1 In this suit, Pacific Healthcare Holdings Ltd. (“PHH”) and Pacific Healthcare Specialist Services Pte. Ltd. (“PHSS”) (collectively the “Claimants”) claimed against Entrust Healthcare Group Pte. Ltd. (“Entrust”) and Precious Specialist Centre Pte. Ltd. (“Precious Specialist”) (collectively the “Defendants”) for the sum of $154,743.58 or alternatively damages to be assessed. Entrust and Precious Specialist counterclaimed for the sum of $174,070.05, being 3 months’ rent at 105% and GST, as well as reinstatement costs, loss of profit and/or loss of revenue.

2 The Claimants’ case is that sometime in or around November 2018, it was agreed between PHH and the Defendants that all of the clinics operated by PHH at #19-01 of The Paragon save for 3 clinics would move to #12-01 (the “Level 12 Unit”). In furtherance of this agreement, the Claimants and the Defendants entered into a Subscription and Shareholders’ Agreement dated 8 March 2019 (the “Shareholders’ Agreement”). Clause 4.5(a) of the Shareholders’ Agreement provides that PHH shall reimburse Precious Specialist a percentage of the rental deposit paid by Precious Specialist to the landlord (“Reimbursement Sum”) pursuant to the tenancy agreement entered into between Precious Surgery Centre Pte Ltd (“Precious Surgery”) and the landlord in relation to the Level 12 Unit dated 12 May 2016. The amount payable by PHH shall be the product of PHH’s Use Proportion of the Level 12 Unit and the total amount of the rental deposit paid by Precious Specialist to the landlord pursuant to the tenancy agreement. Use Proportion is defined in Clause 1.1 of the Shareholders’ Agreement as the proportion in which the amount of space in the Level 12 Unit used by a party or its affiliates bears to the total amount of available space in the Level 12 Unit (exclusive of any common area shared with another party) and in the case of PHH, this is approximately 28% of the entire Level 12 Unit, provided always that such proportion may be amended by mutual agreement between the parties in writing. As the Use Proportion is subject to revision pursuant to written agreement between PHH and Precious Specialist, the amount payable by PHH is also subject to change.

3 Under clause 4.5(b) of the Shareholders’ Agreement, notwithstanding the amount of rent paid by Entrust/Precious Specialist pursuant to the tenancy agreement, PHH shall pay Precious Specialist an amount which is equivalent to 105% of the proportionate rental costs for its Use Proportion of the Level 12 Unit that would otherwise be due pursuant to the tenancy agreement in advance on a monthly basis.

4 On 7 May 2019, Precious Surgery entered into an agreement with DBS Trustee Limited (as trustee of SPH REIT) to lease the Level 12 Unit for a term of 3 years commencing on 1 November 2019 (“Lease Agreement”). Pursuant to clause 6 read with paragraph 4 of Schedule 1 of the Lease Agreement, the security deposit maintained by Precious Surgery shall be at the quantum of $527,310. Clause 6 of the Lease Agreement also provides that the security deposit shall be refunded to Precious Surgery, free of interest, after the expiry of the term subject to the due performance and observance of the terms and conditions of the lease.

5 The Claimants claimed that it was an implied term of the Shareholders’ Agreement that the Defendants shall return and/or procure the return of the Reimbursement Sum to PHH within a reasonable period from the Claimants vacating the Level 12 Unit (“Deposit Return Implied Term”).

6 Sometime in or around July 2019, it was agreed between the parties that the Reimbursement Sum was $154,743.58. On 14 June 2019 and 11 July 2019, PHH made payment of the sums of $49,965.16 and $104,778.42 respectively to Precious Specialist, totalling the Reimbursement Sum of $154,743.58.

7 The Claimants claimed that Dr Chong Lai Leong William (“Dr Chong”), who is a director and sole shareholder of Entrust and a director of Precious Specialist, had on behalf of the Defendants sent WhatsApp messages to Mr Daniel Hoh (“Mr Hoh”), a director of the Claimants, demanding that the Claimants vacate the Level 12 Unit and made repeated oral demands for the Claimants to do so in the period between June 2019 to 2022. On 20 July 2022, Dr Chong sent an email to Mr Hoh demanding that the Claimants “vacate the [Level 12 Unit] immediately”.

8 In response to such demands, the Claimants vacated the Level 12 Unit on 31 August 2022. In or around September 2022, PHH offered to reinstate its Use Proportion of the Level 12 Unit on a goodwill basis but this was rejected by Dr Chong.

9 The Claimants claimed that the Defendants have refused to return the Reimbursement Sum to PHH within a reasonable period from the Claimants vacating the Level 12 unit in breach of Clause 4.5 and/or the implied term of the Shareholders’ Agreement.

10 By reason of such breach, the Claimants have suffered loss and damages and claimed the sum of $154,743.58, being the quantum of the Reimbursement Sum and further or alternatively, damages to be assessed.

11 The Defendants claimed that sometime in or around 29 July 2014, PHH was in a dire financial state and had a bad credit rating with financial institutions in Singapore. By the beginning of 2018, PHH was in rental arrears. As such, sometime in 2018, representatives of PHH approached Dr Chong in his capacity as the authorised representative of Entrust, Precious Specialist, and Precious Medical Centre Pte Ltd (“Precious Medical”) as well as in his personal capacity.

12 PHH, Dr Chong, Entrust, Precious Specialist and Precious Medical then came to the following understanding:

13 The Defendants claimed that the parties rushed to enter into the following agreements sometime in or around March 2019 for the benefit of PHH and to formally record the above-mentioned understanding:

14 The Defendants deny that the Deposit Return Implied Term was an implied term of the Shareholders’ Agreement because it is not necessary in the business or commercial sense to give the Shareholders’ Agreement efficacy.

15 Instead, the following arrangements were collectively an implied term of the Shareholders’ Agreement (collectively referred to as a “Back-to-Back Implied Term”):

16 The Defendants claimed that the Claimants were well aware of the Notice and Reinstatement Implied Term. Up till July 2022, the Claimants had repeatedly requested that the notice period and therefore the payment in lieu of the notice period be shortened from three months to one month. Further and/or in the alternative, sometime on or around 7 May 2019, Precious Medical, Entrust, Precious Surgery and Precious Specialist agreed with PHH and PHSS to allow the demised premises under the Lease Agreement to be used by the PHH Clinics in accordance with the Back-to-Back Implied Term and the PHH Clinics’ Use Proportion of the Level 12 Unit (the “Back-to-Back Agreement”).

17 Sometime in or around July 2019, the Parties provisionally agreed that PHH’s share of the security deposit under the Lease Agreement was $154,743.58. However, this was subject to revision depending on the PHH Clinics’ Use Proportion of the Level 12 Unit and was in fact revised to a total of $174,070.05. PHH and/or PHSS made payment of $49,965.16 to Precious Specialist, Precious Surgery and/or the Precious Group on or around June 2019. However. PHH and PHSS did not pay any further amounts, being their contribution to the security deposit in accordance with PHH Clinics’ Use Proportion of the Level 12 Unit.

18 The Defendants deny that Dr Chong made demands for the Claimant to vacate the Level 12 Unit as alleged on 22 June 2019 or in the period between June 2019 to the middle of 2021. While Dr Chong requested the Claimants and/or the PHH Clinics to vacate the demised premises beginning on or around middle of 2021, this was because PHH and/or its affiliates were in breach of the various agreements dated 8 March 2019. In any event, such requests were made on the condition that the Claimants and/or PHH Clinics would vacate the demised premises in accordance with the terms of the Lease Agreement, the Shareholders’ Agreement, the Back-to-Back Implied Term and/or the Back-to-Back Agreement. Eventually, the Claimants and/or PHH Clinics did not vacate the demised premises at the request of Dr Chong.

19 It was on 24 August 2022 when Mr Hoh unilaterally emailed Dr Chong stating that the PHH Clinics will move out of the space leased from Precious Group by 31 August 2022. The Defendants claimed that the Claimants could have informed the Defendants of their intention to vacate the demised premises much earlier but deliberately chose not to. Even as at July 2022, the Claimants and/or their affiliates were insisting and/or requesting that the PHH Clinics remain at the demised premises until December 2022, deliberately to give the impression that the PHH Clinics would not be moving out prior to December 2022 at the earliest.

20 When moving out, the Claimants and/or their movers remained at the demised premises beyond 8 p.m. on 31 August 2022 without the Defendants’ and/or Paragon’s consent. The Claimants entered a dental room licensed to the Defendants and/or their affiliates without obtaining their prior consent. The Claimants also removed items that the Defendants and/or their affiliates owned and relied on for the function of their business, including but not limited to dental chair(s), lights and a suction machine without the consent of the Defendants and/or their affiliates. The Claimants’ behaviour was egregious given that ownership of some of the items removed remains subject to the Court’s adjudication in HC/S 12/2022, 13/2022, 14/2022 and 15/2022.

21 The Claimants damaged the ceilings and walls of the demised premises, leaving the same in a state of disrepair and unsuitable for normal business operations. The Defendants therefore had to reinstate the demised premises and their business was brought to a complete standstill.

22 The Claimants failed to give at least three months’ notice prior to its vacation of the demised premises and failed to reinstate its Use Proportion of the Level 12 Unit to the satisfaction of the landlord, Precious Medical, Entrust, Precious Surgery and/or Precious Specialist. The Claimants have therefore vacated the demised premises in repudiatory breach of the terms of the Shareholders’ Agreement, the Back-to-Back Implied Term and/or the Back-to-Back Agreement. Further and/or in the alternative, the Claimants wrongfully terminated the Back-to-Back Implied Term and/or the Back-to-Back Agreement.

23 It was reasonable for Dr Chong, as the authorised representative of the Defendants, Precious Medical, and/or Precious Surgery, to reject PHH’s alleged goodwill offer to reinstate its Use Proportion of the Level 12 Unit because it was the Claimants’ obligation pursuant to the Shareholders’ Agreement and/or the Back-to-Back Agreement to reinstate its Use Proportion of the Level 12 unit and not a genuine goodwill gesture. In addition, the Defendants, Precious Medical, and/or Precious Surgery were not confident that PHH would carry out the necessary reinstatement work in good faith and/or in a bona fide manner or that they would do so in a good and workmanlike manner and/or with due diligence and/or expedition. The Defendants, Precious Medical, and/or Precious Surgery therefore carried out the reinstatement works themselves.

