1 This is a suit involving a dispute between two brothers. For many years, these brothers have worked together to grow the family business, which has flourished. Unfortunately, the success of the business did not mirror the state of their interpersonal relationship. Litigation ensued. One brother claims that he had loaned dividends to the other; the other claims that the loan was in fact a gift. Ancillary claims involving allegations of unpaid wine that one brother had allegedly bought on behalf of the other, and allegedly unpaid car number plates that one brother had transferred to the other, have also been injected into the fray. Ultimately, the fact that this dispute involves brothers in a family business context means that the documentary evidence is somewhat lacking. The court’s task is to parse through the informal dealings as between the parties to discern the true underlying transactions.

2 The plaintiff (“Mr Manoj”) and the defendant (“Mr Mike”) are brothers from the Kalwani family. The Kalwani family is the family behind the Novelty group of companies (“Novelty Group”), a family-owned business involved in, among other things, the construction, development, and sale of residential properties. ¹ The persons involved, at some point or another, in the Novelty Group include the late Mr Kalwani Kishinchand Ghanshamdas (the grandfather of Mr Manoj and Mr Mike), ² Mr Dharmadas Kishinchand Kalwani (the father of Mr Manoj and Mr Mike), ³ the late Mdm Sheela Dharmadas Kalwani (the mother of Mr Manoj and Mr Mike), ⁴ Ms Kamni Dharmadas Kalwani (a sister of Mr Manoj and Mr Mike), ⁵ Ms Geetu Dharmadas Kalwani (a sister of Mr Manoj and Mr Mike), ⁶ Mr Manoj ⁷ and Mr Mike. ⁸ The family business was started by Mr Kalwani Kishinchand Ghanshamdas in the 1950s. ⁹ The business took on the name of “Novelty Dept Store” in the 1960s–1970s when Mr Dharmadas Kishinchand Kalwani (“Mr Dharmadas”) joined the business. ¹⁰ On 27 September 1995, the business was incorporated as Novelty Dept Store Pte Ltd (“Novelty Dept Store”), with the founding directors and shareholders being Mr Dharmadas, Mr Mike, Ms Geetu Dharmadas Kalwani (“Ms Geena”) and Ms Kamni Dharmadas Kalwani (“Ms Kamni”). ¹¹ Over time, the family business evolved from selling novelty items and trinkets, ¹² to selling electronic products, ¹³ to property development. ¹⁴ In the course of the Novelty Group’s business, Novelty Dept Store also came to incorporate various subsidiaries with Novelty Dept Store as the parent company of the Novelty Group. ¹⁵

3 Mr Manoj is the youngest sibling of the Kalwani family. ¹⁶ Mr Manoj claims that he started working part-time in Novelty Dept Store in the 1980s when he was in secondary school. ¹⁷ It is not disputed that Mr Manoj was formally employed in Novelty Dept Store after he completed his national service in the 1990s. ¹⁸ Mr Manoj was appointed as a director of Novelty Dept Store on 24 May 2002. ¹⁹ On 27 July 2007, ²⁰ Mr Manoj became a shareholder of Novelty Dept Store when Mr Dharmadas transferred a 20% shareholding in Novelty Dept Store to Mr Manoj by way of a gift. ²¹ Mr Manoj commenced a minority oppression action in HC/S 248/2020 on 17 March 2020, which was settled in 2022. Mr Manoj’s shares in Novelty Dept Store were bought out as part of the settlement. ²² Mr Manoj is no longer a director of the Novelty Group entities. ²³

4 Mr Mike is the eldest sibling of the Kalwani family. ²⁴ He is presently the group president and chief executive officer of the Novelty Group. ²⁵ He claims to have been the first amongst his siblings to start helping out with the family business, ²⁶ and dropped out of school at around age 13 to work full-time in the family business. ²⁷ In the early 2000s, Mr Mike appointed Ms Geena as the chief financial officer of the Novelty Group to manage the Novelty Group’s accounts, finances and general administrative matters. ²⁸ In the present suit, Ms Geena and Ms Kamni testified in support of Mr Mike’s case.

5 The primary dispute in this suit involves a transfer of a total sum of S$2,837,481.55 (the “S$2.8m transfer”) from Mr Manoj to Mr Mike. Mr Manoj alleges that this sum is a loan he gave to Mr Mike on Mr Mike’s request which needs to be repaid. ²⁹ Mr Mike’s primary defence is that the S$2.8m transfer is a gift from Mr Manoj. ³⁰ Secondarily, Mr Mike also argues that Mr Manoj is estopped from claiming the S$2.8m from Mr Mike. ³¹

6 The S$2.8m transfer is a transfer of dividends that Mr Manoj received from Novelty Builders Pte Ltd (“Novelty Builders”). Novelty Builders is a company that carries out construction works for residential and commercial properties. ³² Novelty Builders was incorporated on 5 January 2006 under its previous name “Novelty Milliard Engineering Pte Ltd”. ³³ At the time of its incorporation, the four shareholders and directors were Mr Manoj, Mr Mike and two other individuals. ³⁴ The two other individuals were bought out by Mr Manoj and Mr Mike in July 2006. ³⁵ Since then, Mr Manoj and Mr Mike were each 50% shareholders in Novelty Builders. ³⁶ The chief financial officer of Novelty Builders is Ms Geena. ³⁷ Parties are generally agreed that Novelty Builders was set up to carry out construction projects for Novelty Group to support its property development efforts. ³⁸

7 Aside from Novelty Group’s commercial endeavours, Novelty Builders was also involved in the construction of Mr Manoj’s and Mr Mike’s family homes. Mr Manoj had gotten engaged in 2011 and was looking for a family home around then. ³⁹ In 2012, Mr Manoj bought a property (the “Clacton Property”) from a subsidiary in the Novelty Group. ⁴⁰ The Clacton Property is intended as Mr Manoj’s family home. ⁴¹ The Clacton Property was built by Novelty Builders. ⁴² Relatedly, sometime before 2011, Mr Mike and Mdm Sheela Dharmadas Kalwani bought a property (the “Wilkinson Property”) from Novelty Dept Store. ⁴³ The Wilkinson Property is intended as the family home for Mr Mike, Ms Geena, Ms Kamni and their parents. ⁴⁴ The Wilkinson Property was also built by Novelty Builders. ⁴⁵

8 The construction costs (including costs for variation works) ⁴⁶ for the Clacton Property and the Wilkinson Property were high. Ms Geena, as Novelty Builders’ chief financial officer, was advised by the company’s auditor that invoices had to be issued for the construction works at the Clacton Property and the Wilkinson Property, lest Novelty Builders had to absorb the losses. ⁴⁷ The following invoices were issued by Novelty Builders in respect of the two properties:

(a) For the Clacton Property:

(i) tax invoice CONSOCT13/DCL065 dated 31 October 2013 for the sum of S$1,426,138.18 issued to Mr Manoj; ⁴⁸

(b) For the Wilkinson Property:

(i) tax invoice CONSDEC12/DWR086 dated 31 December 2012 for the sum of S$3,862,700 issued to Mr Mike; ⁴⁹ and

(ii) tax invoice CONSNOV13/DWR068 dated 30 November 2014 for the sum of S$6,519,562.52 issued to Mr Mike. ⁵⁰

9 It was decided that Novelty Builders would issue dividends to Mr Manoj and Mr Mike. The dividends would be applied to pay down the debt owed by Mr Manoj and Mr Mike to Novelty Builders in respect of the Clacton Property and the Wilkinson Property. ⁵¹ Thus, Novelty Builders declared dividends in two tranches as follows:

(a) by a directors’ resolution dated 30 December 2014, Novelty Builders declared dividends totalling S$6,500,000, with S$3,250,000 payable to each of Mr Manoj and Mr Mike for the financial year ending 31 December 2014; ⁵² and

(b) by a directors’ resolution dated 30 December 2015, Novelty Builders declared dividends totalling S$2,000,000, with S$1,000,000 payable to each of Mr Manoj and Mr Mike for the financial year ending 31 December 2015. ⁵³

10 Ms Geena then arranged for a series of credits and debits in relation to the accounts Mr Manoj and Mr Mike maintained with Novelty Builders to pay off their debt in respect of the Clacton Property and the Wilkinson Property.

11 Firstly, Ms Geena arranged for a setting-off of debts owing by Novelty Builders to Mr Manoj and Mr Mike. In relation to Mr Manoj, as of 31 December 2013, Novelty Builders owed Mr Manoj S$13,619.73. ⁵⁴ Ms Geena arranged for this sum to be debited from Mr Manoj’s account with Novelty Builders to pay Novelty Builders part of the sum it had invoiced Mr Manoj for the variation works carried out at the Clacton Property. This left a balance of S$1,412,518.45 due and owing by Mr Manoj to Novelty Builders. ⁵⁵ In relation to Mr Mike, as of 31 December 2012, 31 December 2013 and 31 December 2014, Novelty Builders owed Mr Mike S$195,542.52, ⁵⁶ S$79,330.35, ⁵⁷ and S$35,000 ⁵⁸ respectively. Ms Geena arranged for these sums to be debited from Mr Mike’s account with Novelty Builders to pay Novelty Builders part of the sum it had invoiced Mr Mike for the variation works carried out at the Wilkinson Property. ⁵⁹ After these sums were debited, there was a sum of S$10,072,389.65 due and owing by Mr Mike to Novelty Builders for the variation costs of the Wilkinson Property. ⁶⁰

12 Secondly, Ms Geena arranged for the dividends issued by Novelty Builders to Mr Manoj and Mr Mike to be applied towards paying down their debts in respect of the Clacton Property and the Wilkinson Property. Thus, around November 2015, Ms Geena arranged for the dividends of S$3,250,000 received by Mr Mike for the financial year ending 31 December 2014 (see [9(a)] above) to be paid to Novelty Builders as part payment of Mr Mike’s debt in respect of the Wilkinson Property. ⁶¹ Around November 2015, Ms Geena arranged for the dividends of S$3,250,000 received by Mr Manoj for the financial year ending 31 December 2014 (see [9(a)] above) to be paid to Novelty Builders as full payment of Mr Manoj’s debt of S$1,412,518.45 in respect of the Clacton Property. ⁶² The remainder of the dividends due to Mr Manoj, amounting to S$1,837,481.55, was credited to Mr Manoj’s account with Novelty Builders on 31 December 2014. ⁶³ Thereafter, this sum of S$1,837,481.55 was debited from Mr Manoj’s account with Novelty Builders and credited to Mr Mike’s account as reflected in a credit entry dated 31 December 2015. ⁶⁴

13 In relation to the dividends of S$1,000,000 each received by Mr Manoj and Mr Mike for the financial year ending 31 December 2015 (see [9(b)] above), Ms Geena arranged to be recorded in Novelty Builders’ ledger for Mr Manoj and Mr Mike a credit entry of S$1,000,000 each. ⁶⁵ Thereafter, Mr Manoj’s dividends of S$1,000,000 were debited from his account and credited to Mr Mike’s account as reflected in ledger entries dated 31 December 2015. ⁶⁶

14 As of 31 December 2015, there was altogether S$3,837,481.55 standing to Mr Mike’s credit in his account with Novelty Builders. Ms Geena arranged for this to be paid to Novelty Builders for the variation works carried out at the Wilkinson Property, ⁶⁷ as reflected in ledger debit entries dated 31 December 2015. ⁶⁸ After these debits dated 31 December 2015 from Mr Mike’s account with Novelty Builders, Mr Mike owed S$2,984,908.10 to Novelty Builders for the variation costs of the Wilkinson Property. ⁶⁹ There was a further round of dividends issued by Novelty Builders for the financial year ending 31 December 2017 in the amount of S$2,900,000 each to Mr Manoj and Mr Mike. ⁷⁰ Those dividends are not the subject of this present suit. Mr Mike’s dividend of S$2,900,000 was applied to pay down Mr Mike’s debt to Novelty Builders for the Wilkinson Property. ⁷¹ As for Mr Manoj’s dividend, on 18 September 2019, Mr Manoj received a cheque for S$2,900,000 postdated to 3 October 2019, which Mr Manoj encashed. ⁷²

