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Supreme Court Notes

Source	Title	Synopsis
Supreme Court Note, Supreme Court, Feb, 2010	Supreme Court Note: George Raymond Zage III v Ho Chi Kwong [2010] SGCA 4 (equity & trusts, knowing receipt, dishonest assistance)	The Court of Appeal considered if a business was liable as constructive trustee for knowingly receiving proceeds from a breach of trust or dishonestly assisting in the misappropriation of the sum.
Supreme Court Note, Supreme Court, Jan, 2010	Supreme Court Note: Indulge Food Pte Ltd v Torabi Marashi Bahram [2010] SGHC 22 (when action for agreed sum defeated by failure to perform)	This case decided that an action for a contractually agreed sum may be defeated by the claimant’s failure to perform its obligations under the contract.
Supreme Court Note, Supreme Court, Dec, 2009	Supreme Court Note: Bachoo Mohan Singh v PP [2009] SGCA 59 (extension of time to raise question of law of public interest)	The Court of Appeal clarified its jurisdiction to grant an extension of time under s 60(2) of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) (SCJA) where the applicant had previously made an application to the High Court judge to reserve a question of law of public interest to the Court of Appeal under s 60(1) of the SCJA.
Supreme Court Note, Supreme Court, Dec, 2009	Supreme Court Note: Chua Chian Ya v Music & Movements (S) Pte Ltd [2009] SGCA 54 (contract, restraint of trade, breach)	In this decision, the Court of Appeal applied the doctrine of restraint of trade to a music publishing contract and discussed the obligation to account for royalties collected.
Supreme Court Note, Supreme Court, Dec, 2009	Supreme Court Note: AAG v Estate of AAH, Deceased [2009] SGCA 56 (s 3 Inheritance (Family Provision) Act)	It was held that an illegitimate child is not entitled to maintenance under the Inheritance (Family Provision) Act.
Supreme Court Note, Supreme Court, Dec, 2009	Supreme Court Note: Poh Soon Kiat v Desert Palace Inc [2009] SGCA 60 (enforcement of foreign judgments based on gambling debts)	It was held that a foreign judgment could be enforced by way of a common law action only if that judgment was for a fixed sum of money.

Judgments

Source	Title	Synopsis
Law News, Rajah & Tann LLP, Feb, 2010	Contract Law - Developments in 2009	Overview of Singapore contract law developments in 2009
Law News, Rajah & Tann LLP, Feb, 2010	Claim for contractually agreed sum may not be enforceable where there is lack of reciprocity	The SHC considered whether to allow a claim for a contractually agreed sum by a party which had not performed its own obligations under the contract. It was determined that the principle of reciprocity prevented such a claim because the separate obligations were all part of one indivisible bargain.
Legal Update, Drew & Napier LLC, Feb, 2010	SHC dismisses claim by seasoned investor against bank	The SHC dismissed a claim against a private bank for losses allegedly sustained from the wrongful closure of his foreign exchange positions. The Court emphasised the fact that not only was the plaintiff a seasoned investor, he had also adopted a blunderbuss approach, making a wide range of allegations against the defendant bank which he was ultimately unable to prove. The Court concluded that this action was in fact an attempt to transfer the losses which he had suffered as a result of market movements onto the bank.
Legal Update, Drew & Napier LLC, Feb, 2010	The importance of drawing up formal contracts	This case illustrates why it is always better to have formal contracts to document business arrangements even when parties have had a good prior working relationship.
Law News, Rajah & Tann LLP, Feb, 2010	SHC resolves conflict between arbitration provision and court jurisdiction clause	The issue was whether notwithstanding that the claims ostensibly arose out of the Defendant’s failure to observe the Escrow Agreement, the disputes between the parties still ought to be resolved in accordance with the arbitration clause under the Drilling Contract such that the present proceedings ought to be stayed in favour of arbitration.
Law News, Rajah & Tann LLP, Feb, 2010	SHC affirms law governing penalty clauses and post-termination damages	Decision confirms Dunlop Pneumatic Tyre Co., the seminal case on penalty clauses in Singapore remains good law in Singapore. Also the High Court affirmed the position that a repudiatory breach of contract will give rise to an entitlement to post-termination damages.
