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Jonathan Cho

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Jonathan believes that the provision of legal services is essentially a problem-solving process. His aim with all his clients is therefore not only to provide legal advice and representation, but to help each client achieve a solution that best meets all their needs, holistically. In doing so, he also holds fast to his belief that everyone should have access to justice.

With his training and experience in Dispute Resolution and Litigation, Jonathan is competent with handling a diverse range of cases both civil and criminal. Although he takes a special interest in criminal defence/litigation, Jonathan has enjoyed a full spectrum of legal work in civil/commercial litigation and this background gives him a commercial-mindedness to the solutions/advice he provides to clients. He is also familiar with trial and appellate processes, as well as various alternative dispute resolution processes.

As part of his mission to make justice accessible to all, Jonathan contributes and serves the wider society by providing pro bono legal services to accused persons in need under the Criminal Legal Aid Scheme (“CLAS”), and also invests time in mentoring the young both within the profession and in his local communities.

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Lim Joo Toon

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JOO TOON LLC is a Singapore law corporation (UEN 201206510N), registered with the Law Society of Singapore. It is led by Mr Lim Joo Toon. 

Mr Lim graduated from National University of Singapore with LLB (Hons) (Singapore). Upon graduation, he served as Assistant Registrar, Supreme Court, as Senior Assistant Registrar and District Judge, Subordinate Courts and as State Counsel, Attorney- General’s Chambers for a period of 10 years.

Mr Lim was awarded a Legal Service Overseas Merit scholarship. He obtained Masters in Law from University College London (UCL), the University of London, specializing in commercial and corporate law and attaining a Mark of Merit.

He is an accredited arbitrator with substantial experience both as arbitrator and as counsel. He is on the Panel of Arbitrators under the Law Society Arbitration Scheme (LSAS). He has served as an Arbitrator on the Regional Panel of Arbitrators, Singapore International Arbitration Centre (SIAC). He passed the Written Examination for the Fellowship Assessment Course 2006 conducted by the Singapore Institute of Arbitrators. He is a trained mediator of LEADR (Lawyers Engaged in Dispute Resolution) Australia. 

He served in a committee of the Singapore Law Society. He served in academic teaching positions with the National University of Singapore, Singapore Institute of Management and the Board of Legal Education.

Mr Lim has vast experience in dispute resolution in almost all areas of the law and at all levels of the Court system. These include Company Law, Joint Venture, Commercial Litigation, Defamation, Copyright and Trademark, Probate and Estate Disputes, Employment Dispute, Construction Dispute, Property Litigation and Tax Disputes.

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The following are some of matters in which Mr Lim Joo Toon has acted:

  1. Arbitration & Mediation
  2. Commercial Law Disputes & Financial Dispute Resolution
  3. Company Law Disputes 
  4. Land & Real Estate Disputes
  5. Probate, Trust, Wills & Estate Disputes
  6. Other Disputes

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Consumer Rights in Singapore

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Got conned in Singapore? Fear not. Consumers are protected under the Consumer Protection (Fair Trading) Act. This act covers consumer rights under Singapore’s lemon laws, among others.

As for the course of action, local consumers can seek help from the Consumers Association of Singapore (CASE), while tourists can seek help from the Singapore Tourism Board. These non-legal options are less of a hassle and should be pursued first.

If the above are not effective, consumers may lodge a claim at the Small Claims Tribunals. Most claims qualify to be under the jurisdiction of the Small Claims Tribunals, provided that the claim is for an amount less than $10,000. Claims must be lodged within one year of  the action that resulted in the claim. Read our other article on how to make a claim at the Small Claims Tribunals.

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Low Chun Yee

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Chun Yee joined Kalidass Law Corporation in 2018 as an Associate Director. He is well-versed in criminal litigation, having been a Deputy Public Prosecutor in the Criminal Justice Division of the Attorney General’s Chambers for 5 years. He had then joined private practice in a reputable mid-sized local firm, gaining valuable experience in civil litigation and arbitration.

A fierce advocate, Chun Yee’s experience as a criminal litigator includes numerous trials in both the High Court and State Courts, including capital cases for murder and drug offences. He has also honed his oral and written advocacy skills at the appellate level with various Magistrate’s Appeals.

Chun Yee is also a firm believer that justice should be accessible to all accused persons, regardless of their background. As such, he is an active CLAS (Criminal Legal Aid Scheme) volunteer, a scheme which provides criminal legal assistance to the poor and needy, and is assigned counsel for the Legal Assistance Scheme for Capital Offences.

