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.

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. ¹ Mr Ng carried on the business after his father retired in 1976. ² Later, when street hawkers were reorganized into hawker centres, he moved to a hawker stall in Dunman Food Centre and continued his business there (“the Hawker Business”). ³ 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. ⁴ The Company was incorporated on 27 February 2012 with a share capital of $2, with the plaintiff (“Pauline”) and Desmond each initially holding 50% of the shares in the Company. ⁵ Pauline and Desmond were also the directors of the company at the point of incorporation. ⁶ Desmond employed the third defendant (“Bill”), an employee at one of Jason’s companies, to assist with managing the Company’s finances. ⁷ 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. ⁸

5 The Company ceased business operations on 28 February 2018. ⁹ Pauline was removed as a director on 8 June 2018 ¹⁰ . Desmond resigned as a director on 9 July 2018. ¹¹ Bill is presently the only director of the Company, ¹² having assumed directorship on 8 June 2018. ¹³

6 In this action, Pauline contends Bill and Desmond have breached their fiduciary duties to the Company. ¹⁴ 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. ¹⁵ 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 ¹⁶ 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. ¹⁷ 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; ¹⁸

(b) Desmond and/or Bill has/have breached his/their fiduciary duties to the Company; ¹⁹

(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”); ²⁰ and that

(d) Bill had misappropriated monies from the Company (“the Misappropriation claim”). ²¹

The Misappropriation claim was eventually withdrawn on the tenth day of trial. ²²

8 Mui Hong, Mei Ling and Eng’s Char Siew, in turn, counterclaim that Pauline has committed the tort of passing off (“the Counterclaim”). ²³ 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. ²⁴ In doing so, Pauline and Jason, whom Bill regards as the “shadow plaintiff” ²⁵ and whom Desmond, Mui Hong and Mei Ling regard as the “real plaintiff” ²⁶ of this suit, have both allegedly , “stolen the family business”. Neither Jason nor Eng’s Wantan Noodle have been joined in the Counterclaim.

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.

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. ²⁷ These trade names (together, “the Original Tradenames”) were at all times prominently displayed on the signboard at the Dunman Stall: ²⁸

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 ²⁹ and an “Excellent” rating from Makansutra (a local food reviewing website) in 2003. ³⁰ Mr Ng himself was later anointed a “hawker master” in 2011 by the Straits Times and Lianhe Zaobao ³¹ (the local English and Chinese broadsheets respectively).

13 The cooking was shouldered primarily by Mr Ng. ³² Mr Ng was “the walking brand” ³³ , “the one who [won] all the award[s]” ³⁴ and the “main thing that people will come to the shop [for]”. ³⁵ From 2009, Desmond assisted him at the stall daily by helping to cook, collecting takings and tending to customers. ³⁶ The rest of the family played various supporting roles: Mui Hong, assisting with publicity; ³⁷ Mei Kuen (Mr Ng’s eldest daughter), “simple bookkeeping” and helping Mr Ng file tax returns; ³⁸ Mei Ling, Desmond’s wife (“Ah Keat”) and Desmond’s mother (“Mdm Loh”), wrapping the wantons and cutting chillis. ³⁹

14 In or around early 2012, Jason approached Mr Ng with a business proposal to expand the Hawker Business. ⁴⁰ 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, ⁴¹ (b) there had been substantial goodwill built up by the Hawker Business prior to the incorporation of the Company, (c) the subject of trademarks, goodwill or tradenames was not discussed when the Company was being incorporated, ⁴² and (d) there was no written licensing agreement for any trademarks or tradenames. ⁴³

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. ⁴⁴ Bill, then an employee in Jason Parquet Specialist Pte Ltd (“JPS”), ⁴⁵ joined the Company to assist with its accounts and finances. ⁴⁶ 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. ⁴⁷ 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. ⁴⁸ Desmond was the formal tenant under the tenancy agreement for these premises (“the 287 Tenancy Agreement), ⁴⁹ 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). ⁵⁰ There was also a renewal clause ⁵¹ 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”): ⁵²

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. ⁵³ 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” instead.

