(2021) 4 SLR 1317

[2021] 4 SLR 1317.
fm Page 1317 Thursday, January 27, 2022 11:51 AM
[2021] 4 SLR SINGAPORE LAW REPORTS 1317
New Ping Ping Pauline

v
Eng’s Noodles House Pte Ltd and others
[2020] SGHC 271
High Court — Suit No 20 of 2019

Valerie Thean J
20–24, 27–30 July, 3–7 August, 28 September 2020; 22 December 2020
Companies — Common law derivative action — Whether leave necessary to
commence — Company challenging minority shareholder’s locus standi to bring
common law derivative action in striking-out application — Striking-out application
dismissed and company not appealing order — Company contending at trial that
leave necessary to commence common law derivative action — Whether leave
necessary to commence or continue common law derivative action
Equity — Fiduciary relationships — Duties — Breach — Ex-director allegedly setting
up competing business to usurp company’s assets and appropriate its goodwill —
Ex-director failing to disclose registration of competing sole proprietorship and
competing trade marks — Ex-employee of company allegedly misappropriating funds
and being involved in conspiracy to injure company — Whether ex-director had
breached his fiduciary duties — Whether ex-employee was fiduciary of company at
relevant time
Intellectual Property — Trade marks and trade names — Passing off — Goodwill —
Alleged licensing agreement between ex-director’s family members and company to
use goodwill — Ex-director and family members contributing to business of company
and thereby claiming to own goodwill in company — Whether ex-director’s family
owned goodwill in company — Whether there was licensing agreement between
ex-director’s father and company
Tort — Conspiracy — Unlawful means — Ex-director, ex-employee and ex-director’s
family members allegedly conspiring to set up competing business to usurp company’s
assets and appropriate goodwill of company — Whether there was conspiracy
between ex-director and family members to injure company
Facts
The plaintiff (“Pauline”), second defendant (“Desmond”) and third defendant
(“Bill”) were the shareholders in the first defendant (“the Company”). The
Company was originally set up to expand Desmond’s father’s popular wanton
mee business. Its original shareholders were Pauline and Desmond, each owning
equal shares in the company and being appointed the directors of the Company.
Bill was later allotted a minority share holding in the Company as well but was
not made a director until much later.
Following a falling out between Desmond and Pauline, Pauline was removed as
a director and Desmond resigned as a director, leaving Bill as the sole director of
the Company. The Company stopped operating but attempts to wind up the
company were unsuccessful. The Company’s original premises were taken over
[2021] 4 SLR 1317.fm Page 1318 Thursday, January 27, 2022 11:51 AM
1318 SINGAPORE LAW REPORTS [2021] 4 SLR
by another wanton mee eatery that Pauline’s husband was associated with
(“Eng’s Wantan Noodle”). Soon after, Desmond’s sisters, the fourth and firth
defendants (“Mui Hong” and “Mei Ling” respectively) set up a separate wanton
mee eatery (the sixth defendant, or “Eng’s Char Siew”) a few shophouses away
from Eng’s Wantan Noodle.
Pauline, as a minority shareholder in the Company, brought a common law
derivative action against the defendants alleging that they had been in
a conspiracy to injure the Company. This, she contended, amounted to a fraud
on the minority and deserving of redress through a derivative action. Pauline
advanced two main contentions: first, that the defendants had been part of
a conspiracy to injure the Company; and second, that Desmond and Bill had
breached the fiduciary duties owed to the Company. The defendants, in turn,
contended that: (a) Pauline had not sought the requisite leave of court to bring
a common law derivative action, (b) that there had been no conspiracy of the
sort described by Pauline, and that (c) there had been no breach of fiduciary
duties by Desmond or Bill. Bill denied being a fiduciary altogether during the
years that he was a mere employee of the Company. Mui Hong, Mei Ling and
Eng’s Char Siew (“the Counterclaimants”) also brought a counterclaim
contending that Pauline had committed the tort of passing off against them.
Held, dismissing both the suit and counterclaim:

(1) While leave was not necessary for the commencement of a common law
derivative action, it was necessary for the continued pursuance of the same:
at [50].
(2) The question of leave to continue the common law derivative action
should have been addressed and resolved prior to trial. By the end of trial, the
witnesses would have been examined and matters fully explored: at [54] and
[55].
(3) There was no agreement between the defendants to injure the company.
Bill was not a fiduciary and in no position to injure the Company, as alleged by
Pauline. Bill was also regarded as an outsider and therefore, not trusted by
Desmond’s family. Bill had no motivation to be a mastermind of the plot. He
was a retiree with a steady income from the very Company that Pauline alleged
Bill had conspired to injure. Desmond was also not in a conspiracy with his
siblings: at [63] to [70].
(4) There were no acts carried out in furtherance of the conspiracy or with the
intention to injure the Company: at [72] to [105].
(5) Bill, not being a fiduciary, owed no fiduciary duties during his time as
a mere employee of the Company: at [63] to [67] and [108].
(6) Desmond breached his fiduciary duties as a director of the Company by
failing to disclose the registration of Mui Hong’s sole proprietorship (the “Sole
Proprietorship”) and composite mark (the “Chilli Mark”). The Sole
Proprietorship was synonymous with his sister, Mui Hong. The Chilli Mark
posed a threat to the Company since none of the Company’s trade names or
trade marks were registered at that time. Yet, neither the Chilli Mark nor the
Sole Proprietorship were disclosed to the Company: at [112] and [113].
[2021] 4 SLR New Ping Ping Pauline v Eng’s Noodles House Pte Ltd 1319
(7) Notwithstanding Desmond’s breach of fiduciary duties, no remedy was

available to the Company. An account of profits could not be pursued as
Desmond had not profited from his breach of duties and equitable
compensation could not be pursued as the breach had not caused any damage to
the Company. The Company had ceased business and was effectively defunct at
the time of Desmond’s breaches of fiduciary duties: at [114] and [115].
(8) There was no fraud on the minority in the present case as there was no
conspiracy to injure the Company. On the contrary, Pauline’s suit was motivated
by a desire to misuse the Company’s intellectual property in order to assist Eng’s
Wantan Noodle: at [118].
(9) The counterclaim in passing off was not sustainable as the
Counterclaimants could not prove their ownership of the Company’s goodwill.
Prior to the incorporation of the Company, the goodwill attached to the hawker
business that Desmond’s father had run at the Dunman Food Centre. There was,
however, no evidence that the goodwill had been assigned to the
Counterclaimants. There was no evidence of a licensing agreement to that effect
and a family’s intention to pass down the goodwill “from generation to
generation” was not sufficient to establish ownership of goodwill. Neither was it
correct to say that “substantive and critical contributions” to the Company’s
operations entitled the contributors to ownership of the goodwill: at [126] and
[129] to [138].
Case(s) referred to
ABB Holdings Pte Ltd v Sher Hock Guan Charles [2009] 4 SLR(R) 111;
[2009] 4 SLR 111 (refd)
Asian Corporate Services (SEA) Pte Ltd v Eastwest Management Ltd (Singapore
Branch) [2006] 1 SLR(R) 901; [2006] 1 SLR 901 (refd)
CDL Hotels International Ltd v Pontiac Marina Pte Ltd [1998] 1 SLR(R) 975;
[1998] 2 SLR 550 (refd)
Clearlab SG Pte Ltd v Ting Chong Chai [2015] 1 SLR 163 (folld)
Dolphina, The [2012] 1 SLR 992 (refd)
EFT Holdings, Inc v Marinteknik Shipbuilders (S) Pte Ltd [2014] 1 SLR 860
(folld)
Foss v Harbottle (1843) 2 Hare 461; 67 ER 189 (refd)
Gromax Plasticulture Ltd v Don & Low Nonwovens Ltd
[1998] EWHC Patents 316 (distd)
Nagase Singapore Pte Ltd v Ching Kai Huat [2007] 3 SLR(R) 265;
[2007] 3 SLR 265 (refd)
Ng Eng Ghee v Mamata Kapildev Dave [2009] 3 SLR(R) 109; [2009] 3 SLR 109
(folld)
Nottingham University v Fishel [2000] IRLR 471 (refd)
Novelty Pte Ltd v Amanresorts Ltd [2009] 3 SLR(R) 216; [2009] 3 SLR 216 (folld)
Oates v Consolidated Capital Services Pty Ltd [2009] NSWCA 183 (folld)
OCM Opportunities Fund II, LP v Burhan Uray [2004] SGHC 115 (refd)
OUE Lippo Healthcare Ltd v Crest Capital Asia Pte Ltd [2020] SGHC 142 (refd)
Raiffeisen Zentralbank Osterreich AG v Archer Daniels Midland Co
[2007] 1 SLR(R) 196; [2007] 1 SLR 196 (refd)
Reckitt & Colman Products Ltd v Borden Inc [1990] 1 WLR 491 (refd)
Richard Hugh Frame v Eleanor Margaret Smith [1987] 2 SCR 99 (refd)
Sim Poh Ping v Winsta Holding Pte Ltd [2020] 1 SLR 1199 (folld)
Singsung Pte Ltd v LG 26 Electronics Pte Ltd [2016] 4 SLR 86 (folld)
Sinwa SS (HK) Co Ltd v Morten Innhaug [2010] 4 SLR 1 (refd)
Sinwa SS (HK) Co Ltd v Nordic International Ltd [2016] 4 SLR 320 (refd)
Susilawati v American Express Bank Ltd [2009] 2 SLR(R) 737; [2009] 2 SLR 737
(folld)
Ting Sing Ning v Ting Chek Swee [2008] 1 SLR(R) 197; [2008] 1 SLR 197 (refd)
Legislation referred to
Companies Act (Cap 50, 2006 Rev Ed) s 157
Rules of Court (2014 Rev Ed) O 18 r 19, O 18 r 19(1)(a), O 33 r 2, O 33 r 5
Rules of the Supreme Court 1965 (SI 1965 No 1776) (UK) O 15 r 12A
Rules of the Supreme Court (Amendment) 1994 (SI 1994 No 1975) (UK)
Leslie Yeo and Jolene Tan (Sterling Law Corporation) for the plaintiff;
Suresh s/o Damodara, Clement Ong and Joni Khoo (Damodara Ong LLC) for the
first and third defendants;
Leo Cheng Suan and Denise Tay (Infinitus Law Corporation) for the second, fourth,
fifth and sixth defendants.
[Editorial note: The plaintiff’s appeal in Civil Appeal No 8 of 2021 was dismissed by
the High Court (Appellate Division) on 19 July 2021. See [2021] SGHC(A) 4.]
22 December 2020 Judgment reserved.

Valerie Thean J:
Introduction
1 Mr Ng Ba Eng (“Mr Ng”) ran a successful wanton mee hawker stall at
Dunman Street that had a strong following and from 2002, won many
awards. In 2009, his son (the second defendant, hereinafter called
“Desmond”) joined him at the stall. Around 2012, they were approached by
a businessman customer, Jason, who proposed a collaboration. After
successful negotiations, the first defendant (“the Company”) was
incorporated on 27 February 2012 and father and son commenced
operations from the Company’s new premises at Tanjong Katong Road.
Pauline, Jason’s wife and the plaintiff in this action, and Desmond were the
sole shareholders and directors of the Company.
2 Mr Ng passed away in 2013. The Company continued to prosper but
the relationships between the partners started to deteriorate. In 2018,
following a fall-out between the business partners, the Company failed to
secure the renewal of the lease of its operating premises, and the business of
the Company came to a standstill. These premises were eventually taken
over by a new business called “Eng’s Wantan Noodle Pte Ltd” (“Eng’s
Wantan Noodle”). In this common law derivative action and counterclaim,
the Ng family and Pauline lock horns over Mr Ng’s legacy.
Facts
The parties and their claims
3 Mr Ng’s father first sold wanton mee from a pushcart in the Duku
Road vicinity. Mr Ng helped his father from a very young age and learned
the skills of the trade under his father’s tutelage. Mr Ng carried on the
business after his father retired in 1976. Later, when street hawkers were
reorganised into hawker centres, he moved to a hawker stall in Dunman
Food Centre and continued his business there (“the Hawker Business”).
Desmond assisted Mr Ng at the stall from 2009.
4 In early 2012, Jason approached Mr Ng with a business proposal to

expand the Hawker Business. The Company was incorporated on
27 February 2012 with a share capital of $2, with Pauline and Desmond
each initially holding 50% of the shares in the Company. Pauline and
Desmond were also the directors of the company at the point of
incorporation. Desmond employed the third defendant (“Bill”), an
employee at one of Jason’s companies, to assist with managing the
Company’s finances. Following the issuance of additional shares on
12 August 2015, Pauline and Desmond each had their shareholdings
reduced to 47.5% and Bill was given 5% of the shareholding.
5 The Company ceased business operations on 28 February 2018.

