1 Social and commercial interests commonly intertwine and reinforce each other. Venturing into foreign lands, co-adventurers give each other collective wisdom, strength in numbers, and the security of company. Trust is reposed. Responsibilities are voluntarily undertaken. Little may be written, for fear of disrupting the bonds of trust between brothers. Such journeys carry the uncertainty of not knowing when a social obligation becomes a legal one and, inevitably, the possibility that the unwritten code fractures in the face of the diverse risks presented by the horizon.

2 The plaintiff, Mr Ratan Kumar Rai (“Mr Rai”), is a Singaporean businessman who was a practising lawyer for 23 years from 1994 to 2017. ¹ His claim pertains to a development of land in Cambodia and is premised on a tight friendship with the first two defendants and Mr Seah Chong Hwee (“Mr SCH”), since deceased. This friendship is not disputed. The first defendant, Mr Seah Hock Thiam (“Mr Seah”), is a businessman with wide business interests. The second defendant, Mr Tan Teck Kee (“Mr Tan”), was formerly a deputy superintendent in the Singapore Police Force, in which he served for some 12 years before he left on 1 October 2010. ²

3 The third defendant, WorldbridgeLand (Cambodia) Co Ltd (“WBL”), ³ is a real estate company incorporated in Cambodia on 25 May 2011. ⁴ The chairman of WBL’s board of directors, a Cambodian national named Mr Oknha Rithy Sear (“Mr Rithy”), holds the remaining 51% of its shares, as required by Cambodian law. ⁵ At the material time, the only other director of WBL was Mr Tan, who is a 49% shareholder of WBL and who was an executive director of WBL from its incorporation on 25 May 2011. He resigned on 19 August 2020 and this resignation took effect on 19 November 2020. ⁶

4 A group of Mr Seah’s friends and business associates (“the Singapore investors”) invested in land purchased by WBL. In 2011 and 2012, Mr Rai contributed a total sum of US$5,394,252 towards the acquisition of two plots of land in Cambodia (collectively, “the Land”), which were both purchased by WBL. ⁷ Subsequently, under a joint venture between WBL and Oxley Holdings Limited (“Oxley Holdings”), where profits were to be shared equally, the Land was developed into a 45-storey twin tower mixed-use development known as “The Bridge”. ⁸

5 From 2015 to 2018, Mr Rai received several payouts from the defendants in return of his capital investment in the Land and the distribution of profits from the investment. Following upon the publication of Oxley Holdings’ profits generated from the joint venture, he contends that he has not received the full amount of profits to which he is entitled and that wrongful deductions were made to reduce the amount of profits paid to him. ⁹ By this suit, he seeks an account of all the moneys paid in relation to the investment in the Land and the profits thereof, and an order for all sums due to be paid to him upon the taking of the relevant accounts. ¹⁰

6 The two plots of land that together comprised the Land were denoted by the parties as “Plot A” and “Plot B”. They were purchased at separate points in time.

7 On 10 October 2011, a sale and purchase agreement was entered into under which Mr Rithy, acting on behalf of WBL, purchased an approximately 7,000m2 plot of land in Phnom Penh (Plot A). ¹¹ A copy of the sale and purchase agreement was tendered during the trial stated that the purchase price of Plot A was US$11,854,100. ¹²

8 Mr Rai contributed a sum of US$1,904,000 to the acquisition of Plot A. He paid S$2,500,000 to Mr Seah through three cash cheques dated 10 October 2011, 21 November 2011 and 8 December 2011, of which S$20,851.01 was returned by Mr Seah on 23 December 2011 by way of an OCBC Bank cash cheque. ¹³

9 Several other individuals also contributed towards the acquisition of Plot A, including: ¹⁴

10 Mr LEN, Mr TLL and Mr LTL are all Mr Seah’s business partners or acquaintances. ¹⁵ It is not disputed that Mr Seah assisted the Singapore investors in the transmission of funds between Singapore and Cambodia, both to and from WBL. Some of those fund transfers were done through Esun International Pte Ltd (“Esun”), a Singapore-incorporated company of which Mr Seah is a director. Mr Seah holds 26.5% of the shares in Esun. His wife, Mdm Lee Poh Choo (“Mdm Lee”), who is also a director of Esun, holds 24.5% of its shares ¹⁶ and assisted him with managing the fund transfers.

11 Following the acquisition of Plot A, on or around 1 December 2011, Mr Tan distributed a document titled “Cambodian Investment Funds” to those who had invested in Plot A (“the Cambodian Investment Funds Document”). ¹⁷ This document, which was signed by Mr Tan, ¹⁸ stated as follows: ¹⁹

12 On 29 March 2012, another sale and purchase agreement was entered into under which WBL, acting through Mr Rithy, purchased an approximately 3,000m2 plot of land in Phnom Penh which was adjacent to Plot A (Plot B). ²⁰ A copy of this sale and purchase agreement tendered during the trial stated that the purchase price of Plot B was US$5,424,700. ²¹

13 In or around April 2012, Mr Rai contributed a total of US$3,490,252 towards the acquisition of Plot B, ²² in the following sums: ²³

14 Several other individuals also contributed to the acquisition of Plot B:

(a) Mr Rithy and Mr SCH each contributed US$542,470; ²⁴ and

(b) the remaining sum of $849,508 was contributed by Ms Amy Yap (Mr Tan’s “aunty”) and her “group of investors”. ²⁵ The contributor of this sum was previously identified only as “Investor X”. ²⁶

15 Mr Seah did not contribute towards the acquisition of Plot B.

16 In late 2012 or early 2013, the Land had appreciated in value and the investors concluded it was more profitable to develop it instead of selling it. ²⁷ Mr Seah introduced several potential developers of the Land, including Mr Ching Chiat Kwong (“Mr Ching”), the executive chairman and chief executive officer of Oxley Holdings, a property development and property investment company listed on the Singapore Stock Exchange. ²⁸ It is undisputed that Mr Tan was involved in negotiating the details of the joint venture agreement with Oxley Holdings’ Mr Ching. ²⁹ On 15 July 2013, Oxley Holdings (represented by Mr Ching) and WBL (represented by Mr Tan) entered into a joint venture agreement to develop the Land (“the JVA”) ³⁰ into a project which would eventually become known as The Bridge. ³¹ The Bridge was a mixed-use development comprising 762 residential units, 963 “SoHo” units, five levels of retail units, two food and beverage spaces, and two sky bridges. ³²

17 Pursuant to the JVA, Oxley Diamond (Cambodia) Co Ltd (“Oxley Diamond”) was incorporated on 1 July 2013 ³³ as the joint venture vehicle for the development of The Bridge. ³⁴ WBL and Oxley Holdings each hold 50% of the shares in Oxley Diamond. ³⁵ Mr Ching, Mr Tan and Mr Rithy were appointed as directors of Oxley Diamond (with Mr Rithy being the chairman of the board of directors ³⁶ ), with Mr Ching being Oxley Holdings’ nominee director and Mr Tan and Mr Rithy being WBL’s nominee directors. ³⁷

18  Under the JVA, it was agreed that the net profits earned from The Bridge would be divided equally between Oxley Holdings and WBL. ³⁸

19 On or around 31 December 2013, Mr Tan provided Mr Rai with a document titled “Investment Agreement for ‘The Bridge’” (“the Bridge Investment Agreement”) of the same date. This document was issued on WBL’s letterhead and signed by Mr Tan. ³⁹ Mr Rai’s copy of the Bridge Investment Agreement provided as follows: ⁴⁰

20 Mr Rai’s copy of the Bridge Investment Agreement was signed and acknowledged by him. ⁴¹

21 The ground-breaking ceremony for The Bridge took place in or around May 2014 in Phnom Penh. Mr Rai, Mr Seah, Mr Tan, Mr SCH and Mr Rithy, among others, attended this ceremony. ⁴²

22 By an addendum letter to the JVA dated 24 July 2015, WBL and Oxley Holdings “unanimously agreed” to reduce Oxley Holdings’ contribution to The Bridge from US$35m to US$20m (“the JVA Addendum”). ⁴³ This was because it transpired that the land development costs required were only US$20m. The difference of US$15m was paid out by Oxley Diamond to WBL, which in turn paid out this sum to the individual investors in their respective proportions in or around August 2015. ⁴⁴

23 In most months during the period from August 2014 to June 2016, Mr Tan e-mailed Mr Rai and Mr Seah a monthly management report which Oxley Diamond had prepared for WBL. ⁴⁵ These management reports detailed the progress of the construction and the sale of the units in The Bridge. The last management report which Mr Rai received from Mr Tan was dated 31 May 2016 and received on 7 June 2016. ⁴⁶ After this, Mr Tan ceased to send Mr Rai any further monthly management reports. ⁴⁷

24 It is not disputed that Mr Rai received four payouts from the defendants, amounting to US$7,058,809 and S$5,379,555, between August 2015 and November 2018: ⁴⁸

25 According to Mr Rai, he became suspicious of Mr Seah and Mr Tan after reading Oxley Holdings’ press statement dated 29 April 2018 which stated that The Bridge had generated a gross profit of approximately S$140.8m for Oxley Holdings. ⁵³ As an equal partner under the JVA, WBL should have received the same amount of gross profits. ⁵⁴ In September or October 2018, Mr Rai also read Oxley Holdings’ Annual Report 2018 which stated that The Bridge had been completed and handed over by June 2018 and that 100% of the residential and “SoHo” units, and 86% of the retail units, had been sold. ⁵⁵ Mr Rai had not received a full account of these profits from the defendants. He then attempted to ask Mr Seah and Mr Tan for more information and for his share of the profits from The Bridge, but they were not forthcoming. ⁵⁶

26 On 4 February 2019, Mr Rai filed the writ of summons in the present suit against Mr Seah and Mr Tan. ⁵⁷ In December 2019, Mr Rai amended his Statement of Claim to add WBL as the third defendant. ⁵⁸ Subsequently, in February 2021, Mr Rai filed an application for specific discovery against WBL. ⁵⁹

27 On 25 March 2021, WBL (through its solicitors in Singapore, Lee & Lee) confirmed to the court that it no longer intended to participate in this suit and Lee & Lee withdrew from representing them. ⁶⁰

28 Thereafter, on 16 April 2021, the court granted an order in terms for specific discovery of all 17 categories of documents Mr Rai had sought against WBL (“the First Discovery Order”). ⁶¹ On the same day, the defendants’ counsel informed Mr Rai’s counsel that Mr Tan had resigned as a director of WBL. ⁶² The First Discovery Order was served on WBL by registered post on 21 April 2021, but WBL has not complied with the First Discovery Order to date. ⁶³ On 26 May 2021, the First Discovery Order with a penal notice was served on Mr Tan at his registered home address. ⁶⁴

29 Mr Tan then applied on 10 June 2021 for declarations that the First Discovery Order does not require him to influence WBL to comply with it; that the First Discovery Order cannot be enforced by an order of committal against him; and further or in the alternative, that the service of the First Discovery Order and penal notice on him was improper (“SUM 2708”). ⁶⁵ On 17 June 2021, after SUM 2708 was filed, Mr Rai filed an ex parte application for leave to commence committal proceedings against Mr Tan pursuant to O 52 r 2 of the Rules of Court (2014 Rev Ed) (“the ROC”). ⁶⁶ SUM 2708 was filed first and its object was clearly to obviate committal proceedings. I decided therefore that it would be correct to hear it first, before the leave application. There were also several issues common to the trial and SUM 2708 which were dealt with in the parties’ affidavits of evidence-in-chief (“AEICs”) for trial. While Mr Rai wished to file a reply affidavit, Mr Tan preferred the application to be dealt with after trial of the suit. At that time trial was scheduled to commence less than a month later. I decided it would be more efficacious to deal with SUM 2708 together with the main suit, which also obviated the need for any further affidavit to be filed.

30 Mr Rai claims that the investment in Cambodia began as a venture by a group of close friends, namely, himself, Mr Seah, Mr Tan and Mr SCH. ⁶⁷ According to Mr Rai, he and Mr Seah had been friends since 2006. ⁶⁸ The key thrust of Mr Rai’s claim is that Mr Seah and Mr Tan had assured him on various occasions that they would “take care” of and manage the investment in Cambodia, and that they would be accountable to him. On this basis, and based on his deep friendship with Mr Seah, Mr Rai agreed to invest close to US$2m in Plot A without signing any formal agreement beforehand. ⁶⁹ Mr Rai contends that Mr Seah played a central role in gathering the Singapore investors to invest; engaging Mr Tan to manage the investment in Cambodia; collecting the contributions from the investors and distributing the payouts; and accounting to the Singapore investors for the same. ⁷⁰ Meanwhile, Mr Tan was the appointed representative of the Singapore investors tasked with managing the investment. Although he was a director and 49% shareholder in WBL, Mr Tan did not contribute any money towards the purchase of the Land. Mr Rai’s case is that the real decision-making power lay with Mr Seah, who regularly consulted Mr Rai and Mr SCH. ⁷¹

31 The version of events put forth by Mr Seah and Mr Tan is vastly different. They contend that the investment in Cambodia was initiated and driven by WBL, and that they played minor roles in the overall investment.

