Voltas Limited v Ng Theng Swee and another

Voltas Limited was the main contractor for tunnel ventilation and environmental control works at nine stations on the Thomson East-Coast MRT line. It subcontracted ducting works for four stations to Yong Chan Metal Engineering Pte Ltd under a 2017 subcontract and later purchase orders. Mr Ng Theng Swee was Yong Chan's director and majority shareholder and made its business decisions on the project.

After delays caused by Yong Chan's liquidity problems, the parties signed a Supplemental Agreement on 30 November 2018, under which Voltas advanced S$65,243.42 in return for commitments to finish by 31 December 2018. Yong Chan did not finish, and on 18 January 2019 an Addendum let Voltas employ 12 of its workmen, with their costs to be repaid by Yong Chan. Voltas sued Yong Chan for breach of contract and on dishonoured cheques under the Bills of Exchange Act 1949. It also sued Mr Ng in Suit No 130 of 2020 for conspiracy and deceit, alleging he made promises at a meeting on 29 November 2018 that he did not intend to keep. Yong Chan counterclaimed S$919,225.66 for allegedly unbilled work and a retention sum. These grounds were issued after Voltas appealed the dismissal of its claims against Mr Ng.

1. Whether Yong Chan breached the Supplemental Agreement and Addendum and was liable on the dishonoured cheques
2. Whether there was a combination between Mr Ng and his company sufficient for unlawful or lawful means conspiracy
3. Whether Mr Ng was liable in deceit for statements of future intention made at the 29 November 2018 meeting
4. Whether Yong Chan's counterclaim, including for the retention sum, succeeded

The judge found that Yong Chan had abandoned the works without completing them and had failed to reimburse the costs of the workmen. No term made verification by Yong Chan a condition of reimbursement. The cheques were security for the advances, and an existing contractual obligation was valuable consideration under s 27(1)(b) of the Act. Damages were capped to avoid double recovery, and Yong Chan lost the retention sum because it abandoned the works.

On conspiracy, following PT Sandipala Arthaputra v STMicroelectronics Asia Pacific Pte Ltd [2018] 1 SLR 818, a director acting as the company is ordinarily not treated as combining with it unless he breaches a personal duty owed to the company. Voltas relied on the duty to consider creditors' interests near insolvency, but the judge held that duty is relevant to such an action only where the company is in liquidation, which Yong Chan was not. In any event, entering the Supplemental Agreement when much of the work was already done was legitimate risk-taking, and Voltas knew of the liquidity problems when it signed. There was also no evidence of an intention to injure Voltas, so lawful means conspiracy failed too.

On deceit, the alleged statements were promises about the future. Voltas had to show Mr Ng did not intend to keep them when he made them; an unreasonable belief is not the same as a lack of intent. Non-performance could equally reflect inability or later choices, which amount to breach of contract, not fraud. For the same reason the alleged cheating offence was not made out.

Aedit Abdullah J allowed the claims in part: Voltas succeeded against Yong Chan, which was ordered to pay S$3,437,937.36 inclusive of GST with interest, with any recovery on the dishonoured cheques of S$1,086,616 subsumed in that sum. The claims in conspiracy and deceit against Mr Ng were dismissed, with no costs ordered against him, and Yong Chan's counterclaim failed.