1 In the world of publicly-traded securities, informed decision making by investors is facilitated by transparency in operations, robust accounting standards, disclosure requirements for price-sensitive information and objective data-reporting. However, these are not typical features of investments in the private market. Privately-traded securities often entail higher potential returns than those being traded in the public markets, but are accompanied by, inter alia, a much higher level of risk, less complete financial disclosures, less robust regulatory protections and, generally, a higher level of illiquidity. For that reason, in the domestic context, such investments are generally only available to accredited investors, ie, investors who are deemed to possess the necessary expertise, financial resources and know-how to navigate the murkiness of such waters, and who have an outsized appetite for risks with one eye to reaping the relatively handsomer financial rewards.

2 This case is, in some ways, a microcosm of that dynamic and serves as a timely and necessary caution of the risks that often accompany private investments. Here, an aggrieved investor of a private investment gone wrong raises numerous issues as to how the financial product had been marketed to him (and to related entities) after he had allegedly suffered hundreds of thousands of dollars in losses. An investment that was supposed to reap him numerous multiples of his initial financial investment ended up seemingly stripping him of the invested monies almost in its entirety. When the initially rosy expectations of a hugely profitable investment are not met, and where representations had been made about the pristine prospects of that investment, where should the losses lie?

3 The plaintiff, Asia-Euro Capital SPV I LLP, is a limited liability partnership incorporated in Singapore that has its principal business in financial investments. ¹ Mr Adrian Choo Pei Ang (“Mr Choo”) is the managing partner and a director of the plaintiff. ² At all relevant times, Mr Choo was a Chartered Financial Analyst (“CFA”), and a Chartered Alternative Investment Analyst (“CAIA”). ³

4 Mr Lim Jing Xiang (“Mr Lim JX”) is also a partner and director in the plaintiff. ⁴ He is a cousin of Mr Choo. ⁵ At all relevant times, Mr Lim was a chartered accountant accredited by the Institute of Singapore Chartered Accountants. ⁶

5 The 1st defendant is Regulus Advisors Pte Ltd (“RAPL”), formerly known as Al Masah Capital (Asia) Pte Ltd (“AMCA”). The 1st defendant changed its name from AMCA to RAPL on 16 August 2016. ⁷ It is a company incorporated in Singapore and a registered fund management company regulated by the Monetary Authority of Singapore (“MAS”). Its principal business is to promote equity funds or investments to investors. ⁸

6 The 1st defendant supported its parent company, Regulus Capital Limited (“RCL”) and a related company, Al Masah Capital Limited (“AMCL”), in providing services to a number of private equity companies (the “PE companies”), including the AVIVO Group (“AVIVO”) and Al Najah Education Limited (“ANEL”). AVIVO and ANEL were both incorporated in the Cayman Islands and in the business of providing healthcare services and educational services respectively in the United Arab Emirates (“UAE”). ⁹ The PE companies engaged RCL as an investment manager to advise on and assist with their investment activities, and engaged AMCL to act as their placement agent to assist with the promotion of investments into them. ¹⁰ The 1st defendant’s role was to support RCL’s and AMCL’s operations in Southeast Asia. ¹¹

7 Additionally, the 1st defendant dealt with parties who also wished to act as a distributor, or “referral partner”, that refers others to invest in the PE companies. A “referral partner” does so by entering into a referral agreement with AMCL, under which it could earn a referral fee for introducing investments into the PE companies. ¹²

8 The 2nd defendant, Mr Amit Bagri, was employed by the 1st defendant from about 16 September 2014 to 19 April 2018. He held the title of “Sales Director” when the 1st defendant was known as AMCA, and subsequently “Director, Investor Relations” after the 1st defendant changed its name to RAPL. ¹³ Although the 2nd defendant’s job title incorporated the term “director”, he was not, in fact, a board director of the 1st defendant. ¹⁴ Instead, according to the 2nd defendant, his role in the 1st defendant was sales-focused, ie, to introduce clients to opportunities to invest in private equity. Specifically, he promoted the purchase of shares in the PE companies. ¹⁵

9 The 3rd defendant, Mr Don Lim Jung Chiat, held numerous (and sometimes concurrent) leadership positions in various entities (which include the entities as set out above at [5]–[6]):

(a) He was a board director of the 1st defendant from 3 May 2013 to 10 October 2016, and served as its chief executive officer (“CEO”) from 19 April 2016 to 10 October 2016. By 10 October 2016, the 3rd defendant had stepped down from both the board and the position of CEO of the 1st defendant. ¹⁶

(b) He was appointed a board director of AVIVO sometime in November 2014, a position he resigned from on 1 November 2016. ¹⁷

(c) On or about 26 July 2016, he was formally employed by RCL and assigned the title of “Executive Director” though he was not, in fact, a board director of RCL. For the purposes of this role, he relocated to Dubai and was also tasked with managing ANEL. ¹⁸ He continued in this role within RCL until sometime in April 2021. ¹⁹

10 It would be apparent that by virtue of the roles he occupied as set out in (a) and (b) of the preceding paragraph, from November 2014 till 10 October 2016, the 3rd defendant was concurrently a board director of the 1st defendant and also AVIVO.

11 After the 3rd defendant stepped down as CEO of the 1st defendant, Mr Mohd Farid bin Mohd Rosli (“Mr Farid Rosli”) was appointed the CEO of the 1st defendant from 24 October 2016 to 29 July 2020. ²⁰ Prior to holding this position, Mr Farid Rosli was employed by RCL from 2013 to 2016 as a “director”, though, much like the 3rd defendant, he did not in fact serve on the board of RCL. In that capacity, Mr Farid Rosli advised AVIVO on potential and actual acquisitions and investments, and AVIVO’s own financial performance. ²¹

12 On 7 October 2016, Mr Choo and the 2nd defendant met for the first time. At the meeting, the 2nd defendant introduced the 1st defendant’s business and the PE companies to Mr Choo. ²²

13 Consequent to this meeting, on 10 October 2016, the 2nd defendant sent an email to Mr Choo which contained three slide decks: (a) an overview of the 1st defendant’s business dated October 2016 (the “RAPL Corporate Presentation”); (b) an overview of AVIVO’s business dated August 2016 (the “AVIVO Teaser”); and (c) an overview of ANEL’s business dated July 2016 (the “ANEL Teaser”). ²³ Sometime in October 2016, the 2nd defendant also provided two further slide decks, both dated September 2016, to Mr Choo. These were the “AVIVO Investor Presentation” and the “AVIVO Investor Presentation (Financial Section)” slide decks. ²⁴ These two slide decks form the “Offering Document” as defined in the share subscription form that is eventually signed by Mr Choo on behalf of the plaintiff. ²⁵

14 Mr Choo also requested access to AVIVO’s online data room to do due diligence. ²⁶ Mr Choo, Mr Lim JX, and two other investors (Ms Ruth Guo Qingru (“Ms Guo”) and Mr Brian Ng (“Mr Ng”), whose relationships with Mr Choo will be explained later at [19]), were all given accounts on the “Investor Login” platform to access AVIVO’s online data room. ²⁷ At the time, Mr Choo was allegedly in discussions with five Chinese investors regarding potential investments in AVIVO. This group of Chinese investors included Ms Guo and Mr Ng. ²⁸ By way of the online data room, Mr Choo had access to the AVIVO Teaser, AVIVO Investor Presentation and AVIVO Investor Presentation (Financial Section) slide decks, AVIVO’s audited financial statements, a fact book on AVIVO’s recent years’ financial performance and AVIVO’s memorandum and articles of association. ²⁹

15 On 27 October 2016, Mr Choo signed a referral agreement with AMCL (the “Referral Agreement”). Of significance in the Referral Agreement is the fact that Mr Choo would be entitled to a referral fee of up to 2% of the capital raised for investments into AVIVO. ³⁰

16 On 10 November 2016, Mr Choo incorporated the plaintiff as a special purpose vehicle for the purpose of investing in AVIVO. ³¹ The use of a special purpose vehicle of this nature would also allow for Mr Choo to receive referral fees based on the quantum of the plaintiff’s entire investment into AVIVO, even if some of the investment money came, in substance, from himself (see below at [22]). On 29 November 2016, the plaintiff was converted to a limited liability partnership and its purpose was stated to be “to conduct commercial due diligence and invest in property as well as private companies”, ³² whereby “private companies” would, in practical terms, be a reference only to AVIVO. This is because, based on the partnership agreement for the plaintiff, the plaintiff would “restrict itself” to investing only in AVIVO. ³³ The partnership agreement was signed by Mr Choo and Mr Lim JX, ie, the two partners and directors of the plaintiff (see above at [3]–[4]).

