PATRICK MICHAEL KELLY v CLICKS2CUSTOMERS PTE LTD & 3 Ors

"I concluded that the operative agreement was that encapsulated in the 8 March MOU." — Per Aedit Abdullah J, Para 32

Case Information

• Citation: [2023] SGHC 4 (Para 0)
• Court: General Division of the High Court of the Republic of Singapore (Para 0)
• Case Number: Suit No 218 of 2018 (Para 0)
• Coram: Aedit Abdullah J (Para 0)
• Hearing Dates: 6–8, 13–15 July 2021; 12 January, 2 March, 11 April 2022 (Para 0)
• Judgment Date: 6 January 2023 (Para 0)
• Counsel for the Plaintiff: Pillai Pradeep G, Lin Shuling Joycelyn and Tham Kai Lun Josiah, PRP Law LLC (Para 0)
• Counsel for the Defendants: Goh Seow Hui and Sharmaine Chan Sze Min, Bird & Bird ATMD LLP (Para 0)
• Area of Law: Contract — Formation; Contract — Breach; Contract — Remedies — Damages (Para 0)
• Judgment Length: Not stated in the extraction (Para 0)

Summary

This dispute centred on the business relationship between the plaintiff and the first and second defendants, and on which of several agreements governed that relationship. The court identified the controversy as turning on the operative contract, the effect of the 8 March MOU, whether the plaintiff remained entitled to commission, and whether termination without notice sounded in damages. The court ultimately held that the 8 March MOU was the operative agreement, save for unresolved equity provisions, and that the plaintiff was entitled to unpaid commission for 2015 together with damages for termination without reasonable notice. (Para 1) (Para 32) (Para 58) (Para 89)

The factual background began with a telephone call on 30 May 2011 and progressed through a series of drafts and agreements, including the 2011 Oral Agreement, the July 2011 Agreement, and the 8 March MOU signed in Johannesburg. The court treated the parties’ conduct, including the plaintiff’s own emails and the defendants’ payment practices, as confirming that the 8 March MOU was intended to be binding. It also found that the unresolved equity provisions did not prevent the commission provisions from taking effect. (Para 4) (Para 5) (Para 32) (Para 35)

On remedies, the court rejected the defendants’ attempt to recast the commission calculation after trial and declined to accept a new methodology that had not been properly grounded in the evidence. It accepted the plaintiff’s expert’s original methodology, rejected the defendants’ counterclaim, and awarded damages of S$679,142, comprising unpaid commission and interest. The court also held that reasonable notice was implied and that three months’ notice was reasonable on the facts. (Para 62) (Para 77) (Para 82) (Para 86) (Para 87) (Para 89)

How did the court identify the operative agreement governing the parties’ relationship?

The court approached the case as one about contractual formation and contractual hierarchy: which of the parties’ successive arrangements actually governed their commercial relationship. The plaintiff’s position was that the July 2011 Agreement remained the binding contract and that the later MOU was not operative, whereas the defendants contended that the 8 March MOU was the binding document at least as to commission. The court resolved that issue by examining the parties’ words and conduct, the completeness of the commission provisions, and the extent to which the unresolved equity provisions prevented the MOU from taking effect. (Para 1) (Para 11) (Para 19) (Para 32)

"The required elements for a binding agreement were made out, namely, the intention to create legal relations, consideration, and certainty of terms." — Per Aedit Abdullah J, Para 32

The court held that the 8 March MOU was the operative agreement because the objective indicia showed a concluded bargain on the commission structure. It noted that the plaintiff himself had sent emails affirming that the MOU was binding and operative, and that the defendants’ conduct was consistent with treating the MOU as governing the relationship. The court therefore rejected the notion that the mere existence of unresolved matters, particularly equity, prevented the MOU from being binding in respect of the matters that had been settled. (Para 32) (Para 35)

The court was careful to distinguish this situation from a classic “subject to contract” case. It observed that the present case was not one where the parties had left the entire arrangement in suspense; rather, only a specific term remained unresolved. That distinction mattered because the settled commission provisions could stand on their own even though the equity provisions were still being negotiated. The court therefore concluded that the operative agreement was the 8 March MOU, but not in a way that forced unresolved equity terms into binding effect. (Para 35)

"parties may conclude a binding contract even though there are some terms yet to be agreed between them; the important question is whether the parties, by their words and conduct objectively ascertained, have demonstrated that they intend to be bound despite the unsettled terms" — Per Aedit Abdullah J, Para 35

Why did the court treat the 8 March MOU as binding despite unresolved equity provisions?