Pauline was removed as a director on 8 June 2018. Desmond resigned as
a director on 9 July 2018. Bill is presently the only director of the Company,
having assumed directorship on 8 June 2018.
6 In this action, Pauline contends Bill and Desmond have breached

their fiduciary duties to the Company. Desmond concedes he has such
duties but denies any breach of them. Bill denies having any fiduciary duties
prior to his becoming a director. Pauline’s case is that Bill was vested with
such duties as a “senior employee”. Bill and Desmond, together with the
other defendants, are also accused of conspiring to injure the Company by
setting up a competing business. This competing business is the sixth
defendant, Eng’s Char Siew Wantan Mee Pte Ltd (“Eng’s Char Siew”),
which was incorporated on 5 March 2018 by Desmond’s sisters, the fourth
and fifth defendants (“Mui Hong” and “Mei Ling” respectively). Mui Hong
and Mei Ling each hold 50% of the shares in Eng’s Char Siew and have been
the sole directors of Eng’s Char Siew since its incorporation. Pauline
contends that Eng’s Char Siew was set up as part of a conspiracy to injure
the first defendant.
7 In this context, Pauline brings a common law derivative action,

claiming that:
(a) the defendants (save for the Company) have conspired to injure
the Company by setting up Eng’s Char Siew;
(b) Desmond and/or Bill has/have breached his/their fiduciary
duties to the Company;
(c) Desmond and/or Bill has/have breached his/their duties under
s 157 of the Companies Act (Cap 50, 2006 Rev Ed) (“the Companies
Act”); and that
(d) Bill had misappropriated moneys from the Company
(“the Misappropriation claim”).
The Misappropriation claim was eventually withdrawn on the tenth day of
trial.
8 Mui Hong, Mei Ling and Eng’s Char Siew, in turn, counterclaim that
Pauline has committed the tort of passing off (“the Counterclaim”). They
contend that Pauline and Jason are associated with Eng’s Wantan Noodle,
and helped set up its first outlet at the former premises of the Company. In
doing so, Pauline and Jason, whom Bill regards as the “shadow plaintiff”
and whom Desmond, Mui Hong and Mei Ling regard as the “real plaintiff”
of this suit, have both allegedly , “stolen the family business”. Neither Jason
nor Eng’s Wantan Noodle have been joined in the Counterclaim.
Background to the dispute

9 Broadly speaking, the history of this dispute may be divided into four
time periods:
(a) First, the period prior to the incorporation of the Company.
This period was crucial to the development of the goodwill associated
with the Company that forms the basis for the Counterclaim.
(b) Second, the period spanning the incorporation of the company
and the years of good, dispute-free business which the Company
enjoyed. This period is crucial to understanding the initial agreement
between the parties at the time of incorporation, their respective roles
and remuneration within the Company, and in particular, the role
that Bill played in the company (ie, whether he had been vested with
fiduciary duties or not).
(c) Third, the period which saw the relationship between the
business partners (ie, Pauline and Desmond) deteriorate. Pauline
claims that the conspiracy to injure the Company was incepted and
executed during this period. This conspiracy is, in turn, the lynchpin
of Pauline’s common law derivative action as she complains that the
conspiracy amounts to a fraud on the minority.
(d) Fourth, the period directly preceding and immediately after the
Company ceased business. This period offers further insight into the
conspiracy complained of, and also whether Pauline and Jason had
themselves attempted to appropriate the Company’s business for their
own purposes.
10 With this in mind, I turn to the facts.
Pre-incorporation
11 The Hawker Business began its operations on the first floor of the
Dunman Food Centre before subsequently moving to the basement. The
stall in the basement (“the Dunman Stall”) bore a white signboard with the
English words “Eng’s Char Siew Wan Ton Mee” in blue and the Chinese
characters “ 榮高叉燒雲吞麵 ” in red. These trade names (together, “the
Original Tradenames”) were at all times prominently displayed on the
signboard at the Dunman Stall:
Figure 1: The Original Tradenames

12 Business was brisk and the stall’s wanton mee gained many admirers.
The Hawker Business won many accolades, including the “South East
District Food Awards” in 2002 and an “Excellent” rating from Makansutra
(a local food reviewing website) in 2003. Mr Ng himself was later anointed
a “hawker master” in 2011 by The Straits Times and Lianhe Zaobao
(the local English and Chinese broadsheets respectively).
13 The cooking was shouldered primarily by Mr Ng. Mr Ng was “the
walking brand”, “the one who [won] all the award[s]” and the “main thing
that people will come to the shop [for]”. From 2009, Desmond assisted him
at the stall daily by helping to cook, collecting takings and tending to
customers. The rest of the family played various supporting roles: Mui
Hong, assisting with publicity; Mei Kuen (Mr Ng’s eldest daughter),
“simple bookkeeping” and helping Mr Ng file tax returns; Mei Ling,
Desmond’s wife (“Ah Keat”) and Desmond’s mother (“Mdm Loh”),
wrapping the wantons and cutting chillis.
Incorporation of the Company and employment of Bill

14 In or around early 2012, Jason approached Mr Ng with a business
proposal to expand the Hawker Business. No written records document the
eventual agreement between the parties. It is common ground between the
parties that: (a) Jason advanced a sum of $150,000 as part of the agreement,
(b) there had been substantial goodwill built up by the Hawker Business
prior to the incorporation of the Company, (c) the subject of trade marks,
goodwill or tradenames was not discussed when the Company was being
incorporated, and (d) there was no written licensing agreement for any
trade marks or tradenames.
15 Pursuant to this agreement, the Company was incorporated on
27 February 2012 with Pauline and Desmond each initially holding 50% of
the shares in the Company. Bill, then an employee in Jason Parquet
Specialist Pte Ltd (“JPS”), joined the Company to assist with its accounts
and finances. There is no dispute that Bill was paid approximately $1,500
per month as an employee of the company and received 5% of the profits at
year-end. It is, however, disputed whether this was as part of a profit-
sharing agreement or from his 5% shareholding in the Company.
16 The Company began business at its new premises at 287 Tanjong
Katong Road Singapore 437070 (“the 287 Premises”) around May 2012.
Desmond was the formal tenant under the tenancy agreement for these
premises (“the 287 Tenancy Agreement), but there was an express clause in
the lease that stated that the premises were for the business of the Company
(ie, Eng’s Noodles House Pte Ltd). There was also a renewal clause that
entitled the tenant (Desmond) to write to the landlord three months before
the expiry date of the tenancy (15 March 2018), to seek a renewal of the
lease at a “rent to be agreed, or based on the prevailing market rent but
otherwise containing the like conditions, covenants and stipulations as
[we]re [t]herein contained with the exception of th[at] option for renewal”
(“the Option to Renew”).
17 The 287 Premises used two signboards (respectively, “the Top 287
Signboard” and “the Bottom 287 Signboard”; and collectively,
“the 287 Signboards”):
Figure 2: The Top 287 Signboard
Figure 3: The Bottom 287 Signboard

18 The Top 287 Signboard stated “Eng’s Char Siew Wantan Mee”,
accompanied by the Chinese characters “ 榮高叉燒雲吞麵 ”. The look and
get-up of this signboard, however, was different from the Original
Tradenames and signboard used at the Dunman Stall in at least three
regards.
19 First, the colour scheme was different. The “Eng’s” used in the
Original Tradenames was blue against a white background. It was
accompanied by the Chinese characters (“ 榮高叉燒雲吞麵 ”) in red and the
English words “Char Siew Wan Ton Mee” in black. In contrast, the Top 287
Signboard had the English words “Eng’s Char Siew Wantan Mee” in green,
inscribed against a background with a yellow-white gradient. Second, the
words were different too. The Top 287 Signboard used the words “Char
Siew Wantan Mee” (different from “Char Siew Wan Ton Mee”
(see Figure 1)) and these words were in bold on the new signboard as well.
There were also, at first glance, some difference in the kerning of the words,
although the visual evidence made these distinctions difficult to discern.
The same, red Chinese characters (“ 榮高叉燒雲吞麵 ”) were used too. But the
font used in the Original Tradenames was different, evoking a more
calligraphic style as opposed to that used in the Top 287 Signboard. Third,
the Top 287 Signboard had a picture of the noodles (on the left side of the
board) and a small graphical representation of two chillies at the bottom
right corner of the board. These were not present on the signboard at the
Dunman Stall.
20 The Bottom 287 Signboard was materially similar to the Top 287
Signboard save for two differences. First, it did not have the chilli designs
and second, the English words used were “Eng’s Noodles House Char Siew
Wantan Mee” [emphasis added in bold] instead.
21 When business at the Company began, Desmond and Mr Ng did
most of the cooking. It took between seven and nine months to train the
staff and put the operational systems in place for the business to run on
“autopilot”. After training the staff to cook, Desmond and Mr Ng stepped

back from the kitchen work, transferring to the more customer facing
“frontline”. Mr Ng, however, continued the “supervising of all those [sic]
kitchen backend”, even as most of the “hands-on” work was done by the
staff. As for the others, Mei Ling worked the till while Ah Keat and
Mdm Loh wrapped the wantons. Bill only worked at the Company on
a part-time basis handling the accounts, and some administrative matters
(such as liaising with the property agent). Their jobs scopes and
responsibilities did not change over the years.
22 Regarding salaries, Mr Ng was initially paid $5,000/month; Desmond,
$5,000/month; Mei Ling, $2,000/month; Ah Keat, $1,200/month; Pauline,
$1,500/month; Bill, $1,500/month and Mdm Loh, $500/month.
23 Mr Ng drew his last paycheck in June 2013. He passed away on
17 June 2013, from a sudden heart attack. Following this, Mdm Loh’s
monthly pay, which was $1,050 in June 2013, was increased to $3,500 in
July and August, and from September, $3,600. Desmond’s monthly pay was
increased from $5,000 to $5,500. The reason for these increments is
a matter of dispute and relevant to the Counterclaim (see below at [135]).
The Company’s profitability increased steadily after Mr Ng passed away,
but the relationships between parties started to decline.
Deterioration of relationship between Pauline, Jason and Bill

24 On 12 August 2015, 5% of the shareholding in the Company was
allotted to Bill. In order to achieve this, the share capital was first increased
from $2 to $200. Following this, 94 shares (of $1 each) were issued to
Pauline and Desmond each, bringing their respective share totals to
95 shares. Bill was then issued ten shares. Pauline contends that this
allotment resulted from Bill’s misrepresentations, an allegation that Bill
disputes (see below at [74]).
25 On 1 September 2015, the Company’s registered address was changed
through a directors’ resolution to 30 Simon Lane Singapore 546048. This
was Bill’s residential address. Prior to the change in address, the Company’s
registered address was 16 Tampines Street 92 JP Building Singapore 528873
(“the JPS Address”). This was the corporate address of JPS, the company
where Bill used to work. The reasons for this change in registered address
are disputed as well (see below at [79]).
26 Jason and Pauline contend that sometime in 2016 they discovered
that they had been duped into helping Bill acquire a 5% share in the
Company. They asked for the shares to be returned. Matters continued to
escalate. According to Bill, Jason and Pauline took the Company’s
documents on 20 January 2017, preventing the Company from filing its
annual returns for 2016 and 2017, and incurring approximately $900 worth
of filing/penalty fees imposed by the Accounting and Corporate Regulatory
Authority. Pauline filed a police report against Bill alleging financial

misappropriation on 12 February 2018. The Company meanwhile filed a
suit for the return of its documents, which were then retrieved on
2 November 2018, after a settlement was reached between the parties.
Deterioration of relationship between Pauline, Jason and Desmond
27 In 2015, Jason fell into financial trouble arising from problems with
Jason Holdings, the parent company of JPS. Desmond claimed that around
August 2015, Jason had asked him to purchase $120,000 of shares in Jason
Holdings, saying this was to be treated as a loan and repaid within two to
three days. According to Desmond, Jason did not repay the amount and the
shares are only worth around $750 today. Desmond also contends that
Pauline and Jason began picking fights with him about the Company.
Matters were so heated that at one point, in a WhatsApp message dated
14 November 2016, Desmond expressed his wish to “clos[e] down the
shop” and requested that Bill inform Pauline and Jason.
28 Mui Hong, aware of the deteriorating relationship between the

