HE & SF Properties LP v RISING DRAGON SINGAPORE PTE. LTD. & Anor

"For all these reasons, it is my conclusion that the SPAs did not constitute agreements binding in law and that the defence advanced by the Defendants based on Clause 3.3 of the SPAs must be rejected. It also follows that the counterclaim advanced on behalf of RDS for breach of the SPAs must be rejected." — Per Sir Henry Bernard Eder IJ, Para 36

Case Information

• Citation: [2019] SGHC(I) 05 (also stated in the extraction as [2019] SGHCI 5) (Para 1)
• Court: Singapore International Commercial Court — Suit No 9 of 2017 (Para 1)
• Date of Judgment: 3 May 2019 (Para 1)
• Coram: Sir Henry Bernard Eder IJ (Para 1)
• Counsel for the Plaintiff: Not answerable from the provided extraction (not stated)
• Counsel for the Defendants: Not answerable from the provided extraction (not stated)
• Case Number: Suit No 9 of 2017 (Para 1)
• Area of Law: Trusts — Quistclose trusts; Restitution — Unjust enrichment; Failure of basis; Contract — Misrepresentation; Fraudulent; Tort — Conspiracy (Para 1)
• Judgment Length: Not answerable from the provided extraction

Summary

This judgment concerned three principal monetary claims brought by HE&SF Properties LP against Rising Dragon Singapore Pte Ltd and another defendant, arising out of a series of investments and related transactions involving MySQUAR, Fastacash, and a later alleged bridging loan. The court identified the dispute as turning first on whether Clause 3.3 of two share purchase agreements barred the claims, and then on whether those agreements were ever binding in law at all. (Para 3, Para 20, Para 29)

The court held that the SPAs did not become binding agreements. On that basis, the defendants’ reliance on Clause 3.3 failed, and the counterclaim for breach of the SPAs also failed. The court further accepted that HE&SF had been induced to sign the SPAs by false statements, and it analysed the surrounding factual matrix by reference to contemporaneous documents, the parties’ conduct, and the gaps in the documentary record. (Para 36, Para 37(a), Para 19)

The judgment is also notable for its treatment of the evidential process in a case where the documentary record was incomplete. The judge expressly cautioned against over-reliance on demeanour, referred to Lord Bingham’s observations on that subject, and emphasised the importance of contemporaneous documents and inherent probability in resolving disputed facts. The result was a detailed factual and legal analysis of the MySQUAR moneys, the Fastacash moneys, and the bridging loan claim. (Para 13, Para 19, Para 3(a), Para 3(b), Para 3(c))

What Were the Three Main Claims Before the Court?

The court stated at the outset that the proceedings concerned three main claims brought by HE&SF against the defendants. Those claims were: first, a claim to recover US$300,000 remitted on 2 December 2014 to RDS to purchase shares in the MySQUAR Group; second, a claim to recover US$3,235,385 remitted on 20 July 2015 to RDS to purchase shares in Fastacash Pte Ltd; and third, a claim to recover US$1,500,000 remitted on 27 November 2015 to RDPA, a subsidiary of RDS. (Para 3(a), Para 3(b), Para 3(c))

"The present proceedings concern three main claims brought by HE&SF against the first and second defendants (hereafter referred to collectively as “the Defendants”), viz," — Per Sir Henry Bernard Eder IJ, Para 3

The judgment also recorded that the defendants advanced a counterclaim for breach of the SPAs, and that the defendants’ principal defence was that Clause 3.3 of those agreements operated as a release or waiver of all claims. The court therefore treated the contractual documents as central to the litigation, even though the substantive payments in dispute pre-dated the SPAs and the alleged Fastacash IPO. (Para 7, Para 20, Para 36)

In practical terms, the court’s task was not merely to decide whether the money had been paid, but whether the later transaction documents could extinguish or defeat claims arising from earlier payments and alleged misrepresentations. That framing explains why the judgment moved from the threshold contractual issue to the factual history of the parties’ dealings and then to the legal consequences of the SPAs’ status. (Para 20, Para 29, Para 34)

"A claim to recover the sum of US$300,000 remitted by HE&SF on 2 December 2014 to RDS to purchase shares in the MySQUAR Group (the “MySQUAR moneys”)." — Per Sir Henry Bernard Eder IJ, Para 3(a)

"A claim to recover the sum of US$3,235,385 remitted by HE&SF on 20 July 2015 to RDS to purchase shares (whether directly or indirectly) in another start-up, Fastacash Pte Ltd (the “Fastacash moneys”)." — Per Sir Henry Bernard Eder IJ, Para 3(b)

"A claim to recover the sum of US$1,500,000 remitted by HE&SF on 27 November 2015 to a subsidiary of RDS, Rising Dragon Pan-Asia Limited (“RDPA”)." — Per Sir Henry Bernard Eder IJ, Para 3(c)

How Did the Court Approach the Threshold Clause 3.3 Defence?