The court’s reasoning turned on objective intention, certainty, and the separability of the commission provisions from the equity discussions. The defendants argued that the commission clauses in the MOU were complete and binding, while the plaintiff sought to avoid the MOU’s effect by relying on earlier arrangements. The court accepted that the commission provisions were sufficiently certain and that the parties’ conduct showed they intended those provisions to govern immediately, even if the equity component was still open. (Para 19) (Para 32) (Para 35)

The court also relied on the plaintiff’s own communications. It found that there was sufficient evidence that the plaintiff considered himself bound by the 8 March MOU, because he had sent various emails to the defendants affirming that the MOU was binding and operative. That evidence mattered because it undermined the plaintiff’s attempt to characterise the MOU as merely provisional or incomplete. The court treated those emails as part of the objective matrix showing assent. (Para 32)

In addition, the court emphasised that the unresolved equity provisions did not infect the entire document. The judgment stated that the present case was not similar to subject-to-contract cases generally, because only a specific term was unresolved. That meant the court could enforce the settled commission terms without pretending that the parties had reached finality on every issue. The result was a partial but real contractual binding effect. (Para 35)

"The present case was not similar to subject to contract cases generally, since this was just a specific term that was unresolved." — Per Aedit Abdullah J, Para 35

What was the court’s treatment of clause 5.6 and the plaintiff’s entitlement to commission on the SCB account?

A major issue was whether clause 5.6 of the 8 March MOU entitled the plaintiff to commission on the SCB account and, if so, on what basis. The defendants argued that the plaintiff was not entitled to payment for the relevant period because clause 5.6 required him to be and remain actively involved in the work for that client. The court rejected that reading. It held that the clause required active involvement with respect to the client, but not continuous active involvement throughout the entire life of the account. (Para 46) (Para 47)

"The clause required that there be active involvement with respect to the client. But contrary to the defendants’ arguments, the plain text did not require active involvement in both acquisition and retention." — Per Aedit Abdullah J, Para 47

The court’s interpretation was text-based and resisted the defendants’ attempt to add requirements not found in the clause. It reasoned that the plain language did not support the proposition that the plaintiff had to be continuously involved in both acquisition and retention. Instead, the clause was satisfied if there was active involvement in relation to the client in the relevant sense. That construction was important because it preserved the plaintiff’s entitlement to commission notwithstanding the defendants’ attempt to narrow the clause after the relationship deteriorated. (Para 47)

The court also addressed the defendants’ reliance on the contra proferentem principle. It referred to authority explaining that where a provision is one-sided or onerous, it is construed strictly against the party seeking to rely on it, and that the rule operates only where there is ambiguity. The court used that framework to reinforce its rejection of the defendants’ expansive reading of clause 5.6. In other words, the defendants could not stretch the clause beyond its text to defeat the plaintiff’s commission claim. (Para 50)

"where a particular species of transaction, contract, or provision is one-sided or onerous it will be construed strictly against the party seeking to rely on it" — Per Aedit Abdullah J, Para 50

How did the court deal with the defendants’ argument that the plaintiff had ceased to be involved in SCB?

The defendants sought to defeat the commission claim by arguing that the plaintiff was no longer actively involved in the SCB account and that, in any event, the account had ceased to generate revenue. The court rejected that approach on both evidential and contractual grounds. It found that the SCB Termination E-mail was unhelpful in determining when the account stopped generating revenue, and it declined to accept the defendants’ attempt to use that email as a proxy for the relevant commercial reality. (Para 46) (Para 70)

"The SCB Termination E-mail was therefore unhelpful as to when the SCB account stopped generating revenue for the first defendant." — Per Aedit Abdullah J, Para 70

The court’s treatment of the SCB issue shows that it was not prepared to let a single internal communication override the broader evidential picture. The judgment indicates that the defendants’ evidence did not reliably establish the date on which revenue ceased, and therefore could not be used to cut off the plaintiff’s entitlement in the manner suggested. This was consistent with the court’s broader insistence on grounding the commission analysis in acceptable evidence rather than in post hoc reconstruction. (Para 70) (Para 82)

That approach also aligned with the court’s interpretation of clause 5.6. Because the clause did not require continuous involvement in both acquisition and retention, the defendants’ attempt to show that the plaintiff’s later non-involvement automatically extinguished his entitlement was rejected. The court therefore preserved the plaintiff’s claim for commission on the basis of the contractual structure actually agreed, not the narrower structure the defendants later advanced. (Para 47) (Para 70)

Why did the court reject the defendants’ post-trial recalculation of Net Gross Profit?

