1 In HC/S 435/2019 (“Suit 435”), the claimant (“DKI”) is an investment holding company incorporated in the British Virgin Islands (“BVI”). The first defendant is Fullerton Capital Limited, a company also incorporated in the BVI (“FCL(BVI)”). At the material times, there were at least four entities with the name “Fullerton Capital Limited” or “FCL”, ie, FCL(BVI), an entity incorporated in the United Kingdom (“FCL(UK)”), an entity in Hong Kong first incorporated as FCM International Ltd (“FCL(HK)”), and an entity in the Cayman Islands (“FCL(Cayman)”). ¹ The second defendant (“Raymond”) was at all material times the controlling mind and will of the FCL entities, as well as of Qilin World Capital Limited (“Qilin”) and Carrington Capital Limited (“Carrington”). ² Where the parties or documents do not refer to a specific FCL entity, I will refer to that entity as “FCL”.

2 The first third party (“Julius”) had introduced DKI and FCL to each other to explore potential loan arrangements. ³ The second third party (“UOBKH”) is a brokerage firm which DKI and FCL(BVI) held brokerage accounts with (respectively, “DKI A/c” and “FCL(BVI) A/c”). ⁴ The third third party (“Morgan”) was the Managing Partner of Qilin and FCL(BVI). ⁵

3 The dispute arose from a non-recourse loan between DKI and FCL(BVI) under which DKI provided 7.2m shares (“Shares”) that it held in the Stars Group Inc (“TSG”) as collateral for the loan (“Loan Transaction”). The transaction was documented in three main agreements with FCL, which turned out to be FCL(BVI). The first was the Stock Secured Financing Agreement of 10 August 2017 (“SFA”), the principal agreement between FCL as lender and DKI as borrower, which governed the terms of the loan. The second was the Control Agreement of 10 August 2017 (“Control Agreement”), an ancillary agreement between DKI and FCL governing control of the Shares. The third was the Custody Agreement signed by Tang Hao (DKI’s director) and Raymond (on FCL’s behalf) (“Custody Agreement”). The purport of the Control and Custody Agreements was to ensure that once the Shares were placed in the DKI A/c, they would immediately come under the control of “FCL”. ⁶

4 Essentially, DKI claims it was misled into believing that it had entered into the SFA and Loan Transaction with FCL(UK), when in fact the FCL that executed the SFA (and other documents) was FCL(BVI).

5 Ricky, DKI’s representative, attested as follows.

6 In early 2017, Tang Hao authorised Ricky to seek financing for DKI to be secured by its shares in TSG. He informed Ricky that the shares were meant to be a long-term investment and were not meant to be sold, they were only to be leveraged to raise capital for further investments, and any financing arrangement had to be entered into with a regulated entity. Ricky’s initial attempts to obtain financing from global institutions and banks failed. In July 2017, Ricky came to know Julius (who was employed by SIMCOE Asia Group Inc or “SIMCOE”). Julius proposed private lenders such as SIMCOE, Qilin and Carrington. However, Ricky did not find the terms offered by these entities to be satisfactory. Particularly, he informed Julius that DKI wished to transact with a regulated entity, which SIMCOE, Qilin and Carrington were not. ⁷

7 On around 1 August 2017, Julius informed Ricky that Raymond and Morgan had another entity, “Fullerton Capital Limited”, that could be a potential lender to DKI. Ricky emphasised to Julius that DKI wanted a lending entity that was “more proper”. ⁸ After speaking to Morgan, Julius informed Ricky that FCL was regulated by the United Kingdom Financial Conduct Authority (“FCA UK”) and that FCL was controlled by Raymond. Based on Julius’s representation, DKI thus believed that FCL referred to FCL(UK) – an entity incorporated in the United Kingdom (“UK”) and regulated by the FCA UK. This formed the basis of the “Identity Representation”. ⁹

8 When Julius informed Ricky that FCL was a regulated entity based in the UK and maintained a website, Ricky conducted a check on the Financial Services register (“FS Register”) on the FCA UK website, which showed FCL was registered with the FCA UK. He also visited the FCL website with the domain name of www.fullertoncapital.com (“FCL Website”). The FCL Website stated that FCL was “an Appointed Representative of Met Facilities LLP (“MET”) … which is authorised and regulated by the [FCA UK]” and reflected FCL’s address as an address in the UK. ¹⁰

9 After Ricky indicated DKI’s interest in transacting with FCL (which he believed to be FCL(UK), regulated by the FCA UK), on about 4 August 2017, Julius emailed a draft term sheet dated 3 August 2017 (“3/8/17 Term Sheet”) for the Loan Transaction. The 3/8/17 Term Sheet displayed a logo of FCL, which was the same logo displayed on the FCL Website. ¹¹

10 DKI thus claims the Identity Representation was reinforced by the FCL Website, FS Register, and the identical FCL logo found on the 3/8/17 Term Sheet and the FCL Website.

11 Next, DKI claims the defendants made the “Financing Representation”, ie, that they and/or Morgan further represented through Julius to Ricky that FCL had sufficient independent finances to disburse the intended loan to DKI and would not sell the pledged Shares to disburse the loan. ¹²

12 Prior to executing the SFA, Ricky informed Julius that it was important to DKI that the loan be funded on a “delivery versus payment” or “DVP” basis, ie, the loan moneys would be released by the lender to DKI simultaneously with the delivery of the pledged security/collateral by DKI to the lender. This necessarily meant the lender had its own independent resources to disburse the loan and would not have to sell the pledged security/collateral to do so. Julius understood the meaning and importance of a loan being funded on a DVP basis and he represented to Ricky that the loan would be funded on such a basis. ¹³

13 The Financing Representation was repeated in the 3/8/17 Term Sheet, which stated the TSG shares would be “pledged to the Lender as security” and the “Lender shall not, at any time, short sell the securities of [TSG]”. It was also reflected in the draft SFA (and the eventual signed SFA) in cl 2(f) which provided for a “simultaneous exchange” of the loan amount and the shares. ¹⁴

14 Relying on the Identity and Financing Representations (collectively, “Representations”), DKI executed the SFA and Control Agreement with FCL (which it understood to be FCL(UK)) on 10 August 2017. Under the SFA, DKI would pledge the 7.2m Shares, then worth around CAD 130m, for the loan to be disbursed. Pursuant to cl 2(d) of the SFA, there was a 12-month prepayment lockout period (“Lockout Period”). ¹⁵ Unbeknownst to DKI, the entity that was the counterparty in the SFA and Control Agreement was FCL(BVI).

15 On around 23 August 2017, DKI transferred the Shares to the DKI A/c, in which the Shares were to be held pursuant to the SFA and Control Agreement. However, no loan amount was disbursed to DKI then, and Ricky thus followed up with Julius in around end-August to enquire about the delay in the loan disbursement. ¹⁶

16 Again, unbeknownst to DKI, on 30 August 2017, just seven days later, the defendants caused the Shares to be transferred from the DKI A/c to the FCL(BVI) A/c. ¹⁷ This was made possible because (and it is undisputed that) Tang Hao and Raymond had pre-signed an undated Share Transfer Instruction form (“STI”) each respectively for DKI and FCL. The forms were sent by FCL to UOBKH on around 24 August 2017. It was undisputed that pursuant to the DKI STI, DKI instructed UOBKH to accept shares into the DKI A/c, and pursuant to the FCL STI, FCL(BVI) instructed UOBKH to receive the shares from the DKI A/c into the FCL(BVI) A/c. ¹⁸

17 It was undisputed that FCL subsequently issued to DKI Closing Statements on 24 August, 30 August and 20 September 2017 (“1st Closing Statement”, “2nd Closing Statement” and “Final Closing Statement” respectively). The Final Closing Statement, issued as a consolidated statement for the 7.2m Shares, superseded the earlier Closing Statements which reflected the 7.2m Shares in two tranches. Particularly, that Statement stated the “Net Loan Amount Funded” to be CAD 103,075,156.80 (“Loan Amount”) and the Spot Price being CAD 21.78 per share (or over CAD 156m for 7.2m Shares).

18 It was undisputed that: (a) FCL(BVI) sold all 7.2m Shares between 5 and 8 September 2017 for CAD 134,184,201.38 (“Sale Proceeds”); ¹⁹ and (b) after the Shares were sold, DKI received the Loan Amount in six tranches between 8 and 22 September 2017. Raymond attested that the Loan Amount was disbursed from the Sale Proceeds of the Shares. ²⁰ Ricky attested that DKI did not, at that time, know the Shares were sold to raise the Loan Amount to disburse to DKI. Thus, FCL(BVI) had breached the term under the SFA that there would be a simultaneous exchange of the Loan Amount for the Shares. Ricky claimed the remainder of the Sale Proceeds was pocketed by the defendants, Morgan and Julius. ²¹

19 As DKI was kept in the dark about the falsities of the Representations, it then serviced its repayment obligations under the SFA, based on a schedule setting out 13 interest payments to FCL from 29 September 2017 until 1 September 2020. It is undisputed that between September 2017 and December 2018, DKI made the first six interest payments totalling CAD 4,116,420 by telegraphic transfer to FCL’s bank account. ²²

20 By May 2018, the price of TSG shares had increased substantially, and the value of the Shares had risen to approximately CAD 327 million. Ricky thus emailed Morgan to enquire whether DKI could make an early repayment of the loan and redeem the Shares. Although Morgan assured Ricky over a phone call that he and Raymond would respond with a proposal, no such proposal ever came. At that time, Ricky was not in a hurry to insist on receiving an immediate proposal as the Lockout Period had not expired. ²³

21 Between November 2018 and February 2019, Ricky sent multiple emails to Morgan to follow up on DKI’s request to repay the loan and redeem the Shares, all of which went unanswered. Repeated attempts to contact persons from FCL thereafter also yielded no result. Meanwhile the FCL Website had been shut down on 26 February 2019. ²⁴

22 DKI became suspicious when it lost all contact with FCL. Ricky thus contacted UOBKH on 27 February 2019 to check on the status of the Shares. He was informed that they had been transferred to the UOBKH account of FCL, being an “offshore entity”, from as early as 30 August 2017 (when the Loan Amount had not been disbursed to DKI). One Lewis Ho, DKI’s representative, made further inquiries with UOBKH and was informed on 28 February 2019 that FCL was an “offshore company – Virgin Islands (British)”. These discoveries pertaining to FCL’s identity came as a complete shock to DKI and revealed for the first time the falsity of the Identity Representation. ²⁵

23 Immediately thereafter, on 28 February 2019, DKI’s then-solicitors in Hong Kong (“HWB”) wrote to FCL, to enquire on the whereabouts of the Shares and whether FCL had disposed of them. DKI was then unaware that the Shares had been sold by FCL(BVI) in September 2017. In that letter, DKI stated that it could pay the next interest instalment due on 1 March 2019 (“1/3/19 Instalment”) but was withholding payment due to its concern that FCL had disposed of the Shares and that it intended to repay the loan subject to FCL returning the Shares to DKI. ²⁶

24 On 4 March 2019, DKI received an unsigned Notice of Default from FCL (“4/3/19 Default Notice”) stating that the SFA would be terminated if the 1/3/19 Instalment was not paid. ²⁷ Subsequent correspondence ensued between HWB and JLC Advisors LLP (“JLC”), FCL’s then lawyers. On 14 March 2019, JLC informed HWB that FCL had elected to terminate the SFA on account of DKI’s failure to pay the 1/3/19 Instalment. ²⁸ On 20 March 2019, DKI’s then Singapore lawyers, Oon & Bazul LLP (“O&B”) responded to say that FCL’s purported termination of the SFA was a repudiatory breach of the SFA, and that DKI thus elected to terminate the SFA as a result of FCL’s breach. ²⁹

25 On 26 April 2019, DKI commenced Suit 435. It claims fraudulent misrepresentation against the defendants, or alternatively under s 2 of the Misrepresentation Act (Cap 390, 1994 Rev Ed) (“Misrepresentation Act”) against FCL(BVI), pertaining to the Representations; and for wrongful termination or breach of the SFA against FCL(BVI). DKI further claims conspiracy (by lawful and unlawful means) against the defendants, essentially to cheat DKI and deprive it of its Shares by selling them and using the Sale Proceeds to fund the disbursement of the Loan Amount to DKI. On 6 May 2019, the court granted a worldwide freezing order against the defendants and Morgan. ³⁰ In the course of discovery in Suit 435, DKI discovered that FCL(BVI) had sold the Shares before disbursing the Loan Amount to DKI. ³¹

26 It was undisputed that in November 2018, FCL(UK)’s name was changed to Fullerton Asset Management Limited. ³² In around March or April 2022, Raymond procured the dissolution of FCL(BVI) while Suit 435 was ongoing and the freezing order remained in force, and concealed this from DKI. When DKI discovered this in July 2022, it commenced proceedings in the BVI to restore FCL(BVI) to the BVI Register of Companies. This application was granted in October 2022. FCL(BVI) is currently in liquidation. ³³

27 In its Defence, FCL(BVI) denies it was wholly owned or managed by Raymond, claiming instead that it was managed by Morgan, who also at all times managed the Loan Transaction. Essentially, FCL(BVI) denies it made the Representations (via Julius) and claims that DKI knew FCL(BVI) would sell the Shares to raise funds to advance the loan to DKI. It also claims that Julius was never authorised to make any representations on its behalf, but that he was instead DKI’s agent. ³⁴ Essentially, FCL(BVI) denies DKI’s claims against it.

28 Upon recognition of FCL(BVI)’s British Virgin Islands liquidation as a foreign main proceeding on 8 April 2024 (in Re Fullerton Capital Ltd (in liquidation) [2024] SGHC 155), the continuation of proceedings concerning FCL(BVI) was automatically stayed under Article 20 of the UNCITRAL Model Law on Cross-Border Insolvency. On 24 November 2025, the court granted a carve-out for DKI to pursue Suit 435 against FCL(BVI), subject to the undertaking that FCL(BVI) and its liquidators “be bound by any judgments, orders, and findings concerning [FCL(BVI)’s] liability to [DKI]”. The carve-out expressly permits DKI’s claims against FCL(BVI). FCL(BVI) was not given permission to pursue any claim although it had initially filed a third party claim (jointly with Raymond) against Julius. FCL(BVI) took no part in the trial of Suit 435, and its liquidators undertook to be bound by the court’s findings. ³⁵

29 I set out Raymond’s version of events briefly here.

30 Raymond did not control FCL(BVI) and was merely its director. FCL(BVI) was managed by Morgan. The Loan Transaction was Morgan’s transaction, negotiated and managed by Morgan independently. Morgan made all the decisions on transactions brought in by him (including the Loan Transaction), and only informed Raymond after agreeing with external parties. Raymond’s role for Morgan’s transactions was limited to giving instructions to FCL(BVI)’s bank and stockbroker according to Morgan’s instructions. ³⁶

31 Raymond denies the Representations were made. He claims Julius was never authorised to act or make the Representations on his behalf; DKI’s preference to transact with a regulated entity was never conveyed by Julius to him; and Morgan had informed Julius that the potential lending entity was a non-regulated entity. Raymond did not instruct Morgan or Julius to make the Representations and he had no knowledge of any Representations made by them to Ricky. Raymond also did not prepare the draft SFA nor instruct anyone to send the draft SFA to DKI. ³⁷

32 DKI would have known from the SFA (particularly cl 2(f)) that FCL(BVI) would sell the Shares to raise funds to advance the loan to DKI. When the Shares were transferred from the DKI A/c to the FCL(BVI) A/c on 30 August 2017, DKI did not wait for simultaneous exchange of Shares for the Loan Amount and FCL(BVI) thus proceeded to sell the Shares. DKI had thus waived the need for simultaneous exchange and consented to FCL(BVI)’s sale of the Shares to speed up the disbursement of the Loan Amount. Moreover, FCL(BVI) could rely on cl 10(k) of the SFA and cl 9.3 of the Control Agreement (“EA Clauses”) to exclude itself from any liability to DKI. ³⁸

33 In any event, it was DKI who defaulted on the SFA. In particular, when DKI defaulted on the 1/3/19 Instalment even after FCL(BVI) issued the 4/3/19 Default Notice, FCL terminated the SFA on 14 March 2019 (see [24] above). ³⁹

34  FCL(BVI)’s dissolution in 2022 was carried out by Ms Zhou Li Hua (“Zhou”), FCL(BVI)’s then director, without informing Raymond. Raymond had ceased to be a director in FCL(BVI) with effect from 20 March 2018. ⁴⁰

35 Raymond commenced third party proceedings against Julius, UOBKH and Morgan, essentially claiming a contribution under s 15 of the Civil Law Act (Cap 43, 1999 Rev Ed) (“CLA”) should DKI succeed in its claims against him.

