietors any loss, the thinking was, they retained such recourse as the substantive law permitted them against those responsible for the defective process and could pursue that recourse without depriving the consenting subsidiary proprietors of their bargain (see Ng Eng Ghee (HC) at [17]).

  105. [70] So the key finding by the STB in the Collective Sale Application was that the sale price agreed by the First SC for Horizon Towers was within an acceptable range from the market value of Horizon Towers in January 2007, assessed at the time of hearing without the benefit of hindsight: see Ng Eng Ghee (STB) at [87], [103]. This finding was crucial on the old approach. Choo J upheld that approach and that finding on appeal to the High Court: Ng Eng Ghee (HC) at [16].

  106. Interpretation of section 84A in Ng Eng Ghee (CA)

  107. [71] The Court of Appeal’s closely-reasoned textual, historical and policy-based analysis of s 84A of the Act in Ng Eng Ghee (CA) therefore came as an epiphany. It revealed that the STB, the High Court and the profession had misunderstood the scope and operation of that section. Although the Court of Appeal accepted that the legislative intent of s 84A was to facilitate collective sales, it also made emphatically clear that the legislation did not decree that price is everything: process is equally important, particularly for objecting subsidiary proprietors and not only in the narrow sense previously understood. It is significant that the Court of Appeal had evidence of the market value of Horizon Towers at the time the First SC granted the option to purchase to HPPL, examined that evidence (Ng Eng Ghee (CA) at [44]) but expressly declined to make a finding whether the sale price agreed by the First SC with HPPL was or was not within an acceptable range of the market value in January 2007. Instead, the Court of Appeal expressly rested its decision on its finding that the defects in the process had depressed the price, not on any finding that that depressed price was beyond an acceptable margin below the market value at the time of sale.

  108. [72] The Court of Appeal’s reasoning in Ng Eng Ghee (CA) proceeded as follows. A sale committee in a collective sale has the power to affect the legal relations of all the subsidiary proprietors with third parties. It is therefore an agent for the subsidiary proprietors. This gives rise to a fiduciary relationship between a sale committee and the subsidiary proprietors (at [108]). At the very outset of the collective sale process, before the statutory majority is achieved, there is no clear separation between those who consent to the collective sale and those who object. The sale committee is therefore an agent for all the subsidiary proprietors (at [104] and [108]). The content of its fiduciary duty then is simply to obtain the requisite consent for the collective sale, to appoint competent professional advisers and to avoid any potential conflict of interest (at [107]). Once the statutory threshold is reached and there is a clear separation between those who consent and those who object, a sale committee’s role becomes that of an impartial agent acting for both groups: an agent obliged to hold an even hand between them (at [107]). These fiduciary duties prohibit a sale committee from acting against the interests of the subsidiary proprietors (at [110]). The content of the sale committee’s fiduciary duties to the consenting subsidiary proprietors is derived from the substantive law supplemented, to the extent that the law permits derogation, by the contractual provisions of the collective sale agreement (at [116]). The objectors are not of course parties to or bound by the collective sale agreement (at [117]). So the content of the sale committee’s duties to the objecting subsidiary proprietors arises under the substantive law alone. Because a sale committee always represents the interests of all the subsidiary proprietors, its fiduciary duties are akin to the fiduciary duties of a trustee exercising a power of sale (at [122]). It must exercise its power of sale in the interests of all the subsidiary proprietors as a body (at [123]). A sale committee must therefore act as a prudent owner to obtain the best price reasonably obtainable for the entire development (at [133]). As such, there is no point of time in a collective sale where a sale committee may act solely in the interests of any group of subsidiary proprietors, whether they are consenting or objecting to the collective sale (at [107]).

  109. [73] The duty of good faith that a sale committee owes to the subsidiary proprietors is a broad one. The Court of Appeal held at [131] – [133]:

  110. [74] The fiduciary duties which a sale committee owes the subsidiary proprietors as a body include (at [124] and [134]):

  111. (a) A duty of loyalty and fidelity;

  112. (b) A duty of even-handedness;

  113. (c) A duty to avoid any conflict of interest;

  114. (d) A duty to make full disclosure of relevant information; and

  115. (e) A duty to act with conscientiousness.