24 The Defendants’ position was that they were not obliged to make any payment to the Claimants, whether in the sum of $154,743.58 or otherwise and denied that they were in breach of Clause 4.5 or the implied term of the Shareholders’ Agreement.

25 As the Claimants have failed to give the Defendants, Precious Medical, and/or Precious Surgery at least three months’ notice prior to their vacation of the demised premises and have failed to reinstate their Use Proportion of the Level 12 Unit to the satisfaction of the landlord (as defined in the Lease Agreement), the Defendants, Precious Medical, and/or Precious Surgery prior to their vacation of the demised premises, the Claimants have committed repudiatory breaches of the terms of the Shareholders’ Agreement, the Back-to-Back Implied Term and/or the Back-to-Back Agreement and/or wrongfully terminated the Back-to-Back Implied Term and/or the Back-to-Back Agreement. The Defendants have thereby suffered loss and/or damage as follows:

26  The Claimants averred that they did not request Dr Chong and the Precious Group to re-design Level 12 in order to accommodate the clinics owned and/or operated by PHH. The terms of the clinics owned and/or operated by PHH moving to Level 12 are set out in the agreements dated 8 March 2019. There was no understanding or agreement reached between the parties that

27 There was also no understanding or agreement reached between the parties that any facility originally owned and/or operated by PHH and/or its associated companies (in particular, the operating theatres at the day surgery centre originally operated by Precious Surgery that would be taken over by the Precious Group and/or Dr Chong) would be in an operationally ready state. The sale and purchase of Pacific Surgical and Endoscopy Centre Pte Ltd (now known as Precious Surgery) is governed by the terms of the Sale and Purchase Agreement entered into between PHH on the one hand and Pacific Investments Pte Ltd and Precious Surgery on the other hand on 8 June 2018.

28 The Claimants’ position is that

29 The Claimants admit that the parties had provisionally agreed that PHH’s share of the security deposit under the Lease Agreement was $154,743.58. In May and July 2019, Precious Surgery unilaterally issued invoices for $49,965.16 and $104,778.42 totalling $154,743.58 when there was no agreement reached on the quantum of the deposit to be paid. Dr Chong did not provide a copy of the relevant Lease Agreement and documents in support of the invoices, despite multiple requests. On or around 14 June 2019, and without prejudice to PHH’s rights to the requested documents, PHH made payment of the sum of $49,965.16. On or around 11 July 2019, Dr Chong and Mr Hoh agreed on the Use Proportion of the Level 12 Unit as defined in Clause 1.1 of the Shareholders’ Agreement, that the quantum payable by PHH for the Reimbursement Sum shall be $154,743.58 and that the rental per month would be $56,056.45 (inclusive of GST). On or around 11 July 2019, PHH paid Precious Surgery $104,778.42.

30 The Claimants claimed that when Dr Chong requested, on behalf of the Defendants, that the Claimants and/or the PHH Clinics vacate the demised premises in or around 2021, the Defendants had acted in repudiatory breach of Clause 4.5 of the Shareholders’ Agreement which remains subsisting to date. The Defendants have not provided any particulars of PHH and/or its affiliates’ alleged breaches of the agreements dated 8 March 2019. The Claimants denied that they had acted in breach of these agreements or that any such breach entitled Dr Chong to request that they and/or the PHH Clinics vacate the demised premises. Dr Chong’s demand that they vacate was therefore without basis. The fact that such demand was not made on any condition that they do so in accordance with the Lease Agreement, Shareholders’ Agreement, the alleged Back-to-Back Implied Term and/or the alleged Back-to-Back Agreement indicate that there was no alleged implied term for a three-month notice period binding on PHH. Further or in the alternative, even if there was such a notice period, it had been waived by the Defendants through Dr Chong or the period would have commenced from the date of Dr Chong’s demand and would have been satisfied when PHH vacated the demised premises on 31 August 2022.

31 The Claimants averred that the 24 August 2022 email was in response to Dr Chong’s email dated 20 July 2020 at 9:56 p.m. and the oral demands made by Dr Chong between June 2019 to 2022, including the demands made in 2021 for the Claimants to vacate the demised premises. By way of the 24 August 2022 email, the Claimants had accepted the Defendants’ repudiatory breach of Clause 4.5 of the Shareholders’ Agreement.

32 The Claimants had sought and were granted permission from Paragon to move their medical equipment from the demised premises from 27 August to 1 September 2022 between 5 p.m. to 11:59 p.m. (weekdays) and 12 p.m. to 5 p.m. (weekends) and kept to such timing for the move.

33 The Claimants averred that they did not remove any items and/or equipment belonging to the Defendants and that only items and equipment belonging to the Claimants were removed from the demised premises. The Claimants had taken reasonable care to remove the items and equipment belonging to them from the demised premises and the removal did not affect the normal business operations of the Defendants.

34 The Claimants had no obligation pursuant to the Shareholders’ Agreement and/or the Back-to-Back agreement (which is denied) to reinstate its Use Proportion of the Level 12 Unit.

35 The following issues arise in this case:

36 During the Defendants’ Opening Statement, the Defendants also raised the issue of whether PHSS possessed the standing to commence the suit which I will deal with first.

37 This suit was commenced pursuant to a board meeting held electronically via Zoom on 29 May 2023 at 7 p.m. which Mr Hoh called on 10 May 2023 by sending an email to Dr Chong, Mr Kelvin Ng, Mr Ling Eu Meng and Mr Lew Oon Yew ¹ , calling for the meeting to authorise the commencement of this suit and to authorise NLC Law Asia LLC (“NLC Law”) as solicitors ² . According to the minutes of meeting which was signed by Mr Lew Oon Yew, Mr Hoh and Mr Ling Eu Meng ³ , the resolution was passed and such approval was given. Dr William Chong was absent at that meeting.

38 The Defendants raised the following issues. First, they claimed that the appointment of Mr Ling Eu Meng, who was appointed by PHH on 27 July 2021, was a breach of Clause 11.2 ⁴ of the Shareholders’ Agreement ⁵ which provides as follows:

(a) two (2) Directors appointed by PHH;

(b) one (1) Director appointed by Precious.

39 The Defendants also claimed that the approval was a breach of Clause 11.12 ⁶ of the Shareholders’ Agreement ⁷ which provides as follows:

40 There was no director appointed by Precious at the meeting on 29 May 2023 as Dr Chong was absent. There was also no evidence of the meeting on 29 May 2023 being an adjournment of a previous meeting ⁸ .

41 The Defendants also pointed out that Clause 18.8 of the Shareholders’ Agreement ⁹ provides that the parties (other than PHSS) intend that the provisions of the Shareholders’ Agreement shall prevail over the PHSS’ constitution (“Constitution”) in the event of conflict and accordingly shall exercise all voting and other rights and powers available to them as shareholders in PHSS, or under the Shareholders’ Agreement to procure any amendment to the Constitution required to give effect to the provisions of the Shareholders’ Agreement.

42 On the stand, Mr Hoh did not dispute that Mr Ling Eu Meng was appointed as a director of PHSS on 27 July 2021 by him and Mr Lew Oon Yew and not by Dr Chong ¹⁰ . Mr Hoh also did not dispute that Mr Ling Eu Meng was appointed to the PHSS Board of Directors in contravention of Clause 11.2 ¹¹ . However, Dr Chong did not appear to object to such appointment, given that he had also signed off on the resolution appointing Mr Ling Eu Meng as a director of PHSS sometime around July 2021 ¹² . Dr Chong also signed two other resolutions where four other directors’ signature blocks were present ¹³ .

43 Article 90 of the Constitution provides that questions arising at any meeting of directors shall be decided by a majority of votes and a determination by a majority of directors shall for all purposes be deemed a determination of the directors. Under Article 93, the quorum necessary for the transaction of the business of the directors may be fixed by the directors and unless so fixed shall be two. Hence, the Claimants argued that the resolution dated 29 May 2023 ¹⁴ which was signed by Mr Lew Oon Yew, Mr Hoh and Mr Ling Eu Meng to appoint NLC Law to commence the current suit was validly passed.

44 In BTY v BUA & other matters [2019] 3 SLR 786, the High Court stated that company law subordinates a private agreement such as a shareholders’ agreement to company law on company law matters: [90]. The High Court went on to state at [104] – [105] that a company’s constitution, by virtue of section 23(1) of the Companies Act, determines a company’s corporate capacity and therefore the validity of its act. A shareholders’ agreement, on the other hand, says nothing about, and cannot in law say anything about, the validity of corporate acts, which lies in the exclusive domain of company law. The only consequence of acting in breach of an obligation under a shareholders’ agreement is civil liability on the private law plane for breach of contract. The corporate act itself remains valid on the company law plane until and unless it is invalidated on that plane in accordance with company law.

45 In my view, whether the suit was validly authorised by PHSS is an issue which is governed by the Constitution and which is a matter of company law. Pursuant to the Constitution, the resolution approving commencement of the suit was validly passed, given that it was approved by a majority of the directors, including Mr Ling, whose appointment Dr Chong had previously consented to. While the appointment and resolution may have been contrary to the Shareholders’ Agreement and may entail liability for breach of contract, this does not invalidate the appointment or resolution which remains valid pursuant to the Constitution.

46 The fact that the Constitution and the Shareholders’ Agreement operated on different planes was implicitly recognised in Clause 18.8 of the Shareholders’ Agreement, given that it explicitly provided for the parties to exercise all voting and other rights and powers available to them as shareholders to procure the necessary amendments to the Constitution to give effect to the provisions of the Agreement. As this had not been done at the time the suit was commenced, the Constitution prevailed and the suit was validly authorised.