17 On 30 November 2016, as part of their due diligence efforts, ³⁴ Mr Choo and Mr Lim JX flew to Dubai to observe and view the assets of AVIVO (the “Site Visit”). ³⁵ On that day, Mr Farid Rosli guided Mr Choo and Mr Lim JX to tour the offices and physical assets of AVIVO, which included hospitals and dental clinics. On the subsequent day (ie, 1 December 2016), Mr Choo met with and posed questions regarding AVIVO’s business to various personnel in AVIVO, including Mr Amit Agrawal (“Mr Agrawal”), who was the chief financial officer of AVIVO. ³⁶ After the Site Visit, Mr Choo also sent in, by way of an email to Mr Agrawal, further questions to be addressed by AVIVO. ³⁷

18 On 8 December 2016, Mr Choo signed a subscription form (the “Subscription Form”) on the plaintiff’s behalf, subscribing to US$550,000 worth of shares in AVIVO (the “Subscribed Capital”). Each share was issued at US$2.80. ³⁸ As such, the plaintiff had purchased 196,428.57 shares in AVIVO (the “AVIVO Shares”). ³⁹ The material clauses in the Subscription Form in relation to any fees payable (in particular, the clause regarding the placement fee to be paid to distributors or placement agents) are as follows: ⁴⁰

19 The plaintiff paid US$550,000 in accordance with the Subscription Form on around 15 December 2016. ⁴¹ The US$550,000 apparently comprised moneys from the following individuals: ⁴²

(a) US$220,000 was directly contributed by Mr Choo.

(b) US$100,000 was loaned by Ms Guo to Mr Choo personally, pursuant to a loan agreement between Ms Guo and Mr Choo dated 5 December 2016. According to the loan agreement, an “Initial Sales Charge” of 2% of the subscription value would be charged by the plaintiff to Ms Guo to “cover the costs of set-up of the partnership, sourcing of the shares, structuring the investment, legal fees and commercial due diligence”. ⁴³

(c) US$120,000 was loaned by Mr Ng to Mr Choo personally. The loan agreement between Mr Ng and Mr Choo was apparently oral, but it was apparently materially similar to the one between Ms Guo and Mr Choo. ⁴⁴

(d) US$110,000 was contributed by Mr Lim JX.

20 The AVIVO Shares were purchased through a secondary sale, ie, the AVIVO Shares were purchased from an existing shareholder. This is contrasted with a primary sale of shares, where investors invest in the PE companies directly in return for newly-issued shares. ⁴⁵ Initially, as of around 12 December 2016, the arrangement was supposed to be that the AVIVO shares were to be transferred from one Aly Ahmed Raafat to the plaintiff. A share transfer form dated 12 December 2016 was signed by the plaintiff but was not counter-signed by Mr Aly Ahmed Rafaat. ⁴⁶ On 5 January 2017, a new share transfer form (the “Share Transfer Form”) was provided via email by the 2nd defendant to the plaintiff, which indicated that the AVIVO Shares were to be transferred to the plaintiff from African Partners Limited (“African Partners”) instead. The Share Transfer Form was signed by both the plaintiff and African Partners. ⁴⁷ It would be useful to note, for reasons that will be discussed later, that African Partners had acquired the AVIVO Shares at between US$1.00 to US$1.50 per share, ⁴⁸ while the plaintiff acquired the AVIVO shares from African Partners in a secondary sale at US$2.80 per share.

21 The plaintiff’s share certificate, stating its ownership of the AVIVO Shares, was issued by AVIVO on 10 January 2017, ⁴⁹ and was duly received by the plaintiff on 23 January 2017. ⁵⁰

22 Sometime in February 2017, Mr Choo received US$9,821 in referral fees, which amounted to approximately 1.8% of the US$550,000 invested in AVIVO. ⁵¹ At the time of the investment, neither Ms Guo nor Mr Ng were informed of the fact that Mr Choo would be receiving referral fees for procuring their investment in AVIVO through the plaintiff. ⁵²

23 Between Mr Choo’s and the 2nd defendant’s first meeting on 7 October 2016, and the signing of the Subscription Form on 8 December 2016, the plaintiff alleges that certain representations were made by the 2nd defendant to Mr Choo. Mr Choo claimed that these representations induced him to take the necessary steps that culminated in the US$550,000 investment by the plaintiff in AVIVO. ⁵³ I will deal with each of these purported representations in turn.

24 On 20 October 2016, Mr Choo met the 2nd defendant at the 1st defendant’s office to discuss potential investments in AVIVO. During such a meeting, the plaintiff alleges that the 2nd defendant made the following oral representations to Mr Choo (the “20 October Oral Representations”): ⁵⁴

Mr Choo then conveyed the alleged representations above made by the 2nd defendant to Mr Lim JX. ⁵⁵

25 According to Mr Choo, the 20 October Oral Representations further comprise the following statements made by the 2nd defendant:

(a) When Mr Choo asked the 2nd defendant if any management or board members of the 1st defendant were selling their shares before AVIVO’s planned IPO, the 2nd defendant replied that there would be no such share disposal to demonstrate the management’s confidence and commitment to the IPO. Moreover, there would even be a lock-down period for the shares owned by the management and/or board of AVIVO. ⁵⁶

(b) The 1st defendant’s fees were “transparent and reflected as a 20% interest on profits and an additional 2% annual management fee”. ⁵⁷

(c) The “primary purpose” of the 3rd defendant’s directorship in AVIVO was to “actively improve the business and financial performance” of AVIVO for the benefit of investors and shareholders. In fact, the 3rd defendant was placed in AVIVO to protect the interests of investors in AVIVO. ⁵⁸

(d) The 3rd defendant was concurrently the CEO of the 1st defendant, had outstanding credentials and could protect the investments in AVIVO. ⁵⁹

26 As outlined earlier (see above at [20]), the plaintiff obtained the AVIVO Shares through a secondary sale. Prior to the plaintiff’s investment, on 27 October 2016, Mr Choo emailed the 2nd defendant with two questions regarding the dividend payouts from investing in AVIVO: ⁶⁰

27 In essence, Mr Choo was clarifying: (a) whether the dividends, if any were to be received by the plaintiff, would be calculated according to the price at which the plaintiff would acquire the shares from the original owner of the shares (the “Acquisition Price”) or at the price at which the original owner of the shares initially acquired them (the “Original Entry Price”); and (b) if the plaintiff were to acquire the AVIVO Shares in November 2016, whether the dividends received would be for the full year of 2016, paid on a semi-annual basis, or pro-rated based on the holding period of the said shares. ⁶¹

28 On the same day, the 2nd defendant responded as follows to Mr Choo’s questions, and included a table in his email (the “27 October Email” and “Breakdown Table”): ⁶²

29 On 28 October 2016, there was a phone call between Mr Choo and the 2nd defendant (the “28 October Phone Call”). The contents of the phone call are disputed. Mr Choo claims that, in that phone call, the 2nd defendant conveyed that the dividends to be paid to the plaintiff would be based on the Acquisition Price, and that AVIVO “had the ability and intended to continue to maintain a high dividend payout of approximately 9% annually”. ⁶³ A day after the phone call, on 29 October 2016, Mr Choo sent an email to the 2nd defendant (the “29 October Email”), which stated as follows: ⁶⁴

There appears to be no recorded response from the 2nd defendant to the 29 October email.