15 Mr Manoj’s key claim is that the S$1,837,481.55 debited from his account with Novelty Builders and credited to Mr Mike’s account as reflected in a credit entry dated 31 December 2015 (see [12] above) and the S$1,000,000 debited from Mr Manoj’s account and credited to Mr Mike’s account as reflected in ledger entries dated 31 December 2015 (see [13] above), totalling S$2,837,418.55, constitute loans from Mr Manoj to Mr Mike. ⁷³ In contrast, Mr Mike claims that these sums were gifts from Mr Manoj. ⁷⁴

16 Mr Manoj’s ancillary claim in this suit concerns a sum of S$33,000 (calculated on the basis of a conversion of €21,456 at the exchange rate of €1: S$1.5424 on 3 June 2016). This claim is for wine that Mr Manoj allegedly paid for on Mr Mike’s behalf in 2016, on the basis that Mr Manoj would be repaid on demand. ⁷⁵ Mr Mike denies owing Mr Manoj this sum of S$33,000 and asserts instead that Mr Manoj had paid for his own wine, which Mr Mike had ordered on Mr Manoj’s behalf. ⁷⁶

17 There is in evidence two undisputed invoices from the wine supplier Edulis SA (“Edulis”) issued to Mr Mike, bearing the following details:

(a) invoice no. 63028 for the amount of €7,605 dated 3 May 2016; ⁷⁷ and

(b) invoice no. 63155 for the amount of €21,456 dated 9 May 2016. ⁷⁸

18 On 2 June 2016, Mr Mike had forwarded to Mr Manoj an e-mail enclosing the two Edulis invoices. ⁷⁹ Thereafter, on 3 June 2016, Mr Manoj’s personal secretary effected payment for invoice no. 63155 for the amount of €21,456 from Mr Manoj’s personal bank account. ⁸⁰ On 8 June 2016, Mr Mike made payment of €7,605 for invoice no. 63028. ⁸¹

19 In support of his defence that Mr Manoj’s payment of €21,456 was effected for Mr Manoj’s own wine order, Mr Mike adduced in evidence an e-mail exchange between him and Mr Manoj showing the following:

(a) On 4 May 2016 at 8.35pm, Edulis had e-mailed Mr Mike with an advertisement for a “Vega Sicilia ‘Valbuena’ 2010” wine. ⁸²

(b) On 4 May 2016 at 9.38pm, Mr Mike forwarded Edulis’ e-mail to Mr Manoj, with the following message:

(c) On 5 May 2016 at 8.44am, Mr Manoj replied to Mr Mike’s e-mail with the following:

20 Mr Mike brings a counterclaim in this suit concerning two car number plates – SGJ1L and SGS1P (collectively, the “Number Plates”) – which he transferred to Mr Manoj, allegedly in exchange for a promise by Mr Manoj to pay an aggregate sum of S$300,000 (the “Number Plates debt”), which sum Mr Manoj has not paid. ⁸³ Mr Manoj’s defence is that the Number Plates were not owned by Mr Mike, and were instead owned by Novelty Dept Store, ⁸⁴ and that Mr Manoj had made the necessary payment for the Number Plates by transferring his funds in Novelty International Pte Ltd to Mr Dharmadas’ account in Novelty Dept Store. ⁸⁵ Mr Manoj also claims that Mr Mike’s claim for the S$300,000 in relation to the Number Plates is time-barred as this alleged debt, which dates back to the 2000s, was only raised on 28 December 2020 in Mr Mike’s defence and counterclaim of the same date. ⁸⁶

21 Both parties adduced records from the Land Transport Authority (“LTA”) to support their respective cases.

22 In respect of the number plate SGJ1L, the records from the LTA show:

23 In respect of the number plate SGS1P, the records from the LTA show:

24 According to Mr Mike, sometime in the late 2000s, Mr Manoj wanted vehicle number plates with nice numbers for his cars. ¹⁰² Mr Mike’s evidence is that he and Mr Manoj agreed that Mr Mike would transfer to Mr Manoj the Number Plates for S$150,000 each, and Mr Manoj insisted on paying for the Number Plates. ¹⁰³ Mr Mike asserts that he had originally purchased the Number Plates via bidding using his own money, and had registered the number plates under his name. ¹⁰⁴

25 According to Mr Manoj, “[i]n all likelihood”, ¹⁰⁵ SGJ1L was owned or paid for by Novelty Dept Store. Mr Manoj’s account is that in late 2007, Mr Manoj told Ms Geena and Mr Mike that Mr Manoj would pay for, amongst other things, the SGJ1L number plate. ¹⁰⁶ Mr Manoj’s case is that he had told Ms Geena, as Novelty Group’s chief financial officer, to make the necessary deductions from Mr Manoj’s ledgers with Novelty Dept Store. ¹⁰⁷ Ms Geena allegedly affirmed on a few occasions thereafter that she had made the necessary deductions. ¹⁰⁸ According to Mr Manoj, this is evidenced by entries made in Mr Dharmadas’ ledger with Novelty Dept Store showing that Ms Geena had credited S$750,000 in dividends issued to Mr Manoj by Novelty International Pte Ltd to Mr Dharmadas on 31 December 2007. ¹⁰⁹ The payment was made to Mr Dharmadas because Novelty Dept Store had earlier administratively recorded a disposal of cars and car number plates owned by Novelty Dept Store to Mr Dharmadas. Mr Manoj says that this is evidenced by an entry on Mr Dharmadas’ ledger with Novelty Dept Store dated 31 December 2004. ¹¹⁰

26 As for SGS1P, Mr Manoj’s evidence is that he had bid for this car number plate in his personal capacity when it was first launched in January 2007. ¹¹¹ Mr Manoj asserts that he had successfully acquired the car number plate, but had thereafter transferred it to Mr Mike in February 2007 so that Mr Mike could hold it for Mr Manoj. ¹¹² Mr Mike allegedly then returned the car number plate to Mr Manoj on 22 May 2008. ¹¹³

27 Ms Geena gave evidence that sometime in 2017, Mr Mike, Mr Manoj and herself met at the Novelty Group’s offices for a discussion. During this discussion, Mr Manoj instructed Ms Geena to pay Mr Mike for the Number Plates by transferring credit in Mr Manoj’s account with Novelty Dept Store to Mr Mike’s account. ¹¹⁴ According to Ms Geena, she was never able to make these adjustments because Mr Manoj never told her how much to transfer out of his account with Novelty Dept Store. Ms Geena was also occupied with visiting her late mother, who was ill then, in hospital. ¹¹⁵ It is also in evidence that on 22 December 2017, Mr Manoj had sent a WhatsApp message to Ms Geena, stating the following: ¹¹⁶

28 There were three broad claims in the present suit, which will be analysed in turn:

(a) Mr Manoj’s claim for the return of a sum of S$2,837,418.55 from Mr Mike, on the basis that this sum allegedly constitutes Mr Manoj’s share of dividends issued by Novelty Builders which Mr Manoj had loaned to Mr Mike. ¹¹⁷

(b) Mr Manoj’s claim for repayment of a sum of S$33,000 from Mr Mike, on the basis that Mr Manoj had allegedly paid first for wine from Edulis on Mr Mike’s behalf. ¹¹⁸

(c) Mr Mike’s counterclaim against Mr Manoj for an aggregate sum of S$300,000, on the basis that Mr Mike had allegedly transferred Number Plates to Mr Manoj in exchange for a promise by Mr Manoj to pay for said Number Plates. ¹¹⁹

29 Before going into the meat of the parties’ dispute, I will say a few words about the sufficiency of Mr Manoj’s pleadings and the impact thereon for the evidence he has sought to adduce in this suit. In particular, I will focus on the summons taken out by Mr Manoj in HC/SUM 3578/2023 on 22 November 2023 to amend his pleadings on the S$2.8m transfer. Mr Mike objected fiercely at the hearing of the summons given the centrality of the S$2.8m transfer to the present action. However, the broader principles on sufficiency of pleadings analysed in this section is applicable as well to my analysis of the rest of the pleadings and evidence in this suit.

30 On 22 November 2023, Mr Manoj took out HC/SUM 3578/2023 to amend his Reply and Defence to Counterclaim and sought to add the following words (the “22 Nov Amendment”) at paragraph 3(a):

31 Mr Manoj explained that he wanted to make the amendment to prevent unnecessary technical objections from distracting the trial. ¹²⁰ Mr Manoj argued that the amendment would not take Mr Mike by surprise or prejudice his defence as, according to Mr Manoj, Mr Mike knew that the parties’ relationship was strained. ¹²¹

32 Mr Mike objected to the application. ¹²² Mr Mike’s complaints fell into two broad categories:

(a) Mr Manoj’s pleadings, with the proposed amendment, are insufficiently particularised; ¹²³ and

(b) Mr Manoj’s pleadings are sought to be amended too late, such that Mr Mike has insufficient opportunity to bring up evidence in response. ¹²⁴

33 On 27 November 2023, I allowed the amendment. ¹²⁵

34 As the complaints raised by Mr Mike may have an impact on the weight to be given to the evidence that Mr Manoj has given in this suit, I will briefly address Mr Mike’s complaints.

35 In my judgment, Mr Manoj’s pleadings, as amended, are sufficiently particularised, with sufficient notice given to Mr Mike, such that full weight can be given to Mr Manoj’s evidence given for this trial.

36 The law on pleadings had been examined in detail by the Court of Appeal in V Nithia (co-administratrix of the estate of Ponnusamy Sivapakiam, deceased) v Buthmanaban s/o Vaithilingam and another [2015] 5 SLR 1422 (“V Nithia”) at [34]–[41].

37 In SIC College of Business and Technology Pte Ltd v Yeo Poh Siah and others [2016] 2 SLR 118 at [46], the Court of Appeal summarised the key holding of V Nithia in the following manner:

38 In essence, the process of pleadings seeks to ensure that the opposing party knows the nature and substance of the case that the pleading party seeks to run. The underlying consideration of the law of pleadings is to prevent surprises arising at trial, and courts should not adopt an overly formalistic or rule-bound approach. I note that the rule in O 18 r 8 of the Rules of Court (2014 Rev Ed) on matters which must be specifically pleaded serves this very same purpose of ensuring that adequate notice is given to all parties as to the case they must meet at trial: Jeffrey Pinsler, Singapore Court Practice (LexisNexis, 2023) at para 18/8/4.

39 The specific fact pattern and dicta in the Court of Appeal case of Liberty Sky Investments Ltd v Aesthetic Medical Partners Pte Ltd and other appeals and another matter [2020] 1 SLR 606 (“Liberty Sky”) is germane. In Liberty Sky, the appellant investment vehicle had sued the respondent medical practice for fraudulent misrepresentation in relation to the sale of shares in the respondent medical practice to the appellant investment vehicle. The High Court and the Court of Appeal held that the fraudulent misrepresentation claim succeeded. The issue that vexed the courts was the remedy to be awarded, and the issue of whether the remedies were adequately pleaded was discussed by the Court of Appeal at [14]–[17]. The appellant investment vehicle argued that at law, the burden was on the representor (ie, the respondent medical practice) to plead bars to rescission (Liberty Sky at [14]). The appellant investment vehicle argued that given that the respondent medical practice had not pleaded any bars to rescission, the High Court judge below had erred in refusing recission on the basis of the impossibility of restitutio in integrum (because the bulk of the shares purchased by the appellant investment vehicle on the basis of the misrepresentations had been on-sold to third parties).