(a) Mr Seah contends that he was merely another individual investor as Mr Rai was, and he did not manage, control, or have any interest in WBL at all material times. ⁷² He was not in any position to give instructions to Mr Rithy and/or Mr Tan, nor did he do so. ⁷³

(b) Mr Tan contends that he was never engaged by Mr Seah. Instead, he was acting in his capacity as WBL’s representative, and was an agent of WBL, at all material times. ⁷⁴ Mr Tan argues that he does not owe any fiduciary duties to Mr Rai and/or any of the other individual investors, and also denies that Mr Rai reposed full trust and confidence in him. Instead, Mr Rai, as with the other investors, had a direct contractual relationship with WBL. ⁷⁵

32 Mr Rai’s case is that in September or early October 2011, he, Mr Seah and Mr SCH entered into an oral understanding to be partners (in a colloquial sense) in a land investment project in Cambodia (“the Oral Understanding”). ⁷⁶ Shortly after this Oral Understanding was formed, Mr Rai, Mr Seah and Mr Tan met with Mr Rithy to discuss the land investment. At this point, Mr Rithy agreed to join as a partner under the Oral Understanding. ⁷⁷

33 Mr Rai contends that Mr Seah was not merely another individual investor who did not manage, control or have any interest in WBL. Instead, Mr Seah was the custodian of the investment fund set up for the purpose of the land investment in Cambodia (“the Investment Fund”) and the promoter of the project, and all the subscribers to the Investment Fund were members invited by Mr Seah. Mr Tan was merely his agent for the purpose of the Investment Fund. ⁷⁸ In the result, the partners made the following contributions to the Investment Fund in accordance with the Oral Understanding:

According to Mr Rai, Mr Seah and Mr Tan subsequently informed him that the total Investment Fund for all parties’ contributions was US$17,278,800. However, he is unable to verify this as the defendants have declined to provide supporting documents. ⁸² The moneys from the Investment Fund were then used to purchase the Land. ⁸³

34 On the other hand, Mr Seah and Mr Tan deny that the Oral Understanding existed. ⁸⁴ They aver that any communications to Mr Rai were direct communications from WBL to Mr Rai. ⁸⁵ In particular, they argue that it was not possible for Mr Seah to have communicated directly with Mr Rai as Mr Seah was not conversant in English. ⁸⁶ They contend that Mr Rai has been inconsistent as to the details of the Oral Understanding arising from differences in his original pleaded case, his AEIC, and his positions at trial and after trial. I deal with this issue at [81]–[90] below.

35 Mr Seah and Mr Tan’s narrative is instead that WBL was incorporated by Mr Tan and Mr Rithy on 25 May 2011 as a real estate company in Cambodia for use in various projects involving land investment and/or development in Cambodia. ⁸⁷ In or around October or November 2011, WBL, as one of its ventures, intended to purchase Plot A and sell the land at a profit when the price of the land appreciated. ⁸⁸ Mr Rithy personally contributed 20% of the purchase price for Plot A and WBL then sourced for individual investors to subscribe to the project for the remaining 80% of the purchase price, and Mr Seah, Mr SCH and Mr Rai were all individual investors who invested directly with WBL for the project. ⁸⁹

36 Further, the defendants aver that the project was to be managed and administered only by WBL, and that the individual investors (including Mr Rai and Mr Seah) were not entitled to play any decision-making role at all material times. ⁹⁰ In line with this, the individual investors (such as Mr Rai and Mr SCH) remitted the moneys to Mr Seah and/or his wife, who subsequently remitted such moneys to WBL, simply for convenience and at WBL’s request (as the investors were based in Singapore and WBL was a Cambodian company). There was no agreement between any of the investors that Mr Seah would be the custodian of the funds, and he was not responsible or accountable to Mr Rai and Mr SCH. Instead, at all material times, Mr Seah and/or his wife merely facilitated the transfer of the funds in relation to the project from Mr Rai and Mr SCH to WBL. ⁹¹ Mr Seah also denies that he engaged Mr Tan, and argues that Mr Tan was an agent of WBL at all material times. ⁹²

37 According to Mr Seah and Mr Tan, the terms of the investment, which were conveyed to all the individual potential investors (including Mr Seah and Mr Rai), were as follows:

(a) The funds from the individual investors would be used by WBL to purchase Plot A. ⁹³

(b) WBL would sell Plot A at a profit when the land price appreciated. After deducting the costs and tax from the sale price of the land, the net profits would be distributed as follows; WBL would receive 10% (being management fees), while the remaining 90% would be split among the investors in accordance with the proportions of their respective investments in Plot A. ⁹⁴ Mr Seah and Mr Tan deny that they and Mr Rithy were entitled to receive, or did receive, any management fee. ⁹⁵

38 The defendants accept that Mr Rai invested a total of US$5,394,252 in the Land, and that the total investment amount was US$17,278,800. ⁹⁶ However, the defendants contend that Mr Seah invested a total sum of US$2,856,000, ⁹⁷ Mr SCH invested a total sum of US$1,732,470, ⁹⁸ and Mr Rithy invested a total sum of US$2,922,470. ⁹⁹

39 Mr Rai contends that Mr Seah and Mr Tan owe him fiduciary duties as he reposed full trust and confidence in them at all material times. ¹⁰⁰ Mr Rai and Mr SCH had entrusted Mr Seah and Mr Tan with their contributions to the Investment Fund, ¹⁰¹ and Mr Seah and Mr Tan had complete knowledge and control over the use of the Investment Fund moneys for the partnership objective of land development in Cambodia. They knew that Mr Rai relied on what he was told by them about the use of the Investment Fund moneys because Mr Rai had no visibility over the same. ¹⁰²

40 As for WBL, Mr Rai’s pleaded case was that WBL held the Land on resulting trust for the investors. ¹⁰³ Mr Rai’s eventual submission, however, focused on WBL’s joint and several liability to account to Mr Rai as the corporate vehicle receiving dividends from Oxley Diamond and holding on to these moneys even though its beneficial interest was confined to the 10% management fee. ¹⁰⁴

41 On this basis, Mr Rai contends that all three defendants owe him a duty to account for all matters relating to the following: ¹⁰⁵

42 In addition, Mr Rai contends that:

(a) Mr Seah and Mr Tan also owe him a duty to account for all matters relating to the business and financial affairs of the joint venture between WBL and Oxley Holdings, and the business and affairs of Oxley Diamond. ¹⁰⁶

(b) WBL also owes him a duty to account for all matters relating to the use of the Land, and the distribution of profits earned from the sale of the Land. ¹⁰⁷

43 Mr Seah ¹⁰⁸ and Mr Tan ¹⁰⁹ deny owing Mr Rai any of the above duties.

44 Further or in the alternative, Mr Rai avers that Mr Tan was his agent for the use of the moneys that he had paid for the acquisition of the Land. ¹¹⁰ Under the Cambodian Investment Funds Document, Mr Tan was appointed as the agent of the “Subscribers” who had invested in Plot A, including Mr Rai, to make decisions on the use of the Investment Fund. The same arrangement applied in respect of Plot B. ¹¹¹ Mr Rai avers that Mr Tan has breached the fiduciary duties so arising by failing to provide him with any account. ¹¹²

45 On the other hand, the defendants aver that it was WBL who issued the Cambodian Investment Funds Document, and that Mr Tan signed this document on behalf of WBL. ¹¹³ Mr Tan contends that he did not act as an agent of the investors (including Mr Rai), either individually or collectively. Each investor had a contractual relationship with WBL only, based on the terms and conditions of the Bridge Investment Agreement. Mr Tan acted in his capacity as a representative and agent of WBL at all material times in respect of the project. ¹¹⁴

46 Mr Rai claims that he relied fully on Mr Seah and Mr Tan for information regarding the moneys in the Investment Fund, the purchase of the Land, the progress of the construction and the sale of the units in The Bridge. ¹¹⁵ In the second half of 2018, he asked Mr Seah for an account whenever they met. However, Mr Seah’s standard response to Mr Rai was that Mr Tan was “working on it”. ¹¹⁶ Similarly, Mr Rai contends that almost every Sunday in the second half of 2018, whenever Mr Tan was in Singapore, he would meet Mr Tan for coffee and ask him for an account of the details of the purchase of the Land, the construction costs and other expenses relating to The Bridge, the sale proceeds of The Bridge, and the profits made from the development of The Bridge. However, Mr Tan did not provide Mr Rai with any account. ¹¹⁷ Mr Rai further avers that, in December 2018 and January 2019, he telephoned Mr Rithy to ask for an account, given that Mr Tan was not forthcoming in providing information. During these telephone calls, Mr Rithy informed Mr Rai that he would check with Mr Tan and get back to him, but he did not. ¹¹⁸

47 Mr Rai’s case is that the defendants were, or must have been, fully aware of the financial details of all transactions regarding the Investment Fund, the joint venture between Oxley Holdings and WBL, the Land, the development and sale of The Bridge, and the profits made by Oxley Diamond. ¹¹⁹ Notwithstanding this, in breach of the Oral Understanding and/or their respective duties to account and despite several oral requests for an account by Mr Rai, the defendants refused, failed or neglected to provide a sufficient or proper account to him. ¹²⁰

48 Mr Rai seeks an account from both Mr Seah and Mr Tan on a wilful default basis.

49 As against Mr Tan, he argues that the evidence discloses at least three areas of wilful default: ¹²¹

50 Mr Rai contends that Mr Tan has either misrepresented such payments to him or failed to protect his interests by overpaying capital gains and withholding tax to the Cambodian tax authorities. ¹²² Further, Mr Rai seeks proof of payment to the Cambodian tax authorities for capital gains tax and withholding tax, as well as proof of the validity of the defendants’ calculations. ¹²³

51 Mr Rai argues that Mr Seah should be made to account to him on the same terms, ie, on a wilful default basis, because Mr Seah’s duties to account are concomitant with Mr Tan’s and Mr Seah’s position is completely aligned with that of Mr Tan. ¹²⁴ Alternatively, Mr Rai argues that Mr Seah should nevertheless be liable to account on a common basis for: ¹²⁵

52 Mr Rai seeks the following relief from the defendants:

53 At the end of the trial, Mr Rai additionally sought for various sums to be paid to him as interim payment.

54 The parties’ positions raise the following issues:

55 In my judgment, the facts show that Mr Rai, Mr Seah, Mr Tan and Mr SCH had an agreement to invest in land in Cambodia. Mr Rithy, a Cambodian citizen, was brought alongside for this purpose. WBL was used as a corporate vehicle to purchase the land and Mr Tan was made a 49% shareholder in order to safeguard and to manage the investment. Mr Tan’s fiduciary obligations arise from this context. Mr Seah’s fiduciary obligations, which arise out of his assumption of the responsibility to be a conduit for funds, is of a smaller scope. After a second parcel of land (Plot B) was added, the parties recognised that the enlarged site was ideal for development. Oxley Holdings became a joint venture partner with WBL to exploit this opportunity, with an agreement for the equal sharing of net profits. It is not disputed that Mr Rai is owed a sum of WBL’s earnings from this venture, proportionate to his investment.

56 Fiduciaries have a duty to account. A common account is sufficient save where there has been wilful default on the part of the fiduciary, in which event the account should be on a wilful default basis. WBL and Mr Tan have a duty to account to Mr Rai on a wilful default basis. Mr Seah has a duty to furnish a common account in respect of funds received from Mr Rai and on behalf of Mr Rai. An order for interim payment is not appropriate in this case. As for SUM 2708, Mr Tan’s application for the three declarations is dismissed.

57 I explain the reasons for these findings below.

58 It is not disputed that WBL owes Mr Rai fiduciary duties, including the duty to give an account as prayed for. WBL was expressly identified in cl 2 of the Cambodian Investment Funds Document as “the company handling these funds”, ¹³⁹ and it is not disputed that it received and held the investment moneys from the investors. In its Defence, WBL did not plead any substantive defence to Mr Rai’s claim for an account. ¹⁴⁰ In these circumstances, I find that WBL clearly owed Mr Rai a fiduciary duty to account and it is not necessary for me to deal with Mr Rai’s further argument that WBL held the Land on resulting trust for the investors. ¹⁴¹

59 Mr Seah and Mr Tan contend that only WBL owes Mr Rai fiduciary duties, and it is in this context that I deal with their defences.

60 In Tan Yok Koon v Tan Choo Suan and another and other appeals [2017] 1 SLR 654 (“Tan Yok Koon”) at [192]–[194], the Court of Appeal elucidated three principles on fiduciary obligations, as follows:

(a) The hallmark of a fiduciary obligation is that the fiduciary is to act in the interests of another person and must not exploit the relationship for his own benefit.

(b) The term used is unimportant. Equity has imposed obligations upon particular persons because they are carrying on particular activities that require the law’s regulation.

(c) Fiduciary obligations are voluntarily undertaken in the sense that they arise as a consequence of the fiduciary’s conduct. The question is not whether the fiduciary is subjectively willing to undertake those obligations, but rather whether the fiduciary “voluntarily places himself in a position where the law can objectively impute an intention on his or her part to undertake those obligations” [emphasis in original omitted].

61 The precise content of these duties is to be “deduced from the surrounding circumstances, including, and especially, any relationship between the parties” (Tan Yok Koon at [205]). A fiduciary obligation is therefore “a conclusion rather than a premise” [emphasis added], in that the label “fiduciary” is a conclusion reached only once it is determined that particular duties are owed (see Tan Yok Koon at [193].

62 In Turf Club Auto Emporium Pte Ltd and others v Yeo Boong Hua and others and another appeal [2018] 2 SLR 655 (“Turf Club Auto Emporium”), the Court of Appeal endorsed this approach at [42], and at [43], emphasised that whether the parties are in a fiduciary relationship depends upon the nature of their relationship. The present case concerns parties in a joint venture, who “may or may not share a fiduciary relationship, depending on the circumstances of their relationship” (Turf Club Auto Emporium at [43]).