30 In November 2016, Mr Choo did a search on the 1st defendant, and discovered that it was formerly under the “Al Masah Capital” brand (see above at [5]). According to Mr Choo, he had a phone call with the 2nd defendant on 16 November 2016 (the “16 November Phone Call”), in which he questioned the 2nd defendant as to why the 1st defendant changed its name. The 2nd defendant allegedly responded that the re-naming of the 1st defendant from AMCA to RAPL was “merely a rebranding exercise”. ⁶⁵

31 On 23 November 2016, Mr Choo compiled a list of questions which he wanted addressed by the management and auditors of AVIVO, and sent them to the 2nd defendant. In particular, Mr Choo asked the following question: ⁶⁶

32 On 28 November 2016, the 2nd defendant responded to Mr Choo’s questions via email (the “28 November Email”). In response to the question reproduced in the preceding paragraph, the 2nd defendant conveyed verbatim to Mr Choo via email the following answer provided by Mr Agrawal: ⁶⁷

33 On 2 December 2016, during another alleged phone call between the 2nd defendant and Mr Choo, the 2nd defendant allegedly represented that “[AVIVO’s] financial projections are conservation [sic] and can comfortably sustain the 9% dividend pay out [sic]” (the “2 December Phone Call”). ⁶⁸

34 After the plaintiff subscribed to the AVIVO Shares in December 2016, nothing of significance (at least for the purposes of the proceedings before me) happened for about eight months. However, as I will explain below, things quickly unravelled from August 2017 onwards.

35 On 21 August 2017, Mr Choo received an email from AVIVO’s investor relations department (which I shall refer to as AVIVO as well for ease of reference, since there was no dispute that AVIVO’s investor relations department accurately communicated AVIVO’s intentions) that the “distribution for [the plaintiff’s] investment in [AVIVO] for the financial year 2016 has been decided at 7%” [emphasis added] and that the “date for the distribution [of dividends] will be communicated … in due course”. ⁶⁹ According to Mr Choo, this came as a “complete surprise” to him given the 2nd defendant’s repeated representations to him that the dividend payout would be at 9%. ⁷⁰ Nonetheless, on 14 September 2017, Mr Choo merely replied to the above email by requesting for “an update on the distribution date” for the dividends. ⁷¹

36 On 5 November 2017, AVIVO sent out another email stating that distribution of the dividends will be in “tranches” due to “the existing cash position of the company and some of the immediate priority payments like debt servicing”, and that the first tranche will be processed within ten days of the email. ⁷² On 22 and 27 November 2017, Mr Choo sent further emails to AVIVO and the 2nd defendant, seeking an update on the release of dividend payments. ⁷³ On 30 November 2017, the 2nd defendant responded to Mr Choo over email after receiving updates from Mr Agrawal, and “highlight[ed]” that the dividends will be calculated based on the Original Entry Price instead of the Acquisition Price: ⁷⁴

37 On 5 December 2017, Mr Choo responded to the abovementioned email from the 2nd defendant, seeking “documentary proof” that the “acquisition price of the seller [ie, the Original Entry Price] was US$1 per share”. ⁷⁵ AVIVO finally responded to Mr Choo on 12 December 2017 with: (a) African Partners’ share issuance statement, which revealed that its shares in AVIVO were originally acquired at either US$1.00 or US$1.50 (172,434 shares were acquired at US$1.00 and 723,035 shares at US$1.50); and (b) a table showing that the dividend payments to the plaintiff would be calculated on the basis of the Original Entry Price of US$1.00 (for 172,434 of the 196,428.57 shares acquired by the plaintiff) and US$1.50 (for the remaining 23,994.57 shares) accordingly. The total amount of dividends to be paid to Mr Choo for the financial year of 2016 would therefore amount to US$680. ⁷⁶ On 13 December 2017, Mr Choo sent an email to AVIVO and the 2nd defendant, expressing, amongst other things, his dissatisfaction that the dividends were calculated on the basis of “the lowest cost shares ($1) first” and his desire for an explanation from AVIVO and the 2nd defendant. ⁷⁷ On 7 January 2018, AVIVO responded, in relation to that query: ⁷⁸

38 On 10 January 2018, Mr Choo sent the following response to AVIVO’s email reproduced in the preceding paragraph: ⁷⁹

39 Of the total dividends payable to the plaintiff for the financial year of 2016 (ie, US$680), AVIVO only distributed US$170 to the plaintiff in its first tranche of dividend payments to investors. This was only 25% of the dividends payable for the financial year ending in 2016. According to Mr Choo, the plaintiff has not received any further dividend payouts to date. ⁸⁰

40 On 27 February 2017, AVIVO held an extraordinary general meeting (“EGM”). According to Mr Choo, he did not attend the EGM but requested for a copy of the meeting’s minutes and received them sometime in the second half of 2017 (the “EGM Minutes”). ⁸¹ Upon receiving a copy of the EGM minutes, Mr Choo noticed that the signature on the EGM Minutes of Mr Shailesh Dash, the CEO and founder of RCL and a board director of the 1st defendant, ⁸² was identical to the signature on the Share Transfer Form signed on behalf of African Partners. Mr Choo claimed that, at that juncture, he came to the realisation that the plaintiff had essentially acquired the AVIVO Shares from Mr Shailesh Dash. ⁸³ According to the plaintiff, this was contrary to the 2nd defendant’s representation that there would be no share disposal by the management and/or board of the 1st defendant and/or AVIVO ahead of the intended IPO of AVIVO (see above at [25(a)]). ⁸⁴

41 On 15 January 2018, Mr Choo also received an update over email from AVIVO stating that the IPO was put on hold as the “market scenario was no longer conducive”. ⁸⁵

42 On 21 February 2018, Mr Choo sent an email to various members of the senior management of the 1st defendant and AVIVO. The email was sent on behalf of himself and 13 other investors in AVIVO. In the email, Mr Choo and the other investors sought a “constructive dialogue” for the “Management of [AVIVO] … to address [their] concerns and grievances”. ⁸⁶ A letter was also attached to the email. ⁸⁷ It comprised questions posed by this group of investors to AVIVO. ⁸⁸

43 AVIVO responded on 7 March 2018 to some of the questions posed by the investors. ⁸⁹ Subsequently, a meeting was held on 16 August 2018 between several investors including the plaintiff (represented by Mr Choo), and, amongst others, Mr Farid Rosli, and Dr Dilshaad Ali who was the CEO of AVIVO at that time. ⁹⁰

44 Between 2019 and 2021, it appears that the plaintiff did not take any further action regarding the AVIVO Shares, although Mr Choo alleged that “several other investors in AVIVO had repeatedly chased AVIVO’s Investor Relations for financial updates but to no avail”. ⁹¹

45 On 30 July 2021, Mr Choo allegedly came across a news article dated 4 November 2020 titled “Al Masah Capital to be liquidated following series of fines by Dubai regulator”. ⁹² In that article, it was revealed that in September 2019, the Dubai Financial Services Authority (“DFSA”) had fined AMCL in the sum of US$3m, and had also fined Al Masah Capital Management Limited (“AMCML”, a Dubai-based subsidiary of AMCL ⁹³ ), in the sum of US$1.5m, for not informing investors in ANEL of a placement fee equating to 10% of all funds raised by such investors. The DFSA also banned certain individuals, including Mr Shailesh Dash and the 3rd defendant, from “performing any function in connection with the provision of financial services in or from the DIFC [ie, the Dubai International Financial Centre]”, and fined them US$225,000 and US$150,000 respectively. ⁹⁴

