LOW ENG CHAI v ISHAK BIN MOHAMED BASHEERE & 2 Ors

"In my judgment, the plaintiffs have not adduced sufficient evidence to discharge their burden of proof that the Representations were false at the time they were made." — Per S Mohan J, Para 32

Case Information

• Citation: [2022] SGHC 207 (Para 0)
• Court: General Division of the High Court of the Republic of Singapore (Para 0)
• Case Number: Suit No 535 of 2019 (Para 0)
• Date of Judgment: 29 August 2022 (Para 0)
• Coram: S Mohan J (Para 0)
• Hearing Dates: 21–24, 29 September 2021; 25 February; 11 March 2022 (Para 0)
• Counsel for the plaintiffs: Mr Clarence Lun (Para 0)
• Counsel for the second defendant: Mr Devadas Naidu (Para 0)
• Area of Law: Contract — Misrepresentation; Tort — Conspiracy — Unlawful means conspiracy; Damages — Measure of damages — Loss of chance (Para 0)
• Judgment Length: Not answerable from the extraction (Para 0)

Summary

This was, in the judge’s words, “a case of investments turning sour”, in which the plaintiffs said they had lost “a not insignificant sum of money” and sought to pin responsibility on alleged misrepresentations and an unlawful means conspiracy. The dispute arose out of a series of funding contracts entered into with ASMC, under which the first plaintiff purchased steam coal and nickel and the second plaintiff received monthly payments for the use of funds. The court’s central conclusion was that the plaintiffs failed to prove the alleged representations were false, failed to prove reliance, and failed to prove loss caused by those representations. (Para 1)

The court also rejected the plaintiffs’ attempt to characterise the second defendant’s conduct as unlawful means conspiracy. On the evidence, the judge found no sufficient basis to infer a combination to injure the plaintiffs by unlawful means, and therefore held that the conspiracy claim was not made out. The court further held that the plaintiffs were not entitled to the BNP Paribas Performance Bond. (Para 19)

Although the plaintiffs initially framed their loss as the unpaid sum due under the contracts, they later recast the case as one for loss of chance: the loss of an opportunity to commence legal action earlier and thereby improve recovery prospects. The court accepted that such a recharacterisation was not barred in principle, but held that the plaintiffs still failed on the evidence because they did not prove they would have sued earlier, nor that any earlier suit would have produced a recoverable and enforceable judgment. (Para 66) (Para 74) (Para 77)

What Were the Contracts and Why Did the Plaintiffs Say the Investment Went Wrong?

The factual matrix began with five funding agreements entered into between the first plaintiff and ASMC between November 2016 and June 2017. Under those contracts, the first plaintiff purchased steam coal and nickel, and the second plaintiff was involved in the funding arrangement that generated monthly payments. The judge recorded that ASMC initially made those monthly payments, but the payments ceased from September 2018. That cessation became the practical backdrop for the later dispute over alleged explanations, assurances, and the plaintiffs’ decision not to sue immediately. (Para 6) (Para 9)

"Between November 2016 and June 2017, the first plaintiff entered into five funding agreements with ASMC for the purchase of steam coal and nickel" — Per S Mohan J, Para 6

The court also noted that the second defendant became involved in communications with the second plaintiff after the payments stopped. Those communications included e-mails and meetings concerning payment delays and redemption. The plaintiffs’ case was that the second defendant made representations that explained the delays and induced them to refrain from taking immediate legal action. The judge’s analysis therefore turned not only on what was said, but also on whether the statements were false when made, whether they were relied upon, and whether any loss flowed from that reliance. (Para 9) (Para 11)

"ASMC initially made monthly payments to the second plaintiff pursuant to the Contracts, but these payments ceased from September 2018." — Per S Mohan J, Para 9

The chronology mattered because the plaintiffs later argued that they had been led to delay proceedings. The first plaintiff eventually sued ASMC and obtained summary judgment for S$616,700 on 6 December 2019, but that judgment had not been enforced by the time of this decision. The court treated that history as relevant to the plaintiffs’ attempt to show loss, because it raised the question whether any alleged delay actually caused a recoverable loss or merely postponed an uncertain recovery. (Para 10) (Para 66)

"Summary judgment was granted in favour of Mr Low Eng Chai on 6 December 2019. To date, this judgment has not been enforced by the first plaintiff." — Per S Mohan J, Para 10

What Misrepresentations Did the Plaintiffs Allege, and How Did the Court Frame the Legal Issues?

