Case Summaries

Rohini d/o Balasubramaniam v HSR International Realtors Pte Ltd [2018] SGCA 37

 

SUPREME COURT OF SINGAPORE

5 July 2018

Case summary

Rohini d/o Balasubramaniam v HSR International Realtors Pte Ltd [2018] SGCA 37
Civil Appeal No 66 of 2017

--------------------------------------------------------------------------------------------------------------

Decision of the Court of Appeal (delivered by Andrew Phang Boon Leong JA):

The Court of Appeal finds estate agent liable in negligence for fraudulent acts of its representative who used blank cheques given to him by a client to misappropriate her moneys. The client herself was also found contributorily negligent.

 

Background to the appeal

1          Civil Appeal No 66 of 2017 was an appeal against the decision of the High Court Judge in Rohini d/o Balasubramaniam v HSR International Realtors Pte Ltd [2017] SGHC 149.

Facts

2          HSR International Realtors Pte Ltd (“the respondent”) acted for Mdm Rohini d/o Balasubramaniam (“the appellant”) and her parents in several property transactions beginning in 2007. Kelvin Yeow Kim Whye (“Kelvin Yeow”) represented HSR as a salesperson in all these transactions. He held the designation of “Group Director” within HSR and was an undischarged bankrupt at all material times.

3          In one of these transactions, the appellant sold her property in Bayshore Park (“the Bayshore Park Property”) sometime in October 2009. Around the same time, she purchased a property at Bedok Court (“the Bedok Court Property”). Kelvin Yeow told the appellant that the proceeds from the sale of the Bayshore Park Property might be insufficient or might not be received in time for her to complete the purchase of the Bedok Court Property, and thus persuaded her to obtain a housing loan from United Overseas Bank (“the UOB Loan”). Subsequently, in November 2009, Kelvin Yeow also helped the appellant to secure a two-year tenancy.

4          On 1 December 2009, the sale of the Bayshore Park Property was completed and the proceeds were deposited into the appellant’s UOB bank account. Shortly thereafter, Kelvin Yeow visited the appellant at her home and requested that she give him four blank cheques which he said he would use to assist her in paying (a) the UOB Loan; (b) agency fees; (c) legal fees; and (d) the deposit for the aforementioned two-year tenancy. The appellant gave Kelvin Yeow four cheques signed in blank. Kelvin Yeow then filled in the details for the cheques in the appellant’s presence, but she did not see or check what he wrote because she trusted him. Subsequently, Kelvin Yeow told the appellant that one of the cheques had been dishonoured, and the appellant gave him another cheque signed in blank.

5          Instead of using the blank cheques for their intended purpose, Kelvin Yeow used the cheques to make payments to himself and one of his colleagues totalling $830,336. He then absconded.

6          The appellant brought proceedings against Kelvin Yeow and the respondent. She obtained judgment against Kelvin Yeow, but failed to recover any compensation from him. Her claims against the respondent, which were based on negligence, vicarious liability and agency law, were all dismissed by the High Court Judge. The appellant appealed.

Decision on appeal

7          The Court of Appeal allowed the appeal, finding that the respondent was liable in negligence. The respondent had admitted that it owed the appellant a duty of care. The question was what the content of that duty was (at [37]). In this regard, it was significant that under s 3(2)(a)(iv) of the Estate Agents Act (Cap 95A, 2011 Rev Ed), an undischarged bankrupt is presumptively considered not “fit and proper” to be registered as a real estate salesperson unless the Council of Estate Agencies determines otherwise. Although this legislation was not in effect at the time of Kelvin Yeow’s fraudulent acts in 2009 (at [38]–[39]), it indicated that, even prior to its enactment, if an estate agent did engage undischarged bankrupts as salespersons, then it owed a high standard of care to its customers who dealt with such salespersons (at [41]).

8          This meant that the respondent should have had a viable internal system or mechanism in place that would aid it in tracking the bankruptcy status of its salespersons, and monitoring or supervising those of its salespersons who were undischarged bankrupts (at [41]–[43]). The evidence suggested that the reality was quite the opposite: There was no evidence to show that the respondent had any system for tracking the bankruptcy status of its salespersons (at [42]). The respondent also had no system for monitoring or supervising its salespersons who were undischarged bankrupts. Instead, Kelvin Yeow had been given full rein to do as he pleased and was even given the designation of “Group Director” (at [43]).

9          The court held that Kelvin Yeow’s ability to gain and abuse the appellant’s trust was a direct result of the respondent’s lack of internal checks and monitoring measures. The appellant had come to trust Kelvin Yeow because nothing untoward had taken place in previous transactions where he had acted as HSR’s sole representative on behalf of the appellant and/or her parents, and had handled cheques in the course of those transactions. He would not have had the opportunity to gain the appellant’s trust in this manner if he had been subject to close supervision or monitoring (at [52]).

10          In view of the court’s decision on the appellant’s claim in negligence, it was unnecessary to consider her claims under the doctrine of vicarious liability and the law of agency (at [55]).

11          The court recognised that the appellant had been extremely careless in giving Kelvin Yeow the signed blank cheques. It was primarily the appellant’s own conduct which gave Kelvin Yeow the opportunity to commit the fraud, and her decision to trust him was the more potent cause of her own loss, as compared to the respondent’s negligence. Thus, the appellant was only entitled to recover 30 per cent of the amount claimed (at [54]).

 

This summary is provided to assist in the understanding of the Court’s judgment. It is not intended to be a substitute for the reasons of the Court. All numbers in bold font and square brackets refer to the corresponding paragraph numbers in the Court’s judgment.

YOU MAY ALSO BE INTERESTED IN