21 When business at the Company began, Desmond and Mr Ng did most of the cooking. ⁵⁴ It took between seven and nine months ⁵⁵ to train the staff and put the operational systems in place for the business to run on “autopilot”. ⁵⁶ After training the staff to cook, Desmond and Mr Ng stepped back from the kitchen work, transferring to the more customer facing “frontline”. ⁵⁷ Mr Ng however, continued the “supervising of all those [sic] kitchen backend”, ⁵⁸ even as most of the “hands-on” work was done by the staff. ⁵⁹ As for the others, Mei Ling worked the till ⁶⁰ while Ah Keat and Mdm Loh wrapped the wantons. ⁶¹ Bill only worked at the Company on a part-time basis handling the accounts, ⁶² and some administrative matters (such as liaising with the property agent). ⁶³ 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. ⁶⁴

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, ⁶⁵ was increased to $3,500 in July and August, ⁶⁶ and from September, $3,600. ⁶⁷ 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.

24 On 12 August 2015, 5% of the shareholding in the Company was allotted to Bill. ⁶⁸ 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 10 shares. ⁶⁹ 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. ⁷⁰ This was Bill’s residential address. ⁷¹ 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. ⁷² 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. ⁷³ 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. ⁷⁴ Pauline filed a police report against Bill alleging financial misappropriation on 12 February 2018. ⁷⁵ 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. ⁷⁶

27 In 2015, Jason fell into financial trouble arising from problems with Jason Holdings, the parent company of JPS. ⁷⁷ 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. ⁷⁸ According to Desmond, Jason did not repay the amount and the shares are only worth around $750 today. ⁷⁹ 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. ⁸⁰

28 Mui Hong, aware of the deteriorating relationship between the Company’s directors, registered a sole proprietorship on 8 February 2017 ⁸¹ “in anticipation of having [an] avenue to carry on the business” (“the Sole Proprietorship”). ⁸² 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: ⁸³

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. ⁸⁴ 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”. ⁸⁵ They contended that the pressure to franchise the business had been part of Jason’s attempt to raise money to pay off his debts. ⁸⁶

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. ⁸⁷ In fact, the lease was still available for renewal as late as 1 January 2018. ⁸⁸ Eventually, Desmond and the landlord reached an agreement on a rental price for the subsequent lease term. ⁸⁹

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. ⁹⁰ Pauline, when informed of this, professed surprise and confusion (“I have no idea abt the lease term and the files are all with [Bill]”). ⁹¹

33 Bill and Desmond did not hear from Pauline or Jane after 8 January and became suspicious that they had “lost the shop”. ⁹² Mei Ling, on her part, observed that Jason had been speaking to the head chef at the Company, ⁹³ coming to take measurements of the kitchen specifications after working hours ⁹⁴ and scrutinising the company accounts. ⁹⁵ Mui Hong’s suspicions were aroused as well. ⁹⁶ Desmond shared his sisters’ trepidation and became convinced that the lease for the 287 Premises “was being stolen”. ⁹⁷

34 On 24 January 2018, Desmond’s lawyers wrote to Pauline seeking her cooperation in winding up the Company, citing a “collapse of trust and confidence in the partnership”. ⁹⁸ On the same day, Bill sent an email to Jane (“the 24 January 2018 Email”) 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)”. ⁹⁹ It was also stated in that email 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]”. ¹⁰⁰ There was no reply from Jane. On 31 January 2018, Bill followed up with another email instructing Jane to “prepare a tenancy agreement and put the new tenant” as one Mr Chew Chye Sin Richard (“Richard”). ¹⁰¹ Jane replied on 1 February 2018 that a new tenant had already been secured for the 287 Premises. ¹⁰²

35 The Company’s business ceased on 28 February 2018. ¹⁰³

36 Eng’s Wantan Noodle (the new tenant of the 287 Premises) was incorporated on the same day. ¹⁰⁴ It then applied to register three marks (collectively, “the Franchise Marks”):

