Foo Jong Peng v Phua Kiah Mai: Power to Remove Office Bearers in Singapore Hainan Hwee Kuan Management Committee

In Foo Jong Peng and others v Phua Kiah Mai and another, the Singapore Court of Appeal heard an appeal against the High Court's decision regarding the power of the Management Committee of the Singapore Hainan Hwee Kuan to remove office bearers from the Executive Committee. The court dismissed the appeal, holding that the Rules of the Singapore Hainan Hwee Kuan did not grant the Management Committee the power to remove office bearers. The court found that the implied power of removal could not have been part of the presumed intentions of the members.

1. Case Overview

1.1 Court

Court of Appeal

1.2 Outcome

Appeal Dismissed

1.3 Case Type

Civil

1.4 Judgment Type

Grounds of Decision

1.5 Jurisdiction

Singapore

1.6 Description

The Singapore Court of Appeal held that the Management Committee of the Singapore Hainan Hwee Kuan did not have the power to remove office bearers.

1.7 Decision Date

7 October 2012

2. Parties and Outcomes

Party Name	Role	Type	Outcome	Outcome Type	Counsels
Phua Kiah Mai	Respondent	Individual	Appeal Dismissed	Won	Hee Theng Fong of RHTLaw Taylor Wessing LLP Leong Kai Yuan of RHTLaw Taylor Wessing LLP
Foo Jong Peng	Appellant	Individual	Appeal Dismissed	Lost	S Magintharan of Essex LLC James Liew of Essex LLC B Uthayacharan of Essex LLC
Lee Teck Hai	Appellant	Individual	Appeal Dismissed	Lost	S Magintharan of Essex LLC James Liew of Essex LLC B Uthayacharan of Essex LLC
Han Tan Juan	Appellant	Individual	Appeal Dismissed	Lost	S Magintharan of Essex LLC James Liew of Essex LLC B Uthayacharan of Essex LLC
Foo Shick Thai	Appellant	Individual	Appeal Dismissed	Lost	S Magintharan of Essex LLC James Liew of Essex LLC B Uthayacharan of Essex LLC
Pang Fui Nam	Appellant	Individual	Appeal Dismissed	Lost	S Magintharan of Essex LLC James Liew of Essex LLC B Uthayacharan of Essex LLC
Hun Chin Guan	Respondent	Individual	Appeal Dismissed	Won	Hee Theng Fong of RHTLaw Taylor Wessing LLP Leong Kai Yuan of RHTLaw Taylor Wessing LLP

3. Judges

Judge Name	Title	Delivered Judgment
Andrew Phang Boon Leong	Justice of the Court of Appeal	Yes
V K Rajah	Justice of the Court of Appeal	No
Woo Bih Li	Judge	No

4. Counsels

Counsel Name	Organization
Hee Theng Fong	RHTLaw Taylor Wessing LLP
Leong Kai Yuan	RHTLaw Taylor Wessing LLP
S Magintharan	Essex LLC
James Liew	Essex LLC
B Uthayacharan	Essex LLC

4. Facts

The dispute arose from a disagreement over the management of the financial affairs of Tin Hou Kong.
Foo Jong Peng attempted to table a motion to remove Phua Kiah Mai as President of the Association.
A special Management Committee meeting was called to "re-organise" the Management Committee.
Resolutions were passed removing Phua Kiah Mai and Hun Chin Guan from their positions at the 20 October 2011 Meeting.
The Rules of the Singapore Hainan Hwee Kuan do not expressly provide for the removal of a member of the Executive Committee.
The First Respondent averred that it was the first time in the 157-year history of the Association that a President had been removed before the expiry of his term of office.

5. Formal Citations

Foo Jong Peng and others v Phua Kiah Mai and another, Civil Appeal No 4 of 2012, [2012] SGCA 55
Phua Kiah Mai and another v Foo Jong Peng and others, , [2012] SGHC 14