Numerous judgments have been rendered on Chun Yee’s cases. Some of the reported judgments include:

  • Tongbao (Singapore) Shipping Pte Ltd and another v Woon Swee Huat and others [2018] SGHC 165
  • PP v Lim See Yong [2017] SGDC 135
  • PP v Neo Keng Hua [2017] SGMC 13
  • PP v Chan Lie Sian [2017] SGHC 205
  • PP v Minjoot Sabestian Bernett [2017] SGDC 43
  • PP v Ang Zhu Ci Joshua [2016] SGMC 2
  • PP v Toh Eng Puey [2016] SGDC 99
  • PP v Fajri Bin Buang [2016] SGDC 148
  • PP v Balahrisknan s/o Kuppusamy [2016] SGDC 76
  • PP v Sivarajan s/o Darmarajan [2016] SGDC 323
  • PP v Ho Lian Wah [2016] SGDC 143
  • PP v Selvakumaran s/o Singaram [2015] SGDC 78
  • PP v Omar Bin Osman [2015] SGDC 67
  • PP v Adith s/o Sarvotham [2014] 3 SLR 649
  • PP v Brendan Jeremiah Aw [2014] SGDC 384
  • PP v Mohamed Fadzil Bin Hashim [2014] SGDC 68
  • PP v Mohd Hamdan Bin Ahmad [2014] SGDC 139
  • PP v Joel Jonathan Selvanathan [2013] SGDC 257

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Breach of Contract in Singapore

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What is a “Breach of Contract”?

Assuming that a valid and legally binding contract exists, a breach of contract occurs when a contracting party (the “defaulting party”) fails to perform, without lawful excuse, a contractual obligation.

Failure to perform takes several forms:

  • Late performance;
  • Non-performance (i.e. when a defaulting party refuses to perform what he has promised to do);
  • Defective performance (i.e. the defaulting party fails to fulfil a promised objective or end-state)
  • Doing the very thing the defaulting party has promised not to do; and
  • Preventing oneself from fulfilling a contractual obligation.

There is no need to show that the defaulting party intentionally failed to perform. Unless the contract provides otherwise, there is also no need to show that the defaulting party failed to exercise reasonable precaution in performing the promise.

However, not every failure to perform constitutes “breach of contract”. Two other elements must be satisfied for a failure to perform to constitute “breach of contract”:

1. The defaulting party must have failed to perform a contractual obligation

In the vast majority of instances, a contract obligation is written down in the contract documentation, and it is known as an express term.

Before determining if there has been breach of contract, one must first know what the express term required the defaulting party to do or not do. Through contractual interpretation, the court ascertains the meaning of the express term as intended by the contracting parties. Once the meaning of the express term is ascertained, the issue of whether there has been a failure to perform the obligation can then be determined based on the evidence available.

Apart from express terms, there are three other sources of contractual obligations: statute (e.g. Sale of Goods Act), widespread trade usage, and Court-implied terms. Court-implied terms refer to terms that are “read” into the contract by the Court to fill a gap in the contract. It is not easy to have a term implied into the contract; generally speaking, a term may only be implied if the contracting parties did not contemplate the gap in the contract and the term is necessary for the contract to work. You can read more about implied terms here.

2. There must be no lawful excuse for the defaulting party’s failure to perform

Such excuse must be provided for either in the contract, or by law.

For example, a contract for supply of goods may contain a price adjustment clause allowing the supplier to make reasonable adjustments to the contract price if he experiences difficulty obtaining raw material for his goods.

An excuse based on social or commercial considerations falling short of a lawful excuse will not absolve a defaulting party from breach of contract. Thus, using the same example of a contract for supply of goods, the mere fact that another buyer is willing to pay a higher price is not lawful excuse for the supplier’s refusal to supply.

What are the Remedies Available for Breach of Contract?

The law provides an innocent party with four remedies for breach of contract:

  1. The principal remedy for breach of contract is monetary compensation, also known as damages in legal parlance. By default, every breach of contract entitles the innocent party to damages for losses suffered by the innocent party stemming from the breach of contract. The innocent party must, however, take reasonable steps to minimise his losses.
  2. A breach of contract may entitle the innocent party to terminate the contract. If the innocent party chooses to terminate the contract, the contracting parties are discharged from all contractual obligations as at the point of termination onwards. Unlike damages, not every breach of contract entitles the innocent party to terminate the contract. Whether or not the right of termination is available depends on how the term is classified in law.
  3. An order of specific performance may be available to compel the defaulting party to perform his contractual obligation. However, specific performance is only awarded in exceptional cases, typically where damages are an inadequate remedy should the contractual obligation not be performed. For example, specific performance is more likely to be available in contracts involving the delivery of unique property, such as land. We have more information on specific performance in another article.
  4. A prohibitory injunction may be available to ensure that the defaulting party honours his promise not to do something. Like specific performance, prohibitory injunctions are only awarded in exceptional cases, typically where damages are inadequate to remedy the breach of contract. Read more about the different types of injunctions in our other article.

Where can I go to resolve a breach of contract dispute?