The plaintiffs pleaded four alleged representations by the second defendant. They said he represented that banking issues had caused payment delays, that all outstanding payments would be made from 9 November 2018, that ASMC was in good overall financial health, and that ASMC possessed the requisite funds and was ready and willing to make all payments. The court treated these as the core factual assertions to be tested against the evidence. (Para 11)

"The plaintiffs allege that the misrepresentations made by the second defendant are as follows: (a) Banking issues had resulted in payment delays. (b) All outstanding payments would be made from 9 November 2018. (c) ASMC is in good overall financial health. (d) ASMC is in possession of the requisite funds and is ready and willing to make all payments." — Per S Mohan J, Para 11

The judge then framed three issues for determination: whether the plaintiffs had established misrepresentation, whether they had established unlawful means conspiracy, and whether they were entitled to the BNP Paribas Performance Bond. That framing is important because it shows the court’s structure: the misrepresentation claim was not treated as a single undifferentiated allegation, but as a series of distinct legal and factual questions, each requiring proof. (Para 20)

"Based on the background facts set out above and the pleadings, the following issues arise for my determination: (a) Have the plaintiffs established their claim for misrepresentation (“Issue 1”)? (b) Have the plaintiffs established their claim for unlawful means conspiracy (“Issue 2”)? (c) Are the plaintiffs entitled to the BNP Paribas Performance Bond (“Issue 3”)?" — Per S Mohan J, Para 20

On the defendants’ side, the second defendant’s position was that the alleged representations were not shown to be false, and in any event some were statements of future intent rather than actionable misstatements of existing fact. He also argued that the plaintiffs had not proven reliance or loss. Those contentions shaped the court’s analysis of both the tort and contract-based claims, because the judge had to decide whether the statements were actionable at all and, if so, whether they caused any legally cognisable damage. (Para 17) (Para 18)

"Mr Naidu argues that (a) the plaintiffs have not proven the falsity of the Representations; and/or (b) the Representations are statements of future intent and are therefore not actionable." — Per S Mohan J, Para 17

"Mr Naidu also contends that the plaintiffs did not rely on the Representations and that they have not adduced evidence of any loss suffered as a result of the Representations." — Per S Mohan J, Para 18

What Legal Tests Did the Court Apply for Fraudulent and Negligent Misrepresentation?

The court began by setting out the governing elements for fraudulent misrepresentation. Relying on Panatron Pte Ltd and another v Lee Cheow Lee and another, the judge reproduced the five cumulative elements: a false representation of fact by words or conduct; intention that it be acted upon; actual reliance; damage; and knowledge of falsity or wilful falsehood. This was the framework against which the plaintiffs’ evidence had to be measured. (Para 21)

"the five cumulative elements required for a claim in fraudulent misrepresentation to succeed are as follows: (a) a false representation of fact by words or conduct; (b) the representation must be made with the intention that it should be acted upon by the plaintiff, or a class of persons which includes the plaintiff; (c) the plaintiff acted upon the false statement; (d) the plaintiff suffered damage by so doing; and (e) the representation must be made with the knowledge that it is false; it must be wilfully false, or at least made in the absence of any genuine belief that it is true." — Per S Mohan J, Para 21

