Significant Decisions of the Court of Appeal and the Court of 3 Judges
TQ v TR [2009] SGCA 6; [2009] 2 SLR(R) 961
This was the first case in Singapore involving the enforceability of a prenuptial agreement. A Dutch man and a Swedish woman had entered into a prenuptial agreement before their marriage in the Netherlands. They later moved to Singapore, where the marriage subsequently broke down. In the High Court, the prenuptial agreement, which stipulated that there would be no community of property, was upheld and no order was made as to the division of matrimonial assets.
In the appeal, the wife argued that the prenuptial agreement was unenforceable under the Women’s Charter (Cap 353, 1997 Rev Ed) and that a division of the matrimonial assets should be ordered. The Court of Appeal upheld the High Court’s decision not to make any order as to the division of assets. It held that the Women’s Charter would directly govern some categories of prenuptial agreements. Other prenuptial agreements, while governed by the common law, must still be consistent with the principles of the Women’s Charter. In the context of prenuptial agreements concerning the division of matrimonial property, it was held that while such agreements were in themselves not enforceable given that s 112 of the Women’s Charter gave the court the ultimate power to divide the matrimonial assets, the agreement could be utilised to aid the court in its exercise of its powers.
The weight accorded to a prenuptial agreement would depend on the facts of each case. In the present case, the fact that the prenuptial agreement was entered into by foreign nationals and was governed by foreign law meant that significant weight could be accorded to its terms.
Wing Joo Loong Ginseng Hong (Singapore) Company Pte Ltd v Qinghai Xinyuan Foreign Trade Co Ltd [2009] SGCA 9; [2009] 2 SLR(R) 814; [2009] FSR 491
The first defendant was the registered proprietor of the “rooster flower” trade mark (“the opposed mark”), and the second defendant was a licensee of the opposed mark. In May 2006, private summonses were filed in the Subordinate Courts against the plaintiff and some of its directors for infringements of the Trade Marks Act (Cap 332, 2005 Rev Ed) and the Copyright Act (Cap 63, 2006 Rev Ed) relating to the opposed mark. In response, the plaintiff applied for the revocation and invalidation of the registration of the opposed mark, as well as a declaration that there was no copyright infringement. The High Court Judge dismissed the plaintiff’s application for revocation and invalidation of the opposed mark, but granted the declaration sought. In so doing, the High Court Judge considered whether the court did not have the discretion to not revoke or invalidate the registration of a trade mark where grounds for revocation or invalidation under ss 22 and 23 of the Trade Marks Act were made out – a point that the Court of Appeal had yet to consider – and held that the said provisions should be construed to allow for such a discretion. Both the plaintiff and the defendants appealed.
The Court of Appeal embarked on an analysis of the grounds for revocation under ss 22(1)(a), 22(1)(b) and 22(1)(c) of the Trade Marks Act, and concluded that none of these grounds were made out in respect to the opposed mark. The Court of Appeal then considered the grounds for invalidation under ss 7(1)(a), 7(1)(d) and 7(6) read with s 23(1), and s 23(4) of the Trade Marks Act, and likewise concluded that none of these grounds were made out. Although it had dismissed all of the grounds for revocation and invalidation that had been raised, the Court of Appeal chose to offer a preliminary opinion on whether the court has a discretion to refuse relief if a ground for revocation or invalidation under ss 22 and 23 of the Trade Marks Act was made out. Its preliminary opinion, which was based on its reading of Parliament’s intention, case law and academic works, was that no such discretion exists. The Court of Appeal also observed that as the declaratory order sought related to criminal conduct, exceptional circumstances would be required before such an order would be granted. As exceptional circumstances were absent in the case, the declaratory order should not have been granted.