63 In a case such as the present, where the parties’ rights and obligations are not fully defined in any formal agreement, the observations of the High Court of Australia in United Dominions Corporation Limited v Brian Pty Ltd (1985) 157 CLR 1 at 747 are also instructive:

64 Determining the legal query therefore requires an assessment of the following factual issues:

65 Mr Rai’s claim is premised on the Singapore investors being the driving force behind the investment. Plot A was acquired by WBL on 10 October 2011. Prior to the acquisition of Plot A, a “Land Sale and Purchase Deposit Agreement” was signed on 30 September 2011, under which WBL agreed to purchase Plot A at the agreed price and placed a deposit of US$100,000 with the seller of Plot A. ¹⁴² The intention to acquire Plot A must, therefore, have been formed by mid- to late 2011 at the very latest. Mr Rai contends that this intention was formed between him, Mr Seah and Mr SCH after they came across Plot A and saw its investment potential given its prime location in a central part of Phnom Penh. ¹⁴³ Mr Seah and Mr Tan, in contrast, contend that WBL formed the intention to purchase Plot A as one of its land investment ventures, and it was WBL which then sourced for individual investors who would invest directly with WBL. ¹⁴⁴

66 However, Mr Seah and Mr Tan have not adduced evidence of any communications between the individual investors and WBL other than the Cambodian Investment Funds Document distributed in December 2011, which recorded the contributions already made by each investor. The absence of any communications is particularly glaring given that all five investors listed in the Cambodian Investment Funds Document were from Singapore, whereas WBL was a Cambodian company investing in land in Cambodia. Furthermore, WBL was incorporated in May 2011 with a nominal capitalisation of only approximately US$5,000 (20m Cambodian riel). ¹⁴⁵ The defendants have provided no explanation for why a group of Singapore investors would have, without any prior written communication with WBL, made substantial investments of at least US$1.1m each into a newly incorporated Cambodian company with such low capitalisation and no prior track record of land investments. Mr Seah and Mr Tan’s assertion that the land investment was initiated and driven by WBL is therefore implausible.

67 On the other hand, Mr Rai’s version of events coheres with the evidence.

68 As a matter of background and context, it is undisputed that Mr Seah and Mr Tan had known Mr Rai for several years before the acquisition of Plot A. Mr Tan states that he met Mr Rai in 2005 through their mutual friends ¹⁴⁶ and introduced him to Mr Seah in 2007 or 2008. ¹⁴⁷ While this casts some doubt on Mr Rai’s contention that he had been friends with Mr Seah since 2006, it is clear that Mr Rai shared a close personal friendship with the two men before the acquisition of Plot A. Mr Rai would join their social drinking and karaoke sessions from time to time. ¹⁴⁸ Mr Seah described them as “good friends” and “brothers”, ¹⁴⁹ and Mr Tan similarly said that Mr Rai trusted him “as a friend” at the time of entering into the investment. ¹⁵⁰

69 It was also undisputed that Mr Seah and Mr Tan had a close working partnership that was known to Mr Rai. Mr Seah and Mr Tan had known each other since 2007, and they were very close friends who met regularly for drinking sessions. ¹⁵¹ When Mr Tan left the police force in 2010, Mr Seah gave him a monthly allowance of $6,000 to $8,000 to support his family for several months, possibly “even a year or more, until [he made] the first buck”. ¹⁵² Mr Seah also offered him various employment and business opportunities, and when Mr Tan decided that he could not “value-add” to Mr Seah’s existing businesses, he told Mr Seah of his plan to try to start businesses in Cambodia. ¹⁵³ Mr Tan began working in Cambodia and sourcing for business opportunities there as early as the end of 2010. ¹⁵⁴

70 It was in this context that, in 2010 and 2011, Mr Rai visited Cambodia several times on social visits, sometimes individually and sometimes together with Mr Seah and Mr SCH. ¹⁵⁵ During these trips to Cambodia, they observed that Phnom Penh was developing rapidly and they began to discuss the possibility of investing in Cambodian land together and looking at potential sites. ¹⁵⁶ Plot A was identified during one such trip in the first half of 2011, and after some consideration Mr Seah, Mr SCH and Mr Rai selected Plot A for their investment around mid-2011. ¹⁵⁷ Mr Rai was unable to produce his old passport or any other documents (such as flight tickets) showing the dates of his trips to Cambodia in 2010 and 2011, but his explanation that he did not retain copies of these documents from ten years ago ¹⁵⁸ is plausible. Mr Rai’s account is also corroborated by Mr Seah’s passport records, which show that Mr Seah visited Cambodia from 27 February to 2 March 2011, 9 to 11 September 2011, and 6 to 9 October 2011; ¹⁵⁹ and Mr LTL, who recalls that he visited Cambodia with Mr Rai, Mr Seah, Mr Tan, Mr LEN and Mr SCH on or around 6 October 2011 to view Plot A. ¹⁶⁰ The day after Mr Seah left Cambodia on 9 October 2011, WBL signed the sale and purchase agreement for Plot A on 10 October 2011.

71 Concurrently, while the prospective investors were considering potential sites for their investment, they would also have needed to consider how to go about purchasing the land they selected. Ms Vanseka Sok (“Ms Sok”), the managing partner of a law firm in Cambodia with about ten years’ experience of practice in Cambodian land law, banking and finance law and regulatory compliance, ¹⁶¹ gave evidence that Cambodian law does not permit foreign nationals to own land in Cambodia, and that a Cambodian company is entitled to own land in Cambodia only if at least 51% of its shares are held by a Cambodian national. ¹⁶² Therefore, the Singapore investors would have had to purchase Plot A through a Cambodian company with at least 51% of its shares owned by a Cambodian national. Mr Rai, ¹⁶³ Mr Seah ¹⁶⁴ and Mr LTL ¹⁶⁵ were all well aware of this requirement; indeed, Mr Seah testified that “[e]veryone” knew this before Plot A was acquired. ¹⁶⁶ WBL was therefore incorporated in Cambodia in May 2011 with Mr Rithy holding 51% of its shares and Mr Tan holding the remaining 49%.

72 At the time of its incorporation, WBL’s business objectives were general and varied, ranging from “[c]onsultant service on financial and commercial sectors” and “[h]ospital and medical clinics” to “[b]uying, [s]elling and leasing land and housings”. ¹⁶⁷ It was only later, in 2016, that WBL’s “purposes of exploitation” were narrowed to focus only on real estate activities, and specifically the development of building projects. ¹⁶⁸ This is consistent with Mr Rai’s characterisation of WBL as merely a “corporate vehicle” for the investors’ business ventures in Cambodia. ¹⁶⁹ At the time Plot A was acquired, WBL was evidently not an established or specialised land investment company. Instead, as Mr Tan conceded, WBL appears to have been incorporated as a general purpose vehicle which was on standby to invest in property and perhaps also explore other areas of business if the opportunity arose. ¹⁷⁰

73 Mr Seah and Mr Tan contend that WBL cannot have been incorporated as a mere corporate vehicle to serve the investors’ objectives because WBL had other projects apart from The Bridge. In particular, WBL was also involved in the development of “The Peak”, which was a similar type of development in the same district and which targeted a similar sector of potential buyers, at a time when The Bridge was facing reduced demand for its units. Mr Seah and Mr Tan suggest that the investors would have taken issue with this if WBL had merely been their corporate vehicle for land investment in Cambodia. ¹⁷¹ However, The Peak was launched towards the end of 2015. ¹⁷² WBL’s only other project referred to by the defendants was “The Palm”, which WBL embarked on in 2015 or 2016. ¹⁷³ These two projects were undertaken by WBL several years after the acquisition of Plot A in October 2011, and the defendants produced no proof of any other project embarked on by WBL any earlier than The Peak and The Palm. ¹⁷⁴ I am therefore unable to accept the defendants’ contention that WBL’s other projects show that it was not initially incorporated as a corporate vehicle to support the investors’ intentions of investing in land in Cambodia.

74 The Cambodian Investment Funds Document, which was distributed by Mr Tan on or around 1 December 2011, further supports Mr Rai’s account. This document stated that a total fund of US$9.52m (the sum of the contributions made by Mr Seah, Mr Rai, Mr SCH, Mr LEN, Mr TLL and Mr LTL to the acquisition of Plot A) had been “set up for investment into Cambodia market by a group of subscribers to these funds”. It went on to state that decisions on investment opportunities would be made solely by Mr Tan, the director of WBL, which was described as “the company handling these funds”. ¹⁷⁵ Mr Tan confirmed on the stand that this accurately captured the arrangement between the parties. ¹⁷⁶

75 Thereafter, Plot B was identified as another potential investment site and it was purchased in March 2012. Mr Rai states that from late 2011 onwards, he, Mr Seah and Mr SCH were monitoring the situation to see if Plot B would become available for sale, and that sometime in May 2012 Mr Tan informed the three men that Plot B had become available. ¹⁷⁷ Mr Tan disagrees, saying that Plot B was identified by Mr SCH when he went to Cambodia in 2012 ¹⁷⁸ and that he (Mr Tan), on behalf of WBL, then approached the individual investors who had invested in Plot A as well as other potential individual investors to invest in Plot B on the same terms as the investment in Plot A. ¹⁷⁹ Even on Mr Tan’s account, however, it is clear that the acquisition of Plot B was not driven by WBL, but instead by Mr SCH, one of the Singapore investors. As with Plot A, there is no documentary evidence of any communication from WBL to the investors informing them of this new investment opportunity and asking them if they were interested in subscribing to the fund. ¹⁸⁰ Both accounts are consistent with Mr Rai’s contention that the intention to acquire Plot B was formed between him, Mr Seah, and Mr SCH so that they could amalgamate it with Plot A in furtherance of their initial investment, and that WBL was once again merely the corporate vehicle for the Singapore investors to acquire the land in accordance with Cambodian legal requirements. ¹⁸¹

76 What began as a capital appreciation project later became a development project in 2013, when it was found to be more profitable to develop the Land instead of selling it. In July 2013, Oxley Holdings and WBL entered into the JVA to develop the Land into The Bridge. Mr Seah and Mr Tan claim that Mr Tan and Mr Rithy came up with the idea to develop the Land because, while the price of the Land had appreciated and a profit could be made if the Land was sold, the area surrounding the Land was developing and had the potential to become a financial centre, and so significantly more profits could be made if WBL were to develop the land instead of simply selling it. ¹⁸² According to Mr Seah and Mr Tan, Mr Tan and Mr Rithy had merely asked Mr Seah to introduce potential property developers because of his large network of business contacts. ¹⁸³ Mr Tan then informed the individual investors of the proposal that the Land be jointly developed by WBL and Oxley Holdings, and gave them the option of cashing out their investment if they did not wish to proceed. ¹⁸⁴ On the other hand, Mr Rai contends that the decision to develop the Land was made after discussions between himself, Mr Seah, Mr Tan and Mr SCH in late 2012 and early 2013. While Mr Rai left it to Mr Seah to select a property developer and Mr Tan was designated to negotiate the terms of the joint venture with Oxley Holdings’ Mr Ching, Mr Seah and Mr Tan asked for Mr Rai’s help in drafting and preparing the JVA as he was the only lawyer in the group of investors. Mr Rai then asked his brother, Mr DKR, to assist him on an informal basis as he had little experience in preparing such agreements. ¹⁸⁵

77 The evidence supports Mr Rai’s account of the JVA between Oxley Holdings and WBL being driven by the Singapore investors, and not by WBL.

78 The first draft of the JVA dated 26 April 2013 ¹⁸⁶ was prepared by Mr DKR based on what Mr Rai had told him about the intended structure of the joint venture. ¹⁸⁷ This is corroborated by Mr Rai’s e-mail to Mr Tan dated 29 May 2013 with a covering message addressed to Mr Ching, stating that he was “enclosing the draft agreement for [his] perusal” and asking Mr Ching to “hand this agreement to [his] lawyers in Singapore and ask them to liaise with [Mr DKR]”. ¹⁸⁸ Although Mr Tan claimed in his AEIC that Oxley Holdings’ lawyers had prepared the first draft of the JVA and Mr Rai was merely asked to “assist in the review” of the same, ¹⁸⁹ Mr Tan admitted during cross-examination that he had no evidence to show that Oxley Holdings’ lawyers had indeed prepared the first draft, ¹⁹⁰ and that there was no evidence of Oxley Holdings’ lawyers producing any draft on their own. ¹⁹¹ He eventually agreed that his AEIC needed to be corrected to reflect that Oxley Holdings’ lawyers were merely responding to drafts supplied to them by Mr Tan. ¹⁹² These drafts from Mr Tan were, in turn, prepared or amended by Mr DKR. This is borne out by the drafts exchanged between the parties. Following the first draft of the JVA dated 26 April 2013, a second draft of the JVA dated 17 June 2013 was prepared with the amendments tracked. ¹⁹³ This second draft was sent by Mr Vincent Lim, Oxley Holdings’ lawyer, ¹⁹⁴ to Mr Tan and Mr Ching (copying Mr Rithy) on 17 June 2013, and Mr Tan then forwarded it to Mr Rai on the same date asking if he could “help to check if this amended contract is fine”. ¹⁹⁵ Mr Rai then handed Mr DKR a hard copy of this second draft and they discussed the changes made, with Mr DKR hand-writing some further proposed amendments on the document. ¹⁹⁶ Mr Rai accepted these proposed amendments and added a further amendment. Mr DKR then amended the soft copy of the draft JVA accordingly and handed a third draft dated 28 June 2013 to Mr Rai. ¹⁹⁷ It is not disputed that the final version of the JVA signed by Oxley Holdings and WBL on 15 July 2013 is substantially similar to the third draft of the JVA prepared by Mr DKR. ¹⁹⁸

79 The fact that Mr Tan turned to Mr Rai, instead of WBL or Oxley Holdings’ lawyers, for help with the drafting of the JVA is more consistent with Mr Rai’s contention that the joint venture was driven by the Singapore investors, and not by WBL. I accept Mr Rai’s submission that if WBL or Mr Rithy was indeed the primary promoter of the investment or if the investment was driven by these Cambodian parties, one would have expected Mr Rithy to have been involved in directing lawyers to draft and negotiate the JVA. ¹⁹⁹ Further, the contents of the JVA are more consistent with the investment being driven by the Singapore investors and not the Cambodian parties. All four drafts of the JVA provided that it would be governed by Singapore law and included an arbitration clause in favour of the Singapore International Arbitration Centre. ²⁰⁰

80 The Bridge Investment Agreement is also consistent with Mr Rai’s account. Although this document was under the WBL letterhead and was addressed to each individual investor, it was dated 31 December 2013, more than five months after the JVA was entered into on 15 July 2013. While cl 2 of the Bridge Investment Agreement states that WBL entered into the JVA with Oxley Holdings “with the consent of all the subscribers of this fund”, ²⁰¹ there is again no evidence of any communications from WBL to each subscriber seeking their consent to the JVA. The purpose of the Bridge Investment Agreement, according to Mr Tan, was to document the investment with the respective shares of each investor in the project, so that if anything should happen to Mr Tan himself, they would be able to prove the extent of their investments. ²⁰² Mr Rai’s version of events differs in that he claims that the Bridge Investment Agreement was drafted on his request after he was hospitalised and “at the brink of death”, as evidence of how much he had invested so that his wife could handle his financial affairs if anything happened to him. ²⁰³ However, what is not disputed is that the Bridge Investment Agreement was created to retrospectively document each investor’s investment so that they would have written evidence of their respective contributions to the Investment Fund in the event that something befell Mr Tan or any of the investors themselves. This points to the investment arrangement having been driven from the bottom up by the Singapore investors, rather than from the top down by WBL in the same way that it would have handled any other subscription arrangement.