46 In DFSA’s decision notice against the 3rd defendant dated 25 September 2019 (the “Decision Notice”), such action was taken against the 3rd defendant for his involvement and knowing concern in the contraventions of DFSA-administered laws or rules by AMCL and AMCML by: (a) making misleading or deceptive statements as to fees in certain documents; and (b) failing to take reasonable steps to ensure that the information contained in those documents was clear, fair and not misleading. This decision was in relation to the failure to disclose a placement fee, amounting to 10% of the invested capital, that was paid to AMCL for investments into ANEL. ⁹⁵ It was also revealed that investigations against AMCL and the 3rd defendant commenced in April 2016 (and thus prior to the plaintiff’s subscription of the AVIVO Shares). ⁹⁶ The plaintiff thus alleges that the defendants failed to disclose the DFSA investigations against the 3rd defendant. The presence of such investigations against AMCL and the 3rd defendant also went against the 2nd defendant’s alleged representation that the 1st defendant was in “excellent standing” with the MAS and the DFSA (see above at [24]). ⁹⁷

47 According to the plaintiff, an “unusually high” placement fee of 10% of the invested capital was also collected by the 1st defendant from the investments into AVIVO, and such a placement fee was similarly concealed from the plaintiff. ⁹⁸ This was also contrary to the 2nd defendant’s alleged representation that the 1st defendant’s fees were transparent (see above at [25(b)]). ⁹⁹

48 Mr Choo claimed that on the same day that he came across the news article regarding DFSA’s decision, he conducted a profile search on the 3rd defendant with the Accounting and Corporate Regulatory Authority (“ACRA”), and found out that the 3rd defendant had ceased to be a director of the 1st defendant on 10 October 2016. ¹⁰⁰ This was the very same day that the 2nd defendant circulated materials such as slide decks in relation to the 1st defendant and AVIVO to Mr Choo (see above at [13]). According to the plaintiff, these slides thus wrongly represented that the 3rd defendant remained the CEO and a board director of the 1st defendant. ¹⁰¹

49 On 20 October 2021, the present suit was commenced by the plaintiff against the defendants. ¹⁰²

50 The “genesis of the [plaintiff’s] claim” lies in the series of alleged misrepresentations made by the 2nd defendant in his capacity as a “director” of the 1st defendant to Mr Choo, which were relied on by Mr Choo (and thus the plaintiff) to acquire shares in, and refer other investors to, AVIVO. ¹⁰³ In gist, the following misrepresentations were allegedly made by the 2nd defendant to Mr Choo (the “Alleged Representations”):

(a) The expected dividend yield of the AVIVO Shares would be at 9% (the “9% Dividend Representation”), when it was 7% in reality.

(b) The dividend payouts to investors in AVIVO were to be calculated based on the Acquisition Price (ie, at US$2.80 per share) instead of the Original Entry Price (ie, at US$1.00 to US$1.50 per share) (the “Calculation Representation”). However, as it turned out, the dividends were calculated based on the much lower Original Entry Price.

(c) There would be no share disposal, and even a pre-IPO lockdown period, for the shares owned by board members and/or management of the 1st defendant and AVIVO, to demonstrate their confidence in and commitment to the IPO (the “No Share Disposal Representation”) and relatedly, that there would be an upcoming IPO planned for AVIVO (the “Intended IPO Representation”). As noted earlier, there was a share disposal by the management of AVIVO as the AVIVO Shares were procured from the CEO of AVIVO, and the IPO planned for AVIVO was eventually put on hold.

(d) That the 1st defendant’s fees would be transparent and reflected as only a 20% interest on profits and an additional 2% annual management fee (of the invested capital) (the “Transparent Fees Representation”). On top of the disclosed fees, the plaintiff alleges that the 1st defendant collected a placement fee of 10% of the invested capital which the plaintiff was not aware of.

(e) That the 3rd defendant was a “key figure” with “outstanding credentials”, whose concurrent appointment in the boards of AVIVO and the 1st defendant was intended to safeguard the interests of investors in AVIVO (the “Concurrent Role Representation”), but the 3rd defendant had stepped down from both boards prior to the plaintiff’s investment in AVIVO. At the same time, the plaintiff also claims that the 1st and/or 2nd defendant failed to disclose the 3rd defendant’s conflict of interest by way of his concurrent appointments in the boards of AVIVO and the 1st defendant, a contention which is squarely at odds with the intent of the representation found in the preceding sentence. I will address this inconsistency within their claim at a later juncture.

(f) The active concealment of the DFSA investigations against the 3rd defendant and the 3rd defendant’s resignation. I pause to note that the plaintiff is not relying on the contents of, or outcome in, the Decision Notice per se. Rather, the plaintiff is relying on it to demonstrate that such investigations were live against the 3rd defendant and should have been disclosed. ¹⁰⁴ The existence of such investigations against the 3rd defendant was also contrary to the representation that the 1st defendant was in “good standing” with the MAS and the DFSA (the “Good Standing Representation”).

51 The plaintiff seeks US$550,000 in joint damages from the defendants, with interest at 5.33% per annum from the date it paid the aforesaid sum to AVIVO to acquire the AVIVO shares. ¹⁰⁵ The plaintiff does so on the basis of the following claims:

(a) claims against the 1st and 2nd defendants for fraudulent and/or negligent misrepresentation under common law; ¹⁰⁶

(b) alternatively, claims against the 1st and 2nd defendants for damages for negligent misrepresentation under ss 2(1) and 2(2) of the Misrepresentation Act 1967 (2020 Rev Ed) (“Misrepresentation Act”); ¹⁰⁷ and

(c) against all three defendants for unlawful means conspiracy. ¹⁰⁸

52 Initially, there appeared to be a standalone claim against the 1st and 2nd defendants for an alleged breach of duty of care, ¹⁰⁹ but this was later crafted as part of the claim for negligent misrepresentation. ¹¹⁰ According to the plaintiff, it was expressly and/or impliedly agreed that the 1st and 2nd defendant would advise the plaintiff, and that they would exercise reasonable care and skill throughout the period of investment. ¹¹¹ Alternatively, by agreeing to provide financial advice to Mr Choo, the 1st and 2nd defendants had voluntarily assumed responsibility to the plaintiff to exercise reasonable care and skill in rending the financial advice. By virtue of the 1st and 2nd defendants’ profession, skill, expertise, knowledge, experience and/or their special position, it is reasonable to expect that the plaintiff would rely on them to give reliable advice. ¹¹²

53 In relation to the claim against all three defendants for unlawful means conspiracy, the plaintiff avers that there was a combination or agreement between the three defendants for the 1st and 2nd defendants to make the Alleged Representations, including concealing the fact that the 3rd defendant was facing DFSA investigations at the time of the plaintiff’s investment. ¹¹³ However, in the plaintiff’s opening statement and closing submissions, its position on this shifted slightly. The plaintiff now contends that there was a combination or agreement between the defendants to specifically conceal the 3rd defendant’s resignation (and the DFSA investigations against him), by way of the 1st and 2nd defendant making the Concurrent Role Representation to Mr Choo. ¹¹⁴ The plaintiff relied on the Concurrent Role Representation, and consequently suffered loss (in the sum of the US$550,000 invested in AVIVO). ¹¹⁵

54 For completeness, the plaintiff is not claiming that the 3rd defendant in particular made any misrepresentation to the plaintiff, nor is the plaintiff claiming that the 3rd defendant breached any duty of care. ¹¹⁶