47 In Sembcorp Marine Ltd v PPL Holdings Pte Ltd & anor and another appeal [2013] 4 SLR 193 (“Sembcorp Marine”) at [91] – [101], the Court of Appeal was of the view that while the business efficacy test is helpful to identify the existence of a lacuna, that is to say that for the sake of the efficacy of the contract something more needs to be added into the contract, it does not assist in identifying what that “something more” is with any degree of precision. That is where the officious bystander test serves an instrumental function. It is only if a court thinks that the parties would, out of necessity for business efficacy, suppress the officious bystander’s suggestion with ‘Oh, of course!’ that the court would imply the term concerned.

48 First, the process is an exercise in giving effect to the parties’ presumed intentions. While it is an exercise in filling the gaps in the contract, the courts have to do so with due regard to what the parties would be presumed to have intended. There are at least three situations in which a gap could arise: (a) the parties did not contemplate the issue at all and so left a gap; (b) the parties contemplated the issue but chose not to provide a term for it because they mistakenly thought that the express terms of the contract had adequately addressed it; and (c) the parties contemplated the issue but chose not to provide any term for it because they could not agree on a solution. Scenario (a) is the only instance where it would be appropriate for the court to even consider if it will imply a term into the parties’ contract. This pertains to what the parties would be presumed to have agreed on had the gap been pointed out to them at the point of the contract. Scenario (c) is not a proper instance for implication because the parties had actually considered the gap but were unable to agree and therefore left the gap as it was. To imply a term would go against their actual intentions. Scenario (b) is not a proper situation in which to imply a term. What drives this scenario is not the parties’ presumed intentions but rather their objectively ascertained actual intentions. The proper remedy for such a situation is the rectification of the instrument in equity.

49 In addition to business efficacy and obviousness, the implied term must be reasonable and equitable, capable of clear expression and not contradict any express term of the contract. A term that is not reasonable, not equitable, unclear or that contradicts an express term of the contract will not be implied. Such a term will necessarily fail the officious bystander test. A term will only be implied if it is necessary.

50 At [101], the Court of Appeal set out the following three-step process for the implication of terms. The first step is to ascertain how the gap in the contract arises. Implication will only be considered if the court discerns that the gap arose because the parties did not contemplate the gap. At the second step, the court considers whether it is necessary in the business or commercial sense to imply a term in order to give the contract efficacy. Finally the court considers the specific term to be implied. This must be one which the parties, having regard to the need for business efficacy, would have responded “Oh, of course!” had the proposed term been put to them at the time of the contract. If it is not possible to find a clear response, then the gap persists and the consequences of that gap ensue.

51 In Tan Juay Pah v Kimly Construction Pte Ltd & ors [2012] 2 SLR 549 (“Tan Juay Pah”), the Court of Appeal held it trite at [42] that a term will be implied into a contract only if it is so necessary that all the contracting parties must have intended its inclusion in the contract. An obligation to indemnify is an onerous one, and the courts will be slow to imply such an obligation into a contract as it goes against commercial logic to have an implied term on indemnity without laying down properly defined parameters for the purported indemnity.

52 In determining whether there were implied terms in the Shareholders’ Agreement, one would have to ascertain how the gap arose and the circumstances in which the Shareholders’ Agreement was concluded.

53 On the stand, Mr Hoh conceded that PHH was in a bad financial state in 2017, 2018 and 2019 ¹⁵ . According to the financial statements of PHH for the year ended 31 December 2018 ¹⁶ , PHH and its subsidiaries were in a significant net liability position which “indicate the existence of a material uncertainty which may cast significant doubt about [PHH]’s ability to continue as a going concern”. In particular, PHH’s net current liabilities increased from $4,037,000 in 2017 to $4,307,000 in 2018. There was also evidence that on 30 April 2018, SPH Retail Property Management Services Pte Ltd emailed Mr Hoh asking for settlement of the outstanding payments for the leases of #12-01 and #11-02 and in response, Mr James Pang who was a director at that time, stated on 1 May 2018 that they did not have the money to pay ¹⁷ . Mr Hoh did not dispute that on 15 October 2019, DBS Trustee Limited as Trustee of SPH Reit had commenced legal proceedings against PHH in respect of the outstanding rental for #19-01 of the Paragon for the months of November 2018 (partial), December 2018 and January 2019 ¹⁸ .

54 The suite of agreements, including the Shareholders’ Agreement, was therefore concluded in this context, pursuant to which the Defendants paid the Claimants $9.5 million for the sale of assets which Mr Hoh then used to pay Paragon ¹⁹ .

55 Clause 4.5 of the Shareholders’ Agreement ²⁰ provides as follows:

56 The Tenancy Agreement is defined as the lease entered into between Precious Surgery and the Landlord, Orchard 290 Ltd, in relation to the Level 12 Unit dated 12 May 2016. On the stand, Mr Hoh agreed that parties contemplated the co-sharing of the premises at the Level 12 Unit with reference to the rights and obligations set out in the lease agreement dated 12 May 2016 ²¹ . Mr Hoh agreed that PHH would need to contribute to costs incurred under the tenancy agreement dated 12 May 2016 including reinstatement costs ²² and that their co-sharing of the Level 12 Unit would be based on the obligations and costs set out in the tenancy agreement dated 12 May 2016 ²³ .

57 However, the definition of the Tenancy Agreement was limited to the lease dated 12 May 2016 and the issue of what would happen upon expiry of the tenancy was not provided for. On the stand, Dr Chong alleged that PHH and PHSS had agreed to the various implied terms ²⁴ . However, when asked why he did not ask to include these terms in the Shareholders’ Agreement before it was signed, he said that he was not aware that the terms were not included ²⁵ . I did not find this evidence to be credible, given that parties had taken some time to negotiate the terms of the Shareholders’ Agreement ²⁶ and Dr Chong had taken the trouble to read, sign and affix his stamp to each and every page of the Shareholders’ Agreement ²⁷ . In any event, even if the import of his evidence was that the parties had contemplated the issue but mistakenly thought that the express terms of the contract had adequately addressed it, it is quite clear from Sembcorp Marine that such a scenario was not a proper situation in which to imply a term.

58 The Defendants claimed that it was an implied term of the Shareholders’ Agreement that PHH and PHSS would be deemed to have notice of all the provisions of the Lease Agreement. This entails deeming PHH and PHSS to have notice of all the provisions of an agreement which was not in existence at the time of the Shareholders’ Agreement. Even if I were to accept that the parties did not contemplate the issue of what would happen upon expiry of the Tenancy Agreement, there was no evidence that the implication of such a clause was necessary in the business or commercial sense to give the Shareholders’ Agreement efficacy in relation to the regulation of the parties’ relationship as shareholders in PHSS or the regulation of affairs of PHSS. The Defendants have not shown why the Shareholders’ Agreement would be unworkable without such an implied term.

59 While Dr Chong believed that PHH and PHSS would have said “yes, of course” to the inclusion of the implied terms based on the Lease Agreement ²⁸ , there is no indication that PHH and PHSS would have responded “Oh, of course!” or from which such a conclusion could have been inferred had the proposed term been put to them at the time of contract. This is bearing in mind the fact that the Lease Agreement between DBS Trustee Limited as trustee of SPH REIT and Precious Surgery was dated 5 August 2019 ²⁹ , approximately five months after the Shareholders’ Agreement was signed on 8 March 2019. Even if we look at the Letter of Offer, this was issued to Precious Surgery on 7 May 2019, approximately two months after the Shareholders’ Agreement was signed.

60 It is not clear that parties must have intended the inclusion of an implied term that PHH and PHSS would be deemed to have notice of all the provisions of an agreement which was not even in existence at the signing of the Shareholders’ Agreement. There was no way of knowing at the time of the signing of the Shareholders’ Agreement what the terms of the agreement would have been and whether they would change from the Tenancy Agreement. Even though PHH may have been in a bad financial state, it did not appear that PHH would have accepted any terms that were proposed. The suite of agreements signed on 8 March 2019 were negotiated outcomes with both sides receiving legal advice ³⁰ and where parties had contracted out of the contra proferentem rule ³¹ . Hence, I do not find that there was a Deemed Notice Implied Term.

61 In light of my finding above, I do not find that there was a Compliance Implied Term. The omission of a term that PHH and PHSS would comply with the provisions of the Tenancy Agreement in so far as they relate and apply to the Use Proportion of the Level 12 Unit was striking. It would have been easy for the parties to include such a term. However, the parties chose not to do so and provided separately for specific terms such as rent and contribution to the security deposit. In the context of a sub-letting prohibition in the Tenancy Agreement, this suggests that the omission of a Compliance Implied Term was intentional rather than inadvertent. As such, it was more probable than not that the parties had contemplated the issue of compliance with the other terms in the Tenancy Agreement and what would happen upon expiry of the Tenancy Agreement but chose to leave the gap as it is. This is bearing in mind that it was not possible to know at that time what the provisions of the Lease Agreement would be. Even if they did not contemplate the issue of what would happen upon renewal of the tenancy, there was no evidence that a Compliance Implied Term was necessary in the business or commercial sense to give the Shareholders’ Agreement efficacy. An implied term that PHH and PHSS would observe, perform and comply with all the provisions of a lease agreement which has yet to come into existence would not be reasonable.