36 The main issues to be determined are as follows:

(a) whether FCL(BVI)’s corporate veil should be pierced;

(b) whether Julius and Morgan were authorised by the defendants to make representations to DKI;

(c) whether DKI’s claims for misrepresentations are made out;

(d) whether either party was entitled to terminate the SFA;

(e) whether DKI’s claim for conspiracy is made out;

(f) whether DKI’s actions are affected by the EA Clauses;

(g) Raymond’s third party claims; and

(h) damages.

37 I deal first with whether FCL(BVI)’s corporate veil should be pierced and Raymond be made liable for FCL(BVI)’s wrongdoing (if any).

38 The court may, in exceptional cases, pierce the corporate veil. There are two justifications for doing so: where the evidence shows that the company is not in fact a separate entity, or where the corporate form has been abused to further an improper purpose (Tjong Very Sumito v Chan Sing En [2012] 3 SLR 953 at [67]). Where the argument of alter ego is raised, the key question is whether the company is carrying on the business of its controller (Alwie Handoyo v Tjong Very Sumito [2013] 4 SLR 308 (“Alwie Handoyo”) at [96]).

39 Raymond pleads that although he was the director of FCL(BVI), he did not wholly own or control FCL(BVI); at all material times, it was managed by Morgan and acted under his instructions. Raymond further claims that he and Morgan were equal partners in FCL(BVI). ⁴¹ I disbelieve Raymond. On the evidence, I find that FCL(BVI) was carrying on Raymond’s business and was Raymond’s alter ego. Thus, FCL(BVI)’s corporate veil should be pierced.

40 Raymond was the sole director and shareholder of FCL(BVI) from 11 March 2014 (when it was first incorporated as Sansim Holdings Limited) until 19 March 2018. ⁴² He claims that on 20 March 2018, he sold FCL(BVI) to Zhou for US$1, he ceased to be its director and Zhou became the sole director of the company. However, in court, he admitted he remained FCL(BVI)’s de facto director and beneficial owner until it was wound up. ⁴³ He thus wholly owned FCL(BVI) at all material times, contrary to his initial claim (see [39] above).

41 Raymond also conceded multiple times in court, that he was the “controlling mind and will” of FCL(BVI) at all material times. ⁴⁴ This in itself is insufficient to pierce the corporate veil, as accepting otherwise would mean that the veil of every one-man company could be lifted, defeating the very purpose of incorporation (Mohamed Shiyam v Tuff Offshore Engineering Services Pte Ltd [2021] 5 SLR 188 at [71]). However, I find the degree and manner of control that Raymond exercised over FCL(BVI) demonstrate that it was a corporate extension of himself. ⁴⁵ I give a few examples.

42 First, Raymond renamed the company at will. He changed its original name to FCL(BVI). I disbelieve Raymond that this was because Morgan found “Sansim” unsuitable. ⁴⁶ There is no evidence to support his claim; he was also the controlling mind and will of all the FCL entities. He then changed its name to OXT Cap Limited on 6 March 2019, before reverting it to FCL on 15 March 2019. ⁴⁷ In his affidavit dated 30 May 2019 (“30/5/19 Affidavit”), filed to set aside the freezing order (see [25] above), he stated that he incorporated various entities or changed the names of existing entities that he owned, to “FCL” as he “wanted to use this name for [his] companies” – this included FCL(BVI), FCL(HK) and FCL(UK). He further stated that he renamed FCL(BVI) to OXT Cap Limited in March 2019 and he later renamed it FCL. ⁴⁸

43 Notably, the renaming to OXT Cap Limited in March 2019 was long after it had been purportedly sold to Zhou. This shows he continued to control the company completely. When confronted in court with his 30/5/19 Affidavit, Raymond claimed the renaming of FCL(BVI) was made by Zhou and his earlier explanation was a mistake, which I disbelieve. He could not explain why the statement in his 30/5/19 Affidavit stood uncorrected for years (if it was a mistake) despite his claim that he had wanted to rectify it. ⁴⁹ I find the affidavit recorded the truth and that Raymond sought to distance himself from the act of renaming the entity only when its significance to this dispute became apparent.

44 Raymond also confirmed in court that he retained control of FCL(BVI) through nominees, and that the individuals appearing as its directors or shareholders (including Zhou) were all his nominees. ⁵⁰ I thus reject his narrative that Zhou wound up FCL(BVI) on her own volition, given that Zhou was his nominee director and shareholder.

45 Next, Raymond instituted the internal processes that FCL(BVI)’s employees were required to follow. In his email of 15 November 2016 titled “New Process”, he set out detailed instructions on the preparation of contractual documents, specified precise amendments to the text of such documents, and allocated specific tasks to employees who answered to him. In court, Raymond accepted that he was “setting out the proper flows process” and was “very determined to set up the structure” for his entities, which included FCL(BVI). ⁵¹

46 Raymond also controlled FCL(BVI)’s finances. He was the sole signatory of its bank account and the FCL(BVI) A/c; he fully controlled FCL(BVI)’s cash movements, its bank accounts and the FCL(BVI) A/c at all material times; and he admitted that Morgan did not have control nor access to FCL(BVI)’s bank accounts. ⁵² This continued even when Zhou became shareholder and director in name on 20 March 2018 – she authorised Raymond to act on FCL(BVI)’s behalf with full authority to open, operate and close any bank and brokerage accounts. ⁵³ Further, although Raymond had instructed Morgan to find a buyer for the Shares, he caused the Shares to be sold in September 2017 and only informed Morgan of this after the fact. ⁵⁴

47 Further, Raymond dealt with the Sale Proceeds as though they were his. In his affidavit filed to account for the Sale Proceeds, he stated that, after deducting the Loan Amount to DKI, UOBKH’s transaction fees, Julius’s fees and Amaratus Capital LLC’s placement fees, the remaining balance (of some CAD 20.2m) was paid to himself and his other entities. Specifically, CAD 3m was paid to Raymond, and CAD 11.2m and CAD 6m were paid to Carrington and Qilin respectively. Raymond admitted both entities belonged to him and he had received (directly and indirectly) the CAD 20.2m. He produced no evidence establishing any basis for the payments to himself or these entities. ⁵⁵ It is clear that the decision to move these funds out of FCL(BVI) was taken by Raymond alone and that he had treated FCL(BVI)’s assets as his to distribute.

48 Next, I disbelieve Raymond’s claims that Morgan was the controlling mind and will and decision-maker for the Loan Transaction (which was Morgan’s deal), and that Raymond’s role was “peripheral at most”. ⁵⁶

49 My findings above and below show that Raymond was in control of and the ultimate decision-maker for the Loan Transaction, which included the key steps taken therein and using FCL(BVI) as the entity for the SFA, and that Morgan answered to him. This is even if it was Morgan who largely liaised with Julius or Ricky on the Loan Transaction. It makes no sense for Raymond to admit that he was the controlling mind and will of FCL(BVI) but maintain that Morgan controlled the Loan Transaction that was executed by FCL(BVI).

50 Ms Sally Lee (“Sally”), the legal executive of FCL(BVI) and its associated companies, testified that before a draft transaction document was sent out or signed, it had to be approved by Raymond. She also conceded that she had to check with Raymond pertaining to the documentation for the Loan Transaction before “go[ing] ahead”. ⁵⁷

51 On 8 August 2017, just two days before the SFA was executed, Raymond directed that FCL(BVI) be used as the lender for the Loan Transaction by sending an email to Morgan and Sally to “Use Fullerton BVI”. I disbelieve Raymond’s assertion that he was instructed by Morgan to do so and he had no choice but to follow Morgan’s instructions. His assertion is contradicted by his claim that he would have objected if Morgan had instructed that FCL(HK) or FCL(UK) be used instead. ⁵⁸ On the same day, Sally asked Raymond and Morgan to review various changes made to the draft SFA, and it was after Morgan had said “looks good” that Raymond replied “yes go”. ⁵⁹ Then, on 10 August 2017, when Sally asked Raymond and Morgan to review the final version of the draft SFA, it was Raymond who gave the final approval. ⁶⁰ Raymond thus had the final say in relation to the contents of the SFA and contracting entity (FCL(BVI)).

52 It was Raymond who executed the SFA, Control Agreement and Custody Agreement on FCL(BVI)’s behalf. I disbelieve he had signed the documents “blind”, that he never saw a copy thereof before signing them, and that he read them for the first time when Suit 435 was commenced in 2019. ⁶¹ I find he was attempting to disassociate himself from the Loan Transaction.

53 After the SFA was executed, the emails among Sally, Raymond and Morgan on the preparation of the 1st Closing Statement, 2nd Closing Statement and Final Closing Statement, show that Raymond gave the final approval on their contents. ⁶² Raymond further controlled FCL(BVI)’s bank accounts and the FCL(BVI) A/c, he determined the subsequent sale of the Shares from FCL(BVI) to a third party, and he dealt with the Sale Proceeds as though they were his (see [46]–[47] above).

54 Although Morgan could make certain decisions pertaining to the Loan Transaction, Raymond controlled the Loan Transaction and was its ultimate decision-maker. I accept Morgan’s testimony that he had some discretion in negotiating the terms of the Loan Transaction but within pre-approved parameters set by Raymond; that anything beyond those parameters required Raymond’s approval; and that even where a deal fell within the pre-approved parameters, Raymond’s role was no mere formality. Raymond was kept constantly apprised of the progress of, and gave instructions pertaining to, the negotiations. He pleads that he was kept apprised of the negotiations between Julius and Morgan on the transaction, including the proposed terms thereof. ⁶³

55 It is thus clear that Raymond and Morgan were not equal partners in FCL(BVI) or that Morgan controlled the Loan Transaction. Raymond accepted Morgan was neither employed by FCL(BVI) nor engaged as an independent contractor. I accept that Morgan was given the title of Managing Director so that he could represent and conduct negotiations on FCL(BVI)’s behalf. ⁶⁴

56 I next consider whether Julius and Morgan were authorised by the defendants to make representations pertaining to the Loan Transaction to DKI.

57 I start with Julius. DKI’s case is that the Representations were orally conveyed to Ricky by Julius who had the authority from the defendants to do so. It is undisputed that Julius liaised with Morgan on the potential Loan Transaction with DKI. ⁶⁵ The representations that flowed through Julius may be attributed to the defendants if he was authorised by them (either expressly or by implication from their conduct and actions) to make the representations (Banque Nationale de Paris v Tan Nancy [2001] 3 SLR(R) 726 at [63]–[64]). The cornerstone of both express and implied actual authority is the consensual agreement between the principal and agent who will be deemed to have consented if they have agreed to what, in law, amounts to such a relationship, even if they later profess to disclaim it (Alphire Group Pte Ltd v Law Chau Loon [2020] SGCA 50 at [7]; Alwie Handoyo at [148]). A principal would be liable for its agent’s acts (including for fraud) when the acts are within the agent’s actual or apparent authority (Ong Han Ling v American International Assurance Co Ltd [2018] 5 SLR 549 at [208]).

58 Thus, even if Julius were an “independent contractor”, ⁶⁶ in that he was want to not an employee of FCL(BVI) or FCL when he conveyed any representations to Ricky, this does not mean that he could not have been FCL(BVI)’s agent in relation to the Loan Transaction. The question is whether the defendants have authorised him to convey certain representations to DKI. As a preliminary point, that Julius may also have conveyed representations on DKI’s behalf to FCL is irrelevant to DKI’s claim against FCL(BVI) for misrepresentation.

59 I find there was an agency relationship and that Julius was authorised by the defendants to deal with DKI on the Loan Transaction.

60 First, Raymond knew of and acquiesced in Julius’s role as the conduit of information to DKI. He knew that Morgan was in discussions with Julius on the proposed Loan Transaction, and that Julius was acting as a middleman, conveying information between the prospective borrower and Morgan. ⁶⁷ Raymond was content to leave it to Julius to convey to DKI the information Julius received from Morgan and he did not ask to deal with the borrower directly although he controlled the FCL entities. In court, Raymond accepted that if Morgan had FCL(BVI)’s authority to convey to Julius information for Julius to pass on to DKI, then Julius would have been acting as FCL(BVI)’s agent. ⁶⁸

61 Second, Raymond positively equipped Julius to speak for FCL(BVI). He asserts that Julius was a “middleman” between DKI and the defendants. He further claims that Julius was responsible for communicating all terms and conditions of the Loan Transaction to DKI and that Julius owed the defendants a duty of care to convey their representations accurately to DKI. ⁶⁹ Before the SFA was signed, Raymond conferred on Julius the title of “Executive Director” of FCL and agreed to him being given an FCL name card and email address in that capacity. In doing so, Raymond held Julius out as having authority to speak on behalf of the proposed lender (which turned out to be FCL(BVI)). I reject Raymond’s claim that it was ultimately Morgan’s decision to confer the title to Julius, as the internal FCL emails show otherwise and given that Raymond controlled the FCL entities. ⁷⁰

62 Third, Julius was paid CAD 8m for his services pertaining to the Loan Transaction by FCL(BVI) pursuant to: (a) a Consultant Agreement between FCL (signed by Raymond) and Julius dated 10 August 2017 for 6% of the gross loan tranche (“Consultant Agreement”); and (b) a Back-end Commission Agreement also between FCL (signed by Raymond) and Julius dated 31 August 2017 for 1.5% of the net loan tranche (“BEC Agreement”). Julius agreed that FCL was to pay him under these agreements. ⁷¹

63 Raymond also admitted that FCL(BVI) was liable to pay Julius under the agreements. He claims however that the 6% fee was ultimately borne by DKI, as it was deducted from the Loan Amount and DKI was obligated to repay the loan in full, including that sum. ⁷² This does not assist Raymond. FCL(BVI) was the party contractually liable to Julius for the sums under the Consultant and BEC Agreements and the agreements clearly stipulate that the fees payable to Julius were for Julius’s services provided to FCL.

64 Following from Julius’s communications with Ricky (representing DKI) on the Loan Transaction, Raymond executed the transaction. I thus find that Julius had actual authority, from FCL(BVI) and through Raymond (being its director and controller), to convey representations to DKI pertaining to the Loan Transaction.

65 I turn to Morgan, who communicated with Julius regarding DKI’s interest in obtaining a loan. I similarly find that Morgan had actual authority from the defendants to convey representations to DKI through Julius pertaining to the Loan Transaction.

