Jurong Town Corporation v Wishing Star Ltd [2005] 3 SLR 283

In this case, the CA held that the appellant developer of a large research complex could terminate its contract with the respondent subcontractor in light of, inter alia, various misrepresentations made by the respondent subcontractor in its tender for the contract.

The CA found that the respondent had made fraudulent misrepresentations which were material to the award of the contract to the respondent. The CA further noted that it would have been a distortion of the tender process if a tenderer was able to submit a price lower than other tenderers, due to its non-compliant tender, without revealing the non-compliance. The fact that the appellant, through its agents, had conducted its own inquiry or due diligence, did not absolve the respondent from blame.

The CA also commented that it would not find affirmation without very clear evidence to this effect. The attempts made by the appellant to salvage the contract after the misrepresentations were discovered did not amount to a clear and unequivocal election to affirm the contract. Although the appellant had made a conditional election not to terminate the contract if the respondent were to take certain steps to salvage the contract, the respondent had failed to take these steps, such that the appellant’s right to terminate the contract re-emerged.

CX v CY (minor: custody and access) [2005] 3 SLR 690

A mother sought sole custody of her child to the exclusion of the father on the basis that the inability of the parties to co-operate rendered joint custody unworkable. In dismissing her appeal and confirming the order for joint custody, the CA took the opportunity to clarify the distinction between “care and control orders” and “custody orders”. Care and control concerned the right to take care of a child and to make day-to-day, short-term decisions concerning the child’s upbringing and welfare. Custody without care and control (that is, custody in its narrow sense) concerned the right to make the more important, long-term decisions concerning the upbringing and welfare of a child. The CA opined that the notion that joint custody should only be made where there was a reasonable prospect that the parties would co-operate was no longer appropriate in this day and age. In line with the outlook that parental responsibility was for life, the concept of joint parenting was expressly endorsed. Therefore, joint or no custody orders should generally be made, with sole custody orders being made only in exceptional circumstances.

The “Rainbow Joy” [2005] 3 SLR 719

The appellant, a Filipino engineer, was injured while working on board a vessel owned by the respondent shipowner. The appellant instituted arbitration proceedings in the Philippines as well as an admiralty action in Singapore against the respondent. The respondent applied successfully to stay the Singapore action on the ground of forum non conveniens (the doctrine). The appellant appealed, maintaining that: (a) the doctrine was not applicable where the foreign forum was not an ordinary court of law; and (b) even if the doctrine were applicable, the circumstances of the case did not warrant a stay, especially when the respondent had no defence to the claim.

The CA dismissed the appeal and held that the doctrine was based on the principle of comity between nations, not between Courts of law of nations. The critical question was not the label attached to the forum but its competence to try the dispute in that country. In weighing the balance of convenience under the doctrine, the issue of whether there was a defence to the claim was also irrelevant. The Court should not be required to go into the merits because the juridical basis of a stay based on the doctrine was different from that of a stay based on an exclusive jurisdiction clause.

United Project Consultants Pte Ltd v Leong Kwok Onn (“trading as Leong Kwok Onn & Co”) [2005] 4 SLR 214

In the course of his work, the respondent tax agent came to know that some of the appellant company’s directors had under-reported their tax returns to the Inland Revenue Authority of Singapore (IRAS). IRAS subsequently levied a fine on the appellant, which, in turn, sued the respondent in contract and/or tort for failing to warn the appellant of the consequences of under-reporting its directors’ fees. The trial judge found that there was no such duty in tort and, further, that the illegality defence barred the appellant’s claim.

In allowing the appeal and affirming “proximity” and “public policy” as the touchstones of liability in claims for pure economic loss, the CA further held that it was incorrect to treat a professional tax agent as a mere form filler. The respondent was under a duty to warn the appellant of inaccuracies in the filing of tax returns and, having acquired actual knowledge of that mistake, was in breach of his duty to the appellant. The court also held that the illegality defence was of no application to the facts of the case, as the illegal act complained of was the very act which the respondent had been hired to prevent.