62  Such an assessment that the officious bystander test is not satisfied in that the parties would not have suppressed the suggestion of a Compliance Implied Term with an ‘Oh, of course!’ remark was also consistent with the parties’ conduct thereafter where Precious Surgery did not engage PHH or PHSS on the terms of the Letter of Offer of the Lease Agreement, which would have been done if the Compliance Implied Term was in the parties’ contemplation. It would not have been reasonable to expect a party to comply with obligations which it is unaware of. Based on an email sent by Mr Hoh on 13 June 2019 ³² , the Claimants had asked repeatedly for the Lease Agreement for them to compute the rental payable but had yet to receive it. Dr Chong replied on the same day to state that it was the same as that signed by PSEC in 2016 but subsequently replied on 14 June 2019 that they had re-signed the lease and that new leases would come into effect in November 2019 ³³ . The lease agreements for #12-01 and #11-02 were subsequently sent by the Finance Department of Precious Specialist to one Eileen Tan of the Claimants on 10 October 2019 ³⁴ . Based on the correspondence between Dr Chong and Mr Hoh in June 2019, parties were more concerned about how the rent and Reimbursement Sum was to be calculated. No mention was made to the other provisions of the Lease Agreement and the agreements were not forwarded to the Claimants until October 2019. While Mr Hoh may have agreed that PHH knew that its costs and obligations from 1 November 2019 would be with reference to the new tenancy agreement ³⁵ , these relate to the obligations which were already explicit in Clause 4.5 of the Shareholders’ Agreement in relation to the calculation of the rental and the Reimbursement Sum to be paid. There is no provision in the Shareholders’ Agreement that the Claimants shall observe, perform and comply with all the provisions of the Tenancy Agreement in so far as they relate and apply to the PHH Clinics’ Use Proportion of the Level 12 Unit, even though the parties were well aware of the provisions in the Tenancy Agreement. I am therefore unable to draw the inference that the Claimants would have accepted an implied term that they shall observe, perform and comply with all the provisions of the Lease Agreement, when such an agreement was not even in existence at the time of the Shareholders’ Agreement.

63 As set out in Tan Juay Pah, an obligation to indemnify is an onerous one and the courts will be slow to imply such an obligation into a contract as it goes against commercial logic to have an implied term on indemnity without laying down properly defined parameters for the purported indemnity.

64 In addition, I note that the contracting party to the Tenancy Agreement as well as the Lease Agreement is Precious Surgery, which is not a contracting party to the Shareholders’ Agreement. Clause 18.22 of the Shareholders’ Agreement specifically provides that except as otherwise stated in the Shareholders’ Agreement, the Contracts (Rights of Third Parties) Act shall not under any circumstances apply to the agreement or any party who is not a party to the agreement. Hence, it is clear that the issue of Precious Surgery being able to seek an indemnity from the Claimants in relation to any breach or non-observance of the provisions of the Lease Agreement was not contemplated, as that would have entailed giving Precious Surgery third-party rights of enforcement, which directly contradicts Clause 18.22.

65 Similarly, I do not find that there is an Indemnity for Liability to Landlord Implied Term.

66 For the reasons set out above, I do not find that there is an Indemnity for Negligence Implied Term. As Dr Chong seemed to suggest on the stand, a negligent party would have to pay for its breach of duty and there is no need for an indemnity ³⁶ .

67 On the stand, Dr Chong was unable to say which were the necessary changes which would apply in respect of the application of the terms of the Tenancy Agreement to PHH and PHSS, save that the amounts payable were to be at 105% and with additional GST ³⁷ .

68 As set out above, as the terms of the Lease Agreement had yet to be finalised at the time of the Shareholders’ Agreement, it would be difficult to say what the terms of the Lease Agreement would be, much less the necessary changes that would apply in relation to the use by PHH and PHSS of the premises. As with the Deemed Notice Implied Term and the Compliance Implied Term, it was not clear that parties must have intended the inclusion of an Application of Lease Agreement Implied Term in respect of an agreement which was not in existence at the signing of the Shareholders’ Agreement.

69 Dr Chong’s evidence is that a standard man would think that if a three-month deposit is given, three months’ notice would have to be given ³⁸ .

70 Dr Chong accepted that the requirement for three months’ notice was not in any document but was what any average common man in the street would believe ³⁹ and was a fair notice period ⁴⁰ . Dr Chong stated that PHH and PHSS would share the assumption that three months’ notice should be given before moving out as Clause 4.5 of the Shareholders’ Agreement refers to rent, a rental agreement and deposit and the three months’ deposit is also referenced in the side agreement. As the 2016 Tenancy Agreement was signed by PHH, they would be aware that they had to pay for the full duration of the lease if they terminate early. Hence, three months’ notice was a minimum notice period which is standard in almost every agreement in Singapore ⁴¹ .

71  Mr Hoh does not dispute that the purpose of the security deposit paid by Precious Surgery Centre Pte Ltd for #12-01 under the letter of offer dated 7 May 2019 in the sum of $527,310 is equivalent to three months’ rent and service charge ⁴² and that the purpose of the security deposit is to secure due performance of the Lease Agreement. Mr Hoh also agreed that PHH was aware that the Reimbursement Sum was derived based on the Use Proportion, multiplied by 3, multiplied by 105% and multiplied by the appropriate rental amounts ⁴³ .

72 Mr Hoh agreed that in Dr Chong’s WhatsApp message dated 22 June 2019 ⁴⁴ , Dr Chong had repeatedly referred to the timeframe of 3 months in discussing the departure of PHH ⁴⁵ . Mr Hoh also agreed that in Dr Chong’s email dated 7 August 2020 ⁴⁶ , Dr Chong had agreed for the effective date of transfer in respect of his put option notice at 31 October 2020, which is 3 months from the date of the put option notice exercise ⁴⁷ . Mr Hoh agreed that throughout the Defendants’ interactions with PHH regarding PHH’s eviction from the Level 12 Unit, the timeframe of 3 months was repeatedly informed to PHH ⁴⁸ .

73 The Defendants argued that there was an implied term that if the PHH Clinics wished to vacate its Use Proportion of the Level 12 Unit prior to the expiry of the Lease Agreement, the PHH Clinics would be required to give the Defendants, Precious Medical and/or Precious Surgery at least three (3) months’ notice (or pay the equivalent of three (3) months’ rent (at 105% and with additional GST) for the PHH Clinics’ Use Proportion of the Level 12 Unit.

74 However, this was inconsistent with Clause 16 of the Shareholders’ Agreement which only contemplated a termination of the agreement in certain circumstances. Clause 16.1 and 16.2 ⁴⁹ provide

75 As both the Tenancy Agreement ⁵⁰ and Lease Agreement ⁵¹ prohibit sub-letting, termination of the Shareholders’ Agreement will necessarily imply relocation of the PHH Clinics from the Level 12 Unit. Mr Hoh agreed that if the Shareholders’ Agreement was terminated, the co-sharing agreement would be terminated as well ⁵² . However there is no mechanism for the Shareholders’ Agreement to be terminated upon the giving of notice. As the co-sharing arrangement is embedded within the Shareholders’ Agreement, the co-sharing arrangement may only be terminated by means provided for in the Shareholders’ Agreement or as otherwise provided under law. In the circumstances, the co-sharing arrangement may only be terminated by operation of law or by mutual agreement of the company and the shareholders under Clause 16.1 or pursuant to Clause 16.2 of the Shareholders’ Agreement. Even if we were to look at the Tenancy Agreement, there is no mechanism in the Tenancy Agreement ⁵³ for the tenant to vacate the premises by giving notice. Similarly, there is no mechanism in the Lease Agreement for the tenant to vacate the premises by giving notice. On the stand, Mr Hoh agreed that there is no provision in the Tenancy Agreement for Pacific Surgical and Endoscopy Centre Pte Ltd or Precious Surgery Centre to break the lease earlier ⁵⁴ . Similarly, there is no such provision in the letter of offer dated 7 May 2019 ⁵⁵ and no way for Precious Surgery to terminate the Lease Agreement early ⁵⁶ . It would therefore appear that by embedding the co-sharing arrangement in the Shareholders’ Agreement, the parties had contemplated any vacation of the premises by the PHH Clinics in the context of the termination of the Shareholders’ Agreement. The parties chose not to provide any specific term for the termination of the co-sharing arrangement, leaving the matter to be determined as indicated in Clause 16. As Dr Chong testified on the stand, his understanding was that when parties were no longer able to work together, they would come to an amicable discussion and a time frame for them to vacate the premises ⁵⁷ . In other words, the time frame over which the PHH Clinics would vacate the premises remain a subject matter for further discussion and agreement.

76 While Mr Hoh appeared to have made various concessions on the stand, a close look at the WhatsApp messages sent by Dr Chong reveal that there was no mention of a notice period for the vacation of the PHH Clinics. On 22 June 2019, Dr Chong proposed terminating the sub-lease agreement and setting the last date on the premises as 3 months from the next lunar new year on 30 April 2020 which gave 10 months for the PHH Clinics to relocate ⁵⁸ . The reference to three months related to termination of the management agreement.

77 As for Dr Chong’s email dated 7 August 2020 putting the effective date of transfer as 31 October 2020 ⁵⁹ , which is 3 months from the date of the put option exercise, it is important to note that the option completion date is defined in the Shareholders’ Agreement as the date as may be notified by PHH to Precious. Hence, Dr Chong’s proposal of the option completion date as 3 months from the date of the put option exercise, being the date on which the Shareholders’ Agreement would terminate pursuant to Clause 16.2(b), does not imply that parties had envisaged that the PHH Clinics would be able to vacate the premises by giving a notice period of 3 months.

78 Dr Chong conceded that in issuing the oral demands in 2021, he did not tell Mr Hoh that they had to give him three months’ notice or rental or that they had to reinstate the premises to his satisfaction ⁶⁰ . There is no evidence demonstrating why a security deposit of three months would necessarily suggest a three months’ notice period, given that this was not the case for either the Tenancy Agreement or the Lease Agreement. Correspondingly, there is no reason why the basis for calculating the quantum of Reimbursement Sum would correlate to the length of notice period to be given upon vacation of the premises. In the circumstances, even if the parties had not contemplated the issue, I am unable to conclude that the parties would have agreed to the Notice Period Implied Term if it had been put to them at the time of the contract.

79 Under the Tenancy Agreement, D15.2 ⁶¹ provides that

80 Clause D15.5 in turn provides that “reinstate” shall include

81 Clauses D17.2 and D17.5 in the Lease Agreement ⁶² are similar.

82 Dr Chong originally took the position that PHH ought to have reinstated the premises back to its original “bare bones” condition with the raised flooring, ceiling boards but with the sprinklers moved back to their original position, painted with the original partitions ⁶³ but subsequently took the position that it was not necessary for PHH to do so ⁶⁴ . Instead his case is that PHH ought to have reinstated the premises to a proper condition which means minimally in a working order which includes patching up the ceiling, the hole in the floor and the wall which is lead lined and a fresh coat of paint ⁶⁵ . While this is different from the reinstatement clause in both the Tenancy Agreement and the Lease Agreement, according to Dr Chong, he was waiving the reinstatement to bare bones requirement and is choosing to be reasonable ⁶⁶ .