66 Raymond cannot dispute that Morgan would have had authority to represent FCL(BVI) in the negotiations leading up to the SFA if he claims Morgan managed FCL(BVI) and the Loan Transaction (see [39] and [48] above). In any event Raymond knew at all material times that Morgan was in discussions with Julius on a potential loan transaction with a prospective borrower, and that Julius was the middleman through whom information would reach that borrower (see [60] above). I have found that Raymond was in control of the Loan Transaction, that Morgan was authorised by Raymond to negotiate the terms of the loan within certain parameters, and that Raymond was kept apprised of and gave instructions pertaining to the negotiations (including the proposed terms) that led to the SFA (see [48]–[54] above). Having allowed Morgan to make representations to DKI (which Raymond knew would pass through Julius), Raymond then signed off on the documents pertaining to the Loan Transaction.

67 I now deal with DKI’s primary case in fraudulent misrepresentation. The requirements for a claim in fraudulent misrepresentation are well-established. There must be a representation of fact made by words or conduct and made with the intention that it should be acted upon by the claimant. It must be proved that the claimant acted upon the false statement and he suffered damage by so doing. Finally, the representation must be made with the knowledge that it is false; it must be wilfully false or at least made in the absence of any genuine belief that it is true (Panatron Pte Ltd v Lee Cheow Lee [2001] 2 SLR(R) 435 at [14]; Chan Pik Sun v Wan Hoe Keet [2024] 1 SLR 893 at [66]).

68 Essentially, the Identity Representation is that Ricky was informed by Julius that DKI would be transacting with a UK-incorporated entity that was regulated by the FCA UK. Julius had obtained this information from Morgan. I find the Identity Representation was made.

69 I accept that DKI was concerned that the loan financing should be made with a regulated entity (see [6] above). This made sense given the substantial TSG shares (worth over CAD 100m) that DKI intended to leverage as collateral for the loan. ⁷³ I also accept Ricky’s testimony that Julius initially proposed private lenders such as SIMCOE, Qilin and Carrington, which Ricky rejected. Julius attested that SIMCOE was initially proposed as the lending party, whilst Morgan attested that Qilin and Carrington were proposed. ⁷⁴

70 Next, I accept, based on Ricky’s and Julius’s testimony, that Julius then informed Ricky that FCL could be a potential lender whereupon Ricky told Julius that DKI wanted a lending entity that was “more proper”. ⁷⁵ Morgan also attested that Julius had informed him that DKI did not want to transact with Qilin as it wanted something more “proper”. ⁷⁶

71 I further accept Ricky’s testimony that Julius then reverted to Ricky to say that FCL was regulated by the FCA UK. Ricky thus believed that FCL was a UK-incorporated entity regulated by the FCA UK. This is corroborated by Julius as follows, which I accept. After Ricky said he wanted a “more proper” lending entity, Julius relayed this to Morgan whereupon Morgan responded, “Would it help if Fullerton was FCA-regulated?” and informed Julius that FCL was FCA-licensed. Julius did not know what an FCA-regulated company was. Nevertheless, he conveyed to Ricky in identical terms Morgan’s response. In court, Ricky agreed this conversation with Julius occurred. I also accept Julius’s testimony that it was Morgan who told him that FCL was FCA-regulated. ⁷⁷

72 I accept Morgan’s testimony that when Julius informed him that DKI wanted to transact with an entity that was more “proper”, Morgan, acting on Raymond’s standing instruction to propose FCL or Carrington for a non-recourse loan arrangement, then put forth these entities to Julius. When Julius indicated that DKI was interested in FCL, Morgan sought Raymond’s approval to use it as the lender, Raymond verbally told him to proceed to use FCL, and Morgan communicated this to Julius. ⁷⁸

73 However, in his AEIC, Morgan claimed he did not recall informing Julius that FCL was regulated, whether by the FCA UK or otherwise, ⁷⁹ which I disbelieve. In cross-examination, Morgan became very sure that he never told Julius that FCL was FCA-regulated. ⁸⁰ This contrasts with other material aspects of his dealings with Julius over the same period, where Morgan professed to remember nothing. For instance, he could not recall whether he had informed Julius that at that time, there was an FCL(BVI) and an FCL(UK), and claimed that “in my mind, we were talking about BVI”. ⁸¹ He could not recall whether he suggested to Julius the lending entity as FCL(BVI), although he then said that he believed he did so. But this contradicts his AEIC where he said that Raymond had all the while asked him and Julius to convey to DKI that the transacting party would be FCL without specifying which FCL, and the fact that FCL(BVI) would be the transacting party was not disclosed to DKI at any point in time. ⁸² He also claimed that he was unsure whether he had directed Julius to the website of FCL but was somehow sure that Julius had searched online for the FCL Website. ⁸³ I disbelieve Morgan could not recall the material events pertaining to the discussions leading to the execution of the SFA. Importantly, Morgan knew (through Julius) that DKI had rejected Qilin as it wanted a lending entity that was more “proper”. ⁸⁴ It makes no sense for Ricky to have accepted another entity proposed by Morgan, ie, FCL, without more, when Ricky had never heard of FCL then – unless Ricky was informed that it was regulated.

74 In fact, a WhatsApp conversation on 15 August 2017 (a few days after the execution of the SFA) showed that Julius continued to labour under the impression that there was only one FCL and that it was FCA-registered. In discussing with Morgan a potential bitcoin deal, Julius had suggested using FCL as it was “fca registered” and he asked Morgan for its “fca registration [number]”. Morgan did not query him about what “fca registered” meant. Instead, he replied, “No it [won’t] be that entity contracting[,] it is a related entity.” ⁸⁵ Raymond agreed that what Morgan meant here was that the proposed entity would not be the FCL that was FCA-registered but that it would be a related entity. ⁸⁶ This conversation also supports that Morgan had informed Julius previously, when discussing the Loan Transaction, that FCL was FCA-regulated or registered; there is no other way in which the topic of “fca regulated” pertaining to “FCL” would have been known to Julius.

75 DKI’s case is also that the Identity Representation was made through the FCL Website. Ricky attested that after Julius informed him that FCL maintained a website with the domain name fullertoncapital.com, he visited the FCL Website before the SFA was executed (see [8] above). I accept Ricky had checked the FCL Website, even if he could not (in cross-examination) recall when he did so. ⁸⁷

76 Whilst Julius denied that Morgan had informed him of an FCL website, that he had directed Ricky to such a website, or that he had looked up that website in 2017, ⁸⁸ I prefer Ricky’s testimony that Julius did inform him of such a website in 2017 during their discussions. In court, Morgan testified that he had either given Julius the email address or the website for FCL, or that Julius had independently looked up FCL’s website and then asked Morgan whether it was the correct one whereupon Morgan had confirmed the website. He said that Julius had “looked online” for FCL before reverting to Morgan with whether that entity could be used for the proposed loan transaction. ⁸⁹ Morgan also explained that he had been instructed by Raymond to direct potential borrowers to the FCL Website if they required more information about FCL. ⁹⁰ That said, even if Julius never informed Ricky of an FCL website, which I do not accept, I nevertheless find that Ricky did check the FCL Website prior to DKI signing the SFA. More likely than not, given the size of the intended loan and the collateral to be used for it, Ricky would have made some other checks on FCL.

77 Additionally, although Ricky produced a 2018 screenshot of the FCL Website (as it was only in 2019 that DKI discovered the falsity of the Identity Representation), I find the website was in existence in 2016 as testified by Morgan. ⁹¹ Jay Dombroski (“Jay”), engaged by Raymond as Director of Marketing for FCL at the material time, stated that he designed the FCL Website in 2016 on Raymond’s instructions, following from an internal contest to design FCL’s logo at that time. Jay attested that Raymond had directed the FCL Website should state that FCL was a company authorised and regulated by the FCA UK and with its registered address reflected in the UK. ⁹²

78 Thus, I disbelieve Raymond that the FCL Website was only set up in 2018. Importantly, there was always only one FCL Website, although there were various FCL entities. ⁹³ Clearly, what was represented on the FCL Website would be attributable to Raymond, who owned and controlled all the FCL entities, and who determined and approved the content of the website.

79 Here, I address Raymond’s argument that DKI could not have been mistaken as to FCL’s identity as it knew FCL was an “offshore” entity. First, on 15 February 2017, Morgan had informed Julius that “We are offshore … We are not a registered or licensed entity”. Second, cl 10(p) of the SFA states that DKI “acknowledges the fact that the Lender is an offshore entity”. ⁹⁴ Thus Raymond alleged that “offshore” meant offshore from the UK and DKI would have understood that FCL was not FCL(UK). I find Raymond’s argument to be disingenuous.

80 In court, Raymond admitted that Morgan’s email (at [79] above) pertained to Julius’s query regarding Qilin. In that email, Morgan stated that “We set up Qilin almost three years ago” and that it (Qilin) was an offshore entity that was not registered or licensed. Strangely, Raymond disputed the authenticity of the 15 February 2017 email chain which he relied on. ⁹⁵

81 Second, “offshore” does not necessarily mean offshore from the UK. Clause 10(p) of the SFA states: “The Borrower acknowledges that the Lender is not based in Canada nor is it registered as a financial entity in Canada. The Borrower acknowledges the fact that the Lender is an offshore entity.” [emphasis added]. In that context, the Lender being “offshore” would have been understood to mean offshore from Canada. Raymond admitted in court that many jurisdictions other than BVI can be considered offshore. ⁹⁶

82 Importantly, it is undisputed that none of the documents, including the 3/8/17 Term Sheet, SFA and Custody Agreement, or even communications between Ricky/DKI and Julius prior to the execution of the SFA, mentioned the intended transacting entity as a “BVI” entity. Raymond stated that the mention of the BVI entity of FCL and the decision to use FCL(BVI) for the Loan Transaction was made only on 8 August 2017. ⁹⁷ Morgan attested, in his AEIC, that the fact that FCL(BVI) would become the transacting party in the SFA was not disclosed to DKI (see [73] above). Julius likewise attested that, even after the SFA had been signed, he laboured under the impression that the SFA was signed by an FCL that was FCA UK-registered. Morgan agreed this was the case. ⁹⁸ Raymond likewise admitted that he never informed Julius there was more than one FCL entity or that there was a BVI entity of FCL, and that Julius would not have known these facts or that there was more than one FCL. ⁹⁹

83 It is undisputed that the Identity Representation was false. The FCL that signed the SFA was a BVI entity and it was not regulated or licensed (let alone regulated by FCA UK).

84 Reliance can be established as long as the misrepresentation plays a real and substantial part in inducing a claimant to act, no matter how strong or how many other factors there are. The representation must have a real and substantial effect on the representee’s mind such that it can be said to be an inducing cause which led him to act as he did; it need not be the inducing cause (Alwie Handoyo at [187]–[188]).

85 I find the Identity Representation played a real and substantial effect on DKI’s mind and was an inducing cause for DKI to enter into the SFA. First, DKI was concerned that the loan financing transaction should be made with a “more proper” or regulated entity, and both Julius and Morgan knew this (see [69]–[72] above). On Julius’s account, once he informed Ricky that FCL was FCA-regulated, DKI was content to proceed. Julius agreed that when he informed Ricky that FCL was regulated by the FCA UK, it was important to Ricky and allayed some of his worries. ¹⁰⁰ Ricky also testified that FCL(UK) “would be the type of company that [he] will be happy to do business with”. ¹⁰¹

86 Raymond argues that DKI could not have relied on the Identity Representation as Ricky had done his own due diligence prior to DKI executing the SFA, such as by checking the FCL Website and the contents of the SFA. ¹⁰² However, it is undisputed that the loan and other documents did not mention FCL as being a “BVI” entity (see [82] above). I have also rejected Raymond’s assertion that “offshore” in the SFA must necessarily mean a BVI jurisdiction.

87 Raymond also points to the FCL Website which stated that FCL “is an Appointed Representative of [MET] … which is Authorised and Regulated by the Financial Conduct Authority”. ¹⁰³ It was MET, and not FCL, that was regulated by FCA UK – thus DKI could not have relied on the FCL Website for the Identity Representation. This argument does not assist Raymond. Ricky, being in the securities industry, understood that a representative entity would also be regulated by the regulating authority (FCA UK) in relation to its activities, and that the principal would be responsible for the appointed representative’s activities including ensuring the representative complies with any regulations or codes of conduct. ¹⁰⁴ Morgan also confirmed his understanding was that FCL(UK) would “piggyback” off MET’s registration with the FCA UK. ¹⁰⁵ A reasonable person would have understood the statement on the FCL Website to convey that MET’s regulated status extended to its appointed representative (ie, the FCL based in the UK), as understood by both Morgan and Ricky. Importantly, the FCL Website represented FCL’s address to be in the UK, thus giving Ricky the impression that FCL was a UK-incorporated entity.

88 In any event, that Ricky had checked the FCL Website or FCA website did not mean that he could not have also relied on the Identity Representation. A representee who also takes steps to verify a representation does not thereby cease to rely on it, and a party who acts carefully but fails to discover the fraud should not be penalised. Also, a person who has made a false representation cannot escape its consequences just because the innocent party has done its own due diligence unless the innocent party has come to learn of the misrepresentation before, or does not rely on it when, entering into the contract (Jurong Town Corp v Wishing Star Ltd [2005] 3 SLR(R) 283 at [113]–[114]). ¹⁰⁶

89 I am thus satisfied that DKI relied on the Identity Representation when entering the SFA, and subsequently suffered loss when it released the Shares to FCL (which turned out to be FCL(BVI)) and proceeded to service the interest payments. FCL(BVI) did not have independent funds to discharge the Loan Amount to DKI and subsequently disbursed the balance of the Sale Proceeds to Raymond and his entities (see [18] and [47] above). It is clear that FCL(BVI) would not have had the means to return the value of the Shares (whether in stock or cash equivalent) if the loan were repaid by DKI.

90 Preliminarily, it cannot be disputed that, prior to the execution of the SFA, Julius did not know the Identity Representation was false (see [74] above). Nor could it be said that he made that representation in the absence of any genuine belief that it was true. Julius merely conveyed to Ricky what Morgan had informed him (about FCL being FCA-regulated and of FCL’s website).

91 However, Morgan knew the Identity Representation was false when he informed Julius that FCL was FCA-regulated. He knew of only three entities for the stock loan business, ie, Qilin, Carrington and FCL(BVI), ¹⁰⁷ and he always viewed the lending entity to DKI as only FCL(BVI) but did not inform DKI that it was not so. ¹⁰⁸ He also knew by January 2016 of the existence of FCL(UK), ¹⁰⁹ and by 8 August 2017 that the Identity Representation was false when Raymond informed him and Sally to “use Fullerton BVI” for the Loan Transaction (see [51] above). Raymond admitted the first time FCL(BVI) was expressly mentioned as the entity for the Loan Transaction was on that date. ¹¹⁰ Despite all these, the fact that FCL(BVI) would be the lending entity was not conveyed to Julius or Ricky by Morgan (or Raymond) before the SFA was signed.

92 I find Morgan had conveyed the Identity Representation to Julius on Raymond’s authority and instruction. Raymond was the controlling mind and will of all the FCL entities and he controlled the Loan Transaction. Raymond’s knowledge and acts are thus to be attributed to FCL(BVI). Indeed, I find that Raymond had deliberately sought to conceal from DKI the identity of the entity he intended to use for the Loan Transaction despite knowing that Morgan had conveyed the Identity Representation to Julius.

