Freely Pte Ltd v Ong Kaili: Misleading Conduct & Consumer Protection

Freely Pte Ltd appealed a Small Claims Tribunal decision in favor of Ong Kaili and 47 other claimants. The claimants, who had enrolled in an options trading course conducted by Freely, sought refunds for the course, software, and a web-seminar package, alleging misleading conduct. The High Court dismissed Freely's appeal, upholding the Tribunal's decision that Freely had engaged in unfair practices under the Consumer Protection (Fair Trading) Act.

1. Case Overview

1.1 Court

High Court

1.2 Outcome

Appeal Dismissed

1.3 Case Type

Civil

1.4 Judgment Type

Grounds of Decision

1.5 Jurisdiction

Singapore

1.6 Description

Appeal regarding a Small Claims Tribunal decision. The court addressed unfair practices, consumer protection, and the interplay between SCTA and CPFTA.

1.7 Decision Date

2. Parties and Outcomes

Party NameRoleTypeOutcomeOutcome TypeCounsels
OthersRespondent, ClaimantCorporationJudgment for RespondentWon
Freely Pte LtdAppellant, RespondentCorporationAppeal DismissedLost
Ong KailiRespondent, ClaimantIndividualJudgment for RespondentWon

3. Judges

Judge NameTitleDelivered Judgment
Woo Bih LiJudgeYes

4. Counsels

Counsel NameOrganization
Oliver QuekOliver Quek & Associates
Giam Chin ToonGoodwins Law Corporation
Kevin LimGoodwins Law Corporation
Daniel JohnGoodwins Law Corporation
Ruth ZhuGoodwins Law Corporation

4. Facts

  1. Claimants enrolled in a three-day options trading course conducted by Freely Pte Ltd.
  2. Dr. Clemen Chiang, Freely's director, shareholder, and course conductor, represented himself as having a Ph.D. in Finance.
  3. Claimants sought refunds for the course, software, and web-seminar package.
  4. The Small Claims Tribunal found Freely liable for misleading the Claimants.
  5. The Referee determined that a reasonable consumer would believe Dr. Chiang was an academic expert due to his Ph.D.
  6. The Straits Times published reports questioning the accreditation of Dr. Chiang's Ph.D. from Preston University.
  7. The Referee considered whether Freely's actions were reasonable but did not think that they were.

5. Formal Citations

  1. Freely Pte Ltd v Ong Kaili and Others, Small Claims Tribunal Appeal No 3 of 2009, [2010] SGHC 60

6. Timeline

DateEvent
Claims filed in the Small Claims Tribunal
Claims filed in the Small Claims Tribunal
Hearing held in the Small Claims Tribunal
Decision Date

7. Legal Issues

  1. Unfair Practice
    • Outcome: The court found that Freely engaged in unfair practices by misleading the Claimants.
    • Category: Substantive
    • Sub-Issues:
      • Misleading representation
      • False claim
      • Taking advantage of a consumer
  2. Limitation Period
    • Outcome: The court did not make a definitive ruling on the limitation period but noted the arguable inconsistency between the SCTA and CPFTA.
    • Category: Procedural
  3. Breach of Natural Justice
    • Outcome: The court found no breaches of natural justice in the conduct of the Small Claims Tribunal hearing.
    • Category: Procedural
  4. Measure of Damages
    • Outcome: The court accepted that the appropriate measure of damages under the CPFTA for loss or damage which arises from unfair practice is, generally, the tortious measure of damages, viz, the difference between the value of what has been purchased and what was paid.
    • Category: Substantive
    • Sub-Issues:
      • Tortious measure of damages
      • Causation
      • Reliance

8. Remedies Sought

  1. Refund of course fees
  2. Refund for software
  3. Refund for web-seminar package
  4. Damages

9. Cause of Actions

  • Breach of Contract
  • Misrepresentation
  • Unfair Practice under Consumer Protection (Fair Trading) Act