83 The Defendants argued that if the PHH Clinics wished to vacate its Use Proportion of the Level 12 Unit prior to the expiry of the Lease Agreement, the PHH Clinics would be required to reinstate its Use Proportion of the Level 12 Unit to the satisfaction of the landlord, the Defendants, Precious Medical and/or Precious Surgery.

84 As set out above, the co-sharing arrangement was embedded in the Shareholders’ Agreement and any early vacation of the premises by the PHH Clinics would be dealt with in the context of the termination of the Shareholders’ Agreement as indicated in Clause 16. It would therefore appear that the parties had chosen to leave the gap as it was and to come to an agreement on the reinstatement obligations when the issue arose. While PHH was well aware of the state of the premises at the commencement of the Tenancy Agreement and the Lease Agreement ⁶⁷ and Mr Hoh also agreed that he had a copy of the Tenancy Agreement ⁶⁸ , this does not mean that the Claimants would have agreed to reinstate the premises to the original condition of the premises had this term been put to them. While the landlord’s requirement as to reinstatement is set out in the Tenancy Agreement and Lease Agreement, it would appear from Dr Chong’s evidence that depending on his plans for the premises, the requirement would not be for PHH to reinstate the premises back to its original condition ⁶⁹ . In Dr Chong’s email of 7 August 2020, when discussing PHSS’s relocation from the Level 12 Unit, there was no mention about PHSS’s obligation to reinstate the premises to the original condition as set out in the Tenancy Agreement or Lease Agreement. Instead, Dr Chong mentioned other renovation plans. There was no privity of contract or privity of estate between the Claimants and the landlord. There is therefore no mechanism for the landlord to enforce any provision as regards reinstatement to its satisfaction. Any issue of reinstatement would only surface upon expiry of the Tenancy Agreement or Lease Agreement and arise only as between the landlord and Precious Surgery as the tenant. Clause 18.22 of the Shareholders’ Agreement also prevents non-parties, including Precious Medical and Precious Surgery, from enforcing any such reinstatement obligation. In the circumstances, even if the parties had not envisaged the gap, I am unable to find that the parties would have agreed to the Reinstatement Implied Term as proposed by the Defendants had the term been raised at the time of the Shareholders’ Agreement.

85 Dr Chong agreed that if at the time of signing the Shareholders’ Agreement, he was asked if there should be a clause providing that should there be no breaches, the Reimbursement Sum would be refunded to PHH, he would say “Oh, of course!” ⁷⁰ and that it made business sense ⁷¹ . Dr Chong reiterated on the stand that his position was that if there were no breaches of the various tenancy agreements, the Reimbursement Sum would have to be repaid ⁷² . However, there were breaches.

86 Mr Hoh agreed that notwithstanding that parties had contemplated the termination of the shareholders’ agreement, as can be seen in Clause 16, no provision was made for how and when the rental deposit would be reimbursed to PHH ⁷³ . The Reimbursement Sum was PHH’s contribution to Precious Surgery’s payment of the security deposit to the landlord ⁷⁴ and the security deposit will only be refunded to Precious Surgery after the expiry of the term, subject to the due performance and observance of the terms and conditions of the lease ⁷⁵ .

87 As set out above, I am of the view that the parties had chosen to leave the issue of early vacation of the premises by the PHH Clinics, which would necessarily entail issues of notice period given, reinstatement obligations and consequently return of the Reimbursement Sum, for further agreement pursuant to Clause 16.1 of the Shareholders’ Agreement.

88 Even if the parties did not envisage the gap, I am of the view that an implied term that the Defendants shall return the Reimbursement Sum to PHH within a reasonable period from the Claimants vacating the Level 12 Unit without any conditions as pleaded would not have passed the officious bystander test. Given that the purpose of the Reimbursement Sum was to contribute to the security deposit to the landlord and given that the security deposit would only be refunded to Precious Surgery after the expiry of the term, subject to the performance and observance of the terms and conditions of the Tenancy Agreement ⁷⁶ , the officious bystander would not have responded to the unconditional Deposit Return Implied Term as pleaded with an “Oh, of course!” remark. It was unclear if the Reimbursement Sum would be used to set off any outstanding payment under the Shareholders’ Agreement, or monies due and unpaid due to any breaches of the Tenancy Agreement as was the purpose of the security deposit under the Tenancy Agreement or if it would be returned only after the security deposit is refunded by the landlord. There was therefore no clarity as to the conditions to be attached to any return of the Reimbursement Sum to give the Deposit Return Implied Term sufficient certainty.

89 In my view, the parties had left the issue of termination of the co-sharing arrangement, along with the ancillary issues of reinstatement and any return of the Reimbursement Sum, to the mutual agreement of the parties in the future. Even if I accept that the parties did not contemplate the issue, the Deposit Return Implied Term was not necessary to give the Shareholders’ Agreement efficacy and it was not clear what the conditions to the return of the Reimbursement Sum would be. As such, I find that the Claimants were unable to prove that it was an implied term that the Defendants shall return the Reimbursement Sum to PHH within a reasonable period from the Claimants vacating the Level 12 Unit as pleaded.

90 Mr Hoh agreed that the Claimants did not vacate the premises based on any contractual mechanism or pursuant to any clause in the Shareholders’ Agreement ⁷⁷ but pursuant to a series of demands from Dr Chong.

91 The first demand is a WhatsApp message dated 22 June 2019 ⁷⁸ where Dr Chong stated that it was evident that they can no longer work together and the only solution was to split completely following legal channels but with minimal disruption to PHH’s operations. This included terminating the management agreement (which Dr Chong viewed as unfavourable to him) in 3 months and terminating the sub-lease agreement but giving them time to find new premises. Dr Chong suggested setting the last date on the premises as 3 months or so from the next Lunar New Year which works out to be 30 April 2020, giving them ample time of 10 months to relocate. However, no legal documentation was issued by PHH or Dr Chong for PHH Clinics to leave the premises and even as at 22 April 2020, PHH had not started sourcing for new premises. Mr Hoh agreed that the Claimants did not leave the Level 12 Unit due to Dr Chong’s threat dated 22 June 2019 ⁷⁹ .

92 The second demand that is alleged is an email on 26 June 2019 where Dr Chong stated that the “only logical conclusion is to terminate the [Shareholders’ Agreement]” in the context of a dispute in relation to the sums payable under the Management Agreement. Mr Hoh agreed that one year after this email was sent, the PHH Clinics had yet to start sourcing for alternative premises and remained at the Level 12 Unit. Hence, PHH did not move out because of Dr Chong’s threat on 26 June 2019 ⁸⁰ .

93 The third demand that is alleged is an email on 29 December 2019 where Dr Chong expressed dissatisfaction about alleged outstanding payments from the PHH group and threatened to seize visa terminals and issue eviction notices to “all PHSC units” unless immediate payment was received ⁸¹ . Mr Hoh agreed that as of 29 December 2019, PHH owed the Precious Group money ⁸² . Mr Hoh agreed that PHH made payment of the outstanding amounts for Sports Medicine from August 2019 to November 2019 after receiving the email to avoid the eviction notice and therefore did not move out of the Level 12 Unit due to Dr Chong’s email dated 29 December 2019 ⁸³ .

94 The next demand is an email dated 20 July 2020 from Dr Chong ⁸⁴ to Mr Hoh and Mr Y M Pang and Mr James Pang copying Mr Lew Oon Yew and Sabrina Wee in response to an email from Mr Hoh dated 14 June 2020 where Mr Hoh had referred to a side agreement, the Management Agreement , the Shareholders’ Agreement and a sale and purchase agreement, claiming that payments have been made out of goodwill when they were not obliged to do so and that they reserve the right to recover any amounts that were paid without supporting documentation or in excess of the monthly management fee. Dr Chong’s response on 20 July 2020 was that due to their hostile action, he has taken the liberty to inform Paragon that there is a likelihood that they will end the relationship with PHH. Paragon had reminded him that once Precious is no longer deemed in control, PHSS and RCOLL will have to leave the premises. He thereby gave notice of his intention to exercise the option and requested them to inform the dentists and doctors and prepare alternative premises and also highlighted that any potential investors should be informed of Paragon’s sublease clause. This was followed up by another email from Dr Chong dated 31 July 2020 ⁸⁵ where Dr Chong stated that he had no option but to end the relationship through the contractual provision to sell back the shares at $1 which will trigger the necessity for relocation. On the stand, Mr Hoh stated that Dr Chong was looking to renegotiate terms which he had previously signed and was trying to arm-twist them into re-signing contracts to his favour. While he did not move out even as at one year from the date of this email, it made them extremely nervous ⁸⁶ .

95 On 1 August 2020 ⁸⁷ , Dr Chong exercised his put option and suggested that if the put option is in dispute, the alternative remedy would be to trigger Class B shares for PHH and present the matter to Paragon management for its final decision on whether they will allow a sub-lease on existing terms. As there was no acknowledgment from PHH, Dr Chong wrote another email on 7 August 2020 where he asked for confirmation that the effective date of transfer is 31 October as he will need to take steps to inform Paragon and MOH. If Dr Chong did not receive a response by the close of business of 14 August 2020, he will proceed to inform Paragon of the firm date of share transfer and that PHSS will be relocating from Level 12. Mr Hoh stated that Dr Chong ultimately rescinded the put option on 22 September 2020 ⁸⁸ . While they did not leave the premises due to the exercise of this put option, it was what triggered their decision to leave ⁸⁹ .

96 Given the rescission of the put option, it is clear from the evidence that the Claimants’ vacation of the premises on 31 August 2022 was not pursuant to any demands by Dr Chong before 22 September 2020.