  116. [75] In the specific factual context of the collective sale of Horizon Towers, the Court of Appeal found that the First SC owed the following specific fiduciary duties to all of the subsidiary proprietors:

  117. (a) A duty to increase the prospects of obtaining the best price by exercising due diligence in appointing a competent property agent to market the property and negotiate with potential purchasers;

  118. (b) A duty to follow up on all expressions of interest and offers that result from its marketing efforts;

  119. (c) A duty to try and create competition between interested purchasers where reasonable to obtain the best sale price;

  120. (d) A duty to inform itself of matters relevant to the decision to sell the property and take advice from appropriate experts on when and at what price to sell the property;

  121. (e) A duty to obtain an independent valuation prior to settling on the final sale price, particularly where the market is in a state of flux;

  122. (f) A duty to wait for the most propitious timing for the sale in order to obtain a best price. A sale committee should not settle for the reserve price or the market value of the property if there is a reasonable basis to believe (ie with the benefit of independent expert advice) that a better price may be obtained within a reasonable time frame in the future;

  123. (g) A duty to disclose to all subsidiary proprietors any personal interest on the part of its members that might conflict with the duty to obtain the best sale price, either prior to the appointment of the member having the interest (in the case of pre-appointment interests) or well before the sale committee makes a decision to sell the property (in the case of post-appointment interests); and

  124. (h) A duty to seek fresh instructions or guidance from the consenting subsidiary proprietors from whom it draws its mandate whenever there is reasonable doubt as to the proper course to adopt.

  125. Court of Appeal’s holdings of law are binding

  126. [76] I am bound by this part of the decision of the Court of Appeal in Ng Eng Ghee (CA). Both defendants accept that to be the case, while reserving the right to argue to the contrary if this matter goes on appeal. I am therefore constrained to hold that the defendants as members of the First SC stood in the position of an agent, and therefore a fiduciary, to the subsidiary proprietors (including the plaintiffs) and owed them all of the duties laid out at [75] above.

  127. [77] I cannot, however, ignore the fact that it was only in Ng Eng Ghee (CA) that it became clear that a sale committee is an agent of all the subsidiary proprietors from the time of its appointment. The fiduciary relationship between a sale committee and the subsidiary proprietors revealed in Ng Eng Ghee (CA) is not the traditional principal/agent paradigm and is a novel one. This observation will acquire significance in my discussion of equitable compensation.

  128. Second issue: did the defendants’ breach their fiduciary duties to the plaintiffs?

  129. Court of Appeals found multiple breaches by the First SC

  130. [78] On the facts of Ng Eng Ghee (CA), the Court of Appeal held that the First SC breached its duties to the subsidiary proprietors in the following specific ways (at [210(b)]):

  131. (a) failing to act with due diligence and transparency in appointing a property agent;

  132. (b) failing proactively to follow up on the Vineyard offer and other expressions of interest;

  133. (c) failing to use the Vineyard offer as leverage in negotiations with HPL;

  134. (d) failing to obtain advice from an independent property expert before the sale;

  135. (e) acting with undue haste in selling to HPL in a surging property market when there was no legal or moral obligation to do so;

  136. (f) deciding to sell to HPL even though the defendants were in undisclosed potential conflict of interest because of their undisclosed purchase of an additional unit each;

  137. (g) failing to consult (or even notify) the consenting subsidiary proprietors to seek further instructions despite the surge in the market after the consenting subsidiary proprietors had given their mandate to sell at the reserve price.

  138. [79] The plaintiffs argue that these findings of breach of duty bind the defendants, as they were members of the First SC. The defendants, on the other hand, argue that these findings do not bind them because the Court of Appeal made these findings in breach of natural justice: the defendants had no opportunity to be heard in CA120 or in the proceedings giving rise to it. The defendants argue therefore that the plaintiffs must prove breach in this consolidated action as an essential element of their claim. To that end, the defendants led substantial evidence in this action to satisfy me that they did not breach their fiduciary duties. This evidence was not available in CA120 or in STB43 which gave rise to CA120. The defendants’ case is that if this evidence had been available, the Court of Appeal might well have made different findings on breach than it did in Ng Eng Ghee (CA). Therefore, argue the defendants, I can and should make my own findings whether they had breached their duties. In response, the plaintiffs say that the defendants had every opportunity to come clean and give evidence in STB43 chose not to do so. Therefore, the plaintiffs say, the defendants cannot try now belatedly to rectify the consequences of their deliberate choice.

  139. [80] I have no hesitation in rejecting the defendants’ allegation that the Court of Appeal denied them natural justice in CA120. I do so for the following reasons, which I first summarise and then expand upon:

  140. (a) The Court of Appeal was well aware of the importance of direct evidence from the two defendants. It would not, therefore, have made findings against the two defendants which were essential for its decision in the absence of such evidence.

  141. (b) The only finding that the Court of Appeal made against the defendants – and the only finding that was necessary for its decision – is that the defendants were in potential conflict of interest. That finding was perfectly open to the Court of Appeal on the evidence before it.

