Case Details
- Citation: [2021] SGHC 28
- Case Title: Cheung Teck Cheong Richard and others v LVND Investments Pte Ltd
- Court: High Court of the Republic of Singapore (General Division)
- Decision Date: 05 February 2021
- Judges: Ang Cheng Hock J
- Coram: Ang Cheng Hock J
- Case Number: Suit No 204 of 2020 (Registrar’s Appeal No 112 of 2020)
- Related Appeals: Registrar’s Appeal No 111 of 2020
- Procedural Context: Appeals against an Assistant Registrar’s decision on whether court proceedings should be stayed in favour of arbitration
- Plaintiff/Applicant: Cheung Teck Cheong Richard and others
- Defendant/Respondent: LVND Investments Pte Ltd
- Legal Areas: Arbitration – Agreement; Arbitration – Stay of court proceedings
- Key Statutory Provisions: Arbitration Act (Cap 10, 2002 Rev Ed) (“AA”) s 4(1), s 4(6), s 6(1)
- Arbitration Clause at Issue: Clause 20A.1 in each SPA (mediation “before” referring disputes to arbitration or court)
- Parties (as described in the judgment): Richard Cheung Teck Cheong — Chew Chai Har — Shan Ming Airconditioning (S) Pte Ltd — Sim Solutions Pte Ltd — Ramachandran Ananthanarayanan — Green Oak Pte Ltd. — Hao Bo Pte. Ltd. — Andrew Yeo Seng Thean — Tan Kay Kerng — Lim Hui Hung Luanne — Sun Xihua — Chiam Chye Hong — A Wen Mianshi Pte. Ltd. — Achi501 Pte. Ltd. — M2L Holding Investment Pte. Ltd. — Loo Kah Hui (Lu Jiahui) — LVND Investments Pte. Ltd.
- Counsel: Chan Wah Teck Jeffrey SC, Neo Zhi Wei Eugene and Hannah Alysha Binte Mohamed Ashiq (TSMP Law Corporation) for the plaintiffs; Sim Chee Siong and Koh En Da Matthew (Rajah & Tann Singapore LLP) for the defendant.
- Judgment Length: 28 pages, 15,515 words
- Reported/Unreported: Reported as [2021] SGHC 28
- Cases Cited (as per metadata): [2021] SGHC 28 (note: the provided extract indicates “Cases Cited: [2021] SGHC 28”, but the full list of authorities is not included in the supplied text)
Summary
Cheung Teck Cheong Richard and others v LVND Investments Pte Ltd [2021] SGHC 28 concerned whether a contractual clause requiring the parties to “consider” mediation before referring disputes to arbitration or court could amount to a valid arbitration agreement, and whether such an agreement could be formed or “deemed” by the parties’ conduct under s 4(6) of the Arbitration Act (Cap 10, 2002 Rev Ed) (“AA”). The dispute arose from 12 separate sale and purchase agreements (“SPAs”) for shop units in Macpherson Mall, in which the purchasers alleged fraudulent and/or negligent misrepresentations by the developer.
The High Court (Ang Cheng Hock J) dismissed both Registrar’s Appeals. The court upheld the Assistant Registrar’s decision to stay the purchasers’ court suit under s 6(1) of the AA, finding that a valid arbitration agreement existed. Central to the decision was the court’s approach to arbitration agreement formation: even where the clause on its face appeared to be a mediation step rather than an arbitration commitment, the parties’ subsequent conduct—particularly their commencement of arbitration proceedings and their positions taken in correspondence—supported the conclusion that an arbitration agreement was concluded, or at least that the statutory deeming mechanism in s 4(6) was engaged.
What Were the Facts of This Case?
The defendant, LVND Investments Pte Ltd, developed Macpherson Mall (“the Mall”). Sixteen plaintiffs purchased 12 shop units from the defendant under 12 different SPAs. The purchasers later claimed that the defendant, through its agents and/or representatives, induced the purchases by making false representations about the usable area of the units, the nature of certain architectural features (aircon-ledges and advertisement panel ledges), rental yields, and the likelihood that popular brands and quality tenants would lease units in the Mall. The plaintiffs advanced claims for fraud, and alternatively for negligent misrepresentation.
Each SPA contained a clause titled “Mediation” (Clause 20A.1). The clause provided that before the vendor and purchaser refer any dispute or difference relating to the agreement to arbitration or court proceedings, they shall consider resolving the dispute through mediation at the Singapore Mediation Centre in accordance with its prevailing prescribed forms, rules and procedures. Clause 20A.2 clarified that the clause did not amount to a legal obligation to attempt mediation as a means of resolving disputes. This drafting became the focal point of the arbitration-agreement dispute: the plaintiffs later argued that the clause was not an arbitration agreement at all, while the defendant argued that it operated as one.