(a) the 1st Franchise Mark, identified by Trade Mark No. 40201815221W, was registered on 3 August 2018; ¹⁰⁵

(b) the 2nd Franchise Mark, identified by Trade Mark No. 40201815222U, was registered on 3 August 2018 as well; ¹⁰⁶ and

(c) the 3rd Franchise Mark, identified by Trade Mark No. 40201920188T, was registered on 17 September 2019. ¹⁰⁷

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 $1.46 million. ¹⁰⁸ In fact, Thomas successfully sued Jason for the said sum and default judgment was entered against Jason on 30 September 2016. ¹⁰⁹ Second, The same lawyers who represented Thomas in Suit 986 of 2016, represent Pauline in the present suit. ¹¹⁰ Third, Thomas Hong is involved with the Lao Huo Tang Group, ¹¹¹ 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 ¹¹² and was later “heavily involved in the renovation of the [first outlet of Eng’s Wantan Noodle]” (which took over the 287 Premises). ¹¹³

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 ¹¹⁴ while Desmond resigned on 9 July 2018. ¹¹⁵ Bill became a director on 8 June 2018. ¹¹⁶ Desmond eventually brought proceedings attempting to wind up the Company on 20 March 2018. ¹¹⁷ Desmond’s attempt to wind up the company was resisted by Pauline and he later withdrew his application on 7 May 2018. ¹¹⁸ 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. ¹¹⁹ She assigned the Chilli Mark to Eng’s Char Siew on 5 March 2018, ¹²⁰ and applied for it to be formally transferred to Eng’s Char Siew on 6 August 2018. ¹²¹

41 Following this, Mui Hong registered three marks (collectively, “the Name Marks”) under Eng’s Char Siew:

(a) the 1st Name Mark, identified by Trade Mark No. 40201811254U, was registered on 19 October 2018; ¹²²

(b) the 2nd Name Mark, identified by Trade Mark No. 40201814979U, was registered on 30 November 2018; ¹²³ and

(c) the 3rd Name Mark, identified by Trade Mark No. 40201814978P, was registered on 14 December 2018. ¹²⁴

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, ¹²⁵ 28 March 2019 ¹²⁶ and 11 April 2019. ¹²⁷ She also applied to invalidate the Chilli Mark on 4 October 2019. ¹²⁸

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.

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?

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 (UK) (added pursuant to the Rules of the Supreme Court (Amendment) 1994) 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] SGHC 111 (“Sinwa Nordic”) Steven Chong J (as he then was) referred to Oates, observing at [37]:

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” [italics in original; 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] 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”):

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.

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 (Cap 322, R 5, 2014 Rev Ed) (“the Rules of Court”): (a) O 33 r 2 for plaintiff; and (b) O 18 r 19 for the defendant:

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 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. ¹²⁹ 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. ¹³⁰ 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.” ¹³¹ This, he argued, was the plaintiff’s (continuing) burden, and to be undertaken through O 33 r 2 of the Rules of Court. ¹³² 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 ([4847] supra) 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(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.

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]”. ¹³³ She relies on the following facts to support her allegations: ¹³⁴

(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 his 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.

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.

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.

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, ¹³⁵ and some administrative matters (such as liaising with the property agent). ¹³⁶ 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]”. ¹³⁷ 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”. ¹³⁸

67 Pauline, in her closing submissions, argues that Bill “signed most of the cheques”. ¹³⁹ 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. ¹⁴⁰ Group A comprised Desmond and Mei Ling. Group B comprised Pauline and Bill. ¹⁴¹ 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. ¹⁴² From 2016, she imposed a high degree of scrutiny. If there were no receipts for monthly claims, she would request for explanations. ¹⁴³ She kept track of these defects over time (“There are chunks of no receipts claims every mth [sic], I cannot comprehend that.”) ¹⁴⁴ 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.”). ¹⁴⁵ She viewed the Company’s CPF account to check on the payroll and CPF contributions, ¹⁴⁶ reviewed the Company’s bank statements ¹⁴⁷ and requested for spreadsheets of the Company’s accounts. ¹⁴⁸ She instituted a “monthly routine” of having the Company’s profit and loss statements submitted to her; ¹⁴⁹ she mandated that the Company’s “account files” be submitted to her “every month”; ¹⁵⁰ 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.”). ¹⁵¹ 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”. ¹⁵² 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”. ¹⁵³ 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.