55 The 1st and 2nd defendants’ primary case is that none of the misrepresentations alleged by the plaintiff were, in fact, made. ¹¹⁷ Their secondary case is that even if the alleged representations were made, they were statements of opinion or promises as to future conduct, which are not actionable to begin with. ¹¹⁸ Moreover, the plaintiff did not rely on any alleged misrepresentation in acquiring the shares. Instead, it relied on its own judgment in doing so. ¹¹⁹ There is also no evidence of any fraudulent intent or negligence on the part of the 1st and 2nd defendants. ¹²⁰

56 The 1st and 2nd defendants also contend that there was no duty of care owed to the plaintiff. There was no contractual duty of care as there was never any contractual agreement for them to provide investment advice to the plaintiff. In this regard, there is no evidence that any consideration was provided for such that an enforceable contractual duty of care could have arisen. ¹²¹ There also could not have been any tortious duty of care owed to the plaintiff since “the law does not recognise a positive tortious duty of care” to give advice. ¹²² Furthermore, at the time the alleged representations were made, the plaintiff was not even incorporated yet (see above at [16]). As such, the 1st and 2nd defendants could not have assumed responsibility for an entity that did not even exist at that time. ¹²³ In any event, any alleged duty of care would have been negated by the express disclaimers within the RAPL Corporate Presentation, AVIVO Teaser, and the Offering Document. ¹²⁴

57 In addition, the 1st and 2nd defendants highlight that the plaintiff was set up as a special purpose vehicle to “conduct commercial due diligence and invest” in AVIVO, and that Mr Choo even earned an “Initial Sales Charge” of 2% of the invested capital for providing various services, including commercial due diligence on AVIVO, to Ms Guo and Mr Ng. As such, it was Mr Choo who was the “agent for [the] investors” through the plaintiff. ¹²⁵ This only reinforces the 1st and 2nd defendants’ contention that they had no duty to advise Mr Choo (or the plaintiff) and that the plaintiff ultimately exercised its own independent judgment to make the investment. ¹²⁶

58 Furthermore, the plaintiff has not established its alleged loss. Crucially, it has failed to provide any evidence whatsoever of the current value of the AVIVO Shares. ¹²⁷

59 Finally, the plaintiff’s claim in unlawful means conspiracy also fails as there were no unlawful acts (since the misrepresentation claims are not made out), no evidence of an agreement or combination between the defendants to carry out the alleged unlawful acts, and no specific intention to injure the plaintiff. ¹²⁸

60 The 3rd defendant makes no admission to whether there were unlawful acts underlying the alleged unlawful means conspiracy that have taken place, but also does not submit on them since the Alleged Representations were, on the plaintiff’s case, committed by the 1st and/or 2nd defendant. ¹²⁹

61 The 3rd defendant’s case is essentially that there was no agreement or combination between the three defendants:

(a) The 3rd defendant was not involved in the representations made to the plaintiff by the 2nd defendant in relation to the investment in the AVIVO Shares. He never corresponded with the plaintiff regarding its decision to invest in AVIVO and was not consulted on the written materials shared with the plaintiff by the 2nd defendant. ¹³⁰ The fact that the 3rd defendant was carbon-copied in certain emails is insufficient to show any agreement of a shared objective between the defendants. ¹³¹

(b) The 3rd defendant’s resignation on or around the time the plaintiff invested in AVIVO is a mere coincidence. ¹³²

(c) The 1st and 2nd defendants were not aware of the DFSA investigations against the 3rd defendant at the time of the plaintiff’s investment in AVIVO. In any event, it would not have been possible to disclose such DFSA investigations at the time due to the need to ensure compliance with regulatory directions by the DFSA to keep such investigations confidential. ¹³³

62 There is also no evidence that the 3rd defendant (or any of the other defendants) intended to specifically injure the plaintiff, ¹³⁴ nor any evidence adduced by the plaintiff to prove its loss. ¹³⁵ As such, a claim for unlawful means conspiracy is not made out.

63 I first address the plaintiff’s claims of misrepresentation against the 1st and 2nd defendants. The elements of the tort of fraudulent misrepresentation have been summarised in IM Skaugen SE and another v MAN Diesel & Turbo SE and another [2018] SGHC 123 (“IM Skaugen SE”) at [121] (citing the Court of Appeal’s decision in Panatron Pte Ltd and another v Lee Cheow Lee and another [2001] 2 SLR(R) 435 (“Panatron”) at [14]) as follows:

64 Given the serious implications of fraud, a relatively high standard of proof is required for the court to be satisfied that fraudulent misrepresentation is established. As such, “cogent evidence” is necessary (Fuji Xerox Singapore Pte Ltd v Mazzy Creations Pte Ltd and others [2021] SGHC 193 (“Fuji Xerox”) at [50], citing the Court of Appeal in Alwie Handoyo v Tjong Very Sumito and another and another appeal [2013] 4 SLR 308 at [159]–[161]).

65 The elements of the tort of negligent misrepresentation were also outlined in IM Skaugen SE at [121], referring to the Court of Appeal decisions of Fong Maun Yee and another v Yoong Weng Ho Robert [1997] 1 SLR(R) 751 at [52] and Spandeck Engineering (S) Pte Ltd v Defence Science & Technology Agency [2007] 4 SLR(R) 100 at [21]):

(a) the defendant must have made a false representation of fact;

(b) the representation induced actual reliance;

(c) the defendant must owe a duty of care;

(d) there must be a breach of that duty of care; and

(e) the breach must have caused damage to the plaintiff.

66 I also note that for a statement to constitute an actionable misrepresentation, it must be a statement of a present fact. This would exclude statements as to future intention, predictions, statements of opinion or belief, sales puffs, exaggerations and statements of law (Deutsche Bank AG v Chang Tse Wen [2013] 1 SLR 1310 (“Deutsche Bank AG (HC)”) at [93]). Moreover, it is trite law that “mere silence, however morally wrong, will not support an action of deceit” (the House of Lords decision of Bradford Third Equitable Benefit Building Society v Borders [1941] 2 All ER 205 at 211). There can be no misrepresentation by omission, although active concealment of a particular state of affairs may amount to misrepresentation. In the latter case, active concealment may be found where there is evidence that the representator deliberately and dishonestly concealed the truth from the representee with the intention to mislead (Wee Chiaw Sek Anna v Ng Li-Ann Genevieve (sole executrix of the estate of Ng Hock Seng, deceased) and another [2013] 3 SLR 801 (“Anna Wee”) at [65]).

67 Alternatively, where the party on the receiving end of a non-fraudulent misrepresentation (ie, a negligent or innocent misrepresentation) had entered into a contract after relying on that representation, he may bring a statutory claim for damages pursuant to s 2 of the Misrepresentation Act, which I reproduce for ease of reference:

68 In essence, s 2 of the Misrepresentation Act provides two grounds of additional relief for non-fraudulent misrepresentation where such a misrepresentation induced the representee to enter into a contract. Section 2(1) provides a statutory cause of action for negligent misrepresentation without any need to establish a duty of care in tort (CDX and another v CDZ and another [2021] 5 SLR 405 (“CDX”) at [41]) and the burden is on the defendant/representor to prove “that he had reasonable ground to believe and did believe up to the time the contract was made that the facts represented were true” (RBC Properties Pte Ltd v Defu Furniture Pte Ltd [2015] 1 SLR 997 (“RBC Properties”) at [66]). As set out in in RBC Properties (at [64]), s 2(1) of the Misrepresentation Act was intended “to provide a legal avenue for the recovery of damages at common law [for non-fraudulent misrepresentation, at a time] where none had existed before, apart from a claim for fraudulent misrepresentation or deceit” [emphasis in original omitted]. Put another way, at that time, apart from a claim for fraudulent misrepresentation or deceit, damages were not recoverable for all other types of misrepresentation; recission of the contract was the only remedy available to the claimant/representee (RBC Properties at [64]). In a similar vein, s 2(2) of the Misrepresentation Act also furnishes the claimant/representee with the additional option of claiming damages in lieu of rescission for negligent or innocent misrepresentation (CDX at [41], citing RBC Properties at [67], and see also, in this connection, the Court of Appeal’s observations in JIO Minerals FZC and others v Mineral Enterprises Ltd [2011] 1 SLR 391 at [104]).