There are several avenues for resolution of a breach of contract dispute:

  • If a more formal mode of dispute resolution is preferred, Court proceedings or arbitration may be considered. Because of the level of formality involved, these tend to be more expensive and lengthy.
  • The Small Claims Tribunals, dealing with claims up to $10,000 (or $20,000 with the parties’ consent), is a relatively quicker, cheaper and less formal forum for dispute resolution. Parties may not be represented by lawyers at the Small Claims Tribunals.
  • For employees who fall under the Employment Act, the Ministry of Manpower is a possible choice to resolve disputes for employment matters.
  • An alternative mode of dispute resolution is private mediation. Unlike the aforementioned modes of dispute resolution, private mediation is less adversarial in nature because it focuses on arriving at an outcome that is most favourable to the interests of all parties concerned.

If there are any doubts, you should consult a lawyer for specific advice on (1) the likelihood of success of your claim for breach of contract, and (2) the most ideal way of resolving the dispute.

Contributed by Timon Chiong Kai Xiang, LLB (NUS)

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G.Dinagaran

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Mr. G.Dinagaran,  is a Senior Lawyer with decades of experience  in all areas of the law and is a wealth of knowledge. He has appeared in numerous headlines in local news. 

Mr. G. Dinagaran heads Prestige Legal LLP which handles Civil claims, Criminal representations, Family matters (Divorce / PPO/ Adoption) and Corporate law. 

 

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Specific Performance: Obtaining this Equitable Remedy in Singapore

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What is Specific Performance?

Specific performance is a court order requiring a party in breach (or threatening to be in breach) of a binding contract to perform their obligations under the contract. It is a special remedy that is awarded by the court when no other remedy (such as damages) will adequately compensate the other party.

Specific performance is an equitable remedy, which means that it is awarded at the discretion of the court. Parties are not automatically entitled to it.

Specific performance vs injunction

An injunction is a court order to restrain a party from doing a specific act.

Although a party can potentially seek both remedies in the same case, an injunction will not be granted if it would have the same effect as granting specific performance and specific performance would not be a suitable remedy for that case. This is because, depending on the situation, an order for specific performance can have the same effect as an order for an injunction.

An example of this is Page One Records, Ltd v Britton which involved a contract to exclusively hire the plaintiff record company as the defendant band’s manager. But after the relationship between the company and the band soured, the band tried to get a replacement manager. The company then applied for an injunction to prevent the band from hiring a new manager.

The court denied the injunction as it had the same effect as granting an order of specific performance to require the band to continue hiring the company as their manager when the band had lost confidence in it (see the section on contracts for personal service below for more information).

When is Specific Performance Awarded?

The most common reason courts grant specific performance is because the subject of the contract is unique and damages cannot adequately compensate for it.

Therefore, specific performance is most commonly granted in situations concerning the sale of land (such as property), as land is considered unique.

For example, each property has its own unique address, location and views. Even if the seller of a property is more than happy to compensate the buyer for the property’s purchase price in order to call off the deal, the buyer cannot simply use this amount of money to buy a different property with the exact same address, location and/or views.

The buyer would therefore have a high chance (although this is not guaranteed) of getting an order of specific performance to compel the seller to continue with the property sale.

Obtaining specific performance in contracts for the provision of goods and services

There are express statutory provisions that allow the court to exercise its discretion to grant specific performance for contracts for the provision of goods and services.

For example, section 52(1) of the Sale of Goods Act provides for specific performance as a remedy for a breach of contract to deliver “specific” or “ascertained” goods. According to the Sale of Goods Act, “specific goods” are goods that have been identified and agreed on at the time a contract of sale is made.

The court has also clarified that the goods in question must also be in existence at the time of the contract for specific performance to be available, even if those goods are not yet within the seller’s ownership.

In addition, for cases of suppliers of goods or services who have engaged in unfair practices, the court is also empowered by section 7(4) of the Consumer Protection Fair Trading Act to grant specific performance against these suppliers if the court views specific performance as an appropriate remedy for the consumer.

When will Specific Performance be Unlikely to be Awarded?

1. When damages are adequate to compensate the non-breaching party 

A court is unlikely to award specific performance where damages would be sufficient to compensate the non-breaching party. Damages are an award of money to compensate the innocent party. Its purpose is to place the non-breaching party in the position they would have been in had the contract been performed.

Whether the damages are sufficient depends on the specific details of the case. However, where there are provisions in the contract for liquidated damages (pre-determined compensation amounts in the event of a breach), this may constitute evidence that the parties regarded damages as adequate and if so, the court is unlikely to grant specific performance.

It is important to note that a claim relating to under-compensation alone may not be sufficient grounds for an order of specific performance.