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. ¹⁵⁴ Everything was to be “a family business” following Desmond’s debacle with Jason and Pauline. ¹⁵⁵ As such, Bill has no shares in Eng’s Char Siew and is not entitled to any profits of the company. ¹⁵⁶ He is only paid $500 for some freelance accounting work that he does for Eng’s Char Siew. ¹⁵⁷ On Bill’s part, he would have no motivation to be, as Pauline alleges, a supposed “mastermind” of the plot. ¹⁵⁸ 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.

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. ¹⁵⁹ He was not involved in securing the 248 Premises; ¹⁶⁰ the sisters viewed the property ¹⁶¹ and procured the lease themselves. ¹⁶² 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. ¹⁶³ He was not involved in procuring the supplies and ingredients for Eng’s Char Siew ¹⁶⁴ ; Mei Ling was able to do “everything” from her six years’ experience at the Company. ¹⁶⁵ He was not asked about the recipes or the cooking – the sisters had “the consultant of [their] mother”. ¹⁶⁶ He could not have contributed any start-up capital either; he was “totally broke at that time”. ¹⁶⁷ Currently, Desmond “[helps] out in [his] sister’s shop” ¹⁶⁸ and greets the customers. ¹⁶⁹ But he is not entitled to any of the profits ¹⁷⁰ and draws no salary from Eng’s Char Siew. ¹⁷¹ 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.

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.

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]):

73 In my judgment, none of the nine acts were carried out in furtherance of any conspiracy.

74 I first consider the allegedly wrongful allotment of 5% of the Company’s shares to Bill on 12 August 2015. ¹⁷² According to Pauline, the issuance of shares to Bill “paved the way for the Plaintiff’s removal as a director in June 2018”. ¹⁷³ This was allegedly part of a calculated and pre-meditated plan to “wrest control of the [Company]”. ¹⁷⁴

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. ¹⁷⁵ 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. ¹⁷⁶ On Desmond’s part, he signed the resolutions in 2015 because he felt he ought to honour the agreement. ¹⁷⁷

76 Pauline signed the resolutions too, ¹⁷⁸ but claims that she had been misled and induced by Bill (and Desmond) into signing these documents. ¹⁷⁹ I reject her evidence. Her assertions, as she admitted on the stand, are wholly unsubstantiated, bereft of any proof. ¹⁸⁰ On 22 September 2015, she queried Bill on the specific allocation of shares on 22 September, and Bill explained that his 5% was derived by issuing extra shares to adjust the shareholding as follows: ¹⁸¹

Subsequently, she signed documents for dividends to be paid out to “shareholders who [were] in the Register of Members”. ¹⁸² Bill was paid dividends for his shares in 2015, ¹⁸³ 2016, ¹⁸⁴ and 2017. ¹⁸⁵

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.”). ¹⁸⁶ 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”). ¹⁸⁷ 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. ¹⁸⁸ 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. ¹⁸⁹

78 The facts are plain. Pauline did not “discover” Bill’s shareholding in 2016. ¹⁹⁰ 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.

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. ¹⁹¹

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. ¹⁹² 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. ¹⁹³ As far as the choice of new address was concerned, Bill’s explanation was simple, clear and convincing: ¹⁹⁴

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. ¹⁹⁵ Further, the address was changed through a directors’ resolution on in September 2015. ¹⁹⁶ Pauline was one of the directors that authorised the Company to change its registered office to Bill’s residential address. ¹⁹⁷ 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].” ¹⁹⁸

82 It follows that the change of address was not intended to harm the Company.

83 Mui Hong registered the Sole Proprietorship on 8 February 2017. ¹⁹⁹ 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. ²⁰⁰ Second, she argues that Mui Hong could not have done this without prior discussion with Desmond. ²⁰¹ 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. ²⁰²

