Pioneer Industries (Holdings) Ltd. v. Dennis Tan Chin Yong
Read the full judgment text of HCA 3890/1991 on BabelCite. This High Court CFI judgment was delivered on 30 June 1994.
1. Mr Dennis Tan, ("Mr Tan"), the defendant in the present proceedings, is a businessman who has fallen on hard times. He has been active in business in Malaysia since the early 1970's, although his nationality is Singaporean. In 1991, he was declared bankrupt in Malaysia, and is still so.
Cited by 2 cases
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HCA003890/1991 1991, No.A3890 IN THE SUPREME COURT OF HONG KONG HIGH COURT ___________
___________ Coram: Hon. Rhind, J. in Open Court Dates of hearing: 4, 5, 6, 9, 10, 11, 12, 13, 16, 17, 18, 19 and 20 May 1994 Date of delivery of judgment: 30 June 1994 ________________ J U D G M E N T ________________ 1. Mr Dennis Tan, ("Mr Tan"), the defendant in the present proceedings, is a businessman who has fallen on hard times. He has been active in business in Malaysia since the early 1970's, although his nationality is Singaporean. In 1991, he was declared bankrupt in Malaysia, and is still so. 2. From the early 1970's onwards, he was the chief executive and a director of Socoil Corporation Bhd. ("Socoil"), a Malaysian company which was controlled and substantially owned by his family. 3. Socoil was a major processor of palm oil, owning and operating a factory for that in Malaysia. Socoil also engaged in commodity trading. Mr Tan was well qualified on paper to run both Socoil's manufacturing side and its commodity trading side since he has a masters' degree from an American university in industrial engineering. Accounting was included as part of his degree course. He also belongs to an American institute for business consultants. 4. By about 1984, Socoil, under Mr Tan's management, was in deep financial trouble, as were also Mr Tan and his father who had given personal guarantees for Socoil's indebtedness. Socoil at that time owed about M$36 million, and was put into receivership. 5. Mr Anthony Gaw, ("Mr Gaw"), an old family friend and distant relative of Mr Tan's father, set about rescuing Socoil. Mr Gaw is a successful Hong Kong businessman from a wealthy family who married into an even wealthier family. Mr Gaw's flagship was Pioneer Industries (Holdings) Ltd., ("Pioneer"), a Hong Kong registered, publicly listed company of which Mr Gaw is chairman and managing director. Pioneer is the plaintiff in the present proceedings. There was a reorganisation of Mr Gaw's companies in November 1989, with Pioneer becoming a wholly-owned subsidiary of Pioneer Industries International (Holdings) Ltd., another publicly listed, Hong Kong-registered company, but that change is of no materiality for the purposes of the present case. 6. Pioneer is mainly a passive investor with holdings in insurance, banking, real estate, shipping and other types of companies in several countries. It has itself carried out some real estate developments, as well as owning and managing commercial and residential buildings. At one stage it owned a large hotel in San Francisco, but left its management to a hote management company. 7. As one would expect with someone so wealthy and successful in business as Mr Gaw, he is well connected with other wealthy families in Hong Kong. 8. The rescue-package put together by Mr Gaw for Socoil in 1984 involved Pioneer, plus the Johnson Electric Group of companies controlled by Mr Gaw's father-in-law, and the Winsor Group. The Johnson Electric and the Winsor Groups of companies and the families running them are Hong Kong-based. 9. Within a year approximately, that is to say, by some time in 1985, Socoil was out of receivership, having settled with its creditors on the basis of 25 cents in the dollar. Socoil still had substantial debts, though, with Mr Tan and his father remaining liable under their personal guarantees. 10. The business arrangement for the rescue of Socoil by Mr Gaw and his allies in 1984 resulted in control of Socoil passing from the hands of Mr Tan and his family to Mr Gaw through Pioneer. Although Mr Gaw did not even become a director formally of Socoil until about 1987, he was in effective control of that company from about 1985 onwards. 11. Rescuing Socoil in 1984 was not the first time Mr Gaw and his family had done a great favour for Mr Tan's family. In the mid-1960's, when Mr Tan's family had to leave Burma and their assets there is in a hurry for political reasons, Mr Gaw's father had helped Mr Tan's father establish himself in business in Malaysia. From such help, Socoil had come into existence in the early 1970's, with Mr Gaw's father a substantial shareholder through his company, China Engineering. As Socoil prospered, Mr Tan's family were able to buy China Engineering out, so that, with time, Mr Tan's family came to control Socoil. 12. The flow of assistance between the Gaw and the Tan families was not all one-way, however. 13. Mr Tan who, himself, dabbled extensively in real estate in Malaysia in the days before Socoil got into financial difficulties, went out of his way from the 1970's onwards to assist Mr Gaw and the family of Mr Gaw's wife, Mrs Rosanne Gaw, ("Mrs Gaw"), in making highly profitable real estate investments in Malaysia. Their investments in what became known as the Hillwood Estate brought Mr and Mrs Gaw and/or their families profits of about M$40 million through their investment vehicle, Fleetwood Ltd. Mr Tan did not seek any reward for such advice he gave over a prolonged period: he was happy to give it as a token of gratitude for the help his own family had been given on leaving Burma. 14. After her family had gamered huge amounts of money from the Hillwood Estate venture, Mrs Gaw, some time in the early 1980's, unsolicited, told Mr Tan her family would reward him for his help, but they never did. Mrs Gaw's failure to follow up on that promise helped colour Mr Tan's approach to his future dealings with her and her husband. In particular, it made him aware of the importance of getting promises of payment in writing. 15. Whilst, prior to the rescue of Socoil organized by Mr Gaw in 1984, Mr Tan had-been happy to volunteer his services and skills to Mr and Mrs Gaw and their associated companies in relation to real estate deals in Malaysia, he found himself in the position, after the rescue, of being obliged, as an employee of Socoil, to give Mr Gaw, who now controlled Socoil through Pioneer, that type of information. 