In the case of Lee Chee Wei v Tan Hor Peow Victor, the claimant wanted specific performance to enforce a sale of his shares in a company at the agreed price due to the subsequent fall in the value of his shares. The courts rejected this as a reason to grant specific performance as the amount of damages he received could be adjusted to take this into account.

2. Severe hardship for the party who has to perform the contract

The court will also not order specific performance where it would result in severe hardship to the person who has to perform the contract. This applies even in property sales cases.

In the case of EC Investment, specific performance was not granted to order the seller to sell the property to the buyer at the agreed contract price. Such an order was found to be unjust as the sale would be at an undervalue, which would cause undue financial hardship to not only the seller but also to a third-party involved (the second mortgagee of the property).

3. Where constant supervision would be required by the courts 

Specific performance is generally not granted in contracts where subsequent supervision from the courts is required to ensure that the contract is performed satisfactorily by the party being compelled to perform the contract.

For instance, the court could compel a store owner to continue operating his store, but they cannot enforce the manner in which he conducts business e.g. whether he keeps it stocked or provides competent staff to ensure it is run up to standard.

4. Contracts for personal service

Specific performance is generally not granted in contracts involving personal service. These contracts, such as employment contracts, involve the maintenance of a relationship of trust between the contracting parties, which is difficult to do if one party is unwilling to.

However, the Singapore court has not ruled out specific performance entirely for service contracts, notably in the case of appointment contracts. The Court of Appeal has stated that “[w]here a person has a right by contract to appoint a director, such a right may be enforced by an order of specific performance.”

5. Invalid contract 

If one party was induced to enter into a contract by mistake, misrepresentation, undue influence or the like, specific performance cannot be upheld as the contract will have no legal effect. Specific performance will also not be granted where performing the contract involves carrying out an illegal activity.

Non-Compliance with an Order of Specific Performance

Failure to comply with a court’s order for specific performance is a serious offence. A defendant who fails to comply with a specific performance order can be found guilty of contempt of court and can be either fined up to $100,000 and/or jailed for up to 3 years.

In most cases, an award of damages will be sufficient to compensate the party seeking specific performance. Specific performance is not readily granted by the court and is usually reserved for exceptional cases.

If you are the aggrieved party in a contractual dispute, you should consult a lawyer for specific advice on what might be the most ideal remedy (or remedies) in your case.

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Peggy Sarah Yee May Kuen

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Peggy Yee is the Founding Director of PYLegal LLC. She was called to the Singapore Bar in 1988 and her areas of specialization are Family & Matrimonial Disputes, Property & Conveyancing, Probate & Wills as well as Criminal & Employment matters. Having been in the legal practice for more than 30 years, Peggy is highly experienced and particularly interested and invested in Family Law and Estate matters. She considers it a privilege to be entrusted with a client’s personal family matters.

In respect of Conveyancing matters, Peggy has handled all transactions relating to land, including sales, purchases and mortgages. She has acted for housing developers in projects and is well-versed in the procedures and legal aspects relating to land development, conversion amalgamation and subdivision of title, and the sale/ tenancy of commercial and residential properties. She specializes in offering practical options for seemingly complicated transactions. 

Aside from her varied legal experience, Peggy is:

  1. An accredited Mediator of the Singapore Mediation Centre
  2. An accredited Family Mediator of the Family Justice Court
  3. President of the Catholic Lawyers Guild
  4. Vice-President of the Disabled People’s Association of Singapore
  5. Vice Chair of the Canossaville Children & Community Services
  6. Board member of Caritas Singapore
  7. Board member of Canossa Foundation
  8. Member of the Charities Council
  9. A member of the Management Committee of the Canossian Schools
  10. A Commisioner for Oaths and a Notary Public

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Keith Hsu

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Keith has a practice that focuses on corporate and commercial disputes and transactions. Together with his strong business and finance background, he is highly valued by clients in finding commercially workable solutions to both contentious and non-contentious matters.

Keith is a strong advocate who as a litigator focuses on civil litigation work that are of a commercial nature. He represents clients both big and small and regularly argues before the Supreme Court and State Courts. He has also argued before tribunals such as the Strata Title Board. His cases regularly involve disputes between shareholders, contractual claims, claims in conspiracy, other tortious claims, and disputes that involve claims in equity and trust. As Keith has experience handling a wide variety of commercial disputes, he is often instructed to undertake complex litigation work and matters involving novel or overlapping areas of law.

Keith’s experience also includes applications to the Courts for pre-emptive remedies, such as Mareva Injunctions (i.e. an order to freeze assets) and applications to stay proceedings arising out of jurisdiction arguments. Keith also has experience with a wide array of pre-trial interlocutory matters, such as applications for further and better particulars, specific discovery and security for cost, among others.

Keith’s expertise in litigation matters is enhanced by his corporate work practice experience as it gives him the ability understand and identity potential issues agreements quickly.