Company’s directors, registered a sole proprietorship on 8 February 2017
“in anticipation of having [an] avenue to carry on the business” (“the Sole
Proprietorship”). Later, she also registered a composite mark (“the Chilli
Mark”) comprising the words “Eng’s”, the Chinese characters “ 荣高 ” and
the chilli logo that was mentioned above at [20]. This was registered on
3 October 2017 under the Sole Proprietorship:
Figure 4: The Chilli Mark
29 In a bid to “settle all the outstanding dispute [sic] and unhappiness

and also to avoid causing any inconvenience to the shop in future”,
Desmond, in a WhatsApp message dated 31 May 2017, offered to buy out
Pauline’s shares for $350,000. Jason did not take up this offer.
30 Mei Ling and Desmond said that by 2018, Jason and Pauline were
“pushing [the Ng family] to franchise the Family Wantan Mee Business,
which was never [the Ng family’s] intention”. They contended that the
pressure to franchise the business had been part of Jason’s attempt to raise
money to pay off his debts.
Cessation of the Company’s business and aftermath
31 The lease for the 287 Premises was due to expire on 15 March 2018.
Pursuant to the renewal clause in the 287 Tenancy Agreement, negotiations
had commenced with the landlord for the renewal of the lease. In fact, the
lease was still available for renewal as late as 1 January 2018. Eventually,
Desmond and the landlord reached an agreement on a rental price for the
subsequent lease term.
32 Notwithstanding this, on 8 January 2018, Bill conveyed to the real

estate agent, Jane, that Desmond wanted Pauline to sign the lease and that
Jane should arrange with Pauline to sign the lease. Pauline, when informed
of this, professed surprise and confusion (“I have no idea abt the lease term
and the files are all with [Bill]”).
33 Bill and Desmond did not hear from Pauline or Jane after 8 January
and became suspicious that they had “lost the shop”. Mei Ling, on her part,
observed that Jason had been speaking to the head chef at the Company,
coming to take measurements of the kitchen specifications after working
hours and scrutinising the company accounts. Mui Hong’s suspicions were
aroused as well. Desmond shared his sisters’ trepidation and became
convinced that the lease for the 287 Premises “was being stolen”.
34 On 24 January 2018, Desmond’s lawyers wrote to Pauline seeking her

co-operation in winding up the Company, citing a “collapse of trust and
confidence in the partnership”. On the same day, Bill sent an e-mail to Jane
(“the 24 January 2018 E-mail”) informing her that “Eng’s Noodles House
Pte Ltd will not be renew [sic] the tenancy agreement after the expired [sic]
of the lease term (ie. 15 March 2018)”. It was also stated in that e-mail that
they would be making “arrangement to find a new tenant to lease the same
place with the agreement rental of $8,800 per month for the next 3 years
periods [sic]”. There was no reply from Jane. On 31 January 2018, Bill
followed up with another e-mail instructing Jane to “prepare a tenancy
agreement and put the new tenant” as one Mr Chew Chye Sin Richard
(“Richard”). Jane replied on 1 February 2018 that a new tenant had already
been secured for the 287 Premises.
35 The Company’s business ceased on 28 February 2018.
36 Eng’s Wantan Noodle (the new tenant of the 287 Premises) was
incorporated on the same day. It then applied to register three marks
(collectively, “the Franchise Marks”):
(a) the first Franchise Mark (“1st Franchise Mark”), identified by

Trade Mark No 40201815221W, was registered on 3 August 2018;
(b) the second Franchise Mark (“2nd Franchise Mark”), identified

by Trade Mark No 40201815222U, was registered on 3 August 2018
as well; and
(c) the third Franchise Mark, identified by Trade Mark
No 40201920188T, was registered on 17 September 2019.
(1st Franchise Mark) (2nd Franchise Mark) (3rd Franchise Mark)

Figure 5: The Franchise Marks
37 The Ng family contended that Pauline and Jason were assisting Eng’s
Wantan Noodle, which set up its first franchise outlet at the Company’s
former address. The following facts are undisputed. First, Jason owes one
Thomas Hong (“Thomas”) some $1.46m. In fact, Thomas successfully sued
Jason for the said sum and default judgment was entered against Jason on
30 September 2016. Second, the same lawyers who represented Thomas in
Suit 986 of 2016, represent Pauline in the present suit. Third, Thomas is
involved with the Lao Huo Tang Group, although his precise level of
involvement is uncertain. Fourth, sometime around early 2018, Jason
introduced Thomas to the real estate agent who was securing a new tenant
for the 287 Premises and was later “heavily involved in the renovation of
the [first outlet of Eng’s Wantan Noodle]” (which took over the
287 Premises).
38 By the time of trial, Eng’s Wantan Noodle had expanded to multiple
franchise outlets across the island.
39 As for the Company, Pauline was removed from directorship on
8 June 2018 while Desmond resigned on 9 July 2018. Bill became a director
on 8 June 2018. Desmond eventually brought proceedings attempting to
wind up the Company on 20 March 2018. Desmond’s attempt to wind up
the company was resisted by Pauline and he later withdrew his application
on 7 May 2018. The Company continues to subsist, but has no business
whatsoever.
40 In the meantime, Mui Hong incorporated a new company, Eng’s
Char Siew, on 5 March 2018. This was owned in equal parts by Mei Ling
and Mui Hong. The sisters have been the sole directors of Eng’s Char Siew
since its incorporation. She assigned the Chilli Mark to Eng’s Char Siew on
5 March 2018, and applied for it to be formally transferred to Eng’s Char
Siew on 6 August 2018.
41 Following this, Mui Hong registered three marks (collectively,
“the Name Marks”) under Eng’s Char Siew:
(a) the first Name Mark, identified by Trade Mark
No 40201811254U, was registered on 19 October 2018;
(b) the second Name Mark, identified by Trade Mark
No 40201814979U, was registered on 30 November 2018; and
(c) the third Name Mark, identified by Trade Mark
No 40201814978P, was registered on 14 December 2018.
(1st Name Mark) (2nd Name Mark) (3rd Name Mark)

Figure 6: The Name Marks
42 Pauline brought her claim on 14 January 2019, followed by notices of
opposition to the three Name Marks registered by Eng’s Char Siew on
19 February 2019, 28 March 2019 and 11 April 2019. She also applied to
invalidate the Chilli Mark on 4 October 2019.
Issues to be determined
43 Arising out of these facts, Pauline contends that Desmond, Bill, Mui
Hong, Mei Ling and Eng’s Char Siew were in a conspiracy to injure the
Company and that Desmond and Bill had breached their fiduciary duties to
the Company in the process. She therefore brought a common law
derivative action on behalf of the Company. The defendants deny her
narrative, and contend, in their defence, that it was Pauline who failed to
renew the lease for the Company’s benefit, and Pauline who acted to the
Company’s detriment. Moreover, Pauline did not seek any leave to bring
a common law derivative action. The defendants attempted to strike out the
action and failed; they nonetheless submit that this action could be
dismissed at trial for lack of leave. The claim therefore brings the following
issues to the fore:
(a) whether leave is required for the continuance of a common law

derivative action, and if so, whether the action should be dismissed
for lack of leave at this stage of proceedings;
(b) whether there was a conspiracy between the defendants to

injure the company;
(c) whether Desmond and Bill had breached their fiduciary duties
to the Company; and
(d) related to findings on (b) and (c), whether a common law

derivative action is made out on behalf of the Company.
44 The Counterclaim brought by Mui Hong, Mei Ling and Eng’s Char
Siew arises out of the various defendants’ defence that it was Pauline who
was collaborating with Eng’s Wantan Noodle. The main issue is whether
Pauline, through these acts of collusion with Eng’s Wantan Noodle, has
committed the tort of passing off against Mui Hong, Mei Ling and Eng’s
Char Siew.
45 I deal with these five issues in turn.
Is leave required for the continuance of a common law derivative action?
46 Pauline’s claim is premised on a common law derivative action that

was commenced and continued without any leave being sought from the
court. A distinction should be drawn between the common law derivative
action and its statutory counterpart under s 216A of the Companies Act,
where statute requires the obtaining of leave prior to the commencement of
any suit. There is no applicable statutory rule in the case of a common law
derivative action. Pauline’s position is that leave was not necessary. The
defendants, on their part, contend that such leave is necessary but in the
present case, trial is necessary to decide the issue. They saw the issue as one
to be decided at the end of trial. The issues, therefore, are: (a) whether leave
was necessary; and (b) if so, what stage is its consideration appropriate?
Is leave required?
47 In Oates v Consolidated Capital Services Pty Ltd [2009] NSWCA 183

(“Oates”), the issue of whether leave was required for the commencement of
a common law derivative action was considered by the Court of Appeal of
New South Wales (see [71]–[107]). After a survey of the cases and the
historical development of the derivative action, the court concluded that
there was no requirement to seek leave prior to the commencement of a
common law derivative action (see [105]). Campbell JA appeared to
assume, however, that leave was required for the continuance of such
actions. At [99] and [100], he highlighted O 15 r 12A of the Rules of the
Supreme Court 1965 (SI 1965 No 1776) (UK) (added pursuant to the Rules
of the Supreme Court (Amendment) 1994 (SI 1994 No 1975) (UK)) which
required a plaintiff to apply for leave to continue an action.
48 In Sinwa SS (HK) Co Ltd v Nordic International Ltd and another
[2016] 4 SLR 320 (“Sinwa Nordic”) Steven Chong J (as he then was) referred
to Oates, observing at [37]:
The [common law derivative action] would ordinarily be commenced in the
aggrieved shareholders’ own name, with the indication it is being brought in
a representative capacity for the benefit of the company. It is thus well-
established that the action may be brought first, without leave, before the
court thereafter decides on the issue of locus standi. This is the reason why it
was observed by Campbell JA in Tom Michael Oates v Consolidated Capital
Services Pty Ltd and others [2009] NSWCA 183 that ‘there is no requirement
under general law relating to derivative actions for leave to be obtained
before a plaintiff commences such an action’ … [emphasis in original]
This recognised that there is no procedural requirement for leave before a

plaintiff commences a common law derivative action. The same paragraph
explains that the court would thereafter decide the issue of locus standi.
Referencing Oates, there can be no doubt that such decision as to locus
standi was to be upon an application for leave. This explains Chong J’s view
at [38] that “nonetheless leave of court was required to proceed with the
common law derivative action in Nordic International’s name via
arbitration” [emphasis added in bold]. The Court of Appeal also considered
the issue of leave sought in a preliminary trial of issues in Ting Sing Ning v
Ting Chek Swee [2008] 1 SLR(R) 197, although no argument and therefore
discussion was made of its necessity. No doubt parties there, as did Chong J
in Sinwa Nordic at [37], considered the matter “well-established”.
49 The same position was adopted by Margaret Chew, Minority
Shareholders’ Rights and Remedies (LexisNexis, 3rd Ed, 2017), at para 3.012
(“Minority Shareholders”):
Under the common law, there is no procedural requirement to obtain leave
before launching an action, but this does not mean that leave of the court is not
required to pursue the action. Due to the lack of entitlement as of right to
bring a derivative action on the part of the minority shareholder, it has to be
decided as a preliminary issue whether the self-appointed derivative plaintiff
should be permitted to proceed with the action by way of an exception to the
proper plaintiff rule. If leave is obtained following the determination of the
preliminary point, the action would continue for the merits to be adjudicated.
… [emphasis added]
50 The above text reminds us that a common law derivative action is a

departure from the proper plaintiff rule. It further points us to the rationale
behind the necessity for the plaintiff to obtain a grant of leave from the
court. In Foss v Harbottle (1843) 2 Hare 461; 67 ER 189, the court mandated
that injury to the company be pursued by the company. The plaintiff acting
in her representative capacity must establish the locus standi that justifies
such a departure. Therefore, while leave is not necessary for the

commencement of an action, it is necessary for the continued pursuance of
the action.
When should leave be sought?
51 Leave being necessary, how and when should it be sought? Minority