BNP Paribas v Jurong Shipyard Pte Ltd [2009] SGCA 11; [2009] 2 SLR(R) 949
This case involved an application by Jurong Shipyard Pte Ltd for an injunction to restrain BNP Paribas from commencing winding up proceedings against it. In its decision, the Court of Appeal expressed the view that whenever a company offers security for a disputed debt, a purported creditor should not commence winding up proceedings. Instead, the latter should commence court proceedings to recover the alleged debt, as it is settled law that the court’s winding-up jurisdiction is not for the purpose of deciding a disputed debt.
Separately, the Court of Appeal also emphasised that it retained the discretion not to wind up a company which had been proved or deemed unable to pay its debts. Where a petition to wind up a temporarily insolvent but commercially viable company is filed, many other economic and social interests might be affected, such as those of its employees, the non-petitioning creditors, as well as the company’s suppliers, customers and shareholders. These are interests that the court might legitimately take into account in deciding whether to wind up a company.
Novelty Pte Ltd v Amanresorts Ltd [2009] SGCA 13; [2009] 3 SLR(R) 216
This was the first case in Singapore interpreting the “well-known trade marks” provision in the Trade Marks Act (Cap 332, 2005 Rev Ed). The Aman group of companies has operated a string of exclusive luxury resorts across the world. The name of each of these resorts is prefixed by the word “Aman”, such as the “Amanusa” in Bali, Indonesia. At the material time, neither “Aman” nor “Amanusa” were registered trade marks in Singapore. A local developer built a cluster housing project in Yio Chu Kang with a Balinese theme, which it also named “Amanusa”. Amanresorts argued that the use of that name constituted, among other things, an infringement of the “Aman” and “Amanusa” names, which were protected as “well known trade marks” under s 55(3)(a) of the Trade Marks Act.
In its decision, the Court of Appeal held that a mark had to be well known by the plaintiff’s actual and potential consumers before it could be said to be well known by a “relevant sector of the public in Singapore” under s 2(9)(a) of the Trade Marks Act. After an exhaustive survey of international approaches to the subject, it was also held that for s 55(3)(a) of the Trade Marks Act to apply, there had to be a confusing connection between the plaintiff and the defendant’s goods or services. On the facts of the case, the “Aman” names were well known in Singapore and the use of the “Amanusa” name in the Yio Chu Kang development constituted an infringement of those well known trade marks because the actual and potential consumers of Amanresorts’ services (being the well-to-do, honeymooners, etc.) were likely to be confused by such use.
Public Prosecutor v Aniza bte Essa [2009] SGCA 16; [2009] 3 SLR(R) 327
The respondent in this case pleaded guilty to abetting her lover to kill her husband. In sentencing the respondent, the High Court applied the “Hodgson criteria”, which was first enunciated in R v Rowland Jack Forster Hodgson (1968) 52 Cr App R 113. In that case, it was stated that a sentence of life imprisonment is justified: “(1) where the offence or offences are in themselves grave enough to require a very long sentence; (2) where it appears from the nature of the offences or from the defendant’s history that he is a person of unstable character likely to commit such offences in the future; and (3) where if the offences are committed the consequences to others may be specially injurious”. Applying the Hodgson criteria, the High Court sentenced the respondent to nine years’ imprisonment on account of her diminished responsibility. The Prosecution appealed.
The Court of Appeal affirmed the sentence, holding that until the current sentencing regime in Singapore (where life imprisonment is initially a determinate sentence for the first 20 years but becomes an indeterminate sentence thereafter) is modified, the court will have to apply the Hodgson criteria to mentally unstable offenders in two ways: (1) where the Hodgson criteria are fulfilled, life imprisonment will be justified for the protection of society; and (2) where any of the three Hodgson elements is not met the offender will be sentenced according to the established sentencing principles, having regard to the facts of each case and bearing in mind that deterrence has little or no effect on mentally unstable offenders.