93 Hence, I find that the Identity Representation was made with Raymond’s knowledge that FCL(BVI) was not a UK entity that was FCA-regulated. Raymond admitted in court that the BVI entity was never mentioned to Julius/Ricky prior to execution of the SFA. ¹¹¹ There is no evidence that it was conveyed to DKI even after the SFA was executed. Indeed, Raymond not only knew that DKI had been informed that the proposed lending entity FCL was FCA-regulated, but that he actively maintained this charade through various mediums, each calculated to convey to DKI and to the world at large that the FCL they were dealing with was a UK-incorporated and FCA-regulated entity.

94 First, Raymond created a web of identically-named entities. There were five “FCL” entities, incorporated respectively in the UK, Hong Kong (two), the Cayman Islands and the BVI. He was also the controlling mind and will of each. ¹¹² Pertinently, in August 2017, when the Loan Transaction was being negotiated, there were four entities named “FCL” (ie, in the BVI, Cayman Islands, Hong Kong and UK).

95 Second, despite knowing there were multiple “FCLs” Raymond directed the creation of a singular FCL Website which stated FCL’s address as being in the UK and described it as an appointed representative of MET which was authorised and regulated by the FCA UK. There was no separate website for FCL(BVI) that would have alerted Ricky/DKI that there was more than one “FCL” at the time the Identity Representation was made.

96 Third, all the FCL entities shared one email domain, ie, “@fullertoncapital.com” (“Email Domain”). ¹¹³ Raymond directed the creation of a disclaimer for emails sent from the Email Domain stating that “Fullerton Capital Ltd. is Authorised and Regulated by the Financial Conduct Authority” (“Disclaimer”). Jay’s unchallenged evidence, corroborated by the contemporaneous emails in 2016, was that the Disclaimer was inserted in 2016 at Raymond’s instruction. ¹¹⁴ Raymond admitted that even after the SFA was signed, Julius was copied on emails between Morgan and Ricky which contained the Disclaimer. Pertinently, on 11 December 2017 and 8 January 2018, Morgan’s emails to Ricky pertaining to the SFA contained the Disclaimer. Raymond accepted that he approved the Disclaimer at that time. ¹¹⁵ I disbelieve his explanation in court that the Disclaimer was a mistake and should have applied only to FCL(UK), as the Disclaimer referred to FCL(UK). ¹¹⁶ He created only one Email Domain for “FCL” despite owning and controlling various FCL entities concurrently. Rather, I find it was a deliberate design to represent to recipients of emails from the Email Domain that the FCL they were dealing with was an entity in the UK regulated by the FCA UK.

97 Taken together, the evidence shows Raymond deliberately maintained the FCL Website, logo and Disclaimer through the shared name, “FCL”. This was a presentation calculated to convey that the transacting entity was UK-incorporated and FCA-regulated, although he knew FCL(BVI) was neither. Raymond’s knowledge and acts are attributable to FCL(BVI). He was its directing mind and controller. Also, FCL(BVI) was Raymond’s alter ego. The Identity Representation was accordingly made fraudulently by the defendants.

98 I am thus satisfied that DKI’s claim against the defendants on fraudulent misrepresentation pertaining to the Identity Representation is made out.

99 Essentially the Financing Representation is that the loan would be funded on a DVP basis, which necessarily meant that the lender would have its own independent resources, and would not sell the Shares, to raise the Loan Amount to be disbursed to DKI (see [12] above). It is not disputed that FCL(BVI) sold the Shares to raise and disburse the Loan Amount to DKI.

100 I find the defendants conveyed the Financing Representation to DKI. Essentially, the Financing Representation was conveyed by Morgan to Julius who then conveyed it to Ricky, that the loan would be funded on a DVP basis.

101 First, I accept Ricky’s testimony that he informed Julius it was important to DKI that the loan be funded on a DVP basis, and that Julius confirmed this (see [12] above). This is supported by Julius, who testified that Ricky informed him the Loan Transaction was to be on a DVP basis and he understood this was an important part of the transaction. Julius understood the meaning of DVP in the context of a stock secured loan transaction, ie, that there would be a simultaneous exchange of the collateral/shares for the loan moneys, and that the lender would have “independent finance” to fulfil the loan transaction. He further testified that if the collateral was transferred to the lender before the lender disbursed the loan moneys to the borrower, this would not be DVP. ¹¹⁷

102 Second, I accept that, before the SFA was signed, Julius conveyed to Morgan that DKI wanted the Loan Transaction on a DVP basis. ¹¹⁸ That Morgan and Julius were discussing a potential loan transaction with DKI on a DVP basis (using DKI’s TSG shares as collateral) is borne out by a WhatsApp conversation on 2 August 2017, where Julius asked Morgan whether he would be selling all the shares “right after [the] loan”. ¹¹⁹ The understanding between Morgan and Julius pertaining to the Loan Transaction being on a DVP basis was consistent even after the SFA was executed. This can be seen from Julius’s message on 21 August 2017 asking Morgan “so when dvp”, to which Morgan replied “Waiting for uob to call me back” and “Depends on when stock arrives”, and other messages between them. ¹²⁰

103 Morgan knew what DVP meant. In an email to Julius on 16 February 2017 (in response to Julius intimating his desire to join Qilin as an arranger), Morgan stated that all Qilin’s deals are “funded on a DVP basis, so there is no trading until after the loan is funded. However, after we have funded the loan and the shares cross to our account, we do trade the position.” ¹²¹ [emphasis added]. In evidence, Morgan confirmed that DVP meant the transfer of shares to the lender and the disbursement of loan to the borrower would happen almost simultaneously. Not only did Morgan inform Julius that Qilin’s transactions were on a DVP basis, he also informed Julius that Raymond’s entities (which would include FCL) offered non-recourse loans on a DVP basis. ¹²²

104 Next, the Financing Representation was also made through the 3/8/17 Term Sheet and the draft SFA (see [13] above). Even if the 3/8/17 Term Sheet did not expressly state the transaction was to be on a “DVP” basis or through simultaneous exchange of the collateral for the loan, the draft SFA and signed SFA (at cl 2(f)) expressly stated that the lender would release funds into the borrower’s account and the borrower would release the collateral (shares) to the lender “through a simultaneous exchange to occur on an agreed-upon date”. ¹²³ [emphasis added]. The representation conveyed in the SFA would have been conveyed by Raymond. I have found that Raymond directed that FCL(BVI) be used as the lender, approved each iteration of the draft SFA, and executed it on FCL(BVI)’s behalf (see [50]–[52] above).

105 Notably, Raymond’s own expert, Mr Andrew Spink KC (“Mr Spink KC”), accepted the “simultaneous exchange” mechanism under cl 2(f) presupposes the lender has funds available in advance to effect a simultaneous exchange of the loan moneys for the Shares. Mr Spink KC further agreed that if the lender had to first sell the borrower’s shares to raise the funds, that exchange would not be simultaneous by definition. ¹²⁴ The fact that the Loan Amount was eventually not exchanged simultaneously for the Shares does not detract from the Financing Representation having been made before the SFA was signed. Raymond’s other expert, Mr Simon Jaquiss (“Mr Jaquiss”), also conceded there was nothing in the SFA which suggested that the lender would rely on the collateral to fund the loan. ¹²⁵

106 I pause to deal with Raymond’s professed understanding of DVP. In his AEIC, Raymond asserted the “simultaneous exchange” under the SFA involved a simultaneous exchange between an institutional buyer’s funds and the Shares, with either FCL(BVI) or UOBKH acting as an intermediary facilitating this exchange. ¹²⁶ Raymond’s story is completely unbelievable. First, his assertion runs contrary to cl 2(f) of the SFA which stipulates a simultaneous exchange between the “lender” (FCL(BVI)) and “borrower” (DKI). No third party such as an eventual institutional buyer of the Shares is mentioned although the SFA was drafted by FCL. Second, his assertion also runs contrary to his own experts’ testimony on the “simultaneous exchange” mechanism under the SFA (see [105] above). Third, he admitted that the portion in his AEIC dealing with “simultaneous exchange” was an afterthought, he came up with it after discussing with friends the meaning of “simultaneous exchange” in 2024 or 2025, it was drafted by someone else, he did not understand its content and he merely signed the AEIC. In fact, he claimed he only read the SFA, Custody Agreement and Control Agreement after Suit 435 was commenced (which I disbelieve). ¹²⁷

107 Eventually, Raymond conceded that when he signed the SFA, he knew (pursuant to the SFA) that the Loan Amount was to be disbursed to DKI at the same time as the delivery of the Shares into the FCL(BVI) A/c. He knew simultaneous exchange did not in fact take place, as the Shares were transferred into the FCL(BVI) A/c on 30 August 2017, but the first tranche of the Loan Amount was not disbursed until 8 September 2017. ¹²⁸

108 Next, Raymond claimed the SFA is not a security arrangement but a title transfer collateral arrangement. On that footing, full title in the Shares passed to FCL(BVI), which was entitled to sell the Shares and that cl 4(b) of the SFA merely entitled DKI to the cash value of the Shares upon repayment of the loan. ¹²⁹ But this completely misses the point. The Financing Representation is not that FCL(BVI) could deal with the Shares after they were transferred to it. It is a representation that FCL(BVI) had funds of its own with which to disburse the loan at the time the Shares were to be delivered to FCL(BVI), ie, “simultaneous exchange” under cl 2(f). This is regardless of whether the SFA is characterised as a title transfer arrangement or otherwise. ¹³⁰ Clause 4(b) deals with redelivery of the collateral (or its equivalent in cash) to DKI when DKI makes a repayment of the loan. In any event, the Financing Representation was not confined to the transaction documents. I have found that it was also conveyed orally, through Morgan to Julius and from Julius to Ricky.

109 I find DKI relied on the Financing Representation in entering the SFA. The Financing Representation was closely tied to the Identity Representation. As Ricky attested, DKI was seeking financing using the Shares as collateral, and it intended to redeem them eventually. DKI’s conduct showed it intended to transact with an entity that had the financial means to disburse the loan. It was looking for a lender that was “proper” and had initially approached banks and financial institutions (see [6] above). It does not make sense for DKI to have parted with 7.2m Shares worth around CAD 130m to a lender which had no funds of its own to disburse the Loan Amount (of over CAD 100m).

110 Raymond claimed the issue of “simultaneous exchange” is moot as Tang Hao had, on 30 August 2017, instructed UOBKH to transfer the Shares into the FCL(BVI) A/c with “immediate value” without waiting for any discussion on an “agreed date” for the simultaneous exchange pursuant to cl 2(f) of the SFA. In other words, DKI did not rely on the Financing Representation. Alternatively, it had waived its right under the SFA to a “simultaneous exchange”. ¹³¹ I reject both of Raymond’s arguments.

111 The Shares were transferred by DKI into the DKI A/c on 24 August 2017. ¹³² Ms Seah (“Seah”) of UOBKH attested that on 30 August 2017, she called Tang Hao to verify that he had signed the Custody Agreement and STI. In that call, Seah asked Tang Hao whether he wanted UOBKH to “transfer for value? Immediate value?” and Tang Hao replied, “Uh yeah”. ¹³³ Whilst DKI pleads that Seah did not speak to Tang Hao but to his assistant who was not authorised to make decisions on DKI’s behalf, ¹³⁴ I accept Seah’s testimony that she had spoken to Tang Hao. It is undisputed that the call was made to Tang Hao’s number ¹³⁵ and Tang Hao has not come to testify otherwise.

112 The fact that Tang Hao had, after execution of the SFA, confirmed with UOBKH the transfer for “immediate value” on 30 August 2017, did not negate DKI’s reliance on the Representations in entering the SFA. There is also no evidence that DKI intended to “waive” the simultaneous exchange of the Shares for the Loan Amount, or that DKI was aware at the material time, that the Shares would be sold to raise the Loan Amount to disburse to DKI. Importantly, once the Shares were in the DKI A/c, FCL(BVI) had control of the Shares including when to transfer them to the FCL(BVI) A/c (see [3] above and [213] below).

113 The exchanges between Julius and Morgan show DKI was always expecting DVP or a simultaneous exchange; this was even before UOBKH’s phone call with Tang Hao on 30 August 2017. For instance, on 16 August 2017, Julius asked Morgan whether DVP could be done on weekends. On 18 August 2017, Julius informed Morgan that FCL needed to “prep the funding on one tranche” meaning that there should be DVP. On 25 and 29 August 2017, Julius continued to remind Morgan about “DVP”. Pertinently on 29 August 2017, Julius chased Morgan in a series of messages, to “keep track of the dvp and help to resolve if shit happens”, to “get the swift confirmation to me after the trade”, and warning that the “Client will stop the transaction if it fails again”. ¹³⁶ It should be noted that by this time, FCL had issued the 1st Closing Statement to DKI (on 24 August 2017) for the first tranche of 3.6m of the Shares. ¹³⁷

114 Then, on 30 August 2017, Julius asked Morgan to provide a closing statement for the entire 7.2m Shares at better pricing terms. Morgan sent Julius the 2nd Closing Statement for the second tranche of 3.6m Shares, and Julius then asked Morgan why he did not give a closing statement for the entire 7.2m Shares. Julius also forwarded the 2nd Closing Statement to DKI. ¹³⁸ Notably, Julius attested that as DKI did not receive any notification of incoming funds by 10pm on 30 August 2017 (after DKI received the 1st and 2nd Closing Statements), Ricky informed him that DKI would not wait any longer for FCL to fulfil its obligations under the SFA and would switch to a new lender if disbursement of the loan did not take place that night. Julius’s account is supported by his message at 10.49pm that night to Morgan to convey the same. This was the same day of Seah’s call to Tang Hao. Pertinently at 11.43pm that night, Julius said to Morgan “Guess dvp failed again”. ¹³⁹ Even after Seah’s phone call with Tang Hao, Ricky continued to chase Julius, as can be seen from Julius’s messages to Morgan on Friday, 1 September 2017 stating, “Huh cash not in? … client just blasted at me again …”. DKI’s frustration at the situation even on Monday, 4 September 2017 was supported by Julius’s message to Morgan on the same date to say, “Client is furious!!”. ¹⁴⁰

115 As Raymond admitted in court, during this period, DKI had every right to ask what was happening to the Loan Amount that was yet to be disbursed. ¹⁴¹

116 I am thus satisfied that DKI relied on the Financing Representation when entering the SFA and subsequently suffered loss. I reiterate [89] above.

117 Raymond admitted that neither he nor FCL(BVI) had CAD 110m to fund the Loan Amount ¹⁴² and he had sold the Shares to disburse the loan. The Financing Representation was thus made fraudulently by the defendants.