Shareholders at para 3.013 suggested the use of two provisions of the Rules
of Court (2014 Rev Ed) (“the Rules of Court”): (a) O 33 r 2 for the plaintiff;
and (b) O 18 r 19 for the defendant:
An application for a preliminary hearing for the purpose of deciding whether
the shareholder-plaintiff is indeed entitled to proceed with the derivative
action may be made under Order 33 Rule 2 of the Rules of Court. At this
interlocutory stage, the court would have to decide whether the minority
shareholder is entitled to prosecute corporate rights as an exception to the
proper plaintiff rule. On the other hand, the defendants or alleged
wrongdoers could apply to strike out the representative action, under
Order 18 Rule 19 of the Rules of Court, on the basis that the proper plaintiff
is the company. …
52 Pauline did not file, at any stage, any application under O 33 r 2 of the
Rules of Court, or otherwise to seek leave to continue the action. Despite
Pauline’s primary position that such leave was not necessary, Pauline’s
counsel suggested orally – and in my view too casually – if leave was indeed
necessary as a legal requirement, that I grant leave on the first day of trial.
No formal application had been made, nor was this issue mentioned in his
written opening statement.
53 As for Bill and the Company, they made an application to strike out
or stay the action on account of the lack of leave (“the O 18 r 19
application”). This was heard by an assistant registrar (“the AR”) and
dismissed, on 24 April 2019. Bill and the Company did not appeal from the
decision of the AR. Notwithstanding the AR’s dismissal of the O 18 r 19
application, their counsel (“Mr Ong”) took the view that a plaintiff
continued to be under an obligation to obtain leave – “a request … that
must be made and pleaded even at the end of the matter”. This, he argued,
was the plaintiff’s (continuing) burden, and to be undertaken through O 33
r 2 of the Rules of Court. In that regard, he drew a distinction between a
plaintiff’s application for leave under O 33 r 2, and a defendant’s
application to strike out under O 18 r 19. The former, it was argued, would
result in a final declaration that the plaintiff had leave, whereas the latter
was adjudicated on the basis of the pleadings and thus could not be
determinative of the matter. He therefore drew the conclusion that, at the
end of trial, if no reasons for leave were disclosed on the facts on a balance
of probabilities, the action could then be dismissed on that basis. Leave, in
other words, could be addressed at the end of trial.
54 I do not think that could be correct. The purpose of leave must be to

obviate the wasted time and costs that a trial of any action brought by the
wrong party to a suit would entail. The proper course for a plaintiff, arising
from Sinwa Nordic and Oates ([47] supra), would be to file an application
for leave prior to trial of the action. A plaintiff who pursues an action
without seeking leave is responsible, should he be unsuccessful, for the costs
of the wasted action. If the plaintiff declines for reasons of his own to seek
leave, a defendant is not without recourse. Nothing prevents a defendant
from filing an application under O 33 r 2 of the Rules of Court to deal with
the issue of the proper plaintiff, and in so doing seek a dismissal of the
action under O 33 r 5 of the Rules of Court. This option is mentioned
at Oates at [105]: “If trial of the matter would be long and complicated,
a defendant might choose to have a question of the plaintiff’s standing to
bring a derivative action decided as a preliminary question”. In the
alternative, and as suggested by Minority Shareholders, an application
under O 18 r 19 of the Rules of Court is also available. Oates also envisages
this option at [105]: “the defendant can move to seek summary dismissal of
the claim”. In such a case, an application on the basis that there is no proper
plaintiff may be considered under O 18 r 19(1)(a) of the Rules of Court, and
affidavit evidence may be filed on the relevant issues. Such an adjudication
would not be purely, as Mr Ong has characterised it, a matter of the
pleadings. A decision pursuant to a striking-out application could very well
be just as dispositive of the issue as a preliminary hearing held pursuant to
O 33 r 2 of the Rules of Court. On the other hand, a defendant may from
the outset conclude there are sufficient grounds for leave. If he chooses not
to press his point to strike out an action or have it dismissed at an
interlocutory stage for lack of leave, he will have to be content to defend the
action to its end as he has conceded the point. In this case, by choosing not
to appeal the AR’s order, Bill and the Company have conceded their case on
the issue of leave. The remaining defendants, who have chosen not to take
any action, have also conceded the point.
55 Conversely, there is no logical purpose for deciding on the issue of

leave after trial. A leave application requires the court to assess whether
there is a prima facie case of fraud on the minority. In that context, the
court assesses on a prima facie basis, whether the defendant has control,
whether there are alternative remedies, and whether the plaintiff has come
before the court with unclean hands. By the end of trial, the witnesses
would have been interrogated and these matters fully explored. Having
already examined these matters fully, it would be a waste of judicial
resources to consider separately the same issues but on a lower standard of
scrutiny (ie, examining the matter on a prima facie basis). Such an analysis
is more appropriately conducted prior to incurring the costs of a trial, with
a view to preliminarily assessing whether the action should be continued.
56 I turn, then, to the main claim.

Conspiracy to injure by unlawful means
The applicable legal principles

57 In EFT Holdings, Inc and another v Marinteknik Shipbuilders (S) Pte
Ltd and another [2014] 1 SLR 860 at [112] (“EFT Holdings”), the Court of
Appeal set out the legal elements necessary for establishing the tort of
unlawful means conspiracy:
(a) there must be a combination of two or more persons to do
certain acts (“the Combination requirement”);
(b) the acts must have been performed in furtherance of the
agreement (“the Furtherance requirement”);
(c) the acts must be unlawful (“the Unlawfulness requirement”);
(d) the alleged conspirators must have had the intention to cause
damage or injury to the plaintiff by those acts (“the Intention
requirement”); and
(e) the plaintiff must have suffered loss as a result of the conspiracy
(“the Loss requirement”).
58 To establish her case, Pauline asserts that the defendants “combined
together to set up a competing business to usurp [the Company’s] assets
and ride on the goodwill and reputation of [the Company]”. She relies on
the following facts to support her allegations:
(a) the issuance of shares on 12 August 2015;
(b) the change of the Company’s address on 1 September 2015;
(c) the registration of the Sole Proprietorship on 8 February 2017;
(d) the registration of the Chilli Mark on 3 October 2017;
(e) the alleged attempt to appropriate the lease for the
287 Premises;
(f) the cessation of the Company’s business on 28 February 2018;
(g) the attempted winding up of the Company on 13 April 2018,
pursuant to Desmond’s application on 20 March 2018 for the same;
(h) the incorporation of Eng’s Char Siew as a private limited
company on 5 March 2018; and
(i) the registration of the Name Marks.
59 On the facts, I find that there was no “combination” of the defendants
as alleged. Further, the acts (a) to (i) complained of were not carried out in
furtherance of any agreement between the defendants, nor unlawful. I also
find that Pauline has not proved the defendants’ intent to injure the
Company. I conclude therefore, that there is no conspiracy to injure the

Company by unlawful means, for reasons explained below.
The Combination requirement

60 The essence of conspiracy lies in the fact of agreement between the
defendants: Halsbury’s Laws of Singapore vol 18 (LexisNexis Advance,
2020) at para 240.611. The agreement need not be in the nature of an
express agreement (see Raiffeisen Zentralbank Osterreich AG v Archer
Daniels Midland Co and others [2007] 1 SLR(R) 196 at [95]–[96]), and the
conspirators need not all have joined in the scheme at the same time, nor
need each know what the other conspirators have agreed to do so long as
they were sufficiently aware of the surrounding circumstances and shared
the same object: OCM Opportunities Fund II, LP and others v Burhan Uray
(alias Wong Ming Kiong) and others [2004] SGHC 115 at [49]. The question
was how far each of the parties to the conspiracy was aware of the plan (if
any) and “joined in the execution thereof”: The Dolphina [2012] 1 SLR 992
at [265].
61 Pauline contends that there was an agreement between Bill,
Desmond, Mui Hong, Mei Ling to set up Eng’s Char Siew and thereby
injure the Company.
Bill
62 Bill’s defence is that he was not involved in any plan. Pauline’s
contentions that Bill was a conspirator are bound up with her suggestions
that he was in fact a fiduciary of the Company. It is, according to Pauline,
Bill’s financial role in the Company that allowed him to assist to injure the
company. Bill’s defence, in contrast, is that he was a mere bookkeeper who
could not have helped in the substantial way alleged. I thus first ascertain
Bill’s level of involvement with the company.
(1) Bill’s authority as a fiduciary

63 The “essence of an employment relationship is not typically fiduciary
at all”: Nottingham University v Fishel [2000] IRLR 471, as cited in Nagase
Singapore Pte Ltd v Ching Kai Huat and others [2007] 3 SLR(R) 265 at [26].
An employee is only a fiduciary if he/she is placed in a position where
he/she must act solely in the interests of his employer. There must be
particular functions of the employee which require him/her to pursue the
interests of his employer to the exclusion of other interests, including
his/her own: Clearlab SG Pte Ltd v Ting Chong Chai and others [2015]
1 SLR 163 (“Clearlab”) at [272].
64 As a rough and ready guide to when the imposition of a fiduciary
obligation would be appropriate, Clearlab at [275] adopted the three factors
identified by Wilson J (dissenting) in Richard Hugh Frame v Eleanor
Margaret Smith [1987] 2 SCR 99 at [60], which were cited with approval by
the Court of Appeal in Susilawati v American Express Bank Ltd [2009]

2 SLR(R) 737 at [41]:
(a) The fiduciary has scope for the exercise of some discretion or
power.
(b) The fiduciary can unilaterally exercise that power or discretion
so as to affect the beneficiary’s legal or practical interests.
(c) The beneficiary is peculiarly vulnerable to, or at the mercy of the
fiduciary holding the discretion or power.
65 Practically speaking, this means that employees subject to a high
degree of supervision and review by a more senior employee would
typically not be regarded as fiduciaries: OUE Lippo Healthcare Ltd (formerly
known as International Healthway Corp Ltd) and another v Crest Capital
Asia Pte Ltd and others [2020] SGHC 142 (“OUE Lippo”) at [111].
Moreover, the employee’s portfolio of responsibilities would be a crucial
factor in determining whether he/she is subject to fiduciary duties as well.
For example, in ABB Holdings Pte Ltd and others v Sher Hock Guan Charles
[2009] 4 SLR(R) 111 (“ABB Holdings”), the employee-defendant was in
charge of all aspects of the third plaintiff’s business, being responsible for its
general management as well as business development, marketing and sales.
He “remained part of the top management and attended meetings of the
Country Management Team … He was able to hire and fire for the third
plaintiff”: ABB Holdings at [39]. As such, Judith Prakash J (as she then was)
held that the defendant was “a very senior employee indeed”, owing
fiduciary duties to the third plaintiff: ABB Holdings at [39]. As Hoo Sheau
Peng J put it in OUE Lippo at [112], “[f]iduciary duties akin to those owed
by a director would likely be imposed on senior employees whose domain
extended to all or substantially all of the business of the company” [emphasis
added].
66 Unlike the employee-fiduciaries in the case law, Bill was hardly the
“ruler in his own domain”. Bill only worked at the Company on a part-time
basis handling the accounts, and some administrative matters (such as
liaising with the property agent). Pauline contends that Bill had “played a
major role in the structuring of payments to the shareholders and
[overseeing] the operations of [the Company] in many aspects including
the financial affairs and CPF account of [the Company]”. However, in
reality, Bill took instructions from Jason, clearing matters with Jason before
preparing the documents. Bill’s evidence, which was not challenged, was
that he gave Jason monthly briefings to update him on the accounts and to
ensure that “[Jason] know[s] what is happening”.
67 Pauline, in her closing submissions, argues that Bill “signed most of
the cheques”. However, she concedes in the same breath that the Company
operated on a “Group A-Group B” signatory arrangement wherein one
signatory from each group must authorise any drawing on the Company’s
bank accounts. “Group A” comprised Desmond and Mei Ling. “Group B”

comprised Pauline and Bill. Bill could not have unilaterally drawn on the
accounts without Desmond or Mei Ling’s assent. The simple fact of being a
Group B signatory could not invest Bill with fiduciary duties. Further, the
authority to sign for Group B was shared between Bill and Pauline.
Messages between them show that Pauline was involved in signing the
cheques, at least from 12 January 2016 onwards. From 2016, she imposed
a high degree of scrutiny. If there were no receipts for monthly claims, she
would request for explanations. She kept track of these defects over time
(“There are chunks of no receipts claims every mth [sic], I cannot
comprehend that.”) and took steps to rectify what she evidently saw as
accounting defects (“For Desmond [sic] monthly claim in future, pls [sic]
refrain from signing the cheque. Leave it to me to sign.”). She viewed the
Company’s Central Provident Fund (“CPF”) account to check on the
payroll and CPF contributions, reviewed the Company’s bank statements
and requested for spreadsheets of the Company’s accounts. She instituted
a “monthly routine” of having the Company’s profit and loss statements
submitted to her; she mandated that the Company’s “account files” be
submitted to her “every month”; and gave instructions that Desmond’s
monthly claims were to be approved by her (“Leave it to me to sign.
Likewise for other cheques too, pls do not sign without my approval. I will
sign all cheques in future.”). In fact, the text messages make clear that
Pauline saw herself as being the dominant party in her relationship with
Bill. When Bill refused her request to “submit the file to [her] every month”,
her reply was “I am the director of the company and I order u to submit the
outstanding files that you have no given to me within the next 2 days”. As
such, Bill’s cheque-signing merely reflected the convenient arrangement
between the parties rather than any broad, unfettered discretion on Bill’s
part.
68 Finally, I address an oral “employment agreement” which, as pleaded,
charged Bill with: (a) exclusive management of the operations of the
Company together with Desmond, and (b) responsibility for the finances
and accounts of the Company as the person “in-charge”. This allegation
was neither proven at trial nor pursued in closing submissions. I thus find
that Bill was not in a fiduciary position vis-à-vis the Company prior to
taking on the role as director of the Company on 8 June 2018.
(2) Bill’s relationship with the Ng family