The court then set out the elements for negligent misrepresentation, drawing on Yong Khong Yoong Mark and others v Ting Choon Meng and another and IM Skaugen SE and another v MAN Diesel & Turbo SE and another. The judge stated that the plaintiff must prove a false representation of fact, actual reliance, a duty of care, breach of that duty, and causation of damage. The structure of the judgment shows that the court treated falsity and reliance as threshold issues before moving to duty, breach, and damage. (Para 22)

"the elements required for a successful claim in negligent misrepresentation are as follows: (a) the representor made a false representation of fact to the representee; (b) the representation induced the representee’s actual reliance; (c) the representor owed the representee a duty to take reasonable care in making the representation; (d) the representor breached that duty of care; and (e) the breach caused damage to the representee." — Per S Mohan J, Para 22

The Misrepresentation Act was also expressly quoted. The court reproduced s 2 and then emphasised that the provision applies only where a person enters into a contract after a misrepresentation has been made to him. That statutory limitation mattered because the plaintiffs’ case was not that the alleged statements induced entry into the original contracts; rather, the statements were said to have induced forbearance after the contracts had already been made. (Para 23) (Para 24)

"Section 2 of the Misrepresentation Act provides: Damages for misrepresentation 2.—(1) Where a person has entered into a contract after a misrepresentation has been made to him by another party thereto and as a result thereof he has suffered loss, then, if the person making the misrepresentation would be liable to damages in respect thereof had the misrepresentation been made fraudulently, that person shall be so liable notwithstanding that the misrepresentation was not made fraudulently, unless he proves that he had reasonable ground to believe and did believe up to the time the contract was made that the facts represented were true." — Per S Mohan J, Para 23

"As is clear from the wording of s 2 of the Misrepresentation Act, the provisions therein only apply to cases where a person enters into a contract after a misrepresentation has been made to him." — Per S Mohan J, Para 24

Why Did the Court Hold That the Plaintiffs Failed to Prove the Representations Were False?

The judge’s first major conclusion on the merits was that the plaintiffs had not discharged the burden of proving falsity. The court approached each alleged representation separately and repeatedly emphasised that the plaintiffs’ evidence was insufficient. The first representation concerned banking issues causing payment delays. The plaintiffs relied on DBS account statements, but the court held that those statements did not prove the representation false at the time it was made. The judge therefore rejected the claim that the evidence established falsity on a balance of probabilities. (Para 32) (Para 36)

"In my judgment, the plaintiffs have not adduced sufficient evidence to discharge their burden of proof that the Representations were false at the time they were made." — Per S Mohan J, Para 32

"Given that the only evidence the plaintiffs rely upon is the DBS Account statements, I find that the plaintiffs have not discharged their burden of proving that the First Representation was false at the time it was made." — Per S Mohan J, Para 36

The same approach was taken to the second representation, namely that all outstanding payments would be made from 9 November 2018. The court found that the plaintiffs had not proven falsity. The judge’s reasoning indicates that the plaintiffs’ evidence did not establish that the statement was untrue when made, and that the court was not prepared to infer falsity merely because payments later ceased or were not made as promised. (Para 40)

"I therefore find that the plaintiffs have not proven the falsity of the Second Representation." — Per S Mohan J, Para 40

The court’s treatment of the third and fourth representations followed the same pattern. The plaintiffs had to show that ASMC was not in good overall financial health and that it did not possess the requisite funds or readiness to pay. The judge concluded that the plaintiffs had not adduced sufficient evidence to prove those assertions false at the relevant time. This was a critical failure because, without falsity, the misrepresentation claims could not succeed regardless of the plaintiffs’ later dissatisfaction with the payment outcome. (Para 32)

The court also addressed the legal character of some statements. The second defendant argued that certain statements were statements of future intent and therefore not actionable. The judge accepted the general proposition that future intention statements can be actionable only if they imply an honest belief or reasonable grounds for the assertion, citing Deutsche Bank AG v Chang Tse Wen and KLW Holdings Ltd v Straitsworld Advisory Ltd and another. But the court still found that the plaintiffs had not proven falsity on the evidence before it. (Para 29) (Para 32)