40 The Court of Appeal considered that it was open to the respondent medical practice to argue that bars to recission had barred the ordering of recission in the suit. The Court of Appeal reasoned as follows:

41 In essence, the Court of Appeal considered that the appellant investment vehicle was not taken by surprise by the respondent medical practice’s failure to plead bars to rescission. The appellant investment vehicle had notice of the argument that rescission was barred by the intervention of third-party rights and could have requested leave to make further submissions or adduce further evidence if it wished to do so.

42 It is my judgment that the 22 Nov Amendment is specific and detailed. The crux of the pleading is Mr Manoj’s averment that he and Mr Mike did not have the type of relationship where Mr Manoj would give Mr Mike almost S$3m. This directly clashes with Mr Mike’s defence of gift in relation to the S$2.8m transfer. Mr Manoj follows on by explaining why the parties did not have such a relationship – this is due to the strained relationship due to, among other things, “personality clashes, unhappiness about items that the Defendant claims to have gifted the Plaintiff, and differences in their views on their contributions to the family business”. As for the statement “at all material times”, the most obvious and reasonable interpretation of what times are material would be the time period when the dividends were declared from Novelty Builders and when the alleged loan/gift was made.

43 In relation to the timing of the amendment, it is my judgment that the amendment was not too late. It is well-established that a court has a wide power to allow amendments to pleadings at any stage of the proceedings, including on appeal: Sheagar s/o T M Veloo v Belfield International (Hong Kong) Ltd [2014] 3 SLR 524 at [117]–[119]. In deciding whether to allow an amendment, there are two primary considerations which tend to pull in different directions. The first is whether the amendment sought would allow the real issues in the proceedings to be determined, thereby ensuring that the ends of substantive justice are met. The second requires that procedural fairness to the opposing party is maintained. When an application for amendment is made late in the day, especially after the trial of the matter has concluded, it is usually the case that the prejudice to the other party would be greater. Furthermore, in such cases, courts also have to ensure that the party seeking to amend is not given a second bite of the cherry.

44 Relative to the cases where amendments to the pleadings have been sought at the appeal stage, the present amendments were made at a relatively early time, before trial has commenced. Mr Manoj’s latest affidavit of evidence-in-chief (“AEIC”) (ie, his supplemental AEIC dated 16 November 2023) was filed with a bit more than a week left before trial commenced on 28 November 2023. By this time, Mr Manoj’s claims and the full extent of his evidence would have been made known to Mr Mike. If Mr Mike wished to do so, he could have put in an application for further evidence in rebuttal. Indeed, in Hua Khian Co (Pte) Ltd v Lee Eng Kiat [1996] 2 SLR(R) 562, the Court of Appeal at [18]–[22] had disagreed with the High Court judge’s decision to expunge certain paragraphs from a witness’s AEIC. The Court of Appeal had noted that the respondent would not suffer any prejudice by the presence of the offending paragraphs in the AEIC and the respondent could have simply applied at trial to adduce evidence to rebut the allegations. Similarly, in the Liberty Sky case canvassed above, the Court of Appeal had observed two points. Firstly, whether restitutio in integrum was possible was a fact within the appellant investment vehicle’s exclusive knowledge. Secondly, the appellant investment vehicle had chosen, notwithstanding the fact that it had full notice of the argument that rescission was barred by the intervention of third-party rights at least by the time of the respondent medical practice’s closing submissions, not to adduce any evidence that would have supported its claim to rescission.

45 In the present case, in Mr Mike’s affidavit dated 24 November 2023, he had in fact highlighted at paragraphs 70 to 73 the sorts of evidence he could adduce to rebut Mr Manoj’s allegation that the parties did not have the sort of relationship where Mr Manoj would give large gifts to Mr Mike. These pieces of evidence include, allegedly, gifts of whiskey, club memberships, and WhatsApp messages and e-mails evidencing the gifts. It would have been open to Mr Mike to adduce such evidence. This evidence pertains to matters within Mr Mike’s exclusive knowledge. It does not appear at all onerous for Mr Mike to adduce at least some of such evidence in rebuttal.

46 In summary, therefore, Mr Manoj’s pleadings are sufficiently particularised on the issue of whether the parties had the type of relationship where Mr Manoj would give Mr Mike a gift of S$2.8m so as to put Mr Mike on notice of the case he has to meet. The amendments to the pleadings did not come at a time when irreparable prejudice would be done to Mr Mike. It was open to Mr Mike to apply to adduce further evidence to rebut any new material that had been raised by Mr Manoj. I therefore give full weight to the evidence adduced by Mr Manoj in this suit.

47 At various portions of Mr Mike’s closing submissions, he submits that certain points were not suggested or put to the witnesses called to support his case. In Mr Mike’s view, Mr Manoj is precluded from asserting anything to the contrary in respect of the witnesses’ evidence as far as the points not put or not suggested are concerned. ¹²⁶

48 I make two points at this juncture.

49 Firstly, the operation of the rule in Browne v Dunn (1893) 6 R 67 (“Browne v Dunn”) in modern litigation has been summarised by the court in Hong Leong Singapore Finance Ltd v United Overseas Bank Ltd [2007] 1 SLR(R) 292 (“Hong Leong Singapore Finance”). The Browne v Dunn rule provides that where a submission is going to be made about a witness or the evidence given by the witness which is of such a nature and of such importance that it ought fairly to have been put to the witness to give him the opportunity to meet that submission, to counter it or to explain himself, then if it has not been so put, the party concerned will not be allowed to make that submission. However, it has been repeatedly emphasised that this rule is not a rigid or technical rule. As noted by the court in Hong Leong Singapore Finance at [42], citing Lo Sook Ling Adela v Au Mei Yin Christina and another [2002] 1 SLR(R) 326 at [40], “the rule is not rigid and does not require every point to be put to the witness but this would generally be required where the submission was ‘at the very heart of the matter’”.

50 Secondly, it should be noted that parties were given the following direction as part of the directions for trial issued by the court for the present action: ¹²⁷

51 I thus approach the evidence given in this suit and the submissions in this case in a manner that prioritises fairness to the witnesses and emphasises substance over rigidity or technicality.

52 Mr Mike in his closing submissions also submitted that there have been many changes made to Mr Manoj’s case across time, which renders Mr Manoj’s testimony not credible. ¹²⁸ Mr Manoj also made similar allegations that Mr Mike’s defence had shifted and changed. ¹²⁹

53 In my treatment of the evidence adduced in this suit, I bear in mind the guidance of the Court of Appeal in Sandz Solutions (Singapore) Pte Ltd and others v Strategic Worldwide Assets Ltd and others [2014] 3 SLR 562 at [56] on the need to consider the totality of the evidence (including contemporaneous objective documentary evidence) in determining the veracity, reliability and credibility of a particular witness’ evidence. The court should be alive to the possibility that there may be good reasons for gaps in the testimony of witnesses, such as because of gaps in memory especially where a long period of time has passed since the occurrence of the events in question. I also bear in mind the guidance given by the court in Hon Chi Wan Colman v Public Prosecutor [2002] 2 SLR(R) 821 at [71]–[74], where the court noted that a court can decide to accept one part of a witness’ testimony while rejecting another. In that case, the court observed at [71] that there were material discrepancies in evidence given by a witness relating to other incidents in the sequence of events leading to the subject transaction in that case. However, other aspects of the witness’ evidence were found to be reliable and the trial judge had been entitled to rely on those parts of the evidence which were reliable (at [72] and [74]).

54 Thus, in my assessment of the various pieces of evidence tendered, and in particular the testimony of the various witnesses, I bear in mind my duty to consider the totality of the evidence and I apply my mind specifically to each issue raised to assess if the evidence on each particular issue should be accepted or rejected.

55 Mr Manoj’s case is that in 2015 or 2016, there was a meeting at Novelty House (an office building belonging to the Novelty Group). ¹³⁰ At that meeting, Mr Mike asked Mr Manoj for a loan of an aggregate sum of S$2,837,481.55 in Mr Manoj’s account with Novelty Builders in order to pay down Mr Mike’s debt to Novelty Builders. ¹³¹ Mr Manoj’s case is that parties agreed that Mr Mike would repay this loan on demand. The loan was in consideration of the parties continuing their practice of maintaining accounts and/or set-offs of debits and credits as between themselves and their family-owned corporate entities. ¹³²

56 Mr Manoj argues that Mr Mike needed the S$2.8m transfer because Mr Mike had other debts and was unable to pay Novelty Builders in relation to the outstanding invoices for the Wilkinson Property. ¹³³ Mr Manoj contends that given that he and Mr Mike had a strained relationship, it was unlikely for Mr Manoj to be willing to carry out the S$2.8m transfer without a promise of repayment. ¹³⁴ Mr Manoj also submits that he had lent sums larger than S$2.8m to Mr Mike through oral agreements. It was thus plausible for the S$2.8m transfer to similarly be done pursuant to an oral agreement for a loan. ¹³⁵ Mr Manoj further notes the parties’ practice of mutually settling accounts, contending that he did not have a practice of making gifts or advancing significant sums of money to Mr Mike without expectation of repayment. ¹³⁶

57 In rebuttal to Mr Mike’s defence that the S$2.8m transfer was a gift, Mr Manoj contends that Mr Mike’s defence contains elements that were belatedly raised on the cusp of trial. ¹³⁷ Mr Manoj also submits that Mr Mike’s case that Novelty Builders’ dividends were meant to be received by the shareholders of Novelty Dept Store in proportion to their shareholding in Novelty Dept Store is untenable. The agreement on this arrangement was, on Mr Mike’s case, reached more than one-and-a-half years before Mr Manoj became a shareholder of Novelty Dept Store. ¹³⁸ Given Mr Manoj’s grievances at not being a shareholder of Novelty Dept Store, Mr Manoj submits that it is not likely that he would have agreed to incorporate and work for Novelty Builders if Novelty Builders’ dividends were reserved only for Novelty Dept Store’s shareholders. ¹³⁹ In addition, Mr Manoj states that Mr Mike’s argument that there was also an agreement for Novelty Builders’ dividends to be used to pay off the parties’ debt in respect of the Clacton Property and the Wilkinson Property without parties’ being indebted to each other or to any member of the family is not supported by sufficient evidence. ¹⁴⁰

58 Mr Manoj also argued that he is not estopped from claiming repayment of the S$2.8m transfer as Mr Mike has not pleaded or proved any of the constituent elements of estoppel. ¹⁴¹

59 Mr Mike’s case is that there was an understanding and intention among Mr Manoj, Mr Mike and the shareholders of Novelty Dept Store that Novelty Builders would be operated and managed for the benefit of the Novelty Group. ¹⁴² Furthermore, Mr Mike’s case is that this understanding included the understanding that Novelty Builder’s dividends would be distributed within the family according to the family members’ shareholding in Novelty Dept Store. ¹⁴³ As for Mr Manoj’s point that he was not a shareholder of Novelty Dept Store when Novelty Builders was incorporated, Mr Mike’s rebuttal is that Mr Mike had already agreed to transfer 20% of Novelty Dept Store’s shares to Mr Manoj at that point in time, and the family already regarded Mr Manoj as a 20% shareholder in Novelty Dept Store. ¹⁴⁴