69 Moreover, it was clear by the end of trial that Mei Ling and Mui Hong
would not have involved Bill in any family plan. Mei Ling and Mui Hong
made their distrust of “outsiders” clear. Everything was to be “a family
business” following Desmond’s debacle with Jason and Pauline. As such,
Bill has no shares in Eng’s Char Siew and is not entitled to any profits of the
company. He is only paid $500 for some freelance accounting work that he
does for Eng’s Char Siew. On Bill’s part, he would have no motivation to be,
as Pauline alleges, a supposed “mastermind” of the plot. He is a retiree with

a steady income from the Company. I accept Bill’s evidence on his lack of
participation with the family’s plans of any kind.
Desmond
70 It is implicit in Pauline’s accusations that Desmond was at the centre
of the plan. However, at multiple points during trial, Mui Hong expressed
her deep dissatisfaction with Desmond. He was not involved in securing the
“248 Premises”; the sisters viewed the property and procured the lease
themselves. He was not allowed to go anywhere near the 248 Premises when
it was being renovated for Eng’s Char Siew; Mui Hong took care of all the
renovations. He was not involved in procuring the supplies and ingredients
for Eng’s Char Siew; Mei Ling was able to do “everything” from her
six years’ experience at the Company. He was not asked about the recipes or
the cooking – the sisters had “the consultant of [their] mother”. He could
not have contributed any start-up capital either; he was “totally broke at
that time”. Currently, Desmond “[helps] out in [his] sister’s shop” and
greets the customers. But he is not entitled to any of the profits and draws
no salary from Eng’s Char Siew. While some aspects of the family’s
evidence may be exaggerated, the manner in which the events unfolded (see
[73]–[106] below) suggests that Desmond was not the chief strategist
behind a conspiracy as Pauline alleges.
Mui Hong, Mei Ling and Eng’s Char Siew

71 Mui Hong and Mei Ling set up Eng’s Char Siew. This, however, was
not pursuant to any conspiracy spearheaded by Desmond. I turn then, to
the Furtherance and Intention requirements to explain their intentions and
their plan.
The Furtherance and Intention requirements

72 Conspiracy is usually established by inference from objective facts
(see Asian Corporate Services (SEA) Pte Ltd v Eastwest Management Ltd
(Singapore Branch) [2006] 1 SLR(R) 901 at [19]). I therefore first deal with
the nine acts alleged by Pauline (see [58] above) that were purportedly
carried out in furtherance of the conspiracy and with intention to injure the
Company. Given that the Furtherance and Intention requirements involve
overlapping facts and findings, I address them together. While the
Furtherance requirement is fairly straightforward, the Intention
requirement deserves explanation. The Court of Appeal in EFT Holdings
([57] supra) put it as such (at [101]):
A claimant in an action for unlawful means conspiracy would have to show
that the unlawful means and the conspiracy were targeted or directed at the
claimant. It is not sufficient that harm to the claimant would be a likely, or
probable or even inevitable consequence of the defendant’s conduct. Injury to
the claimant must have been intended as a means to an end or as an end in

itself.
…
Lesser states of mind, such as an appreciation that a course of conduct would
inevitably harm the claimant, would not amount to an intention to injure,
although it may be a factor supporting an inference of intention on the
factual circumstances of the case. In Lonrho plc v Fayed [1990] 2 QB 479
at 488-489 Woolf LJ observed that the requisite intent (for the tort of causing
loss by unlawful means) would be satisfied if the defendant fully appreciated
that a course of conduct that he was embarking upon would have a particular
consequence to a claimant but nonetheless decided to pursue that course of
conduct; or if the defendant deliberately embarked upon a course of conduct
while appreciating the probable consequences to the claimant. In our
judgment, this is inconsistent with the requirement that intention must be
shown. It is simply insufficient in seeking to meet the element of intention to
show merely that there was knowledge to found an awareness of the
likelihood of particular consequences.
[emphasis in original in italics; emphasis added in bold italics]
73 In my judgment, none of the nine acts were carried out in furtherance
of any conspiracy.
Allotment of shares to Bill

74 I first consider the allegedly wrongful allotment of 5% of the
Company’s shares to Bill on 12 August 2015. According to Pauline, the
issuance of shares to Bill “paved the way for the Plaintiff’s removal as
a director in June 2018”. This was allegedly part of a calculated and pre-
meditated plan to “wrest control of the [Company]”.
75 Bill’s version is that Jason promised this 5% shareholding to him from
the outset. It was only when Bill planned to leave Jason Parquet, that he
decided he ought, for the sake of caution, to complete the paperwork and
formalise the arrangement. Desmond supported Bill’s evidence on this
point, explaining that while he was not happy with an arrangement that left
him with less than 50% of the shares, this had been agreed with Jason from
the start. On Desmond’s part, he signed the resolutions in 2015 because he
felt he ought to honour the agreement.
76 Pauline signed the resolutions too, but claims that she had been
misled and induced by Bill (and Desmond) into signing these documents.
I reject her evidence. Her assertions, as she admitted on the stand, are
wholly unsubstantiated, bereft of any proof. On 22 September 2015, she
queried Bill on the specific allocation of shares, and Bill explained that his
5% was derived by issuing extra shares to adjust the shareholding as follows:
Shareholder Shares (#) Shareholding (%)

Pauline 95 47.5%
Desmond 95 47.5%
Bill 10 5%
Total 200 100%
Subsequently, she signed documents for dividends to be paid out to
“shareholders who [were] in the Register of Members”. Bill was paid
dividends for his shares in 2015, 2016, and 2017.
77 Pauline’s evidence varied over the course of trial. At some points, she
referred to a telephone conversation (“Bill told me there’s a stack of
document for me to sign, accounting document … He told me Desmond
has signed. I just have to sign below Desmond’s signature will do.”). At
other points, she characterised the misrepresentation as having been made
through Bill’s conduct (“[Bill] would leave the documents at the counter of
the [Company’s] premises for [Pauline] to sign as per the usual practice”).
Whatever form these supposed representations took, there was simply no
reference to, much less any misrepresentation of the contents of these
documents. There was no suggestion that Bill and/or Desmond had sought
to cover up or mask the nature of these share allotment documents. Pauline
was simply told to sign the documents. Objectively speaking, there is
nothing misleading about such an instruction. If Pauline’s argument is that
Bill had taken advantage of the “usual practice” and capitalised on her
complacency to execute this share allotment, such an allegation was neither
pleaded nor borne out by any evidence. If anything, the evidence suggested
the precise opposite. Pauline is experienced in corporate documents, having
held multiple directorships in the past. The share allotment document was
also, on its face, clear, with little room for confusion. The words
“ALLOTMENT OF SHARES” were inscribed in bold at the top of the page,
and the allotment of shares was the only matter printed on that page.
78 The facts are plain. Pauline did not “discover” Bill’s shareholding in
2016. Pauline signed the papers in 2015 because she was aware of the earlier
agreement between Bill and Jason. The shares, in other words, were not
issued pursuant to any conspiracy to injure the Company.
Change of Company’s registered address

79 I turn now to consider the change of the Company’s address.
Pauline’s contention is that Desmond and Bill attempted to prevent any
official correspondence from reaching her and/or the Company by
changing its registered address to Bill’s residential address.
80 Bill, on the other hand, furnishes a reasonable explanation for
changing the Company’s registered address. Prior to the change in address,
the Company’s registered address was the JPS Address, where Bill worked.
With Bill’s departure from JPS around August 2015, he no longer had
access to the JPS mailbox. It therefore did not make sense for the
Company’s documents to be delivered to the JPS Address. As far as the
choice of new address was concerned, Bill’s explanation was simple, clear
and convincing:
Yeo: Okay. Now, why not regis---have the registered address at [the
287 Premises]?
Bill: Can I explain?
Yeo: Yes, this one I will let you explain.
Bill: 287 is a shop.
Yeo: Okay.
Bill: Postman just throw the thing on the floor.
Yeo: Okay.
Bill: It may be lost.
Yeo: Okay.
81 On her part, Pauline did not report any issues with access to any
Company documents. She was able to sign off on dividend distributions
with no issues in the years following the change in address. Further, the
address was changed through a directors’ resolution in September 2015.
Pauline was one of the directors that authorised the Company to change its
registered office to Bill’s residential address. This means that she had
explicitly agreed to the change in address. When confronted with this
during cross-examination, she ultimately conceded that she had signed the
directors’ resolution and that this resolution reflected an agreement
between Jason, Desmond, Bill and herself, namely “that it would be more
convenient if the Company’s official correspondence were mailed straight
to [Bill’s home]”.
82 It follows that the change of address was not intended to harm the
Company.
Registration of the Sole Proprietorship

83 Mui Hong registered the Sole Proprietorship on 8 February 2017.
Pauline suggests that this had been done pursuant to the conspiracy
between the defendants. Pauline’s arguments are threefold. First, she
contends that Mui Hong’s stated reasons for registering the Sole
Proprietorship are unbelievable and inconsistent with her affidavit of
evidence-in-chief. Second, she argues that Mui Hong could not have done
this without prior discussion with Desmond. Third, Pauline argues that
even if this registration had been carried out without Desmond’s approval
or knowledge, Desmond did nothing about it after he found out about the
registration. He had effectively acquiesced to a conspiracy.
84 I deal with Mui Hong’s reasons first. These are believable and
consistent with the narrative that unfolded over trial. Part of the motive was
sentimental in nature (“no one has made an effort to register this name
which I personally embrace it very, very much in commemoration to my
father”), such sentiment being entirely consistent with the Ng family’s
strong attachment to the “Eng’s brand”. Part of the motive is strategic (“in
anticipation of having an avenue to carry on the Family Wantan Mee
Business in the event [it] could not be able to operate through [the
Company]”), such a plan being consistent with the family’s desire to protect
and preserve the authenticity of their “Eng’s brand”. Crucially, none of
these motives involve injuring the Company. If anything, this registration
was a back-up plan in the event that the Company ceased business
operations.
85 Pauline’s last two arguments concern Desmond. She contends that
Mui Hong could not have registered the Sole Proprietorship without prior
discussion with Desmond, and that Desmond must have condoned the
registration when he found out about it and did nothing afterwards.
Desmond and Mui Hong’s evidence was that Desmond was told after Mui
Hong had registered the Sole Proprietorship, and Desmond was of the view
that Mui Hong, being a member of the Ng family, was entitled to register
such a sole proprietorship anyway.
86 The Sole Proprietorship was not used to operate any business. Mui
Hong only took action to set up any wanton mee business after the
Company was unable to secure the lease for its business. Therefore,
Desmond’s tacit acceptance of Mui Hong’s action cannot be taken as a step
in a conspiracy. In fact, Desmond’s actions reveal that he was hoping to
continue with the Company. After the registration of the Sole
Proprietorship, Desmond offered to buy Jason’s share of the Company.
Desmond’s evidence was also that he would have continued with the
Company if Pauline had signed the lease.
87 The evidence of Desmond, Mui Hong, Mei Ling and Mdm Loh show,
rather, that the Ng family regarded the “Eng’s” name as family property.
They regarded it as something to be protected from unauthorised use,
especially by Pauline, Jason and any of their associates. Mui Hong’s, and the
Ng family’s (if any at all) intent in registering the Sole Proprietorship was
directed towards protecting “this Eng’s brand” and towards devising a
contingency should the Company’s business cease, not injuring the
Company.
88 I therefore find that the registration of the Sole Proprietorship was not
intended to injure the Company, much less made in furtherance of any
agreement to do the same.
Registration of the Chilli Mark