"a statement of future intention is still actionable if it can be re-characterised as a statement implying (a) that the maker of the statement in fact honestly believed that the event would happen in the future; or (b) that the maker of the statement in fact had reasonable grounds for making such an assertion: Deutsche Bank AG v Chang Tse Wen [2013] 1 SLR 1310 at [96], followed in KLW Holdings Ltd v Straitsworld Advisory Ltd and another [2017] 5 SLR 184 at [31]." — Per S Mohan J, Para 29

Why Did the Court Find There Was No Reliance on the Alleged Representations?

Even if falsity had been shown, the plaintiffs still had to prove reliance. The court held that they did not. The judge stated that the available evidence demonstrated that the plaintiffs did not rely on the representations, and that this failure was independently fatal to the fraudulent and negligent misrepresentation claims. The court’s reasoning was not merely that reliance was unproven in the abstract; it was that the evidence affirmatively pointed away from reliance. (Para 53) (Para 65)

"In my judgment, the available evidence demonstrates that the plaintiffs did not rely on the Representations." — Per S Mohan J, Para 53

The judge accepted the second defendant’s explanations about the communications and found them credible on a balance of probabilities. That acceptance mattered because it undercut the plaintiffs’ narrative that the second defendant had induced them to stand down. The court expressly stated that it accepted the explanations given by the second defendant in the relevant paragraphs of the judgment. In practical terms, that meant the plaintiffs could not establish that their conduct was caused by the alleged statements rather than by their own commercial choices or other circumstances. (Para 58) (Para 61) (Para 62)

"I accept the explanations given by the second defendant at [58]–[61] above on a balance of probabilities." — Per S Mohan J, Para 62

The court then tied this finding back to the misrepresentation claims. It held that, in addition to failing to prove falsity, the plaintiffs had not established reliance on a balance of probabilities. That dual failure meant both fraudulent and negligent misrepresentation claims failed at a foundational level. The judge’s conclusion was explicit and categorical. (Para 65)

"Accordingly, in addition to my conclusion that the plaintiffs have not proven that the Representations are false (see [32] above), I also dismiss the plaintiffs’ claims for fraudulent and negligent misrepresentation on the basis that they have not established, on a balance of probabilities, that they relied on the Representations." — Per S Mohan J, Para 65

How Did the Court Deal With the Plaintiffs’ Loss-of-Chance Theory?

The plaintiffs initially characterised their loss as the sum of S$616,700 owed under the contracts. At the hearing, however, Mr Lun reframed the case as one for loss of an opportunity to commence legal action expeditiously. The court addressed that shift carefully. It first considered whether the plaintiffs were barred from advancing a loss-of-chance theory because it had not been pleaded in that exact form. The judge held that they were not barred, but that did not mean the claim succeeded. (Para 66) (Para 74)

"the plaintiffs had initially characterised their loss as the sum of S$616,700 owed to the first plaintiff under the Contracts." — Per S Mohan J, Para 66

"Mr Lun reframed the plaintiffs’ claim as one for the loss of an opportunity to commence legal action expeditiously." — Per S Mohan J, Para 66

To explain why the recharacterisation was permissible, the court referred to the general rule that parties are bound by their pleadings, but also to authorities showing that a loss-of-chance claim may be considered where it draws on the same body of evidence and does not cause prejudice. The judge cited iVenture Card, Columbia Asia Healthcare, and Tembusu Growth Fund in that context. The court’s point was not that pleading rules are irrelevant, but that fairness and the evidential overlap can justify considering the alternative characterisation. (Para 68) (Para 69) (Para 71)

"The general rule is that parties are bound by their pleadings and that the court is precluded from deciding on a matter that the parties themselves have decided not to put into issue: iVenture Card Ltd and others v Big Bus Singapore City Sightseeing Pte Ltd and others [2022] 1 SLR 302 (“iVenture Card”) at [36]." — Per S Mohan J, Para 68