60 Mr Mike argues that in 2015, Ms Geena raised the idea of using Novelty Builders’ dividends to pay the costs of the variation works done to the Clacton Property and the Wilkinson Property. In that regard, Mr Manoj and Mr Mike would not owe Novelty Builders any money and Mr Mike would not owe Mr Manoj anything for the dividends which Novelty Builders declared. ¹⁴⁵ Mr Mike points out that Novelty Builders’ ledgers record a transfer of S$2,837,481.55 in total from Mr Manoj’s account to Mr Mike’s account without any accompanying narration describing the transfer as a loan. ¹⁴⁶ Mr Mike also notes that when Mr Manoj retrieved Novelty Builders’ ledgers in 2019 and reviewed the entries, Mr Manoj did not raise any concerns about the entries not reflecting his assertion that the transfers were done pursuant to a loan agreement. ¹⁴⁷

61 Mr Mike further argues that there is no evidence that Mr Mike asked Mr Manoj for a loan of S$2.8m, let alone any agreement by Mr Mike to repay Mr Manoj such a sum on demand. ¹⁴⁸

62 Mr Mike states that he had no reason to ask for a loan from Mr Manoj given Mr Mike’s wealth. ¹⁴⁹ In rebuttal to Mr Manoj’s attempt to raise examples of previous loans granted by Mr Manoj to Mr Mike under informal oral agreements, Mr Mike argues that one of the loans was unpleaded, and that the lack of documentation for the alleged S$2.8m loan went against Mr Manoj’s evidence that he was becoming fastidious about settling his accounts with Mr Mike. In that regard, the other alleged loans were supported by documentary evidence and the loans were swiftly repaid. ¹⁵⁰

63 Even if the evidence canvassed above does not support his case that there was an oral agreement between all family members that Novelty Builders would issue dividends to pay for the variation works to the Clacton Property and the Wilkinson Property without Mr Mike being indebted to Mr Manoj for the dividends, Mr Mike’s case is that the evidence canvassed above is also consistent with Mr Mike’s alternative case that Mr Manoj had made a gift of S$2.8m to Mr Mike. ¹⁵¹

64 Finally, Mr Mike takes the position that Mr Manoj is estopped from claiming the S$2.8m from Mr Mike. On Mr Mike’s case, Mr Manoj clearly and unequivocally promised Mr Mike that Mr Manoj would not enforce Mr Manoj’s legal right to the dividends, and pursuant to this promise, Novelty Builders declared dividends for the financial years of 2014 and 2015 to pay down the parties’ debts in respect of the Clacton Property and the Wilkinson Property. ¹⁵²

65 It is trite that the substantive requirements of an oral agreement are no different from those in relation to a written contract – there needs to be (a) offer and acceptance; (b) intention to create legal relations; (c) certainty of terms; and (d) consideration: Chan Tam Hoi (alias Paul Chan) v Wang Jian and other matters [2022] SGHC 192 (“Chan Tam Hoi”) at [64]–[65], citing Tan Swee Wan and another v Johnny Lian Tian Yong [2018] SGHC 169 at [222]. The court in Chan Tam Hoi further highlighted at [38] that the burden of proof always remains on the plaintiff to prove its positive case. The court also observed that being clear about which party bears the burden of proof “is especially important in cases involving oral agreements, where there will be gaps in the evidence precisely because there is no direct evidence that points to a written agreement”. Crucially, the court noted that “it is important not to confer an unintended advantage to the plaintiff where the defendant’s defence is unsustainable”.

66 The court’s remarks in Chan Tam Hoi is an instantiation of the broader principle explained by the Court of Appeal in Loo Chay Sit v Estate of Loo Chay Loo, deceased [2010] 1 SLR 286 (“Loo Chay Sit”) at [16]–[23] that the law of evidence allows for three possibilities in so far as the concept of proof is concerned – a fact can be said to be “proved”, “disproved” or “not proved”. As explained by the Court of Appeal at [21] of Loo Chay Sit, after a party seeking to prove the existence of a particular fact has adduced evidence in support of it, the opposing party may be able to adduce some evidence as to the non-existence of that fact. Such evidence may not be sufficient on its own for the court to conclude that, on a balance of probabilities, the fact does not exist so as to be “disproved”. Such evidence may, nevertheless, sufficiently undermine the case of the party asserting the fact so as to cause doubt as to its existence with the result that the party is unable to discharge his burden of proving the fact. As I will go on to explain later, while I do not completely accept Mr Mike’s defence in relation to the S$2.8m transfer, I nonetheless find that Mr Manoj has not proven his affirmative case on the alleged loan agreement.

67 As for the principles involved in determining the existence of an oral agreement, the court in ARS v ART and another [2015] SGHC 78 at [53]–[54] summarised the relevant principles as distilled from the case law, as follows:

68 The crux of the issue for this claim is whether there was an oral agreement between Mr Manoj and Mr Mike for Mr Manoj to loan S$2.8m to Mr Mike. However, to arrive at a decision on this point, it will be necessary to address some of the issues raised by the parties in the long lead-up to the moment when this oral agreement is alleged to have been concluded.

69 The first issue to be decided is whether Mr Manoj was beneficially entitled to the 50% share of the dividends issued by Novelty Builders that was credited to his account. If Mr Mike is right in saying that the parties and the rest of the Novelty Dept Store shareholders had come together to enter into an oral agreement that Novelty Builder’s dividends would be distributed within the family according to the family members’ shareholding in Novelty Dept Store, then Mr Manoj’s entitlement to Novelty Builders’ dividends would be much diminished. It bears mentioning as well that this alleged agreement was not recorded in writing, so the law above on proving the existence of oral contracts apply similarly to this alleged agreement on how Novelty Builders’ dividends would be distributed.

70 In my judgment, this alleged agreement that Novelty Builders’ dividends would be distributed according to the shareholding in Novelty Dept Store did not exist. The evidence given by Mr Mike and Ms Geena is that the alleged agreement for Novelty Builders’ dividends to be proportionally distributed to Novelty Dept Store’s shareholders was entered into around the time of Novelty Builders’ incorporation. ¹⁵³ However, such an agreement is inconsistent with the parties’ expectation as to the future role of Novelty Builders at the time of its incorporation.

71 Mr Mike’s own evidence is that when Novelty Builders was set up, it was not anticipated to make any substantial profits. ¹⁵⁴ Mr Mike further deposed that from the Novelty Group’s perspective, what Novelty Builders billed Novelty Group would be the construction costs that Novelty Group incurred for the development (effectively a pass through of costs from sub-contractors engaged by Novelty Builders). ¹⁵⁵ In other words, Novelty Builders was simply meant to be a main contractor ¹⁵⁶ that carried out the construction work for the property development projects undertaken by the Novelty Group. The main profits for any one property development would accrue to Novelty Dept Store as developer and not Novelty Builders as the main contractor.

72 Furthermore, Mr Mike’s pleaded case, up until his amendment to his defence on 6 November 2023, was that “the intention and understanding amongst the shareholders of [Novelty Dept Store] was for [Novelty Builders] to be operated and managed for the benefit of the Novelty Group”. ¹⁵⁷ The further pleading about the alleged agreement that Novelty Builders’ dividends would be distributed according to the shareholding in Novelty Dept Store was added via the amendment to the defence on 6 November 2023, ¹⁵⁸ which was three weeks before trial commenced and after Mr Manoj’s AEIC was filed on 31 October 2023. While I do not discount Mr Mike’s case purely because his case was changed, I also note that his prior pleaded defence that there was a common understanding that Novelty Builders was to be operated and managed for the benefit of the Novelty Group is consistent with Mr Manoj’s account of the role of Novelty Builders as an entity that broadly benefitted Novelty Group. ¹⁵⁹ Such statements are broad and vague and point to a general understanding that Novelty Builders benefitted Novelty Dept Store by taking the construction burden from Novelty Dept Store. However, there is no clear expectation between the parties that Novelty Builders was meant to contribute profit upwards into Novelty Dept Store, and to the shareholders of Novelty Dept Store. Indeed, there is also no evidence that Novelty Builders had ever contributed profits upwards to Novelty Dept Store, which lends support to this conclusion.

73 Given the relative lateness of Mr Mike’s pleading about the alleged agreement that Novelty Builders’ dividends would be distributed according to the shareholding in Novelty Dept Store, Mr Manoj sought and was granted permission to file a supplementary AEIC addressing Mr Mike’s new pleadings. Mr Manoj’s AEIC goes some way towards debunking Mr Mike’s case on the alleged agreement on the proportional distribution of Novelty Builders’ dividends. Mr Manoj provided evidence that when Novelty Builders was incorporated with Mr Manoj, Mr Mike and two other individuals as founding shareholders, each founding shareholder contributed S$12,500 to its paid-up capital. ¹⁶⁰ Importantly, Mr Manoj gave evidence that his capital injection of S$12,500 was drawn from his own account with Novelty Dept Store. ¹⁶¹ Mr Manoj also gave evidence that he later further injected S$125,000 into Novelty Builders by drawing this sum from his account with Novelty Dept Store. ¹⁶² These drawings and capital injections are supported by entries in Novelty Dept Store’s ledger, with detailed narrations associating these debits with Novelty Builders. In my judgment, the fact that Mr Manoj injected his own money into Novelty Builders supports his case that Novelty Builders was a venture between him and Mr Mike, and that they were the ones entitled to any residual profits generated by Novelty Builders.

74 Moreover, whereas Novelty Builders was incorporated on 5 January 2006, Mr Manoj only became a shareholder of Novelty Dept Store on 27 July 2007. ¹⁶³ Mr Mike’s evidence is that around 2007, he decided to speak to Mr Manoj about Mr Manoj’s longstanding request to be given shares in Novelty Dept Store. ¹⁶⁴ Thereafter, Mr Mike discussed this request with Mr Dharmadas. Mr Mike and Mr Dharmadas decided to accede to Mr Manoj’s request and to give Mr Manoj 20% of the shares in Novelty Dept Store. ¹⁶⁵ Based on Mr Mike’s own chronology in the evidence he gave, Mr Manoj would not have had any concrete assurance of being a shareholder of Novelty Dept Store when Novelty Builders was incorporated early in 2006. Mr Mike’s evidence is that Mr Manoj was annoyed over – in Mr Manoj’s view – the belated allocation to him of shares in Novelty Dept Store. ¹⁶⁶ In this context, it would have been unlikely for Mr Manoj to have been a party to an agreement, made around the time of Novelty Builders’ incorporation in early 2006, that Novelty Builders’ dividends should be distributed proportionately in accordance with Novelty Dept Store’s shareholding.

75 It is also commercially plausible that Novelty Builders has a different shareholding structure as compared to Novelty Dept Store because Novelty Builders was first incorporated with third party shareholders, ¹⁶⁷ and the family had taken legal advice as to why Novelty Dept Store should not be a shareholder of Novelty Builders. ¹⁶⁸ There was therefore logic in Mr Manoj and Mr Mike being the co-venturers in this regard.

76 This being the case, I do not find that there had been a legally enforceable agreement that Novelty Builders’ dividends would be divided up in proportion to the shareholdings in Novelty Dept Store. The context surrounding the set-up of Novelty Builders is inconsistent with the parties having made such an agreement. Indeed, Mr Mike’s pleadings were never entirely clear as to the elements of such an agreement ie, where was the offer and acceptance, consideration, and intention to create legal relations evinced. The only understanding that I can discern from the evidence is that Novelty Builders, as part of the wider family business, benefitted Novelty Dept Store in the broad sense. Following on from this, Mr Manoj as 50% shareholder in Novelty Builders is beneficially entitled to 50% of Novelty Builders’ dividends.