69 Nevertheless, claims pursued under s 2 of the Misrepresentation Act will still require the pleaded misrepresentation to be actionable. The Court of Appeal explained that s 2(1) of the Misrepresentation Act (which provides for damages for non-fraudulent misrepresentations) “only alters the law as to the reliefs to be granted for a non-fraudulent misrepresentation but not as to what constitutes an actionable misrepresentation” [emphasis added] (Tan Chin Seng and others v Raffles Town Club Pte Ltd [2003] 3 SLR(R) 307 (“Raffles Town Club”) at [23]), and this observation would equally apply to s 2(2) of the Misrepresentation Act, which provides for damages in lieu of recission for non-fraudulent representations (Fuji Xerox at [118]).

70 Based on the applicable legal principles, it is clear that the first, and perhaps most crucial, hurdle for the plaintiff to overcome is proving that the Alleged Representations were in fact made in the manner pleaded. If I arrive at the view that the Alleged Representations were not made in the manner asserted by the plaintiff, or, in the alternative, if they were so made, that these were nothing more than statements in the form of opinion or are otherwise unactionable, then it would follow that the case would necessarily fail, whatever my views may be on the other issues that have arisen in this matter.

71 With the preceding paragraph in mind, these are the issues that arise in the present case:

72 Having considered the documentary and oral evidence adduced before me, I find that, on the balance of probabilities, the Alleged Representations were not made by the 2nd defendant in the manner suggested by the plaintiff.

73 As a preliminary observation, I do not propose to address the 16 November Phone Call and 2 December Phone Call in the ensuing analysis. The alleged representations made by the 2nd defendant to Mr Choo over the 2 December Phone Call largely replicates that made in prior alleged oral representations relating to the 9% Dividend Representation, such as the 20 October Phone Call and 28 October Phone Call (see above at [24], [29] and [33]). Additionally, the plaintiff makes no reference to the 2 December Phone Call in both its closing submissions and submissions in reply. Similarly, in relation to the 16 November Phone Call, this was not brought up at all during the course of the proceedings before me or in the parties’ submissions.

74 First, as the defendants have taken pains to highlight, the representations alleged by the plaintiff cannot be independently corroborated. ¹³⁶ Conspicuously, notwithstanding the claim of the centrality of these representations to procuring the AVIVO Shares, almost no reference to most of these alleged representations featured in any of Mr Choo’s many written correspondences with the defendants and/or AVIVO. Moreover, the content of the emails exchanged between Mr Choo and the defendants appear to largely support the conclusion that no such oral representations were actually made. I highlight three examples, touching on the most material of the suggested representations made to Mr Choo.

75 As is clear above, a significant part of the plaintiff’s case revolves around the purported oral representation by the 2nd defendant from as early as 20 October 2016, that “AVIVO is going to have no issues maintaining its historical dividend of 9%”, and that “AVIVO had the ability and intended to continue to maintain a high dividend payout of approximately 9% annually” (see above at [24] and [29] respectively). Based on the wording of these oral representations as alleged by the plaintiff, at first blush, the plaintiff’s position appeared to be that the 2nd defendant essentially represented that a dividend yield of 9% was virtually guaranteed. Moreover, in the plaintiff’s statement of claim, the representations were particularised as such: “[t]he dividends paid out to investors … would be based on the [Acquisition Price], with an expected yield of 9% per annum” [emphasis added]. ¹³⁷

76 Despite the apparent centrality of the 9% Dividend Representation to the plaintiff’s decision to invest in AVIVO, Mr Choo did not express any form of surprise or protest (or even inquired with the 2nd defendant) when AVIVO announced that the dividend yield was, in fact, at a lower rate of 7%. After such announcement, Mr Choo simply went on to seek an update on the dividend distribution date from AVIVO (see above at [35]). ¹³⁸ In my mind, this suggested that there was no actual understanding on the part of Mr Choo that a 9% yield would be a given, which in turn reveals that the representations by the 2nd defendant, if any were made at all, were tentative and not couched to suggest any certainty in outcome.

77 I note that the plaintiff relies on the 29 October Email as corroborative evidence that the 9% Dividend Representation was indeed made during the 28 October Phone Call. To recapitulate, in the 29 October Email, Mr Choo stated: “Thanks Amit [ie, the 2nd defendant] … So it is a flat 9% on amount invested pro-rated by holding period” [emphasis added] (see above at [29]). According to the plaintiff, if the 2nd defendant did not make the 9% Dividend Representation to Mr Choo, it is “inexplicable that [Mr Choo] would nevertheless [go] on to record his understanding that the dividend payout would be pro-rated specifically at the rate of 9% of the amount invested”. ¹³⁹ However, the point remains that, if the 9% Dividend Representation was indeed made, and such a representation was central to the plaintiff’s decision to invest in AVIVO, it is inexplicable that Mr Choo raised no complaint at all to either the 2nd defendant or AVIVO when the level of dividend payment (at 7%) was announced by AVIVO.

78 In fact, the subsequent email correspondence between Mr Choo and the 2nd defendant suggests that Mr Choo himself knew that there was no iron-clad dividend policy. In his email to the 2nd defendant dated 23 November 2016 (see above at [31]) (the “23 November Email”), just shy of a month after the 9% Dividend Representation was purportedly made, Mr Choo stated that he “understand[s] from previous discussion [that] there is no set dividend policy … [h]owever, can [the 2nd defendant] share key factors driving dividend distribution level?” [emphasis added]. When Mr Choo was cross-examined on the 23 November Email, he clarified that that he was never seeking a guarantee, and that the 2nd defendant likewise “did not guarantee” the 9% dividend yield, and merely represented that AVIVO was “likely to maintain 9[%] or even better”. ¹⁴⁰ As such, it appeared that the plaintiff’s position, more precisely, appeared to be that the 1st and/or 2nd defendant misrepresented the likelihood of the dividend yield being maintained at 9%, ¹⁴¹ rather than a guarantee of the dividend yield being maintained at that level. I pause at this juncture to note that this makes the 9% Dividend Representation even more likely to be unactionable. I address this at a later juncture (see below at [140]).

79 In a similar vein, with respect to the Calculation Representation allegedly made during the 28 October Phone Call, Mr Choo’s response was also conspicuously muted despite his apparent “complete surprise” when the 2nd defendant “highlight[ed]” that the dividends were calculated based on the Original Entry Price instead of the Acquisition Price (see above at [35]). ¹⁴² In fact, Mr Choo appeared entirely non-plussed about that revelation, instead focusing on finding out what the exact quantum of the Original Entry Price of the shares was. Once more, if there was indeed any express representation in the manner suggested by Mr Choo, it would have been surprising for him to not immediately come back to highlight that the 2nd defendant’s response was squarely inconsistent with the explicit assurances given previously. At the very least, one would have imagined that he would have checked in with the 2nd defendant on the apparent divergence in calculation methodology for dividends from what was represented to him. This was especially so given that the difference could not, by any measure, be seen as de minimis: based on Mr Choo’s understanding, the dividends would have been calculated based on the Acquisition Price (of US$2.80), which is, even on a conservative estimate, more than double that of the Original Entry Price that the dividends payments were eventually based on (between US$1.00 and US$1.50, with most of the dividend payments being based on US$1.00 as most of the shares in question were originally purchased by African Partners at US$1.00) (see above at [37]). The plaintiff’s position, that the Calculation Representation was indeed made, becomes even more inexplicable in light of Mr Choo’s email dated 10 January 2018 (see above at [38]), where, after AVIVO clarified that the calculation of such dividends would be based on the Original Entry Price, Mr Choo responded unambiguously that he “accept[ed] that the dividend is based on the investment amount invested in the primary market” [emphasis added].