  142. (c) As for the other breaches of fiduciary duties, the Court of Appeal did not attribute those breaches to specific members of the First SC.

  143. Court of Appeal knew the importance of hearing from the defendants

  144. [81] The Court of Appeal said expressly that the evidence of the first defendant was key information in the collective sale proceedings when it held that the STB had erred in shutting it out (at [56]):

  145. [82] Having noted the STB’s error in arriving at its decision without this key information, the Court of Appeal is hardly likely to have fallen itself into the error of arriving at its decision without this key evidence. It did not. As will be seen, the Court of Appeal had sufficient material before it to make all the findings of fact against the First SC which the Court of Appeal considered were necessary for its decision.

  146. [83] The Court of Appeal did not make its findings of breach in vacuo. It made its findings after the lower tribunals had heard from the First SC. Other members of the First SC were cross-examined and their evidence was in the record. The Court of Appeal therefore had access to ample oral and documentary evidence which allowed it to make each of the findings of breach by the First SC set out in [78] above, notwithstanding that the defendants elected to remain silent. The defendants cannot even plausibly argue that the Court of Appeal breached the rules of natural justice in arriving at these findings, with one possible exception.

  147. Court of Appeal was concerned with potential conflict

  148. [84] That one possible exception is the Court of Appeal’s finding in [78(f)] above. An argument that the Court of Appeal denied the defendants natural justice in respect of this finding would be plausible if the Court of Appeal had found that the defendants were in actual conflict of interest in taking the decision to sell. But the Court of Appeal made no such finding. As the plaintiffs themselves point out in their closing submissions, the Court of Appeal’s decision rested not on a finding that the defendants were in actual conflict of interest but on a finding that the defendants were in potential conflict of interest, unmitigated by disclosure of that potential conflict to all subsidiary proprietors.

  149. [85] This is apparent on the face of the Court of Appeal’s reasoning.

  150. [86] First, the Court of Appeal held that the STB had erred in law in looking for evidence that the defendants were in actual conflict of interest because the relevant question was whether the defendants were in potential conflict of interest. The Court of Appeal first set out at length cogent reasons why equity focuses on potential conflict rather than actual conflict (at [137] – [145] under the heading “Duty to avoid any potential conflict of interest”) and the importance equity places on the duty of full disclosure (at [146] – [152]). The Court of Appeal then went on to say (at [200]):

  151. Having relied on this error of law – amongst others (the full list is at Ng Eng Ghee (CA) at [197]) – to reverse the STB’s decision, it is scarcely arguable that the Court of Appeal made a finding that the defendants were in actual conflict of interest, when it expressly held that that finding was unnecessary to decide the case before it and when the necessary evidence was not in the record of appeal.

  152. [87] Second, when the Court of Appeal assessed both defendants’ failure to give evidence, it was in the context of a potential conflict of interest and their failure to disclose that potential conflict of interest (at [189]):

  153. [88] Third, the Court of Appeal was very careful in its use of the terms “potential conflict of interest” and “actual conflict of interest” in Ng Eng Ghee (CA). It refers to “potential” or “possible” conflict of interest at [107], [139], [150], [165], [168(h)], [173], [188], [189], [192] and [210(b)(iv)] of the judgment. These are the key passages where the Court of Appeal is expressing its own view on why it is only potential conflict which is relevant for the inquiry under s 84A of the Act. By contrast, it refers to “actual” conflict of interest at [138], [142], [144], [145], [197(c)] and [200] of the judgment. All of these references appear where the Court of Appeal emphasises why it is the potential conflict and not the actual conflict which ought to be the subject of the inquiry under s 84A of the Act.

  154. [89] It is true that at [188] and [190] of Ng Eng Ghee (CA), the Court of Appeal appears to draw an inference, reinforced by the defendants’ silence, that an actual conflict of interest motivated them to push for a quick collective sale to HPPL and therefore to accept the bird in the hand instead of pursuing the two in the bush. However, these two passages cannot be read in isolation and out of context. When these passages are read in context and read in light of the points I have made in [84] – [88] above, it is clear that these two passages are mere observations, intended to illustrate precisely why an undisclosed potential conflict of interest is capable of showing that a collective sale transaction is not a transaction in good faith within the meaning of s 84A of the Act, and not intended to be findings of fact as to what actually happened in the collective sale of Horizon Towers..