81 In this context, I deal with the various positions that Mr Rai has taken in respect of the Oral Understanding. In my view, it is clear that there was an oral understanding of some sort between Mr Rai, Mr Seah, Mr Tan and Mr SCH about the investment in Cambodia prior to the acquisition of Plot A in October 2011. As I have noted at [66] and [75] above, there is no contemporaneous evidence of any written communications between WBL and the individual investors around the time Plot A and Plot B were acquired, save for the Cambodian Investment Funds Document in December 2011 which merely recorded the contributions already made by the investors towards the acquisition of Plot A. The absence of any written documentation of the investors’ contributions also formed part of the impetus for the Bridge Investment Agreement in December 2013, which was intended by Mr Tan to protect the investors in the event that something befell him (see [80] above). There is also no evidence of any written agreement between the investors themselves. The lack of written documentation coheres with both the relatively informal nature of an investment venture undertaken by a group of friends, and Mr Seah’s modus operandi in his business dealings, which was to rely on oral agreements when doing business with his friends.

82 That this was Mr Seah’s modus operandi is evidenced most clearly by his relationship with Mr Tan. After Mr Tan left the police force, he and Mr Seah came up with a profit-sharing arrangement whereby Mr Seah would provide the capital, Mr Tan would perform the work on the ground, and the two men would then share the profits equally. ²⁰⁴ This profit-sharing arrangement underpinned several business ventures that Mr Seah and Mr Tan entered into in Cambodia from early 2011 onwards, such as a home appliances company known as Sear Corporation ²⁰⁵ and a company known as Kerry Worldbridge Transport Ltd. ²⁰⁶ Mr Seah said there was “nothing written” on this profit-sharing arrangement. ²⁰⁷ This was despite the fact that Mr Seah’s capital contributions were substantial: around US$1m to US$2m for Sear Corporation ²⁰⁸ and at least US$4m to US$5m for Kerry Worldbridge Transport Ltd. ²⁰⁹

83 In the case of the investment in the Land, it is undisputed that the Singapore investors (Mr Rai, Mr Seah, Mr SCH, Mr LEN, Mr TLL and Mr LTL) all contributed substantial sums of more than US$1.1m each towards the acquisition of Plot A. Mr Rai’s contribution of US$1.904m was made in three instalments beginning on 10 October 2011, the date of the sale and purchase agreement for Plot A. Absent any written arrangement for the transfers of these sums of money, the very fact of the investors’ substantial contributions towards the purchase price of Plot A indicates that there must have been some sort of prior oral understanding as to how much each investor would contribute and what each would receive in return. Mr Seah and Mr Tan, who deny the existence of the alleged Oral Understanding, ²¹⁰ provide no explanation for how this group of Singapore investors came to invest in the Land in Cambodia, and adduce no evidence to show that the investors made their respective contributions pursuant to a contractual relationship with WBL. ²¹¹ Some written evidence would be expected if the investment arrangement was indeed made based on such an arm’s-length contractual relationship between the investors and a foreign company like WBL. Instead, the dearth of written evidence is consistent with Mr Rai’s position that the investment arrangement was a business venture between trusted friends.

84 Mr Seah and Mr Tan argue that Mr Rai’s alleged Oral Understanding is “riddled with inconsistencies” and that his version of events should therefore be rejected, especially as Mr Rai relies solely on his own testimony to prove the existence of the Oral Understanding. ²¹²

85 The first inconsistency relates to when and how the Oral Understanding was formed.

(a) In Mr Rai’s pleadings, Mr Rai said the Oral Understanding was formed at a meeting which took place at the Cape Inn Hotel in or around September or early October 2011, at which Mr Rai, Mr Seah, Mr SCH and Mr Tan were present. After the Oral Understanding was formed, Mr Rai, Mr Seah and Mr Tan then met with Mr Rithy in September or early October 2011 to discuss the investment in the land in Cambodia, and Mr Rithy agreed to join Mr Rai, Mr Seah and Mr SCH as partners to the Oral Understanding which had already been formed. ²¹³ Thus, the Oral Understanding was formed at the Cape Inn Hotel meeting before Mr Rithy subsequently joined as a partner under the Oral Understanding alongside Mr Seah, Mr SCH and Mr Rai. ²¹⁴

(b) However, in Mr Rai’s AEIC, he said that the Oral Understanding was formed over two critical meetings, with the first taking place at the Cape Inn Hotel between Mr Rai, Mr Seah, Mr SCH and Mr Tan between June and September 2011, and the second taking place between Mr Rai, Mr Seah, Mr SCH and Mr Tan, either in Singapore or Cambodia. ²¹⁵

86 The second inconsistency relates to the terms of the Oral Understanding. As pleaded by Mr Rai in his Statement of Claim as it stood before the trial, the terms of the Oral Understanding were as follows: ²¹⁶

(a) The group would set up an investment fund for the purpose of land development in Cambodia. ²¹⁷

(b) The arrangement between the parties was to be a partnership for the specific objective of acquiring, developing and realising the land investment in Cambodia, using the moneys from the Investment Fund as capital. ²¹⁸

(c) Each member of the group would contribute to the Investment Fund and his share in the partnership assets and proceeds would be in accordance with the amount of their contribution to the Investment Fund. ²¹⁹

(d) Mr Rithy, Mr Seah and Mr Rai would identify the target land in Phnom Penh, Cambodia to acquire for the partnership. ²²⁰

(e) Mr Seah would be the custodian of the Investment Fund and would collect and administer all partners’ contributions to the Investment Fund for the purchase of land and arrange for the remittance of the moneys. The partners agreed that Mr Seah was the person responsible and accountable to Mr Rai and Mr SCH. ²²¹ As the custodian of the Investment Fund, it was an implied term of the Oral Understanding that Mr Seah had the following legal obligations: ²²²

(f) With the other partners’ consent, Mr Seah engaged Mr Tan to assist him in discharging his duties and obligations outlined at [86(e)] above. ²²³

(g) Mr Seah, Mr Tan and Mr Rithy were jointly entitled to a management fee of 10% of the profit (after deducting all costs and tax) and after the return of capital to each partner, this return of capital being in accordance with their share of the contribution to the Investment Fund. ²²⁴ The remaining 90% of the profit was to be divided among the partners in accordance with their respective shares of the contribution to the Investment Fund. ²²⁵

(h) Mr Seah, Mr Tan and/or Mr Rithy would, at all times, render a true and full account of the use of the moneys from the Investment Fund and the profits earned therefrom. This includes the moneys used to purchase the land; the costs and expenses of developing the land; the sale proceeds from the sale of the land development; and the profits due to each of the partners. ²²⁶ According to Mr Rai, this was an implied term in law in the Oral Understanding. ²²⁷

87 However, Mr Rai’s AEIC stated that at the first meeting at the Cape Inn Hotel between June and September 2011, Mr Tan informed Mr Seah, Mr SCH and Mr Rai that Plot A was available for purchase and that a sum of around US$9.5m would be needed to acquire it. Mr Seah, Mr SCH and Mr Rai then agreed that the investment would be locked in for a minimum period of two years and that the distribution of profits would be in proportion with each person’s respective contributions, namely, 20% from Mr Rai, 10% from Mr SCH and the balance 70% from Mr Seah and his friends. ²²⁸ The first and second defendants point out that this was a departure from Mr Rai’s pleadings where the target land was not identified at the point when the Oral Understanding was allegedly formed; there was no mention of the investment fund being US$9.5m; and there was no mention of the respective contributions of the partners. Further, in contrast to Mr Rai’s pleadings, Mr Rai’s AEIC minimised Mr Rithy’s role from someone who was tasked with identifying the target land to someone who had no role save for that of a mere front, with Plot A instead having been identified by Mr Seah, Mr Rai and Mr SCH, and Mr Rithy not contributing to the Investment Fund at all. ²²⁹

88 On 10 August 2021, the third last day of the trial, Mr Rai applied to make three categories of amendments to his Statement of Claim, most of which I allowed when the application was heard on 13 August 2021: ²³⁰

(a) amendments made in the interests of consistency with his evidence at trial that the initial intention of the parties was limited to land investment in Cambodia, and did not yet extend to land development;

(b) amendments made in the interests of consistency with the evidence of his expert witness, Ms Sok, on Cambodian law on withholding tax and capital gains tax; and

(c) amendments arising from the documents he and his solicitors received from Mr Ching on 27 July 2021 pursuant to a subpoena to produce documents. ²³¹

89 In this amended Statement of Claim, Mr Rai clarified that the Oral Understanding did not relate to land development, which was not contemplated at the time, and removed the express term of the Oral Understanding that Mr Rithy, Mr Seah and Mr Rai would identify the target land. ²³² However, as Mr Seah and Mr Tan point out, this amended Statement of Claim does not clarify whether, by the time of the Oral Understanding, Plot A had been identified, the partners had been informed that Plot A would cost US$9.5m, and the two-year lock-in period for the investment moneys had been agreed. ²³³ Further, this amended Statement of Claim still referred to Mr Rithy as a “partner” to the Oral Understanding. ²³⁴

90 These inconsistencies highlighted by Mr Seah and Mr Tan are, however, relatively minor and do not alter the essence of the Oral Understanding. The essential terms are that each investor would receive a share of the profits from the Land in proportion to his monetary contribution to the Investment Fund; that Mr Seah (assisted by Mr Tan) would be the custodian of the Investment Fund; and that Mr Seah, Mr Tan and Mr Rithy would be jointly entitled to a management fee of 10% of the net profits. Further, as Mr Rai submits, these inconsistencies are not germane to whether Mr Seah and Mr Tan owe him fiduciary obligations, and it is understandable that Mr Rai’s memory of the precise details and timing of the parties’ discussions may have faded given that almost a decade has passed since the alleged Oral Understanding was formed. ²³⁵ It would mean, nonetheless, that where Mr Rai’s case hinges on his memory alone, that aspect of his case would be less convincing. In order to assess Mr Rai’s assertions, I deal more fully with the facts pertaining to the respective roles of Mr Rithy, Mr Tan and Mr Seah.

91 An assessment of Mr Rithy’s role is appropriate because Mr Tan and Mr Seah’s defences assert that Mr Rithy was the controlling voice of WBL. This was the basis on which Mr Tan argued that he owed no fiduciary obligations to Mr Rai despite his positions as director and shareholder or WBL and as director of Oxley Diamond.