118 In conclusion, I find DKI has made out its claim for fraudulent misrepresentation against the defendants pertaining to the Financing Representation. As such, it is unnecessary to deal with its claim under s 2 of the Misrepresentation Act (being a claim pleaded only against FCL(BVI)). ¹⁴³

119 I turn to the termination of the SFA. Raymond claims that DKI breached the SFA as it: (a) made late payment of interest due on 29 September 2017 (“1st Breach”) and due on 1 December 2017 (“2nd Breach”); (b) used the Loan Amount to purchase shares in TSG, in breach of cl 5(f) of the SFA (“3rd Breach”); and (c) failed to pay interest due on 1 March 2019 (“4th Breach”), which led FCL(BVI) to terminate the SFA. ¹⁴⁴ DKI claims, however, that FCL(BVI) committed the following repudiatory breaches, ie, it funded the Loan Amount out of the Sale Proceeds and wrongfully purported to terminate the SFA on 14 March 2019 on the basis of the 4th Breach. ¹⁴⁵

120 There was no 1st Breach as DKI made payment on 29 September 2017, as supported by the documentary evidence and accepted by Raymond in court. ¹⁴⁶

121 The second interest payment was due on 1 December 2017. DKI made payment on 7 December 2017 after FCL sent a default notice to DKI (“7/12/17 Default Notice”). ¹⁴⁷ However, I find FCL(BVI) had waived that breach. It did not terminate the SFA, despite its 7/12/17 Default Notice stating that “we as the Lender have the right to terminate the Loan Agreement pursuant to [cl 4(a) of the SFA]”. Instead, it continued to accept the 7 December 2017 interest payment and four other interest payments between 1 March and 1 December 2018. ¹⁴⁸

122 Further, Morgan and Raymond informed Ricky/DKI that FCL continued to treat the SFA as being alive. Morgan’s evidence, maintained at trial, was that Raymond instructed him to waive the 2nd Breach on FCL(BVI)’s behalf, and he thus conveyed the waiver to Ricky in early 2018. Ricky’s evidence corroborates this. ¹⁴⁹ Morgan’s account is also corroborated by a subsequent WhatsApp exchange with Raymond in August 2019 where he informed Raymond the waiver was “only verbal to [Ricky]”. ¹⁵⁰ I further accept Ricky’s testimony that in January 2018, Raymond had told him that FCL would not treat the late interest payment as a breach of the SFA. ¹⁵¹ DKI’s action in making four subsequent interest payments in 2018 only makes sense if Ricky had been told by Raymond and Morgan that the SFA continued to be alive.

123 Raymond argues that cl 10(e) of the SFA required any waiver to be in writing, and that no written waiver was given. ¹⁵² However, a prohibition of an oral waiver may itself be waived, as parties to the contract can vary the contract orally notwithstanding their earlier agreement to the contrary (Charles Lim Teng Siang v Hong Choon Hau [2021] 2 SLR 153 at [44]–[45]). On the evidence above, FCL(BVI) had varied its own right under cl 10(e), by Raymond orally waiving the late payment (on its behalf), and which was conveyed by him and Morgan to Ricky.

124 Next, I find there was no 3rd Breach. Raymond’s case that DKI used the Loan Amount to acquire TSG shares rests on the report of his expert, Mr Jaquiss, and on Raymond’s assertions in his AEIC which are uncorroborated. ¹⁵³

125 Mr Jaquiss concluded that DKI had acquired some 2,635,200 TSG shares after 14 September 2017 without disclosure. ¹⁵⁴ However, his conclusion was erroneous, as he admitted in court. He concluded DKI’s TSG holding as at the end of July 2017 to be 23.7m shares. ¹⁵⁵ In arriving at that figure, he omitted seven of DKI’s disclosed purchases between 20 and 28 July 2017, namely: 495,700 shares on 20 July; 413,100 shares on 21 July; 500,000 shares on 24 July; 279,200 shares on 25 July; 500,000 shares on 26 July; 279,800 shares on 27 July and 142,800 shares on 28 July. These totalled 2,610,600 shares. ¹⁵⁶ Three of these purchases (on 21, 24 and 25 July) appear in Mr Jaquiss’s report but were not carried into his computation of DKI’s holding at the end of that month. ¹⁵⁷ Therefore, DKI’s true holding at that date was 26,335,500 shares, all acquired through disclosed purchases. Mr Jaquiss accepted on the stand that his figure (of 2,635,200 shares acquired after 14 September 2017) was wrong and that there was in fact no non-disclosure. ¹⁵⁸

126 Once the above purchases were accounted for, the only acquisition remaining was DKI’s purchase of 119,700 TSG shares on 14 September 2017. ¹⁵⁹ There is no evidence that DKI used the Loan Amount to purchase these shares. Mr Jaquiss acknowledged in his report, and in court, that there was “no allegation, suspicion or proof” that the sum used to purchase TSG shares from 14 September 2017 onwards was drawn from the Loan Amount. ¹⁶⁰

127 The 4th Breach is based on DKI’s failure to pay the interest instalment of CAD 823,284 due on 1 March 2019. I reiterate some material events.

128 On 13 November 2018, when the Lockout Period had expired, Ricky informed Morgan that DKI intended to repay the loan and redeem the Shares. ¹⁶¹ Over the months that followed, DKI repeated its requests. No substantive response was forthcoming. On or around 27 February 2019, DKI discovered, through UOBKH, that FCL was a BVI entity (see [21]–[22] above).

129 On 28 February 2019, DKI’s solicitors, HWB, wrote to all known addresses of FCL (“28/2/19 Letter”). HWB stated DKI’s intention to repay the loan in full subject to the return of the Shares; and DKI had funds to pay the 1/3/19 Instalment but withheld the payment given its concern that the Shares had been disposed of and that it had lost all contact with FCL’s representatives. DKI also sought confirmation, by 1 March 2019, of the whereabouts of the Shares, whether they had been disposed of, and the whereabouts of the sale proceeds. ¹⁶²

130 FCL(BVI) then issued the 4/3/19 Default Notice stating that the 1/3/19 Instalment had not been paid and if it was not paid, the SFA would be terminated. On 7 March 2019, HWB informed FCL that DKI could not make payment of the 1/3/19 Instalment as FCL’s office at Langham Place (HK) had been vacated (“7/3/19 Letter”). HWB reiterated that DKI had funds to discharge the loan and 1/3/19 Instalment, and that FCL could contact HWB to arrange to receive the 1/3/19 Instalment subject to satisfactory proof of the whereabouts of the Shares. HWB also stated that DKI retained beneficial title to the Shares and FCL could not dispose of them without DKI’s consent. HWB also demanded that FCL respond by 8 March 2019, failing which DKI would take legal action. ¹⁶³

131 As HWB did not receive a response, it wrote to JLC (FCL’s then solicitors) on 11 March 2019 (“11/3/19 Letter”) to state that DKI had reason to suspect that FCL had misappropriated the Shares and/or would be unable to return them upon redemption of the loan. HWB further stated that DKI would take all necessary action against FCL to protect DKI’s interests. ¹⁶⁴

132 On 14 March 2019, JLC informed HWB that FCL had elected to terminate the SFA on account of DKI’s failure to pay the 1/3/19 Instalment (“14/3/19 Letter”). On 20 March 2019, O&B (DKI’s lawyers) stated that FCL’s purported termination of the SFA was a repudiatory breach of the SFA, and DKI elected to terminate the SFA for this breach.

133 DKI argues that it did not breach the SFA by failing to pay the 1/3/19 Instalment and FCL(BVI) could not rely on DKI’s failure as such to terminate the SFA. DKI was mitigating its loss upon discovery of the misrepresentations and was merely ascertaining, in the 28/2/19 Letter, whether FCL(BVI) intended to renounce the SFA. FCL(BVI) also could not rely on the 4th Breach, as its own prior breaches caused DKI to withhold payment. ¹⁶⁵

134 I am unable to accept that, in withholding the 1/3/19 Instalment, DKI was discharging its duty to mitigate its loss and it did not breach the SFA.

135 By around 27 or 28 February 2019, DKI knew (from UOBKH) that FCL was a BVI entity. On 30 August 2017, Tang Hao had confirmed with UOBKH the transfer of the Shares to FCL’s account with UOBKH with the expectation that there would be DVP and by 4 September 2017, DKI knew that simultaneous exchange of the Shares for the Loan Amount had not occurred (see [111]–[114] above). DKI thus knew of the matters founding its complaint before the 1/3/19 Instalment fell due. Ricky admitted that before the 28/2/19 Letter was sent, DKI had discovered that the Shares were transferred to an FCL that was not FCL(UK). ¹⁶⁶ If DKI had intended to mitigate its loss, it should have elected at that time to terminate or rescind the SFA, eg, for fraudulent misrepresentation or breach of cl 2(f) of the SFA. Instead, the 28/2/19 Letter recorded DKI’s intention to repay the loan in full on condition that the Shares were returned. In essence, DKI elected to keep the contract on foot.

136 Despite receiving the 4/3/19 Default Notice, DKI did not terminate the SFA in its 7/3/19 Letter. I do not accept DKI’s claim that it could not pay the 1/3/19 Instalment as FCL’s Langham Place office had been vacated. The first six interest payments were made by telegraphic transfer to FCL’s bank account and this account remained open in March 2019 when the 1/3/19 Instalment was due. ¹⁶⁷ Again, DKI did not, in its 11/3/19 Letter, choose to terminate the SFA, although FCL failed to respond to DKI’s 7/3/19 Letter.

137 DKI continually treated the SFA as alive. It thus remained bound by its obligations thereunder, including having to pay the 1/3/19 Instalment. Its failure to do so was a breach of the SFA. This entitled FCL(BVI) to terminate the SFA.

138 DKI further argues that the 28/2/19 Letter was merely to ascertain if FCL(BVI) intended to renounce the SFA, which FCL(BVI) confirmed through its silence on 1 March 2019 and its express renunciation in the 14/3/19 Letter.

139 DKI relies on SK Shipping (S) Pte Ltd v Petroexport Ltd [2009] EWHC 2974 (Comm) (“SK Shipping”). There, the claimant doubted whether the charterer would perform as the charterer had failed to put up the requisite letter of credit and to return the signed copy of charterparty. The claimant thus asked the charterer to confirm unequivocally and unconditionally, by a stated deadline, that it would load the cargo as agreed. Flaux J held that the making of that enquiry was “perfectly legitimate”, being “a natural reaction ... to what was undoubtedly an uncertain situation as regards the defendant’s precise intention”, and that the charterer’s complaint that the enquiry was “uncontractual” was misplaced. The claimant was justified in asking the question “whatever the strict contractual position” (at [102]–[103]). When no confirmation came, it terminated the charterparty (at [80]), and that termination was upheld.

140 DKI claims its position was the same. It had endured months of silence and obfuscation in response to its requests concerning redemption, discovered the Shares had been transferred out of its account, sought urgent clarification by a stated deadline, and received no answer. ¹⁶⁸

141 SK Shipping is distinguishable from the present facts. There, the claimant did not withhold its own performance while awaiting the defendant’s response. It had brought the vessel to the loading port for loading. Here, DKI withheld the 1/3/19 Instalment. Further, when the deadline passed and no response came, the claimant in SK Shipping terminated the charterparty, and did so within a day. DKI did neither of the things open to it. It did not perform (by paying the 1/3/19 Instalment) or terminate the SFA on the basis of FCL(BVI)’s breach. DKI alleged that FCL(BVI)’s conduct was a repudiatory breach of the SFA only after it received FCL(BVI)’s 14/3/19 Letter to terminate the SFA.

142 Therefore, even if DKI was entitled to ask the whereabouts of the Shares, its obligation under cl 3(a) to pay quarterly interest instalments remained, and its failure to pay the 1/3/19 Instalment was a breach of the SFA.

143 Finally, DKI claims there was an implied term of the SFA requiring FCL(BVI), within a reasonable time, to acknowledge receipt of DKI’s notification of an intention to redeem the loan under cl 4(b) of the SFA and to respond to such notification. ¹⁶⁹ By breaching this implied term, FCL(BVI) could not rely on the 4th Breach to terminate the SFA.

144 The implication of terms is to be considered using a three-step process (Sembcorp Marine Ltd v PPL Holdings Pte Ltd [2013] 4 SLR 193 (“Sembcorp Marine”) at [101]). First, ascertain how the gap in the contract arises. Implication will be considered only if the court discerns that the gap arose because the parties did not contemplate the gap. Second, the court considers whether it is necessary in the business or commercial sense to imply a term 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 such a clear response, then, the gap persists and the consequences of that gap ensue.

145 Clause 4(b) of the SFA is as follows:

146 I agree with DKI that a term should be implied into cl 4(b), ie, that the lender must respond to the “Notification” (as defined in cl 4(b)) and within a reasonable time (“Response Term”). I find there is a gap in cl 4(b) not contemplated by the parties to the SFA and that it is necessary to imply such a Response Term. Clause 4(b) provides that a Notification shall not be valid or in force until the lender acknowledges it in writing. Absent the Response Term, the lender (FCL(BVI)) can ignore a Notification and never give effect to the borrower’s (DKI’s) intent to repay the loan and redeem the relevant value of the collateral (Shares). This outcome could not have been contemplated or agreed to by the parties. The Response Term is also necessary to give the SFA business efficacy and is one to which the parties would have agreed had the term been proposed at the time of contracting. Without it, the redemption mechanism in cl 4(b) could be rendered nugatory at the lender’s whim.

147 That said, it is unclear if DKI had given a notification in compliance with cl 4(b), as it did not state a “desired date of Repayment” in its 28/2/19 Letter, which DKI acknowledged it had to do. Instead, DKI stated that it intended to repay the loan subject to FCL returning the Shares. DKI accepts that under cl 4(b), the lender can decide to return to the borrower (when repayment of the loan is made) the value of the Shares in cash equivalent. ¹⁷⁰

148 Nevertheless, even assuming DKI had given a notification that complied with cl 4(b) (via its 28/2/19 Letter), DKI was still obligated to pay the 1/3/19 Instalment. This is clear even from DKI’s 28/2/19 Letter where it acknowledged that it was able to discharge the 1/3/19 Instalment payment. In any event, it cannot be said that the Response Term was breached by FCL(BVI) as it had in its 14/3/19 Letter acknowledged DKI’s notification. ¹⁷¹

149 Hence, FCL(BVI) was entitled to terminate the SFA when DKI failed to pay the 1/3/19 Instalment. The prevention principle (which DKI relies on) does not assist DKI, as a party cannot insist on his contractual rights when he had himself caused the non-performance of a contractual event (Ng Koon Yee Mickey v Mah Sau Cheong [2022] 2 SLR 1296 at [80]). DKI’s non-payment of the 1/3/19 Instalment was not due to a failure on FCL(BVI)’s part to respond to DKI’s notification, but due to DKI’s own concern about the whereabouts of the Shares and the discovery of the falsity of the Identity Representation. ¹⁷²

150 I therefore find that FCL(BVI) was entitled to terminate the SFA on 14 March 2019 based on the 4th Breach. DKI’s counsel accepted that if DKI was required to make an interest payment by a stipulated date and failed to do so, FCL(BVI) would be entitled to terminate the SFA. ¹⁷³

151 Finally, DKI claims that FCL(BVI) had breached an implied term (in cl 2(f) of the SFA) not to fund the loan from the Sale Proceeds (“Financing Term”). Applying the three-step test in Sembcorp Marine (see [144] above) a term should be implied into the SFA that FCL(BVI) would not fund the disbursement of the loan by selling the Shares. The SFA does not expressly stipulate or restrict the source of funds from which the loan was to be disbursed to DKI. That gap arose because the parties to the SFA did not contemplate that the lender might fund the advance out of the very collateral it was simultaneously receiving. The Financing Term is necessary to give the SFA business efficacy, since cl 2(f) requires a simultaneous exchange of funds for the collateral, and a lender who sells the collateral to raise the advance cannot perform such an exchange at all. As I found the Financing Representation was made to DKI, the parties to the SFA would have responded “Oh, of course!” had the proposed term been put to them at the time of the contract.

152 Although the Financing Term was breached, DKI did not seek to terminate the SFA on that ground. Its election to terminate, communicated in the 20 March 2019 letter from O&B to JLC, was founded on FCL(BVI)’s purportedly wrongful termination on 14 March 2019, which was itself premised on the 4th Breach. ¹⁷⁴ Thus, even if FCL(BVI) had breached an implied term, DKI cannot now rely on that breach to terminate a contract which FCL(BVI) had validly terminated on 14 March 2019. However, DKI’s right to claim for damages for any prior breach of the SFA by FCL(BVI) is not extinguished, as every breach of contract entitles the innocent party to claim damages as of right. This can apply to both a claimant or defendant, each being entitled to claim damages for a breach committed by the other (Alliance Concrete Singapore Pte Ltd v Comfort Resources Pte Ltd [2009] 4 SLR(R) 602 at [31] and [84]; Denka Advantech Pte Ltd v Seraya Energy Pte Ltd [2021] 1 SLR 631 at [60]).