Legal Update, Drew & Napier LLC, Feb, 2010	Restraint of trade clauses in the context of a sale of business	The SCA has affirmed that Singapore courts will take a more liberal approach when considering restrictive covenants in the context of a sale of business, compared to a situation where such covenants are contained in a contract of employment.
Financial Services Bulletin, Allen & Gledhill LLP, Jan, 2010	EHC rules on conditional payments provision of 1992 ISDA Master Agreement	The judge stated that sections 2(a)(i) and (iii) of the IMA are “one time” provisions for the assessment and calculation of whether a sum is owed at the end of a contract month. In his opinion “there is nothing in the wording of the provisions of the contract to suggest that if [a] condition precedent is fulfilled at some later date, some obligation to pay then springs up”.
Legal Bulletin, Allen & Gledhill LLP, Jan, 2010	SHC rules against service provider of Internet-based facility which allowed public to record free-to-air broadcasts and films	In RecordTV Pte Ltd v MediaCorp TV Singapore Pte Ltd & Ors, the Singapore High Court found that the service provider of an Internet-based facility which allowed members of the public to request for free-to-air broadcasts and films to be recorded for viewing had infringed the Copyright Act.
Legal Bulletin, Allen & Gledhill LLP, Jan, 2010	SCA clarifies responsibilities of employers with employees working at heights and those working on third-party premises	The judgment is also instructive for its detailed discussion of the employers’ duty of care in general and the relevance of foreign case law, as well as its observations on the relevance of industry codes.
Legal Bulletin, Allen & Gledhill LLP, Jan, 2010	SCA upholds restraint of trade clause in music publishing contract	The court was asked to consider the enforceability of a restraint of trade clause and whether a contractual obligation to account for royalties due had been sufficiently met.
Legal Update, Drew & Napier LLC, Jan, 2010	Assessment of damages in a breach of contract	Where a party seeks to assess damages suffered as a result of a breach of a contract, the court must be satisfied, on a balance of probabilities, that the alleged loss is causally connected or linked to the breach of contract.
Legal Update, Drew & Napier LLC, Jan, 2010	The efficacy of 'conclusive evidence' clauses	The SHC has affirmed that a certificate issued pursuant to a “conclusive evidence” clause is, in the absence of fraud or manifest error, determinative of the amount due. However, the existence of such a clause does not preclude the court from reviewing the legal basis of the demand itself.
Law News, Rajah & Tann LLP, Jan, 2010	Is bank's "conclusive certificate of indebtedness" really conclusive?	The court held that a certificate or statement issued pursuant to a conclusive evidence clause is, in the absence of fraud or manifest error on the face of the statement, determinative of the amount due.
Legal Update, Drew & Napier LLC, Jan, 2010	SHC affirms that an application for injunction to restrain a call on an on-demand bond is a substantive matter	The grant of an injunction restraining a beneficiary of an on-demand bond from making a call on the bond is a substantive matter and is governed by the law to which the court is directed by its choice of law rules, and not the procedural law of the forum.
Law News, Rajah & Tann LLP, Jan, 2010	The Singapore position on entitlement to damages arising from post-termination losses	SHC decided that where a party faced with a breach of contract terminates the contract pursuant to an express termination clause, it is only entitled to damages in respect to the losses it has suffered as at the date of termination. In the absence of a concurrent right to terminate the contract under Common Law, such a party is not entitled to damages arising from losses arising after the date of termination.
Legal Update, Drew & Napier LLC, Jan, 2010	Website offering online recording services found liable for copyright infringement	RecordTV Pte Ltd, an internet company which owns, operates and designs www.recordtv.com, a website which allows end-users to watch certain Mediacorp broadcasts and films online, has been found liable for copyright infringement by authorising the copying of and communicating Mediacorp’s broadcasts and films to the public through its website.
Legal Bulletin, Allen & Gledhill LLP, Dec, 2009	SHC interprets restraint of trade clauses in directors' service agreements with company	The court noted that in order to be enforceable, restraint of trade clauses must not be unreasonably wide in scope as prima facie they are contrary to public policy. The burden of proof to show reasonableness is on the party seeking to rely on the restraint of trade clauses - in this case, the company.
Legal Bulletin, Allen & Gledhill LLP, Dec, 2009	Singapore District Court finds listed company director failed to use reasonable diligence	It is prudent for a director to ensure that he applies his mind independently on each issue the board of directors has to consider. Documentation of a director’s application of his mind and decision would be useful. A director should also avoid situations which may create an impression that he has delegated or fettered his approval or decision making power to another person.