16. Once Pioneer got control of Socoil, as it had from about 1985 onwards, the reality was, as Mr Gaw put it, that, "Mr Tan was my man in Malaysia". 17. With Pioneer in control of Socoil, Mr Tan found himself with plenty of time on his hands to help Mr Gaw/Pioneer on matters other than the running of Socoil's manufacturing plant and engaging in commodity dealing. 18. Although Mr Gaw could be said to have rescued Socoil from death by his intervention in 1984/85, he, nonetheless, was not prepared to take the additional steps of providing sufficient working capital for it to be restored to anything like financial health. Socoil, with Mr Gaw at the helm and Mr Tan as chief executive officer, operated at about 20% of its processing capacity, with much of its plant lying idle and falling into a state of disrepair. 19. In 1985 and onwards, the evidence shows Mr Tan, as an employee of Socoil, performing duties for Pioneer at Mr Gaw's request, by making enquiries, carrying out studies and making himself generally useful in relation to potential real estate investments for Pioneer. 20. Although in evidence Mr Gaw could not bring himself to speak even one good word for Mr Tan on anything, I was left in no doubt that Mr Tan was highly knowledgeable about the real estate market in Malaysia, and that from the time Mr Gaw, through Pioneer, took effective control of Socoil in about 1985, Mr Gaw set great store on Mr Tan's knowledge of real estate in particular, and of business in general, in Malaysia. One only has to look at, for example, Bundle of Documents, pages 1 and 9 to become aware of that. 21. Malaysia's land market went through several years of deep depression, bottoming-out in about 1988. Being over-extended in land was part of Mr Tan's undoing. Land he had mortgaged to banks in better times had to be sold off at rock bottom prices, in 1987 and onwards, to help stave off his many creditors. 22. For a canny businessman with world-wide interests like Mr Gaw, the prolonged down-turn in land values in Malaysia spelt opportunity for some "bottom-fishing". 23. Besides using Mr Tan to scout for attractive real estate propositions in Malaysia, Mr Gaw, in early 1988, enlisted help from his contacts in the Standard Chartered Bank, Hong Kong, to help him track down inviting real estate deals in Malaysia. He let Standard Chartered Hong Kong know that his particular interest in Malaysia would be foreclosed properties. Alerted by Standard Chartered Hong Kong, Standard Chartered Kuala Lumpur was able to let Mr Gaw know in March 1988 that, although it was not a foreclosure, there was a loss-making hotel, in Kuala Lumpur, the Prince, ("the Hotel"), owned by Bintang Tower Sdn. Bhd. ("Bintang"), on the market. 24. Mr Gaw went down to Kuala Lumpur on or about 21st March 1988 to inspect the Hotel, and next day offered, subject to contract, to buy it on Pioneer's behalf for M$53 million. 25. At that point, Mr Tan had played no role in Mr Gaw's business- deal of buying the Hotel, beyond accompanying Mr Gaw to inspect it. 26. Mr Tan, as the man on the spot, was entrusted by Mr Gaw with the routine, albeit responsible, task of setting in train the legal, accounting and other work necessary as the prelude to exchanging contracts. Mr Gaw, never missing an opportunity in his evidence to belittle anything Mr Tan did, described such work as that of "an office boy", or "messenger", or "clerk". 27. Contracts were exchanged on 9th May 1988, the purchaser being shown as Pudu Sinar Sdn. Bhd., ("Pudu Sinar"), a 100% owned subsidiary of Pioneer, formed by Mr Tan for the purpose of making the acquisition. Pioneer made Mr Tan resident director of Pudu Sinar. 28. Completion was set for November, 1988. 29. In purchasing the Hotel, Mr Gaw's idea was that Mrs Gaw, who had never previously run a hotel but was experienced generally in business, having a degree in business-management from an America University, should have overall responsibility for the Hotel's operations. It was to be "her baby", as Mr Gaw put it. Mr Tan was required to liaise with her over running the hotel. Like Mrs Gaw, Mr Tan had no experience of running hotels. 30. Another general policy-line laid down by Mr Gaw for Mr Tan was that the purchase price of M$53 million, plus M$7 million working capital, was to be funded by M$24 million of equity investment, and M$36 million bank borrowings. Mr Tan was entrusted with arranging the bank borrowings. 31. A further point made clear to Mr Tan by Mr Gaw was that Pioneer would be bringing in some equity partners, and it was up to Mr Tan to attend to prospective equity partners when they went to Kuala Lumpur to inspect the Hotel. 32. Mr Gaw in fact brought in two equity partners. One was Asia Insurance Ltd. ("Asia Insurance"), and the other Kellie Ltd., "Kellie". Mr Gaw, through Pioneer, had had close business relations with both those partners over a number of year. There were cross-holdings of shares, cross- directorships, and they had been together in previous joint-ventures. 33. The collaboration between Pioneer, Asia Insurance and Kellie on this occasion took the form of an agreement in writing, dated 28th October 1988, ("the Joint Venture Agreement") that Pioneer would hold 80%, Asia Insurance 10% and Kellie 10% of the shares of a Liberian registered company called Double Wealth Ltd., ("Double Wealth"), which was to own 100% of the shares of Pudu Sinar, the company formed to enter into the agreement with Bintang to buy the Hotel. Twenty-four million shares with a par value of one Malaysian dollar each were issued by Pudu Sinar with Pioneer putting up the cash for 80% of them, and Asia Insurance and Kellie doing the same for 10% each. That provided the M$24 equity capital needed for the purchase. The Joint Venture Agreement went on to provide that each of the partners would guarantee the M$36 million bank finance being made available to Pudu Sinar for the balance of the purchase money and for the Hotel's working capital. It was noted in the Joint Venture Agreement that the partners were investing in Double Wealth together for the sole purpose of buying and running the Hotel as a medium - to long-term investment of from three to five years, at the end of which time they planned to sell the hotel or have Pudu Sinar go public. It was also provided that any partner wishing to dispose of its shares in Pudu Sinar should first offer them to the other partners on three months' notice. 