10. Practice Areas

  • Commercial Litigation
  • Consumer Rights
  • Dispute Resolution

11. Industries

  • Education
  • Finance

12. Cited Cases

Case NameCourtAffirmedCitationJurisdictionSignificance
An Experiment in Informal Justice: The Small Claims Tribunal of SingaporeUnknownYes[1991] 3 SAcLJ 264SingaporeCited to support the view that an SCT must determine disputes according to substantive legal principles.
Parkdale v PUXUHigh Court of AustraliaYes(1982) 42 ALR 1AustraliaCited regarding intention to mislead not being a necessary ingredient.
Annand & Thompson v TPCUnknownYes(1979) 25 ALR 91AustraliaCited regarding whether conduct has been misleading or deceptive has to be tested against the standard of a reasonable man.
Marcol Manufacturers Ltd v Commerce CommissionUnknownYes[1991] 2 NZLR 502New ZealandCited regarding whether conduct has been misleading or deceptive has to be tested against the standard of a reasonable man.
Global Sportsman v. MirrorUnknownYes(1984) 55 ALR 25AustraliaCited regarding whether or not s 52(1) is contravened does not depend upon the corporation’s intention or its belief concerning the accuracy of such statement.
Findlay v Couldwell and Beywood MotorsBritish Columbia Supreme CourtYes(1976) 5 W.W.R. 340CanadaCited regarding a deceptive act does not necessarily involve deliberate intention to deceive.
Mikulus v Milo European Cars Specialists LtdUnknownYes(1993) CPR (3d) 1CanadaCited regarding a deceptive act does not necessarily involve deliberate intention to deceive.
Henjo Investments Pty. Ltd. v. Collins Marrickville Pty. LtdUnknownYes(1989) 79 ALR 83AustraliaCited regarding misleading and deceptive are plainly not synonymous.
Director of Trade Practices v Van City Construction LtdUnknownYes1999 B.C.T.C. LEXIS 1918CanadaCited regarding an action can be deceptive even without any intent to deceive on the part of the supplier.
Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre LtdHigh Court of AustraliaYes(1978) 140 CLR 216AustraliaCited regarding the prohibition is concerned with consequences as giving to particular conduct a particular colour.
Yorke v LucasHigh Court of AustraliaYes(1985) 158 CLR 661AustraliaCited regarding the defendant’s knowledge or belief will not always be irrelevant in the breach inquiry.
Bridge Stockbrokers Ltd v BridgesFederal Court of AustraliaYes(1984) 4 FCR 460AustraliaCited regarding the intent of the alleged offender in determining whether conduct is misleading or deceptive.
Telmak Teleproducts (Aust) Pty Ltd v Coles Myer LtdFederal Court of AustraliaYes(1989) 89 ALR 48AustraliaCited regarding proof of an intention to deceive, whilst not of itself establishing that conduct was misleading or deceptive, was of powerful evidentiary value.
Neilsen v Hempston Holdings Pty LtdUnknownYes(1986) 65 ALR 302AustraliaCited regarding carelessness on the part of the respondent is not a necessary element of a s 52 claim.
Rhone-Poulenc Agrochimie SA v UIM Chemical Services Pty LtdFederal Court of AustraliaYes(1986) 12 FCR 477AustraliaCited regarding a defendant’s awareness of the risk associated with its product was a relevant but not decisive consideration as to whether a failure to disclose was conduct of the proscribed character.
Brown v Jam Factory Pty LtdUnknownYes(1981) 53 FLR 340AustraliaCited regarding s.9 is a comprehensive provision of wide impact, which does not adopt the language of any common law action.
Chase Manhattan Overseas Corp v. Chase CorpUnknownYes[1986] ATPR 47, 328AustraliaCited regarding the legal principles relevant to the determination of the question whether the use by a corporation of a particular name amounts to conduct which is actually or potentially misleading or deceptive.
Taco Company of Australia Inc v. Taco Bell Pty LimitedUnknownYes[1982] ATPR 40-303AustraliaCited regarding conduct cannot, for the purposes of sec 52, be categorized as misleading or deceptive, or likely to be misleading or deceptive, unless it contains or conveys a misrepresentation.
Hornsby Building Information Centre Pty Limited v. Sydney Building Information Centre Pty LimitedUnknownYes[1978] ATPR 40-067AustraliaCited regarding a statement which is literally true may nevertheless be misleading or deceptive.
World Series Cricket Pty Limited v. ParishUnknownYes[1977] ATPR 40-040AustraliaCited regarding a statement which is literally true may nevertheless be misleading or deceptive.
Parkdale Custom Built Furniture Pty Limited v. Puxu Pty LimitedUnknownYes[1982] ATPR 40-307AustraliaCited regarding ordinarily, mere proof of confusion or uncertainty will not suffice to prove misleading or deceptive conduct.
Cox & Coxon Ltd v LeipstUnknownYes[1999] 2 NZLR 15New ZealandCited regarding the unfair practice must have caused the loss.
Elna Australia Pty. Ltd. v International Computers Pty. Ltd.UnknownYes(1987) 75 ALR 271AustraliaCited regarding the unfair practice need not be the sole cause of the loss.
Gould v VaggelasHigh Court of AustraliaYes(1985) 157 CLR 215AustraliaCited regarding in order to establish causation, the consumer must have placed reliance on it and the onus of proving this lies on the consumer.
Livingstone v Rawyards Coal CoUnknownYes(1880) App Cas 25United KingdomCited regarding the tort measure of damages would aim to place the plaintiff in a position that he would have been had the tort not been committed.
Robinson v HarmanUnknownYes(1848) 1 Ex 850United KingdomCited regarding the contract measure of damages would aim to put the plaintiff in a position he would have been had the contract been properly performed.
Gates v City Mutual Life Assurance Society LtdHigh Court of AustraliaYes(1986) 63 ALR 600AustraliaCited regarding the correct measure to be adopted is generally the tort measure.
Harvey Corporation Ltd v BarkerUnknownYes[2002] 2 NZLR 213New ZealandCited regarding the correct measure to be adopted is generally the tort measure.
Wardley Australia Ltd v WAHigh Court of AustraliaYes(1992) 175 CLR 514AustraliaCited regarding acts done by the representee in reliance on the misrepresentation constitute a sufficient connexion to satisfy the concept of causation.
David v TFAC LtdNew Zealand Court of AppealYes[2009] 3 NZLR 239New ZealandCited regarding the elements required to establish that the conduct in question was misleading or deceptive under s 9 of the New Zealand Fair Trading Act 1986.
AMP Finance New Zealand Ltd v HeavenUnknownYes(1997) 8 TCLR 144New ZealandCited regarding whether there was such conduct should be determined by asking whether: (a)the conduct at issue was capable of being misleading; (b)the plaintiff was in fact misled; and (c)it was reasonable for the plaintiff to have been misled.
McVicker v Vodafone (NZ) & orsHigh Court of New ZealandYesHC AK CIV 2005-404-180New ZealandCited regarding the plaintiffs must show that the loss or damage claimed was caused by Connell Wagner’s misconduct.
Commerce Commission v Bennett and Associates LtdNew Zealand Court of AppealYes(1995) 6 TCLR 691New ZealandCited regarding while reliance will satisfy the need for a causal link, absence of reliance does not necessarily mean a link does not exits.
Reference No MVD 31/07Motor Vehicles Dispute TribunalYes[2007] NZMVDT 40New ZealandCited regarding as the purchaser did not rely on the seller’s misleading conduct, there was no damage flowing from it.