92 Mr Rai describes Mr Rithy’s role as being to “front” the purchase of the Land for the Singapore investors, ²³⁶ and points out that Mr Rithy was not assisting with the identification of the target land or contributing anything else apart from being a front. ²³⁷

93 Mr Seah and Mr Tan, on the other hand, argue that it is “incredulous” that Mr Rithy would agree to risk his credibility and strong reputation, as well as the goodwill he had built around the Worldbridge brand, by being “a mere front for a group of foreigners, in return for a three-way share in 10% of the profits”. ²³⁸ They rely on the fact that Mr Rithy was a person of great influence and reputation in Cambodia and the Worldbridge brand was established long before WBL was incorporated. ²³⁹ Mr Rai knew in 2011 that Mr Rithy was “powerful” ²⁴⁰ and “appeared to have strong political connections in Cambodia”; ²⁴¹ and Mr Ching testified that even before Oxley Holdings entered into the JVA with WBL in July 2013, he was aware that Mr Rithy had established a successful business in the logistics sector under a company bearing the Worldbridge name. ²⁴²

94 In my view, the evidence suggests that Mr Rithy was not a mere front or rubber stamp for the investment. I accept that Mr Rithy is a powerful and influential person in Cambodia and that he had made a name for himself even before any association with the Singapore investors. It is undisputed that Mr Rithy contributed US$542,470 towards the acquisition of Plot B. Mr Ching also testified that it was Mr Rithy and Mr Tan who were negotiating the JVA with Oxley Holdings on WBL’s behalf, and that when Mr Ching visited Cambodia in 2012 or 2013, it was Mr Rithy who showed him the various plots of land and shared information with him about their potential. ²⁴³ Mr Ching said that he agreed to enter into the JVA with WBL primarily because of Mr Rithy, whose successful businesses in the logistics sector Mr Ching was already aware of. ²⁴⁴ Mr Ching’s impression was that Mr Rithy played the “main role” while Mr Tan played the “supporting role”, because the Singapore investors needed a “local partner” who had extensive knowledge of Cambodia and was able to solve any problems that arose, and it was “[i]mpossible” for Mr Rithy to have just been a rubber stamp. ²⁴⁵

95 Nevertheless, the fact that Mr Rithy was not merely a front or rubber stamp does not mean that Mr Seah and Mr Tan had marginal roles. As the Singapore investors were aware, they could only purchase the Land through a Cambodian company with at least 51% of its shares held by a Cambodian national. They would have needed a local partner in Cambodia, not only to satisfy this requirement of Cambodian law, but also to contribute local knowledge of the Cambodian market. Mr Rithy was that local partner. This does not mean that Mr Seah or Mr Tan (or both) were not a driving force behind the investment arrangement, or that they did not take on the role of custodian of the Singapore investors’ funds. Mr Ching’s dealings with WBL in 2012 or 2013 may have been primarily with Mr Rithy, but Mr Rai, Mr TLL and even Mr Seah all testified that they did not deal with Mr Rithy and that Mr Rithy did not feature in their decision to invest in the Land. ²⁴⁶

96 To the contrary, both Mr Seah and Mr Tan played substantial roles, which I assess below. I deal with Mr Tan first and then Mr Seah.

97 Mr Rai submits that Mr Tan owed him fiduciary obligations in the care and management of his interests in the acquisition of the Land and the development of The Bridge. This submission was on the basis that Mr Tan was paid, either directly (through the 10% “director fees” provided for in cl 3 of the Cambodian Investment Funds Document) or indirectly (as a 49% shareholder of WBL, which was to be paid 10% of the net profit from The Bridge as management fees under cl 6 of the Bridge Investment Agreement), for his role in managing the investment and development by being on the board of directors of WBL and Oxley Diamond. Mr Tan was specifically designated this task by Mr Rai and Mr Seah because he was based in Cambodia. ²⁴⁷

98 On Mr Rai’s pleaded case, Mr Tan’s fiduciary obligations to him arose from the Oral Understanding between them. ²⁴⁸ I have found that some sort of oral understanding plainly existed between Mr Rai, Mr Seah, Mr Tan and Mr SCH regarding their investment in Cambodia prior to the acquisition of Plot A: see [81]–[90] above. While there may be inconsistencies in the details of the Oral Understanding as pleaded by Mr Rai, Mr Tan’s fiduciary obligations can nevertheless be established based on two crucial facts: first, Mr Rai and the other investors entrusted their moneys to Mr Tan to handle in the context of his role in managing the investment; and second, Mr Rai and the other investors depended on Mr Tan to act in their interests in managing the investment, including by providing them with material information relating to the investment.

99 It is not disputed that Mr Rai handed a total of US$5,394,252 in cash cheques to Mr Seah for onward transmission to Mr Tan and WBL, as his contribution towards the acquisition of Plot A and Plot B. ²⁴⁹ Based on the Bridge Investment Agreement, this constituted a 31.2% share of the investment and entitled Mr Rai to 31.2% of the net profits generated. ²⁵⁰ It is also not disputed that Mr Tan received Mr Rai’s contributions and used them in funding and managing the investment. In exchange for his work in managing the investment, Mr Tan was entitled to a share of 10% of the net profit, either directly or indirectly (as explained at [97] above). The scope of Mr Tan’s role and discretion was wide: under cl 2 of the Cambodian Investment Funds Document, decisions on investment opportunities and the amount of investment for each project were to be “solely decided” by Mr Tan. ²⁵¹

100 The evidence also supports Mr Rai’s submission that, to him and the other Singapore investors, Mr Tan was the face of WBL. He was the person entrusted with a broad mandate to manage and administer their investment in Cambodia, and relied upon to keep them informed about the same. All of the investors dealt primarily with Mr Tan, not Mr Rithy. ²⁵² This was confirmed by Mr Rai, Mr TLL, Mr LTL and even Mr Seah:

(a) Mr Rai emphasised that Mr Rithy was not in charge of the investment, and that the people he was dealing with were Mr Tan and Mr Seah. ²⁵³

(b) Mr TLL said that the investors had agreed for Mr Tan to “run” the investment, ²⁵⁴ and that as far as he was concerned, Mr Tan was the one managing this project in Cambodia. ²⁵⁵ Mr TLL also said he had “never spoken to [Mr] Rithy”. ²⁵⁶

(c) Mr LTL said that he never spoke personally with Mr Rithy and his impression was that Mr Tan, who was based in Cambodia, would be looking after the investment. ²⁵⁷ He said that it might have been Mr Seah who first told him that Mr Tan would be looking after the investment, and thereafter Mr Tan confirmed this impression. ²⁵⁸ Mr LTL also said that he “kn[e]w for a fact that Mr Tan would be … looking after the investment for the investors” and that he “ha[d] to trust him that he’s not going to … syphon away the money”. ²⁵⁹

(d) Mr Seah testified that in the only person he dealt with and communicated with in this investment was Mr Tan, and that he “[did not] care about the rest”. ²⁶⁰ It was Mr Tan who “manage[d]” the investment, ²⁶¹ and Mr Seah “never talked much to [Mr] Rithy”. ²⁶²

101 It is also telling that, when Mr Tan was asked what led to the creation of the Bridge Investment Agreement in December 2013, he explained that he wished to document the respective shares of all the investors because he was concerned that they would be unable to prove the extent of their investments in the project if anything untoward were to happen to him (see [80] above). ²⁶³ This reveals that Mr Tan viewed himself as being responsible for protecting the interests of the Singapore investors, because they had dealt primarily (if not exclusively) with him regarding their investment in Cambodia. ²⁶⁴

102 Mr Tan who was the group’s man on the ground in Cambodia in dealing with Mr Rithy and the affairs of WBL. Mr Rai, being based in Singapore and having no independent means of obtaining information relating to his investment in Cambodia while he was in Singapore, depended fully on Mr Tan to provide him with such information, and also depended on Mr Tan to properly manage the investment on a day-to-day basis and to look after his interests in doing so. ²⁶⁵ Mr Rithy himself deferred to Mr Tan where the management of WBL’s accounts was concerned. When Mr Rai first contacted Mr Rithy to ask him to send over a statement of the accounts via e-mail, Mr Rithy said he would “find out the whole story with [Mr Tan]” and that he “need[ed] to consult with [Mr Tan] for all story”. ²⁶⁶ However, Mr Rithy did not get back to Mr Rai on the accounts. ²⁶⁷

103 I therefore find that, in accepting his appointment as director of WBL and later Oxley Diamond, as well as his role as the person managing the investment in Cambodia on behalf of the Singapore investors, Mr Tan voluntarily placed himself in a position where he assumed responsibility in respect of the conduct of the investment and undertook to act in the interests of the investors, including Mr Rai. These circumstances reflect all the hallmarks of a fiduciary obligation as elucidated by the Court of Appeal in Tan Yok Koon. Equity imposed fiduciary obligations upon Mr Tan in respect of his responsibilities to Mr Rai, including a fiduciary obligation to account for the moneys Mr Rai invested and the profits of the investment.

104 In the light of my finding that Mr Tan owes fiduciary obligations, it is not necessary for me to decide Mr Rai’s contention that Mr Tan owed these duties as an agent. While an agent-principal relationship is one of the settled categories of fiduciary relationships, within which there is a strong but rebuttable presumption that fiduciary duties are owed, this does not mean that all such relationships are invariably fiduciary relationships. Equally, fiduciary duties may be owed even if the parties’ relationship falls outside of the settled categories, provided that the circumstances and the nature of the parties’ relationship justify the imposition of such duties: Turf Club Auto Emporium at [43]. The label of an agent is not itself definitive, and the question is whether a fiduciary obligation has been established on the facts of the case. In the present case, in any event, the scope of Mr Tan’s duties as an agent was not defined neatly within a contractual document but was instead a factual matter; the duties conferred on Mr Tan under cl 2 of the Cambodian Investment Funds Document, which related only to the land investment in Plot A, were evidently not exhaustive of the duties Mr Tan in fact undertook to the investors and the authority that he in fact exercised.

105 In considering whether Mr Seah undertook fiduciary obligations, it is necessary to assess the role which he voluntarily assumed. It is not disputed that he undertook to act as a conduit for the transfer of money to and from WBL for the Singapore investors. Mr Seah’s evidence is that he handled the remittances between WBL and the Singapore investors out of administrative convenience (see [31(a)] and [36] above). ²⁶⁸ At trial, Mr Seah maintained that he was “kind enough to help consolidate all these funds [from the investors] and then remit them over, and [he] had to bear all the bank charges for the remittances”. ²⁶⁹ This was corroborated by Mr TLL, who said that he “only ha[d] one reason” for passing his contribution in cash to Mr Seah – that he “want[ed] convenience” and it was easier for Mr Seah, as someone “doing business”, to remit the money on behalf of all the investors. ²⁷⁰ Similarly, Mr LTL testified that his understanding was that Mr Seah was collecting all the investors’ contributions out of administrative convenience. ²⁷¹

106 The issue in dispute, however, is whether Mr Seah undertook any duties in making decisions on dividends or payouts. Mr Rai submits that Mr Seah owed him fiduciary duties because he and Mr SCH were among the first promoters of the investment; he played a large role in engaging Mr Tan, over whom he had influence and control, to help to implement the land investment and its subsequent development into The Bridge; he brought in three additional investors and Oxley Holdings as the developer under the JVA; and he was entrusted with investment moneys from Mr Rai and issued the payout cheques to Mr Rai and his nominees. ²⁷² However, notwithstanding Mr Seah’s early role, this role did not encompass the operational details that WBL and Mr Tan took charge of. It is undisputed that Mr Seah was not involved with the day-to-day management and administration of the investment in Cambodia. Mr Rai’s assertion that Mr Seah “was in charge of the macro matters, and [Mr Tan] was implementing it at a micro level on the ground” ²⁷³ is an attempt to hold Mr Seah responsible for WBL’s and Mr Tan’s fiduciary role. Was this indicative of the mutual trust and confidence that was reposed in Mr Seah by the Singapore investors?

107 I answer this query in the negative, for the following reasons. First, no documents or written communications indicate that Mr Seah was the one in charge. In this respect, Mr Rai’s recollection that Mr Seah orally assured him that he would “take care” of the investment is not sufficient. In any event, Mr Rai’s recollection was shown to be unreliable with the passage of time. While there were many text messages between Mr Rai and Mr Tan, Mr Ching and Mr Rithy placed before the court, there was nothing that was not of a social nature with Mr Seah. Mr Seah and Mr Rai communicated through WhatsApp messages that were largely personal in nature. ²⁷⁴ There is also no evidence that Mr Seah took on a leadership or organisational role in the project after its scope was expanded from land investment to land development, beyond introducing the possible developers for The Bridge. ²⁷⁵

108 Second, Mr LTL’s evidence provides third party insight into Mr Seah’s role. Although he learnt of this investment opportunity from Mr Seah and dealt almost exclusively with Mr Seah on matters relating to the investment, the nature of his discussions with Mr Seah were just a “general kind of discussions” on what Cambodia’s situation was and who they would trust in Cambodia. ²⁷⁶ Mr LTL said he would direct any queries he had to Mr Seah first, but that he would accept it if Mr Seah did not have an answer because his impression was that “[they were] just all investing”. His evidence was that for the details he would rely on Mr Tan, whom he expected to know the answers because he was “looking after the investments for us”. ²⁷⁷ Mr Rai’s initial suggestion that Mr Seah had control over Mr LTL’s eventual exit from the group of investors was contradicted by both Mr Seah’s evidence and Mr LTL’s evidence that Mr LTL decided to exit the group of his own volition. ²⁷⁸

109 In answering the query thus, I take into consideration that Mr Seah was not the mere subscriber that he painted himself to be. If Mr Seah was indeed simply another individual investor, he would have been keen to obtain a full account of the use of his moneys and any profits made from the investment. He, like Mr Rai, would have been perturbed to learn of the various alleged acts of wilful default on the part of Mr Tan (which I deal with at [114]–[132] below). ²⁷⁹ Yet he testified that it simply “didn’t cross [his] mind” to ask Mr Tan for this information. ²⁸⁰ When Mr Rai’s counsel asked Mr Seah whether, having understood the basis on which Mr Rai was seeking an account, he was prepared to work with Mr Rai to demand a full account from Mr Tan, Mr Seah said that while the thought had crossed his mind, he would “have to wait for the conclusion of this trial to get the verdict to know whether [Mr Rai’s grievance] is a genuine grievance”. ²⁸¹

110 Mr Seah’s close relationship with Mr Tan also raises the possibility that he had influence over WBL’s affairs. Mr Tan worked for Mr Seah in various capacities and on varied ventures. Mr Seah’s modus operandi in his other business ventures with Mr Tan was that, under their profit-sharing arrangement, Mr Seah would contribute capital while Mr Tan would perform the work of managing the business or investment on the ground, with the two men sharing the profits equally (see [82] above). In many of the businesses they started together in Cambodia from early 2011 onwards, Mr Tan was appointed as a director to represent Mr Seah’s financial interests on the board. ²⁸² Mr Rai’s submission ²⁸³ was that the structure of the investment in the Land and its development into The Bridge followed the same pattern, with Mr Seah contributing capital (US$2,856,000 to the acquisition of Plot A) and Mr Tan being appointed as the executive director of WBL and later a director of Oxley Diamond as well. Implicit in this arrangement is that Mr Seah must have exercised a significant degree of influence over Mr Tan, who would act consistently with his instructions and advance his interests in these business ventures. In this respect there was a distinct difference between this venture and the others, which was the 51% shareholding held by Mr Rithy. No doubt Mr Rai’s assertion that Mr Rithy was a mere front, if proved, would have bolstered his case. However, I have held that Mr Rithy had a substantive role within WBL. At the same time, while Mr Seah aligned himself firmly with Mr Rithy and Mr Tan in this suit, there was no evidence that he was involved in the day-to-day management of WBL.