Keith has been involved in numerous mergers and acquisitions. He has helped clients acquire, dispose and restructure small companies as well as large ones including one where the consideration involved was in the excess of S$240 million. Keith has also advised on numerous private equity financing and debt financing transactions, and has experience advising both investors and investees. He has also assisted fund managers in the creation and structuring of funds and is familiar with the relevant securities regulations.

Keith has a strong interest in the growing FinTech sector and is familiar keeps up to date on the relevant financial regulations. He has advised and crafted bespoke and novel agreements for financial institutions in this new growing area of business, and benefits from having a background in finance and personal interest in this sector.

Keith has also drafted countless other forms of both simple and complex commercial agreements. In drafting agreements so that they add value to clients and are commercially sound, Keith leverages on his litigation and business experience to anticipate potential issues so that they can be dealt with in advance.

Keith graduated from the University of Manchester with an LLB (Hons) placed in the First Class. He also holds a Diploma in Banking and Financial Services and is a member of the Law Society’s Anti-Money Laundering Committee.

Aside from his legal practice, Keith has various other business interest in the FinTech and MedTech sectors. Prior to his career in law, Keith co-founded a beverage delivery company.

Keith’s strong knowledge of the law coupled with his background in finance and business, puts him in good stead to advise clients in finding legal and commercially sound solutions.

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Russell Thio

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Russell graduated from the University of Liverpool with a Bachelor’s Degree with Honours in Law. Prior to getting called to the bar as an Advocate and Solicitor of Singapore, Russell has had experience litigating and advising in broad areas of legal practice including but not limited to Civil and Criminal Litigation, Family Litigation including Syariah Divorces. Russell also has a particularly keen interest in Family Litigation, especially in matters relating to Custody, Care and Control of Children.

Russell’s approach to litigation is “objective-based and client oriented”. Though Russell mainly practices in Family Litigation, his skills are transferrable into the Civil realm as he is able to understand his client’s objective while processing his client’s problems simultaneously. Thus, enabling him to advise and provide clients with practical, precise and cost-efficient solutions on Civil claims as well.

Unless absolutely necessary, Russell focuses on resolving matters without the need for litigation. However, if called to action, Russell does what is necessary in order to ensure that his client’s rights and interests are protected as he believes that the law is not meant to be a shield to cower under nor a weapon to oppress.

 

 

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Jeannette Chong-Aruldoss

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Working with clients to help them find real solutions to legal issues that are causing them stress and worry isn’t just a job. It is something I am passionate about. A calling.

Called to the Singapore Bar in 1989, I have chalked up three decades of active legal practice. I have acquired the experience and knowledge across a diverse range of legal matters, enabling me to bring a broad-based approach to problem-solving.

Where a fight is called for, I will bring a hands-on and passionate approach to advocating and championing my clients’ interests.

In dealing with non-contentious matters, I take pride in providing my clients with prompt and objective advice. I am well-known for anticipating any potential complications and issues and for my meticulous drafting of corporate documents. I understand well the business environment.

I hold a Master’s Degree in Corporate & Commercial Law from the London School of Economics.

I am also a Commissioner for Oaths and a Notary Public.

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K Jayakumar Naidu

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Mr. Jayakumar graduated from the University of London and is a Barrister of England and Wales (Inner Temple). He was then called to the Singapore bar in 2001 as an Advocate and Solicitor. 

Prior to that, Mr. Jayakumar had an illustrious 30-year career with the Singapore Police Force, rising to the rank of Station Inspector. He was involved in various complex crimes and investigations and was an indispensable and fearsome member of the Force. His second-career change to the legal industry meant that he brought with him invaluable experience in the field of criminal procedures and investigations, which has put him in good stead as a criminal litigator today.

Mr. Jayakumar has vast experience in all aspects of criminal law, and he has represented a broad range of clients in hearings, trials and mentions at all levels of the courts in Singapore. These areas include offences under the:

  • Penal Code 
  • Misuse of Drugs Act
  • Prevention of Corruption Act
  • Road Traffic Act
  • Employment of Foreign Manpower Act
  • Immigration Act
  • Remote Gaming Act
  • Organised Crime Act 2015
  • Criminal Law (Temporary Provisions) Act
  • Customs Act 

In addition, Mr. Jayakumar deals with capital cases for serious offences such as drug charges, as well as complex appeals which has all resulted in acquittals or reduced charges. His sound knowledge of criminal law and procedures, as well as his intimate understanding of the criminal justice system from his background as a seasoned and veteran retired police officer, meant that he understands the accused persons and their input, and accordingly his advice and strategies.

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Janus Low

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Janus has a wide range of experience in commercial and civil litigation including contractual claims, defamation, employment, insolvency, injunctions, landlord and tenant disputes, negligence, shareholders’ disputes, and probate. He has acted for clients at all levels of the Singapore Courts.

