Tan Chin Hock v Teo Cher Koon
| Jurisdiction | England & Wales |
| Judge | Belinda Ang Saw Ean JAD,Woo Bih Li JAD,Chua Lee Ming J |
| Judgment Date | 06 April 2022 |
| Court | High Court |
| Docket Number | Civil Appeals Nos 68 and 75 of 2021 |
[2022] SGHC(A) 15
Belinda Ang Saw Ean JAD, Woo Bih Li JAD and Chua Lee Ming J
Civil Appeals Nos 68 and 75 of 2021
Appellate Division of the High Court
Contract — Formation — Parties allegedly agreeing to oral loan and oral indemnity — Whether such agreements made out on facts
Evidence — Presumptions — Undisputed that money had been transferred for no consideration — Whether court was entitled to presume that it was loan
Evidence — Proof of evidence — Standard of proof — Trial judge preferring one party's explanation over the other — Whether trial judge should have considered that neither parties' explanations were established on evidence
Held, allowing CA 68 in part and dismissing CA 75:
(1) A plaintiff in a civil suit had to prove his case was more probably true than not true. It was not a matter of showing that his case was more probable than the defendant's. This meant that a judge was not bound to prefer either parties' assertions. Instead, a judge could simply find that a plaintiff had failed to discharge his burden of proof: at [31].
(2) It was unnecessary to deal with TCH's allegation that Teo had parked ISDN shares with TTC. Even if it were true, there was no evidence to show that the Sum was derived from the shares that Teo had allegedly parked with TTC: at [38].
(3) The Judge did not err in finding that TCH had not discharged his burden of proof in respect of the Alleged Indemnity. His case lacked specificity and consistency on material points. His pattern of buying ISDN shares did not support his case, the Alleged Indemnity was commercially absurd, and there was a delay by TCH in bringing his action against Teo: at [40], [50] and [59] to [61].
(4) Whilst it was undisputed that TTC had transferred the Sum to TCH, the court would not infer that it was a loan from the mere fact of receipt: at [66] and [67].
(5) The Judge had found that the Alleged Loan was a “better explanation” for the transfer of the Sum than the Alleged Indemnity. However, she should have considered that perhaps neither was established on the evidence: at [69].
(6) The Judge erred in finding that TTC had met his burden of proof with regard to the Alleged Loan. This was because TTC had been inconsistent on the date for repayment of the Alleged Loan, the Payment Vouchers were silent on the terms of the Loan, and TTC belatedly sought repayment of the Alleged Loan only after prodding from Teo: at [80] to [85], [93] and [103] to [105].
Choo Cheng Tong Wilfred v Phua Swee Khiang [2022] SGHC(A) 5 (folld)
Clarke Beryl Claire v SilkAir (Singapore) Pte Ltd [2002] 1 SLR(R) 1136; [2002] 3 SLR 1 (folld)
Ernest Ferdinand Perez De La Sala v Compañia De Navegación Palomar, SA [2018] 1 SLR 894 (folld)
Popi M [1985] 1 WLR 948 (refd)
Power Solar System Co Ltd v Suntech Power Investment Pte Ltd [2018] SGHC 233 (refd)
PT Bayan Resources TBK v BCBC Singapore Pte Ltd [2019] 1 SLR 30 (refd)
Sakthivel Punithavathi v PP [2007] 2 SLR(R) 983; [2007] 2 SLR 983 (refd)
Seldon v Davison [1968] 1 WLR 1083 (refd)
Wee Yue Chew v Su Sh-Hsyu [2008] 3 SLR(R) 212; [2008] 3 SLR 212 (folld)
The appellant in AD/CA 68/2021 (“CA 68”), Tan Chin Hock (“TCH”) was a businessman and stock market investor. He was acquainted with the respondents in CA 68, Teo Cher Koon (“Teo”) and Tan Thiam Chye (“TTC”). Teo was a major shareholder and the managing director of “ISDN”, a publicly listed company. TTC was the appellant in AD/CA 75/2021 (“CA 75”).
TCH bought a large volume of ISDN shares in late 2013, and allegedly suffered losses of around $5m. TCH claimed that in September 2013, due to a crash in the stock market, Teo had asked him to help prop up ISDN's share price, and that Teo had also promised to indemnify him for any losses that he would incur (the “Alleged Indemnity”). TCH also claimed that Teo represented that TTC could effect payment of the Alleged Indemnity. This would be done by Teo instructing TTC to sell ISDN shares that Teo had parked with TTC. The proceeds from this would then be used to effect payment to TCH. On this basis, TCH alleged that he had received partial payment of the Alleged Indemnity in November 2014 when TTC sold eight million ISDN shares in his name and transferred the proceeds of over $2m to TCH (the “Sum”). TCH subsequently sued Teo for payment of the balance of his alleged loss under the Alleged Indemnity.
Teo and TTC did not deny the transfer of the Sum to TCH in November 2014. However, Teo denied that the transfer was partial payment of the Alleged Indemnity. Instead he took the position that the transfer was a loan from TTC to TCH (the “Alleged Loan”). This position was shared by TTC.