The court was critical of the defendants’ attempt to introduce a new calculation methodology after trial. It held that the defendants, in putting forward the new calculation, were going into an unauthorised area and were essentially revisiting the trial. That was a serious evidential objection, because the court was not prepared to allow a party to reshape the case after the evidential record had closed. The court’s concern was not merely procedural; it went to fairness and the integrity of the fact-finding process. (Para 82)

"The defendants, in putting forward the new calculation were going into an unauthorised area and were essentially revisiting the trial." — Per Aedit Abdullah J, Para 82

The court instead accepted the calculations based on the original methodology in the plaintiff’s expert’s first report, because those were the only calculations provided on the basis of acceptable evidence. That meant the court preferred the evidentially anchored approach over the defendants’ later reconstruction. The judgment makes clear that the court was not willing to reward a litigant for attempting to improve its case after the fact by introducing a fresh computational framework. (Para 86)

This evidential ruling had direct consequences for quantum. By rejecting the defendants’ recalculation, the court preserved the plaintiff’s entitlement to the amount derived from the original expert methodology. The court then fixed the total award at S$679,142, comprising S$503,398 and S$175,744 in interest payable. The damages analysis therefore flowed from the court’s insistence on using the proper evidential foundation. (Para 86) (Para 87)

"The calculations based on the original methodology in the plaintiff’s expert’s first report were the only calculations provided on the basis of the acceptable evidence" — Per Aedit Abdullah J, Para 86

How did the court assess the plaintiff’s damages for unpaid commission in 2015?

The damages question was framed as the amount to be awarded in respect of the plaintiff’s claim after the court had determined liability. The court explained that the award had to be determined by reference to the acceptable evidence and the proper commission methodology. It accepted the plaintiff’s expert’s original methodology and rejected the defendants’ attempt to deduct account managers’ salaries from the plaintiff’s commissions, finding no contractual basis for that deduction. (Para 62) (Para 77) (Para 86)

"I did not accept that there was a contractual basis for the defendants’ claim that the account managers’ salary costs should be deducted from the plaintiff’s commissions." — Per Aedit Abdullah J, Para 77

The court’s rejection of the salary deduction is important because it shows that the defendants could not unilaterally alter the commission base by importing costs not supported by the contract. The court treated the commission arrangement as one that had to be applied according to its agreed terms, not according to a later accounting preference. That approach protected the integrity of the bargain and prevented the defendants from reducing the plaintiff’s entitlement through an unsupported cost allocation. (Para 77)

Ultimately, the court accepted that the total amount to be awarded on the claim for unpaid commission in 2015 was S$679,142, comprising S$503,398 and S$175,744 in interest payable. The court stated that this was the amount ordered in the end. The award thus reflected both the principal commission entitlement and the interest component, and it was tied to the court’s acceptance of the plaintiff’s evidential case. (Para 87)

"In the end, I accepted that the total amount that should be awarded on the claim for unpaid commission in 2015 was S$679,142 (comprising S$503,398 and S$175,744 in interest payable), which was the amount ordered in the end." — Per Aedit Abdullah J, Para 87

Did the court imply a term requiring reasonable notice before termination?

Yes. The court held that there was a breach of an implied term of reasonable notice for termination of the contract with the plaintiff. The defendants had terminated the plaintiff’s services by letter on 28 September 2015, and the court found that termination without notice was wrongful on the facts. The issue was whether the contract, being silent on termination, permitted immediate termination or required notice. The court answered that reasonable notice was implied. (Para 8) (Para 58)

"There was a breach of an implied term of reasonable notice for termination of the contract with the plaintiff." — Per Aedit Abdullah J, Para 58

The court relied on authority for the proposition that where a contract is silent as to its manner of termination by the parties, a party may terminate the contract by giving reasonable notice to the other. It also noted the defendants’ reliance on an older case, Levy v Goldhill, but treated that authority as not controlling. The court then considered the factual context and concluded that three months’ notice would be reasonable on the present facts. (Para 58) (Para 59)

"Where a contract is silent as to its manner by termination by the parties, a party may terminate the contract by giving reasonable notice to the other" — Per Aedit Abdullah J, Para 58

The court’s conclusion on notice was not abstract. It was tied to the commercial relationship before it and to the absence of evidence justifying a different period. The judgment states that, in the absence of other evidence and on the present facts, three months’ notice would be a reasonable length of time. That finding supplied the basis for damages flowing from the wrongful termination. (Para 59)

"In the absence of other evidence and on the present facts, three months’ notice would be a reasonable length of time presently." — Per Aedit Abdullah J, Para 59

How did the court dispose of the defendants’ counterclaim and the plaintiff’s remaining claims?