111 Notwithstanding these concerns, Mr Rai bears the burden of proof of showing that Mr Seah voluntarily assumed responsibilities appurtenant to WBL’s and Mr Tan’s, and the evidence is not sufficient for this finding to be made.

112 From the various factual findings made, it is clear that I have not agreed on every point pertaining to the last-pleaded Oral Understanding in Mr Rai’s Statement of Claim as amended after the trial. While Mr Rai, Mr Seah, Mr SCH and Mr Tan had planned to exploit the Cambodian investment opportunity together, the evidence is not sufficient to show that Mr Seah was responsible for all of Mr Tan’s actions. The 10% management fee was owed to WBL; it was not proved that Mr Seah, Mr Rithy and Mr Tan would receive this sum jointly. Counsel for Mr Seah and Mr Tan contend that Mr Rai’s whole claim should fail if I do not accept the Oral Understanding. ²⁸⁴ I do not agree. I have accepted parts of the case pleaded, and sufficient facts have been pleaded to ground the claims against WBL, Mr Tan and Mr Seah in the manner I have detailed.

113 A beneficiary is entitled to a common account as of right, without having to show any misconduct on the fiduciary’s part: see Cheong Soh Chin and others v Eng Chiet Shoong and others [2019] 4 SLR 714 (“Cheong Soh Chin (2019)”) at [72] and UVJ and others v UVH and others and another appeal [2020] 2 SLR 336 (“UVJ”) at [25]. This is because a critical aspect of the custodial fiduciary relationship is the fiduciary’s duty to keep accounts of the trust and to allow the beneficiary to inspect them as requested. This accounting procedure serves both an informative purpose of allowing the beneficiary to know the status of the fund and what transformations it has undergone, and a substantive purpose of ensuring that any personal liability a custodial fiduciary may have arising out of maladministration is ascertained and determined (Cheong Soh Chin (2019) at [73], citing Lalwani Shalini Gobind and another v Lalwani Ashok Bherumal [2017] SGHC 90 (“Lalwani”) at [16]). This duty to account is “continuous, on demand, and is not confined to being discharged only at the time of distribution of the trust assets” (Cheong Soh Chin (2019) at [75], citing Lalwani at [20]). Where the evidence shows misconduct (which includes a want of ordinary prudence) by the fiduciary, the account may be ordered on the basis of wilful default. To obtain an account on a wilful default basis, the beneficiary must allege and prove at least one act of wilful neglect or default: Cheong Soh Chin (2019) at [80] and UVJ at [25].

114 I deal first with Mr Tan because of his greater role. Three acts of wilful default are alleged against Mr Tan.

115 First, Mr Rai argues that Mr Tan made several improper deductions from the gross profits from the investment, such that he did not receive his full and proper entitlement in the Second, Third and Fourth Payouts. ²⁸⁵ In this regard, Mr Rai relied on the expert opinion of Ms Sok on Cambodian tax law. A copy of Ms Sok’s expert opinion dated 20 May 2021 was sent to Mr Seah and Mr Tan, but they did not adduce any expert opinion to refute Ms Sok’s evidence on these points. ²⁸⁶ The defendants’ Cambodian law expert, Mr Lor Sok, was only asked to give his opinion on two issues: the effectiveness of Mr Tan’s resignation from the board of directors of Oxley Diamond, and what banking regulations (if any) restricted WBL from remitting the payouts of the profits from The Bridge directly to the Singapore investors. ²⁸⁷

116 The first improper deduction relates to the capital gains tax of 20% deducted from the Second ²⁸⁸ and Third ²⁸⁹ Payouts. Mr Rai argues that this deduction was wrongful as Cambodia does not impose capital gains tax on companies. Instead, companies in Cambodia are liable to be taxed on all their profits as income, after removing all deductibles permitted by the relevant Cambodian tax laws. ²⁹⁰ This was confirmed by Ms Sok, who gave evidence that there is no existing requirement under Cambodian law for any Cambodian natural persons or companies to pay capital gains tax. ²⁹¹ Capital gains tax of 20% was introduced on 1 April 2020 but will not be implemented until 1 January 2022; and even then, it will only apply to resident taxpayers who are natural persons, and not to companies. ²⁹²

117 Mr Tan submits that Cambodian companies such as WBL nevertheless had to pay an annual income tax of 20%, which would include a tax on capital gains. ²⁹³ Here, Mr Tan appears to be referring to the 20% tax on net profits derived from all sources of income, including but not limited to capital gains from land sales, which Ms Sok said a company like WBL would be subject to instead of capital gains tax. ²⁹⁴ However, Ms Sok explained that this 20% profit tax would only be payable when there was a transaction, which refers to a transfer in ownership. As WBL remained the legal owner of the Land throughout the relevant time, there was no relevant transaction on the Land, and there would be no profit to be taxed unless there was such a transfer of ownership. ²⁹⁵ Ms Sok also clarified that WBL would only be subject to the 20% profit tax on the dividends received from Oxley Diamond if Oxley Diamond did not pay any tax on the profits before distributing these dividends to WBL. ²⁹⁶ The profit tax would therefore not apply in the present case. In any event, prior to their written submissions, Mr Seah and Mr Tan had never sought to assert that the deductions of 20% were properly made as profit tax rather than capital gains tax. ²⁹⁷ This argument appeared to be merely an afterthought.

118 Consequently, I find that the deductions of 20% from the Second and Third Payouts were improper.

119 The second improper deduction relates to the withholding tax of 15% deducted from the Second, ²⁹⁸ Third ²⁹⁹ and Fourth ³⁰⁰ Payouts, which Mr Rai argues should only have been 14%. ³⁰¹ In her expert opinion, Ms Sok confirmed that withholding tax applied at a rate of only 14%, not 15%. ³⁰²

120 In response, Mr Tan relies on Ms Sok’s evidence that liability for withholding tax is imposed on individual investors, but the company is responsible for withholding the same and paying the tax authorities. ³⁰³ However, this does not address the issue of the correct rate of tax that WBL should have withheld. It is therefore clear that the deductions of 15% from the Second, Third and Fourth Payouts were also improper.

121 It was Mr Tan who informed Mr Rai of the amount of each of his payouts through a series of WhatsApp text messages. For the Second Payout, Mr Tan informed Mr Rai of the 20% deduction for capital gains tax and 15% deduction for withholding tax in his WhatsApp messages dated 27 March 2018. ³⁰⁴ For the Third Payout, the relevant WhatsApp messages sent by Mr Tan to Mr Rai on 5 June 2018 do not contain a detailed breakdown. ³⁰⁵ For the Fourth Payout, Mr Tan specified that 15% withholding tax had been deducted. ³⁰⁶ The deductions were then effected by Mr Seah when he issued the cheques for the sums after deduction in favour of Mr Rai or his wife.

122 Mr Tan argues that he was not personally involved in calculating the deductions from the payouts and that these calculations were done by WBL’s finance team in Cambodia in accordance with the Cambodian tax authority’s requirements and regulations, and communicated to him thereafter. ³⁰⁷ This argument was reiterated in Mr Seah and Mr Tan’s written submissions, which argued that there is “no evidence or basis for [Mr Rai’s] claim that [Mr Tan] is personally responsible for the correct determination of the taxes to be paid when those taxes were paid or withheld by [WBL]”. ³⁰⁸ However, the defendants have not adduced any documentary evidence of the calculations done by WBL, ³⁰⁹ in spite of the specific discovery order made on 5 July 2021 (“the Second Discovery Order”) ordering Mr Tan to disclose his correspondence with WBL’s finance team in relation to the calculation of the payouts. ³¹⁰ During his cross-examination, Mr Tan initially claimed that the instructions were given to him by WBL’s finance team “verbal[ly] during the meeting”; ³¹¹ but when questioned further on the chronology of events, Mr Tan changed his story to say that the table of calculations was given to him in a thumb drive which had since been lost. ³¹² Mr Tan does not appear to have made any attempt to ask WBL’s finance team to provide him with these calculations again. ³¹³

123 Further, Mr Tan admitted during his cross-examination that, even after the issue of the correct rates of tax was raised by Mr Rai, Mr Tan did not do anything to verify with WBL’s finance team whether these alleged taxes had indeed been paid or ask for the tax receipts. ³¹⁴ This is especially curious because, as Ms Sok testified, there would be documentation in the form of a tax assessment raised by the Cambodian government and a tax receipt stamped by Cambodia’s General Department of Taxation as proof of payment of tax, and Cambodian tax law requires companies to retain these records for ten years. ³¹⁵ Mr Tan’s explanation was that he “never doubt[ed] in” the finance team’s calculations and Mr Rithy’s dealings with the tax department. ³¹⁶ I did not find this explanation convincing. Given the allegations of wilful default made against Mr Tan personally, it would have behoved him to seek an explanation from WBL’s finance team and procure the necessary documentation to address these allegations. However, Mr Tan made no attempt to do so. His rather flimsy excuse was that Mr Rai had “sued [him] for the suit but [he] didn’t sue [him] for doing the calculation of these taxes”. ³¹⁷

124 I therefore find that the improper deductions from Mr Rai’s payouts constituted acts of wilful default by Mr Tan.

125 The second allegation of wilful default made by Mr Rai is that Mr Tan has failed to provide an account of the net profits earned by Oxley Diamond from The Bridge and the appropriate amount which is Mr Rai’s share, even though The Bridge was completed in the first half of 2018. ³¹⁸ It was revealed in the course of the trial that Oxley Diamond had made seven dividend payments amounting to US$45m to WBL under cl 11.3(d) of the JVA, as distributions of profits generated from The Bridge. ³¹⁹ These dividend payments were made between 20 April 2018 and 22 August 2019, ³²⁰ and were made by Oxley Diamond without imposing any condition on Oxley Holdings and WBL. ³²¹ However, neither Mr Tan nor Mr Seah disclosed these dividend payments to Mr Rai, either before this suit was commenced or at any time thereafter. These seven dividend payments only came to light when Mr Ching’s subpoenaed documents were produced on 27 July 2021. ³²² Mr Rai alleges that the defendants failed, wilfully refused and/or neglected to inform him of these seven dividend payouts received by WBL from Oxley Diamond. ³²³

126 On the other hand, Mr Tan avers that Mr Rai never made any direct request to WBL for an account of the details of the purchase of the Land, the construction costs and other expenses relating to The Bridge, the sale proceeds of The Bridge and the profits made from the development of The Bridge. Further, during his coffee meetings with Mr Rai, Mr Tan had informed him that he needed to wait for the calculation of the gross rental returns due to the office and residential unit owners before the project account could be finalised. Further or in the alternative, Mr Rai had visited Cambodia frequently (at least once every two months) over the years, and had visited WBL’s office in Cambodia on numerous occasions. He therefore had access to the office and staff of WBL, yet never requested any information pertaining to the project from WBL. ³²⁴

127 The fact that seven dividend payments amounting to US$45m had been received by WBL was plainly material information which should have been disclosed and accounted for to the investors, who were – under cl 5 of the Bridge Investment Agreement – each entitled to a share of the profits proportionate to the sums they had contributed. Mr Tan agreed that the investors were the principal beneficiaries of the profits, and that (under cl 6 of the Bridge Investment Agreement) WBL’s interest in the profits was limited to management fees of 10% of the net profits after deducting all costs and taxes. ³²⁵ Mr Tan was a director of WBL and Oxley Diamond at the material time and did not deny that he was aware of these dividend payments when they were received by WBL. Yet, he insisted that he was under no obligation to inform the investors of this on behalf of WBL, ³²⁶ because of “the structure of the investment”. ³²⁷ Mr Tan’s position was that nothing in the Bridge Investment Agreement obliged him to inform the investors of this. ³²⁸ He had not received any legal advice on this position. ³²⁹ He was also unable to provide any explanation for his failure to disclose in his AEIC that he had knowledge of the US$45m dividend payments from Oxley Diamond – when asked about this, he merely said “I didn’t state it, that’s it” and “I just didn’t state it in the affidavit”. ³³⁰

128 This was plainly a further act of wilful default on the part of Mr Tan. Mr Tan’s non-disclosure of the significant sum of dividend payments received by WBL smacks of dishonesty. Even if Mr Tan acted honestly and did not appreciate that he should have informed the investors of these dividend payments, his non-disclosure indicates, at the minimum, a clear want of ordinary prudence. I therefore find that Mr Rai’s second allegation of wilful default is established against Mr Tan.