"In the first place, the statement of claim did not plead damages by way of a loss of chance. In my view, a general plea for damages is different from damages for loss of a chance. The latter has to be clearly pleaded." — Per S Mohan J, Para 69

"Vinodh Coomaraswamy J noted the general rule that parties are bound by their pleaded cases (at [93]–[94]), but nonetheless went on to observe that AI’s loss of chance claim “[drew] on the same body of evidence adduced at trial” in support of its pleaded claim (at [95])." — Per S Mohan J, Para 71

On the merits, however, the court held that the plaintiffs failed to prove the loss-of-chance case. The judge explained the Allied Maples principle: where the lost chance depends on what the plaintiff himself would have done, the plaintiff must prove that on a balance of probabilities; only where the chance depends on a third party’s hypothetical conduct is the lower substantial-chance threshold engaged. Applying that distinction, the court held that the plaintiffs had to prove that they themselves would have commenced proceedings in October 2018, and they failed to do so. (Para 75) (Para 77)

"In Allied Maples, Stuart-Smith LJ noted that where a plaintiff’s case is that the loss of chance arises out of something that the plaintiff himself would otherwise have done, had the defendant not breached his obligations, then the plaintiff must prove this on a balance of probabilities. However, where the plaintiff’s claim depends on the hypothetical actions of a third party, then the plaintiff does not need to prove on a balance of probabilities that the third party would have acted a certain way, but only needs to show that there was a substantial (rather than speculative) chance that the third party would have acted as such (at 1610–1611)." — Per S Mohan J, Para 75

The judge then concluded that the plaintiffs had failed to prove they would have sued in October 2018, and had also failed to prove that any earlier suit would have led to recovery and enforcement. That meant the loss-of-chance theory failed at both the first and second stages of the causal inquiry. The court’s conclusion was therefore not merely that the chance was small, but that the plaintiffs had not established the factual foundation for the chance at all. (Para 77)

"In my judgment, the plaintiffs have failed to discharge this burden of proof." — Per S Mohan J, Para 77

Why Was the Unlawful Means Conspiracy Claim Rejected?

The court also rejected the unlawful means conspiracy claim. The extraction indicates that the judge held the claim was not made out, and the reasoning was tied to the absence of proof of the underlying misrepresentations and the absence of evidence of a combination or intent to injure. The judge’s conclusion was concise but decisive: the conspiracy claim fell with the failure of the factual and legal predicates on which it depended. (Para 19)

"The plaintiffs’ claim for unlawful means conspiracy is therefore also not made out." — Per S Mohan J, Para 19

That conclusion is significant because unlawful means conspiracy requires more than a commercial dispute or a failed investment. The plaintiffs needed to show a combination, unlawful means, and an intention to injure, but the extraction does not reveal any evidential basis sufficient to satisfy those requirements. The court therefore did not treat the second defendant’s communications as part of a conspiratorial plan; instead, it treated them as communications that the plaintiffs failed to prove were false or relied upon. (Para 18) (Para 19)

In practical terms, the conspiracy claim was not allowed to become a backdoor route to liability after the misrepresentation claim failed. The judge’s approach shows a disciplined insistence on proof of each element and a refusal to infer conspiracy merely from the fact that the investment failed and the plaintiffs suffered loss. (Para 19)

Why Did the BNP Paribas Performance Bond Claim Fail?