89 Mui Hong registered the Chilli Mark on 3 October 2017. Pauline’s
allegation was that the registrations of the Chilli Mark and the Sole
Proprietorship, were “to lay the groundwork” for the eventual

incorporation of Eng’s Char Siew. In particular, Pauline pointed to the fact
that Mui Hong had registered the Chilli Mark under the Sole
Proprietorship (rather than under her own name) and had registered the
Chilli Mark under “Class 30” (for the manufacture of noodles). This,
according to Pauline, was incontrovertible proof that the registration was a
preparatory step towards usurping the Company’s business.
90 Mui Hong’s explanation is that she had registered the Chilli Mark
because she had designed the “logo, the motif and everything”. She simply
wanted to keep it. Jason challenges her account. He claims that the Chilli
Mark had been designed by him and his personal assistant (“Cindy”), who
was not called as a witness. According to Jason, Mui Hong had only
fabricated the signage.
91 Nothing turns on who had actually designed the mark. The only
relevant issue is whether the registration was part of a plan to injure the
Company. In my judgment, Mui Hong registered the Chilli Mark for the
same reasons that she registered the Sole Proprietorship. Mui Hong was
taking pre-emptive steps to protect the “Eng’s brand”. The Chilli Mark,
being “linked to the Eng’s Char Siew Wantan Mee name”, was registered to
achieve those ends. This was why the Chilli Mark was registered under the
Sole Proprietorship rather than under Mui Hong personally. This was also
why the fact of this registration was kept from Pauline.
92 In that regard, my earlier findings regarding the registration of the
Sole Proprietorship (see [87] above) apply with equal force here. As
explained earlier, the Intention requirement is only fulfilled by acts that
target or are directed at the claimant. It is not sufficient that harm to
a claimant is a likely or probable or even inevitable consequence of a
defendant’s conduct: EFT Holdings ([57] supra) at [101]. Here, Mui Hong’s
efforts were directed at protecting the “Eng’s brand”, not injuring the
Company. As such, I find that there was no intention to injure the
Company through the registration(s) of the Chilli Mark (and the Sole
Proprietorship).
Alleged appropriation of the lease

93 The tenancy agreement for the 287 Premises expired on 15 March
2018. After no news was received on Desmond’s request for Pauline to
renew the lease, Bill informed Jane on 24 January 2018 that “Eng’s Noodles
House Pte Ltd will not be renew [sic] the tenancy agreement after the
expired [sic] of the lease term (ie. 15 March 2018)”, promising to “make
arrangement to find a new tenant to lease the same place with the
agreement rental of $8,800 per months [sic] for the next 3 years periods
[sic]”. This was on the same date that Desmond’s solicitors sent Pauline
a letter that they had instructions to wind up the Company. Bill then
e-mailed Jane on 31 January 2018, asking for Richard’s name to be put on
the tenancy agreement. Jane’s response was that a new tenant had already
taken up the lease by then. Pauline alleges that the attempt to assign the
lease to Richard had been an effort by the defendants “to appropriate the
lease for themselves”. This, according to Pauline, was part of the conspiracy
to injure the Company as it would have allowed Eng’s Char Siew to take
over the 287 Premises.
94 Desmond and Bill’s explanation is somewhat convoluted but gels with
the facts. Desmond perceived the lease to be a source of personal liability
when it was under his name. He was willing to take on such “personal
liability” when the “relationship [was] still very good” but did not want to
do so after “trouble started”. That said, Desmond was keen on continuing
the Company’s business. Frustrated as he was with the issues amongst the
partners, Desmond testified that he would have carried on the Company’s
business if the lease had not been taken over by somebody else. In my view,
by asking Pauline to take up the lease, Desmond was signalling his
dissatisfaction with the way Pauline was treating him, and attempting to
have her take responsibility, rather than to stand on the side-lines
complaining about the manner in which he managed the operations. By
also previously expressing his intentions to retire, he was reminding her
that he was the party responsible for the cooking and the joint venture’s
success. The sequence of events indicates that he did not anticipate that she
would assist another to acquire the lease and secure the employment of the
cook that he and his father had trained.
95 In this context, the 24 January 2018 E-mail was entirely explicable.
Pauline had not responded to the request for her to sign the lease. There
was no word from Jane either. By this time, Desmond had decided that he
ought to wind up the company, and was suspicious that the lease had been
taken up by another. The 24 January 2018 E-mail, therefore, was a “test”
devised by Desmond and Bill to ascertain if the lease had already been
promised to anyone else. Their thinking was that if Jane did not come back
to Bill asking “why you all Eng Noodle House want to give up”, it would be
confirmation that she had promised the lease to another interested party. In
much the same vein, the attempt to assign the lease to Richard on
31 January 2018 was a way for Bill and Desmond to ascertain, in the face of
Jane’s silence, whether the lease had already been assigned to someone else.
Jane was thereby forced to respond that the lease had been taken up by
someone else. In that regard, Desmond’s suspicions were well founded.
96 For these reasons, I find that the 24 and 31 January e-mails were not
advancing any sort of conspiracy or plot to take over the 287 Premises on
behalf of Eng’s Char Siew. The lease had been secured by another by this
juncture. If Desmond had wanted to secure the lease for his own benefit, he
would have acted earlier and more decisively. He was certainly in a position
to do so since he was the named tenant for the 287 Premises (see above at
[16]) and the landlord had agreed to his price. For them to have asked
Pauline to sign the lease in January and to have allowed matters to unfold in
the manner that they did suggests a lack of a strategic plan on the alleged
conspirators’ part.
Cessation of business, winding-up application and incorporation of Eng’s

Char Siew
97 I turn now to address the last three events that Pauline relies on to
establish her (representative) action in unlawful means conspiracy. These
are:
(a) the cessation of the Company’s business on 28 February 2018;
(b) the application to wind up the Company; and
(c) the incorporation of the Sole Proprietorship as Eng’s Char Siew.
98 These events will be addressed together because they are all, in
substance, a reaction to Eng’s Wantan Noodle taking over the lease for the
287 Premises. I base my finding on two observations.
99 Firstly, the whole process of setting up and establishing Eng’s Char
Siew was hasty and improvised. Desmond, Mui Hong and Mei Ling’s
testimony aligned. They testified that this was a “very last minute rush
decision”, that was “urgently” made and “very last minute”. Mui Hong and
Mei Ling were scrambling to find a location for Eng’s Char Siew. They
viewed the 248 Premises in mid-February, signed the lease on 21 February
2018, took over the premises in April, and opened Eng’s Char Siew for
business on 13 May 2018. They were desperate and settled for the
248 Premises even though it was actually a lease for two units and the rental
fees were significantly higher than the 287 Premises. They did not have
a business plan and do not have any concrete profit-sharing arrangement
till this day. The Ng family does not “even talk about profits” and “[n]obody
expects to take in any profit”. In fact, Eng’s Char Siew is not a profitable
business. This would seem to be the result of haphazard reactions to events
as they unfolded, rather than (as Pauline alleges) a premeditated plan dating
back to 2015.
100 Second, I am satisfied that the Ng family was genuinely concerned
about the use of the name “Eng’s” by Eng’s Wantan Noodle. The family
members who testified at trial presented a unified and convincing narrative
– The “Eng’s brand” was threatened when a new tenant took over the
287 Premises looking to set up a similar business. The Ng family then
rallied together to protect the “Eng’s brand”. In fact, Mei Ling had been
suspicious of Jason and Pauline from as early as January 2018. Her
testimony was that Jason had been speaking to the head chef at the
Company, coming to take measurements of the furniture after working
hours and scrutinising the company accounts. The implication here, of
course, was that Jason had been taking preparatory steps to divert the
Company’s custom to another business. I make no findings as to whether

Jason actually did these things, but I do accept that Mei Ling was suspicious
of Jason and Pauline at that time. I also accept that Mei Ling’s observations
were communicated to Mui Hong, whose suspicions were, in turn, aroused
as well. Desmond, on his part, was fully convinced that the lease had already
been “stolen” and confirmed that he shared Mei Ling’s views.
101 It was in this context that Mei Ling and Mui Hong banded together to
set up Eng’s Char Siew. Eng’s Char Siew was their way of asserting the
original and authentic “Eng’s brand” – a way for them to “stand up and tell
the public that, hey, we are here”. As for the Company, it was clear by
1 February 2018 at the latest, that it had no more future. The lease had been
taken up by another tenant and relations between the directors had
deteriorated irreparably due to the bitter infighting (“damage has been
done”). The decision to cease the business is a natural and entirely
reasonable one. It follows that the decision to wind up the company was a
sensible one as well. These decisions are entirely explicable in the light of
the circumstances that the Company found itself in, and not by any
supposed conspiracy between the defendants to injure it.
102 In that regard, the agreement that was being furthered (if any) was
a family effort to root out mimicry, not misappropriate the Company’s
custom. In fact, there was no Company to injure anymore. In any case,
injury of the Company was neither the intent nor the means towards
achieving their true goal – “to fight, to get back our ‘Eng’s’ and rong gao”.
Registration of the Name Marks

103 As for the Name Marks (see above at [41]) , Pauline alleges that their
registration (together with the Chilli Mark’s registration) is further proof of
the conspiracy to “usurp the Company’s [intellectual property] assets”.
104 To this, the defendants contend that all the “IP assets” which Pauline
claimed on behalf of the Company were part of a licensing arrangement
between the “Ng family” and the Company. They aver that the Ng family
owned the tradenames “Eng’s Noodles House Char Siew Wantan Mee”,
“Eng’s Char Siew Wantan Mee” and “ 榮高雲吞麵 ”. They could not have
“usurped” things which were theirs all along. This licence also grounds the
counterclaim, and I deal with it in that context (see [129] below). In respect
of Pauline’s allegations on the Name Marks, it suffices to note that these
registrations were well after the Company’s cessation of business. Eng’s
Wantan Noodle had registered the 1st and 2nd Franchise Marks much
earlier on 3 August 2018. Eng’s Char Siew’s solicitors wrote to Eng’s
Wantan Noodle and the Intellectual Property Office of Singapore, objecting
to the mark on 20 September 2018. Eng’s Char Siew then made a string of
trade mark applications on 19 October 2018, 30 November 2018, and
14 December 2018, registering the Name Marks. The chronology of events
suggests to me that the registration of the Name Marks was retaliatory in
nature. It was not part of a plot to injure the Company. In any event, the
Company was defunct by this stage. Without premises, it could not operate.
The Ng family’s real adversary was Eng’s Wantan Noodle. That was the true
target of their actions.
105 For this reason, I do not find that the registration of the Name Marks
was done in furtherance of a conspiracy to injure the Company.
The Unlawfulness and Loss requirements
106 Having found that the Combination, Furtherance and Intention

requirements are not satisfied on the facts, it is no longer necessary for me
to address the remaining requirements. There is no loss to speak of since
a conspiracy has not been established, and the only unlawful actions are Bill
and Desmond’s potential breaches of their fiduciary duties to the
Companies. I deal with these actions (and any evaluation of their
lawfulness) in the section below.
Breach of fiduciary duties owed to the Company
107 It is undisputed that Desmond and Bill owed fiduciary duties to the
Company during the terms of their directorships. These are respectively:
(a) for Desmond, from 27 February 2012 up till 9 July 2018; and
(b) for Bill, from 8 June 2018 till present day.
Pauline avers that these duties had been breached.
Bill
108 Up to the point of trial, two of Pauline’s contentions relied upon Bill
being a fiduciary. The first was a claim of financial misappropriation. This
was dropped midway through trial. The second relates to the conspiracy
allegations, which I have dismissed. I have also held in that context that Bill
was not a fiduciary prior to his becoming a director on 8 June 2018 (see
above at [68]). Bill’s participation as a director was after the Company had
ceased operations. There are no further allegations made by Pauline about
any potential breaches of fiduciary duty on Bill’s part after he assumed
directorship in the Company.
Desmond
109 Pauline has pleaded that Desmond breached three fiduciary duties:
(a) a duty to act in good faith in the best interests of the Company;
(b) a duty to act for the proper purposes of the Company in relation
to its affairs; and
(c) a duty not to place or allow himself to be placed in a situation or