34. That Joint Venture Agreement was made within a matter of days before the completion of the purchase of the Hotel on 5th November 1988. 35. In the six month interval between exchange of contracts and completion, Mr Tan busied himself on a whole range of matters related to the forthcoming completion and subsequent operation of the hotel. 36. On the completion aspect, not only did Mr Tan negotiate with banks for the finance required by Pudu Sinar - And on that he did a highly detailed and professional feasibility study (Exh.D6, page 40 and onwards) - but, also, was left to deal with the Malaysian Government's Foreign Investment Committee to get clearance for the purchase of the Hotel by non- Malaysian entities, and to investigate the tax situation to make sure that Pudu Sinar would not find itself saddled with Malaysian Real Property Gains tax, which is a form of withholding tax, or other taxes. 37. To prepare for running the hotel, Mr Tan helped Mrs Gaw negotiate with M.W. Haegar & Associates Ltd. ("Haegar"), a Swiss-run, Singaporean-registered company offering a hotel consultancy service, to have someone go from that organization to the Hotel several times a month to oversee that it was being properly managed. 38. Mr Tan recruited senior staff including a general manager for the hotel in preparation for the take-over, and also physically kept an eye on the hotel, trying to prevent those working for Bintang from running off with equipment which, under the purchase contract, was supposed to pass to Pudu Sinar on completion. 39. Mr Gaw, no doubt in part influenced by favourable reports from Mrs Gaw on the way Mr Tan was helping her get ready for taking over the Hotel, increased Mr Tan's salary at Socoil from M$8,000 to M$15,000 per month in September 1988. I do not doubt either that Mr Gaw had come to realize how valuable Mr Tan was to him generally as, "my man in Kuala Lumpur". 40. Mr Gaw would have the court believe that any material advantage he conferred on Mr Tan was pure philanthropy, prompted by compassion and pity, but I do not accept that. What he did on this occasion of raising Mr Tan's salary, and what happened subsequently in the dealings between the pair of them giving rise to the present proceedings all flowed, in my view, from the usual business considerations on Mr Gaw's part of an employer wanting to keep a valued employee happy for fear of losing him. 41. Completion of the purchase of the Hotel duly took place on 5th November 1988. Pudu Sinar immediately accused Bintang of cheating over the inventory. That resulted in a long drawn-out law-suit between Pudu Sinar and Bintang which still continues. That is a collateral issue, the existence of which features as an incidental factor in the claim and cross- claim between the parties to the present action. Never missing an opportunity for a dig at Mr Tan, Mr Gaw blames Mr Tan for the inventory problem. 42. With Haegar conducting over-all supervision of the Hotel's operations, and with a professional as its general manager, there would probably not have been all that much for Mr Tan to do in relation to the Hotel in the early stages of Pudu Sinar taking over its operation. Mr Tan, as their man in Kuala Lumpur, had a general remit from Mr and Mrs Gaw to make sure the Hotel was being managed honestly, and he liaised with Haegar. Whenever Mrs Gaw flew in from Hong Kong to see how the Hotel's operations were progressing, Mr Tan was there at her beck and call. 43. Within a few months, it became plain to Mr Tan that the Hotel's general manager he had appointed was not up to the job, (another cause for a black mark against Mr Tan in Mr Gaw's book). 44. After consultation between Mrs Gaw, Haegar and Mr Tan, it was agreed that Mr Tan should be given the task of sacking the general manager, and that Mr Tan should take over from him. 45. Sacking the general manager of a hotel run by one of Pioneer's subsidiaries was not the sort of day to day operational detail with which Mr Gaw would concern himself. He reserved himself for matters of grand strategy concerning his group of companies. 46. From the evidence as a whole, the probabilities are that it was Mrs Gaw who took the decision that Mr Tan should become the Hotel's general manager. No doubt, she would have told her husband about it at some stage. 47. Mr Gaw instanced Mr Tan's appointment to the position of the Hotel's general manager as another example of his philanthropy. True, Mr Tan had had no experience of how a hotel is run, apart from the little he must have gained while keeping a general eye on the manager he sacked, but he did have plenty of general experience running other businesses, (into the ground, according to Mr Gaw), and there was Haegar available to be consulted on specific points of hotel management. 48. Mr Tan was not offered any extra pay for becoming the Hotel's general manager. He continued to receive the same M$15,000 per month from Socoil, although, as a matter of internal accounting, Pudu Sinar started to pay M$8,000 per month to Socoil for Mr Tan's services. As general manager he did, however, get the benefit of living in the Hotel's presidential suite with full board. That would, presumably, be something of a mixed blessing as one would forever be on call. 49. It was some time in April 1989 that Mr Tan became the Hotel's general manager. Around about that time, he took stock of his personal position from a career point of view. There were no prospects for him with Socojl because Mr Gaw had decided against injecting fresh working capital for the manufacturing side, and Socoil's assets were to be sold. Mr Tan stood to gain a share of the cash from the sale of those assets. Mr Tan who, like Mr Gaw, is something of a wheeler-dealer, (although, so far, not so successful,) had plans of his own hatching for getting back into business, rather than remaining a salaried employee of Socoil under Mr Gaw for the rest of his life. Mr Tan had no security of employment. He could be sacked at short notice, as did happen on 1st September 1990: (see Bundle Documents at page 166.) 50. On one of Mrs Gaw's visits to the Hotel in April or May 1989, Mr Tan broached her on the topic of Pioneer granting him an option on 10% of the shares in the company controlling the Hotel on a basis of his buying those shares at cost to Pioneer plus interest. 