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”), ²⁰³ 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]”), ²⁰⁴ 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, ²⁰⁵ and that Desmond must have condoned the registration when he found out about it and did nothing afterwards. ²⁰⁶ Desmond and Mui Hong’s evidence was that Desmond was told after Mui Hong had registered the Sole Proprietorship, ²⁰⁷ 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. ²⁰⁸

86 The Sole Proprietorship was not used to operate any business. Mui Hong only took action to set up any wanton mee business ²⁰⁹ 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. ²¹⁰ Desmond’s evidence was also that he would have continued with the Company if Pauline had signed the lease. ²¹¹

87 The evidence of Desmond, ²¹² Mui Hong ²¹³ , Mei Ling ²¹⁴ and Mdm Loh ²¹⁵ show, rather, that the Ng family regarded the “Eng’s” name as family property. ²¹⁶ 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 famly’s (if any at all) intent in registering the Sole Proprietorship was directed towards protecting “this Eng’s brand” ²¹⁷ 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.

89 Mui Hong registered the Chilli Mark on 3 October 2017. ²¹⁸ 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. ²¹⁹ 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) ²²⁰ and had registered the Chilli Mark under Class 30 (for the manufacture of noodles). ²²¹ 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. ²²² 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. ²²³

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 judgement, 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”, ²²⁴ 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).

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].” ²²⁵ 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 emailed Jane on 31 January 2018, asking for Richard’s name to be put on the tenancy agreement. ²²⁶ Jane’s response was that a new tenant had already taken up the lease by then. ²²⁷ Pauline alleges that the attempt to assign the lease to Richard had been an effort by the defendants “to appropriate the lease for themselves”. ²²⁸ 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. ²²⁹

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”. ²³⁰ That said, Desmond was keen on continuing the Company’s business. ²³¹ Frustrated as he was with the issues amongst the partners, ²³² Desmond testified that he would have carried on the Company’s business if the lease had not been taken over by somebody else. ²³³ In my view, by asking Pauline to take up the lease, ²³⁴ Desmond was signalling his dissatisfaction with the way Pauline was treating him, ²³⁵ 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, ²³⁶ 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 Email was entirely explicable. Pauline had not responded to the request for her to sign the lease. ²³⁷ There was no word from Jane either. ²³⁸ 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. ²³⁹ The 24 January Email, 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”, ²⁴⁰ 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 ²⁴¹ 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. ²⁴² 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 emails 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. ²⁴³ 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.

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”, ²⁴⁴ that was “urgently” ²⁴⁵ made and “very last minute”. ²⁴⁶ Mui Hong and Mei Ling were scrambling to find a location for Eng’s Char Siew. ²⁴⁷ They viewed the 248 Premises in mid-February, ²⁴⁸ signed the lease on 21 February 2018, ²⁴⁹ took over the premises in April, ²⁵⁰ and opened Eng’s Char Siew for business on 13 May 2018. ²⁵¹ They were desperate and settled for the 248 Premises even though it was actually a lease for two units ²⁵² and the rental fees were significantly higher than the 287 Premises. ²⁵³ They did not have a business plan ²⁵⁴ and do not have any concrete profit-sharing arrangement till this day. ²⁵⁵ The Ng family does not “even talk about profits” and “[n]obody expects to take in any profit”. ²⁵⁶ In fact, Eng’s Char Siew is not a profitable business. ²⁵⁷ 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”. ²⁵⁸ 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, ²⁵⁹ coming to take measurements of the furniture after working hours ²⁶⁰ and scrutinizing the company accounts. ²⁶¹ 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. ²⁶² Desmond, on his part, was fully convinced that the lease had already been ‘stolen’ ²⁶³ and confirmed that he shared Mei Ling’s views. ²⁶⁴

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”. ²⁶⁵ As for the Company, it was clear by 1 February 2018 ²⁶⁶ at the latest, that it had no more future. The lease had been taken up by another tenant ²⁶⁷ and relations between the directors had deteriorated irreparably due to the bitter infighting (“damage has been done”). ²⁶⁸ 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, ²⁶⁹ 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”. ²⁷⁰

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”. ²⁷¹

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. ²⁷² 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 ²⁷³ and 2nd Franchise Marks ²⁷⁴ 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. ²⁷⁵ Eng’s Char Siew then made a string of trademark applications on 19 October 2018 ²⁷⁶ , 30 November 2018, ²⁷⁷ and 14 December 2018, registering the Name Marks. ²⁷⁸ 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 Noodles. 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.

