Burby v Koo Khin Yong: Breach of Contract & Investment Dispute

In 2004, Mr. Mark Burby, director and shareholder of CBTL Holdings Ltd, sued Ms. Koo Khin Yong, Pengiran Haji Mohd Ayub, and Pengiran Anak Hajah Damit in the High Court of Singapore, alleging breach of contract for failing to invest in a chain of "The Coffee Bean and Tea Leaf" cafes in the United Kingdom. Mr. Burby claimed the defendants agreed to invest up to £7.5m. Justice Judith Prakash dismissed the claim, finding that the documents did not constitute a binding contract between Mr. Burby and the defendants in their personal capacities.

1. Case Overview

1.1 Court

High Court

1.2 Outcome

Plaintiff's claim dismissed.

1.3 Case Type

Civil

1.4 Judgment Type

Grounds of Decision

1.5 Jurisdiction

Singapore

1.6 Description

Mark Burby sues Koo Khin Yong for breach of contract related to a failed investment in a UK coffee chain project. The court dismissed the claim.

1.7 Decision Date

2 September 2004

2. Parties and Outcomes

Party Name	Role	Type	Outcome	Outcome Type	Counsels
Burby, Mark	Plaintiff	Individual	Claim Dismissed	Lost	Suresh Nair of Allen and Gledhill Vincent Teh of Allen and Gledhill
Koo Khin Yong	Defendant	Individual	Claim Dismissed	Won	Roslina Bte Baba of Ramdas and Wong Linda Low of Ramdas and Wong
Pengiran Haji Mohd, Ayub	Defendant	Individual	Claim Dismissed	Won	Andre Yeap SC of Rajah and Tann Roslina Bte Baba of Ramdas and Wong Tan Teck Wang of Rajah and Tann Linda Low of Ramdas and Wong
Pengiran Anak Hajah Damit	Defendant	Individual	Claim Dismissed	Won	Andre Yeap SC of Rajah and Tann Roslina Bte Baba of Ramdas and Wong Tan Teck Wang of Rajah and Tann Linda Low of Ramdas and Wong

3. Judges

Judge Name	Title	Delivered Judgment
Judith Prakash	Judge	Yes

4. Counsels

Counsel Name	Organization
Suresh Nair	Allen and Gledhill
Vincent Teh	Allen and Gledhill
Roslina Bte Baba	Ramdas and Wong
Linda Low	Ramdas and Wong
Andre Yeap SC	Rajah and Tann
Tan Teck Wang	Rajah and Tann

4. Facts

Mark Burby and associates planned to develop a chain of "The Coffee Bean and Tea Leaf" cafes in the United Kingdom.
The defendants were approached to invest in the project.
Negotiations took place between Mark Burby and Koo Khin Yong regarding the investment.
A Term Sheet was signed by Mark Burby and Koo Khin Yong, but it contained the phrase "subject to contract".
The defendants did not provide the seed funding as agreed.
Mark Burby claimed that the defendants breached the agreement to invest in the project.

5. Formal Citations

Burby, Mark v Koo Khin Yong and Others, Suit 762/2002, [2004] SGHC 194

6. Timeline

Date	Event
2000-01-01	Hans Kunz approached Pg Ayub about investing in the project.
2001-03-01	Koo Khin Yong and Mark Burby first spoke.
2001-03-01	Mark Burby sent Koo Khin Yong an email with an updated investment proposal.
2001-03-21	Mark Burby and his associates met Koo Khin Yong at her lawyer’s office in Singapore.
2001-04-01	Mark Burby prepared a memorandum of understanding in relation to the investment.
2001-04-09	Koo Khin Yong told Mark Burby that she would comment on the MOU after she had been able to discuss it with her lawyers.
2001-06-25	Koo Khin Yong informed Mark Burby that she hoped to provide him with an amended MOU within a week.
2001-08-16	A new document made its appearance entitled “Proposed Investment in CBTL Holdings Limited Term Sheet”.
2001-08-17	Mark Burby had a meeting in Singapore with Koo Khin Yong.
2001-09-03	Mark Burby sent Roslina Baba the draft shareholders’ agreement.
2001-09-18	Smart Plus International Holdings Ltd was incorporated in the British Virgin Islands.
2001-09-25	Mark Burby had a telephone conversation with Koo Khin Yong.
2001-11-19	Roslina Baba sent out a revised draft of the Term Sheet.
2001-12-11	Mark Burby arrived in Singapore to meet the franchisor and also to discuss the proposed shareholders’ agreement and Term Sheet with Roslina Baba and Koo Khin Yong.
2001-12-14	The defendants acquired a company that had been incorporated in the British Virgin Islands in September 2001 under registration number 463318.
2001-12-14	Mark Burby and Koo Khin Yong met again and the 14 December documents were signed.
2001-12-16	Mark Burby wrote to Koo Khin Yong and set out the sequence of events that he considered had to take place between then and the end of January 2002.
2002-01-18	CBTL was incorporated in Jersey.
2002-02-04	Mark Burby wrote to Koo Khin Yong that he was in desperate need to receive the seed funds immediately.
2002-02-23	Koo Khin Yong sent Mark Burby a reply that assured him that the funds would be in hand soon.
2002-02-26	Koo Khin Yong told Mark Burby that the change of name to SPIH had been completed and the next step would be for the three defendants to take up their shares in SPIH and open its bank account.
2002-03-06	Mark Burby and Koo Khin Yong had a telephone conversation.
2002-04-05	Mark Burby sent Pg Ayub a fax setting out the history of his negotiations and his frustrations.
2002-04-11	Mark Burby received a letter from Roslina Baba stating that Pg Ayub and Pg Damit were unhappy about these telephone calls and asking him to cease calling Pg Ayub.
2002-07-02	Action was started.
2003-02-03	Trial before Judith Prakash J.
2003-09-01	Mark Burby applied for the action to be restored for hearing.
2004-01-01	Action came up for hearing.
2004-09-03	Judgment reserved.

7. Legal Issues

Breach of Contract
- Outcome: The court held that no binding contract existed between the plaintiff and the defendants in their personal capacities.
- Category: Substantive
- Sub-Issues:
  - Documents subject to contract
  - Formation of contract
  - Agreement in personal capacities
Pleadings
- Outcome: The court found that the plaintiff's case as presented in closing submissions deviated materially from the case pleaded in the Statement of Claim.
- Category: Procedural
- Sub-Issues:
  - Plaintiff pleaded numerous versions of his case

8. Remedies Sought

Specific Performance
Damages
Interest
Costs

9. Cause of Actions

Breach of Contract

10. Practice Areas

Commercial Litigation

11. Industries

Food and Beverage

12. Cited Cases

Case Name	Court	Affirmed	Citation	Jurisdiction	Significance
Compaq Computer Asia Pte Ltd v Computer Interface (S) Pte Ltd	Court of Appeal	Yes	[2004] 3 SLR 316	Singapore	Cited for the principle that the expression 'subject to contract' means that until a formal written agreement is drawn and executed between the parties, there would be no binding contract between them.
Alpenstow Ltd v Regalian Properties plc	N/A	Yes	[1985] 2 All ER 545	N/A	Cited to illustrate an exception to the 'subject to contract' principle, where a binding contract was found despite the expression due to a strong and exceptional context.
Alpenstow Ltd v Regalian Properties plc	N/A	Yes	[1985] 1 WLR 721	N/A	Cited to illustrate an exception to the 'subject to contract' principle, where a binding contract was found despite the expression due to a strong and exceptional context.
Pacific Century Regional Development Ltd v Canadian Imperial Investment Pte Ltd	Court of Appeal	Yes	[2001] 2 SLR 443	Singapore	Cited for the principle that the court is entitled to look at what the parties to a contract said before it was executed if it is desired to show that the parties negotiated on the basis that the words used bore a particular and agreed meaning.

13. Applicable Rules

Rule Name
No applicable rules

14. Applicable Statutes

Statute Name	Jurisdiction
No applicable statutes

15. Key Terms and Keywords

15.1 Key Terms

Subject to contract
Seed funding
Term Sheet
Investment vehicle
Shareholders’ agreement
CBTL Holdings Ltd
Smart Plus International Holdings Ltd
Approval of Heads of Terms

15.2 Keywords

Breach of contract
Investment dispute
Coffee Bean and Tea Leaf
Singapore High Court
Koo Khin Yong
Mark Burby

17. Areas of Law

Area Name	Relevance Score
Contract Law	90
Civil Procedure	50
Corporate Law	30

16. Subjects

Contract Law
Investment Law