51. As Mr Tan put it in court, he "wanted a slice of the action". He had got the idea from Alan Tan, a cousin of his, who had recently been granted such an option by Mr Gaw for managing Globe Limited, a Malaysian textile manufacturing company which Pioneer had just taken over (with, incidentally, some slight in-put from Mr Tan). 52. Mrs Gaw was highly receptive to Mr Tan's proposal, countering that he would be welcome to 15% even, if that was what he wanted. 53. Mr Tan made it plain to Mrs Gaw that the option agreement he had in mind would have to be in writing. 54. It was not until 12th August 1989 that Mr Tan got the written option he wanted from Pioneer. This written option agreement ("the Option Agreement") was not for the 15% Mrs Gaw had spontaneously offered, but for 10%, a figure which Mr Gaw must have considered reasonable, and the same as what Mr Tan had asked. There can be no doubt, either, that Mr Tan had been doing a good job in managing the Hotel, for otherwise it is inconceivable that Mr Gaw would have signed the Option Agreement on Pioneer's behalf on 12th August 1989. 55. By 12th August 1989, there was already an agreement signed for the disposal of Socoil's assets, and the evidence suggests that Mr Gaw presumed that Mr Tan would want to apply the cash coming to him from that towards exercising the option. There is no suggestion, however, of any implied condition to that effect or any other effect in the Option Agreement, the content of which I now set out:
56. With very bad grace in court, Mr Gaw conceded the Option Agreement was one Pioneer intended to honour at the time of his entering into it on Pioneer's behalf, but he had a whole litany of complaints about it, none of which, apart from failure of consideration, had the remotest prospect of amounting to an excuse in law for any non-perfonnance by Pioneer of its bargain. 57. While failure of consideration at least falls into a well-recognized category as a defence to an action in contract, (unlike, say, signing on agreement in a hurry, or a belief that Mr Tan would be unable to pay, those being but two of the innumerable irrelevancies Mr Gaw kept dragging into his evidence, in an apparent belief they might defeat Mr Tan's claim), the actuality was that, on the facts, absence of consideration is a complete non- starter, too. 58. I do not think I would be justified in spending much time analysing the Option Agreement from the consideration aspect or any other aspect, since the Option Agreement is only the prelude to the actual agreement under which Mr Tan claims, namely, the waiver agreement dated 26th April 1990, between the same parties, ("the Waiver Agreement"), of which more anon. If the Option Agreement had the necessary element of consideration moving from Mr Tan to make it enforceable by him, then Pioneer's defence on the Waiver Agreement, which superseded it, is utterly doomed. Even were there no consideration supporting the Option Agreement, however, that by itself would not mean that Pioneer had a good defence on the Waiver Agreement. 59. The consideration moving from Mr Tan in the Option Agreement was his forbearance from walking off the job or demanding the other material perquisites he might have, if the Option Agreement had not been forthcoming. It would be out of touch with everyday reality to pretend that an employee who has accepted a share option is getting something for nothing because he has to perform his duties under his contract of employment in any event. The employee who has accepted a share option is expected to exert himself extraordinarily for his employer, rather than turning in just an average performance like the ordinary employee, and his reward, if it ever comes, is deferred to some future time, its amount depending on the state of the company when he exercises it. The state of the company will, of course, depend upto a point on his endeavours. Executive share options are a commonplace of employment contracts nowadays. 60. Twice in his oral evidence before me, and once in an item of correspondence he signed, Mr Gaw explained, in effect, the nature of the consideration furnished by an employee enjoying a share option:
61. That comes from Mr Gaw's fax to Mr Tan on 11th June 1990. The two instances of Mr Gaw's oral evidence I have in mind are to similar effect. 62. Nor, contrary to Mr Gaw's apparent belief, does it avail him anything that the promisor in the Option Agreement was not Mr Tan's employer, whether Socoil or Pudu Sinar, but Pioneer, which would only benefit indirectly through its shareholding in Double Wealth, and, hence, Pudu Sinar, if Mr Tan put in a special effort to make the Hotel a success once he had the prospect of becoming an equity participant. 63. Whatever private thoughts and reservations Mr Gaw might have had prior to signing the Option Agreement, Pioneer was well and truly bound by it, according to its tenor, once he and Mr Tan had signed. The great beauty of written contracts from the law's point of view is that the courts are spared having endlessly to examine something as elusive as the parties' subjective intentions. The document, viewed in its factual matrix, speaks for itself. The Option Agreement is a common or garden commercial agreement between two businessmen, each with his wits fully about him and totally aware of what was involved. 64. From about September 1989 onwards, bidders started coming forward making offers to purchase the Hotel. Mr Gaw was at first not interested in selling the Hotel, but, as he realistically put it, if the price were right, all assets were for sale. To give Mr Gaw an idea of what the Hotel might be worth, and what the future prospects were for the hotel sector in Kuala Lumpur, Mr Tan prepared valuation reports with detailed analysis which he forwarded to Mr Gaw. Although in court Mr Gaw would not give Mr Tan credit for anything, I am satisfied that, far more more likely than not, they were extremely helpful to Mr Gaw in making up his mind whether it was a good time to sell, what was a good price, and what form the sale should take. 65. Because of personal differences between himself and Mrs Gaw over how the Hotel should be run, and because he saw no future for himself with Socoil because Socoil's assets had been sold, and it was beginning to look like the Hotel would be sold, too, Mr Tan wrote to Mr Gaw on 21st December 1989, serving notice that he would terminate his position with Pudu Sinar with effect from 31st March 1990. 