IPP Financial Advisers Pte Ltd v Saimee Bin Jumaat and another appeal [2020] SGCA 47: A man signing a contract. (Photo credits: Scott Graham/Unsplash)

CASE SUMMARY

It is trite law that a claimant can sue for a negligent misrepresentation only when he has suffered damage. When then can it be said that damage has occurred? As the Court of Appeal noted in IPP Financial Advisers Pte Ltd v Saimee Bin Jumaat and another appeal [2020] SGCA 47 (“IPP“), the answer to this “deceptively simple” inquiry is not so straightforward as this “vexed area of the law is the subject of many conflicting authorities.” 

The respondent (the plaintiff below) (“Saimee”) invested a total of US$620,900 in a financial product offered by a company (“SMLG”) in 3 separate tranches, viz., (a) US$80,300 on 27 April 2011; (b) US$240,300 on 17 June 2011; and (c) US$300,300 on 3 February 2012. He did so on the strength of representations made by his 2 financial advisers (“Moi” and “Quek”) that he would receive a profit of 40% on his investment within a year and that his investment was capital guaranteed (“the Representation”). 

On 27 April 2012, the anniversary of the first tranche, Saimee did not receive the promised 40% profit or the return of that investment. Similarly, on 17 June 2012 (the anniversary of the second tranche), the promised 40% profit and the investment sum did not materialize. 

On 17 September 2012, Saimee entered into 3 Settlement Agreements (“the SA”) with SMLG whereby the latter agreed to pay him the total sum of US$711,000 to cover his investment sum and profits. The payment date was stipulated to be 20 September 2012. Moi and Quek were not parties to the SA. On that date, SMLG did not make payment of the US$711,000. 

More than 5 ½ years later, on 21 July 2018, Saimee sued Moi and Quek on the ground that the Representation was false and that they had made them fraudulently or, in the alternative, negligently. Saimee also sued Moi and Quek’s employer, IPP, on the ground of vicarious liability. 

THE COURT’S DECISION

Moi and Quek denied making the Representation. In addition, they pleaded that Saimee’s claim was time-barred.  

The High Court Judge (“the Judge”) found that Moi and Quek did make the Representation (albeit only negligently and not fraudulently). On the time-bar defence, the Judge was of the view that Saimee suffered damage only on 21 September 2012 when he did not receive the sum of US$711,000 under the SA. Thus, the last day for Saimee to commence the action was 6 years later, on 21 September 2018. Since he did so on 21 July 2018, his claim was not time-barred. 

The Judge thus found Moi and Quek liable to pay Saimee his lost investment of US$620,900. In addition, the Judge held IPP vicariously liable for Moi and Quek’s actions. IPP, Moi and Quek appealed the Judge’s decision.

The proceedings before the CA

The appellants argued that the Judge erred in holding that the date of accrual of Saimee’s cause of action was 21 September 2012. The appellants’ primary argument was that Saimee suffered damages right from the moment he made the investments. In advancing this argument, the appellants relied on (among others) the decision of the English Court of Appeal in Forster v Outred & Co [1982] 1 WLR 86 (“Forster”). In that case, in 1973, the plaintiff executed a mortgage in favour of a bank based on the advice of the defendant, her solicitors. In 1975, the bank demanded repayment of the loan which demand the plaintiff complied with. In 1980, the plaintiff sued the defendant claiming that they were negligent in advising her on the mortgage. An issue arose as to whether the plaintiff’s claim was time-barred. The English Court of Appeal held that it was as she had suffered actual damage through her solicitor’s negligence the moment she executed the mortgage in 1973. Forster has since either been applied or distinguished in many subsequent cases, including decisions of our courts.   

The CA rejected the appellants’ argument that damage ensued from the time Saimee made the investments. In so doing, the CA noted the inconsistencies in the cases subsequent to Forster such that in an effort to reconcile them, the English courts resorted to making a distinction between cases involving “flawed transactions” and those of “no transactions”. The CA found this distinction “unhelpful”.      

The CA then proceeded to “arrive at a principled basis to determine when damage could have been said to have occurred in the specific context of claims for negligent misrepresentation.” On this, the CA was attracted to the judgment of Chao Hick Tin J (as he then was) (“Chao J.”) in Wiltopps (Asia) Ltd v Emmanuel & Barker [1998] 2 SLR (R) 778. There, Chao J. voiced his disagreement with Forster and proposed the following test to determine when a cause of action for negligent misstatement arises: 

…..a good test to determine whether a cause of action in tort has accrued is to ask whether a plaintiff would have succeeded if he had sued at any time after the occurrence of the negligent act complained of.

The CA agreed that this “serves as an indicative litmus test to ascertain whether loss has occurred such that a cause of action has accrued.”

Turning then to the facts of the case before them, the CA made clear that the only relevant inquiry was whether the loss Saimee sustained can be said to be a contingent liability. In this regard, it emphasized that the determination of when the loss occurred must necessarily be with reference to the pleaded cause of action, which in this case was that Moi and Quek had made the misrepresentation that Saimee would be repaid his investment sum and the 40% profit within a year of the investment. Thus, since the first tranche was invested on 27 April 2011, Saimee should have received payment a year later, on 27 April 2012. As that did not occur, that was when his loss crystallised. The last day for him to commence an action was 27 April 2018 but he did do so only until 21 July 2018. As such, his claim was time-barred. 

The CA was mindful that the second and third tranches of the investments took place later. As such, arguably, the cause of action for those tranches should accrue later than 27 April 2012. However, the CA nonetheless applied the same date to them since there was only a single negligent act complained of (that being the Representation made on 27 April 2011) and 27 April 2012 was when the Representation became first actionable due to some damage occurring as a result. 

The CA also took the opportunity to clarify that whilst the burden is on the defendant to plead the limitation defence, once that is done, the burden is on the plaintiff to establish that his claim was within the limitation period. 

CONCLUDING REMARKS

The identification of the date of accrual of a cause of action is vital to ensure that a claimant does not file his action out of time. The CA’s decision has done much to eliminate the controversies surrounding this vexed area of the law.  

To read the full judgment, click here.