The court identified the defendants’ threshold position as a broad waiver argument based on Clause 3.3 of the two SPAs. The judge explained that, although the events concerning the SPAs came later in chronological sequence than the events underlying HE&SF’s three main claims, it was convenient to deal first with the threshold issue because the defendants contended that all claims had been waived by the contractual language. (Para 20, Para 7)

"Against that introduction and although the events concerning the SPAs come much later in chronological sequence than the events concerning HE&SF’s three main claims, it is convenient to deal first with the threshold issue raised by the Defendants, viz, that all of the present claims brought by HE&SF have been waived by virtue of Clause 3.3 of the two SPAs which I have already referred to above." — Per Sir Henry Bernard Eder IJ, Para 20

The defendants submitted that Clause 3.3 was sufficiently wide to cover all disputes brought in the suit and that the claims were therefore doomed to fail. HE&SF resisted that construction and argued, among other things, that the clause did not apply to bar proprietary claims arising from Quistclose trusts or restitutionary claims for unjust enrichment. The court’s analysis of the clause was ultimately overtaken by its conclusion that the SPAs were not binding in law. (Para 7, Para 28, Para 36)

The significance of this sequence is important. The court did not need to decide every possible construction issue in the abstract once it concluded that the SPAs never matured into binding agreements. That conclusion meant the release clause could not operate as a contractual bar, and the defendants’ counterclaim for breach of the SPAs necessarily failed as well. (Para 34, Para 36)

"Thus, it was submitted on behalf of the Defendants that Clause 3.3 was sufficiently wide to cover all disputes brought in the present suit and that, for this reason, the present claims are all doomed to fail in any event." — Per Sir Henry Bernard Eder IJ, Para 7

"In any event, it was submitted on behalf of HE&SF that, as a matter of construction, Clause 3.3 did not apply to bar the claims in these proceedings or at least some of them – in particular the proprietary claims arising from what were said to be Quistclose trusts or to the restitionary claims for unjust enrichment." — Per Sir Henry Bernard Eder IJ, Para 28

Why Did the Court Hold That the SPAs Were Not Binding in Law?

The court’s central holding was that the SPAs did not constitute agreements binding in law. The judge reasoned that, as a matter of strict analysis, the signed draft SPAs were contractual offers that would lapse unless there was a valid acceptance communicated promptly or at least within a reasonable time. Because no such acceptance was made or communicated promptly or within a reasonable time, the offers lapsed and were no longer capable of acceptance. (Para 34, Para 36)

"As a matter of strict analysis, I would regard the draft SPAs signed by the Eyckelers as constituting contractual “offers” which would lapse unless there was a valid “acceptance” made and communicated promptly or at least within a reasonable time." — Per Sir Henry Bernard Eder IJ, Para 34

"Here, there was no acceptance made or communicated promptly or within a reasonable time and, in those circumstances, it seems to me that the “offers” contained in the two SPAs signed by the Eyckelers did indeed lapse and were no longer capable of being accepted." — Per Sir Henry Bernard Eder IJ, Para 34

That reasoning was decisive. Once the court concluded that the SPAs had lapsed without acceptance, the defendants could not rely on Clause 3.3 as a binding release, and the contractual counterclaim for breach of the SPAs necessarily collapsed. The court’s conclusion was stated in emphatic terms, making clear that the SPAs never became legally operative agreements. (Para 36)

The judgment therefore treats the SPAs not as fully formed contracts that were later breached, but as draft instruments that never achieved contractual status. This distinction mattered because the defendants’ entire threshold defence depended on the SPAs being binding instruments capable of extinguishing or reallocating claims. (Para 34, Para 36)

What Did the Court Say About Misrepresentation and Rescission?