In relation to the psychiatric reports concerning the respondent, the Court of Appeal held that the Prosecution was not entitled to question the factual basis of the psychiatrists’ opinions on appeal, after it had agreed to their reports without qualification by tendering them in the court below as part of the agreed statement of facts for the purposes of sentencing. The Court of Appeal observed that the practice of tendering such a statement and for defence counsel to give a copy of the mitigation speech to the Prosecution had made the sentencing process simple. If there were objections from the Prosecution to any assertions, the defence would have to withdraw them or call evidence in support. If there were no objections, the court would be entitled to accept them and give such weight to them as it thinks fit.
Beckkett Pte Ltd v Deutsche Bank AG [2009] SGCA 18; [2009] 3 SLR(R) 452
The Court of Appeal in this case considered the duties of a mortgagee in the sale of mortgaged property, as well as when the relief of setting aside of a sale would be appropriate. The Court of Appeal held that it was settled law that a mortgagee, in exercising his power of sale, has a duty to act in good faith and also a duty to take reasonable care to obtain the true market value or the proper price of the mortgaged property at the time of sale of the property. The Court of Appeal also clarified that a breach of the two duties of a mortgagee would ordinarily result in a mortgagor claiming different reliefs. A failure to take reasonable steps to obtain the true market value or proper price for the security would usually lead to a claim for damages, but not a claim to set aside the sale, for the obvious reason that the complaint would not be that the mortgagee was not entitled to sell but that the mortgagee had sold at an undervalue. On the other hand, where there was a breach of the duty to act in good faith, the sale itself might be bad in law, entitling the mortgagor to set it aside if the purchaser was not a bona fide purchaser or that he had notice of any bad faith or impropriety on the mortgagee’s part. The Court of Appeal stressed that a completed sale by a mortgagee was not liable to be set aside merely because it had taken place at an undervalue, as undervalue was not, by itself, evidence of bad faith or impropriety.
Ng Giap Hon v Westcomb Securities Pte Ltd [2009] SGCA 19; [2009] 3 SLR(R) 518
The appellant Ng Giap Hon was a remisier with the first respondent, Westcomb Securities Pte Ltd under an agency agreement which contained an entire agreement clause. Two issues raised were whether an entire agreement clause precludes the implication of terms and whether a duty of good faith could be an implied term in law.
The Court of Appeal held that the entire agreement clause in the agency agreement in question contemplated the existence of implied terms as it expressly referred to implied terms. The Court of Appeal went on to observe that if there had been no reference to implied terms, the mere presence of an entire agreement clause would not, as a matter of principle, exclude the implication of terms into a contract, although it might be capable of excluding the implication of terms if such effect is expressed in clear and unambiguous language. On the facts of the case, the Court of Appeal took the view that a duty of good faith could not be implied in law as a term into the agency agreement as that would entail implying the same term in future for all contracts of the same type. The concept of good faith would still a fledging doctrine in the Commonwealth jurisdictions and requires much clarification, even on a theoretical level.
Insigma Technology Co Ltd v Alstom Technology Ltd [2009] SGCA 24; [2009] 3 SLR(R) 936
Insigma and Alstom were parties to a licence agreement which contained an arbitration clause. A dispute subsequently arose between the parties and Alstom commenced arbitration proceedings at the Singapore International Arbitration Centre (“the SIAC”). The arbitral tribunal decided that it had jurisdiction to hear the dispute after the SIAC indicated that it would be prepared to administer the arbitration under the International Chamber of Commerce Rules with the necessary adaptations. The High Court dismissed Insigma’s application to set aside the tribunal’s decision and Insigma appealed.
The Court of Appeal dismissed the appeal and made, inter alia, the following observations. First, the principle of party autonomy will be respected and effect will be given to workable arbitration arrangements in international arbitration, subject only to public policy considerations to the contrary. Second, there is no practical problem in, and no objection in principle to, providing for a hybrid ad hoc arbitration to be administered by one arbitration institution but governed by the rules (adapted as and when necessary) of another arbitration institution. Third, the parties’ choice of arbitration rules will be respected by Singapore law and be given the fullest effect possible. Where there is a conflict between the said rules and the International Arbitration Act (Cap 143A, 2002 Rev Ed) or the UNCITRAL Model Law on International Commercial Arbitration (“the Model Law”), the arbitration rules shall prevail unless the conflict is with a mandatory provision of the International Arbitration Act or the Model Law.