80 When questioned at trial about his muted response, Mr Choo explained that he was “trying to salvage what [he could] at this point” despite realising that the 2nd defendant had misrepresented to him. ¹⁴³ He was “picking [his] battles” and “focusing on what [he could] get [from] AVIVO”, particularly since he did not want to “burn bridges with them because [he was] still hoping to get [the] IPO”. ¹⁴⁴ Such an explanation by Mr Choo made no logical sense on two levels.

81 First, as pointed out by the 1st and 2nd defendants, Mr Choo was already pursuing a complaint in relation to the manner the dividends were calculated, albeit on a different basis. ¹⁴⁵ Mr Choo raised his complaint to AVIVO and the 2nd defendant via email regarding the fact that the dividends were calculated on the basis of “the lowest cost shares first ($1)” (ie, US$1.00 per share) (see above at [37]) rather than a weighted average of the two prices (ie, US$1.00 and US$1.50 per share) at which the shares were initially purchased. In other words, Mr Choo’s pursued his complaint that a different method should have been used to calculate the dividends based on the Original Entry Price. It therefore did not make sense that Mr Choo did not pursue a separate (and ostensibly much more significant) facet of the very same complaint, namely that the dividends should have been calculated at the much higher Acquisition Price (ie, US$2.80 per share) instead.

82 Second, it is unclear why Mr Choo’s complaint regarding the dividends, if raised, would have any impact at all on pending IPO plans. ¹⁴⁶ When Mr Choo was questioned regarding his similar failure to raise any complaint after finding out that the original owner of the AVIVO Shares was Mr Shailesh Dash (ie, in relation to the No Share Disposal Representation), Mr Choo again made reference to the IPO, explaining that he “[did] not want to raise this” as it may “jeopardise the IPO”. ¹⁴⁷ However, when pressed further as to why exactly raising a concern, by way of an internal email, would jeopardise AVIVO’s IPO, Mr Choo simply stated that he wanted to “play it safe”. ¹⁴⁸ In my view, this is clearly a non-response, and there is no persuasive reason provided by Mr Choo as to why any internal complaint by an investor would, as Mr Choo avers, jeopardise IPO plans.

83 The plaintiff also points to the 27 October Email and the attached Breakdown Table sent by the 2nd defendant as purported evidence that the Calculation Representation (and also the 9% Dividend Representation) was made. To recapitulate, Mr Choo emailed the 2nd defendant on 27 October 2016 seeking clarification on: (a) whether the dividends, if any were to be received by the plaintiff, would be calculated based on the Acquisition Price or the Original Entry Price; and (b) if the plaintiff were to acquire the AVIVO shares in November 2016, whether the dividends received would be for the full year of 2016 or pro-rated by the holding period of the said shares. It is undisputed that the 2nd defendant replied to the plaintiff in the 27 October Email and attached the Breakdown Table (see above at [28]), which I reproduce here for ease of reference:

84 The plaintiff submits that the 27 October Email in the context of Mr Choo’s queries, without any qualification by the 2nd defendant, clearly represented that the dividends would be calculated based on the price at which the said investor acquired the shares and the expected dividend yield will be at 9%. ¹⁴⁹

85 According to the 2nd defendant, the Breakdown Table was “illustrative” ¹⁵⁰ and was meant to show how the dividends worked under various scenarios, assuming a 9% dividend was declared. ¹⁵¹ Moreover, the 2nd defendant clarified that, by way of the 27 October Email, he had only intended to respond to Mr Choo’s second question (ie, if the plaintiff were to acquire the AVIVO Shares in November 2016, whether the dividends received would be for the full year of 2016 or pro-rated by the holding period of the said shares). ¹⁵² The 2nd defendant accepted that he omitted to qualify in that email that the Breakdown Table was only in relation to primary investments. ¹⁵³ However, he ultimately clarified with Mr Choo during the 28 October Phone Call that the dividend payments were to be based on the Original Entry Price, ¹⁵⁴ and the 9% dividend yield as illustrated in the Breakdown Table was merely an assumption. ¹⁵⁵ Finally, the 2nd defendant also submitted that the words “Amount Invested” in the second column of the Breakdown Table can only sensibly mean the amount paid by the original shareholder. This is because there is no commercial reason why AVIVO would pay out dividends based on the price of its shares in a secondary sale, since that amount paid would go to the seller of the shares instead of AVIVO. ¹⁵⁶

86 I agree with the 2nd defendant’s account in this regard. Here, in assessing whether the alleged representation was in fact made, the particular words used must be read in their context and, in particular, it is necessary to have regard to the purpose for which the document came into existence, why the statements contained in it were made and by whom they were intended to be read (Anna Wee at [36], citing Jaffray v Society of Lloyd’s [2002] EWCA Civ 1101 at [52]). Significantly, the 27 October Email does not assert any fact apart from merely setting out what 9% dividends might look like given a variety of purchase prices. It does not make any specific reference to whether the purchase prices found in the table was a reference to the Acquisition Price or the Original Entry Price. I also note the 2nd defendant’s evidence that he had clarified that dividends were payable by reference to Original Entry Price rather than the Acquisition Price, and that the 9% dividend yield was merely an assumption in the 28 October Phone Call, though the contents of the phone call are evidently disputed and I make no finding on the same.

87 As such, on the balance of probabilities, I find that the 9% Dividend Representation and Calculation Representation were not made to Mr Choo, based on the evidence so far comprising: (a) Mr Choo’s muted responses to the announcement of the dividend yield at 7% and the information that the dividends were calculated on the basis of the Original Entry Price; (b) the lack of a satisfactory explanation for Mr Choo’s failure to raise any complaint; and (c) the contents of the 27 October Email and Breakdown Table, which are not as dispositive as depicted by Mr Choo.

88 I would, as an aside, note that I found it somewhat odd that Mr Choo, an experienced investor, would have expected the company to issue dividends based on a percentage of the purchase price from the secondary market given that this had nothing to do with the infusion of actual equity in the company. In cross-examination, when confronted with the absurdity of a company calculating dividends by reference to the price of a secondary sale, Mr Choo attempted to defend the sensibility of such a basis of calculation by stating that there are “different class[es]” of shares. ¹⁵⁷ However, as counsel for the 1st and 2nd defendants, Mr Vikram Nair, rightly pointed out to him, this was no response at all since in a situation where there are indeed different classes of shares, the different classes are still defined by discrete contributions made to the company, as opposed to a third party seller of the shares. ¹⁵⁸ I agree entirely with Mr Nair on that front.

89 Once more, in relation to the No Share Disposal Representation, there is no suggestion that the plaintiff raised his concerns with the defendants when he purportedly found out that the shares that he was sold were indirectly owned Mr Shailesh Dash (ie, the CEO of RCL and a board director of the 1st defendant at the time) (see above at [40]). Despite finding out this “major issue” sometime in the middle of 2017, ¹⁵⁹ the plaintiff did not raise this concern to any of the defendants. Indeed, it conveniently did not feature as an issue at all (in the correspondence produced before me, at least) until it appeared in the cause papers for this case. As I noted earlier, Mr Choo’s explanation that he did not raise any complaint for fear of jeopardising the IPO simply did not sit well with reason (see above at [80] and [82]). All in all, this appeared to suggest that, much like many of the rest of the purported misrepresentations, it simply never happened.