13. Applicable Rules

Rule Name
No applicable rules

14. Applicable Statutes

Statute NameJurisdiction
Small Claims Tribunal Act (Cap 308, 1998 Rev Ed)Singapore
Small Claims Tribunal Act (Cap 308, 1998 Rev Ed)Singapore
Small Claims Tribunal Act (Cap 308, 1998 Rev Ed)Singapore
Small Claims Tribunal Act (Cap 308, 1998 Rev Ed)Singapore
Consumer Protection (Fair Trading) Act (Cap 52A, 2004 Rev Ed)Singapore
Consumer Protection (Fair Trading) Act (Cap 52A, 2004 Rev Ed)Singapore
Consumer Protection (Fair Trading) Act (Cap 52A, 2004 Rev Ed)Singapore
Consumer Protection (Fair Trading) Act (Cap 52A, 2004 Rev Ed)Singapore
Small Claims Tribunal Act (Cap 308, 1998 Rev Ed)Singapore
Consumer Protection (Fair Trading) Act (Cap 52A, 2004 Rev Ed)Singapore

15. Key Terms and Keywords

15.1 Key Terms

  • Options Trading Course
  • Small Claims Tribunal
  • Consumer Protection
  • Unfair Practice
  • Misleading Representation
  • Ph.D. in Finance
  • Preston University
  • Software Programme
  • Web-Seminar Package
  • Tortious Measure of Damages
  • Reliance
  • Causation

15.2 Keywords

  • Consumer Protection
  • Small Claims Tribunal
  • Unfair Practice
  • Misleading Conduct
  • Options Trading
  • CPFTA
  • SCTA

17. Areas of Law

Area NameRelevance Score
Consumer Law90
Misrepresentation85
Contract Law70
Options Trading60

16. Subjects

  • Consumer Law
  • Contract Law
  • Misrepresentation
  • Small Claims Tribunal
  • Fair Trading