Tjong Very Sumito v Antig Investments Pte Ltd [2009] SGCA 41; [2009] 4 SLR(R) 732
In this decision, the Court of Appeal clarified the meaning of the term “dispute” in the context of arbitration agreements and acknowledged an unequivocal judicial policy of facilitating and promoting arbitration. The term “dispute” is important when a party seeks a stay of proceedings pursuant to the International Arbitration Act (Cap 143A, 2002 Rev Ed) as most arbitration agreements provide for arbitration only if a “dispute” exists.
The Court of Appeal held that the word “dispute” should be interpreted broadly and that a “dispute” should be readily found to exist unless the defendant has unequivocally admitted that the claim is due and payable. In assessing whether a “dispute” exists, the court will not assess the merits of the denial/defence or the genuineness of a “dispute” since these matters should properly be left to the arbitrator to assess. In the view of the Court of Appeal, a denial of the claim could be express, or could be inferred from prevarication or even silence. However, the defendant’s silence, without more, is often equivocal at best and may be insufficient to constitute the clear and unequivocal admission necessary to exclude the existence of a “dispute”, since there may be good reasons why a party remains silent. Further, an unequivocal admission had to extend to both liability and quantum. If a defendant makes an unequivocal admission as to liability but not to quantum, then there is a dispute referable to arbitration.
Review Publishing Co Ltd v Lee Hsien Loong [2009] SGCA 46; [2010] 1 SLR 52
The Court of Appeal in this case considered the applicability of the “Reynolds privilege”, a new form of qualified privilege laid down by the House of Lords in Reynolds v Times Newspapers Ltd [2001] 2 AC 127. The appellants had sought, inter alia, to rely on the Reynolds privilege as a defence to the defamation actions brought by the respondents against them in respect of an article they had published in the Far Eastern Economic Review.
The Court of Appeal rejected the appellants’ argument that: (a) the Reynolds privilege was part of Singapore’s existing law; or (b) alternatively, if the Reynolds privilege was not already part of Singapore’s existing law, it should be adopted as such. The Court of Appeal noted that the Reynolds privilege was not purely a common law development, but was the result of legislative developments in England brought about by the European Convention for the Protection of Human Rights and Fundamental Freedoms and the Human Rights Act 1998 (c 42) (UK), both of which had no application in Singapore. The Court of Appeal held that if the Reynolds privilege were to be adopted as part of our law, it would have to be adopted on the basis that the freedom of speech enshrined in Art 14(1)(a) of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) was likewise a right based on a constitutional or higher legal order foundation. However, such an argument was not open to the appellants (both of whom were non-citizens) as Art 14(1)(a) excluded non-citizens from the constitutional right of free speech. The Court of Appeal, however, left open the question whether the rationale behind the Reynolds privilege could apply to Singapore citizens and provided a list of non-exhaustive considerations that the court should consider if the question were to arise in a future case.
Kalpanath Singh s/o Ram Raj Singh v Law Society of Singapore [2009] SGHC 190; [2009] 3 SLR(R) 1018
The applicant had been convicted of cheating charges in 1995 and was struck off the Roll of Advocates and Solicitors of the Supreme Court of Singapore (“the Roll”) in 1996. He applied for reinstatement to the Roll at the age of 67 after more than 12 years had passed. The Court of 3 Judges (“the Court”) iterated in this case that reinstatement of a disbarred solicitor to the Roll is the exception rather than the rule. It also emphasised that the overriding concern in every application would always be the public interest and the public’s confidence in the legal profession. As such, an applicant’s full and complete rehabilitation is a pre-requisite.