77 What followed chronologically was the issue of the invoices by Novelty Builders to Mr Manoj and Mr Mike for the costs associated with the Clacton Property and the Wilkinson Property. It was around 2015 that Ms Geena says that she raised the idea to use Novelty Builders’ dividends to pay for the variation costs for the Clacton Property and Wilkinson Property. ¹⁶⁹ This is consistent with the fact that these dividends had not been priorly pushed up to Novelty Dept Store pursuant to any alleged agreement to distribute the dividends to shareholders of Novelty Dept Store in proportion to their shareholding. Ms Geena’s consultation with the rest of the family on this plan is also consistent with the loose understanding of Novelty Builders as being generally of benefit to the Novelty Group.

78 This is where the crux of this claim arises for decision. In my judgment, Mr Manoj has not proved his affirmative case that there was an oral agreement between Mr Manoj and Mr Mike for Mr Manoj to loan S$2.8m to Mr Mike, with an accompanying obligation on the part of Mr Mike to repay the loan on demand.

79 It bears remembering that, as explained above at [65], Mr Manoj as the plaintiff bears the burden of proving the substantive requirements of an oral agreement. Mr Manoj did not manage to adduce any documentary record evidencing the alleged oral agreement for the S$2.8m loan, nor is there any witness (other than Mr Manoj himself) who testified in support of the existence of this loan agreement. Given this state of the evidence, Mr Manoj has an uphill battle to fight in proving his positive case.

80 Mr Manoj pleaded that his relationship with Mr Mike was strained at all material times, such that the parties did not have the type of relationship where Mr Manoj would give Mr Mike almost S$3m. ¹⁷⁰

81 I disagree.

82 Firstly, Mr Manoj’s pleaded case was that the alleged loan agreement for the S$2.8m loan to Mr Mike was made around 2015 or 2016. ¹⁷¹ Around this point in time, the relationship between the parties had elements of cordiality and civility. An example can be seen in the exchange summarised above at [19] concerning Mr Mike’s offer to order “Vega Sicilia ‘Valbuena’ 2010” wine for Mr Manoj. Another example can be seen from Mr Manoj’s own evidence that in 2017, he had cancelled his own family holiday so as to travel with Mr Mike to Stuttgart, Germany to accompany Mr Mike while he underwent surgery to remove a tumour. ¹⁷² Mr Manoj gave evidence that he sincerely wanted to show support since “Mike was ultimately my brother and a co-owner of Novelty Group”. ¹⁷³ I am not persuaded that the relationship between the parties was so bad as to preclude the possibility of a transfer of moneys between the parties without a promise of repayment.

83 Secondly, while I note that Mr Manoj had raised in his AEIC a litany of examples of Mr Manoj and Mr Mike mutually settling accounts, ¹⁷⁴ the alleged S$2.8m loan is qualitatively different. Many of the examples given by Mr Manoj, such as a purchase of a “Hermes Lindy Croco bag” for Mr Manoj’s wife, ¹⁷⁵ the purchase of “Rolls Royce parts, headrests, shoes and bags” for Mr Manoj ¹⁷⁶ and the purchase of “Chateau Pavie 2008” wine for Mr Mike, ¹⁷⁷ were dealings that were largely confined to the two parties. In contrast, the S$2.8m transfer engaged the interests of the entire Kalwani family. The S$2.8m was ultimately meant to pay for part of the construction costs of the Wilkinson Property. The Wilkinson Property was intended to be the Kalwani family home where the parties’ parents, Mr Mike, Ms Geena, and Ms Kamni would reside. ¹⁷⁸ Even if the relationship between Mr Mike and Mr Manoj was strained, and even if Mr Mike and Mr Manoj had some practice of accounting with each other, this is inconclusive as to whether Mr Manoj might have been willing to contribute to help with the costs of the Kalwani family home.

84 I note also that Mr Manoj had included in the list of examples of him settling accounts with Mr Mike an instance where, in 2011, Mr Manoj asked Mr Mike to help Mr Manoj with purchasing jewellery for Mdm Sheela and Mr Manoj’s wife, with Mr Manoj reimbursing Mr Mike for the purchase. ¹⁷⁹ While this example is far from conclusive of the parties’ relationships with each member of the family, I note that this example provides an instance of Mr Manoj giving a gift to his mother. The broader point here is that Mr Manoj’s pleading of his strained relationship with Mr Mike still leaves unanswered questions as to whether this strained relationship extended to the rest of the Kalwani family, who would ultimately benefit from the Wilkinson Property.

85 I note that Mr Manoj had provided evidence of loans (a US$9m loan in 2013 and a US$6m loan in 2014) that Mr Manoj had previously given to Mr Mike via oral agreements. ¹⁸⁰ Yet, these were different from, and not dispositive of, the issue of the S$2.8m loan. The examples raised by Mr Manoj were short-term loans returned within a matter of weeks. ¹⁸¹ The US$9m loan was documented, albeit through text message evidence. ¹⁸² Moreover, Mr Mike was asked on the stand about whether he agreed that the US$6m loan was concluded pursuant to an oral agreement between Mr Manoj and Mr Mike. ¹⁸³ Mr Mike’s evidence is that he and Mr Manoj wanted to let their mother, Mdm Sheela, take advantage of higher interest rates being offered in India, and thus money was borrowed from Mr Manoj to be deposited into Mr Mike’s and Mdm Sheela’s joint account for the India investment. ¹⁸⁴ Thereafter, money was borrowed in Singapore against the India investment, which allowed the money loaned from Mr Manoj to be returned to him. I observe that Mr Mike’s evidence on this loan arrangement was believable and consistent with the short-term nature of the loan. In short, the evidence of previous loans is not a precedent for this current loan. In fact, the pattern of behaviour that this evidence shows is contrary to Mr Manoj’s case because it shows that Mr Mike returned previous loans quickly.

86 The documentary evidence does not assist Mr Manoj’s case. There is no documentary evidence at all (not even text messages) referring to the alleged S$2.8m loan. This is incongruous with the existence of the S$2.8m loan.

(a) Mr Manoj was able to raise a litany of examples of him and Mr Mike purportedly engaging in a practice of mutually settling accounts for sums owed to each other, ¹⁸⁵ with accompanying documentary evidence demonstrating that there was a loan or money was owed. ¹⁸⁶ This goes to the point about how Mr Manoj was, by his own evidence, more fastidious in accounting with Mr Mike for any further purchases parties made for each other after 2011. ¹⁸⁷ It is inconsistent with Mr Manoj’s fastidiousness to make no mention of the S$2.8m loan, even in text messages, over the years.

(b) Novelty Builders’ ledger does not reflect the S$2.8m transfer as a “loan” from Mr Manoj to Mr Mike. The ledger simply reflected, for Mr Manoj’s account, “…TRANSFER CR BAL FM DIRECTOR-MDK TO DIRECTOR-BDK…” for both of the transfers totalling up to S$2.8m, ¹⁸⁸ with similar ledger entries made for Mr Mike’s account. ¹⁸⁹ I note at this juncture that Novelty Builders’ ledger does contain numerous entries that are explicitly reflected as loans, such as an entry dated 19 September 2014 bearing the narrative “INTER-CO LOAN REC’D FROM NDSPL -SDRY” for the sum of S$1,144,500.00. ¹⁹⁰ There are numerous similar entries recording loans in Novelty Builders’ ledger. ¹⁹¹ If the S$2.8m loan was indeed a loan, it would be reasonable to expect it to be contemporaneously reflected as such in the ledger.

(c) I also note that the idea of documenting parties’ debts is not foreign to the Kalwani family. It is Mr Manoj’s own evidence that the Kalwani family had previously, from 2013 to 2016, executed deeds and supplemental deeds to allow Mr Manoj’s and Mr Mike’s debts to Novelty Dept Store to be set-off against Mr Dharmadas’, Ms Kamni’s and Ms Geena’s credits with Novelty Dept Store. These deeds contain an obligation for Mr Mike and Mr Manoj to repay the debts to Mr Dharmadas, Ms Kamni and Ms Geena. ¹⁹² Indeed, it is Mr Manoj’s own evidence that these series of deeds and supplemental deeds were prepared to allow Novelty Dept Store’s accounts to appear cleaner by reducing the amounts that are recorded as owing by Mr Mike and Mr Manoj. ¹⁹³ There are salient parallels between this need to clean up Novelty Dept Store’s accounts and the circumstances behind the S$2.8m transfer from Mr Manoj to Mr Mike. Mr Manoj’s own evidence is that around 2015, Ms Geena mentioned to Mr Manoj and Mr Mike that she was facing issues with Novelty Builders’ accounts due to significant owings from Mr Manoj and Mr Mike. ¹⁹⁴ This led to the issuance of dividends and the transfer of dividends in order to pay down the owings. Curiously, however, there is no documentary indication of any similar arrangement being considered involving deeds and supplemental deeds to record Mr Mike’s debts to Novelty Builders being paid down using credit amounts in Mr Manoj’s account, with a corresponding obligation on the part of Mr Mike to repay Mr Manoj. The deeds and supplemental deeds executed by the Kalwani family to tidy up the accounts of Novelty Dept Store were dated 31 December 2013, ¹⁹⁵ 31 December 2014, ¹⁹⁶ 31 December 2015 ¹⁹⁷ and 31 December 2016. ¹⁹⁸ This is around the time the alleged S$2.8m loan to Mr Mike was made. Yet, there is no indication whatsoever that a similar arrangement as that adopted by Novelty Dept Store was considered for Novelty Builders. The point here is not that Novelty Builders must or ought to have used the same accounting mechanism to deal with the Wilkinson Property debt as that adopted for the debts owed to Novelty Dept Store. The point here is that the idea of documenting loans or reflecting in writing transfers of dividends made pursuant to loan agreements was not foreign to the Kalwani family. This state of affairs makes it less likely for a US2.8m loan from Mr Manoj to Mr Mike to not be reflected in any written documentation, if such a loan did in fact exist.

87 There is corroborating evidence from both Ms Kamni ¹⁹⁹ and Ms Geena ²⁰⁰ that the S$2.8m transfer was not a loan. While I keep in mind the possibility that both Ms Kamni and Ms Geena might have a closer relationship to Mr Mike than Mr Manoj, it is not clear to me why Ms Kamni’s evidence in particular (where she deposed that she had never heard of a loan being in place) was not challenged. ²⁰¹

88 Mr Manoj made much about Mr Mike’s alleged liquidity issues, in view of his debts to Novelty Dept Store and his alleged gambling problem. ²⁰² While I agree with Mr Manoj that Mr Mike’s net worth based on the valuation of Novelty Dept Store does not equate to free liquidity, this is not conclusive about whether the parties entered into a loan agreement for the S$2.8m transfer. Mr Mike’s alleged need for cash is also consistent with a gift of the S$2.8m. Mr Manoj’s allegations concerning Mr Mike’s cashflow issues also do not explain why Mr Mike had to approach Mr Manoj for a loan, and not approach the rest of the Kalwani family. It bears remembering that the Wilkinson Property was the subject of the debt that the S$2.8m was meant to repay. Logically, it can be said that there would be a moral imperative for the rest of the Kalwani family members to pitch in. Mr Manoj did not put any questions to Ms Geena and Ms Kamni in this regard when they took the stand. I am unable to draw any firm conclusions, and can only say that Mr Mike’s alleged liquidity issues do not prove that there was a loan agreement behind the S$2.8m transfer.