153 That said, whilst DKI committed a repudiatory breach of the SFA by failing to pay the 1/3/19 Instalment, FCL(BVI) has not made a claim against DKI. The defendants plead DKI’s default to justify FCL(BVI)’s termination of the SFA and to deny its entitlement to the return of the Shares or its equivalent in value. ¹⁷⁵

154 DKI further alleges that the defendants and Morgan had engaged in a conspiracy by lawful and unlawful means. DKI claims they conspired to cause loss to DKI by: (a) cheating DKI and wrongfully depriving it of its Shares; (b) dishonestly dealing with the Shares by selling them and using the Sale Proceeds to fund the Loan Amount; (c) concealing these actions by avoiding or ignoring DKI’s request to redeem the Shares and failing to answer DKI’s queries on their whereabouts; and (d) contriving to fabricate an alleged breach of the SFA by DKI to avoid having to return the Shares or their equivalent cash value to DKI. ¹⁷⁶

155 In a claim for conspiracy by unlawful means, it must be shown that: (a) there was a combination of persons to do certain acts; (b) the persons had the intention to cause damage or injury to the claimant by those acts; (c) the acts were unlawful and performed in furtherance of the agreement; and (d) the claimant suffered loss as a result of the conspiracy (EFT Holdings, Inc v Marinteknik Shipbuilders (S) Pte Ltd [2014] 1 SLR 860 (“EFT Holdings”) at [112]). In a conspiracy by lawful means, no unlawful act need be committed, but the claimant must prove a predominant purpose by all the conspirators to cause injury or damage to him, and that the act was carried out and the purpose achieved (Raffles Town Club Pte Ltd v Lim Eng Hock Peter [2013] 1 SLR 374 at [62]; Quay Kay Tee v Ong and Co Pte Ltd [1996] 3 SLR(R) 637 at [45]).

156 As for proof of the conspiracy, it is not often that the victim will be able to obtain direct evidence to prove the allegation and such proof is normally to be inferred from other objective facts (Asian Corporate Services (SEA) Pte Ltd v Eastwest Management Ltd (Singapore Branch) [2006] 1 SLR(R) 901 at [19]).

157 I find DKI has made out its claim for unlawful means conspiracy against the defendants, of which Morgan was a party to. This is supported by my findings on the claims for misrepresentation and other evidence below.

158 I find the defendants and Morgan acted together to deceive DKI into believing that the lender in the SFA was a UK-entity regulated by the FCA UK, then sold the Shares to finance the Loan Amount (contrary to the Financing Representation) and subsequently deprived DKI of the Shares or its equivalent value when it intended to redeem the loan. This can be seen and inferred from the manner in which they worked together, and their knowledge of what each other was doing, before and after the SFA was executed.

159 To begin with, I have found that Morgan negotiated the Loan Transaction with DKI within parameters Raymond set or with Raymond’s express approval, and that Raymond was kept constantly apprised of the progress of negotiations and gave his instructions throughout (see [54] above).

160 Indeed, even before inducing DKI to enter the SFA, Raymond had, by 2016, assembled the apparatus to make this possible. He incorporated a series of identically-named “FCL” entities but deliberately caused the creation of only a single FCL Website and Email Domain, presenting to potential borrowers (like DKI) that FCL was a UK-incorporated entity regulated by the FCA UK (see [94]–[96] above). Morgan was copied in the email chain of 29 October 2016 in which Raymond instructed Jay to apply the Disclaimer to the Email Domain. ¹⁷⁷ By this time, Morgan knew of the existence of both FCL(BVI) and FCL(UK), and he all along treated the lending entity to DKI as FCL(BVI), being the entity for the stock-loan business (see [91] above). Yet, on Raymond’s instructions, Morgan suggested to Julius (to convey to DKI) the potential lending entity as the FCA-regulated FCL (see [71]–[72] and [92] above). On Morgan’s own evidence, he had either pointed Julius to the FCL Website (on Raymond’s instructions) or confirmed the website when Julius went to look it up and then verified with Morgan (see [76] above).

161 Then, despite having conveyed the Identity Representation to Julius, Morgan did not correct it when Raymond expressly informed him to “use Fullerton BVI” on 8 August 2017. The fact that the transacting party was FCL(BVI) was never disclosed to DKI (see [74], [82] and [91] above). The Identity Representation continued to be maintained by Raymond in using a similar FCL logo for the FCL Website, Term Sheets and SFA.

162 My findings pertaining to the Financing Representation also support the conclusion that the defendants and Morgan acted in combination to maintain that representation. As I have found, Morgan knew that DKI wanted the Loan Transaction on a DVP basis, and he knew what that meant. The representation was carried through in the draft SFA and eventual signed SFA, which were prepared on Raymond’s directions.

163 After the SFA was signed, Raymond and Morgan were both attempting to secure buyers for the Shares to raise funds to pay the Loan Amount to DKI, and they kept each other apprised of the progress of the matter. Morgan admitted that at this time, he knew (having been told by Raymond) that FCL(BVI) had no funds to disburse the loan to DKI. ¹⁷⁸ Then, once the Loan Amount had been disbursed to DKI and expenses met, the balance of the Sale Proceeds were transferred from FCL(BVI) to Raymond and his other entities. None of these were disclosed to DKI. On the contrary, Julius was told, and passed on to Ricky, that the delays in disbursement were attributable to the bank. ¹⁷⁹

164 Next, when DKI began inquiring about redemption of the loan, Raymond instructed Morgan not to respond, and Morgan did not. The defendants and Morgan began stalling from around May 2018, when Ricky asked Morgan about negotiating a repayment of the loan. Their silence continued through Ricky’s subsequent emails to Morgan from November 2018 to February 2019 which went unanswered (see [20]–[21] above). Raymond attested that his staff were cautioned not to answer DKI’s queries without express instructions from Morgan or him, and that this standing order remained in force in February 2019. ¹⁸⁰ Morgan’s evidence, not challenged in cross-examination, was that Raymond insisted he should not respond, as DKI might not be willing to repay the loan if its enquiries continued to be ignored, and that the defendants would then not have to return the Shares or its equivalent value. Morgan attested also that, when DKI sent the 28/2/19 Letter, Raymond had already been formulating a strategy to engineer a situation in which he could allege that DKI had breached the SFA to avoid returning the Shares or its equivalent in value to DKI. ¹⁸¹

165 Further, consistent with the above conduct and silence maintained, Raymond started to disassociate himself from FCL. He “sold” FCL(BVI) to Zhou on 20 March 2018; transferred his shareholding and directorship of FCL(Cayman) to a Mr Man Yun Wah on 31 May 2018; changed FCL(UK)’s name to Fullerton Asset Management Limited in November 2018; and instructed Jay to set up a new website with a different domain name. ¹⁸² Yet, he continued to be the controlling mind and will of the entities. He also closed his entities’ accounts with UOBKH (including the FCL(BVI) A/c) in May 2018. ¹⁸³

166 The final act was the dissolution of FCL(BVI) in 2022, after Suit 435 had been commenced and a worldwide freezing order was in force against FCL(BVI). I have found that Raymond was responsible for procuring that dissolution. By this time, Morgan had fallen out with Raymond and played no part in it. ¹⁸⁴

167 FCL(BVI)’s involvement in the above is clear. It was the contracting party under the SFA, the Shares were transferred into its brokerage account with UOBKH, its funds were paid out to Raymond and his other entities, and it issued the 4/3/19 Default Notice and 14/3/19 Letter of termination. A company and its director, notwithstanding that the director is the moving spirit of the company or its alter ego, can conspire to cause harm to a third party (PT Sandipala Arthaputra v STMicroelectronics Asia Pacific Pte Ltd [2018] 1 SLR 818 (“PT Sandipala”) at [4] and [72]). Here, FCL(BVI) would have acted through its controlling director (and shareholder) Raymond.

168 Raymond argues there was no such elaborate scheme for FCL(BVI) to masquerade as another entity. If he intended to deceive borrowers in this manner, he would have proposed FCL(BVI) from the start to DKI, rather than having Morgan propose Qilin and Carrington first. ¹⁸⁵ I am not persuaded by the logic of Raymond’s argument. Pertinently, the evidence has shown that the BVI entity of FCL was never proposed or conveyed to DKI as the lending entity, nor was it ever disclosed to DKI before or after the signing of the SFA. On the contrary, I have found that the evidence shows that Raymond had devised a scheme to induce DKI to enter the SFA and part with its Shares, with the intent to defraud DKI.

169 I turn to Morgan’s argument that he had merely acquiesced “against his will” to Raymond’s instructions and was in no position to prevent Raymond acting as he wished. He relies on Lakatamia Shipping Co Limited v Nobu Su [2021] EWHC 1907 (Comm) (“Lakatamia”) at [96] for the proposition that an individual who is aware that another is committing an unlawful act, but does not take steps to stop it, may not be a party to a combination to carry out that act, and relies on two examples in that case (at [98] and [104]). In the first, a director and majority shareholder who consents to the company being used by a fellow director to smuggle drugs is a party to the conspiracy: he controls the company’s operations, he benefits from its use, and by knowingly permitting that use and failing to stop it, he can be inferred to have participated in carrying out the act. In the second, a subsidiary which merely knows or suspects that another subsidiary is committing an unlawful act, and does nothing to stop it, is not a party to it, having no ability to direct or prohibit the other’s conduct and having taken no part in it. Morgan submits that his situation is akin to the second example, as he was a mere employee with no power to direct FCL(BVI), which Raymond controlled. ¹⁸⁶

170 Morgan’s argument is a misreading of Lakatamia. In the illustrations, the director was liable not because he possessed power, nor was the subsidiary excused because it lacked power. The director (being also the majority shareholder) was liable because, by allowing his company to be used, he adhered to the combination and was party to it. The subsidiary, on the other hand, was a mere bystander and stranger to any combination, who, although it knew the other party was committing an unlawful act, did nothing more (Lakatamia at [100]).

171 Thus, that Morgan did not control or direct FCL(BVI) did not therefore mean he could not be a party to the conspiracy. Whilst participation in a conspiracy can be passive, Morgan was an active participant. As can be seen from my findings above, he was not a “mere bystander” or “stranger” to the defendants or conspiracy. He participated in the scheme with the defendants to give the false impression that FCL(BVI) was a UK entity that was FCA-regulated. When he was informed by Raymond, after the execution of the SFA, that FCL(BVI) could not independently fund the disbursement of the Loan Amount to DKI, he continued to convey the impression of “DVP” to Julius and even assisted Raymond to find buyers for the Shares to fund the disbursement of the Loan Amount. He then chose to keep silent and not respond to DKI when it inquired about the redemption of the loan and sent numerous emails to him.

172 The element of unlawfulness in unlawful means conspiracy covers both a criminal act and means, as well as an intentional act that is tortious. There is no requirement for the unlawful means to be independently actionable (Beckkett Pte Ltd v Deutsche Bank AG [2009] 3 SLR(R) 452 at [120]; EFT Holdings at [91]). I find the defendants and Morgan deployed unlawful means in their conspiracy against DKI.

173 I have found the Representations were made and they were false. The element of unlawfulness is satisfied in that the intentional act was tortious (ie, fraudulent misrepresentation).

174 Next, Raymond and Morgan intentionally procured FCL(BVI)’s breach of the SFA, ie, the Financing Term (see [151] and [162] above).

175 Where the unlawful means relied upon is the company’s breach of contract, a director is immune from tortious liability for procuring that breach or conspiring with the company to breach its contract, ie, the Said v Butt [1920] 3 KB 497 (“Said v Butt”) principle. This is unless the claimant proves the director breached his personal legal duties to the company in directing or participating in the breach of contract (PT Sandipala at [65] and [72]). The protection of the Said v Butt principle does not apply where the director authorised or procured another tort by the company or employed unlawful means other than the breach of contract to cause loss to the claimant. In such cases the director may still be personally liable for his company’s tort (PT Sandipala at [73]).

176 Raymond cannot rely on the immunity under the Said v Butt principle, as he had breached his personal legal duties to FCL(BVI) in directing and participating in the breach of the SFA. He procured FCL(BVI)’s breach of the implied term (at [151] above) and placed it in a position where it would incur a liability to DKI that it had no assets to meet. He also took positive steps to ensure that FCL(BVI) would not be able to discharge its obligation subsequently (when DKI wanted to redeem the Shares) by selling the Shares and dissipating the remainder of the Sale Proceeds to himself and his other entities. In doing so, he breached his duty to FCL(BVI) by acting in his own interest and to the detriment of FCL(BVI).

177 Finally, I have found that Raymond procured FCL(BVI)’s dissolution in breach of the Mareva injunction to which it was subject.

178 Next, injury to the claimant must have been intended as a means to an end or as an end in itself (EFT Holdings at [101]). I find the conspirators intended to cause injury to DKI by the unlawful acts.

179 The defendants’ and Morgan’s unlawful acts were made with the intention to injure DKI, either as a means to an end or as an end in itself. The false Representations were made to DKI to induce DKI to part with the Shares and to cause injury to DKI (see [89], [109] and [116] above). The intent to cause injury to DKI is further supported by the defendants’ subsequent acts in selling the Shares to fund the Loan Amount, dissipating the remaining balance of the Sale Proceeds and dissolving FCL(BVI) subsequently, all without DKI’s knowledge at the material times. The sale of the Shares was not merely left undisclosed, but a cover story woven to obscure it. While the Shares were being sold, DKI was told, through Julius, that the delays in disbursement of the Loan Amount to DKI were attributable to difficulties with the bank (see [163] above).

180 Morgan’s participation in the unlawful acts was with intent to injure DKI. Despite knowing that FCL(BVI) did not have any funds to effect simultaneous exchange for the Shares, he did not inform DKI of this and he even assisted Raymond to source for buyers for the Shares. They then became silent from around May 2018. As Morgan attested, the hope was that DKI would abandon its attempts to repay the loan if its enquiries were ignored, thereby relieving the defendants of any obligation to return the Shares or its equivalent value (see [164] above).

181 Morgan’s defence is that he was forced to obey Raymond in relation to ignoring DKI’s correspondence between May 2018 and February 2019 because Raymond had sole discretion over his remuneration and he was in a financially precarious position at that time. Morgan also claims he was not party to the discussions between Raymond and Raymond’s solicitors. ¹⁸⁷

182 In a tort of lawful means conspiracy, the act may be justified where self-interest is the predominant motivation. However, if the means are unlawful, there is no scope for such justification as a means of avoiding liability. One cannot combine and undertake an unlawful course of action with the intention to harm another even if the principal motive is to benefit oneself (EFT Holdings at [96]). In any event, Morgan’s financial difficulties (ie, motive) pertained to the period when he ignored DKI’s correspondence from around May 2018. This was months after his involvement in the Representations and in assisting Raymond to source for buyers for the Shares. Thus, such motive is irrelevant.

