Oversea-Chinese Banking Corp v Asia Pacific Links: Breach of Contract, Fraudulent Misrepresentation, Takeover Code

In 2008, Oversea-Chinese Banking Corporation Ltd (OCBC) sued Asia Pacific Links Ltd (APLL) and Dr. Soh Guan Cheow Anthony in the High Court of Singapore, alleging breach of contract, fraudulent misrepresentation, and conspiracy related to a voluntary conditional cash offer by APLL to acquire shares in Jade Technologies Holdings Ltd. OCBC, as APLL's financial advisor, claimed damages to its reputation and financial losses due to the offer's eventual withdrawal. The defendants denied the claims and counterclaimed for OCBC's alleged negligence and breaches of the Singapore Code on Take-overs and Mergers. The court found in favor of OCBC, awarding interlocutory judgment on its claim and dismissing the defendants' counterclaim, determining that the defendants made false representations, leading to the failed offer and damages to OCBC.

1. Case Overview

1.1 Court

High Court

1.2 Outcome

Judgment for Plaintiff; Defendant's Counterclaim Dismissed

1.3 Case Type

Civil

1.4 Judgment Type

Grounds of Decision

1.5 Jurisdiction

Singapore

1.6 Description

OCBC sues Asia Pacific Links for breach of contract and misrepresentation related to a failed takeover offer. Judgment for OCBC.

1.7 Decision Date

2. Parties and Outcomes

Party NameRoleTypeOutcomeOutcome TypeCounsels
Oversea-Chinese Banking Corp LtdPlaintiffCorporationJudgment for PlaintiffWonLee Eng Beng, Sim Kwan Kiat, Chin Wei Lin, Christine Huang
Asia Pacific Links LtdDefendantCorporationClaim DismissedLostMichael Khoo, Andy Chiok, Josephine Low, Ong Lee Woei, Yap Wai Ming, Eugene Thuraisingam
Soh Guan Cheow AnthonyDefendantIndividualClaim DismissedLostMichael Khoo, Andy Chiok, Josephine Low, Ong Lee Woei, Yap Wai Ming, Eugene Thuraisingam

3. Judges

Judge NameTitleDelivered Judgment
Lai Siu ChiuJudgeYes

4. Counsels

Counsel NameOrganization
Lee Eng BengRajah & Tann LLP
Sim Kwan KiatRajah & Tann LLP
Chin Wei LinRajah & Tann LLP
Christine HuangRajah & Tann LLP
Michael KhooMichael Khoo & Partners
Andy ChiokMichael Khoo & Partners
Josephine LowMichael Khoo & Partners
Ong Lee WoeiMichael Khoo & Partners
Yap Wai MingStamford Law Corporation
Eugene ThuraisingamStamford Law Corporation

4. Facts

  1. APLL launched a voluntary conditional cash offer to acquire shares in Jade Technologies.
  2. OCBC was appointed as the financial advisor to APLL for the offer.
  3. Dr. Soh, the sole shareholder and director of APLL, provided documents to OCBC as proof of sufficient financial resources.
  4. APLL misrepresented its shareholding in Jade Technologies.
  5. Doubts arose regarding the authenticity of the documents provided by APLL.
  6. OCBC resigned as financial advisor, and APLL withdrew the offer.
  7. The Securities Industry Council (SIC) found that Dr. Soh and OCBC had breached the Singapore Code on Take-overs and Mergers.

5. Formal Citations

  1. Oversea-Chinese Banking Corp Ltd v Asia Pacific Links Ltd and another (Abdul Rahman bin Maarip, third party), Suit No 896 of 2008, [2010] SGHC 301

6. Timeline

DateEvent
Mandate Letter signed between OCBC and APLL
First Verification Meeting held
Offer Announcement released to the Singapore Stock Exchange Ltd
Second Verification Meeting held
Offer Document despatched
OCBC and A&G conducted a telephone conference with Dr Soh
A&G discharged themselves as legal advisers to APLL
OCBC resigned as financial adviser to APLL
APLL withdrew the Offer
Trial bifurcated pursuant to an order of court
Judgment reserved

7. Legal Issues

  1. Breach of Contract
    • Outcome: The court found that APLL breached the Mandate Letter by providing incorrect and inaccurate information to OCBC.
    • Category: Substantive
  2. Fraudulent Misrepresentation
    • Outcome: The court found that the defendants intentionally made false representations to deceive OCBC into acting as financial advisor.
    • Category: Substantive
  3. Negligence
    • Outcome: Even if the misrepresentations were not fraudulent, the court found the defendants liable for negligent misrepresentation due to a failure to exercise reasonable care.
    • Category: Substantive
  4. Breach of Singapore Code on Take-overs and Mergers
    • Outcome: The court found that OCBC's breaches of the Code did not cause the collapse of the offer, but rather the defendants' misrepresentations did.
    • Category: Substantive

8. Remedies Sought

  1. Monetary Damages
  2. Indemnification
  3. Declaration of Entitlement to Terminate Mandate Letter

9. Cause of Actions

  • Breach of Contract
  • Fraudulent Misrepresentation
  • Negligence

10. Practice Areas

  • Commercial Litigation
  • Corporate Finance
  • Financial Advisory

11. Industries

  • Banking
  • Finance

12. Cited Cases

Case NameCourtAffirmedCitationJurisdictionSignificance
Panatron Pte Ltd and another v Lee Cheow LeeCourt of AppealYes[2001] 2 SLR(R) 435SingaporeCited for the principle that a fraudulent party cannot argue that the victim was defrauded because he failed to exercise reasonable care.
Chandran a/l Subbiah v Dockers Marine Pte LtdCourt of AppealYes[2010] 1 SLR 786SingaporeCited for the principle that industry codes of conduct are not invariably reflective of the existing common law standards of care.

13. Applicable Rules

Rule Name
No applicable rules

14. Applicable Statutes

Statute NameJurisdiction
Securities & Futures Act (Cap 289, 2006 Rev Ed) s 139Singapore

15. Key Terms and Keywords

15.1 Key Terms

  • Voluntary Conditional Cash Offer
  • Mandate Letter
  • Financial Resources Representation
  • Shareholding Representation
  • Singapore Code on Take-overs and Mergers
  • Global Master Share Lending Agreement
  • Beneficial Ownership
  • Bank Guarantee
  • SWIFT
  • Financial Advisor

15.2 Keywords

  • takeover
  • merger
  • financial advisory
  • breach of contract
  • misrepresentation
  • OCBC
  • Asia Pacific Links
  • Jade Technologies
  • Singapore
  • financial resources
  • shareholding
  • SIC
  • takeover code

16. Subjects

  • Takeover
  • Mergers and Acquisitions
  • Financial Services
  • Corporate Law

17. Areas of Law

  • Contract Law
  • Securities Law
  • Civil Procedure
  • Takeover Law
  • Fraud Law