89 Finally, there is Mr Mike’s oral evidence that himself, Ms Geena and Mr Manoj entered into a so-called “addendum” agreement. It was allegedly agreed that Novelty Builders’ dividends would first be used to pay off invoices associated with both the Clacton Property and the Wilkinson Property, before being distributed in proportion to the shareholding in Novelty Dept Store. ²⁰³ Mr Mike caveated his evidence by saying that everything “was done on an informal basis”. ²⁰⁴ This “addendum” is not part of Mr Mike’s pleaded defence. It is not part of Mr Mike’s AEIC nor Ms Geena’s AEIC. As this “addendum” was only raised in Mr Mike’s cross-examination, Mr Manoj did not have an opportunity to address it when giving evidence. Even so, Mr Manoj in his closing submissions has managed to raise questions about the existence of this “addendum”, by pointing out that (a) the sum of S$1,837,481.55 left over after Mr Manoj’s dividends were used to pay down the Clacton Property debts sat in Mr Manoj’s account for some time before being transferred to Mr Mike’s account to settle the debts associated with the Wilkinson Property (see [12] above); ²⁰⁵ and (b) Ms Geena transferred S$13,619.73 extra from Mr Manoj’s account to Mr Mike’s account, over and above Mr Manoj’s share of the Novelty Builders dividends. ²⁰⁶ Mr Manoj contends that these two discrepancies show that there was no “addendum” agreement for Novelty Builders’ dividends to be applied towards the debts associated with the Clacton Property and the Wilkinson Property in priority. With the state of the evidence before me, I do not have sufficient material to hold that Mr Mike has proven the existence of this “addendum”. Yet, as noted above at [65], the unsustainability of this aspect of Mr Mike’s case cannot patch the deficiencies in Mr Manoj’s affirmative case. This is because Mr Manoj’s rebuttal of Mr Mike’s evidence on the “addendum” cannot prove Mr Manoj’s affirmative case that all the elements of an oral loan contract for the S$2.8m transfer have been made out.

90 Ultimately, when a broad view is taken of this case, the parties are trying to fit a definitive legal context into a matrix of informal dealings carried out in a family-owned business. These informal dealings were carried out at a time when litigation was not yet contemplated. Both Mr Manoj and Mr Mike gave evidence that the affairs of the Novelty Group were conducted in an informal manner. ²⁰⁷ What emerged ultimately from my analysis of the evidence is the conclusion that Mr Manoj has failed to fit the informal dealings between the parties into the legal requirements of an oral agreement for a loan.

91 I end this section by observing that this outcome in relation to the claim concerning the S$2.8m transfer bears some resemblance to the court’s conclusion at [67] of Thong Soon Seng v Magnus Energy Group Ltd [2023] SGHC 5 (“Thong Soon Seng”). In Thong Soon Seng, the court found that the plaintiff had failed to prove his pleaded case that he made a loan of $4m to the defendant, which resulted in the failure of his claim in debt. The court also found that the plaintiff had failed to plead and prove an unjust factor, which rendered his alternative claim in unjust enrichment a failure as well. Importantly, the court observed at [60] that the court’s decision meant that the defendant was entitled to keep the $4m even though it readily accepted that the payment was not a gift, and even if its positive case on the reason for the payment cannot be proven or is actually false. Such an outcome is reflective of the common law’s approach which holds that the absence of basis for the defendant’s enrichment is not sufficient for restitution to follow (Thong Soon Seng at [62]–[63]). The conclusion that I have reached is similar. Mr Manoj has failed to prove his pleaded case that he made a loan of S$2.8m to Mr Mike. I am left with doubts as to Mr Mike’s positive case because I have found that there was no agreement for Novelty Builders’ dividends to be divided proportionately amongst Novelty Dept Store’s shareholders and I have found that the “addendum” agreement was not proven. Yet, the absence of a proven basis for Mr Mike’s enrichment is not sufficient for a remedy to follow for Mr Manoj. Mr Manoj’s claim that Mr Mike has been unjustly enriched in the sum of S$2,837,418.55 ²⁰⁸ fails as well.

92 Mr Manoj’s case for the repayment of the S$2.8m transfer fails. The issue of whether Mr Manoj’s claim is barred by estoppel therefore also falls away.

93 Mr Manoj’s case is that he had paid a sum of €21,456.00 to Edulis for wines on Mr Mike’s behalf in 2016, on the basis that Mr Manoj would be repaid on demand. ²⁰⁹ Mr Manoj’s case is that the agreement was reached orally on the telephone. ²¹⁰

94 Mr Manoj contends that invoice no. 63155, which Mr Manoj paid allegedly on Mr Mike’s behalf, was for 111 bottles of 4 different wines, and Mr Mike could not give a clear explanation for how Mr Manoj came to have ordered so much wine through Mr Mike for Mr Manoj’s personal use. ²¹¹ Instead, Mr Manoj contends that he had a direct purchasing relationship with Edulis and did not require Mr Mike to place orders for Mr Manoj. ²¹² Mr Manoj also argues that his claim is not barred by laches or acquiescence as his claim is in contract, and acquiescence requires an unequivocal representation that founds an estoppel, waiver or an abandonment of rights, which Mr Mike has not proven. ²¹³

95 Mr Mike’s case is that he had e-mailed Mr Manoj two Edulis invoices and that Mr Manoj had paid one of the two invoices because that invoice was for wines that Mr Manoj had asked Mr Mike to order on Mr Manoj’s behalf. ²¹⁴ Mr Mike argues that the contemporaneous documents all support his account. ²¹⁵ Mr Mike also contends that it is incongruous with Mr Manoj’s claim that he was fastidious, meticulous and conscious about settling his accounts with Mr Mike for Mr Manoj to not have claimed the €21,456 sum from Mr Mike earlier. ²¹⁶ Further, there is no documentary evidence supporting the existence of any request from Mr Mike to Mr Manoj for Mr Manoj to pay Edulis’ invoice of €21,456 on Mr Mike’s behalf. ²¹⁷

96 Mr Mike also argues that Mr Manoj’s failure to bring his claims within a reasonable time despite having knowledge of the facts on which his claims are based constitutes a bar by laches or a case of acquiescence which prevents Mr Manoj from acting upon the claim now. ²¹⁸

97 Mr Mike states that Mr Manoj’s claim in unjust enrichment in relation to the Edulis wine claim is a non-starter given that Mr Manoj cannot make out the basis on which he paid the €21,456 (ie, the alleged oral agreement between Mr Mike and Mr Manoj for Mr Manoj to pay for Mr Mike’s wines on Mr Mike’s behalf). ²¹⁹

98 In my judgment, Mr Manoj’s claim for S$33,000 for wine that he allegedly paid for on Mr Mike’s behalf fails.

99 The contemporaneous documentary evidence adduced support Mr Mike’s account that the moneys paid by Mr Manoj in relation to invoice no. 63155 were for Mr Manoj’s own wine order. The events surrounding Mr Manoj’s payment for invoice no. 63155 have been summarised at [17]–[19] above. There is in evidence an e-mail exchange showing that on 4 and 5 May 2016, Mr Manoj and Mr Mike had a conversation over e-mail where Mr Mike offered to order some “Vega Sicilia ‘Valbuena’ 2010” wine for Mr Manoj. Mr Manoj agreed, saying “Ok pls add some for me but let me pay for it thank u”. ²²⁰ Mr Manoj testified that this exchange shows that he had agreed that Mr Mike should place an order for some wines for Mr Manoj, and that Mr Manoj would pay for his share of the wines. ²²¹ Invoice no. 63155 which Mr Manoj paid for did indeed include 24 bottles of “Vega Sicilia Valbuena 5° 2010” wine, ²²² though admittedly it did contain other wines as well, totalling 111 bottles. Mr Mike provided a plausible explanation for why there were so many other bottles of wine in invoice no. 63155. His evidence was that Mr Manoj had separately spoken to Mr Mike on the phone and asked to order other wines as well, other than the “Vega Sicilia ‘Valbuena’ 2010” wine. ²²³ Moreover, Mr Mike testified that Mr Manoj drinks wine and entertains people with wine, whereas Mr Mike collects wine but does not drink. ²²⁴

100 I note in this regard that documentary evidence is lacking to demonstrate that Mr Manoj had asked Mr Mike to order wines other than the “Vega Sicilia ‘Valbuena’ 2010” wine. Mr Mike’s evidence about the parties’ wine-drinking habits or lack thereof was also not in AEIC. However, the contemporaneous documents show that Mr Manoj had agreed to pay for “Vega Sicilia ‘Valbuena’ 2010” wine, and this wine formed a part of invoice no. 63155. This lends credibility to Mr Mike’s account even though the available documents do not completely support all aspects of Mr Mike’s narrative. Furthermore, I note that Mr Manoj admitted that in relation to another order of wines from Edulis in January 2016, ²²⁵ Mr Manoj had similarly asked Mr Mike to order some wine for Mr Manoj and was content to leave Mr Mike to deal with the specifics of that order in terms of quantity. ²²⁶ Invoice no. 63028 and invoice no. 63155 also contain repetitions. Invoice no. 63028, which Mr Mike paid ²²⁷ and which, on both parties’ cases, contains wine belonging to Mr Mike, ²²⁸ contains an entry for “Vega Sicilia Unico 2007, en caisse de 6 bts … Ribera del Duero DO” wine with the quantity being 21 bottles. ²²⁹ Invoice no. 63155, which Mr Manoj paid, ²³⁰ similarly contains an entry for “Vega Sicilia Unico 2007, … Ribera del Duero DO” wine with the quantity being 48 bottles. ²³¹ This lends credence to Mr Mike’s account that the two invoices were for two separate orders of wine, with invoice no. 63028 being for Mr Mike’s order and invoice no. 63155 being for Mr Manoj’s order. Otherwise, there would be little reason for Edulis to split up the orders of the “Vega Sicilia Unico 2007, … Ribera del Duero DO” wine.

101 In contrast, there is scant documentary evidence in support of Mr Manoj’s claim. Most importantly, as against Mr Mike’s contemporaneous documentary evidence that Mr Manoj had asked Mr Mike to order “Vega Sicilia ‘Valbuena’ 2010” wine for Mr Manoj and had asked to pay for the wine, Mr Manoj did not adduce evidence to show that he had made any other payment for such wine other than the €21,456 he paid under invoice no. 63155. In other words, by paying for invoice no. 63155, Mr Manoj was discharging his promise to pay as stated in his 5 May 2016 e-mail where he had said “Ok pls add some for me but let me pay for it thank u” (see [19] above).

102 I turn to Mr Manoj’s claim that he had a telephone conversation with Mr Mike where the parties agreed for Mr Manoj to pay first for the Edulis wines on behalf of Mr Mike. ²³² Mr Manoj admits that he has no notes of this conversation, no records showing that this call took place and no text message records referring to this telephone conversation. ²³³ According to Mr Manoj, there was a second call between Mr Manoj and Mr Mike after Mr Manoj had effected payment for invoice no. 63155 where Mr Mike notified Mr Manoj that invoice no. 63028 was still unpaid, but that Mr Mike could pay it himself. ²³⁴ Mr Manoj again admits that there is no documentary evidence supporting the existence of this second call, or indeed, the existence of any request from Mr Mike asking Mr Manoj to pay for invoice no. 63155. ²³⁵ The absence of documentary evidence referencing this oral agreement is detrimental to Mr Manoj’s case, especially in the light of Mr Manoj’s own evidence concerning how the parties interacted with each other. It is Mr Manoj’s own evidence that after 2011, he “became more fastidious in accounting with Mike for any further purchases we made for each other throughout the years”, with the parties having a practice which was to “settle accounts between ourselves”. ²³⁶ As noted above at [86(a)], Mr Manoj was able to raise a litany of examples of him and Mr Mike purportedly settling accounts, with accompanying documentary evidence demonstrating that there was a loan or money was owed. As against this backdrop, it is not believable, if the agreement actually existed, for Mr Manoj to not have records of him chasing for payment or at least referencing the existence of this agreement. Mr Manoj attempted to explain away this seeming inaction on the basis that from July 2017, his mother was in a coma. ²³⁷ However, July 2017 was more than a year after the payment for invoice no. 63155 was made. This explanation was thus not credible.