In addition to Janus’s experience in commercial and civil litigation, he has experience in family and matrimonial matters including contentious divorces and contentious custody applications with multi-jurisdictional issues.

Qualifications / Admissions

  • LLB (Hons), University College London
  • Advocate & Solicitor of the Supreme Court of Singapore

Memberships / Appointments

  • The Law Society of Singapore
  • The Singapore Academy of Law

Selected Cases

  • Low Heng Leon Andy v Low Kian Beng Lawrence, (Administrator of the Estate of Tan Ah Kng, Deceased) [2018] SGCA 48: Proprietary Estoppel
  • Tang Ling Lee v PP [2018] SGHC 18: Benchmark sentencing for negligently causing grievous hurt in a road traffic case
  • TSF v TSE [2018] SGCA 49: International child custody dispute
  • Thu Aung Zaw v Ku Swee Boon [2017] SGHC 265: Setting aside summary judgment

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Joshua Tan

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Joshua is the Managing Director of JT Legal, a boutique corporate and corporate finance law practice which he founded after heading the Corporate Practice Group of an International Joint Law Venture in Singapore. He is supported by a small but versatile team. Together, they are ready to energise and actualise your vision. 

With two decades of corporate and corporate finance experience under his belt, Joshua is a familiar face in the fund raising and investment circle. He works closely with some of the notable financial institutions and scurities houses both locally and overseas. He is also active in the VC and PE circle, and is friendly with investors and companies in the various industries in Singapore. 

From Start-up to IPO, he and his team are able to provide practical and comprehensive solutions to achieve your goals and dreams. 

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Punitive Damages in Singapore Contract Law

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The general aim of awarding damages for breaches of contract is to compensate the aggrieved party for losses suffered due to the other party’s breach of the contract between them.

However, if you are a party to an action for breach of contract, you may be wondering how willing the Singapore court will be to award damages to punish the party in breach, i.e. punitive damages (or exemplary damages), for failing to perform its contractual obligations.

What are Punitive Damages?

Punitive damages are amounts of damages which go beyond what is necessary to compensate the aggrieved party for its losses. The aim of awarding punitive damages is to punish the party in breach, and to discourage similar behaviour by both it and others in the future.

Punitive damages may be awarded in an action in tort, for civil wrongs done against an innocent party and which do not arise from any contractual relationship between the parties. In such cases, the award of punitive damages sends a clear message that the wrongdoer’s conduct is unacceptable and will not be tolerated.

But what about for breaches of contract?

Can Punitive Damages be Awarded for Breaches of Contract in Singapore?

The Singapore Court of Appeal has held in PH Hydraulics & Engineering Pte Ltd v Airtrust (Hong Kong) Ltd that as a general rule, punitive damages cannot be awarded for breach of contract in Singapore.

This is because:

1. The concept of punishment has no place in contract law.

Obligations in a contract are undertaken voluntarily by the parties, who have themselves agreed on the scopes of their respective obligations. When the contract is breached, the court’s role is to ensure that the aggrieved party is compensated for the losses it has suffered as a result of the breach. This is done by awarding compensatory damages.

Therefore, it is not for the court to impose additional obligations on the party in breach to give more than what it had agreed to give under the contract. It is also inappropriate for the court to impose its own view of how the parties should conduct themselves.

Accordingly, there is no basis for awarding punitive damages for breaches of contract.

2. Punitive damages are not needed to fill any “remedial gap” for breach of contract.

The “remedial gap” argument suggests that existing remedies are inadequate in punishing and deterring outrageous behaviour. Therefore, the courts should have the discretion to award punitive damages for breaches of contract in deserving cases.

However since there is no room for the concept of punishment in contract law (as discussed above), there is no “gap” to begin with.  Even if there were such a “gap”, there are a number of alternative remedies, which have incidental punitive or deterrent effects, for the court to use. These remedies include:

  • Wrotham Park damages”: Damages based on the sum the aggrieved party could have reasonably demanded in return for permitting the breach; or
  • Account of profits: Damages based on the gains or profits obtained by the party in breach, due to the breach.

3. It is difficult to identify criteria for when punitive damages should be awarded.

What is regarded as “outrageous” behaviour would vary from person to person. This makes it difficult to determine to lay down specific and workable criteria on when a contracting party’s conduct will have exceeded acceptable “self or vested interest” (which underlies most contractual activity) to become “outrageous”.

In the absence of specific criteria, awarding punitive damages for breaches of contract would lead to the undesirable effect of commercial uncertainty and instability.

4. Awarding punitive damages for breach of contract would be undesirable from a policy perspective.

Awarding punitive damages could encourage aggrieved parties to “tag on” claims for punitive damages as a matter of course. This might add to the length, complexity, and costs of litigation. Aggrieved parties may also be unfairly able to coerce the parties in breach into making large settlements out of court in order to avoid being made to pay punitive damages.