The court recorded the parties’ agreement on the legal test for rescission under BVI law. The agreed formulation was that HE&SF would be entitled to rescind the two SPAs if it proved, on a balance of probabilities, that it was induced to enter into them on the basis of a statement of fact that was false, irrespective of fault or intention on the part of the representor. That test was central to the alternative case advanced by HE&SF. (Para 37(a))

"HE&SF would be entitled to rescind the two SPAs if it proves on a balance of probabilities that it was induced to enter into them on the basis of a statement of fact that was false irrespective of fault or intention on the part of the representor." — Per Sir Henry Bernard Eder IJ, Para 37(a)

The court found that HE&SF had been induced by false statements that the SPAs had to be signed for the IPO and that the IPO was going to happen. The judgment also records that the Fastacash IPO did not proceed and that, on 2 May 2016, it was announced that the IPO had failed. These findings formed part of the factual basis for the court’s treatment of the misrepresentation issue and the surrounding conduct of the parties. (Para 21(q), Para 37(a))

Although the extraction does not reproduce the full misrepresentation analysis paragraph by paragraph, it is clear that the court accepted HE&SF’s case that the SPAs were signed in reliance on false factual statements. That conclusion reinforced the broader holding that the SPAs could not be used as a contractual shield by the defendants. (Para 37(a), Para 36)

"On 2 May 2016, it was announced that the Fastacash IPO had failed." — Per Sir Henry Bernard Eder IJ, Para 21(q)

How Did the Court Reconstruct the Factual Timeline of the Investments?

The court’s factual narrative began with the parties’ relationship, which the extraction indicates had a close character from around 2010. The judgment then traced the MySQUAR payment, the Fastacash payment, and the later bridging-loan-related payment, before turning to the SPAs and the failed IPO. The chronology mattered because the defendants sought to use later documents to defeat claims arising from earlier transfers. (Para 21, Para 3, Para 20)

"On 2 December 2014, on the instructions of Mr Eyckeler, the sum of US$300,000 was debited from HE&SF’s bank account with Stifel and wired to the bank account of RDS at OCBC." — Per Sir Henry Bernard Eder IJ, Para 60

"Thus, on or around 20 July 2015, Mr Eyckeler caused HE&SF to remit the sum of US$3,235,385 to RDS." — Per Sir Henry Bernard Eder IJ, Para 21(l)

The court also noted that on 25 April 2016, Mr Eyckeler sent an email to Mr David Schaer setting out his understanding of the proposed arrangements but received no reply. That communication appears to have been part of the court’s assessment of whether there had been any effective acceptance or mutual understanding of the SPA arrangements. The absence of a reply was one of the factual features supporting the conclusion that no binding acceptance occurred. (Para 21(p), Para 34)

The timeline culminated in the announcement on 2 May 2016 that the Fastacash IPO had failed. That event was significant because the defendants’ narrative depended on the SPAs being part of a transaction structure linked to the IPO, whereas the court found that the documents never became binding and that the alleged factual predicates for the defendants’ position were not established in a way that could sustain their defence. (Para 21(q), Para 34, Para 36)

"On 25 April 2016, Mr Eyckeler sent an email to Mr David Schaer setting out his understanding of the proposed arrangements but received no reply." — Per Sir Henry Bernard Eder IJ, Para 21(p)

"On 2 May 2016, it was announced that the Fastacash IPO had failed." — Per Sir Henry Bernard Eder IJ, Para 21(q)

How Did the Judge Deal With the Evidential Difficulties in the Case?

The judge expressly recognised that the case involved important factual disputes and that the court had to assess witness evidence with care. He referred to Lord Bingham’s essay on the judicial determination of factual issues and observed that reliance on demeanour requires great caution because it is often misleading. This was not a mere rhetorical aside; it was part of the court’s methodology in a case where contemporaneous documents were sparse and there were significant gaps in the record. (Para 13, Para 19)

"I recognise that reliance on demeanour also requires great caution because it is often misleading, for the reasons explained by Lord Bingham in his brilliant essay “The Judge as Juror: The Judicial Determination of Factual Issues” in T H Bingham, The Business of Judging: Selected Essays and Speeches (Oxford University Press, 2000)." — Per Sir Henry Bernard Eder IJ, Para 13

The judge further noted that, in the present case, there were very few contemporary documents illuminating certain important factual issues and that there were some important gaps. He therefore treated the contemporaneous material and inherent probability as especially important tools in resolving the dispute. That approach is consistent with the court’s later willingness to reject explanations that did not fit the documentary record. (Para 19, Para 76)

"As he says in his essay, regard to what might be described as “inherent probability” and/or the contemporaneous documents is often the best (or at least better) way of testing the evidence and finding the truth." — Per Sir Henry Bernard Eder IJ, Para 19

"However, as to the latter, the difficulty in the present case is that there are very few contemporary documents which throw much light on certain of the important factual issues and that there are some important “gaps”." — Per Sir Henry Bernard Eder IJ, Para 19

That evidential approach is important for practitioners because it shows how the court weighed oral testimony against incomplete documentation. The judgment did not treat the absence of documents as neutral; rather, it treated the gaps as part of the problem to be solved by careful inference from the available record. (Para 19, Para 76)

Why Did the Court Reject the Defendants’ Explanation of the US$300,000 Payment?