103 In my judgment, Mr Manoj’s payment of €21,456 for invoice no. 63155 is more likely than not for his own wines, and the payment was not made pursuant to an agreement for Mr Manoj to pay first for Mr Mike’s wines and be repaid later. The arguments on laches and acquiescence therefore also fall away given that Mr Manoj’s primary case on the Edulis wines fail. As for the unjust enrichment issue, I note that Mr Manoj made no submission in his closing submissions on the ground of unjust enrichment in relation to the Edulis wines. ²³⁸ In any case, as the court noted in Thong Soon Seng at [66], it is incumbent on a claimant seeking to advance a claim in unjust enrichment to establish an unjust factor entitling him to restitution. Having failed to discharge his burden of proving the existence of a loan agreement, and without pleading or establishing any other unjust factor entitling him to restitution, Mr Manoj’s claim for S$33,000 for the Edulis wines fails.

104 Mr Mike’s case is that he orally agreed with Mr Manoj in the 2000s for Mr Mike to transfer to Mr Manoj the Number Plates for S$150,000 each and pursuant to that oral agreement, Mr Mike transferred the Number Plates to Mr Manoj in the 2000s. ²³⁹ Mr Mike argues that Mr Manoj had insisted on paying for the Number Plates and that this account is corroborated by Ms Geena’s evidence. ²⁴⁰

105 Mr Mike contends that in 2017, Mr Manoj provided acknowledgment to Mr Mike and Ms Geena that he owes Mr Mike money for the Number Plates. ²⁴¹ In this regard, Mr Mike argues that his claim is not time-barred by reason of s 6(1)(a) of the Limitation Act 1959 (2020 Rev Ed) (“Limitation Act”) because s 6(1)(a) does not apply to Mr Mike’s claim for unjust enrichment. Moreover, there has been a renewal of the limitation period after Mr Manoj acknowledged the debt by way of his WhatsApp message to Ms Geena, and Ms Geena was Mr Mike’s agent. ²⁴²

106 Mr Mike argues that Mr Manoj has been unjustly enriched by the transfer of the Number Plates such that it would be unconscionable for Mr Manoj to retain the Number Plates. ²⁴³ The basis for his unjust enrichment claim is the oral agreement between Mr Mike and Mr Manoj for Mr Mike to transfer the Number Plates to Mr Manoj in exchange for S$300,000. ²⁴⁴

107 Mr Manoj counters in defence to the Number Plates counterclaim that Mr Mike’s pleaded case on when the alleged oral agreement for payment was formed shows an uncertain date of contract formation, throwing doubt on the existence of the agreement. ²⁴⁵

108 Furthermore, Mr Manoj contends that Mr Mike has not proven that he owned the Number Plates, and that Mr Manoj’s case that the Number Plates were owned by Novelty Dept Store is more likely. ²⁴⁶ Mr Manoj’s case is that Ms Geena had effected a transfer of S$750,000 from Mr Manoj to Mr Dharmadas to pay for various items, and this payment would have covered the Number Plates. ²⁴⁷ In this regard, Mr Manoj explained in his AEIC that this S$750,000 was paid to Mr Dharmadas because Novelty Dept Store had earlier administratively disposed of cars and number plates previously on Novelty Dept Store’s books to Mr Dharmadas as a director of Novelty Dept Store. ²⁴⁸ Thus payment for the Number Plates had to be made to Mr Dharmadas as he had earlier paid Novelty Dept Store for the Number Plates.

109 Mr Manoj also argues that any oral agreement on payment for the Number Plates would have been entered into before the Number Plates were transferred in 2008. This means that Mr Mike’s claim is time-barred. ²⁴⁹ Mr Manoj’s position is that s 26(2) of the Limitation Act, which deems a right of action to recover a debt to accrue on the date of acknowledgement of the debt, does not apply to the Number Plates debt because s 26(2) requires a signed written acknowledgement made to the creditor or the creditor’s agent (see ss 27(1) and (2) of the Limitation Act). In that regard, Mr Manoj’s WhatsApp message to Ms Geena on 22 December 2017 did not acknowledge any debt owed to Mr Mike and it was not pleaded that Ms Geena was Mr Mike’s agent for this debt. ²⁵⁰

110 Finally, Mr Manoj submits that Mr Mike’s claim under the doctrine of total failure of consideration in relation to the Number Plates fails because Mr Mike has not pleaded or proven any independent recognised unjust factor beyond the purported oral agreement. ²⁵¹

111 In my judgment, Mr Mike’s claim for S$300,000 under the alleged oral agreement to transfer the Number Plates to Mr Manoj for S$150,000 each fails.

112 As a preliminary point, it should be noted that the unsatisfactory state of the evidence concerning the ownership of the Number Plates appears to be due, in a large part, to the fact that in the 2000s, the Novelty Group and the Kalwani family appears to have mixed their personal and business assets. Mr Manoj adduced in evidence the audited financial statements of Novelty Dept Store in this regard showing that Novelty Dept Store owned over S$3m worth of motor vehicles. ²⁵² Mr Mike’s evidence is that cars were bought in Novelty Dept Store’s name and, at various points in time, the accounts of various shareholders of Novelty Dept Store would be debited with the value of the cars. ²⁵³ Mr Mike’s explanation for this state of affairs is that the family treated the cars as family property belonging to the family, and the family “never counted money with each other”. ²⁵⁴ It appears, therefore, that in the 2000s, the family did not have an intention to make the clear distinctions on who owned which car (or part thereof) and whether the cars truly belonged to the family or to the family’s companies, which distinctions the parties are seeking to make now. In other words, they are now trying to rationalise a situation that simply did not exist at the time.

113 Turning to the substance of the counterclaim, I first consider Mr Mike’s pleading on when the alleged agreement on the Number Plates was entered into. Mr Mike pleaded that the oral agreement was entered into in the 2000s, and, similarly, in the 2000s, the Number Plates were transferred to Mr Manoj. ²⁵⁵ This is woefully inadequate. In Independent State of Papua New Guinea v PNG Sustainable Development Program Ltd [2019] SGHC 68 (“Independent State of Papua New Guinea”), the court held at [148]–[149] that a claimant must plead with reasonable certainty when an oral agreement was entered into. A pleading which merely asserts that an oral agreement was entered into in a particular calendar year or that it was somehow entered into over a two-month period fails the “reasonable certainty” test. A fortiori, a pleading that an oral agreement was concluded in “the 2000s” would fail the reasonable certainty test to an even greater degree. The court in Independent State of Papua New Guinea at [156] held that the vagueness of the pleadings, amongst other deficiencies in the plaintiff’s case, threw substantial doubt on the existence of the pleaded agreement, though the court did not hold that the plaintiff’s case failed on this ground alone. For the present matter, I similarly take into account the vagueness of Mr Mike’s pleading on the Number Plates counterclaim in the overall analysis, though I do not dismiss his counterclaim on this basis alone.

114 Mr Mike’s evidence is that he had bid for the Number Plates with his own money, and that they were registered under his name. ²⁵⁶ Yet, this is contradicted in part by LTA’s records. As summarised above at [23], the earliest registration record for the number plate SGS1P shows that it was registered under Mr Manoj’s name for a Morris 1275 for the period of 31 January 2007 to 1 February 2007. ²⁵⁷ This number plate was only registered under Mr Mike’s name at a later date of 1 February 2007. ²⁵⁸ This partially contradicts Mr Mike’s account that he had bid for the Number Plates with his own money, and that they were registered under his name. ²⁵⁹

115 As for Mr Mike’s argument that Mr Manoj had, in 2017, acknowledged the debt owed in relation to the Number Plates to Ms Geena and to Mr Mike, this argument is insufficiently supported by the documentary evidence. In relation to the WhatsApp message sent by Mr Manoj to Ms Geena where he purportedly acknowledged the Number Plates debt in writing, a close reading of the message shows that it says nothing about a debt owing in respect of the Number Plates. This WhatsApp message has been reproduced at [27] above. In the message, Mr Manoj told Ms Geena to “pls confirm with this clown that the cars accounts have been adjusted and reversed to my account”. Mr Manoj goes on to specify that he had “told u all the cars that I had used from day one” and complains about how “he” (apparently referring to Mr Mike) “tells me he has bought me cars and etc”. This message is indeed framed in the past tense and appears to be a request from Mr Manoj directed at Ms Geena for Ms Geena to confirm with Mr Mike that the ledgers of Novelty Dept Store have been adjusted to charge the car-related costs to Mr Manoj’s account.

116 It bears remembering that Ms Geena is Novelty Group’s chief financial officer (see [4] above) and she maintained Novelty Dept Store’s ledgers. ²⁶⁰ Ms Geena, in the WhatsApp chat, did not refute Mr Manoj’s statement that the cars accounts have been adjusted and reversed to his account. ²⁶¹ Ms Geena’s explanation on the stand when asked about her omission to contradict Mr Manoj’s WhatsApp message was that she did not reply as Mr Manoj was sending a lot of abusive messages. ²⁶² This explanation still does not explain why Mr Manoj would have sent a message appearing to ask Ms Geena to confirm a prior adjustment of the company accounts. Ms Geena also gave evidence that she apparently never made the adjustments to the car accounts because Mr Manoj never told her how much to transfer out of his account with Novelty Dept Store. ²⁶³ Yet, this explanation fails to account for Mr Manoj’s contemporaneous statement in the WhatsApp message stating that he had “told u all the cars that I had used from day one”, which suggests that Mr Manoj had provided some account of the vehicle usage that he had enjoyed (and which he presumably wanted to pay for). Furthermore, if the issue was that Ms Geena did not know how much to transfer out of Mr Manoj’s account to pay Mr Mike, she could have asked Mr Mike. After all, it is Mr Mike’s evidence and Ms Geena’s evidence that the meeting where the alleged Number Plates debt was discussed was attended by Mr Mike, Mr Manoj and Ms Geena. ²⁶⁴ Mr Mike, on his own case, would have known of Mr Manoj’s alleged acknowledgement of his promise to pay for the Number Plates, and he could have supplied the requisite figures to Ms Geena. I therefore hold that the evidence given by Ms Geena and Mr Mike in this regard does not pass muster.

117 Mr Mike’s case on the number plates is not made out and the evidential burden does not shift to Mr Manoj to prove his defence. However, for completeness, I turn to examine Mr Manoj’s defence. I note firstly that Mr Manoj’s defence – that he had effected payment for the Number Plates by paying Mr Dharmadas via a credit entry dated 31 December 2007 in Mr Dharmadas’ account – was pleaded as early as 22 March 2023. ²⁶⁵ However, Mr Mike did not manage to explain away this payment. In his closing submissions, Mr Mike highlighted that the 31 December 2007 credit entry in Mr Dharmadas’ account contains a narration stating “FINAL DIVIDEND DECLARED BY [NIPL]… UTILISED TO REPAY INTER CO LOAN”. ²⁶⁶ I note, however, that Mr Manoj had adduced in evidence ledger records showing that Novelty Dept Store had previously disposed of motor vehicles to Mr Dharmadas and had debited his account accordingly. ²⁶⁷ In addition, Mr Mike had in fact confirmed on the stand that Mr Dharmadas’ account (and the accounts of other Novelty Dept Store shareholders too) was debited with the value of motor vehicles. ²⁶⁸ While the narration concerning the “INTER CO LOAN” appended to the 31 December 2007 credit entry raises some doubts, these doubts are insufficient, in my judgment, to substantially undermine Mr Manoj’s defence. It is unclear what “INTER CO LOAN” refers to and there is nothing in evidence to suggest that the subject matter of the loan cannot be cars or the Number Plates. It is therefore plausible that the person to be repaid in relation to the Number Plates was Mr Dharmadas, as asserted by Mr Manoj.