  155. [90] It is indisputable that the defendants were in potential conflict of interest. The Court of Appeal made no finding beyond that that. That finding alone sufficed for the Court of Appeal’s approach to setting aside the collective sale order. That finding suffices also to establish the defendants’ liability in principle for equitable compensation in the action before me. As the plaintiffs point out, the evidence led by the defendants which showed that they were not in actual conflict of interest because they were under no financial pressure to sell their additional units was therefore beside the real point. That evidence cannot establish a defence to the plaintiffs’ claim and is therefore not something I need to take into consideration.

  156. Court of Appeal made findings against the First SC as a body

  157. [91] In order for the Court of Appeal in Ng Eng Ghee (CA) to set aside the collective sale order, it was unnecessary for it to go on and attribute individual responsibility for the breaches of fiduciary duties to any specific member of the First SC. In Ng Eng Ghee (CA), the question was whether the First SC breached its fiduciary duties, and in particular, the core duty of fidelity. To set aside the collective sale order, the Court of Appeal needed to find only that the First SC as a body breached its fiduciary duties and not that any particular fiduciary had breached his duty. The reason for this is explained in Alastair Hudson, Equity and Trusts (Routledge-Cavendish, 7th Ed, 2013) at p 864:

  158. [92] In Bahin v Hughes (1886) 31 Ch D 390, one of the questions was whether a non-acting trustee could seek an indemnity from an acting trustee for a breach of trust by the co-trustee. The non-acting trustee testified that he had not been willing to mortgage trust assets, but did so at the insistence of the co-trustee. The English Court of Appeal found that both trustees were equally responsible for the breach of trust which resulted. It disallowed the non-acting trustee’s application for an indemnity from the acting trustee. Fry LJ held (at 398):

  159. [93] The Court of Appeal therefore did not need to make any findings which were essential for its decision against specific individuals. If it had needed to do so, it would undoubtedly have been alive to the rules of natural justice and would have allowed those individuals a right to be heard in their own defence.

  160. [94] The plaintiffs now sue the defendants as members of the First SC. Personal liability of each individual member of the First SC was not at issue in CA120 and is not an issue before me. Rather, the defendants are held liable for the actions of the First SC not because of personal default but because they are jointly liable with all its other members. The First SC was undoubtedly heard in the collective sale proceedings which culminated in CA120. There was no breach of natural justice.

  161. Defendants’ submission of no breach is an abuse of process

  162. [95] Of course, the Court of Appeal arrived at these conclusions on breach of fiduciary duties not for the purposes of determining the liability of the First SC to compensate the plaintiffs in equity but to determine the only question which was before the Court of Appeal: whether, within the meaning of s 84A(9)(a)(i)(A) of the Act, the collective sale transaction was not in good faith after taking into account the sale price.

  163. [96] The issue which then arises for me is whether the Court of Appeal’s findings on that question of mixed fact and law preclude the defendants from asserting before me that the First SC was not in breach of its fiduciary duties. The position on issue estoppel is summarised in Spencer Bower and Handley, Res Judicata (LexisNexis, 4 Ed, 2009) at p 103:

  164. [97] The dicta of Diplock LJ (as he then was) in Thoday v Thoday [1964] P 181 CA (at 197-198) was quoted with approval in Thrasyvoulou v Secretary of State for the Environment [1990] 2 AC 273 (“Thrasyvoulou”) at 295-6:

  165. [98] The plaintiffs do not, however, rely on res judicata or issue estoppel. They cannot, because it is clear that the defendants were not parties to CA120 in their capacity as members of the First SC. They were parties only in their capacity as consenting subsidiary proprietors and even then only because the respondents in CA120 were nominal respondents nominated by the sale committee to represent all consenting subsidiary proprietors under the terms of the CSA. The plaintiffs’ case, instead, is that the defendants are precluded by the extended doctrine of res judicata from challenging the finding in Ng Eng Ghee (CA) that the First SC breached its duties.

  166. [99] The extended doctrine of res judicata precludes, as an abuse of process, a party from pursuing a claim or a defence for the purpose of mounting a collateral attack upon a final decision made by a court of competent jurisdiction in earlier proceedings when that party had the full opportunity to contest the decision in the earlier proceedings: see Hunter v Chief Constable of the West Midlands Police and others [1982] AC 529 at 541. The extended doctrine of res judicata forms part of Singapore law: see Lee Hiok Tng (in her personal capacity) v Lee Hiok Tng and another (executors and trustees of the estate of Lee Wee Nam, deceased) and others [2001] 1 SLR(R) 771 at [25]; Lai Swee Lin Linda v Attorney-General [2006] 2 SLR(R) 565 at [62]; and Goh Nellie v Goh Lian Teck and others [2007] 1 SLR(R) 453 at [19].

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