Procedurally, the dispute was marked by a protracted sequence of arbitration steps and correspondence. First, the plaintiffs commenced arbitration by a notice of arbitration dated 6 May 2019 (“1st NOA”), served on 7 May 2019. The plaintiffs elected to submit the dispute to arbitration “pursuant to Clause 20A.1” and proposed that the arbitration be administered by the Singapore International Arbitration Centre (“SIAC”) under the SIAC Rules, seated in Singapore. The defendant objected to SIAC administration and to the SIAC Rules, but did not deny that the seat was Singapore and that the Arbitration Act applied. The SIAC Court ultimately terminated the arbitrations, finding it was not prima facie satisfied that the parties had agreed that SIAC would administer the arbitrations or that the SIAC Rules would apply, because the SPA provisions made no reference to SIAC or the SIAC Rules.
Second, after the SIAC termination, the plaintiffs commenced a new arbitration. On 28 June 2019, they filed a 2nd notice of arbitration (“2nd NOA”) for an ad hoc arbitration, again as a single arbitration with all 16 plaintiffs as claimants and the defendant as respondent. In the 2nd NOA, the plaintiffs again elected to submit the dispute to arbitration pursuant to Clause 20A.1, and they also asserted more broadly that there was an arbitration agreement independent of Clause 20A.1. The defendant did not issue a formal response to the 2nd NOA, but its solicitors wrote letters objecting to the commencement of a “single ad hoc arbitration” on the basis that there were 12 different SPAs and therefore 12 different arbitration agreements contained within them.
Following these arbitration steps, the plaintiffs commenced the present suit in court (“Suit 204”). The defendant applied to stay the suit on the basis that a valid arbitration agreement existed. The Assistant Registrar granted the stay, concluding that the parties had concluded a valid arbitration agreement through their course of conduct. The plaintiffs appealed that decision in Registrar’s Appeal No 112 of 2020 (“RA 112”). The defendant, in parallel, appealed in Registrar’s Appeal No 111 of 2020 (“RA 111”) against the Assistant Registrar’s finding that the mediation clause was not, on its face, a valid arbitration agreement. The High Court dismissed both appeals.
What Were the Key Legal Issues?
The High Court had to determine whether the dispute fell within a “valid arbitration agreement” for the purposes of the AA, such that the court suit should be stayed under s 6(1). This required the court to address the meaning and effect of the mediation clause in the SPAs, and whether it could qualify as an arbitration agreement under s 4(1) of the AA.
A second, closely related issue was whether an arbitration agreement could be formed by the parties’ conduct, or deemed to exist, under s 4(6) of the AA. In other words, even if Clause 20A.1 was not an arbitration agreement in itself, the court needed to consider whether the parties’ subsequent actions—especially their initiation of arbitration proceedings and their positions taken in correspondence—amounted to concluding an arbitration agreement.
Finally, the court had to consider the procedural consequences of these findings: if a valid arbitration agreement existed, the court was required to stay the court proceedings, subject to the statutory framework and any applicable exceptions. The court’s analysis therefore had to connect the arbitration-agreement question to the stay mechanism in s 6(1).
How Did the Court Analyse the Issues?
Ang Cheng Hock J approached the case by focusing on the statutory architecture of the AA. Section 4(1) requires an arbitration agreement to be in writing and to reflect the parties’ agreement to arbitrate disputes. The clause at issue—Clause 20A.1—was drafted as a mediation step “before” disputes are referred to arbitration or court. It also contained an express clarification that it did not impose a legal obligation to attempt mediation. The plaintiffs’ position was that this language did not amount to an agreement to arbitrate; at most, it imposed a non-binding consideration of mediation.
However, the court did not treat the clause in isolation. The central question became whether the parties’ conduct demonstrated that they had concluded an arbitration agreement, or whether the statutory deeming provision in s 4(6) applied. Section 4(6) is designed to address situations where an arbitration agreement may be evidenced not only by formal signatures or express written terms, but also by conduct that clearly indicates assent. The court therefore examined the parties’ behaviour during the arbitration initiation phase, including how the plaintiffs framed their arbitration notices and how the defendant responded.
The plaintiffs’ 1st NOA and 2nd NOA were particularly significant. In both notices, the plaintiffs elected to submit the dispute to arbitration “pursuant to Clause 20A.1”. This was not a neutral reference to a precondition; it was an affirmative election to arbitrate. The court also considered the plaintiffs’ broader assertion in the 2nd NOA that there was an arbitration agreement independent of Clause 20A.1, which reinforced that the plaintiffs themselves treated the contractual relationship as giving rise to arbitral jurisdiction. The defendant’s responses and correspondence further supported the conclusion that the parties were operating on the premise that arbitration was available and applicable, even if they disagreed about the administering institution and rules.