position whereby any of his duties and obligations to the Company
conflict or may conflict with his own personal interests.
110 The first two duties pleaded are, in essence, a reference to the alleged
conspiracy between the defendants to injure the company. Having found
that such a conspiracy does not arise on the facts, I find that those duties
have not been breached. By the same token, the alleged breaches of the
Companies Act which related to the allegations of conspiracy were
therefore not made out either. The statement of claim, without listing
which of the limbs in s 157 of the Companies Act were being relied on,
simply stated that the “duty to act honestly and use reasonable diligence in
the discharge of the duties” had been breached as well. I took Pauline’s
allegations of such breaches to be merely the statutory equivalents of the
same breaches (of fiduciary duties) that she complained of at general law.
As such, where her claims of breach (of fiduciary duties) in general law
failed, I dismissed their Companies Act equivalents as well. The analysis, in
other words, was one and the same. Indeed, I am fortified in my approach
by the lucid observations in Hans Tjio, Pearlie Koh & Lee Pey Woan,
Corporate Law (Academy Publishing, 2015) at para 09.025:
Indeed, it is asserted that section 157(1) [of the Companies Act] ‘mirrors a
directors’ general fiduciary duty at common law’, giving rise to the suggestion
that the statutory exhortation to ‘act honestly’ is shorthand for all the other
general law duties as well.
111 I turn then, to whether there has been any breach of a duty to avoid
conflicts of interest. At issue is Desmond’s omission to disclose the
registration of the Sole Proprietorship and the Chilli Mark to the Company
when he found out about them.
112 While Desmond was not personally involved in making either
decision, the law is clear that it proscribes not just conflicts between
a fiduciary’s personal interest and his beneficiary’s interests, but also
conflicts between a third party’s interests and his beneficiary’s interests: Sim
Poh Ping v Winsta Holding Pte Ltd and another and other appeals [2020]
1 SLR 1199 (“Sim Poh Ping”) at [69]–[70]. Further, this rule proscribes not
just actual but potential conflicts of interest as well: Ng Eng Ghee and
others v Mamata Kapildev Dave and others (Horizon Partners Pte Ltd,
Intervener) and another appeal [2009] 3 SLR(R) 109 at [138].
113 On that reading, Desmond’s failure to disclose the registration of the
Sole Proprietorship and the Chilli Mark puts him in breach of his fiduciary
duty. The Sole Proprietorship was synonymous with his sister, Mui Hong.
The Chilli Mark posed a threat to the Company since none of the
Company’s trade names or trade marks were registered at that time. Yet,
neither the Chilli Mark nor the Sole Proprietorship were disclosed to the
Company.
114 Notwithstanding this, the remedy applicable in a claim premised on a

conflict of interest would sound in either an account of profits, or equitable
compensation. In the present case, the Sole Proprietorship was not used. An
account of profits may not be pursued as the fiduciary in question has not
profited in any way. Nor could equitable compensation be pursued as the
breach did not cause damage to the Company: see Sim Poh Ping at [241].
115 In respect of the allegations as to Desmond’s failure to disclose the

registration of the Name Marks or his failure to disclose the registration of
Eng’s Char Siew, these events occurred after 28 February 2018. By then, the
Company had ceased business and was effectively defunct. The Company
had no further business to carry out and no prospect of resuming business
either. It would therefore be meaningless to speak of other commercial
interests (such as the acquisition of competing intellectual property) as
conflicting with its business interests.
Common law derivative action
116 There are two requirements to sustain a common law derivative

action. First, the company must have a reasonable case against the
defendant(s); and second, the minority shareholder-plaintiff must have
locus standi to bring the common law derivative action in the name of the
company. This depends, in turn, on whether the minority-shareholder
plaintiff is able to show that he falls within the “fraud on the minority”
exception to the proper plaintiff rule: see Sinwa SS (HK) Co Ltd v Morten
Innhaug [2010] 4 SLR 1 at [20], [47]–[48]).
117 In view of my findings on conspiracy and breach of fiduciary duty, the

company does not have a reasonable case against the defendants.
118 My findings on the facts also show that there is no fraud on the
minority. On the contrary, the defendants advance a defence alleging that
Pauline’s suit was motivated by a desire to misuse the Company’s
intellectual property in order to assist Eng’s Wantan Noodle. I agree that on
a balance of probabilities, Pauline (together with Jason) assisted in the set-
up of Eng’s Wantan Noodle. First, Pauline admitted at trial that Jason
co-managed Eng’s Wantan Noodle. Second, Pauline’s own evidence shows
that she was involved in setting up Eng’s Wantan Noodle. The accountants
she hired to look into the Company’s finances were told that “the
shareholders [of the Company] have each set up their own respective
noodle house in the vicinity of [the Company’s] location”. Third, Pauline
and Jason were instrumental in the setting up of Eng’s Wantan Noodle. It
was Jason who introduced Thomas to the real estate agent to enable
Thomas to secure the lease for the 287 Premises; it was Jason who
“recommended” Mr Law Boon Meng, the Company’s head chef, to work
for Eng’s Wantan Noodle; it was Jason who had assisted with Eng’s Wantan
Noodle’s renovation of the premises;and it was Pauline who gave Eng’s
Wantan Noodle the use of the main operational telephone number which
customers had used to call the Company for six years.
119 With the dismissal of her common law derivative action, Pauline’s
claim fails. Accordingly, I do not grant her any of the injunctions and
declarations she seeks, particularly those that concern the Name Marks and
the Chilli Mark. Some of her assertions and the defendants’ defences are,
however, relevant to the Counterclaim, which I now turn to.
Counterclaim on the tort of passing off

120 I turn now to the Counterclaim brought by Mui Hong, Mei Ling and
Eng’s Char Siew (collectively, “the Counterclaimants”).
121 The three elements of a claim in passing off were summarised by the
Court of Appeal in Singsung Pte Ltd v LG 26 Electronics Pte Ltd (trading as
L S Electrical Trading) [2016] 4 SLR 86 at [27]–[28], citing Reckitt &
Colman Products Ltd v Borden Inc [1990] 1 WLR 491 at 499:
First, [the claimant] must establish a goodwill or reputation attached to the
goods or services which he supplies in the mind of the purchasing public by
association with the identifying ‘get-up’ (whether this consists simply of
a brand name or a trade description, or the individual features of labelling or
packaging) under which his particular goods or services are offered to the
public, such that the get-up is recognised by the public as distinctive
specifically of the plaintiff’s goods or services. Secondly, he must demonstrate
a misrepresentation by the defendant to the public (whether or not
intentional) leading or likely to lead the public to believe that goods or
services offered by him are the goods or services of the plaintiff. Whether the
public is aware of the plaintiff’s identity as the manufacturer or supplier of
the goods or services is immaterial, as long as they are identified with a
particular source which is in fact the plaintiff. … Thirdly, he must
demonstrate that he suffers or, in a quia timet action, that he is likely to suffer
damage by reason of the erroneous belief engendered by the defendant’s
misrepresentation that the source of the defendant’s goods or services is the
same as the source of those offered by the plaintiff.
Necessity for goodwill

122 The establishment of goodwill is the bedrock of this tort. The proper
plaintiff and owner of the goodwill who may assert the rights appurtenant is
the fundamental question at hand. By this counterclaim, Mui Hong, Mei
Ling and Eng’s Char Siew contend that they own the goodwill. I find that
they do not, for reasons that follow.
Nature of the goodwill required

123 Goodwill is both “a reflection of a public state of mind on the one
hand, and … legal property on the other”: Christopher Wadlow, The Law of
Passing Off: Unfair Competition by Misrepresentation (Sweet & Maxwell,
5th Ed, 2016) (“Wadlow”) at para 3-138. The essential features of goodwill
were distilled by the Court of Appeal in Novelty Pte Ltd v Amanresorts Ltd
and another [2009] 3 SLR(R) 216 at [39]:
… First, it is the association of a good, service or business on which the
plaintiff’s mark, name, labelling, etc (referred to generically as the plaintiff’s
‘get-up’) has been applied with a particular source. Second, this association is
an ‘attractive force which brings in custom’ …
124 In the present case, the good being sold was wanton mee. It is
associated with a particular source, namely the business using the late
Mr Ng’s recipe and method of preparation. In particular, the wanton mee is
known for its “springy noodles” and accompanied by a “gunpowder” chilli
paste. It is this association that formed the attractive force that brought in
custom.
Owner of the goodwill

125 The fundamental question at hand is the ownership of the goodwill.
Prof Wadlow suggests the following tests for determining the ownership of
goodwill (at para 3-140):
One is to ask who is in fact more responsible for the character or quality of
the goods; the other is to ask who is perceived by the public as being
responsible. The latter is (perhaps surprisingly) the more important, but it
does not provide a complete answer to the problem because in many cases
the relevant public is not concerned with identifying or distinguishing
between the various parties who may be associated with the goods. If so,
actual control provides a less decisive test, but one which does yield a definite
answer.
126 There is no doubt that during the years at Dunman Food Centre, the
goodwill attached to the Hawker Business and Mr Ng was the owner of this
goodwill. He was responsible for the cooking and the person who won the
accolades (see [13] above). It was his recipe and method of preparation that
drew the customers. He was the “walking brand” and “the main figurehead
which customers identified with”.
127 Goodwill is personal property and may be assigned: Wadlow at
para 3-195. When the Company was incorporated, Mr Ng operated
through the Company. As such, the goodwill owned by Mr Ng and the
Hawker Business attached itself to the business of the Company. This
goodwill was still used by the Company after Mr Ng’s passing, up until the
time the Company ceased operations. This was the reason that Pauline used
a common law derivative action in order to assert rights to the marks: her
case rested on the fact that the goodwill was associated with the business of
the Company, and her action was brought to secure what she characterised
as the intellectual property of the Company.
128 The question relevant to the Counterclaim is whether, and in light of
the fact that the business of the Company had ceased operations, this
goodwill was transferred to the Counterclaimants. The Counterclaimants’