66. Pioneer, with the assistance of Haegar immediately set about finding a replacement for Mr Tan as general manager, and, on 22nd February 1990, a Mr Kuenzli was appointed, his date for commencing work being 22nd May 1990. 67. Meanwhile, the bidding for the Hotel had become more serious with Q.S.L. Ltd., (Q.S.L.), a company from the Melia group, entering the fray. 68. By March 1990, besides Q.S.L., there were two other serious contenders for the Hotel, namely, the Royal Group, and City Development Ltd. Whether Mr Tan introduced them to Mr Gaw or Mr Gaw got to know about them from some other source is neither here nor there from a legal point of view in the present case. Mr Gaw, as one would expect, made the final decision on which offer, at which price, should be accepted. It was Q.S.L.'s offer of M$97 million which Mr Gaw, through Mr Tan, accepted on behalf of Double Wealth, subject to contract, on 20th March 1990. The sale was to take the form of selling all of Double Wealth's shares to Q.S.L., which, through Pudu Sinar, would then own the Hotel. 69. Mr Gaw sought to give the impression by his evidence that he did not really want to sell Double Wealth, and hence the Hotel, and that he was somehow doing so as a favour to Mr Tan who kept pressing him to sell. At the same time, somewhat contradictorily, he also wanted the court to believe Mr Tan had done nothing useful to bring about the sale. 70. The reality was that, although, initially, Mr Gaw had no wish to sell the Hotel, he gradually warmed to the idea, and it was he, and he alone, who decided to sell the Hotel to suit his own commercial purposes, and in no way because it might also suit Mr Tan's purposes under the Option Agreement. 71. I have no doubt either that once he had decided to sell on 20th March 1990, he thereafter wanted the deal to go through. His pretence in court that he did not care a hoot, one way or the other, whether the sale to Q.S.L. went through, and that it was actually to his disadvantage to sell, made no sense. Mr Gaw wanted the court to believe that, by persevering with the sale to Q.S.L. he was doing Mr Tan a big favour by creating a situation where Mr Tan would get something for nothing from the sale proceeds. Mr Gaw's evidence gave me the impression of being tailored to a notion on Mr Gaw's part that if he could show Mr Tan kept up pressure on a reluctant Mr Gaw for the sale to go through, and Mr Gaw allowed himself to be thus persuaded as a favour to Mr Tan, then Mr Gaw would in effect be making a gift to Mr Tan by bringing about the situation where Mr Tan could benefit under the Option Agreement or the Waiver Agreement which replaced it. 72. A words needs to be said at this point about the effect of the notice of termination of employment by Mr Tan in his letter to Mr Gaw of 21st December 1989. Mr Tan got cold feet about leaving Pudu Sinar, and wrote to Mr Gaw on 20th February 1990, offering to stay on. Mrs Gaw, who, according to Mr Gaw, had full authority on such matters, on or about 22nd February actually asked Mr Tan to stay on until 22nd May 1990 which was the date Mr Kuenzli was supposed to take over as general manager of the Hotel, a proposal Mr Tan gladly accepted. As events turned out, contracts for the sale of Double Wealth were exchanged on 5th May 1990, and Mr Kuenzli never took up his post on 22nd May, since completion was due not many days later on 5th June 1990. Mr Tan simply stayed on as general manager of the Hotel until completion, after which he continued as an employee of Socoil until there was a complete parting of the ways between Mr Gaw and Mr Tan in early August 1990 in circumstances upon which I will touch in due course. 73. There was clearly waiver by mutual consent at or about the end of February 1990 of Mr Tan's earlier announcement that he would be quitting Pudu Sinar at the end of March 1990, and, by mutual consent, he simply continued in Pudu Sinar/Socoil's employment until the rift in August 1990. 74. Mr Gaw seemed to think that Mr Tan's notice of termination of his employment justified Mr Gaw's subsequent behaviour in not giving Mr Tan his full entitlement under the Option Agreement and/or Waiver Agreement, but, in fact, Mr Tan's employment status was nothing more than one of many red herrings brought in by Mr Gaw in correspondence and in evidence in court. 75. It is clear from the evidence as a whole that, at the time of accepting Q.S.L.'s offer to buy 100% of Double Wealth, (subject to contract), on 20th March 1990, and at all material times thereafter, Mr Gaw realized that, and proceeded on the basis that, the sale could not go forward without taking account of the Option Agreement. 76. It was all very well for Mr Gaw in his evidence to raise hypothetical possibilities such as by-passing the Option Agreement by selling only 90% of Double Wealth's shares, or waiting until 12th August 1992 by when the Option Agreement would have expired, but those notions fly in the face of common sense, because Pioneer, Asia Insurance and Kellie would then, far more likely than not, have got a lower price from Q.S.L., assuming, that is, that Q.S.L. would still have wanted to go ahead at all on the basis of 90% ownership only, and as for waiting until August 1992, Mr Gaw would have been taking an enormous risk since he, like any other mortal, had no means of knowing what the real estate market would be like then, so he might have missed the boat. 77. As for Mr Gaw's suggestion he could have pulled out of the deal with Q.S.L. before exchange of contracts, since he kept getting better offers including one for M$105, he would still have faced the problem of the Option Agreement making it impossible to sell 100% of Double Wealth's shares free from the potential complications arising from the Option Agreement. 78. Twist and turn as he might in his evidence, one sees contemporary documents, inherent probability and common sense combining to present an insuperable barrier to Mr Gaw's raising a single doubt that the Waiver Agreement was any different from what, on its face, it purported to be. 79. I now set out the Waiver Agreement in its final form - It went through two earlier drafts - as signed by Mr Gaw, on behalf of Pioneer, and by Mr Tan.