97 However, the Claimants alleged that there were oral demands made by Dr Chong sometime around June 2021 for the PHH Clinics to vacate the Level 12 Unit immediately as admitted by the Defendants at [2(g)] of their further and better particulars dated 6 October 2023. In relation to the oral demands, Dr Chong admitted on the stand that in 2021, he had made probably two oral demands for PHH to leave ⁹⁰ . Dr Chong conceded that he did not retract his oral demands but the fact that he made time to meet Mr Hoh to explore ways of resolving the dispute between them would cause Mr Hoh to understand that the oral demands were put on hold ⁹¹ .

98 On the stand, Mr Hoh agreed that Dr Chong’s oral demands were made in the same time period as when PHH was issuing letters of demand to him and the Precious Group ⁹² . However, the PHH Clinics did not leave the Level 12 Unit immediately, as demanded by Dr Chong ⁹³ . Even though Mr Hoh started sourcing for new premises sometime in or around June 2021, Mr Hoh did not inform Dr Chong about the intention to leave formally until his email dated 24 August 2022 ⁹⁴ . Notwithstanding clause 4.1 and 11.1 of the Shareholders’ Agreement, Mr Hoh did not inform Dr Chong in his capacity as director of PHSS about the contemplated move ⁹⁵ . Mr Hoh did not obtain Dr Chong’s input on moving the PHH Clinics to Wisma Atria or the terms of the lease agreement for the Wisma Atria premises for the PHH Clinics ⁹⁶ . Mr Hoh agreed that he and the rest of the directors of PHSS did not tell Dr Chong that PHSS was making plans to vacate the Level 12 Unit from as early as June 2021 ⁹⁷ .

99 When asked how the PHH Clinics could leave the Level 12 Unit, Mr Hoh was of the view that this could be via a termination of the Shareholders’ Agreement or where there is mutual agreement between the parties ⁹⁸ .

100 As set out above, PHH pays Precious Specialist 105% of the proportionate rental costs for its Use Proportion of the Level 12 Unit pursuant to the Shareholders’ Agreement and clause 16 provides for the mechanisms by which the agreement can be terminated lawfully. The evidence above does not demonstrate that the co-sharing arrangement as embedded in the Shareholders’ Agreement was lawfully terminated by mutual agreement or that the Claimants’ vacation of the premises was done by mutual agreement. While Dr Chong may have orally demanded the Claimants to leave the premises sometime in June 2021, it was clear from the parties’ previous course of conduct in relation to such demands that the termination of the co-sharing arrangement including the period by which the Claimants would leave was something to be worked out between the parties in accordance with Clause 16.1 of the Shareholders’ Agreement. The Claimants failed to come to an agreement with the Defendants on this.

101 The letter of offer for a lease of #18-04/05 at Wisma Atria was accepted by Mr Hoh on 30 September 2021 ⁹⁹ . Mr Hoh could therefore have informed Dr Chong of the intended date of moving out much earlier than 24 August 2022 ¹⁰⁰ but only informed Dr Chong of the move after the Wisma Atria premises were ready for the move ¹⁰¹ . Other than alleging that there was no need to inform the Defendants earlier, no reason was offered for not discussing the intended date of moving out with the Defendants. In this regard, Mr Hoh conceded that no formal notice to vacate the Level 12 Unit was given ¹⁰² .

102 While Mr Hoh did not inform Dr Chong about the move, he disagreed that there was deliberate withholding of information. Mr Hoh had informed their doctors and dentists and believed that Dr Chong would have been aware of the move. While they may have wrongly presumed that Dr Chong knew, they did not deliberately withhold the information ¹⁰³ . By then the relationship had fractured to an extent where they hardly spoke and he did not think that Dr Chong would be constructive in the arrangements about moving out ¹⁰⁴ .

103 In regard to the giving of notice, Dr Chong conceded that he heard from the dentists in May 2022 that PHH was intending to move out ¹⁰⁵ . However, Dr Chong was of the view that this should not constitute notice as locums would not be given the right to communicate on behalf of the company ¹⁰⁶ . In any event, the dentists did not specifically tell him when PHH was moving out ¹⁰⁷ . In this regard, I agree with the Defendants that there was no notice by the Claimants and that informal indications by the doctors and dentists about the impending move do not amount to notice.

104 The Claimants also refer to an email sent by Dr Chong to Mr Hoh on 20 July 2022 that the Claimants “vacate the [Level 12 unit] immediately” in its pleadings ¹⁰⁸ but this email was not adduced in support of this allegation.

105 I had earlier found that there was no Notice Period Implied Term. The issue was therefore whether there was a legal basis for the Claimant’s termination of the co-sharing arrangement and vacation of the Level 12 Unit. There is no evidence that the Claimants responded to Dr Chong in respect of his oral demands or regarded such demands as acting in repudiatory breach of the Shareholders’ Agreement. There is no reference in Mr Hoh’s email dated 24 August 2022 explaining why they are leaving and no reference to the legal basis for their decision to leave or to the alleged threats from Dr Chong ¹⁰⁹ . Even if the relationship had broken down by then, the Claimants should inform the Defendants that they agree to vacate the premises and work out with the Defendants the date by which the Claimants would leave the premises in accordance with Clause 16.1 of the Shareholders’ Agreement. The Claimants did not do so. There was therefore no agreement between the parties in respect of the vacation of the premises.

106 In the circumstances, I find that the Claimants have breached the Shareholders’ Agreement by vacating the premises without the agreement of the Defendants. The allegation that the Claimants vacated the premises in repudiatory breach of the terms of the Shareholders’ Agreement is pleaded at [18(e)] of the Defence and Counterclaim. Even in the absence of the Notice and Reinstatement Implied Term, there was no legal basis for the Claimants’ vacation of the Level 12 Unit, given that under clause 4.1 of the Shareholders’ Agreement, the business of PHSS was, unless and until the shareholders otherwise agree, confined to the operation of the dental clinic and 2 specialist clinics at the Level 12 Unit. Pursuant to clause 4.5(b) of the Shareholders’ Agreement, PHH shall pay Precious Specialist 105% of the proportionate rental costs for its Use Proportion of the Level 12 Unit. Use Proportion is defined, in the case of PHH, as approximately 28% of the entire Level 12 Unit, provided always that such proportion may be amended by mutual agreement between the parties in writing. Given that there was no written agreement between the parties to amend this proportion to zero or to allow for the vacation of the business of PHSS from the Level 12 Unit, the Claimants have, by vacating the Level 12 Unit, acted in breach of the Shareholders’ Agreement.

107 The Defendants claimed that as a result of the repudiatory breach of the terms of the Shareholders’ Agreement and the implied terms, they have suffered loss or damage in the form of

108 I had earlier held that the Claimants’ vacation of the premises was a breach of the Shareholders’ Agreement. I will now proceed to assess the damages suffered by the Defendants as a result of the breach of the Shareholders’ Agreement.

109 The quotation relied on by the Claimants issued by Mr Ang Swee Heng of Innerglow Design Pte Ltd dated 16 April 2024 amounted to $3,379.00. Mr Ang claimed that item 1.1 of the quotation relating to the dismantling of 2 sets of surgery lamp and the termination of the light point was no longer needed as a specialist had already dismantled the surgery lamp and terminated the light point ¹¹¹ . As for item 1.2 in relation to the termination of water inlet point for 2 sets of dental chairs, he agreed that he did not quote for the entire set of piping related to a dental chair such as the 22 mm cold water pipe, 40 mm UPVC drainage pipe, 40 mm UPVC suction pipe, 22 mm compressed air pipe and his costs would increase if he had to carry out all the works for the closing of such pipes ¹¹² . He was unable to state how much his quote would have been ¹¹³ . He did not quote for terminating the water inlet point at the third room ¹¹⁴ but estimated that it would cost $500 ¹¹⁵ . He also did not quote for the closing up of a hole in the wall after an X-ray machine was removed from the wall ¹¹⁶ . However, he estimated that it should be less than $1,000 ¹¹⁷ .

110 I was unable to place much reliance on the quotation issued by Mr Ang for various reasons. First of all, Mr Ang agreed that a large part of his business is in home renovation ¹¹⁸ . There is no mention of medical projects on his home page and the portfolio on his website were all residential projects ¹¹⁹ . Mr Ang conceded that he has never done medical or dental projects ¹²⁰ . Mr Ang’s evidence is that he had been given photographs and approached on 16 April 2024 to quote for the items described ¹²¹ . He did not go to the premises before providing a quote because he felt that the repair works were minor ¹²² . However, his lack of experience in renovating medical or dental clinics and his inability to state how much his quote would have been if he had to carry out all the works for the closing of all pipes related to a dental chair meant that there was no evidence from the Claimants in relation to the closure of such pipes in repairing the damage caused by the Claimants. Secondly, his quotation was incomplete given that he had only quoted for reinstatement works for 2 rooms when there were at least three rooms for which there were holes in the ceiling, wall and floor requiring reinstatement works, from the photographs he was given ¹²³ . Thirdly, his quotation was issued only in 2024, long after the event. As he was not given a time frame within which the works had to be completed ¹²⁴ , he was unable to say whether he would charge for urgent work ¹²⁵ . Mr Ang also conceded that the quotation he provided did not take into account the fact that he had to work after office hours and that it would increase after taking that into account ¹²⁶ . Mr Ang testified that he would charge 1.5 times for having to work between 7 p.m. and 7 a.m. ¹²⁷ .

111 In the circumstances, I was of the view that it would be more reliable to rely on the evidence of Dr Chong in setting out the works needed to repair the damage caused and the reinstatement cost involved.

112 On the stand, Dr Chong went through every room for which he claimed PHH had reinstatement obligations and that he was claiming damages for in the Level 12 Unit ¹²⁸ .

113 First, Dr Chong stated that there was minimal damage to GYN 18.6 and stated that he was not claiming for the damages there ¹²⁹ . However, he subsequently claimed $1,000 for GYN 18.6 ¹³⁰ .

114 In respect of LL 10.6 and KR 12.71, Dr Chong stated that he incurred minimal reinstatement costs of $1,000 to $2,000 for LL10.6 and KR 12.71 ¹³¹ .