The extraction indicates that the court rejected the reasoning advanced by Mr Eric Schaer concerning the US$300,000 payment. The judge stated that, in his view, the reasoning in that part of the evidence was fundamentally flawed. Although the extraction does not reproduce the full factual sequence of that issue, the court’s criticism shows that it did not accept the defendants’ attempt to recharacterise the payment in a way that would defeat HE&SF’s claim. (Para 76)

"In my view, the reasoning in this part of Mr Eric Schaer’s evidence is fundamentally flawed." — Per Sir Henry Bernard Eder IJ, Para 76

This finding sits alongside the court’s broader insistence on contemporaneous documents and inherent probability. The judge’s rejection of the explanation suggests that the evidence advanced by the defendants did not coherently account for the payment history or the surrounding communications. In a case involving multiple transfers and later transaction documents, that kind of evidential mismatch was legally significant. (Para 19, Para 76)

Because the extraction does not provide the full reasoning chain on this point, it would be unsafe to infer more than the text supports. What can be said with confidence is that the court found the explanation unsatisfactory and that this formed part of the factual matrix leading to the rejection of the defendants’ broader position. (Para 76, Para 36)

What Was the Court’s Final Position on Clause 3.3 and the Counterclaim?

The court’s final position was unequivocal: the SPAs were not binding in law, so the defence based on Clause 3.3 had to be rejected. The same conclusion necessarily defeated the counterclaim advanced by RDS for breach of the SPAs. The judge’s language makes clear that the contractual foundation for both the defence and the counterclaim had disappeared. (Para 36)

"For all these reasons, it is my conclusion that the SPAs did not constitute agreements binding in law and that the defence advanced by the Defendants based on Clause 3.3 of the SPAs must be rejected. It also follows that the counterclaim advanced on behalf of RDS for breach of the SPAs must be rejected." — Per Sir Henry Bernard Eder IJ, Para 36

The court also noted that, as expressly provided in the SICC Practice Directions Part XII at paragraph 80(4), the List of Issues is a case management tool. That observation appears to have been made in the context of the court’s management of the issues, and it underscores that the court was not bound by the parties’ issue list in a way that would displace the substantive analysis of the SPAs’ legal status. (Para 35)

For lawyers, the practical lesson is straightforward: a release clause cannot do work unless the underlying agreement is legally effective. The court’s reasoning shows that threshold contract formation issues can be dispositive even where the clause itself is drafted broadly. (Para 34, Para 36, Para 35)

"as expressly provided in the SICC Practice Directions Part XII at paragraph 80(4), the List of Issues is a document for use as a case management tool" — Per Sir Henry Bernard Eder IJ, Para 35

Why Does This Case Matter?

This case matters because it demonstrates that broad release language in transaction documents will not necessarily bar claims if the documents never became binding contracts. The court’s holding on the SPAs is a reminder that contract formation remains a threshold question, and that a party seeking to rely on a waiver or release must first establish a legally effective agreement. (Para 34, Para 36)

The case is also significant for its treatment of misrepresentation and inducement in a cross-border investment setting. The court accepted the agreed BVI-law rescission test and found that HE&SF had been induced by false statements about the need to sign the SPAs and the prospect of the IPO. That makes the case relevant to disputes where transaction documents are signed in anticipation of a future financing or listing event. (Para 37(a), Para 21(q))

Finally, the judgment is a useful illustration of judicial method in a fact-heavy commercial dispute. The court expressly relied on contemporaneous documents, inherent probability, and caution in relation to demeanour, while acknowledging gaps in the documentary record. That approach is of practical importance to litigators because it shows how the court may resolve credibility disputes where the paper trail is incomplete. (Para 13, Para 19)

Cases Referred To

Legislation Referenced

• SICC Practice Directions Part XII, paragraph 80(4) — referred to for the proposition that the List of Issues is a case management tool (Para 35)

Source Documents

• Original Judgment — Singapore Courts
• Archived Copy (PDF) — Litt Law CDN

This article analyses [2019] SGHCI 5 for legal research and educational purposes. It does not constitute legal advice. Readers should consult the full judgment for the Court's complete reasoning.