Legal Bulletin, Allen & Gledhill LLP, Dec, 2009	SCA on enforceability of foreign judgment relating to claim for gambling debt	The CA ruled that the foreign judgment was not a foreign money judgment for a fixed some of money but was, instead, a judgment for the setting aside of the fraudulent transfer of the appellant’s interest in a certain piece of property. As such, the judgment was not enforceable because a foreign judgment could be enforced by way of a common law action only if that judgment was for a fixed sum of money.
Legal Bulletin, Allen & Gledhill LLP, Dec, 2009	SCA on the requirement of "use as a trade mark" for the purpose of trade mark infringement	While the CA had left open the issue of whether trade mark use is required for the purpose of establishing infringement, this decision is still valuable in that it has clarified and reinstated several important fundamental concepts of trade mark law. For e.g. it is now trite law that the concept of identical marks under s 27(1) of the Act entails a strict interpretation, and that in a passing off action, goodwill must be proved specifically in relation to the mark in question, at the relevant time.
Legal Bulletin, Allen & Gledhill LLP, Dec, 2009	SCA finds binding contract between parties for grant of option and that doctrine of part performance part of Singapore law	The contract to grant an option for the sale for the property was binding between the parties when (at the latest) the 1% cheque was deposited into the first appellant’s bank account.
Legal Update, Allen & Gledhill LLP, Dec, 2009	SHC construes conclusive evidence clause in account opening documents	The Court held that the precise effect of a conclusive evidence clause will depend upon its specific wording and formulation.
Rodyk Reporter, Rodyk & Davidson LLP, Dec, 2009	The importance of document verification for banking transactions	Prior to any draw down, banks are furnished with certified extracts of board resolutions approving the banking transactions and authorising the execution of contracts. Such extracts usually include resolutions delegating authority to the signatories to enter into the contracts. This requirement was discussed at length in the court’s consideration of the issues relating to the law of agency.
Rodyk Reporter, Rodyk & Davidson LLP, Dec, 2009	SHC allows counterclaim to revoke patent	The court agreed that the plaintiff’s invention was not novel and it did not involve an inventive step, both of which were conditions that had to be satisfied for an invention to be patentable.
Rodyk Reporter, Rodyk & Davidson LLP, Dec, 2009	SCA defines duty of purchaser to sellers in a collective sale	The SCA examined the relationship between the purchaser of a collective sale site, the consenting majority owners, and the obligations and the role of the Strata Titles Board in this case.
Law News, Rajah & Tann LLP, Dec, 2009	SCA clarifies principles for proper service of contractual notice of default	The dispute centred on whether the notice of default was properly served on Party A. The SCA discussed the legal principles which one ought to be aware of before he or she serves a notice of default.
Law News, Rajah & Tann LLP, Dec, 2009	The extent of a liquidator's duty in relation to the verification of a proof of debt	In the winding up of a company, a liquidator has a legal right to go beyond the company’s accounts and scrutinise the proof of debt when there are reasons to suspect its genuiness or legal validity. The liquidator must, however, not be seen to be using this right as a means to deny the creditor of his monies and/or further the interests of his appointor. This will put him in a position of conflict of interest.
Legal Bulletin, Allen & Gledhill LLP, Nov, 2009	SHC finds senior employee owing fiduciary duties akin to director	The court found that the defendant had breached his fiduciary duties to the second and third plaintiffs, while he was still a director or employee of the second and third plaintiffs.
Legal Bulletin, Allen & Gledhill LLP, Nov, 2009	SHC interprets meaning of "for the time being in force" in arbitration clause	The court held that the words “for the time being in force” referred to the SIAC Rules in force at the time of the commencement of the arbitration.
Legal Bulletin, Allen & Gledhill LLP, Nov, 2009	SCA considers whether terms of agreement varied by "without prejudice" communications	Generally, communications between parties made on a “without prejudice” basis in the course of settlement negotiations are not admissible. Where correspondence is marked “without prejudice”, the presence of these words places the burden of persuasion on the party who contends that these words should be ignored.