115 In respect of DIRTY LAB 7.35 ¹³² , Dr Chong stated that the reinstatement works needed would be to repair and reconnect the pipes to their own vacuum and compressor which the Defendants would need three months to order ¹³³ .

116 For XRAY 7.87, Dr Chong stated that they did not use the room thereafter as they had a second set of equipment. Hence, they merely patched it up which costs about $1,000 to $2,000 ¹³⁴ .

117 For CKM 13.2, Dr Chong wanted to claim reinstatement to bare bones as that was what they did ¹³⁵ . He tore down the L-shape partition and redid the boundary, making it a straight line and therefore had to redo the entire lead lining ¹³⁶ . Dr Chong claimed that the partition was erected on the dentists’ request which he accommodated as the dentists were out of contract and he was helping PHH to retain the dentists ¹³⁷ . He subsequently redid both rooms completely for his own business purposes ¹³⁸ . He was not sure if the re-positioning of the wall would have cost $5,000 to $10,000 ¹³⁹ . For CKM, other works would include repairing the hole in the wall and the hole in the ground, with CKM’s room having less damage than CLL’s room ¹⁴⁰ . However, he also had to remove the additional cabinets in CLL’s room which CLL had requested for, as it would otherwise be too cluttered ¹⁴¹ . Dr Chong conceded that it was not part of PHH’s reinstatement obligation to repair the lead lining ¹⁴² . Dr Chong agreed that there was no need to remove the partition wall in order for the rooms to be fit for purpose to carry on business ¹⁴³ .

118 For PDS 14.95, the damage was similar to that captured in 5BAEIC 436 in that there was a hole in the ceiling, a hole in the wall and a hole in the floor ¹⁴⁴ . For AK 13.42, the condition was similar to PDS 14.95. However Dr Chong tore the room down to fulfil his original renovation vision for Level 12 before PHH requested to share the space ¹⁴⁵ .

119 In respect of DENTAL OT/XRAY 18.3 ¹⁴⁶ which is a sterile room, Dr Chong stated that PHH’s reinstatement obligation would include repairing the holes in the wall and ceiling and floor ¹⁴⁷ , restoring the sterile chain and replacing the theatre light whose ownership is disputed ¹⁴⁸ . Although the opportunity was given to Dr Chong, he was unable to say what exactly was needed to restore the sterile chain besides patching up the holes in the wall, ceiling and floor ¹⁴⁹ . During re-examination, Dr Chong stated that to restore the sterile chain, the entire theatre would need to be thoroughly cleaned and checked which would cost an additional $5,000 ¹⁵⁰ .

120 Based on Dr Chong’s evidence, the reinstatement costs for the damage to GYN 18.6, LL 10.6, KR 12.71 and X-ray 7.87 amounted to a maximum of $7,000. In respect of DIRTY LAB 7.35, Dr Chong did not give evidence on the reinstatement costs needed. Mr Hoh had given evidence that the air compressor and air suction pump removed from the room belonged to them but that there was another compressor left behind in the Premises ¹⁵¹ . Dr Chong did not give evidence on whether the compressor could be used for the functioning of the Level 12 Unit. For CKM and CLL, Dr Chong conceded that there was no need to remove the partition wall to restore the rooms to working condition and that the works done for both rooms were to suit his own business purposes. Dr Chong did not attribute any sum to the reinstatement works, the expense of which should be borne by the Claimants. This was also the case for AK 13.42, which room was torn down instead of reinstated to fulfil Dr Chong’s original renovation for Level 12. While the Defendants should be liable for the damage to the Premises and the costs for reinstating the same to good working condition, which would have put the Defendants in the position that they would have been in had the Shareholders’ Agreement been performed, there is no reason why the Defendants should be liable for the betterment works to the Premises. No costs were attributed to the reinstatement of PDS 14.95 or DENTAL OT/XRAY 18.3 in respect of patching up the holes in the ceiling, wall and floor, although an additional $5,000 was attributed to the restoration of the sterile chain.

121 In relation to the cost of reinstatement, Dr Chong relied on a quotation from Hwa Koon Engineering Pte Ltd (“Hwa Koon”) dated 18 September 2022 ¹⁵² in the sum of $83,460, which he said superseded the one dated 14 September 2022 ¹⁵³ in the sum of $56,175 ¹⁵⁴ . Based on the evidence above, it was clear that several items in the quotation did not relate to repair of the damage caused by the Claimants.

122 Dr Chong testified that the sum in the quotation was allocated as the reinstatement works were part of a larger renovation project for Level 12 of between $1 million to $2 million, the majority of which would not be related to the rooms and which commenced on 2 September 2022 and ended sometime in June 2023 ¹⁵⁵ . After checking his photographs, Dr Chong clarified that the emergency works commenced on the night of 2 September 2022 and that it took a week to get up and running. The contractors commenced work on CLL and CKM’s room on 2 October 2022 and AK was worked on between 18 and 29 October 2022. Given that the workers had approximately 3 hours per night to work, he estimated that the PHH reinstatement works would have completed sometime between 29 October and 4 November 2022 ¹⁵⁶ . According to Dr Chong, the immediate rectification works focused on the DENTAL OT/XRAY, his room (which is COMMON 17.31), followed by the DIRTY LAB 7.35 and XRAY 7.87, followed by CLL, CKM, LL and KR with AK being done only some months later ¹⁵⁷ . Based on Dr Chong’s evidence, the immediate rectification work for the premises to be up and running, which focused on DENTAL OT/XRAY, his room (which is COMMON 17.31), DIRTY LAB 7.35 and XRAY 7.87, took only a week. As set out earlier, the works to CLL and CKM relating to the removal of the partition wall amounted to betterment work and not repair work which should be attributed to the Claimants. A similar reasoning applies to the works for AK.

123 While Dr Chong confirmed that the works set out in the quotation related only to reinstatement work that PHH was obligated to undertake upon their departure ¹⁵⁸ , an examination of the individual items in the quotation did not support this. First of all, there is no evidence that the amount allocated to preliminaries such as design and layout submission, project insurance or a full-time supervisor on site would have been necessary to repair the damage caused by the vacation of the premises.

124  In respect of the demolition works, Dr Chong testified that item 2(i) for dismantling and disposal of existing partition for new layout at $12,000 would involve 3 rooms: CLL, CKM and AK ¹⁵⁹ . Item 2(i) included the moving of a glass wall for AK to comply with the original design which required special contractors ¹⁶⁰ . Item 2(ii) for dismantling and disposal of existing carpentry fitments at $4,000 would involve CLL and CKM ¹⁶¹ . Item 2(ii) included the removal of CKM’s built-in desk which had to be removed due to the re-positioning of the partition wall between CLL and CKM ¹⁶² . Item 2(iii) for floor hacking and removal of affected services at $3,000 would involve CKM, CLL, PDS, KR and AK and possibly LL ¹⁶³ . Dr Chong stated that PDS was converted to a medical room. Hence everything had to be stripped off, including all the pipes and the furniture in the room ¹⁶⁴ . Dr Chong stated that reinstatement to a reasonable condition for rental to future tenants include removing anything which is unnecessary and excessive including excessive cabinetry ¹⁶⁵ as well as floor hacking such as removing the metal plates to terminate the pipes and seal up or reposition the holes ¹⁶⁶ . In relation to the CLL and CKM rooms, floor hacking and removal of affected services were needed as the chairs were out of alignment with the repositioning of the partition wall ¹⁶⁷ . Similarly, floor hacking and removal of affected services were needed for KR as the senior Indian dentist who previously occupied the room had wanted the chair to be positioned in a favourable position for religious reasons but the chair was in a wrong position from a technical point of view ¹⁶⁸ . The dental chair faced the door which would expose female patients wearing short skirts ¹⁶⁹ . The cost was incurred for AK as AK was repurposed ¹⁷⁰ . It was incurred for LL as LL was converted to an ENT room for medical use, which was the original plan before PHH Clinics moved in ¹⁷¹ .

125 As set out earlier, none of these items related to repair of the damage caused by the Claimants. Item 2(i) related to works for a new layout to comply with Dr Chong’s original renovation plan and did not relate to repair of damage allegedly caused by the Claimants. Item 2(ii) related to removal of fixtures which was related to the re-positioning of a partition wall, which did not relate to damage repair. Item 2(iii) related to re-positioning works, re-purposing works and works to comply with the original renovation plan, instead of works required to repair the damage caused. While Dr Chong stated that reinstatement to a reasonable condition for rental to future tenants include removing anything which is unnecessary and excessive including excessive cabinetry ¹⁷² as well as floor hacking such as removing the metal plates to terminate the pipes and seal up or reposition the holes, the evidence was that the Premises could not be sub-let. Hence, there was no evidence that such works were done so that the Premises could be rented to future tenants. In the circumstances, these items were disallowed.

126 Item 3.1(i) of the quotation involved making good 50 m2 of existing vinyl flooring at $6,000 ¹⁷³ . Dr Chong guessed that this would involve making good a portion of the floors in most of the rooms ¹⁷⁴ . Item 3.1(ii) involved plastering and painting of affected wall at $4,000. Dr Chong guessed that this would involve all the walls that are affected ¹⁷⁵ . Item 3.1(iii) involved making good existing false ceiling at 50 m2 at $4,000. Dr Chong testified that this would be to patch up the holes in the ceilings in respect of all the affected rooms where CLL, PDS, AK and Common had TVs in their ceilings and in the DENTAL OT/XRAY where the ceiling lights were removed ¹⁷⁶ . However, Dr Chong was unsure if LL was involved. Item 3.1(iv) involved making good existing raised floor at $2,000. Dr Chong testified that this involved LL, KR, PDS and AK. For KR, Dr Chong stated that the room was not repurposed as a dental room until a year later and was left unoccupied or as an admin area in the interim. Hence the floor had to be sealed up ¹⁷⁷ . For LL, this was converted to an ENT room so the raised flooring had to be removed, the pipes had to be cut and sealed and the raised flooring replaced ¹⁷⁸ . It was unrelated to the conversion of use as the hole had to be sealed up ¹⁷⁹ . Similarly, PDS was repurposed to a medical room but the hole in the floor nevertheless had to be sealed ¹⁸⁰ . AK was repurposed specifically to the current high-tech lab but Dr Chong disagreed that the works were needed for such conversion ¹⁸¹ . CLL and CKM were used as dental rooms and the reason for making good the existing raised floor was because the chair was in the wrong position ¹⁸² and he made a decision to move it. As the works in items 3(i) to 3(iv) related to the damage left behind by the Claimants upon their vacation of the Premises, I find that the Defendants have made out the need for these items in the sum of $16,000.