90 In a similar vein, there is no independent evidence corroborating the Concurrent Role Representation (ie, the alleged representation that the 3rd defendant’s concurrent directorship in both AVIVO and the 1st defendant allegedly allowed him to safeguard the interests of shareholders). In fact, on a balance of probabilities, the documents before me reveal that the plaintiff (or, more precisely, Mr Choo) knew full well about the change in management by March 2017 at the latest, and not, as Mr Choo claims, that he only found out in 2021 about the 3rd defendant’s resignation (see above at [48]). ¹⁶⁰ Apart from the 2nd defendant’s evidence suggesting that he did inform Mr Choo about this change in leadership, ¹⁶¹ such a finding can also be inferred from the following facts:

(a) On 12 March 2017 (which is a few months after the plaintiff’s investment in AVIVO), Mr Choo specifically emailed the 3rd defendant regarding an investment in ANEL in particular, a portfolio that was only under the 3rd defendant’s charge as a consequence of him stepping down as CEO of the 1st defendant (see above at [9(c)]): ¹⁶²

The plaintiff contends that the email reveals that the 3rd defendant was nonetheless still using his email address affiliated to the 1st defendant, ¹⁶³ and also that the 2nd defendant must have made the Concurrent Role Representation such that Mr Choo would have “conceived the idea of specifically approaching” the 3rd defendant and not any other member in the 1st defendant. ¹⁶⁴ I disagree with the plaintiff’s reasoning. It was not the 3rd defendant’s email address that was of significance, but the contents of such an email that were. The email suggests that Mr Choo knew that the 3rd defendant had shifted portfolios within the wider group (ie, from AVIVO to ANEL), or at the very least, that Mr Choo knew that the 3rd defendant was the appropriate person to contact regarding investments in ANEL.

(b) At the same time, on around 16 March 2017, Mr Choo emailed Mr Farid Rosli about AVIVO, regarding IPO-related matters and a query regarding dividends. ¹⁶⁵

91 The documents before me therefore strongly hinted to Mr Choo being fully aware of the leadership change in the 1st defendant (namely that Mr Farid Rosli had stepped up as the CEO of the 1st defendant after the 3rd defendant resigned). While this falls short of a specific finding that the 3rd defendant’s stepping down was made known to Mr Choo before the plaintiff entered into the subscription agreement, it nonetheless put paid to the plaintiff’s contention that Mr Choo only became conscious of such a leadership change in 2021. Given the above circumstances, in my view, he very clearly knew about it much earlier, at the very latest by March 2017.

92 Moreover, the evidence showed that the plaintiff and/or Mr Choo were sufficiently blasé about the existence of the 3rd defendant on the board of AVIVO. In February 2018, when the joint letter from various investors (including the plaintiff) was sent by Mr Choo to various parties (including the 3rd defendant) seeking a discussion with AVIVO’s senior management (see above at [42]), the letter specifically requested for a “face-to-face meeting with Mr Shailesh Dash, Mr Amitava Ghosal [ie, one of the partners in the 1st defendant] and Mr Amit Agrawal” and the purpose of such a meeting was “for senior management to take [the investors] through the written responses and to avail themselves for questions”. ¹⁶⁶ Significantly, the 3rd defendant was not someone requested by the investors to attend such a meeting. This proves one of two things: either, and I believe this to be the more likely case, Mr Choo knew full well by that time that the 3rd defendant was not part of the management team of AVIVO, or, alternatively, at the very least, the plaintiff did not in fact view the 3rd defendant as an influential figure in the manner it now asserts. Either way, the plaintiff’s assertion, that it believed that the 3rd defendant was of significant influence on the board of AVIVO and/or the 1st defendant, is inconsistent with the contents of such joint letter. It bears noting as well that in that very same letter, the investors had described previous meetings which some of them had with the 3rd defendant (and Mr Farid Rosli) as being “woefully inadequate”, as the 3rd defendant “professed that [he was] not privy to many of the key management decisions [they were] concerned about”. ¹⁶⁷ This must mean that there was a conscious decision not to include the 3rd defendant in the requested meeting with the senior management.

93 I would also add that the suggestion that the 2nd defendant would excessively tout the 3rd defendant as being a key “individual with outstanding credentials” ¹⁶⁸ that was able to protect the plaintiff’s investment in AVIVO suffers from another logical defect. As I will discuss in detail at a later juncture, the plaintiff’s claim in unlawful means conspiracy essentially stands on the factual foundation that the 1st and 2nd defendants (acting in concert with the 3rd defendant) conspired to hide from him the fact that the 3rd defendant, amongst others, had been facing investigations by the DFSA and the fact that the 3rd defendant stepped down from the boards of AVIVO and the 1st defendant at around the same time (see above at [9] and [46]). ¹⁶⁹ The implication is that the defendants all knew this fact and sought to actively hide it, knowing full well that disclosure of it would likely mean that the plaintiff would not have invested in AVIVO. This is where the argument breaks apart. One would have imagined that if the parties were indeed engaged in such a conspiracy as the plaintiff suggests, then the more intuitive thing for the 2nd defendant to do would be to downplay the 3rd defendant’s role, rather than accentuate it or play it up, given the real possibility that the fact of the 3rd defendant’s resignation and the findings of the DFSA would very likely come out in public in due course.

94 In my mind, it is especially unlikely for the 2nd defendant to tout the 3rd defendant’s role and credentials in such a manner while concealing the 3rd defendant’s resignation, when a simple check on the ACRA register would have revealed to the plaintiff (and Mr Choo) that the 3rd defendant was no longer on the board of the 1st defendant, and unravel the defendants’ purported lie. In the premises, it appears more likely than not that the 2nd defendant was simply unaware of the existence of the DFSA investigations, or of the 3rd defendant’s intended departure from the 1st defendant at the time of the presentation (or at the very least, saw it as such a non-event that it simply never came up). I note further that, conveniently, there is no suggestion that the plaintiff ever once asked a question about the 3rd defendant during his checks over email, or during the Site Visit, or asked to speak to the 3rd defendant or get more details about him, before he signed the agreement – all of which suggests once more that the significance of the 3rd defendant to the investment represents a convenient fact which Mr Choo is raising after the event.

95 I make one final observation on this point. According to the plaintiff, the Concurrent Role Representation was made orally by the 2nd defendant, but also “with references to the [RAPL Corporate Presentation] at the point when [such a presentation deck] was no longer accurate”. ¹⁷⁰ In so far as the plaintiff contends that the slide deck and/or marketing materials were themselves misleading, this must also be rejected. It was not as if the 3rd defendant was a public individual well-renowned for having a Midas touch such that his name would immediately be of especial importance to any prospective investor. Indeed, it was quite inexplicable that anyone would specifically hone in on such an innocuous part of the marketing materials and particularly place reliance on that part of the marketing deck. In any event, having perused the marketing materials adduced in evidence, I find it hard to believe that the focus in the mind of Mr Choo would have been the 3rd defendant, or indeed, that the 3rd defendant was at all a weighty factor in the plaintiff’s decision to invest in AVIVO. The information on the 3rd defendant merely comprises of one-third of one slide in the AVIVO Investor’s Presentation, ¹⁷¹ and few small boxes scattered throughout the RAPL Corporate Presentation. ¹⁷²

96 The AVIVO Investor Presentation had set out the organisational structure of AVIVO and included a short introduction for every member of its board of directors, with the 3rd defendant’s information comprising one column in a single slide (the information relating to the 3rd defendant is marked with a yellow box for ease of reference):

97 In the RAPL Corporate Presentation, any information in relation to the 3rd defendant was confined to small boxes, where he was clearly portrayed as one of many faces: