Areas of Practice

Our advice is constantly sought on drafting shareholders' agreements and the rights and obligations of shareholders. In addition, we have argued complex points of company law, including the rights of minority shareholders, before the highest court.

When relationships between shareholders turn sour, we are often in the thick of the action; we have considerable experience litigating such disputes.

Derivative actions and minority oppression

In Chong Chin Fook v Solomon Alliance Management Pte Ltd and others and another matter [2017] 1 SLR 348 (https://www.elitigation.sg/gdviewer/s/2017_SGCA_5), our client, a minority shareholder, was removed as a director shortly after he commenced a legal action against an employee whom our client had good grounds to believe had breached his contractual obligations to the company. Following the commencement of the action, the other shareholders, who were close to the employee, removed our director with the agenda to stymie the case against the employee. We successfully applied for leave for our client to prosecute the claim on the company's behalf against the errant employee. The Court of Appeal in its judgment provided invaluable guidance on (a) what constitutes bad faith, and (b) the threshold to be adopted in determining whether the company would diligently prosecute an on-going legal proceeding (as opposed to commencing one). This judgement is routinely cited as a precedent involving such applications. Following the leave granted, we subsequently took over conduct of the existing legal proceeding and obtained judgment (after a trial) against the errant employee on the company's behalf: Solomon Alliance Management Pte Ltd v Pang Chee Kuan [2019] 4 SLR 577 (https://www.elitigation.sg/gd/s/2018_SGHC_139). The combination of these legal actions forced a commercial settlement to our client's satisfaction.

Breach of directors' duties, including fiduciary duty

In Zolton Techs Singapore Pte Ltd v Tan Chew Sim [2018] SGHC 160 (https://www.elitigation.sg/gd/s/2018_SGHC_160), we acted for a former director who was sued by the company for alleged breach of fiduciary duties. The legal action was instigated by the client's former husband and it was alleged that our client had diverted a business opportunity for the company to another company. We successfully persuaded the High Court Judge to dismiss the claim against the client. Through our effective cross-examination, it was established that the client's former husband, a co-director, had in fact consented to our client diverting the business to a company owned and controlled by her. There was thus no breach of fiduciary duties. Instead, the High Court Judge ruled for our client in her counterclaim for a verbally promised 5% performance bonus and 1 month's salary in lieu of notice.

Josephine, with her keen business acumen and commercial sense, thrives on commercial disputes of various nature, including:

• Contractual disputes, including the enforceability of liquidated damages/penalty clauses
• Actions for misrepresentations made during business negotiations leading to contracts signed and unlawful means conspiracy
• Debt recovery
• Tenancy disputes

Some commercial disputes require urgent action to preserve the client's rights. These include situations where an injunction or other action is needed to prevent further damage to the client in the meantime (for example, to prevent the dissipation of assets by the other party), or where a search order is needed to preserve evidence which might otherwise be destroyed by the opposing litigant. In other situations, issues may arise as to whether the Singapore court has the jurisdiction to hear a dispute and even if it does, whether it is the most convenient forum, ie, forum non conveniens, to determine the dispute. This happens especially where the parties hail from different jurisdictions. Josephine has experience in these areas. In addition, the key to unlocking the solution to a commercial dispute often lies in pinpointing the correct issue and exerting the right pressure to yield the desired result.

Apart from the above matters, some of her notable court victories involving commercial law are as follows:

• In CLAAS Medical Centre Pte Ltd v Ng Boon Ching [2010] 2 SLR 386 (https://www.elitigation.sg/gd/s/2010_SGCA_3), she represented a medical group to enforce a contractual clause restraining a doctor from competing with the client. The clause provided that in the event of a breach, the doctor would have to compensate the client $1 million. The Court of Appeal rejected the doctor's argument that the clause was in breach of the rule against penalties; the doctor was ordered to pay the client the agreed sum.
• In Panwah Steel Pte Ltd v Koh Brothers Building & Civil Engineering Contractor Pte Ltd [2006] 4 SLR (R) 571 (https://www.elitigation.sg/gd/s/2006_SGCA_35), she successfully represented a company in overturning on appeal the High Court's decision holding that the client was contractually liable to pay damages of $3 million for breach of contract. This case is important as it provides guidance on the purposive interpretation of commercial contracts.
• In SCT Technologies Pte Ltd v Western Copper Co Ltd [2016] 1 SLR 1471 (https://www.elitigation.sg/gdviewer/s/2015_SGCA_71), she acted for a company whose claim against the debtor had been dismissed because the High Court judge was of the view that the company had not discharged the burden of proving that the debt was still due and owing. In the appeal, the Court of Appeal agreed with Josephine that the High Court judge had erred in placing the burden on the company to show that the debt had not been discharged. This decision is considered as authoritative in explaining the crucial difference between the legal and evidential burdens of proof.
• In JWR Pte Ltd v Syn Kok Kay (trading as Patrick Chin Syn & Co) [2019] SGHC 253 (https://www.elitigation.sg/gd/s/2019_SGHC_253), the client had paid his former lawyer some $1.3 million in legal fees for acting for him in a case. Josephine successfully represented him in reducing the fees to $288,000, thereby saving the client more than $1 million.
• In an unreported High Court judgment, Josephine successfully represented a business partner and co-owner of a property in obtaining orders from the High Court for the dissolution of the partnership and the sale of the property in 2 Originating Summonses. The opposing side appealed the decision to the Court of Appeal but withdrew the appeal when parties reached a settlement on terms favourable to the client. This was an example of how identifying the right pressure point early was key to achieving the desired commercial solution.

In addition to being engaged in heavily-contentious divorce proceedings involving sizeable assets at all levels (including the Court of Appeal), our areas of specialisation include drafting pre-nuptial agreements, post-nuptial agreements and/or deeds of separation.

Our areas of specialisation include the following:

• Drafting pre-nuptial agreements, post-nuptial agreements and/or deeds of separation
• Divorce proceedings (both contested and uncontested), proceedings for annulment of a marriage and judicial separation
• Dealing with disputes as to whether the Singapore court, or some other foreign court, is the appropriate forum, to rule on the divorce, for example, forum non conveniens.
• Applying for, or resisting applications for, personal protection orders
• Disputes over custody, care and control, and access to children
• Division of matrimonial assets. This includes analysis / tracing / valuation of assets (with the assistance of forensic accountants if required)
• Maintenance / Interim maintenance (for wife and/or children)

Josephine firmly believes the real victims of a divorce are the innocent children. She therefore places great emphasis on ensuring that the children are spared the consequences of the divorce. An example is UFU v UFV [2017] SGHCF 23 where she acted for the husband. The wife, with a view towards alienating the children from their father, sought to impose severe restrictions on his access to them. Josephine successfully persuaded the court that her stated reasons were exaggerated and secured for the husband substantial access.

On the matrimonial assets, Josephine believes that parties should strive to agree on the division to avoid a protraction of the legal proceedings and the escalation of legal costs. When that fails, she is more than prepared to argue such cases with full vigour. Indeed, she has featured in a significant number of divorce cases which have since been regarded as leading decisions:

• In TDT v TDS and another appeal and another matter [2016] 4 SLR 145 (https://www.elitigation.sg/gdviewer/s/2016_SGCA_35), she secured for the wife a 35% share of the assets even though the childless marriage lasted only 6 years. This is the "must-cite" case on the appropriate date to value the pool of matrimonial assets.
• In USB v USA [2020] 2 SLR 588 (https://www.elitigation.sg/gd/s/2020_SGCA_57), she acted for the husband and persuaded the court that he is entitled to a significant share of the assets largely accumulated by his ex-wife (close to S$10 million) in a marriage that lasted only five and a half years with stepchildren. The court recognised that our client had contributed to the upbringing of his stepchildren, ie, the wife's children from her first marriage. This case is constantly cited by the courts for the several important propositions of law for which it stands, including the often-disputed issue of what constitutes matrimonial assets.
• In WPN v WPO [2023] SGHCF 38 (https://www.elitigation.sg/gd/s/2023_SGHCF_38), she acted for the husband in a divorce action which ran for more than 5 years. In her attempt to enhance her share of the assets, the wife initially claimed that the matrimonial assets (largely acquired by the husband) was valued at more than $100 million. As the case progressed, the wife reduced the value to some $50 million. To counter the wife's assessment, Josephine worked with forensic accountants to successfully persuade the court that the assets were valued at only some $31 million thus saving the husband a considerable amount. The court further refused to draw an adverse inference against the husband rejecting the wife's claim that he had not made full disclosure of his assets.
• In WGE v WGF [2023] SGHCF 26 (https://www.elitigation.sg/gd/s/2023_SGHCF_26), on appeal, she acted for the wife and successfully persuaded the High Court Judge to increase the wife's share of the assets by some 30% more than what the lower court had awarded her. This meant that the wife was awarded some 40% of the matrimonial assets despite the marriage lasting only some 10 years with the husband as the primary breadwinner.

In recognition of her contributions towards the development of family law, Josephine was a speaker at a seminar relating to properties held in September 2023 titled "Property - Own It. Use It. Lose It." The seminar was chaired by the Honourable Judge of the Appellate Division, Debbie Ong J, who from 1 October 2017 to 30 September 2023 was the Presiding Judge of the Family Justice Courts.

In addition, Josephine has published on the issue of how property can be transformed into matrimonial assets in the Law Gazette, the official publication of the Law Society of Singapore. See article.