Legal Update, Drew & Napier LLC, Dec, 2009	SHC clarifies scope of force majeure and termination clauses	The SHC ruled that a rise in prices of sand, caused by a ban on sand exports (the “sand ban”) by the Indonesian government in Jan 07, did not constitute a force majeure event which would relieve a concrete supplier of its obligations to supply concrete to a construction company.

Legislation

Source	Title	Synopsis
Financial Services Bulletin, Allen & Gledhill LLP, Jan, 2010	Government Securities (Amendment) Bill 2009 passed: Enabling early redemption of Government securities and regulation of primary dealers	When in force, the Bill will amend the Act to regulate primary dealers and allow for the early redemption of Government securities.
Financial Services Bulletin, Allen & Gledhill LLP, Jan, 2010	Moneylenders (Amendment) Bill 2009 passed: Enhancing enforcement measures against unlicensed moneylenders	On 12 January 2010, the Parliament passed the Moneylenders (Amendment) Bill 2009 which seeks to amend the Moneylenders Act 2008 to introduce, among other things, the following changes …
Legal Bulletin, Allen & Gledhill LLP, Jan, 2010	Quorums of Statutory Boards (Miscellaneous Amendments) Act 2009 in force from 15 Jan 10	The Act revises the quorum for board meetings stipulated in the Acts of 16 statutory boards to “one-third of the total number of members or three members, whichever is the higher”. The amendment will align the 16 Acts with the other Acts establishing statutory boards.
Legal Bulletin, Allen & Gledhill LLP, Jan, 2010	Copyright Act amended with effect from 31 Dec 09: Changes to Copyright Tribunal’s jurisdiction and operational aspects	The Copyright Act has been amended with effect from 31 December 2009 with the key objective of updating and maintaining its relevance in the face of advancing technologies which have given rise to new ways of accessing and using copyright works. ...
Legal Bulletin, Allen & Gledhill LLP, Jan, 2010	Medical Registration Act: Streamline disciplinary processes, enhance medical registration and introduce Register of Family Physicians	The Act will be amended to keep it more relevant in light of recent issues in professional conduct and standards that have arisen due to changing demands and expectations of patients and the public. The amendments streamline disciplinary processes, enhance medical registration and introduce a Register of Family Physicians.
Legal Bulletin, Allen & Gledhill LLP, Jan, 2010	Mental Capacity Act 2008 partially in force from 1 Mar 10: Appointing proxy decision makers	This Act enhances the safeguards for protection of patients compulsorily admitted into psychiatric institutions.
Legal Bulletin, Allen & Gledhill LLP, Jan, 2010	Mental Health (Care and Treatment) Act 2008 in force from 1 Mar 10	This Act enhances the safeguards for protection of patients compulsorily admitted into psychiatric institutions.
Law News, Rajah & Tann LLP, Jan, 2010	Banking (Credit Card and Charge Card) (Amendment No. 2) Regulations 2009	This amendment facilitates the implementation and adoption of credit cards with enhanced security features.
Legal Bulletin, Allen & Gledhill LLP, Dec, 2009	Workplace Safety and Health (Safety and Health Management System and Auditing) Regulations 2009 in force 1 Mar 10	The regulations provide for safety and health management systems, obligations to appoint workplace safety and health auditors and internal review of safety and health management system. It also deals with the approval of workplace safety and health auditors, their duties and power.
Financial Services Bulletin, Allen & Gledhill LLP, Nov, 2009	Moneylenders Act 2008: Changes to enhance enforcement measures against unlicensed moneylenders	One of the measures includes empowering the Minister for Law to issue an order to freeze the dealing of any property or any funds in any bank account that has been identified as proceeds of unlicensed moneylending.
Financial Services Bulletin, Allen & Gledhill LLP, Nov, 2009	Government Securities Act: Amendments to enable early redemption of Government securities and regulation of primary dealers	Pursuant to a new s 24A, the MAS may, from time to time, by public notice invite the public to apply to redeem any Government securities specified in the public notice before the date of maturity of those Government securities.

Notices & Directions

Source	Title	Synopsis
Legal Update, Drew & Napier LLC, Mar, 2010	MAS holds consultation on Deposit Insurance Scheme	The Scheme protects the savings of retail depositors if a Singapore full bank or finance company fails. The changes proposed include a widened scope of application, increased coverage limit from $20,000 to $50,000 and the fine-tuning of aggregation issues and payout approach.