129 It is not disputed that, out of the seven dividend payments amounting to US$45m which WBL received from Oxley Diamond, only US$10m was paid out to the investors. ³³¹ Mr Rai’s third allegation of wilful default is that Mr Tan unilaterally decided to retain the remaining US$35m of the dividend payments received by WBL from Oxley Diamond, representing the profits from The Bridge, without consultation with him, and without his knowledge or consent. ³³² Mr Rai contends that Mr Tan has also failed, wilfully refused and/or neglected to declare any further payout to him. ³³³

130 Mr Tan denies this. ³³⁴ He argues that the project has not been completed yet as the defect rectification period has not yet lapsed and not all the units of The Bridge have been handed over, and contends that this sum of US$35m was retained by WBL in anticipation of the contribution it might need to make towards the guaranteed rental returns payable by Oxley Diamond for The Bridge. ³³⁵ Mr Tan relies on Mr Rai’s testimony that he was aware of the guaranteed rental returns that had been promised by Oxley Diamond to the purchasers of various units of The Bridge under the guaranteed rental returns scheme (“the GRR Scheme”), ³³⁶ with guaranteed rental returns periods of three years and ten years having been given to the purchasers of the office/residential and retail units respectively, ³³⁷ and that Oxley Diamond was required to ensure that certain payments were made in accordance with its obligations under the GRR Scheme pursuant to the JVA. ³³⁸ On this basis, Mr Tan argues that Mr Rai would have been aware that any distribution of profits to the investors would only be made when the costs associated with The Bridge and the gross rental returns had been accounted for. ³³⁹

131 However, I agree with Mr Rai’s submission ³⁴⁰ that the decision to retain the US$35m of dividend payments was not one that should have been made by WBL or Mr Tan unilaterally, without consultation with the investors. Mr Tan admitted that the dividend payments were given by Oxley Diamond to WBL and Oxley Holdings without imposing any condition that they should not be distributed to WBL’s investors and Oxley Holdings’ shareholders respectively. ³⁴¹ Mr Tan agreed that it was “fair” that, in managing the funds that rightly belonged to the investors, he should have informed them that the additional US$35m had been received by WBL but that it might need to be retained in anticipation of WBL’s liability as regards the guaranteed rental returns, and should have discussed with the investors how much should be retained by WBL for this purpose and for how long. ³⁴² This was clearly an act of wilful default on the part of Mr Tan. Mr Tan was a director of WBL at the material time and he knew that these dividend payments had been received by WBL but were being retained. Mr Tan sought to shift the blame to Mr Rithy by claiming that it was he who had made the decision for WBL to retain the US$35m. ³⁴³ This does not, however, absolve him of his own responsibilities as a director of WBL and as the person managing the investment in Cambodia on behalf of the Singapore investors.

132 Mr Tan’s account should, therefore, be on a wilful default basis.

133 Mr Seah was not in charge of the investment project as a whole, and there is no evidence that he supervised Mr Tan in his day-to-day operations work at WBL. There is no evidence that Mr Seah benefitted in any way from WBL’s 10% management fee. There is no evidence that Mr Seah had knowledge of or played any part in Mr Tan’s three acts of wilful default. His role was limited to issuing cheques for the post-deduction sums as advised by Mr Tan. Associated with this, there is therefore no evidence of any breach of any duty of good faith that could be argued to exist between Mr Rai and Mr Seah as joint venture partners. Therefore, the scope of Mr Seah’s liability to account would be restricted to the scope of his fiduciary obligation; and as there is no evidence of wilful default on his part, this account ought to be taken on a common basis, for the moneys he received from Mr Rai in 2011 and 2012 for onward transmission to WBL and the moneys he received from WBL or Mr Tan in 2015 and 2018 for onward transmission to Mr Rai. ³⁴⁴

134 While the court has discretion not to order a common account where it is oppressive to require the fiduciary to do so, or for some other good reason (Cheong Soh Chin (2019) at [75]), no such reason was suggested in the present case. I therefore order Mr Seah to furnish a common account of the moneys he received from Mr Rai in 2011 and 2012 for onward transmission to WBL, and the moneys he received from WBL or Mr Tan in 2015 and 2018 for onward transmission to Mr Rai. In giving this account, Mr Seah must, at the minimum, give proper, complete and accurate justification and documentation for his actions in relation to these moneys (Cheong Soh Chin (2019) at [76], citing Lalwani at [23]).

135 WBL was responsible for Mr Rai’s investment and there is no dispute that WBL has a duty to account. Further, WBL has not provided any account over and above whatever has been provided by Mr Tan. In so far as Mr Tan is in wilful default by reason of the three acts considered above, WBL would also be in wilful default. The account against WBL should therefore be taken on a wilful default basis.

136 In addition to the orders for accounts to be taken on a wilful default basis, Mr Rai seeks interim payment orders for Mr Tan and WBL to pay him the following specific sums after this trial: ³⁴⁵

(a) an order for Mr Tan to pay Mr Rai the sums improperly deducted from the Second, Third and Fourth Payouts, amounting to S$1,179,575 and US$28,080; ³⁴⁶

(b) an order for WBL to pay Mr Rai his share of the US$35m of dividend payments received by WBL from Oxley Diamond, and an order for Mr Tan to procure WBL to pay this amount; ³⁴⁷ and

(c) in the alternative to (b) above, if the court is not minded to order an immediate payout, an order for WBL and Mr Tan to account for the guaranteed rental returns sums due to purchasers of the units of The Bridge. ³⁴⁸

137 Mr Rai relies on the Court of Appeal’s decision in Dextra Partners Pte Ltd and another v Lavrentiadis, Lavrentios and another appeal and another matter [2021] SGCA 24 (“Dextra”), ³⁴⁹ where the High Court had directed that the relevant accounts be taken at trial instead of in separate proceedings. The Court of Appeal held that the High Court Judge had been entitled to so direct. In this case, the accounting party had accepted that it had a duty to account to the beneficiary, and its arguments were focused on demonstrating that it had discharged its duty to furnish accounts and that the moneys had been properly applied. All parties were aware that the trial would involve the taking of accounts and no prejudice was suffered as a result of the taking of the accounts at trial (Dextra at [16]–[17], [22] and [29]). At [32] of Dextra, the Court of Appeal also cited with approval the decision of the Hong Kong Court of Final Appeal (“HKCFA”) in Libertarian Investments Ltd v Thomas Alexej Hall [2014] 1 HKC 368 (“Libertarian Investments”) for the proposition that it is unnecessary for a separate account to be conducted.

138 To appreciate when it will and will not be necessary for orders for interim payment of specific sums to be made at the end of trial, instead of in separate proceedings after the taking of the account, it is necessary to examine the first instance and Hong Kong Court of Appeal judgments that preceded the HKCFA’s decision in Libertarian Investments.

(a) At first instance, in Libertarian Investment Limited v Thomas Alexej Hall [2011] HKCU 379 at [167], [170] and [172(i)], Stone J had considered it inappropriate to “jump the ‘account fence’” by ordering the payment of specific sums on the basis of the available evidence already before the court, except in relation to a sum of £5,474,247.35 which, on the defendant’s own case, represented funds which were available to return to the plaintiff and which had not been so returned. Stone J therefore ordered the defendant to pay the plaintiff the sum of £5,474,247.35 within 21 days of the date of the order.

(b) On appeal, in Libertarian Investments Limited v Thomas Alexej Hall [2012] HKCU 253 (Libertarian Investments (HKCA)), the Hong Kong Court of Appeal (“HKCA”) found that Stone J had taken into account inadmissible evidence derived from without prejudice negotiations between the parties (Libertarian Investments (HKCA) at [89]–[90]). The HKCA then considered the question of “whether it was demonstrated that there was a sum of money to which the plaintiff was undoubtedly entitled which the Judge could and should have ordered the defendant to pay on an interim basis pending the taking of the account”, on the basis that “only such sum as is obviously due to the plaintiff … should be ordered to be paid over at this stage” in the context of an interim payment [emphasis added] (Libertarian Investments (HKCA) at [97] and [100]). Thus, the HKCA varied Stone J’s interim payment order downwards to £4,823,768.51, based on the sum put forward by the defendant’s counsel as the amount admittedly due from the defendant to the plaintiff as an ‘overpayment’ received (see Libertarian Investments (HKCA) at [99] and [102], and Libertarian Investments at [47]).

(c) On the parties’ further appeal, the HKCFA “[did] not consider it necessary or desirable for an overall accounting exercise on the lines ordered by Stone J and confirmed by the [HKCA] to be undertaken”. Such an exercise was unnecessary because the parties had each put forward their own account of the funds paid into, withdrawn from and repaid into the trust account, such that the differences between them could “readily be identified and dealt with on principle” (Libertarian Investments at [130]–[131]). Accordingly, the HKCFA made an immediate award of equitable compensation in the total sum of £19,007,620.23 (before giving credit for the sum of £4,823,768.51 already paid) (Libertarian Investments at [140]). Lord Millett NPJ (concurring) similarly observed that “[a]t every stage the plaintiff can elect whether or not to seek a further account or inquiry. The amount of any unauthorised disbursement is often established by evidence at the trial, so that the plaintiff does not need an account but can ask for an award of the appropriate amount of compensation … though the court will always have the last word” (Libertarian Investments at [172]).

139 Lord Millett NPJ’s remarks in Libertarian Investments were cited with approval by the Court of Appeal in UVJ at [27] and again in Dextra at [32].

140 Thus, for an order for interim payment to be made without (or prior to) the taking of the account in separate proceedings, Mr Rai must show that the precise amounts of the improper deductions from the Second, Third and Fourth Payouts and the dividend payments from Oxley Diamond which were wrongfully retained by WBL have been established by evidence in the course of this trial. The court will only make interim payment orders in respect of sums that are undoubtedly or obviously due to Mr Rai.

141 In the present case, I do not think it appropriate to grant the interim payment orders sought by Mr Rai as the sums in question are not undoubtedly or obviously due to Mr Rai based on the evidence presently before me in this trial. In Libertarian Investments, the parties had put before the court their respective accounts of the funds paid into, withdrawn from and repaid into the trust account. The facts of the present case are very different. Although Mr Rai has put forward some calculations of the amounts improperly deducted from his payouts and his share of the dividend payments WBL received from The Bridge, there are still various uncertainties surrounding the precise amounts owed. These include:

(a) First, the respective purchase prices of Plot A and Plot B. While copies of the relevant sale and purchase agreements were tendered by Mr Seah and Mr Tan during the trial, Mr Rai’s position is that the contents of these sale and purchase agreements have not been sufficiently proven because the original documents were not produced for the court’s inspection and no presumption arises as to the genuineness of the certified copies produced under s 81(1) of the Evidence Act (Cap 97, 1997 Rev Ed) because they were not certified by any public officer in Singapore or authorised officer in Malaysia, but instead by a notary public in Cambodia. ³⁵⁰ There is thus still some uncertainty regarding the total purchase price of Plot A and Plot B, and therefore the percentage of this sum contributed by Mr Rai. Related to this is the amount of Mr Rithy’s contribution towards the purchase price of Plot A, which remains unproven to date. ³⁵¹ While Mr Seah and Mr Tan’s position is that Mr Rithy contributed US$2.38m (approximately 20% of the purchase price of Plot A), ³⁵² this is inconsistent with Mr Tan’s AEIC evidence that Mr Rithy “decided to personally invest US$2,856,000”. ³⁵³

(b) Second, whether the 10% management fee ought to have been deducted from the Second, ³⁵⁴ Third ³⁵⁵ and Fourth ³⁵⁶ Payouts and paid to WBL before or after deducting all costs and taxes. Mr Rai initially contended in his pleadings that the deduction of 10% from the gross profit breached cl 6 of the Bridge Investment Agreement because WBL’s 10% management fee should have been deducted from the net profit remaining after deducting other costs and taxes. ³⁵⁷ Mr Rai did not pursue this point on the order of deductions further in his submissions. However, the fact remains that the precise quantum of the improper deductions from Mr Rai’s payouts remains unclear.

(c) Third, the amount of the gross rental returns payable to purchasers of units of The Bridge under the GRR Scheme. The GRR Scheme expires for the residential and “SoHo” units in 2021 and for the retail units in 2027, ³⁵⁸ and the precise quantum of guaranteed rental returns that will need to be paid out to these purchasers has yet to be established with any certainty. Indeed, Mr Rai’s pleadings and submissions acknowledge that the costs of The Bridge, including the costs associated with the GRR Scheme, have yet to be ascertained. ³⁵⁹ This will affect the amount of the dividend payments from Oxley Diamond that WBL ought to have distributed to the investors, and of which Mr Rai is entitled to a 31.2% share.

In view of these uncertainties, any payment orders should be made only after the taking of the various accounts against the defendants.

142 In SUM 2708, Mr Tan seeks three declarations:

143 The requirements for declaratory relief were set out by the Court of Appeal in Karaha Bodas Co LLC v Pertamina Energy Trading Ltd and another appeal [2006] 1 SLR(R) 112 at [14] and are not in dispute. In the present case, the dispute centres upon whether the declarations sought by Mr Tan are justified by the circumstances of the case. Mr Rai submits, first, that SUM 2708 should be dismissed because there is a prima facie case that the requirements of s 6(2) of the Administration of Justice (Protection) Act 2016 (Act 19 of 2016) (“the AJPA”) have been met and that Mr Tan is guilty of the same contempt of court as WBL is in breaching the First Discovery Order; and second, that the service of the First Discovery Order on him was not improper. ³⁶⁰ On the other hand, Mr Tan submits that the conditions for the grant of declaratory relief are made out because he is not a party to the First Discovery Order obtained by Mr Rai against WBL and s 6(2) of the AJPA is inapplicable. ³⁶¹

144 I consider the three declarations sought by Mr Tan in turn.

145 The first declaration sought by Mr Tan is a declaration that the First Discovery Order does not require Mr Tan, who is a minority shareholder of WBL, to influence WBL to comply with the order. The second declaration sought is a broadly worded declaration that the First Discovery Order “cannot be enforced by an order of committal against [Mr Tan]”.