The court also addressed the plaintiffs’ claim to the BNP Paribas Performance Bond as a separate issue. The extraction states that the judge held the plaintiffs were not entitled to it. Although the detailed reasoning is not set out in the extracted material, the outcome is clear: the bond claim did not survive the court’s analysis of the underlying factual and legal disputes. (Para 20) (Para 49)

"Accordingly, I would dismiss the plaintiffs’ claims on this basis alone." — Per S Mohan J, Para 49

Because the bond issue was framed as one of the three issues for determination, the court’s dismissal of the plaintiffs’ claims necessarily disposed of that relief as well. The extraction does not provide a separate doctrinal analysis of the bond, so no further factual or legal proposition can safely be stated beyond the court’s conclusion that the plaintiffs were not entitled to it. (Para 20)

How Did the Court Treat the Parties’ Evidence and the Burden of Proof?

A recurring theme in the judgment was burden of proof. The court repeatedly emphasised that the plaintiffs had to prove falsity, reliance, and loss on a balance of probabilities. The judge did not accept the plaintiffs’ attempt to rely on inference alone, especially where the only concrete evidence on one issue was the DBS account statements. The court’s approach was evidentially strict: allegations of dishonesty or misrepresentation required proof, not suspicion. (Para 32) (Para 36) (Para 53)

The second defendant’s evidence was accepted where it explained the communications and his understanding of the situation. The judge expressly stated that he accepted those explanations on a balance of probabilities. That finding is important because it shows the court did not simply reject the plaintiffs’ case for want of corroboration; it positively preferred the defendant’s account on the evidence. (Para 62)

The court’s treatment of the loss-of-chance theory also reflects the same evidential discipline. Even though the judge was willing to consider the recharacterised claim, he still required proof that the plaintiffs themselves would have acted earlier and that earlier action would have mattered. The plaintiffs failed on both counts. The result was a complete failure of the damages case, not merely a reduction in quantum. (Para 74) (Para 75) (Para 77)

Why Does This Case Matter?

This case matters because it is a clear illustration of the evidential burden in post-contract misrepresentation litigation. A plaintiff cannot simply point to a failed investment, later non-payment, or a disappointing commercial outcome and infer that earlier statements were false. The court required proof of falsity at the time the statements were made, proof of actual reliance, and proof of loss caused by that reliance. That approach is especially important in commercial disputes where parties often communicate optimism, explanations, or future intentions after a contract has already been signed. (Para 24) (Para 32) (Para 53)

The case also matters because it shows the limits of the Misrepresentation Act in a post-contract setting. The judge made clear that s 2 applies where a person enters into a contract after a misrepresentation has been made. Where the alleged statements are made after the contract and are said to have induced forbearance rather than entry into the contract, the statutory route is not straightforwardly available. That distinction is practically significant for lawyers pleading claims arising from delayed payment, restructuring discussions, or attempts to keep a commercial relationship alive. (Para 23) (Para 24)

Finally, the judgment is useful on loss of chance. The court accepted that a claim may be recharacterised in appropriate circumstances, especially where the evidence overlaps and there is no prejudice. But the substantive test remains demanding: if the lost chance depends on what the plaintiff himself would have done, the plaintiff must prove that on a balance of probabilities. The case therefore serves as a reminder that loss-of-chance analysis is not a shortcut around proof; it is a structured doctrine with its own evidential thresholds. (Para 68) (Para 71) (Para 75) (Para 77)

Cases Referred To

Legislation Referenced

• Misrepresentation Act (Cap 390, 1994 Rev Ed), s 2 — quoted and applied as the statutory basis for damages for misrepresentation, but held inapplicable on the facts because the alleged statements were not shown to have induced entry into the contracts (Para 23) (Para 24)

Source Documents

• Original Judgment — Singapore Courts
• Archived Copy (PDF) — Litt Law CDN
• View in judgment: "Accordingly, I would dismiss the plaintiffs’..."
• View in judgment: "This is a case of investments..."
• View in judgment: "The plaintiffs have lost a not..."
• View in judgment: "Accordingly, I would dismiss the plaintiffs’..."
• View in judgment: "In my judgment, the plaintiffs have..."

This article analyses [2022] SGHC 207 for legal research and educational purposes. It does not constitute legal advice. Readers should consult the full judgment for the Court's complete reasoning.