80. Whether the idea of having a Waiver Agreement to supersede the Option Agreement first came from Pioneer or from Mr Tan makes not the slightest difference from the point of view of the Waiver-Agreement's- enforceability. 81. No matter which one had the idea first, both sides would quickly have seen the mutual advantages offered by the Waiver-Agreement route. 82. Pioneer knew that Mr Tan, up to his ears in debt, was teetering on the verge of bankruptcy. To have such a person join in the sale of all Double Wealth's shares to Q.S.L., or, for that matter any other purchaser, risked highly inconvenient complications arising if Mr Tan became bankrupt in the interval between exchanging contracts and completing the sale of the Hotel. Pioneer was also spared having to worry about the implications of the pre-emption provision in the Joint Venture Agreement. 83. From Mr Tan's point of view, the waiver route spared him any problem of having to find bridging-finance if he sought to exercise his right to purchase under the Option Agreement prior to completion of the sale of all Double Wealth's shares to Q.S.L., or to any other buyer. Another possibility open to Mr Tan for exploiting the Option Agreement without entering into the Waiver Agreement would have been for him to join in the sale of the full 100% of Double Wealth's shares as a confirming party. That way he need not come up with any cash, either. 84. Flowing from my finding that Mr Tan furnished consideration in the Option Agreement, it inevitably follows that he had a valuable right under it, namely, the right personally or through a nominee to purchase 10% of Double Wealth's shares from Pioneer, and he traded that right for the rights the Waiver Agreement conferred on him. Thus, on the view I take, consideration moved from Mr Tan both under the Option Agreement and under the Waiver Agreement. Just because Mr Tan was short of ready cash himself was irrelevant to the existence of the right he owned under either the Option Agreement or the Waiver Agreement, contrary to what Mr Gaw seemed to believe from the way he gave his evidence. 85. Even if I were wrong in identifying consideration as present in the Option Agreement, it would make no difference to the enforceability of the Waiver Agreement, since obviously both sides entered into the Waiver Agreement on the basis of believing the Option Agreement was enforceable. Rhetorically one can ask, "Why would the parties enter into such a detailed and sophisticated document as the Waiver Agreement, which explicitly recites, '... Mr Tan hereby waives all his rights whatsoever under the Option Agreement, (my parenthesis) subject to the following ...', were it not for the fact that the parties to it believed that Mr Tan had enforceable rights under the Option Agreement?" Had Mr Gaw, or Mrs Gaw, who stood in for him most of the time, thought Pioneer was under no legal obligation to Mr Tan by virtue of the Option Agreement since Pioneer was merely making a gift to Mr Tan, I do not doubt they would have been outraged by Mr Tan's request for such a document, and would have refused to have anything to do with it on the basis that he should not be looking a gift-horse in the mouth. 86. Mr Gaw would like the court to believe he signed the Waiver Agreement because he was so kind-hearted and indulgent towards Mr Tan. I do not accept the way Mr Gaw sought to characterise himself for one moment. From my observation of him, in court, he is obviously very aggressive and hot-tempered. Those traits are also revealed in some of the faxes he sent to Mr Tan on or after 8th June 1990 (see Bundle of Document, pages 110 and 136). Mr Gaw's hectoring ways are seen at their worst in a telephone message he left for Mr Tan on 4th September 1990 and in the spiteful letter dated 31st May 1991 (Exh.D3) which I am satisfied Mr Gaw sent with the obvious purpose of causing Mr Tan the maximum financial harm possible. 87. Unless Mr Tan was perceived by Mr Gaw as owning something valuable, namely, the right by Mr Tan himself or by his nominee to buy 10% E of Double Wealth's shares from Pioneer during the period stretching upto 11th August 1992, it is inconceivable that Mr Gaw would have tolerated Mr Tan's acting like any other businessman does with something valuable to trade. If, as Mr Gaw would like the Court to believe, Mr Tan was merely posturing when he insisted not only on a complex document to replace the Option Agreement, but, also, went on to require the fine-tuning evidenced by the two drafts which culminated in the Waiver Agreement, Mr Gaw, at the outset, would have told Mr Tan in no uncertain terms to stop such time- wasting nonsense. So would Mrs Gaw, Ms. Jane Tsui (who is a director of Pioneer) or any other normal person. 88. A much favoured response by Mr Gaw to explain any conduct of himself, Mrs Gaw, or Ms Tsui which, rationally, would suggest the Option Agreement and the Waiver Agreement were, and were known by that same trio to be, ordinary, binding commercial agreements, was that Mr Gaw allowed them to come into existence, and even be enforced by Mr Tan upto a point, as the result of Mr Gaw's compassion and desire that Mr Tan should not lose face. Such contentions from Mr Gaw are no more than sanctimonious cant, in my view. 89. That the Option Agreement and the Waiver Agreement were ordinary commercial agreements, believed by all parties concerned to bind Pioneer, is to be gathered from the way they obviously loomed large in the minds of the lawyers acting for Pioneer in the run-up to the exchange of contracts with Q.S.L. That can be gathered from the bill the lawyers sent Pioneer for that work (Bundle of Documents, pages 93 and 94). Does Mr Gaw really expect the court to believe that Pioneer's lawyers were, in effect, participating in some sort of charade to humour Mr Tan, rather than devoting their time to the very real impediment the Option Agreement posed for Pioneer if the sale were to go ahead? 90. In my judgment the Waiver Agreement, evolving as it did from the Option Agreement, is a classic specimen of the type of contract usually classified under the headings, "Accord and Satisfaction", "Compromise" or "Settlement". Consideration moved from Mr Tan because, in entering into the Waiver Agreement, he believed he was surrendering valuable rights under the Option Agreement. Such belief amounts to sufficient consideration. It so happens in this case, though, his belief accorded with the actuality that he was in fact giving up valuable rights, so that, a fortiori, he gave unimpeachable consideration for the Waiver Agreement. Foskett on The Law and Practice of Compromise, (3rd Ed.), abounds with statements of principle on, and examples of, the binding contracts which arise from the sort of situation obtaining between the parties to the present action. 91. No esoteric doctrines of estoppel need be prayed in aid on Mr Tan's behalf, since his entitlement rests on a simple contract - the Waiver Agreement. 92. A second string to Mr Tan's bow is a contract within a contract. Besides consideration in the form of a waiver of rights, the Waiver Agreement contains a new and independent promise by Mr Tan under its (i) that,