146 It is not disputed that WBL is in contempt of court as it has failed to take any steps to comply with the First Discovery Order to date. ³⁶² Under O 24 r 16(2) of the ROC, WBL is therefore prima facie liable to committal. For a prima facie case of contempt to be established against Mr Tan, s 6(2) of the AJPA must be satisfied. This provision states:

147 Two requirements must be satisfied under s 6(2) AJPA: first, Mr Tan must be a person falling within s 6(2)(a) (“the Capacity Requirement”); and second, Mr Tan must have done one of the acts or omissions specified in s 6(2)(b) (“the Conduct Requirement”).

148 Mr Tan submits that the Capacity Requirement is not satisfied because he is not an officer of WBL, and Mr Rai has not shown evidence that WBL is a corporation whose affairs are managed by its members or evidence that Mr Tan is involved in the management of WBL and is in a position to influence WBL’s conduct in relation to the commission of the contempt. ³⁶³

149 I disagree. In my view, while Mr Tan is not an “officer” of WBL (as he had resigned from his role as director of WBL even before the First Discovery Order was made), the second limb of s 6(2)(a)(i) and s 6(2)(a)(ii) of the AJPA are prima facie satisfied.

150  First, Mr Tan is a 49% shareholder of WBL. The holder of the remaining 51% of WBL’s shares is Mr Rithy, and WBL’s day-to-day affairs were managed by Mr Tan and Mr Rithy. Mr Tan’s attempt to characterise himself as a mere minority shareholder of WBL is disingenuous given that he owned 49% of WBL’s shares – the maximum shareholding he could own in order for WBL to be able, under Cambodian law, to acquire and own land in Cambodia. Mr Tan is therefore “a member of a corporation whose affairs are managed by its members” within the meaning of the second limb of s 6(2)(a)(i) of the AJPA. ³⁶⁴

151 Second, even if WBL is not a company whose affairs are managed by its members, Mr Tan is an individual involved in the management of WBL and in a position to influence its conduct in relation to its breach of the First Discovery Order, under s 6(2)(a)(ii) of the AJPA. ³⁶⁵ Mr Tan submits that it is “beyond doubt” that he was not managing the affairs of WBL after his resignation as director, relying solely on Mr Ching’s corroborative evidence that Mr Tan was no longer involved in the JVA after his resignation and that he communicated only with Mr Rithy. ³⁶⁶ However, on the contrary, the evidence indicates that notwithstanding his resignation, Mr Tan has continued to be involved in the management of WBL and remains in a position to influence WBL’s conduct in relation to its compliance with its discovery obligations.

152 In this regard, a key issue is the significance of Mr Tan’s resignation from his role of director of WBL on 19 August 2020. The reason given by Mr Tan for his resignation was that his travelling patterns had changed as a result of the COVID-19 pandemic and he was no longer able to manage the operations of WBL on the ground in Cambodia or serve as one of the two signatories signing cheques and other “approvals” on behalf of WBL. ³⁶⁷ However, Mr Tan was unable to explain why he could not have appointed Mr Chin Keng Wai (“Mr Chin”), who had been the project manager of The Bridge since Oxley Diamond was incorporated in 2013, ³⁶⁸ as another director or as an alternate signatory instead of having Mr Chin replace him as the second director of WBL, apart from claiming that he did not know that these options were open to him at the time. ³⁶⁹ Mr Tan then said he would still have needed to resign because his work with WBL was “more than signing cheques” and required him to be involved in “active operation on the ground”. ³⁷⁰ However, when questioned further on this, Mr Tan admitted that his supervisory role in Cambodia could still have been performed by Mr Chin ³⁷¹ and that the role of taking care of the project and ensuring its smooth completion could be played by Mr Rithy. ³⁷² Mr Tan’s testimony at trial therefore shed no light on his true reasons for resigning from his role as a director of WBL. While I would not go so far as to conclude that (as Mr Rai submitted) Mr Tan’s resignation was “an artifice”, “purely tactical in nature”, or “contrived as part of the [d]efendants’ scheme to deny [Mr] Rai information and documents”, ³⁷³ the circumstances do suggest that Mr Tan’s resignation did not signify a true relinquishment of his involvement and influence within WBL.

153 I also accept Mr Rai’s submission, which the defendants have not challenged, that several of the 16 documents disclosed by WBL in its list of documents dated 6 January 2021 were identical to the documents Mr Tan had disclosed in his list of documents dated 5 April 2019, including the redactions made to these documents. ³⁷⁴ Mr Rai also points out that, in Lee & Lee’s letter to his solicitors dated 4 February 2021, Lee & Lee stated that some of the redactions made to certain documents that WBL had disclosed “were also made by [Mr Tan] in the documents disclosed by him” in 2019, yet Mr Rai “had not taken issue with the redactions”. ³⁷⁵ Lee & Lee also stated that Mr Tan had only disclosed copies of certain documents in WBL’s list of documents in his own lists of documents in 2019 and 2020, yet Mr Rai did not dispute such disclosures. ³⁷⁶ WBL was not party to this suit in April and August 2019 when Mr Tan’s first two lists of documents were produced; it was only added as the third defendant in this suit in December 2019 (see [25] above). The irresistible inferences to be drawn are that Mr Tan informed and instructed WBL on his own position as regards discovery, including providing copies of his own documents to WBL to disclose to discharge its discovery obligations in this suit, and that Mr Tan was able to influence WBL’s conduct in relation to its discovery obligations even after he had resigned from the role of director of WBL on 19 August 2020. ³⁷⁷

154 This inference is further supported by Mr Tan’s ability to procure certified true copies of the sale and purchase agreements for Plot A and Plot B, and English translations of the same, from WBL in the middle of the trial. WBL had previously been ordered to disclose these sale and purchase agreements in the First Discovery Order made on 16 April 2021. ³⁷⁸ However, these documents were not forthcoming. It was only after counsel for the defendants wrote to WBL on behalf of Mr Tan on 11 July 2021 requesting copies of the sale and purchase agreements for Plot A and Plot B ³⁷⁹ that copies of these sale and purchase agreements were disclosed to Mr Rai’s counsel in July 2021, and the notarised certified true copies of these sale and purchase agreements were produced only on 10 August 2021. ³⁸⁰ When he was cross-examined on this, Mr Tan admitted that he “did speak to [Mr] Rithy” to persuade him to provide these documents. ³⁸¹

155 The above circumstances are also relevant to the Conduct Requirement. Mr Rai argues that s 6(2)(b)(iii) of the AJPA is satisfied because Mr Tan knew or ought reasonably to have known that WBL would be or was in breach of the First Discovery Order, yet failed to take all reasonable steps to prevent WBL from committing this breach. ³⁸² Mr Tan has made no attempt to argue that the Conduct Requirement is not satisfied.

156 I find that the Conduct Requirement is prima facie satisfied in the present case. Counsel for Mr Seah and Mr Tan attended the hearing on 16 April 2021, at which the First Discovery Order was made, on watching brief. ³⁸³ It is not disputed that the First Discovery Order and the penal notice were served on Mr Tan at his registered home address on 26 May 2021. ³⁸⁴ Mr Tan admitted that he called Mr Rithy after receiving these documents, but did not ask Mr Rithy to procure WBL’s compliance with the First Discovery Order. ³⁸⁵ In particular, he did not ask Mr Rithy to supply any of the information specified in the First Discovery Order. ³⁸⁶ Mr Tan therefore knew about the discovery order that had been made against WBL but failed to take any steps to prevent WBL from breaching its discovery obligations by declining to supply the documents sought.

157 For the above reasons, the fact that Mr Tan is a minority shareholder of WBL does not mean that he cannot be held liable for failing to influence WBL to comply with the First Discovery Order. I therefore decline to grant the first declaration.

158 As there is a prima facie case of contempt against Mr Tan based on s 6(2) of the AJPA, leave may be granted to Mr Rai to commence committal proceedings against Mr Tan under O 52 r 2(1) of the ROC. There is thus no basis for granting the second declaration that the First Discovery Order cannot be enforced by an order of committal against Mr Tan, and I decline to grant the second declaration.

159 The third declaration sought by Mr Tan is a declaration that the service of the First Discovery Order and penal notice on Mr Tan on 26 May 2021 was improper.

160 Mr Tan submits that the First Discovery Order and the penal notice were improperly served on him because they were served out of time. Mr Tan argues that O 45 r 7(3) of the ROC applies because the First Discovery Order was made only against WBL and there was no order requiring Mr Tan to produce the relevant documents. ³⁸⁷ Order 45 r 7(3)(b) of the ROC required these documents to have been served on him “before the expiration of the time within which the body [corporate] was required to do the act”. As WBL was required to comply with the First Discovery Order within seven days from the date of the First Discovery Order (that is, within seven days from 16 April 2021), but these documents were only served on Mr Tan on 26 May 2021, the time stipulated in the First Discovery Order for WBL to comply with the same had expired. ³⁸⁸ Further, Mr Tan submits that O 45 r 7(3)(a) was not complied with because he was no longer an “officer” of WBL at the time these documents were served on him. ³⁸⁹

161 The First Discovery Order contained the following orders: ³⁹⁰

(a) an order for WBL to file and serve on Mr Rai a supplemental list of documents and an affidavit verifying that list of documents, within seven days from the date of the order;

(b) an order for WBL to produce copies of those documents for inspection by Mr Rai and/or Mr Rai’s solicitors and to permit them to make copies of those documents, within 14 days from the date of the order; and

(c) if any of the documents had been but were no longer in WBL’s possession, custody or power, an order for WBL to file and serve an affidavit stating when the documents were parted with and what had become of them, within seven days from the date of the order.

162 The penal notice that was served on Mr Tan together with a copy of the First Discovery Order stated as follows: ³⁹¹

163 It is clear from the wording of the First Discovery Order that the orders therein were made against WBL, and not against Mr Tan. They were therefore orders “requiring a body corporate to do or abstain from doing an act” [emphasis added] under O 45 r 7(3) of the ROC, and cannot be enforced under O 45 rr 5(1)(ii) or 5(1)(iii) unless two conditions are satisfied:

164 When the First Discovery Order and penal notice were served personally on Mr Tan on 26 May 2021, he was no longer an “officer” of WBL within the meaning of O 45 r 7(3)(a) as he had resigned as director, even though (as I have found at [148]–[154] above) the more broadly worded Capacity Requirement in s 6(2)(a) of the AJPA is satisfied. Mr Rai did not provide any evidence that a copy of the First Discovery Order was also served personally on Mr Rithy, as the only remaining director of WBL. Further, under O 45 r 7(3)(b), where a specified time is limited for doing the act required, the order must be served within that time, or else a supplemental order extending the time fixed must be obtained: Singapore Civil Procedure 2021 (Cavinder Bull SC gen ed) (Sweet & Maxwell 2021) at para 45/7/4. In the present case, service on Mr Tan took place more than three weeks after the expiration of the time within which WBL was required to comply with the orders contained within the First Discovery Order. The penal notice did not provide for any further period of time after 26 May 2021 for Mr Tan to procure WBL’s compliance with the First Discovery Order. In a letter dated 28 May 2021 from Mr Rai’s counsel to Mr Tan’s counsel, Mr Tan was asked to procure WBL’s full compliance with the First Discovery Order by 2 June 2021, this being seven days from the date of service of the First Discovery Order and penal notice on him. ³⁹² However, this does not alter the fact that the First Discovery Order was not served on Mr Tan before the expiration of the time within which WBL was required to comply with the First Discovery Order, as required by O 45 r 7(3)(b).

165 The consequence of this non-compliance with O 45 r 7(3) is that the First Discovery Order cannot be enforced by an order of committal against “any director or other officer” of WBL, under O 45 r 5(1)(ii), and the service of the First Discovery Order and penal notice on Mr Tan on 26 May 2021 was improper to that extent. However, service on Mr Tan was not improper for the purposes of any committal proceedings against Mr Tan himself under O 52. What must be personally served on the person sought to be committed under O 52 is the ex parte originating summons or summons for an order of committal, the statement and supporting affidavit under O 52 r 2(2), the order granting leave to commence committal proceedings and the application for the order of committal: O 52 r 3(4). The ROC does not expressly require an O 52 r 2(2) statement to set out whether and how the relevant order of court was served on the person against whom an order of committal is sought for breach of that order: BMP v BMQ and another appeal [2014] 1 SLR 1140 (“BMP”) at [28]. While the court at the leave stage must be satisfied prima facie that the court order which is the subject of the committal proceedings has been duly served on the respondent or that the respondent has received notice of the court order, and evidence of service must be included in the affidavit supporting the leave application (see BMP at [31]), there is no requirement that the order must have been served on an “officer” of the body corporate concerned, or that service must have been effected before the expiration of the time within which WBL was required to comply with the First Discovery Order (as is required under O 45 r 7(3)).

166 In view of the above, I do not think the circumstances of the case justify a declaration that the service of the First Discovery Order and penal notice on Mr Tan on 26 May 2021 were “improper”, and I decline to grant this declaration.

167 In conclusion, I order an account to be taken on a wilful default basis in respect of Mr Tan and WBL. I order a common account to be taken as against Mr Seah in respect of funds received from Mr Rai and on behalf of Mr Rai. I dismiss SUM 2708. I shall hear counsel on costs and any consequential directions required.