183 As for Raymond, he claims the defendants and Morgan were silent as they regarded DKI as having been in breach of the SFA from around 28 May 2018 and they had grown wary and exasperated by DKI’s use of “euphemisms” in seeking a waiver of its breaches. He claims the silence was not intended to deprive DKI of anything but reflected a concern that any response to DKI’s enquiries might be construed as waiving the breaches which had occurred. ¹⁸⁸

184 Raymond’s explanation is clearly unconvincing and baseless. First, there was no 1st Breach (or other prior breaches that FCL(BVI) had relied on), the 2nd Breach had been waived by FCL(BVI) and there was no evidence to support the 3rd Breach (see [120]–[126] above). Next, a party genuinely anxious that its correspondence might be read as a waiver would craft a carefully worded response while reserving its rights. Instead, Raymond cautioned his staff not to answer any of DKI’s queries without express instructions from Morgan or himself (see [164] above). Furthermore, during the period of silence, Raymond was closing his entities’ accounts with UOBKH and interposing nominee shareholders and directors to distance himself from those entities (see [165] above). Such acts were not to preserve FCL(BVI)’s contractual position; instead, they were acts to place its assets, and itself, beyond DKI’s reach.

185 Finally, there must be proof of pecuniary damage. However, the claimant need not prove that loss precisely: the existence of the damage may be relied on to provide, by inference, evidence of quantum (Li Siu Lun v Looi Kok Poh [2015] 4 SLR 667 at [43]). DKI had suffered loss. It transferred its Shares and made interest payments under the SFA to FCL(BVI), in circumstances where FCL(BVI) would be in no position to return the Shares or its equivalent value in cash when DKI intended to redeem the loan.

186 I thus find that DKI’s claim for unlawful means conspiracy against the defendants is made out.

187 It is thus unnecessary to consider DKI’s claim in lawful means conspiracy. That said, my findings above also support the conclusion that the defendants’ predominant purpose was to cause injury to DKI by their acts and injury was caused to DKI. The same can be said regarding Morgan pertaining to his involvement in the Representations and in assisting Raymond to dispose of the Shares, all occurring before the time of his precarious financial position.

188 I turn to Raymond’s claim that FCL(BVI) could rely on the EA Clauses, ie, cl 10(k) of the SFA and cl 9.3 of the Control Agreement, to exclude itself from liability against DKI. I find the EA Clauses do not affect DKI’s claims.

189 Clause 10(k) of the SFA states as follows: ¹⁸⁹

190 Clause 9.3 of the Control Agreement states as follows: ¹⁹⁰

191 First, Raymond and Morgan cannot rely on the EA Clauses to exclude liability from DKI’s causes of action against them, as they are not parties to the SFA and Control Agreement. Mr Spink KC, Raymond’s own English law expert, accepts that Raymond cannot rely on the EA Clauses. ¹⁹¹

192 Second, the EA Clauses do not affect DKI’s claims against FCL(BVI) for misrepresentation. The exclusion of liability for misrepresentation in an entire agreement clause must be clearly stated, such as by stating that no representations were made, that there has been no reliance on any representations, or by an express exclusion of liability for misrepresentation (RBC Properties Pte Ltd v Defu Furniture Pte Ltd [2015] 1 SLR 997 (“RBC Properties”) at [111]–[113], citing AXA Sun Life Services plc v Campbell Martin Ltd [2011] 2 Lloyd’s Rep 1 (“AXA Sun”) at [94]).

193 In RBC Properties, the relevant clause stated that “The Landlord shall not be bound by any representations or promises with respect to the Building and its appurtenances, or in respect of [the Premises], except as expressly set forth in this Lease with the object and intention that the whole of the agreement between the Landlord and the Tenant shall be set forth herein … and shall in no way be modified by any discussions which may have preceded the signing of this Lease.” The Court of Appeal held that the clause, being an entire agreement clause, had no application to pre-contractual representations leading to a claim in misrepresentation, as it merely deals with when a representation may be taken to have become a contractual term, and not whether any representation was denuded of legal effect in a claim for misrepresentation (at [113]).

194 In the present case, the EA Clauses are even narrower as they do not refer to any representations at all. As Rix LJ observed in AXA Sun (at [94]), talk of the parties’ contract superseding prior agreements will not by itself absolve a party of misrepresentation where its ingredients can be proved.

195 Raymond submits that DKI was contractually estopped from asserting that it relied on the Representations, relying on Watford Electronics Ltd v Sanderson CFL Ltd [2001] 1 All ER (Comm) 696 (“Watford Electronics”) at [39] and Deutsche Bank AG v Chang Tse Wen [2013] 1 SLR 1310 (“Chang Tse Wen”) at [130]–[131]. Raymond argues the EA Clauses contained an acknowledgement that DKI had read and understood the SFA and that it was to have sought its own legal advice. Thus, DKI had acknowledged that it could not rely on the Representations. ¹⁹² Again, this argument is without merit.

196 In so far as a defence of evidential or contractual estoppel is relied on by FCL(BVI), it pleaded that DKI entered into the SFA in reliance on its own legal advice pursuant to cl 10(k) of the SFA. ¹⁹³ But this does not assist FCL(BVI). Any acknowledgement of non-reliance on prior representations made by FCL(BVI) must nevertheless be clear and unambiguous (Chang Tse Wen at [130] and [132]). The EA Clauses merely acknowledge that DKI does not rely on FCL’s legal counsel and is to seek its own legal advice. The EA Clauses do not state that there was no reliance on any representations or refer to representations for that matter.

197 DKI submits the EA Clauses do not prevent the implication of terms into the SFA. ¹⁹⁴ That submission was directed at its claim for repudiatory breach of the SFA by FCL(BVI), which I have rejected. I nonetheless address this issue, as I have found the SFA to contain an implied Financing Term which was breached as an unlawful means in DKI’s conspiracy claim (see [174] above). For an entire agreement clause to exclude the implication of terms into a contract, it must express such effect in clear and unambiguous language (Ng Giap Hon v Westcomb Securities Pte Ltd [2009] 3 SLR(R) 518 at [32]). Here, the EA Clauses do not have such effect, as they do not contain any express language to exclude implied terms nor make any reference to implied terms.

198 I turn to Raymond’s third party claims.

199 Raymond’s pleaded case against Julius is as follows:

(a) Julius made the Representations without the defendants’ knowledge and approval. He was not the defendants’ agent and he did not have the authority to make representations on their behalf. ¹⁹⁵

(b) In communicating with Morgan to push for the loans to be advanced quickly, Julius represented to the defendants and Morgan that DKI agreed to FCL(BVI) selling the Shares to disburse the loan to DKI (“Julius’s Representation”). Relying on the representation, FCL(BVI) was induced to sell the Shares and disburse the Loan Amount from the Sale Proceeds. ¹⁹⁶

(c) On or around 20 September 2017, Julius informed the defendants via Morgan that DKI was placated and accepted the sale price of CAD 21.78 per Share (“September Representation”). Julius thus represented to the defendants that DKI was aware that all the Shares were sold by September 2017 and had no objection to the sale. In reliance on this representation, FCL(BVI) did not take any step, and lost the opportunity, to rescind the SFA, stop the disbursement of the loan to DKI, or re-purchase TSG shares to return to DKI. ¹⁹⁷

(d) Julius, as DKI’s agent, owed the defendants a duty of care to faithfully and correctly convey to DKI, that FCL was a BVI entity and the condition that FCL(BVI) was free to sell the Shares to fund the loan set out in the SFA. ¹⁹⁸

(e) Julius owed Raymond a duty of care, separate from the duty owed to FCL(BVI), as Julius intended for Julius’s and the September Representations to be conveyed to Raymond, FCL(BVI)’s director. ¹⁹⁹

(f) Julius owed the defendants a duty of care to faithfully and correctly convey, to the defendants, DKI’s terms for the SFA. ²⁰⁰

(g) In the event the defendants are liable to DKI, they seek a contribution against Julius under s 15 of the CLA. ²⁰¹

200 To begin with, FCL(BVI) did not participate in the trial of Suit 435 (see [28] above). I thus deal with Julius only vis-à-vis Raymond. In this regard, I find Raymond’s claims against Julius to be unmeritorious.

201 I have found that Julius was authorised by the defendants to deal with DKI on the Loan Transaction and to convey the Representations. I have further found that the Representations were conveyed with the defendants’ knowledge and approval, either through Morgan or other channels such as the FCL Website and draft SFA which were within Raymond’s purview and control.

202 It is thus unclear what duty Julius had breached vis-à-vis Raymond or FCL(BVI). He did not owe Raymond any contractual duty. Raymond was not a party to the Consultant Agreement and BEC Agreement. Moreover, Julius merely conveyed what had been told to him by Morgan (who was representing FCL(BVI) and acting on Raymond’s instructions and knowledge). There is no evidence that he exceeded his authority, for instance, by communicating something that was not authorised by his principal.

203 Next, I find that Raymond has not proved that Julius’s Representation was made. First, his own case as to the representation is inconsistent. He pleads that Julius represented (to Morgan) that DKI had agreed to FCL(BVI) selling the Shares on the open market instead of a block sale, to disburse the loan to DKI. In his AEIC, however, he claimed that DKI agreed to transfer the Shares into the FCL(BVI) A/c without waiting for the simultaneous exchange. In court, Raymond could not reconcile the two accounts. ²⁰² Importantly, there is no documentary evidence to support Raymond’s claim that Julius had informed Morgan that DKI had consented to the sale of the Shares by FCL(BVI), or to the transfer of the Shares into the FCL(BVI) A/c to disburse the loan without waiting for “simultaneous exchange”. Second, despite Raymond’s AEIC running to over 200 pages (not counting the exhibits attached therein) and exhibiting numerous WhatsApp messages, Raymond could not point to any email or message from Morgan conveying this. ²⁰³ For completeness, neither Julius nor Morgan has attested to such a conversation between them.

204 As for the September Representation, I find that FCL(BVI) (and Raymond for that matter) did not act or rely on it. Raymond claims the representation was made on 20 September 2017, and FCL(BVI) is said to have relied on it by refraining from rescinding the SFA, halting disbursement of the Loan Amount to DKI, or re-purchasing TSG shares to return to DKI. However, it is undisputed that by 15 September 2017, FCL(BVI) had disbursed more than CAD 100 million of the CAD 103,075,156.80 loan, leaving only a single tranche of CAD 2,716,489.44, which was disbursed on 22 September 2017. ²⁰⁴ Hence, the defendants could not have relied on the September Representation to refrain from disbursing the Loan Amount, the bulk of which was disbursed before the representation was made. It is also unclear what loss FCL(BVI) had suffered in any event even if it had so relied and acted on the representation.

205 I turn to Raymond’s claim for a contribution under s 15 of the CLA. Section 15(1) provides that a person liable in respect of any damage may recover contribution from any other person liable in respect of the same damage. The relevant test is as follows: (a) what damage is suffered by the injured person (“X”); (b) is the party seeking contribution (“B”) liable to X in respect of that damage; and (c) is the party from whom contribution is sought (“C”) also liable to X in respect of that very “same damage” or some of it. B’s claim to share his liability to X with C rests upon the fact that C is subject to a common liability to X (Tan Juay Pah v Kimly Construction Pte Ltd [2012] 2 SLR 549 at [48]–[49]; Ho Yew Kong v Sakae Holdings Ltd [2018] 2 SLR 333 (“Sakae”) at [212]–[213]).

206 I find that Raymond cannot succeed in his claim against Julius for contribution. In so far as DKI’s claims against Raymond for conspiracy, repudiatory breach of the SFA, and regarding piercing the corporate veil, there is no liability by Julius to DKI. Julius was not involved in, nor has DKI or Raymond made any allegations against Julius on, these claims.

207 There is also no common liability between Raymond and Julius to DKI in respect of the same damage to DKI for misrepresentation. Raymond has not shown how Julius owed any duty of care to DKI such that DKI would have an actionable claim against Julius. Julius merely conveyed information to DKI based on what he was told by Morgan; he did not undertake responsibility for the accuracy of the information beyond the ordinary duties of honesty and good faith. There is no evidence that suggests that Julius warranted the information, that he passed to DKI, was accurate. As for Julius’ and the September Representations, Raymond’s case is that it was made to him (and not to DKI) and I have found Julius not liable for them in any event.

208 I turn to Raymond’s third party claim against UOBKH.

209 Raymond pleads that UOBKH owed him a duty of care, to ensure that it had DKI’s authority to transfer the Shares, and not to wrongfully transfer the Shares, from the DKI A/c to the FCL(BVI) A/c. Raymond pleads that UOBKH had breached its duty of care to the defendants. ²⁰⁵ He further pleads that: (a) UOBKH had represented to the defendants that DKI had authorised UOBKH to transfer the shares from the DKI A/c to the FCL(BVI) A/c in August 2017 (“UOBKH Representation”); ²⁰⁶ (b) he relied on the representation to his detriment by operating the FCL(BVI) A/c to sell the Shares, receive the Sale Proceeds, disburse the Loan Amount to DKI and pay various fees from the Sale Proceeds; and (c) the representations were false. The gravamen of Raymond’s claims is that the Shares were wrongfully transferred from the DKI A/c to the FCL(BVI) A/c when UOBKH had no authority from DKI to do so.

210 As with Raymond’s claims against Julius, I find his claims against UOBKH to be unmeritorious.

211 UOBKH owed Raymond no duty of care. Raymond, although FCL(BVI)’s director, was not the account holder of the FCL(BVI) A/c and had no contractual relationship with UOBKH pertaining to the Loan Transaction. Any duty owed by UOBKH in operating the DKI A/c and FCL(BVI) A/c was owed to its customers DKI and FCL(BVI). A company is a separate legal person from its directors, and a duty owed to the company is not, without more, owed to the director. For completeness, FCL(BVI) has not brought a claim against UOBKH. ²⁰⁷

212 Even taking Raymond’s case at its highest, UOBKH had not breached any duty (either to him or FCL(BVI)). Raymond accepted that once the Shares were deposited into the DKI A/c, FCL(BVI) had complete control over them; that it was for FCL(BVI) to determine when the Shares were to be transferred to the FCL(BVI) A/c; and that the control and contractual right to make the transfer from the DKI A/c to the FCL(BVI) A/c always vested in FCL(BVI). ²⁰⁸

213 That the contractual right to make the transfer belonged to FCL(BVI), is supported by the following:

(a) Clause 5(g) of the SFA provides that once the Shares are delivered to the DKI A/c, “the Lender shall have full control of the [Shares]” and that “the parties all acknowledge that the Lender may … provide notification to [UOBKH] directing it to use, reuse … any collateral … in the account (each, an ‘Entitlement Order’)”, and that “[UOBKH] shall comply with any such Entitlement Order originated by the Lender without further consent by, or notice to, the Borrower.” ²⁰⁹ [emphasis added].

(b) Clause 1 of the Control Agreement provides that “the Lender may from time to time provide notifications to [UOBKH] directing it to sell, trade … any funds or other property in the Account (each, an ‘Entitlement Order’). The parties further acknowledge that [UOBKH] shall comply with any such Entitlement Order originated by the Lender without further consent by, or notice to, [DKI]”. ²¹⁰ [emphasis added].

(c) The Custody Agreement provides that “[FCL] will be authorised to operate [the DKI A/c]” and “[DKI] shall have no right to give any instructions to [UOBKH] and [UOBKH] is not liable to carry out any such instructions unless such instructions are also approved in writing by [FCL]”. ²¹¹ [emphasis added]

214 FCL(BVI) thus had complete control over the transfer of the Shares from the DKI A/c to the FCL(BVI) A/c and that UOBKH was required to comply with all instructions given by FCL(BVI) pertaining to such transfer. UOBKH cannot thus be said to have wrongfully transferred the Shares into the FCL(BVI) A/c when Raymond (acting for FCL(BVI)) had instructed UOBKH to do so.