The mountain of personal debt on Mr Tan's shoulders at the time he signed notwithstanding, the agreement and undertaking constituted by the passage just quoted is adequate consideration to make the whole Waiver Agreement enforceable by Mr Tan against Pioneer. 93. Contrary to what Mr Gaw seems to believe, the law does not apply a different yardstick for the promises of the destitute than for those of the well-heeled. In the context of contract, a promise from a poor man carries the same weight as that of a rich man. The rich man will not be excused from his own promise on the basis he might have encountered practical difficulties enforcing the promise of the poor man. 94. Where businessmen have made an agreement in writing, the courts are wary of finding implied or collateral oral terms to supplement it. The courts will do so in appropriate circumstances, but Pioneer's attempt to escape the consequences of the plain terms of the Waiver Agreement on the basis of the three following alleged obligations on the part of Mr Tan is hopeless :
95. If Mr Tan did have to perform all or any of those obligations to become entitled to the 10% of profits due to him under the Waiver Agreement, it is surprising, to say the least, that explicit provision was not made for them in the Waiver Agreement. No reason, sensible or otherwise, was suggested by Mr Gaw, Pioneer's sole witness, for their omission. 96. On the evidentiary front, Mr Gaw was hoisted by his own petard of claiming to be oblivious to detail which he left to his wife and underlings. He had no personal knowledge of Mr Tan ever agreeing to those three conditions, and could not even remember whether Mrs Gaw or anyone else told Mr Gaw about them. 97. Documents which came into existence during the denouement between Mr Gaw and Mr Tan over Mr Tan's entitlement to 10% of profits in accordance with the Waiver Agreement do not support the notion of any of those obligations existing on Mr Tan's part. 98. Copies of faxes sent by Mr Gaw to Mr Tan on and after 8th June 1990 show Mr Gaw desperately trying to fabricate reasons for not paying Mr Tan the 10% clearly stated in the Waiver Agreement. Had any genuine reason existed for Pioneer not to pay the Mr Tan, Mr Gaw would have touted it immediately in the faxes he sent Mr Tan. 99. The three alleged conditions, reeking with the whiff of recent invention, have no basis in truth, I am sure. 100. Having signed the Waiver Agreement on behalf of Pioneer between about the 3rd to 5th May 1990, one next finds Mr Gaw on 8th June 1990 shamelessly faxing Mr Tan a calculation made on the basis of Mr Tan's being entitled to HK$4,037,980, being only 5% of the profits, despite the clear provision in the Waiver Agreement that he was entitled to 10%. The calculation sent by Mr Gaw made reference to an accompanying interest cost calculation which was, however, omitted. 101. Very politely, Mr Tan straight away faxed Mr Gaw back, pointing out that the profit sharing was 10%, so that he should be sent twice the sum shown by Mr Gaw's calculation. At the same time, Mr Tan's fax asked for a copy of the missing interest cost calculation. 102. Mr Tan's fax evidently threw Mr Gaw into a great rage. Without as much as a "Regards" to sign off, Mr Gaw, still on 8th June 1990, faxed back, "I will decide and let you know when further remittance will be made" and added as a PS, "I have been waiting for months to get the final statement of Socoil. Please fax me immediately the statement this moment - (within this minute)". 103. That same day, Mr Tan faxed Mr Gaw the latest Socoil accounts he had, namely made up to 31st March 1990, a copy of which he had previously already given to Mr Gaw. 104. Whereas Mr Gaw's first fax of 8th June 1990 had stated he would make a telegraphic transfer of the equivalent of the HK$4,037,960 on 11th June 1990 to a bank account Mr Tan had nominated, Mr Gaw, however, without a word of explanation, transferred no money on 11th June 1990, but, on 12th June 1990, remitted a mere HK$2 million. That is all that Mr Gaw has ever sent Mr Tan, and even that Mr Gaw now wants back. 105. In faxes to Mr Tan on 8th June 1990 and onwards, Mr Gaw has made a point of using the word "bonus", as does the Waiver Agreement, which refers to, "special bonus". 106. In an appropriate context, "bonus" can have the meaning of an ex gratia payment totally at the employer's discretion. In the context of the Waiver Agreement, however, there is a firm obligation on the part of Pioneer to pay 10% of the profits, and plainly, "special bonus" there imports no element of discretion. 107. What could have happened in the interval between 8th and 12th June to cause Mr Gaw to fail to fulfil his statement he would be sending HK$4,037,960 to Mr Tan's bank account on 11th June 1990? 108. Stuck for an answer, the best Mr Gaw could come up with was he suspected Mr Tan to have stolen from Socoil. That is obviously nonsensical when one looks at the deeply appreciative fax/letter to Mr Tan that Mr Gaw composed on 11th June 1990, but did not send until 3rd August 1990, and at the uncontradicted contents of a fax sent by Mr Tan to Mrs Gaw on 15th July 1990, summarising a conversation he had had with her on 14th July 1990. 109. If Mr Gaw really suspected Mr Tan of theft, it is extraordinary that, nonetheless, he sent even HK$2 million on 12th June 1990. 110. The real reason that Mr Gaw tried to get away with only offering 5% on 8th June, failed to send even that on 11th June, and then sent a mere HK$2 million on 12th June is that he is a bad payer who, at the point of payment, tries to renegotiate downwards what he has earlier promised to pay. One sees what sort of man he is from his shabby behaviour in relation to Standard Chartered Bank Kuala Lumpur. He contracted in writing in 1988 to pay Standard Chartered 1½% commission on the price he paid Bintang on the purchase of the Hotel, but he has tried to renegotiate the commission downwards, and still has not paid anything. 111. Mr Tan, due to his parlous financial situation, was terribly vulnerable to Mr Gaw's pressure to accept a lesser sum, but Mr Tan has courageously stuck to his guns, insisting that Pioneer honour its full obligation under the Waiver Agreement. 112. In the fax/letter Mr Gaw composed to Mr Tan on 11th June 1990 but not sent until 3rd August 1990, Mr Gaw set about trying to sweet-talk Mr Tan into accepting 5%. I think there is a high degree of probability of Mr William Waung, for Mr Tan, being correct on why Mr Gaw did not send it off to Mr Tan straight away. The reason was bargaining tactics. If Mr Gaw repeated his offer of 5%, he expected Mr Tan would treat that as the least he might get, whereas Mr Gaw's ploy was that 5% should be the most. Hence,Mr Gaw let 11th June, the promised day of remittance of 5%, pass, and, the next day, sent off a sum less than 2 1/2 %. 