Raffles Town Club Pte Ltd v Tan Chin Seng & Others [2005] 4 SLR 351

The plaintiffs were founder members of the Raffles Town Club (RTC) who brought a successful representative action against the defendant for breach of its contractual obligation to deliver a premier club. The plaintiffs were awarded damages of $1,000 each for loss of amenity, accessibility and enjoyment of a premier club. Their claim for diminution in value of the RTC membership due to the breach was refused due to insufficient evidence to prove their loss. The defendant appealed against the award of $1,000 to each plaintiff, and the plaintiffs cross-appealed against the Judge’s refusal to grant them damages for diminution in value of the RTC membership. The CA allowed the plaintiffs’ cross-appeal. It found that the diminution in value was the difference in value between what a runof- the-mill club and a premier social club was worth as at the date of breach in March 2001, after disregarding market depreciation. Although the plaintiffs’ experts did not venture to give precise figures, the Court doubted that anyone could ever give a definite figure. As there was no one indisputable formula to work out the plaintiffs’ loss, the Court had to best work this out using the data placed before it. In the circumstances, the use of the decline in price of RTC from December 1996 to March 2001, and the application of the eight-club index forwarded by the plaintiffs’ expert to compute average market decline, provided a reasonable and fair way to determine the plaintiffs’ loss. Each plaintiff was awarded $3,000, being the diminution in value of the RTC membership.

Woh Hup (Pte) Ltd and Others v Lian Teck Construction Pte Ltd [2005] SGCA 26

The appellant objected to the respondent’s application for pre-action discovery on the basis that an arbitration agreement existed between the parties. The CA held that a party to an arbitration agreement could legitimately apply for pre-action discovery, and that it would be premature for the court hearing a discovery application to consider whether the arbitration clause applied. However, to prevent a possible abuse of process by the applicant where the arbitration clause was or was very likely to be operative, in circumstances where, on a plain literal reading, the arbitration clause prima facie covered the dispute in question, the Court could refuse to grant discovery. Such a refusal would be made without prejudice to a later Court’s determination on the applicability of the arbitration clause. While it was unnecessary on the facts to determine if the Court had jurisdiction to order pre-arbitral discovery, the CA indicated that any matter submitted to arbitration should, in general, and certainly wherever possible, be dealt with by the arbitral tribunal.

PP v Lim Poh Lye & Anor [2005] SGCA 31

This CA decision sought to clarify the proper interpretation of section 300(c) of the Penal Code (Cap 224, 1985 Rev Ed) for the offence of murder. It put beyond doubt that, for an injury to fall within section 300(c), it must be one which, in the normal course of nature, would cause death and must not be an injury that was accidental or unintended. Whether a particular injury was accidental or unintended was a question of fact which had to be determined by the Court in the light of the evidence adduced and taking into account all the surrounding circumstances of the case. If the Court should find that the accused only intended to cause a particular minor injury which would not objectively be fatal, but he in fact caused a different injury which was sufficient in the ordinary course of nature to cause death, the case would not fall within section 300(c).

Beckkett Pte Ltd v Deutsche Bank AG [2005] SGCA 34

The appellant commenced proceedings against the respondent, alleging that the respondent had breached its mortgagee’s duties by selling certain pledged shares without giving notice to the appellant. By pre-action discovery, the appellant discovered the identity of the purchaser. After receiving information that the purchaser intended to re-sell the shares, the appellant applied to the Court to be released from the implied undertaking not to use the documents discovered for purposes other than the present proceedings, and for leaveto use the discovered documents to obtain an injunction in Indonesia restraining the purchaser from selling the shares. The CA affirmed the decision of the High Court refusing to release the appellant from the implied undertaking. The principle against self-incrimination was part of Singapore law, and there was a real risk that the respondent would be prejudiced and face criminal prosecution in Indonesia if the appellant was allowed to use the documents to obtain an injunction in Indonesia. Moreover, there was only a remote risk that the shares would be sold to a bona fide purchaser without notice of the appellant’s interest, as the appellant had taken steps to inform potential purchasers and the public of its interest.

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