Law News, Rajah & Tann LLP, Feb, 2010	Tax Bites: Singapore Budget 2010	A Singapore Budget 2010 overview
Law News, Rajah & Tann LLP, Feb, 2010	Tax Bites: Exchange of Information (EOI)	The main thrust of the amendment is to broaden the scope of exchange by removing the domestic interest condition and putting in place a framework to implement requests by double taxation treaty payments for information concerning the tax position of any person subject to the terms of exchange of information provision.
Legal News, WongPartnership LLP, Feb, 2010	Foreign investors may form partnerships in China	New measures take effect on 1 Mar 10.
Law News, Rajah & Tann LLP, Feb, 2010	Competition Review - February 2010	Competition update in Singapore and world wide
Legal Update, Drew & Napier LLC, Feb, 2010	MAS updates requirements for Exempt Fund Managers and other Exempt Persons	Qualities considered for exemption: “Fit and proper”, “Resident in Singapore”, and employing minimum of “two persons”.
Financial Services Bulletin, Allen & Gledhill LLP, Jan, 2010	MAS proposes to remove accredited investors exemption from securities lending rules for brokers and other changes	At present, the requirements for insurers and brokers are different in some aspects.
Financial Services Bulletin, Allen & Gledhill LLP, Jan, 2010	SGX guidelines for trading members and trading representatives on proper trading conduct for the handling of orders causing adverse market impact	The SGX emphasised that Trading Members and Trading Representatives are free to employ different trading strategies. However, as large orders entered within a short period of time have greater potential to create price dislocation they should ask their clients to provide them with the rationale behind any orders likely to adversely impact the market.
Legal Bulletin, Allen & Gledhill LLP, Jan, 2010	SGX proposes new Mainboard listing criteria and introduction of SPACs	The consultation closes 3 Feb 10.
Legal Bulletin, Allen & Gledhill LLP, Jan, 2010	IRAS circular provides guidance and clarification on new tax framework for corporate amalgamations	In the new framework, the amalgamated company would continue to carry on the businesses of the amalgamating companies as if there is no cessation of the existing businesses of the amalgamating companies and the amalgamated company takes over the assets, rights and liabilities of the amalgamating companies.
Financial Services Bulletin, Allen & Gledhill LLP, Jan, 2010	MAS proposes amendments to MAS Notice 637 on Risk Based Capital Adequacy Requirements for Banks Incorporated in Singapore	The changes proposed incorporate a package of measures approved by the Basel Committee on Banking Supervision in Jul 09 to strengthen the rules governing trading book capital and enhance the three pillars of the Basel II framework. The changes also fine-tune the Notice following from the ongoing review of the capital rules and guidance by the MAS.
Legal Bulletin, Allen & Gledhill LLP, Jan, 2010	SIC issues Practice Statement on announcements relating to possible offers	Where a target company is the subject of rumour or speculation of a possible offer, there is undue movement in the target company’s share price, or there is a significant increase in the volume of share turnover of the target company, the party concerned has to make an announcement depending on the circumstances of the case. This practice statement provides guidelines about these announcements.
Legal Bulletin, Allen & Gledhill LLP, Jan, 2010	MAS reviews age of capacity to enter into insurance contracts	Currently, s 58 of the Insurance Act provides that persons who are 10 years or older may enter into an insurance contract. For those who are below the age of 16, the written consent of a parent or guardian is required before they may do so. MAS suggests removing the minimum age of capacity as the requirement for written consent from a parent or guardian should provide sufficient safeguard against a minor inadvertently entering into a contract of insurance or surrendering his policy.
Legal Bulletin, Allen & Gledhill LLP, Jan, 2010	MAS consults on Policy Owners’ Protection Fund schemes and insurance resolution	The first set of measures relates to the Policy Owners’ Protection Fund, which is funded by the industry to compensate policy owners in the event of the default of an insurer. The second set of measures seeks to enhance the MAS’ powers relating to the resolution of insurers in Singapore. The consultation period ended 29 Jan 10.
Legal Update, Drew & Napier LLC, Feb, 2010	MAS consults on revised proposals covering listed and unlisted investment products Pt 2	The Part II Response addresses the following: the definition of “complex investment products” and requirements for mandatory advice; remuneration structures for sale of investment products; requirement to appoint an approved trustee for unlisted debentures; and the strengthening of the MAS’ investigative and regulatory powers.