The court was also of the view that contractual conduct would be better managed through legal regulation instead of judicial remedies such as punitive damages. This is because regulators are better equipped to assess and remedy the wider social and economic implications of any measures they may put in place.

For the above reasons, the court therefore held that punitive damages would generally not be awarded for breaches of contract.

However, the court was also careful to add that it might award punitive damages in a “truly exceptional case” involving a “particularly outrageous type of breach”.

What Might be an “Exceptional” Case?

The Singapore court has not set out any definitive criteria on what it may consider to be a “truly exceptional case” for which punitive damages could be awarded for breach of contract. Instead, the court has merely stated that “planned and deliberate” fraud alone would be insufficient to render a case “exceptional”.

Even malicious conduct, such as making false accusations against an innocent party, would not be sufficient for the court to award punitive damages.

Alternatives to Seeking Punitive Damages

Instead of seeking punitive damages, aggrieved parties could:

  1. Bring a concurrent cause of action in tort, where punitive damages are recognised.
  2. Seek an award of damages for mental distress for the breach of contract. Awarding such damages will allow the court to give redress to the aggrieved party, while still upholding the compensatory function of damages for breach of contract.
  3. Seek damages for fraudulent misrepresentation by the party-in-breach. In such situations, the court may be willing to grant a more generous award of damages for losses incurred by the aggrieved party. This includes both unforeseeable loss and all consequential loss.

In view of the Singapore court’s reluctance to award punitive damages for breaches of contract, aggrieved parties should generally think twice about claiming punitive damages. This is unless they think their case could involve “a particularly outrageous type of breach”.

If you are the aggrieved party in a contractual dispute and would like to discuss the possible claims you may have with a lawyer, feel free to get in touch with one of our corporate and commercial lawyers.

You may also wish to check out our carefully drafted contract templates which you can easily amend/add to, any terms, as you deem suitable. Currently, they’re going at 10% OFF:

The post Punitive Damages in Singapore Contract Law appeared first on SingaporeLegalAdvice.com.


Can I compel another party to honour an agreement?

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Having a person renege on an agreement can be a jarring experience, especially when you have already invested time and effort to fulfil the agreement on your end. In such unpleasant situations, having knowledge of the doctrine of promissory estoppel will prove itself useful. This article will explain how this doctrine may aid an innocent party to prevent a party-in-breach from reneging on an agreement that has been struck between them.

What does “reneging on a contract” mean?

To renege on a contract means to go back on the said contract. A common scenario is this: Party A enters into a contract with Party B. The contract requires Party B to sell to Party A an agreed quantity of goods within a specified time period. In return, Party A agrees to not enforce a debt owed by Party B. Thereafter, as Party B begins to supply the goods to Party A, their relationship turns sour and Party A decides to enforce his debt. In this scenario, Party A is said to have reneged on the bargain by going back on his promise not to enforce the debt against Party B. Assuming that Party B is able to assert promissory estoppel, Party A might not be able to get away with his act of reneging scot-free.

“Promissory estoppel”

The doctrine of promissory estoppel prevents a person who has promised not to enforce his strict legal rights from going back on his promise when it is inequitable to do so. Where the elements of this doctrine is fulfilled, this can result in a promise to be enforced even if the promise has not been supported by either party’s act of fulfilling the contract.

To rely on the doctrine of promissory estoppel, three elements must be fulfilled:

1. Clear and unequivocal promise

First, the promisor must make a clear and unequivocal promise which is intended to be legally binding between the parties. A clearer promise makes it more likely that the promisee will rely on this promise, which subsequently makes it inequitable for the promisor to retract the same.

One way to identify if the promise is sufficiently clear would be to identify exactly the representation has been made by the promisor in a specific clause of a contract, before ascertaining whether the promise is sufficiently certain to have induced the promisee to rely on it. It should be noted that silence or mere inaction does not constitute a clear promise for the doctrine of promissory estoppel. Nonetheless, the promise need not be express – a clear promise can be implied by words or conduct. Additionally, the promisor must have intended that the promise would be relied upon, or he should have known that the promise would be relied upon by the promisee.

2. Reliance by the promisee

The promisee must have acted in reliance on the promise, which can usually be shown by the promisee’s change in position, e.g. by performing something he ordinarily would not have done if not for the agreement. Currently, it is unclear whether it is necessary to show that the promisee has suffered a detriment or disadvantage as a result of his change in position. Nonetheless, it would be prudent for the promisee to show that he has suffered some form of detriment so as to make for a stronger case.