215 In any event, the evidence shows that UOBKH had taken reasonable and adequate steps to verify that the transfer of the Shares to the FCL(BVI) A/c could proceed. First, both DKI and FCL(BVI) had provided UOBKH with the STIs for UOBKH to process the transfer (see [16] above). Second, I have found that UOBKH had called Tang Hao on 30 August 2017 to verify that he had signed the Custody Agreement and STI, and that he had authorised the transfer (see [111] above). In court, Raymond conceded that UOBKH had acted more than reasonably to verify DKI’s authorisation for the transfer of the Shares. Raymond also admitted that UOBKH did not owe any duty to ensure compliance with the terms of the SFA or that there would be simultaneous exchange of the Shares for the Loan Amount. ²¹²

216 The evidence above also clearly shows Raymond’s claim for misrepresentation cannot succeed. UOBKH could not have made the UOBKH Representation. It was FCL(BVI) which had the authority to cause the transfer from the DKI A/c to the FCL(BVI) A/c, and it (through Raymond) then instructed UOBKH to do so.

217 It follows that there can be no reliance on the UOBKH Representation by the defendants to then operate the FCL(BVI) A/c and deal with the Shares. Even if any representation was made by UOBKH as such, it was not false as UOBKH had verified with DKI (through Tang Hao) regarding the transfer. Also, the UOBKH Representation only concerned the authority to transfer the Shares to the FCL(BVI) A/c and no more. It could not have played a real and substantial role in inducing Raymond to then sell the Shares and deal with the Sale Proceeds. As Raymond admitted in court, UOBKH did not give him the impression that FCL(BVI) was allowed to sell the Shares. ²¹³ Raymond has also not suffered any loss pertaining to his claim for breach of duty of care or the UOBKH Representation. The sale of the Shares, receipt of the Sale Proceeds, disbursement of the Loan Amount to DKI, and payment of fees, all concerned FCL(BVI), its account or its funds. As Raymond admitted in court, any detriment or loss concerned only FCL(BVI). ²¹⁴

218 Finally, Raymond agreed that DKI’s claims against the defendants for misrepresentation, for conspiracy, and to pierce the corporate veil were matters that did not involve UOBKH. ²¹⁵ As such, Raymond’s claim for a contribution from UOBKH also fails, as there is no common liability to DKI and the requirement of “same damage” is not satisfied.

219 Raymond claims against Morgan: (a) for a contribution if Raymond were found liable to DKI on DKI’s claims for misrepresentation and conspiracy; and (b) the return of $100,000 which he claims he had lent Morgan. ²¹⁶

220 I have found that Morgan was a party to the conspiracy. He would also be liable to DKI for fraudulent misrepresentation pertaining to the Identity Representation as he had conveyed the Identity Representation to Julius (to convey to DKI) knowing it was false. Raymond submits that he was entitled to claim contribution from Morgan under s 15(1) of the CLA of at least three-quarters of the damages claimed by DKI because he was the “lead partner”, the more experienced lender, had conducted all critical negotiations with Julius, and had made the Representations to Julius. ²¹⁷

221 Morgan submits that should the court find he was a party to the misrepresentations and/or conspiracy, he should be exempted from contribution to Raymond pursuant to s 16(2) of the CLA. This is because Raymond gained CAD 20.2 million from the transaction whilst Morgan obtained nothing; he was acting under Raymond’s instructions throughout; he had no authority to make any independent decisions; and he was not involved in certain acts such as fabricating a breach of the SFA and procuring FCL(BVI)’s dissolution. ²¹⁸

222 The court has a broad discretion to determine when to exercise its power under s 16(2) of the CLA to exempt a person from liability to make contribution. This discretion should generally be exercised in at least two particular situations. First, when allowing a third party claimant (“C”) to recover contribution from a third party defendant (“D”) would have the effect of permitting C to retain part of its wrongly acquired benefit to the extent of any sum that it is able to recover from D, resulting in C being unjustly enriched. Second, when allowing C to seek contribution from D would in effect be allowing C to rely on its own illegality to recover damages from D (Sakae at [228]). I find that Morgan should be exempted from liability to make contribution pursuant to s 16(2) of the CLA as both situations are engaged.

223 Allowing Raymond to recover contribution from Morgan would have the effect of permitting Raymond to retain his wrongfully acquired benefit such that he would be unjustly enriched. Raymond, Carrington and Qilin (entities belonging to Raymond) were paid a total of CAD 20.2m from the Sale Proceeds of the Shares (see [47] above). Raymond also used these moneys for his own investments. ²¹⁹ He testified that all the benefits from the sale of the Shares accrued to him. In his affidavit of 14 August 2020 (filed pursuant to an order to make disclosure), Raymond stated that there was no transfer of the Sale Proceeds from the defendants to Morgan. There was no evidence that Morgan obtained any benefit from the Sale Proceeds, and which Ricky accepted. ²²⁰

224 Second, allowing Raymond to recover contribution from Morgan would effectively allow Raymond to rely on his own illegality to recover damages from Morgan. Whilst illegality is not a complete defence to a claim for contribution under s 15(1) of the CLA, it is a relevant factor which the court may consider in determining how it will exercise its discretion under s 16 to grant exemption from liability to make contribution (Sakae at [231]).

225 In this regard, the extent of Raymond’s own wrongdoing is considerable. He was the architect of a comprehensive plan to portray the FCL entity that would transact with DKI as a UK entity that was FCA-regulated, which he executed by incorporating a series of identically-named entities and creating a single website and email domain for all of them. He approved the draft SFA including cl 2(f), knowing, as the person in control of FCL(BVI) and its accounts, that FCL(BVI) did not have independent funds to disburse the loan. Morgan had no control or access to FCL(BVI)’s accounts and was only informed by Raymond that FCL(BVI) did not have independent funds to disburse the Loan Amount after the execution of the SFA (see [46] and [163] above). ²²¹ It was Raymond who, at the last moment, instructed Sally and Morgan to “use Fullerton BVI”. Raymond was also responsible for procuring FCL(BVI)’s breach of the implied Financing Term (see [151] and [176] above). When DKI inquired about redeeming the Shares, Raymond instructed Morgan to keep quiet, whilst he formulated a strategy to avoid returning the Shares (or its equivalent in value) to DKI. He then closed the FCL(BVI) A/c, interposed nominee directors and shareholders in FCL(BVI), and subsequently dissolved FCL(BVI) (in breach of the Mareva injunction) – all of which Morgan was not involved in – to place the defendants beyond DKI’s reach.

226 Finally, I turn to Raymond’s claim against Morgan for the $100,000. I dismiss this claim. It is unclear what his pleaded cause of action is. He claims he had paid an advance of $100,000 to Morgan out of the profits anticipated from the Loan Transaction, that Morgan caused DKI to rescind the SFA thereby depriving the defendants of the profits from which to advance the said $100,000 to Morgan, and consequently, Morgan was “liable to refund the $100,000 to [Raymond]”. ²²² That said, I find no evidence to show that Raymond had advanced $100,000 to Morgan. His story was inconsistent. In court, he claimed that it was a personal loan to Morgan unrelated to the Loan Transaction. ²²³ Moreover, Raymond could not show that, even if $100,000 had been advanced to Morgan, it was from his personal funds; at one point in court, he even stated that the $100,000 was transferred to Morgan from FCL(BVI)’s bank account. ²²⁴

227 DKI’s primary case is that it would not have entered into the SFA but for the misrepresentations and the conspiracy, and that it should accordingly be restored to the position it would have been prior to entering into the SFA. On that basis, it claims it would not have parted with the Shares or made the interest payments pursuant to cl 3 of the SFA. ²²⁵ DKI computed its loss as CAD 71,105,263.20. This is computed based on the value of the Shares at 10 August 2017 (being CAD 170,064,000 on an average trading price of CAD 23.62) ²²⁶ plus the interest payments of CAD 4,116,420 made between 29 September 2017 and 1 December 2018, less the Loan Amount of CAD 103,075,156.80. ²²⁷

228 Raymond submits that DKI had suffered no loss as it did not plead or prove the position it would have been in but for the misrepresentations. ²²⁸ He relies on POP Holdings Pte Ltd v Teo Ban Lim [2025] 2 SLR 90 (“POP Holdings”), where the Court of Appeal held that the claimant’s non-breach position is a factual premise of a claim which must not only be pleaded and submitted on but supported by the evidence (at [34]), and that the relevant counterfactual is that parties would have entered into the same transaction at a lower valuation (at [49]) instead of completely walking away from the deal. ²²⁹ Raymond argues that DKI’s pleadings assert only that it preferred to transact with a regulated entity and was induced to enter into the SFA, without identifying what it would have done in August 2017 had it known the truth or what would have happened had the SFA never been signed. ²³⁰

229 Damages in tort are generally intended to place the claimant in the same position as he would have been in had the tort not been committed. In contrast, damages in contract are generally intended to place the claimant in the same position as he would have been in had the contract been performed (Turf Club Auto Emporium Pte Ltd v Yeo Boong Hua [2018] 2 SLR 655 at [387]). I have found the defendants liable for fraudulent misrepresentation and conspiracy. I am satisfied that had the Representations not been made and the conspiracy not carried out, DKI would not have entered into the SFA with FCL(BVI).

230 POP Holdings does not assist Raymond. The claimant in that case had pleaded three mutually exclusive counterfactuals but did not lead evidence at trial to prove any of them, even when it opted to proceed only on the third counterfactual. Importantly, two of the counterfactuals depended upon whether the counterparty would have accepted them. There, the court found that the claimant had also not proved the fact of loss, let alone the quantum. It was in that context that the court observed that a claimant may not make an unbridled election between pleaded counterfactuals without addressing its mind to the question of proof, and that the non-breach position must not only be pleaded and submitted on but supported by the evidence (at [30]–[34]).

231 DKI’s position is different. It pleads that it relied on, and was induced by, the Representations to enter into the SFA. ²³¹ Ricky also testified in court that if he had known about the falsity of the Identity Representation, he would not have entered into the SFA. ²³² Moreover, unlike the counterfactual in POP Holdings, DKI’s counterfactual does not depend upon the counterparty (ie, the defendants), as it only involves what DKI would have done – namely, that it would not have entered into the SFA in the first place.

232 DKI’s counterfactual is, in any event, borne out by my findings. I have found that DKI was induced to part with its Shares on the Representations. A transaction in which the lender was neither regulated, nor able to fund the advance from its own resources, was not one DKI would have entered into. Also, there is evidence to support DKI’s quantum of loss, ie, the publicly-available price of TSG shares at the material times exhibited by Raymond’s own expert (Mr Wong Kon How), and it is undisputed that DKI paid CAD 4,116,420 in interest to FCL(BVI) pursuant to the SFA. ²³³

233 Raymond advances a positive counterfactual of his own. Ricky accepted in cross-examination that FCL(UK) would have satisfied DKI’s requirement for a regulated counterparty, and Raymond stated in court that had DKI asked to contract with FCL(UK), “it would be possible”. Raymond thus submits that the transaction would have proceeded on identical terms with FCL(UK) as lender, DKI would have been in the same economic position, and no loss could be attributable to the Identity Representation. ²³⁴

234 Raymond’s counterfactual above is baseless and unbelievable. He stated in cross-examination and in re-examination, that he would have objected if Morgan had suggested or instructed that FCL(UK) be the lending entity in the SFA (see [51] above). He also testified that if DKI or Julius had told him that DKI wanted to contract only with FCL(UK), he would not have agreed because FCL(UK) was then a dormant company with only $1 in paid up capital and no assets. ²³⁵ Raymond’s assertion is also contradicted by his conduct. As I have found, he knew that DKI was informed that FCL was FCA-regulated, yet just two days before the SFA was signed, he instructed Sally and Morgan to “use Fullerton BVI”. In any event, Raymond’s counterfactual proceeds on the premise that DKI’s concern was only about the identity of the lender, and that substituting FCL(UK) would have left DKI in the same economic position. However, DKI also relied on the Financing Representation, that the lending entity would have its own independent finances to fund the Loan Amount. FCL(UK) clearly did not have such finances.

235 As for the Financing Representation, Raymond submits the probable counterfactual was that DKI would have obtained a similar loan from one EFH, a rival lender, where DKI would have similarly “lost over all the Shares at EFH” due to the COVID-19 pandemic which “severely undermined the financial resources of smaller lenders (such as EFH and [FCL(BVI)]) world-wide”. ²³⁶

236 Again, this is without merit. Ricky testified that DKI would not have “gone back to EFH” if it knew that FCL was a BVI entity. ²³⁷ Importantly, the question is not whether DKI might have obtained liquidity elsewhere, but whether it would have entered this transaction had it known the truth. As for Raymond’s assertion that DKI would in any event have lost its shares to EFH by reason of the COVID-19 pandemic, this is speculative, unsubstantiated and beside the point: DKI’s loss of the Shares was not brought about by any pandemic, but by FCL(BVI)’s sale of them to fund the Loan Amount.

237 Next, Raymond submits that in computing its quantum of loss, DKI did not account for the benefits it received from the transaction, ie, the Loan Amount that DKI received; its use of the loan proceeds over some seven years from 2019 to 2026, which it was able to invest and profit from; and the interest it would have paid over the seven years. ²³⁸

238 I accept DKI’s computation of its loss. First, DKI’s computation (at [227] above) has accounted for the Loan Amount of CAD 103,075,156.80. Second, Raymond did not adduce any evidence to show how DKI benefited from the use of the Loan Amount. Whilst he claims that DKI had used the Loan Amount to acquire more TSG shares, I have found this to be without basis (see [124]–[126] above). Third, I find that DKI does not have to account for any interest that it would have had to pay over the term of the loan. The premise of DKI’s claim, which I accept, is that DKI would not have entered into the SFA – thus there would have been no money borrowed and no interest owed. For completeness, I accept DKI’s computation of the value of the Shares as at 10 August 2017, being the date on which the SFA was executed and the date on which the terms of the SFA (and the Lockout Period) commenced. ²³⁹

239 Raymond further contends that the loan to be brought into account is not CAD 103,075,156.80, but the gross sum of CAD 109,771,200, because cl 2(b) of the SFA obligated DKI to repay the gross loan inclusive of the 6% placement/origination fee. ²⁴⁰ However, cl 2(b) does not bear that meaning. It provides that “The gross loan-to-value for this transaction shall be 70% (seventy percent) with 6% (six percent) of the gross loan amount to cover the placement/origination fee.” It says nothing of DKI’s repayment obligation. If anything, it confirms that the 6% fee was funded out of the gross loan and paid to Julius, so that DKI only received the net amount of CAD 103,075,156.80. In any event, damages in tort are to put the claimant in the position he would have been but for the tort committed. Here, DKI had only received the Loan Amount and that is the amount to be deducted from its measure of damages.

240 I thus find that DKI is entitled to CAD 71,105,263.20 in damages.

241 For completeness, I deal with two other issues briefly. First, whilst I have found that DKI had committed a repudiatory breach of the SFA by failing to pay the 1/3/19 Instalment, FCL(BVI) did not bring a counterclaim for breach of contract arising from DKI’s breach (see also [28] and [153] above). Second, FCL(BVI)’s termination of the SFA on 14 March 2019 does not affect DKI’s claim against the defendants for misrepresentation and conspiracy (see SMRT Alpha Pte Ltd v Strait Colonies Pte Ltd [2017] SGHC 243 at [60]–[65]).

242 I thus find the defendants jointly and severally liable to DKI for CAD 71,105,263.20 pertaining to DKI’s tortious claims. Although I also find FCL(BVI) had breached the Financing Term in the SFA, this adds nothing more to the assessment of DKI’s damages.

243 I dismiss Raymond’s claims against Julius, UOBKH and Morgan.

244 I will hear parties on costs.