118 I move on to consider the time bar issue. Section 6(1)(a) of the Limitation Act prescribes a six-year limitation period for actions founded on contract. It reads as follows:

119 Mr Mike’s counterclaim on the Number Plates was first pleaded on 28 December 2020 in the first iteration of his Defence and Counterclaim. As noted above at [113], Mr Mike pleaded that the alleged oral agreement for payment of S$300,000 in total for the Number Plates was entered into in the 2000s, and, similarly, in the 2000s, the Number Plates were transferred to Mr Manoj. ²⁶⁹ More than ten years has elapsed between the alleged making and breaching of the oral agreement, and the bringing of the counterclaim.

120 It is common ground as between the parties that the limitation periods in the Limitation Act (as it currently stands) do not apply to claims in unjust enrichment: Esben Finance Ltd and others v Wong Hou-Lianq Neil [2022] 1 SLR 136 (“Esben Finance”) at [52]. ²⁷⁰ However, this position taken by the parties does not answer the anterior question of whether Mr Mike’s Number Plates counterclaim can properly be considered a claim in unjust enrichment.

121 The Court of Appeal in Turf Club Auto Emporium Pte Ltd and others v Yeo Boong Hua and others and another appeal [2018] 2 SLR 655 (“Turf Club Auto Emporium”) at [180] had observed that there is today a generally recognised difference between “what has been termed ‘restitution for unjust enrichment’ [and] ‘restitution for wrongs’” [emphasis in original]. The Court of Appeal noted that while it was thought in the past that the law of restitution comprised both “restitution for unjust enrichment” as well as “restitution for wrongs”, it is now recognised that “restitution for unjust enrichment” is a distinct and new branch of the law of obligations (Turf Club Auto Emporium at [180]–[181]). The key distinction is this:

(a) The law of unjust enrichment comprises a separate cause of action (with restitution as the remedial response), which is made out when there is no civil wrong but the defendant is unjustly enriched at the expense of the plaintiff: Turf Club Auto Emporium at [181].

(b) In contrast, “restitution for wrongs” relates only to the remedial response to a civil wrong (including breaches of contract, torts and breaches of fiduciary duty): Turf Club Auto Emporium at [182].

122 In the present case, Mr Mike has framed his claim in “unjust enrichment” as follows: ²⁷¹

123 Mr Mike’s purported “unjust enrichment” claim is founded on a civil wrong, and that is Mr Manoj’s alleged breach of the alleged oral agreement to pay for the Number Plates. Taxonomically, this claim is a plea for a remedial restitutionary response to a civil wrong consistent with the description in [121(b)] above. It cannot be described as a cause of action “when there is no civil wrong but the defendant is unjustly enriched at the expense of the plaintiff” [emphasis in original] (Turf Club Auto Emporium at [181]). Thus, it is a misnomer to name this claim as an “unjust enrichment” claim. It would be more accurate to classify the claim as a claim for restitution for wrongs.

124 At [73] of Esben Finance, the Court of Appeal held that “the Limitation Act applies where the restitutionary claim brought is founded on a civil wrong for which a limitation period is provided under the Act, but not otherwise”. The Court of Appeal explained that this outcome results because “restitution for wrongs relates only to the remedial response to a civil wrong, and that the claim therefore is founded on the civil wrong itself” [emphasis in original]. The Court of Appeal at [73] also cited with approval Professor Virgo’s comment in Graham Virgo, The Principles of the Law of Restitution (Oxford University Press, 3rd Ed, 2015) at pp 738–739 where he stated that “because the underlying cause of action for the claim is the tort or the breach of contract … the limitation period for those causes of action should apply even where the claimant seeks a restitutionary remedy” as “[i]f the wrong is statute-barred then there is no longer a cause of action on which the restitutionary claim can be based”.

125 Thus, in the present case, even if I find the alleged oral contract concerning the Number Plates to exist, I hold that the time bar in s 6(1)(a) of the Limitation Act applies to it. This is because Mr Mike’s purported claim in “unjust enrichment” is, in substance, a plea for restitution for a civil wrong. This civil wrong is Mr Manoj’s alleged breach of the oral contract. Where a restitutionary claim for an alleged civil wrong is brought, this restitutionary claim is also subject to the time bar that applies to the civil wrong which underlies the claim.

126 I turn to Mr Mike’s contention that Mr Manoj had acknowledged his debt in relation to the Number Plates in 2017, and thus there has been an extension of the limitation period to bring the counterclaim.

127 Sections 26(2) and 27 of the Limitation Act provide as follows:

128 Section 26(2) of the Limitation Act allows for a right of action to recover a debt to be deemed to have accrued on the date when the debtor acknowledged the debt. However, s 27(1) requires the acknowledgement to be in writing and signed by the person making the acknowledgment, and s 27(2) requires the acknowledgment to be made to the creditor or the creditor’s agent.

129 In the present case, there is no denial from Mr Manoj that the WhatsApp message sent by Mr Manoj to Ms Geena on 22 December 2017 (see [27] above) constitutes signed writing provided by Mr Manoj. In this regard, I note that in Anuva Technologies Pte Ltd v Advanced Sierra Electrotech Pte Ltd and another suit [2020] 4 SLR 569 at [34], the court held that WhatsApp messages satisfied the signed writing requirement.

130 However, Mr Manoj disputes that the message acknowledges any debt due to Mr Mike in respect of the Number Plates. He asserts that Mr Mike has not pleaded that Ms Geena is Mr Mike’s agent for the purpose of acknowledgment of the debt. ²⁷²

131 In relation to the issue of pleadings, I am prepared to decide this issue in favour of Mr Mike. Mr Mike pleaded that “[b]y way of a WhatsApp message from the Plaintiff to [Ms Geena] on 22 December 2017, the Plaintiff acknowledged the Debt”. ²⁷³ This is a sufficient pleading to put Mr Manoj on notice that Mr Mike takes the position that an acknowledgment given to Ms Geena suffices for an acknowledgment of a debt owed ultimately to Mr Mike. As noted in Halsbury's Laws of Singapore - Partnership and Agency vol 15 (LexisNexis Singapore, 2023) at para 180.161, “[t]he relation of agency arises in law whenever one person, called ‘the agent’, has authority to act on behalf of another, called ‘the principal’, and consents so to act” [footnotes omitted]. Furthermore, the court in Win Line (UK) Ltd v Masterpart (Singapore) Pte Ltd and another [1999] 2 SLR(R) 24 at [23], citing Garnac Grain Company Incorporated v H M F Faure & Fairclough Ltd [1968] AC 1130 at 1137, noted that parties would be held to have consented to a principal-agent relationship if they have agreed to what amounts in law to such a relationship, even if they do not recognise it themselves and even if they have professed to disclaim it. The consent can be given expressly or by implication from their words and conduct. I am satisfied for the present case that Ms Geena was Mr Mike’s (and indeed, Mr Manoj’s) agent when it came to the issue of adjusting the parties’ accounts with Novelty Dept Store to effect debt repayments from one party to the other. Mr Manoj, Mr Mike and Ms Geena herself have given evidence that it was Ms Geena’s responsibility as chief financial officer to effect the various adjustments of the parties’ accounts. With that context, it must follow that Ms Geena had authority to take cognisance of the parties’ debts and make adjustments to the accounts to effect the necessary repayments, and that she consents so to act. ²⁷⁴

132 The challenge for Mr Mike, however, is to prove that the 22 December 2017 WhatsApp message from Mr Manoj actually acknowledges a debt of S$300,000 owed to Mr Mike for the Number Plates. The Court of Appeal in Fairview Developments Pte Ltd v Ong & Ong Pte Ltd and another appeal [2014] 2 SLR 318 (“Fairview”) at [93] stated that a useful summary of the applicable legal principles governing what would constitute a valid acknowledgment within the meaning of s 26(2) of the Limitation Act is set out in [40] of Kim Eng Securities Pte Ltd v Tan Suan Khee [2007] 3 SLR(R) 195 (“Kim Eng Securities”). In turn, the court in Kim Eng Securities relied on the earlier Court of Appeal authority of Chuan & Company Pte Ltd v Ong Soon Huat [2003] 2 SLR(R) 205 (“Chuan & Company”).

133 Significantly for present purposes, the Court of Appeal in Chuan & Company held that the communication allegedly acknowledging the debt must be construed as a whole and in its context. Where words in a document are clear, it is not permissible to refer to extrinsic material to give the words a meaning that is at variance with the express words: Fairview at [93], citing Kim Eng Securities at [40], which in turn referred to Chuan & Company at [35] (though the relevant proposition appears at [28] of Chuan & Company).

134 The Court of Appeal in Chuan & Company cited with approval the illustrative case of Kamouh v Associated Electrical Industries International Ltd [1979] 2 WLR 795 (“Kamouh”), which facts are germane for the present case. In Kamouh, as summarised by the Court of Appeal at [24] of Chuan & Company, the plaintiff’s brother had, in April 1967, procured a contract for the defendants and had incurred expenses in connection therewith. In May 1967, the first defendant stated in a letter to the brother that they recognised that he was in effect out of pocket to the extent of £100,000 for those activities. In reply to a letter from him, the defendants wrote in March 1970 to deny that there was any agreement to pay him remuneration and added (see at 802):

135 The Court of Appeal in Chuan & Company at [25]–[26] noted that the court in Kamouh held that the above paragraph could not amount to an acknowledgement of debt. While the above paragraph should properly be read in its context, and reference can be made to earlier letters exchanged between the parties, the above paragraph could not be viewed to be an acknowledgment. It did not admit that any sum was due to the plaintiff’s brother as expenses. It was no more than an acknowledgment that there might be something owing.

136 In the present case, Mr Manoj’s WhatsApp message of 22 December 2017 cannot be construed as an acknowledgement of a debt that was owing to Mr Mike. The message was framed in the past tense and in fact conveyed a request to Ms Geena to confirm with Mr Mike that the cars account have been adjusted, ie, that the adjustment had occurred some time in the past. There is furthermore no reference to the Number Plates. At best, the WhatsApp message could be construed as an admission that some debt in relation to cars had been owing in the past, but Mr Manoj’s assertion in the message was that the debt has since been paid via adjustments to his account and there was no debt owing.

137 In my judgment, the provision for the fresh accrual of action on acknowledgment of debt under s 26(2) of the Limitation Act is not engaged by the 22 December 2017 WhatsApp message. Mr Mike’s counterclaim is time-barred under s 6(1)(a) of the Limitation Act.

138 I dismiss Mr Manoj’s claim for S$2,837,418.55 for the transfer made to Mr Mike.

139 I dismiss Mr Manoj’s claim for S$33,000 for the Edulis wines. ²⁷⁵

140 I dismiss Mr Mike’s counterclaim for S$300,000 for the Number Plates.

141 This judgment in no way diminishes the achievements of Mr Manoj and Mr Mike as accomplished and successful businessmen and members of our society. The whole family have worked hard from little to achieve much and this judgment will not take that away from them. Following the conclusion of this case, if Mr Manoj and Mr Mike find that the taking of separate ways is the path of least resistance to avoid further disputes, then that should happen. There is no shame in that. It does not preclude a reconciliation in the future.

142 I will hear the parties on costs.