The court dismissed the defendants’ counterclaim and accepted the plaintiff’s claim for non-payment of commissions in 2015. It also rejected the defendants’ attempt to rely on equitable set-off or other mechanisms to withhold payment. The court’s final disposition was therefore mixed only in the sense that it did not accept every aspect of the plaintiff’s case, but it did grant the central monetary relief sought in relation to termination without notice. (Para 60) (Para 89)

"The defendants were not entitled to their counterclaim." — Per Aedit Abdullah J, Para 60(a)

The court also stated expressly that the plaintiff was entitled to his claim for non-payment of commissions in 2015. That finding followed from the court’s earlier conclusions on the binding effect of the 8 March MOU, the proper interpretation of clause 5.6, and the rejection of the defendants’ evidential and accounting objections. The result was that the plaintiff succeeded on the core commission claim even though the court did not accept every aspect of his broader contractual narrative. (Para 60) (Para 77) (Para 86)

"The plaintiff was entitled to his claim for non-payment of commissions in 2015." — Per Aedit Abdullah J, Para 60(b)

The final orders reflected that structure. The court dismissed the various claims and counterclaims, save that in respect of termination without notice, damages representing the unpaid commission in 2015 and interest totaling S$679,142 were ordered in favour of the plaintiff. That order encapsulated the court’s overall approach: enforce the binding parts of the bargain, reject unsupported post-trial reconstruction, and compensate the plaintiff for the wrongful termination consequences. (Para 89)

"My orders were thus that the various claims and counterclaims are dismissed, save that in respect of the termination without notice, for which damages representing the unpaid commission in 2015 and interest totaling $679,142, were ordered in favour of the plaintiff." — Per Aedit Abdullah J, Para 89

What role did the parties’ conduct and the documentary record play in the court’s reasoning?

The documentary record was central to the court’s analysis of formation and performance. The court noted that numerous drafts of memorandums of understanding were exchanged before the 8 March MOU was signed in Johannesburg. It also relied on the plaintiff’s own emails affirming the MOU’s binding nature. Those materials mattered because they showed that the parties were not merely negotiating in the abstract; they were acting on a commercial arrangement that had crystallised in material respects. (Para 5) (Para 32)

"Numerous drafts of memorandums of understanding (“MOU”) regarding the parties’ business relationship were exchanged. This culminated in the signing of an MOU on 8 March 2012 (“8 March MOU”) at a physical meeting between the plaintiff and the third defendant in Johannesburg, South Africa." — Per Aedit Abdullah J, Para 5

The court also treated the plaintiff’s emails as admissions against his later position. By affirming that the 8 March MOU was binding and operative, the plaintiff undermined his own argument that the July 2011 Agreement continued to govern. The court’s reliance on those emails shows that it was attentive to the parties’ contemporaneous understanding, not just their litigation positions. (Para 32)

On the defendants’ side, the court was not persuaded by later attempts to recast the accounting basis for commission or to use the SCB Termination E-mail as a decisive cutoff. The court’s approach was to privilege the contemporaneous and reliable evidence over retrospective reconstruction. That evidential discipline was especially important in a case where the parties’ commercial relationship had evolved through multiple drafts and informal understandings. (Para 70) (Para 82) (Para 86)

Why does this case matter for contract formation, commission disputes, and termination rights?

This case matters because it confirms that a memorandum of understanding can be binding in part even where some provisions remain unresolved, so long as the parties objectively intended to be bound. The court’s analysis is especially useful in commercial disputes where parties have negotiated multiple drafts and later dispute whether a particular document was merely aspirational or legally operative. The judgment shows that unresolved ancillary terms do not necessarily prevent the settled core of the bargain from taking effect. (Para 32) (Para 35)

The case also matters because it clarifies how courts may interpret commission clauses in commercial arrangements. The court refused to read into clause 5.6 a requirement of continuous involvement in both acquisition and retention when the text did not say that. That is a practical reminder that courts will not rewrite commission provisions to favour one side’s post-dispute interpretation. The decision also demonstrates the importance of evidential discipline in damages calculations, especially where one party seeks to introduce a new methodology after trial. (Para 47) (Para 82) (Para 86)

Finally, the case is significant for its treatment of termination rights in silent contracts. The court implied a term of reasonable notice and fixed three months as reasonable on the facts. For practitioners, that means commercial relationships without express termination machinery may still carry an implied notice obligation, and a party who terminates abruptly may face damages. The judgment therefore has practical value for drafting, dispute resolution, and litigation strategy in service and commission-based relationships. (Para 58) (Para 59) (Para 89)

Cases Referred To

Source Documents

• Original Judgment — Singapore Courts
• Archived Copy (PDF) — Litt Law CDN
• View in judgment: "The defendants were not entitled to..."
• View in judgment: "The plaintiff was entitled to his..."
• View in judgment: "The Court’s directions in relation to..."

This article analyses [2023] SGHC 4 for legal research and educational purposes. It does not constitute legal advice. Readers should consult the full judgment for the Court's complete reasoning.