claims to ownership of the goodwill is in turn, founded on their belief that
“each of the family members held the right to the goodwill”. I deal here with
their arguments.
(1) Licence
129 The Counterclaimants’ claim to ownership of the goodwill was
supposedly evinced by a licensing arrangement. This licensing
arrangement, in turn, was the crux of their defence to the claim as well. In
the Counterclaimants’ pleadings, the licensing agreement was described as
follows. It was an oral agreement made in 2012 when Jason first approached
Mr Ng with the business proposal to set up the Company. “[Mr Ng] was the
licensor (as representative of his immediate family) and [the Company] was
the licensee.” “Jason, [Mr Ng] and the 2nd to 5th Defendants” were present
when the licensing agreement was entered into. The subjects of the
licensing agreement were the following tradenames:
(a) “Eng’s Noodles House Char Siew Wantan Mee”;
(b) “Eng’s Char Siew Wantan Mee”; and
(c) “ 榮高雲吞麵 ”.
130 The Company’s trade names were similar, but different from the
Original Tradenames, which (as stated earlier at [11]) were as follows:
(a) “Eng’s Char Siew Wan Ton Mee” [emphasis added in bold]; and
(b) “ 榮高雲吞麵 ”.
131 However, there was no evidence of any written agreement, and it was
apparent from the trial that there was no proof of an oral agreement either.
The burden of proof to infer such an agreement falls on the
Counterclaimants. To that end, they sought to prove: (a) the existence of
the licensing agreement; and (b) that after Mr Ng’s death, the whole
Ng family became the new licensors of the goodwill.
132 First, they sought to prove the existence of the licensing agreement by
pointing to Mr Ng’s salary. Their evidence was that Mr Ng (together with
Desmond) was paid the most in the Company. He was paid $5,000 a month
despite not playing an active role in the kitchen. One explanation was that
the $5,000 was a royalty. As Mdm Loh put it, “[m]y husband didn’t do
anything. My husband wasn’t even working. Why would he be paid
a salary? It’s a royalty. It’s for the use of the brand name. Of course, he will
have to get back money for it”.
133 In my view, while Mr Ng was alive, the use by the Company of his
name and his marks was with his consent and permission. This permission
was reflected in the sum of his salary. Prof Wadlow describes “licenses for
goodwill” as such (at para 3-213):
The owner of the goodwill in a business may prima facie license another
business to do any act which but for the license would amount to passing off.
To this extent it is permissible to speak of licensing goodwill, although what is
licensed is not properly the goodwill as such but the right to do something which
would otherwise infringe the licensor’s rights in it. [emphasis added]
134 The use of the 287 Signboards, and in particular, the Top 287
Signboard, without Mr Ng’s consent would have amounted to passing off.
This was especially since the Top 287 Signboard proudly proclaimed that
the business at the 287 Premises was “[t]he only original from Dunman
Food Centre”. The continued use of the Top 287 Signboard (without
protest) and the continued payment of Mr Ng (even though he was not
heavily involved in the Company’s operations) could be some evidence that
a licensing arrangement was in place, even if the parties had not explicitly
labelled it as such. I note that by the Counterclaimants’ own pleadings, the
real licensor here was Mr Ng and not any of the Counterclaimants, and this
is the essential difficulty with their case. This goodwill was first attached to
the Hawker Business, and then the Company, while Mr Ng was alive.
135 Second, the Counterclaimants argue that the licensing arrangement
continued despite Mr Ng’s passing on 17 June 2013. They point to
Mdm Loh’s large increase in salary after Mr Ng’s passing. They point out
that there was an increase despite the fact that there was no change in
workload for Mdm Loh. She was only wrapping wantons the whole time the
Company was operating at the 287 Premises. The defendants then conclude
that her increase in salary could only be explained as her taking the benefit
of the licensing agreement upon Mr Ng’s death.
136 The facts show that the pay raises after Mr Ng passed away were not
limited to the Ng family. Most staff received at least a 10% increase in
salary, and Bill’s salary increased by 20% to $1,800/month. The pay for
Pauline, Bill and the Ng family is tabulated here for easy reference:
2012 Jan 2013– May June Jul–Aug Sept 2013

Apr 2013 2013 2013 2013 onwards
Pauline 1,200 1,200 1,200 1,200 1,200 1,200
–1,500
Bill 1,500 1,500 1,500 1,500 1,500 1,800
Mr Ng 5,000 5,000 5,000 5,000 - -
Desmond 5,000 5,000 5,000 5,000 5,000 5,500
Mei Ling 2,000 2,000 2,000 2,200 2,200 2,400
Ah Keat 1,200 1,200 1,200 1,200 1,200 1,300
Mdm Loh 500 500 850 1,050 3,500 3,600
137 Therefore, the mere fact of a pay raise could not give rise to the
inference that the Ng family and the Company had a licensing
arrangement. The combined increment of Desmond, Mei Ling, Ah Keat
and Mdm Loh’s salaries from May 2013 (before Mr Ng passed away) to
September 2013 (the salaries they eventually settled on) amounted to
$3,750, which was less than Mr Ng’s salary prior to his passing. The
business was doing well, and a recognition of the Ng family’s central role in
the business would not necessarily lead to an inference that first, the
Ng family owned the goodwill in the Company’s business; and second,
there was a licensing agreement with the Company. Even more
fundamentally, there is no evidence that Mr Ng assigned that goodwill to
his entire family. This leads to the Counterclaimants’ arguments on
heritage, which I turn to.
(2) Heritage ownership
138 The Counterclaimants’ contention is that the “Family Wantan Mee

Business”, along with all the goodwill vested in it, had always been “meant
to be passed down from generation to generation”. A family intention is
not, however, sufficient. The case remains that ownership of goodwill must
be proven as a fact, and must attach to a business: CDL Hotels International
Ltd v Pontiac Marina Pte Ltd [1998] 1 SLR(R) 975 at [46]. The
Counterclaimants’ argument assumes that it attaches to Eng’s Char Siew,
the business of Mui Hong and Mei Ling. I reject this assumption, which
relies on the contribution approach, for reasons I detail below.
(3) Contribution approach
139 The Counterclaimants submitted that the Ng family had made

“substantive and critical contributions” to the Company’s operations. The
implication here was that contribution to the Company’s operations, either
in cooking, finances, “back-end preparation” or artwork design, entitled the
contributors to ownership of the goodwill.
140 This argument relied on Gromax Plasticulture Ltd v Don & Low
Nonwovens Ltd [1998] EWHC Patents 316 (“Gromax”). There, the plaintiff-
distributor had a “developing range of ‘Gro-’ products” and the defendant-
manufacturer had “a stable of ‘-Shield’ products”: Gromax at [72]. The
plaintiff had marketed a plastic crop cover manufactured by the defendant
which would be marketed under the name “Gro-Shield”. The parties had
agreed to co-operate in the promotion of Gro-Shield. In the initial period,
the product was sold in a way which identified the defendant as the
manufacturer. However, all subsequent publicity served to link the product
with the plaintiff alone. The relationship between the parties later
deteriorated and the defendant registered a trade mark under the “Gro-
Shield” name. The plaintiff applied for an injunction against the defendant
and asserted an exclusive right to use the name “Gro-Shield”. This
application was refused. Lindsay J held that the goodwill associated with the
Gro-Shield name had been vested in the parties jointly.
141 Gromax, however, is not strictly speaking an endorsement of the

contribution approach. Gromax involved a licensing agreement. In that
licensing context, Lindsay J looked to whether the plaintiff-licensee had
“performed a more significant role than one might expect from a mere
distributor” (Gromax at [70]), entitling him to claim ownership of the
goodwill in the product. The holding in Gromax does not apply to the
present case. The Counterclaimants are not suggesting that the Ng family
had been licensees which had contributed in a manner beyond what is
“reasonably incidental to the maintenance or promotion such commercial
interest in the name as the license had conferred upon the licensee”
(Gromax at [74]). If anything, they are contending that the Ng family was a
licensor of the Eng’s Trade Names (see [129] above).
142 In fact, Lindsay J considered the issue of contribution as a part of his

consideration of the true test of ownership of goodwill, to ascertain the
party perceived by the public as being responsible for the product. Whether
he was considering the “presentation of [the product] to the public”
(at [72]), the “evidence of the 10 [customers] who were called” (at [73]) or
the manner in which the “Gro-Shield” name was used (at [75]), Lindsay J
was at all times concerned with whether there was a “clear association in
[the customers’ minds] between “Gro-Shield” and [the plaintiff]” (at [73]),
whether the product had been “described in a way that showed its
association with [the defendant]” (at [74]) and what was the “public
perception of who was responsible for the character and quality of the
goods” (at [75]). The focus of Lindsay J’s judgment, in other words, was to
identify who the relevant goods and services were identified with in public
perception.
143 In this particular case, to illustrate public perception, the

Counterclaimants produced two long-time patrons, Mr Too Shen Pin and
Mr Kervin Seng (“Mr Seng”), who testified that “[a]t all times [they]
attribute[d] the Wantan Mee, its business and its recipe to the Ng family”.
But this was not cogent evidence that the Counterclaimants were identified
with the unique aspect that attracted custom. An assortment of food blog
reviews, local broadsheet columns, magazine clippings and alternative news
media articles adduced were not helpful as well. These did not show that the
public attributed the goodwill to other members of the Ng family aside
from the late Mr Ng or Desmond. Even if such news coverage was taken as
reliable evidence of who the public attributed the goodwill to, those persons
would have been the late Mr Ng and at most, Desmond. Even Mr Seng
recounted that as far as “operating the hawker stall and operating
287 Tanjong Katong Road” went, it was “always … Desmond and his father
before the father passed away”. Moreover, the evidence of Mei Ling and
Mui Hong made clear that they remained dependent upon Desmond’s
presence at Eng’s Char Siew to bring in custom. Nevertheless, Desmond is
not a plaintiff in the Counterclaim; neither is there any assertion made in
the Counterclaim that he is the owner of the goodwill. The

Counterclaimants were Mei Ling, Mui Hong and Eng’s Char Siew, who are
unable to prove ownership over the goodwill. The counterclaim therefore
fails at this threshold step.
Misrepresentation and damage

144 Besides failing to establish ownership of the goodwill, the
Counterclaimants did not make out the element of misrepresentation by
the defendant to that Counterclaim either. The entity responsible for any
claimed misuse (if the Counterclaimants had successfully established
ownership of the goodwill) would have been Eng’s Wantan Noodle.
Instead, the Counterclaim was pursued against Pauline. Even if Pauline had
been an “accessory” in the tortious act, as claimed in the Counterclaimants’
submissions, the fact remains that Eng’s Wantan Noodle is a separate legal
entity. The counterclaim should have been brought against the particular
party responsible for any misrepresentation. Neither was it pleaded that
Pauline and Eng’s Wantan Noodle were in any kind of conspiracy. It
follows then that the final element of damage is not made out either. The
Counterclaim is accordingly dismissed.
Conclusion
145 In conclusion, I dismiss both the claim and counterclaim. I shall hear
counsel on costs.
Reported by Kim Bumsoo.

(2021) 4 SLR 1317

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[2021] 4 SLR 1317.

fm Page 1317 Thursday, January 27, 2022 11:51 AM

[2021] 4 SLR SINGAPORE LAW REPORTS 1317

New Ping Ping Pauline

[2020] SGHC 271

High Court — Suit No 20 of 2019

1318 SINGAPORE LAW REPORTS [2021] 4 SLR

Held, dismissing both the suit and counterclaim:

(7) Notwithstanding Desmond’s breach of fiduciary duties, no remedy was

1320 SINGAPORE LAW REPORTS [2021] 4 SLR

22 December 2020 Judgment reserved.

The parties and their claims

4 In early 2012, Jason approached Mr Ng with a business proposal to

5 The Company ceased business operations on 28 February 2018.

6 In this action, Pauline contends Bill and Desmond have breached

1322 SINGAPORE LAW REPORTS [2021] 4 SLR

7 In this context, Pauline brings a common law derivative action,

Background to the dispute

Figure 1: The Original Tradenames

1324 SINGAPORE LAW REPORTS [2021] 4 SLR

Incorporation of the Company and employment of Bill

Figure 2: The Top 287 Signboard

Figure 3: The Bottom 287 Signboard

1326 SINGAPORE LAW REPORTS [2021] 4 SLR

“autopilot”. After training the staff to cook, Desmond and Mr Ng stepped

Deterioration of relationship between Pauline, Jason and Bill

Authority. Pauline filed a police report against Bill alleging financial

Deterioration of relationship between Pauline, Jason and Desmond

28 Mui Hong, aware of the deteriorating relationship between the

Figure 4: The Chilli Mark

29 In a bid to “settle all the outstanding dispute [sic] and unhappiness

1328 SINGAPORE LAW REPORTS [2021] 4 SLR

Cessation of the Company’s business and aftermath

32 Notwithstanding this, on 8 January 2018, Bill conveyed to the real

34 On 24 January 2018, Desmond’s lawyers wrote to Pauline seeking her

35 The Company’s business ceased on 28 February 2018.

(a) the first Franchise Mark (“1st Franchise Mark”), identified by

(b) the second Franchise Mark (“2nd Franchise Mark”), identified

(1st Franchise Mark) (2nd Franchise Mark) (3rd Franchise Mark)

1330 SINGAPORE LAW REPORTS [2021] 4 SLR

(1st Name Mark) (2nd Name Mark) (3rd Name Mark)

(a) whether leave is required for the continuance of a common law

(b) whether there was a conspiracy between the defendants to

(d) related to findings on (b) and (c), whether a common law

45 I deal with these five issues in turn.

Is leave required for the continuance of a common law derivative action?

46 Pauline’s claim is premised on a common law derivative action that

47 In Oates v Consolidated Capital Services Pty Ltd [2009] NSWCA 183

1332 SINGAPORE LAW REPORTS [2021] 4 SLR

This recognised that there is no procedural requirement for leave before a

50 The above text reminds us that a common law derivative action is a

such a departure. Therefore, while leave is not necessary for the

When should leave be sought?

51 Leave being necessary, how and when should it be sought? Minority

1334 SINGAPORE LAW REPORTS [2021] 4 SLR

54 I do not think that could be correct. The purpose of leave must be to

55 Conversely, there is no logical purpose for deciding on the issue of

56 I turn, then, to the main claim.