In the SIAC correspondence, the defendant objected to SIAC administration and the SIAC Rules, but it did not deny the existence of an arbitration agreement. It also accepted that the seat was Singapore and that the Arbitration Act applied. The SIAC Court’s termination of the 1st arbitrations was based on the lack of prima facie satisfaction that SIAC administration and SIAC Rules had been agreed, not on the absence of an arbitration agreement altogether. This distinction mattered: the termination did not negate the parties’ shared understanding that disputes were to be arbitrated; it only affected the procedural mechanism for administration.
The court also considered the defendant’s letters objecting to a “single ad hoc arbitration” on the basis of multiple SPAs. While these letters challenged consolidation and the structure of the arbitration, they did not amount to a denial that arbitration agreements existed within the contractual framework. Instead, the defendant’s position implicitly accepted that arbitration agreements were contained in the SPAs, and that the dispute should be arbitrated—albeit not in the manner proposed by the plaintiffs.
Against this factual backdrop, the High Court concluded that a valid arbitration agreement existed for the purposes of s 6(1). The court’s reasoning effectively reconciled the apparent mediation-only character of Clause 20A.1 with the parties’ subsequent conduct demonstrating assent to arbitration. The court therefore upheld the stay, rejecting the plaintiffs’ attempt to recharacterise the mediation clause as non-arbitral after having previously invoked arbitration in their notices and submissions.
In dismissing RA 111, the court also addressed the defendant’s complaint that the Assistant Registrar had erred in treating Clause 20A.1 as not being a valid arbitration agreement on its face. The High Court’s dismissal indicates that, even if the mediation clause was not an arbitration agreement in the conventional sense, the statutory and conduct-based analysis was sufficient to establish the existence of a valid arbitration agreement. Put differently, the court’s outcome did not depend solely on the clause’s textual label; it depended on the parties’ overall course of dealing and the statutory deeming framework.
What Was the Outcome?
The High Court dismissed both Registrar’s Appeals. As a result, the Assistant Registrar’s order staying Suit 204 remained in force. Practically, this meant that the purchasers could not pursue their misrepresentation claims in court and were required to arbitrate the dispute in accordance with the arbitration agreement found to exist.
The decision therefore affirmed that, in Singapore arbitration law, the existence of an arbitration agreement may be established not only by the express wording of a clause, but also by the parties’ conduct and the operation of s 4(6) of the AA, particularly where the parties have acted consistently with arbitration being the agreed forum for resolving disputes.
Why Does This Case Matter?
This case is significant for practitioners because it illustrates how Singapore courts approach arbitration agreement formation where contractual drafting is ambiguous or where a clause is framed as a mediation step rather than a direct arbitration commitment. Clause 20A.1 required the parties to “consider” mediation before referring disputes to arbitration or court, and it expressly stated that mediation was not legally obligatory. Yet the court still found that a valid arbitration agreement existed, largely because the parties’ subsequent conduct demonstrated assent to arbitration.
For lawyers advising on dispute resolution clauses, the case underscores the importance of consistency between contractual interpretation and litigation strategy. Parties who commence arbitration proceedings, elect arbitration in notices, and engage with arbitral institutions on the premise that arbitration is available may later be estopped—factually and legally—from denying the existence of an arbitration agreement when the dispute shifts to court. The decision also highlights the practical utility of s 4(6) of the AA as a mechanism to capture conduct-based agreement.
From a procedural standpoint, the case reinforces that once a valid arbitration agreement is found, the court’s role under s 6(1) is to stay court proceedings. This promotes arbitration’s effectiveness and prevents parallel proceedings that undermine efficiency and party autonomy. For developers and purchasers alike, the decision provides a cautionary example: even where mediation clauses are drafted in non-mandatory terms, the parties’ later actions may still crystallise an arbitral commitment.
Legislation Referenced
- Arbitration Act (Cap 10, 2002 Rev Ed) (“AA”) s 4(1)
- Arbitration Act (Cap 10, 2002 Rev Ed) (“AA”) s 4(6)
- Arbitration Act (Cap 10, 2002 Rev Ed) (“AA”) s 6(1)
- Singapore Mediation Centre rules and prescribed forms (referenced indirectly through Clause 20A.1)
Cases Cited
Source Documents
This article analyses [2021] SGHC 28 for legal research and educational purposes. It does not constitute legal advice. Readers should consult the full judgment for the Court's complete reasoning.