113. Mr Gaw has obviously misread Mr Tan's character. Instead of buckling under pressure as Mr Gaw obviously hoped, Mr Tan has steadfastly demanded his due. 114. Up until 2nd August 1990, Mr Tan played the game Mr Gaw's way, and made no waves. Since then, in his own calm way, he has unleashed a series of thunderbolts which have left Mr Gaw beside himself with rage. First of all, Mr Tan, by fax on 2nd August, told Mrs Gaw what he thought of her. Later the same day, he wrote to the three partners of the Joint Venture Agreement, Kellie, Asia Insurance and Pioneer, sending a summary of his dispute with Pioneer, and announcing he would not act further for the partners in relation to outstanding retention money. On 4th August 1990, he wrote each member of Pioneer's board complaining about Pioneer's breach of the Waiver Agreement. 115. Most unforgivably of all in Mr Gaw's book, Mr Tan commenced winding up proceedings against Pioneer with a view to recovering what Pioneer owes him. That step was not justifiable procedurally, and without going into the merits, the court dismissed his petition. 116. Having started from a position where he genuinely wanted to help Mr Tan, Mr Gaw has now swung around to the point where he will go to any lengths, including disregard of the truth, to harm him. Where there was conflict between the evidence of Mr Gaw and that of Mr Tan, I found myself, at the end of the day, preferring the evidence of Mr Tan everytime because, inherently, it made more sense, it was consistent with contemporary documentation, and it was not distorted by the uncontrollable hatred and rage which so characterized Mr Gaw's evidence. 117. Because of the view I have taken of the facts, I dismiss Pioneer's claim against Mr Tan for the $2 million paid him on 12th June 1990, and, in principle, find in his favour on his counter-claim for payment of his 10% share of the profits on the sale of Double Wealth under the provisions of the Waiver Agreement, together with interest. 118. In now making my assessment of Mr Tan's entitlement, I will, for the sake of conyenience, follow the numbered clauses of the Waiver Agreement:
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80% of $82,873,178 is $66,298,542. Mr Tan, as at 5th June 1990, was entitled to 10% of that, namely $6,629,854, minus the $2 million he was in fact paid, leaving a balance of $4,629,854 due to him. My order is that sum is to bear interest at the rate of HK Prime plus 2% from 5th June 1990 until judgment. 119. In making my assessment under this head, my finding is that the deduction to be made in respect of compensation to Kuenzli is US$11,250, as contended by Mr Tan, rather than the US$15,750 put forward by Pioneer. From the evidence of Mr Tan, and from what appears in BD at p.134, I am satisfied that Pioneer has wrongfully claimed twice in respect of the same sum of US$4,500. 120. I have allowed the deduction of US$62,879 claimed on behalf of Pioneer in respect of Pudu Sinar's purchase of the Hotel (see Witness Statement of Mr Gaw, pp.8 and 9). That I regard as a legitimate item of costs in respect of the Hotel. 121. The deduction of $368,175 for carpets was, ultimately, common ground. 122. I have disallowed the item of US$276,752 claimed by Pioneer in respect of commission payable to Standard Chartered Bank on Pudu Sinar's acquisition of the Hotel. Nothing has so far been paid to Standard Chartered, despite more than five years elapsing since this transaction, and there is no sign that Pioneer intends to pay Standard Chartered anything. If finally Pioneer gets around to paying Standard Chartered something, it can seek recovery from Mr. Tan of his share. 123. Items "Provision for legal fee for Bintang Tower's case US$73,800" and "Provision for tax liability in Malaysia US$1,107,011", found at p.9 of Mr Gaw's witness statement, I disallow as unsupported by any evidence. At best, those amounts are highly contingent, and I can see no justification under the Waiver Agreement for Pioneer withholding anything now from Mr Tan in respect of them. CLAUSE (ii): 10% of balance of retention sum after adjustments 124. It is common ground that the amount of Retention Money payable and paid to the vendors of Double Wealth in August 1993 under this head was M$1,845,300. Converted at the rate of HK$2.8725 for M$1 shown in Pioneer's Statement in BD p.108, (for want of anything better), the Hong Kong equivalent is HK$5,300,624. From that sum has to be deducted the vendor's lawyers fees of HK$22,650, (shown at p.9 of Mr Gaw's witness statement), which I assume to be the equivalent of S$4,542 (shown in Exh. P6). The balance is, therefore, HK$5,277,974. 125. Mr Tan is entitled to 10% of that, namely HK$527,797, together with interest at the rate of HK Prime plus 2% calculated from 1st September 1993. 126. Against the M$1,845,300, Pioneer has sought to set off M$1,220,000 in respect of the contingency of litigation by Bintang resulting in liability of M$2 million, although Q.S.L. made no equivalent withholding from the vendors of Double Wealth when making adjustments to determine net Retention Money released (see BD pp.284-6). In the same way that none of that M$1,220,000 has been withheld from Pioneer, Pioneer, in its turn, has no entitlement to withhold any part of it from Mr Tan.
On 5th December 1991, being eighteen months from the date of completion of the sale, Pioneer was liable to pay Mr Tan $1,169,138, made up as follows:
127. I enter judgment for Mr Tan under this head in the sum of HK$1,169,138, together with the H.K. deposit rate of interest on that sum for the period from 5th June 1990 upto 5th December 1991, and thereafter until judgment at the rate of HK Prime plus 2%. I direct Pioneer forthwith to place the sum of $488,325 on deposit with a bank and hold it there on Mr Tan's behalf until 4th June 2002, or discharge of Pioneer's tax liability on the sale to Q.S.L., whichever is sooner. I enter judgment for Mr Tan for the H.K. deposit rate of interest on $488,325 from 5th June 1990 until judgment. Thereafter Pioneer are to pay Mr Tan the interest on that sum at yearly intervals. 128. In accordance with the above, I now enter judgment for Mr Tan against Pioneer in the sum of HK$6,326,789, made up as follows, plus accrued and future interest, as described above.
129. This is a judgment delivered pursuant 0.42, r.5B. I make an order nisi that costs are to follow the event.
Representation: Mr A.T. Reyes, inst'd by M/s Cheng, Yeung & Co., for the Plaintiff Mr William Waung and Miss June Wee, inst'd by M/s Ince & Co., for the Defendant | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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