TTC then sued TCH for repayment of the Sum pursuant to the Alleged Loan one year after TCH commenced his action against Teo under the Alleged Indemnity. TTC's case was that the Alleged Loan was agreed orally, but was evidenced by payment vouchers which reflected the transaction in November 2014 (the “Payment Vouchers”).
Both suits were heard by a High Court judge (the “Judge”), who dismissed TCH's claim but allowed TTC's claim. She awarded TTC the Sum with interest to run from the date of the writ. However, she did not allow his further claim which was for loss of profits and/or dividends which would have accrued from the ISDN shares that he sold in November 2014.
TCH and TTC both appealed against the Judge's decision. CA 68 was TCH's appeal against the Judge's decision to dismiss his claim for payment under the Alleged Indemnity and to allow TTC's claim against TCH for repayment of the Alleged Loan. CA 75 was TTC's appeal against the Judge's decision to award him the Sum with interest from the date of the writ only.
Zhulkarnain bin Abdul Rahim, Too Fang YiandLum Rui Loong Manfred (Dentons Rodyk & Davidson LLP) for the appellant in AD/CA 68/2021/respondent in AD/CA 75/2021;
Sarjit Singh Gill SC, Probin Stephan Dass, Hoang Linh TrangandLiew Zhi Hao (Shook Lin & Bok LLP) for the first respondent in AD/CA 68/2021;
Chai Ming Fatt James and Wong Mo Yen Angela (James Chai & Partners) for the second respondent in AD/CA 68/2021/appellant in AD/CA 75/2021.
6 April 2022
Judgment reserved.
Woo Bih Li JAD (delivering the judgment of the court):
1 The appellant in AD/CA 68/2021 (“CA 68”) is Mr Tan Chin Hock (“TCH”). The respondents in CA 68 are Mr Teo Cher Koon (“Teo”) and Mr Tan Thiam Chye (“TTC”). TTC is also the appellant in AD/CA 75/2021 (“CA 75”), whilst TCH is the respondent. CA 68 and CA 75 are TCH's and TTC's appeals against the decisions of the trial judge (the “Judge”) in Tan Chin Hock v Teo Cher Koon and another suit[2021] SGHC 175 (the “Judgment”). The Judgment was the Judge's decisions on two separate suits: HC/S 743/2019 (“Suit 743”) and HC/S 1089/2020 (“Suit 1089”).
(a) Suit 743 was a claim brought by TCH against Teo for damages for misrepresentation and money owing to him under an indemnity which Teo allegedly gave TCH (the “Alleged Indemnity”).
(b) Suit 1089 was a claim brought by TTC against TCH pursuant to a loan which TTC allegedly gave TCH (the “Alleged Loan”). He claimed for the sum owing under the Alleged Loan, as well as loss of profits and loss of dividends.
2 Both suits were heard one after the other on the basis that the evidence in one would apply to the evidence in the other and vice versa. The Judge dismissed Suit 743 and allowed Suit 1089, finding that the Alleged Indemnity did not exist, but that the Alleged Loan did. She ordered TCH to pay the sum owing under the Alleged Loan to TTC. However, she did not award TTC loss of profits or loss of dividends and ordered interest to run from the date of the writ.
3 Now, both TCH and TTC appeal against the Judge's decisions. CA 68 is TCH's appeal against the Judge's decision that the Alleged Indemnity did not exist, and that the Alleged Loan did. On the other hand, CA 75 is TTC's appeal against the Judgment in Suit 1089 in so far as she dismissed TTC's claim for loss of profits and loss of dividends. Alternatively, TTC is appealing against her decision to order interest on the “Sum” to run from the date of the writ only, instead of interest to run from 13 August 2015 (being the date the Alleged Loan was to be repaid).
4 Teo is the managing director and president of ISDN Holdings Ltd (“ISDN”), a company listed on the Singapore Stock Exchange. TTC is a businessman specialising in the import and export of foodstuffs, and first met Teo in or around 2010. TCH describes himself as a “businessman” and an “investor in the stock market and various business ventures”.
5 Teo and TTC became acquainted in 2012 at the Riverview Hotel (the “Hotel”). Teo and TCH would meet at the Hotel several times a week from 2012 to 2013.
6 TCH was also acquainted with the “Goh Brothers”, that is, Goh Yeu Toh (“GYT”) and his younger brother, Goh Yeo Hwa (“GYH”). GYT was the director of a public company, Wee Hur Holdings Ltd (“Wee Hur”), although by the time of trial this was no longer the case. GYH was a shareholder of Wee Hur and was also an executive director and co-founder. GYH was introduced to Teo and TTC by TCH at the Hotel.
7 In late 2012, TCH was introduced to a project relating to a coal mine in Myanmar (the “Myanmar Project”). He told Teo about the Myanmar Project and visited Myanmar on 8 January 2013 to ascertain the viability of the Myanmar Project.
8 From February to September 2013, TCH, his brother (Tan Chin Tuan), and two of his associates, Mr Ho Siow Poh and Mr Tan Ah Ee (collectively, TCH's “associates”), bought substantial amounts of shares in ISDN. Collectively, their shareholding in ISDN increased from about one million shares in February 2013, to 43,780,000 by 30 September 2013. During this period, the following occurred:
(a) On 14...
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