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.

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; ²⁷⁹ and

(b) for Bill, from 8 June 2018 ²⁸⁰ till present day.

Pauline avers that these duties had been breached.

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.

109 Pauline has pleaded that Desmond breached three fiduciary duties: ²⁸¹

(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.

(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:

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 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 other (Horizon Partners Pte Ltd, Intervener) and another appeal [2009] 3 SLR(R) 109 (“Horizon Towers”) 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 trademarks 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.

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 majority. 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. ²⁸² 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”. ²⁸³ 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; ²⁸⁴ it was Jason who “recommended” Mr Law Boon Meng, the Company’s head chef, to work for Eng’s Wantan Noodle; ²⁸⁵ it was Jason who had assisted with Eng’s Wantan Noodle’s renovation of the premises; ²⁸⁶ 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. ²⁸⁷

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.

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 summarized 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 (“Singsung”) at [27] – [28], citing Reckitt & Colman Products Ltd v Borden Inc [1990] 1 WLR 491 at 499:

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.

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]:

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” ²⁸⁸ and accompanied by a “gunpowder” chilli paste. ²⁸⁹ It is this association that formed the attractive force that brought in custom.

125 The fundamental question at hand is the ownership of the goodwill. Professor Wadlow suggests the following tests for determining the ownership of goodwill (at para 3-140):

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” ²⁹⁰ and “the main figurehead which customers identified with.” ²⁹¹

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”. ²⁹² I deal here with their arguments.

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. ²⁹³ “[Mr Ng] was the licensor (as representative of his immediate family) and [the Company] was the licensee.” ²⁹⁴ “Jason, [Mr Ng] and the 2nd to 5th Defendants” were present when the licensing agreement was entered into. ²⁹⁵ The subjects of the licensing agreement were the following tradenames: ²⁹⁶

(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: ²⁹⁷

(a) “Eng’s Char Siew Wan Ton Mee” [emphasis added]; 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. ²⁹⁸ He was paid $5,000 a month despite not playing an active role in the kitchen. ²⁹⁹ 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.” ³⁰⁰

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. Professor Wadlow describes “licenses for goodwill” as such (at para 3-213):

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”. ³⁰¹ 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, ³⁰² 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. ³⁰³ 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, ³⁰⁴ 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: ³⁰⁵

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.

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”. ³⁰⁶ 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.

139 The Counterclaimants submitted that the Ng family had made “substantive and critical contributions” to the Company’s operations. ³⁰⁷ The implication here was that contribution to the Company’s operations, either in cooking, finances, “back-end preparation” or artwork design, ³⁰⁸ entitled the contributors to ownership of the goodwill.

140 This argument relied on Gromax Plasticulture v Don. & Law 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 cooperate 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 trademark 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]), the 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, who testified that “[a]t all times [they] attribute[d] the Wantan Mee, its business and its recipe to the Ng family.” ³⁰⁹ But this was not cogent evidence that the Counterclaimants were identified with the unique aspect that attracted custom. An assortment of food blog reviews, ³¹⁰ local broadsheet columns, ³¹¹ magazine clippings ³¹² and alternative news media articles ³¹³ 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” ³¹⁴ went, it was “always … Desmond and his father before the father passed away”. ³¹⁵ Moreover, the evidence of Mei Ling and Mui Hong made clear that they remained dependent upon Desmond’s presence at the Eng’s Char Siew to bring in custom. ³¹⁶ 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.

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, ³¹⁷ 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.

145 In conclusion, I dismiss both the claim and counterclaim. I shall hear counsel on costs.