3. Element of inequity

The last requirement is that it would be inequitable for the promisor to go back on the promise. Inequity is usually related to the concept of detrimental reliance, as detrimental reliance is generally a strong indicator of the inequity that would result from the reneging of the promise. Nonetheless, detriment is not the only relevant factor to determine whether inequity exists – all the relevant circumstances of the case will be taken into account, and any factor could tip the balance. For example, a promisor’s dishonesty in inducing the promisee to act on his promise would go towards proving inequity.

Effect of promissory estoppel

It should be noted that the effect of this doctrine is such that it is used as a “shield”, meaning that it is used to resist a claim, but it cannot create a new cause of action in and of itself. In essence, this means that the innocent party can only use the doctrine of promissory estoppel as a ‘defence’ against the party-in-breach’s claim to enforce his strict legal rights.

Returning to the example above, this means that Party B can only rely on the doctrine if Party A enforce his legal right to the repayment of the debt in court. That being said, this area of law is currently unclear and debatable.

Alternatives to promissory estoppel

If one cannot make out a claim for promissory estoppel, another option would be to sue for damages arising from the counter-party’s breach of contract. A breach can occur in several ways, but it usually arises in a similar situation to which promissory estoppel arises – where one party wrongfully renounces his obligations under a contract. Alternatively, a party may have performed in such an unsatisfactory manner that a breach has resulted.

Ultimately, a closer examination of the type of breach and the resulting loss must be examined before the claim can be brought. If one wishes to bring a claim for breach of contract, or to rely on the doctrine of promissory estoppel, it would be best to seek legal advice from a lawyer.

You may also wish to check out our carefully drafted contract templates which you can easily amend/add to, any terms, as you deem suitable. Currently, they’re going at 10% OFF:

The post Can I compel another party to honour an agreement? appeared first on SingaporeLegalAdvice.com.

Glen Koh

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Lawyer called in 1999 to Singapore Bar. Experienced in all aspects of commercial dispute resolution, including debt claims, hire purchase contracts, insolvency of individuals and corporations, civil disputes, contractor’s claims, international disputes, sale and purchase contracts.

Also experienced in corporate work, such as shareholder agreements, corporate secretarial work, investment agreements.

Happy to assist at all levels and at at commensurate rates.

The post Glen Koh appeared first on SingaporeLegalAdvice.com.

Gilbert Chng

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Gilbert Chng is an associate of Silvester Legal LLC, graduating from the National University of Singapore in 2018. He prides his practice on providing practical solutions to complex matters at competitive rates. He specializes in Fintech, Cryptocurrencies and Payment Systems. Gilbert’s works with a variety of entrepreneurs, including startups as well as companies listed on Catalist and SGX. He is capable of working in venture capital fund-raising, securities, contract drafting and review, as well as corporate restructuring.

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Sara Aziz

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Sara is an Associate with Silvester Legal LLC. Since entering practice, she has experience in handling a wide spectrum of cases through all levels of the Singapore Courts. Her core practice focuses on Family Law and Estate Planning. She recognises that trust and confidence are key to building lasting relationships with clients. 

Sara has represented clients in various matrimonial proceedings. She has also assisted in a variety of contentious, non-contentious, and high net worth divorce matters, with issues ranging from complex matrimonial asset division to custody disputes. She represents clients in enforcement proceedings and has also helped clients in adoption proceedings. 

One of the notable decisions that Sara has been involved in is the decision of the Singapore Court of Appeal case TIC v TID [2018] SGCA 75, wherein it was held for the first time that the party who would take over the matrimonial share of the matrimonial property should solely bear the ongoing mortgage and property tax payments pending the transfer of the matrimonial property. 

Besides these, Sara is also well versed in dealing with civil and commercial disputes where she has acted for individuals and companies. She also advises on other personal legal matters such as probate matters, the drafting of Wills and Lasting Power of Attorney. 

Patient, dedicated and compassionate, Sara ensures the best results for her clients by providing sound solutions with a keen practical awareness of clients’ needs and demands. She endeavours to resolve her clients’ worries and at the same time act in their best interests.  

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Stephen Cheong

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Stephen Cheong is an advocate and solicitor of the Supreme Court of Singapore with a broad practice covering litigation, domestic and international arbitration and mediation, specialising in the avoidance, management and resolution of disputes.

His practice areas include insurance and reinsurance, M&A, joint venture, distribution, construction and engineering, power generation, labour and employment, family and private client disputes.

Stephen has an established network with leading local law firms in the Asia Pacific and South East Asian region and is regularly instructed by local counsel to advise and represent clients in international arbitrations and proceedings in the Singapore courts. Stephen is fluent in the institutional rules of major arbitral institutions including SIAC, HKIAC, ICC, ACICA, LCIA and UNCITRAL and is a Fellow of the Singapore Institute of Arbitrators and the Asian Institute of Alternative Dispute Resolution. Stephen is also appointed to the panel of arbitrators of the Thailand Arbitration Center (THAC) and Pacific International Arbitration Centre (PIAC).

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