A Pyrrhic Victory for Unjust Enrichment in Singapore? Esben Finance Ltd v Wong Hou‐Lianq Neil
| Published date | 01 March 2023 |
| Author | Rachel Leow,Timothy Liau |
| Date | 01 March 2023 |
| DOI | http://doi.org/10.1111/1468-2230.12761 |
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Modern Law Review
DOI:10.1111/1468-2230.12761
CASES
A Pyrrhic Victory for Unjust Enr ichment in Singapore?
Esben Finance Ltd vWong Hou-Lianq Neil
Rachel Leow∗and Timothy Liau†
In Esben Finance Ltd vWongHou-Lianq Neil (Esben) the Singapore Court of Appeal handed down
a momentous judgment, holding that, unlike in England and Wales,unjust enr ichment claims in
Singapore could not be time-barred under the Limitation Act, laches would not apply,and ‘lack
of consent’ should be accepted as an unjust factor, subject to circumscribed limits. These are
novel stances,unheard of anywhere else in the common law world. We suggest,moreover, that
Esben is of potentially greater signicance: it is important evidence that Singapore has adopted a
distinctive approach towards unjust enrichment. Under this g radually crystallising vision, unjust
enrichment is characterised as a new area of law,with independent status but only an interstitial
role.This vision, which draws a shar p divide between common law and equity and places unjust
enrichment under the common law umbrella, is likely to have far-reaching consequences for
the subject’s future development.
Claims for restitution of an unjust enrichment are conventionally analysed
through a series of inquiries, or ‘signposts’:1Is the defendant enriched? Is his
enrichment at the claimant’s expense? Was it unjust? Were there any defences?
Within this framework, further questions might be asked: Are ignorance, lack
of consent, or want of authority recognised unjust factors?2What limitation
period applies?3Does laches apply? What eect does illegality have, if any?4
∗Assistant Professor, National University of Singapore. From September 2022, Assistant Professor,
London School of Economics and Political Science.
†Assistant Professor, National University of Singapore. From September 2022, Assistant Professor,
London School of Economics and Political Science.
1Investment Trust Companies vRCC [2017] UKSC 29,[2017] 2 WLR 1200 at [41]. Note that in
Singapore these ‘signposts’ have a stronger status than in England; they are ‘well-settled’ ‘ele-
ments’ of an ‘unjust enrichment claim’. See for example Esben Finance Ltd vWong Hou-Lianq
Neil [2022] SGCA(I) 1 at [125]; Wee Chiaw Sek Anna vNg Li-Ann Genevieve [2013] SGCA 36,
SGCA 2, [2018]1 SLR 239 at [45].
Ltd vWar n e r [2016] FCAFC 85.
3 For example Test Claimants in the Franked Investment Income Group Litigation vHMRC [2020]
UKSC 47, [2022] AC 1.
© 2022 The Authors. The Modern Law Review© 2022 The Moder n Law ReviewLimited. (2023)86(2) MLR 518–535
Rachel Leow and Timothy Liau
English courts have oered answers to some of these questions, but not all.All
keen to know how they might be resolved should nd the 147-page judgment
of the Singaporean Court of Appeal in Esben Finance Ltd vWong Hou-Lianq
Neil (Esben) of importance.5
Developments in unjust enrichment law have long been inuenced,
sometimes signicantly, by insights from comparative law.6In the past, cross-
fertilisation between common law and civilian jurisdictions was most com-
mon.7Increasingly,compar isons between common law scholarship are on the
rise – a phenomenon observed not just within unjust enrichment, but across
private law more generally.8Comparative legal analysis can provide much
valuable material: unusual fact patterns, thought-provoking reasoning and,
sometimes, bold new approaches.
In Esben, all three are on display. Unanimously handed down by a ve-
member panel,it will be of par ticular interestto an English audience to note that
Lord Neuberger sat as an International Judge. As a former Justice of and Pres-
ident of the UK Supreme Court, Lord Neuberger was involved in key unjust
enrichment decisions in the past decade, including Benedetti vSawiris,9Menelaou
vBank of Cyprus UK Ltd,10 Patel vMirza,11 and Investment Trust Companies v
RCC.12
While Esben briey discussed ‘enrichment at the expense of’ and illegal-
ity,13 this note focusses on two aspects of the judgment which were the most
detailed, rm, and signicant: limitation and ‘lack of consent’. In previous
cases, there were already signs of divergence between Singaporean and English
law on these points.14 Esben follows in that vein, cementing that divergence.We
conclude with some general remarks on Esben’s potential wider signicance.Es-
ben,we suggest, provides further evidence indicating that the Singaporean courts
have indeed taken a novel and distinctive approach towards unjust enrichment.
With the shape and future direction of the subject now in dispute in England
5n1above.
6 Most famously,the change of mind in Peter Birks, Unjust Enrichment (Oxford:Clarendon Press,
2nd ed, 2005) from an ‘unjust factors’approach to an ‘absence of basis’ approach was acknowl-
edged to have been due to the impact of a German scholar,Sonja Meier :Birks, ibid,xiii.
7 For example see also Thomas Krebs,Restitution at the Crossroads: A Comparative Study (London:
Cavendish Publishing,2001); Birke Häcker,Consequences of Impaired Consent Transfers:A Structural
Comparison of English and German Law (Oxford: Hart Publishing 2013).
8 See especially Birke Häcker,‘Divergence and Convergencein the Common Law – Lessons from
the Ius Commune’ (2015) 131 LQR 424, and the contributions in Andrew Robertson and
Michael Tilbury (eds), The Common Law of Obligations (Oxford:Hart Publishing, 2017); Andrew
Robertson and Michael Tilbury (eds), Divergences in Private Law (Oxford: Hart Publishing, 2017).
12 n 1 above.
13 Their pronouncements on illegality were dicta, and the court emphasised their ‘provisional’ and
‘tentative’ status: Esben n 1 above at [159], [172], [176] [178], [190]. On Singapore’s approach
and how it compares to the line of cases following on from Patel vMirza n 4 above,signicant
further,Andrew B.L. Phang and YihanGoh, Contract Law in Singapore (The Netherlands:Wolters
Kluwer,2nd ed, 2021) ch 7.
14 Documented in Rachel Leowand Timothy Liau, ‘Birksian Themes and Their Impact in England
and Singapore: Three Points of Divergence’ [2021] LMCLQ 350, 359-365.
© 2022 The Authors. The Modern Law Review© 2022 The Moder n Law ReviewLimited.
(2023) 86(2) MLR 518–535 519
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