Josephine has enjoyed significant success in this area:

• In Trustee of the Estate of Ong Thiam Huat v Chan Hock Seng [2004] SGHC 232 (https://www.elitigation.sg/gdviewer/s/2004_SGHC_232), she defended a senior accountant (in his 60s), it being alleged that as a liquidator of a company, he had negligently allowed a claim to become time-barred. In cross-examination, Josephine extracted from the claimant a confession that there was no real debt owing to begin with; this proved fatal to the claim which was dismissed. Josephine followed up by successfully having the claimant's appeal dismissed by the Court of Appeal.
• In IPP Financial Advisers Pte Ltd v Saimee Bin Jumaat [2020] 2 SLR 272 (https://www.elitigation.sg/gd/s/2020_SGCA_47), her clients, who were professional financial advisers, were sued by the claimant, a well-known retired professional jockey, for negligent misrepresentations. The Court of Appeal agreed with Josephine that the claim was time-barred and as such, the jockey's claim was thrown out. Owing to the jockey's profile, the court's decision received coverage in the local media.
• In the realm of medical negligence, she represented a client in her claim against a reputable hospital arising out of a botched surgical procedure. The claim was settled out of court after a mediation (where the hospital was represented by a Senior Counsel) on terms favourable to the client.
• In the realm of audit negligence, she represented clients who were sued in relation to the collapse of a company due to fraud of its controllers/directors. After a series of interlocutory applications and extensive discovery, the claim was settled out of court on terms favourable to the clients, on the eve of the trial.

Our areas of expertise include the following:

• Drafting wills of differing complexities
• Drafting trust documents
• Applying for grant of probate or letter of administration
• Advising on and assisting in estate administration

Not uncommonly, the validity of wills is called into question on various grounds, for example, that its maker had executed it under undue influence or duress. In addition, increasingly in recent years, potential beneficiaries who were either completely left out of the will or who feel that they should receive more, challenge the mental capacity of the maker of the will. In these situations, such applications for probate become a full-blown contested matter. Josephine was involved in two such keenly-contested probate matters. In one, she represented the beneficiaries of a will against the claims made by excluded relatives. After a series of applications involving cross-examination and at the mid-point of the trial, the matter was settled to the satisfaction of clients. In the other, she represented the sisters of the deceased whose will was challenged by the deceased's widow on various grounds. After much litigation, the matter was again settled to the satisfaction of clients.

The significant appreciation of property values, particularly in the past decade, has given rise to innumerable disputes over property ownership. Sadly, when so much is at stake, the courts have seen siblings pitted against each other and children battling their parents. In-laws are not spared as they too get embroiled in bitter disputes.

The last-mentioned occurs far too often in divorce proceedings. This can happen for example, where a property is registered in the name of, say, the husband. On its face, the property belongs to the husband and the wife is thus entitled to a share of the property in the divorce. However, the husband, in attempting to deprive the wife of a share, may contend that he holds the property in trust for, say, his father, who is thus the beneficial owner. Therefore, the property is not a matrimonial asset and is not subject to the division exercise. When this happens, the real contest is between the daughter-in-law and her father-in-law, as was the situation in the recent high-profile case involving a former Member of Parliament: see Tan Hui Min Sabrina Alberta v Chiang Hai Ding and another [2023] SGHC 259.

In this scenario, the outcome is determined by reference not to family law, but property law, principles. This would entail a detailed understanding of the law on trusts, especially resulting trusts and common intention constructive trusts. Due to her active involvement in family law, Josephine is more than adequately equipped to handle disputes of this nature. For example, in a recent case, she represented the husband who held a bank account with 2 of his business partners. The wife insisted that 1/3 of the monies in the account belonged to the husband and was therefore a matrimonial asset. Josephine successfully persuaded the High Court that the husband did not have any beneficial interest in those monies. The monies therefore did not form part of the matrimonial assets.

Josephine has extensive experience in drafting and reviewing all types of contracts of employment running the gamut from employees in the lower rungs to those who occupy the uppermost echelons of the organisation. Her advice covers issues such as:

• Annual leave / Sick leave
• Confidentiality clauses
• CPF contribution rates and caps
• Duty of good faith and fidelity
• Notice period
• Overtime pay
• Employee fraud
• Restraint of trade / Non-competition clauses
• Inducing breach of contract
• Retrenchment benefits
• Salary in lieu of notice
• Unconsumed leave
• Unpaid salary
• Wrongful termination

Apart from rendering advice on employment-related issues, Josephine has successfully represented both employers and employees in Court:

• Beginning with the employer, she represented, in the High Court, a reputable distributor against 2 of its ex-employees who teamed up with a third-party to compete against the client after their departure. The client's case against the former employees was that their conduct was in breach of the terms of their contracts of employment which contained prohibitions against them (a) using the client's confidential information, and (b) competing against their former employer. The case against the third party was that he was guilty of inducing the breaches of contract by the 2 former employees, and, together with the duo, engaging in an unlawful means conspiracy to cause injury to the client. The 2 former employees settled with the client before the trial and agreed to give evidence against the third party. Midway through the trial, the third party decided to seek a settlement. The client agreed to the settlement which was on terms favourable to it.
• In another matter, Josephine represented an employee where, at short notice, she successfully fended off an attempt by an employer to obtain an injunction against her client from starting work with the client's new employer.