Subsequent to the hearing, the Court discovered that the applicant had committed a series of regulatory offences whilst disbarred. Though it was argued that these offences did not reflect adversely on the applicant’s integrity and moral worthiness to be reinstated, the Court was of the opinion that they evinced a frame of mind that was blithely indifferent towards the law. In the premises, the Court was not persuaded that the applicant has been fully rehabilitated and took the view that reinstating him would damage the public’s confidence in the legal profession, and therefore rejected his application. The decision would, however, not preclude the applicant from making a fresh application in the future, if he so wished to.
Eng Foong Ho v Attorney-General [2009] SGCA 1; [2009] 2 SLR(R) 542
The Jin Long Si Temple was located next to the Ramakrishna Mission (“the Mission”) and the Bartley Christian Church (“the Church”). In 2003, the temple property was gazetted for acquisition by the Collector of Land Revenue (“the Collector”), but the Mission and the Church were not. The trustees of the temple property, who were the legal owners, appealed to the authorities against the acquisition, but to no avail, and were given up to 31 January 2008 to hand over the temple property to the Collector. In January 2008, the appellants, who were devotees of the temple, filed an application for a declaration that the acquisition of the temple property violated their constitutional right to equal protection of the law under Art 12 of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (“the Constitution”) as the Collector had discriminated against them, in that the temple property was being acquired but the Mission and the Church were not. The Court of Appeal held that the Collector had arrived at his decision to acquire the temple property based solely on planning considerations, and the acquisition had been proceeded with in good faith, and in the circumstances, there was no violation of Art 12 of the Constitution.
Ng Eng Ghee v Mamata Kapildev Dave [2009] SGCA 14; [2009] 3 SLR(R) 109 & [2009] SGCA 30; [2009] 4 SLR(R) 155
This decision clarified and elaborated on the duties of a sales committee in collective sales as well as the meaning of “good faith” in s 84(9)(a)(i) of the Land Titles (Strata) Act (Cap 158, 1999 Rev Ed) (“LTSA”). The collective sale of Horizon Towers (“the Property”) was first mooted in October 2005. The chairman of the management council of that time and another person who both subsequently became members of the sales committee (described in the judgment of the Court of Appeal as “the original SC”) both purchased additional units in the Property prior to the launch of the collective sale process. The chairman was actively involved in the collective sale process. The Property was unsuccessfully marketed from May 2006 to December 2006, following which there was a sales committee meeting at which the decision was made to sell it to Hotel Properties Ltd for $500m although there was a letter of offer from another party to purchase the Property for $510m, and property prices had suddenly risen dramatically. On an application made by the original SC for the collective sale of the Property, the Strata Titles Board (“the STB”) held that the sale was in good faith for the purposes of s 84(9)(a)(i); the objecting subsidiary proprietors had not established a conflict of interest arising from the original SC members’ purchase of additional units; and that the Property had been sold at a “fair” price. The High Court upheld the STB’s decision.
The Court of Appeal allowed the appeals (which had been filed by some of the objecting subsidiary proprietors). It set out the duties of a sales committee, which owes fiduciary duties agent to the owners of the units in a strata development collectively. It also set out a broader interpretation of “good faith” for the purposes of s 84(9)(a)(i) of the LTSA, including the manner in which the final sale price was arrived at and whether the sales committee has complied with its duties as fiduciary agent of all the subsidiary proprietors. In particular, the STB should have examined whether the price for the Property was the best price reasonably obtainable in the prevailing circumstances. On the facts of the case, the Court of Appeal found that it was not.
The Court of Appeal subsequently issued a separate judgment on the issue of costs for the appeals, in which it ruled, inter alia, that where a lower court or tribunal had made a decision against two or more parties with overlapping interests and the appeal succeeded on grounds raised earlier by parties who had chosen not to appeal, the court had the power to order payment to the non-appealing party.
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