127 Item 4 of the quotation related to M&E Works. Item 4.1 related to the Electrical System where item 4.1(i) related to the termination of 20 existing power points at $4,000. Dr Chong stated that these were necessitated because the rooms were repurposed and partitions were moved ¹⁸³ . Item 4.1(ii) related to the termination of existing light switches and lighting points at $5,000. Dr Chong stated that this was due to the fact that the dentists had requested for excessive lighting points and that he had left it to the contractor ¹⁸⁴ . Item 4.1(iii) related to termination of existing data point at $2,000. Dr Chong stated that this was due to the moving of partitions where the data points would be in the wrong position and there may have been excessive data points ¹⁸⁵ but he did not know how much of the $2,000 related to the termination of excessive data points ¹⁸⁶ . Item 4.1(iv) related to the supply and installation of new UFO and exit light at $1,200. Dr Chong was unable to say what this item entailed ¹⁸⁷ . As set out earlier, the moving of partitions was undertaken to comply with Dr Chong’s preferred configuration or original design plan and was unrelated to the damage caused by the Claimants. As none of these works in item 4.1 related to repair of the damage caused by the Claimants, the related costs for such works are disallowed.

128 Item 4.2 in the quotation was in respect of the ACMV system where $6,000 was quoted for A&A to existing air con diffusers. Dr Chong stated that these relate to CLL, CKM, AK but he was not sure if it involved PDS ¹⁸⁸ . In relation to CLL, the alteration and amendments (“A&A”) to the existing air con diffusers were necessary because the room configuration changed and they installed a special diffuser in the small office for CKM ¹⁸⁹ . The work therefore related to the moving of the partition wall for CLL and CKM ¹⁹⁰ . The work was required in respect of AK due to the movement of the partitions back to the original position ¹⁹¹ . However, Dr Chong was not sure if such works involved PDS ¹⁹² . Again, these works related to the movement of the partition walls and did not relate to damage repair. This item is therefore disallowed.

129 Item 4.3 in the quotation related to the fire protection system where $6,000 was quoted for A&A of existing sprinkle for new layout. Dr Chong stated that these involve CLL, CKM and AK but was not sure if it involved WC. The work was required due to the moving of the partitions ¹⁹³ and as such, did not relate to damage repair. This item is therefore disallowed.

130 Item 4.4 in the quotation related to plumbing and sanitary where $5,000 was quoted for A&A to existing plumbing and sanitary. Dr Chong stated that such works related to CLL, CKM, DIRTY LAB, LL, KR, PDS, AK as well as XRAY 7.87, COM 2 0.81 ¹⁹⁴ , COMMON 17.31 and the DENTAL OT/XRAY. Dr Chong stated that both ends of the pipes carrying water, air and data would have to be sealed ¹⁹⁵ . As these works related to the damage left behind by the Claimants upon their vacation of the Premises, I find that the Defendants have made out the need for this item in the sum of $5,000.

131 Item 5 in the quotation related to professional services. Item 5(i) was LEW inspection and turn on where $1,800 was quoted. Item 5(ii) was M&E inspection for reinstatement works where $4,000 was quoted. Dr Chong stated that the works would apply for all the rooms ¹⁹⁶ . As LEW inspection related to electrical works and there is no evidence as to why M&E inspection for the works relating to damage repair would be necessary, this item is disallowed.

132 On the stand, Dr Chong had estimated the repair costs in respect of the damage caused to GYN 18.6, LL 10.6, KR 12.71 and XRAY 7.87 in the sum of $7,000 and restoration of the sterile chain in DENTAL OT/XRAY 18.3 at $5,000. Given that similar damage was caused to DENTAL OT/XRAY 18.3, CKM, CLL, AK 13.42 and PDS 14.95 which would have necessitated similar repair costs as those for LL and KR, I am of the view that a sum of $21,000, corresponding to the amounts at items 3 and 4.4 of the quotation from Hwa Koon was a reasonable sum to award in respect of the damages for repairing the damage caused by the Claimants in vacating the premises in breach of the Shareholders’ Agreement.

133 While the Defendants claimed that they lost approximately $110,667.96, Dr Chong was unable to explain how this figure was arrived at and reckoned that it would be about 6 days of lost earnings, based on annual earnings of $4.2 million ¹⁹⁷ . However, there was no further evidence on how the 6 days of lost earnings were derived and Dr Chong’s bare assertions that there were annual earnings in the sum of $4.2 million were not supported by any documents. In any event, even if Dr Chong did suffer loss of earnings, no evidence was adduced as to how this amounted to loss suffered by the Defendants.

134 In relation to how long the repair works took, Dr Chong’s evidence was inconsistent. While Dr Chong testified that it had taken a week to get up and running ¹⁹⁸ , Dr Chong had initially estimated that the reinstatement works lasted for a period of two weeks to a month ¹⁹⁹ . In so far as his inability to function related to the removal of equipment by the Claimants, his evidence was also inconsistent. Although he testified that he had required three months to order his own equipment to reconnect the pipes ²⁰⁰ , he also stated that he managed to replace the vacuum pumps within one to two weeks ²⁰¹ and that he was back in business within two to three weeks ²⁰² . In the circumstances, there was no reliable evidence as to the duration of the repair works attributed to the Claimant’s vacation of the premises which may form the basis for calculating any alleged loss of earnings.

135 Dr Chong testified that after some rooms were repurposed, four rooms were used as dental rooms, being COMMON, DENTAL OT/XRAY, CLL and CKM ²⁰³ . He did not actively go out to convince dentists to join him as his original plan was always to have four rooms and get one conditional registration. As it was a highly specialised practice, getting young people in was not an option, although he did get one dentist on a shared revenue basis where Dr Chong took 45% of his revenue ²⁰⁴ . The dentist joined Dr Chong on 2 January 2024. Again, no evidence was adduced as to what were the losses suffered on the part of the Defendants.

136 Dr Chong claimed in his affidavit that he had to supervise the renovations and that the Defendants were not given sufficient time to employ additional medical professionals and/or dentists who could use the space in a similar revenue-generating manner ²⁰⁵ . However, on the stand, Dr Chong gave evidence that while he stayed back every night and provided food for the contractors, he was doing his own paperwork and was not supervising the works because that was not his responsibility ²⁰⁶ . Hence, it is unclear why the Defendants should be compensated in this regard. On the stand, Dr Chong also stated that it was not his position that the Claimants were under an obligation to give him time to hire or get more dentists to come in to generate revenue ²⁰⁷ . In the circumstances, the basis of this claim fell away.

137 As for the loss of rental and service charge of $174,070.05 as pleaded, Dr Chong’s affidavit stated that the Defendants had lost three months’ worth of rent and service charge in accordance with the Use Proportion in the sum of $161,915.71 being $50,441.03 plus 7% GST x 3 ²⁰⁸ . In support of this, Dr Chong referred to the Use Proportion spreadsheet agreed on by the parties which indicates the deposit paid as $178,713.21. On the stand, Dr Chong stated that he wished to claim the amount stated in his affidavit at $161,915.71 ²⁰⁹ .

138 Damages have to be proved. I had earlier found that there was no Notice Period Implied Term which the Defendants may rely on to argue that the lack of notice meant that they had lost the rent and service charges which should have been paid during the notice period. Just because the Reimbursement Sum is calculated as a proportion of the 3-month rental deposit paid pursuant to the Tenancy Agreement or Lease Agreement does not mean that there would be loss of 3 months’ rent and service charge or that the Reimbursement Sum would be treated as damages attributed to the Claimant’s early vacation of the premises. Based on the evidence before the Court, the Defendants chose to renovate the Premises shortly after the vacation of the Premises by the Claimants as part of a larger renovation project for Level 12. Other than the costs of repairing the damage to the various rooms caused by the Claimants’ vacation of the premises, I am unable to conclude that the Defendants lost three months’ worth of rent and service charge. The Defendants have failed to demonstrate how the Claimant’s vacation of the Level 12 Unit led to losses suffered on the part of the Defendants.

139 On the stand, Mr Hoh claimed that he made payment of $154,743.58 based on two invoices issued by Precious Surgery Centre ²¹⁰ . The first was dated 31 May 2019 described as deposit of managing facilities for the sum of $49,965.16 ²¹¹ and the second was dated 14 June 2019 and described as additional deposit of managing facilities for the sum of $104,778.42 ²¹² . However, Mr Hoh was unable to explain how this sum amounted to the product of PHH’s Use Proportion of the Level 12 Unit and the total amount of security deposit paid by Precious Specialist to the landlord pursuant to the Lease Agreement ²¹³ . He surmised ²¹⁴ that the figure could have been based on a spreadsheet of the Use Proportion that is different from the one before the court ²¹⁵ .

140 Clause 4.5 of the Shareholders Agreement states

141 There is no express obligation in Clause 4.5 on when the security deposit must be returned to PHH. Hence, there is no breach of Clause 4.5.

142 I had earlier made a finding that there is no implied term that the Reimbursement Sum be returned to the Claimants within a reasonable time of them vacating the premises. Hence, the Claimants have failed to establish the pleaded basis for the return of the Reimbursement Sum.

143  As the Claimants have failed to establish that there is a breach of the Shareholders’ Agreement, no damages are payable.

144 In the circumstances, the Claimants’ claim against the Defendants is dismissed. In respect of the Defendants’ counterclaim, the Claimants are to pay the Defendants damages assessed in the sum of $21,000 with interest at 5.33% p.a. from the date of the originating claim to the date of judgment.

145 The parties are to file and exchange written submissions on the issue of costs (limited to 10 pages) within 14 days of this judgment.