6. Timeline

Date	Event
1890-12-18	Association registered with the Registry of Societies
2006-01-01	Foo Jong Peng began first term as President
2010-01-01	Foo Jong Peng's term as President ended
2010-01-01	Parties voted in as members of the Management Committee at the AGM
2011-03-01	Dispute arose between Foo Jong Peng and Phua Kiah Mai
2011-05-01	Hun Chin Guan elected as Honorary Secretary General
2011-07-26	Foo Jong Peng expressed view he was no longer able to work with Phua Kiah Mai
2011-08-03	Foo Jong Peng called for a special meeting of the Management Committee
2011-08-05	Management Committee meeting held but was inquorate
2011-08-16	Foo Jong Peng convened a meeting of the Management Committee
2011-09-12	Lee Teck Hai proposed a motion to remove Phua Kiah Mai as President
2011-09-15	Lee Teck Hai sent a second letter to table a motion to remove Foo Jong Peng
2011-09-19	Hun Chin Guan replied, reiterating the Management Committee had no power to remove the President
2011-09-28	Management Committee meeting adjourned due to lack of quorum
2011-10-07	Lee Teck Hai advised Hun Chin Guan that a meeting of the Management Committee should be convened
2011-10-10	Tan Han Juan proposed a third motion to remove Hun Chin Guan
2011-10-12	Foo Jong Peng issued a notice convening the 20 October 2011 Meeting
2011-10-17	RHTLaw wrote to Foo Jong Peng, stating that the notice to convene the meeting was improper
2011-10-20	Management Committee meeting held; resolutions passed removing Phua Kiah Mai and Hun Chin Guan
2011-01-01	Phua Kiah Mai and Hun Chin Guan filed Originating Summons No 975 of 2011 in the High Court
2012-05-20	New Management Committee elected at the AGM
2012-10-08	Court of Appeal dismissed the appeal

7. Legal Issues

Implied Terms in Contract
- Outcome: The court held that a term conferring a power on the Management Committee to remove office bearers could not be implied in the Rules.
- Category: Substantive
- Sub-Issues:
  - Business efficacy
  - Officious bystander test
  - Necessity of the term
- Related Cases:
  - [1992] 2 SLR(R) 165
  - [1944] AC 111
  - [1987] 1 WLR 379
  - [2006] 1 SLR(R) 927
  - [2009] 3 SLR(R) 518
  - [2009] 3 SLR(R) 724
  - [2009] 1 WLR 1988
  - [2011] 1 SLR 150
  - [2012] 3 SLR 801
  - [2006] 3 SLR(R) 769
  - [2010] 1 All ER (Comm) 1
  - [2012] 28 LQR 41
  - [2002] 1 AC 408
  - [2010] EWCA Civ 543
  - [2012] 2 All ER (Comm) 480
  - [2007] 1 SLR(R) 940
  - (1867) LR 2 Ch App 596
Validity of Management Committee Meeting
- Outcome: The court held that the 20 October 2011 Meeting was validly convened by Foo Jong Peng.
- Category: Procedural

8. Remedies Sought

Declaration
Injunction

9. Cause of Actions

Declaration that Foo Jong Peng had no power to convene the Singapore Hainan Hwee Kuan Management Committee meeting
Declaration that the Singapore Hainan Hwee Kuan Management Committee meeting held on 20 October 2011 is invalid
Declaration that the Singapore Hainan Hwee Kuan Management Committee has no power to remove their President, First Vice President and Honorary Secretary General and elect a new President, First Vice President and Honorary Secretary General

10. Practice Areas

Commercial Litigation
Contractual Interpretation

11. Industries

No industries specified

12. Cited Cases

Case Name	Court	Affirmed	Citation	Jurisdiction	Significance
Attorney-General v Joo Yee Construction Pte Ltd (in liquidation)	Court of Appeal	Yes	[1992] 2 SLR(R) 165	Singapore	Cited for the proposition that the Court of Appeal should exercise its inherent jurisdiction to decline to decide an issue which the Appellants retain no interest in.
Sun Life Assurance Co of Canada v Jervis	House of Lords	Yes	[1944] AC 111	England and Wales	Cited for the principle that there should exist between the parties a matter in actual controversy which the House undertakes to decide as a living issue.
Ainsbury v Millington	House of Lords	Yes	[1987] 1 WLR 379	England and Wales	Cited for the principle that litigation may sometimes be properly continued for the sole purpose of resolving an issue as to costs when all other matters in dispute have been resolved.
Forefront Medical Technology (Pte) Ltd v Modern-Pak Pte Ltd	High Court	Yes	[2006] 1 SLR(R) 927	Singapore	Cited for the summary of the two traditional tests for implied terms, viz, the “business efficacy” test and the “officious bystander” test.
Ng Giap Hon v Westcomb Securities Pte Ltd and others	Court of Appeal	Yes	[2009] 3 SLR(R) 518	Singapore	Cited for approving the Singapore High Court’s decision of Forefront Medical Technology (Pte) Ltd v Modern-Pak Pte Ltd.
Chua Choon Cheng and others v Allgreen Properties Ltd and another appeal	Court of Appeal	Yes	[2009] 3 SLR(R) 724	Singapore	Cited for the principle that the officious bystander test is the practical mode by which the business efficacy test is implemented.
Attorney General of Belize and others v Belize Telecom Ltd and another	Privy Council	Yes	[2009] 1 WLR 1988	Belize	Cited for the conceptual basis of the implication of terms was reconsidered.
MFM Restaurants Pte Ltd and another v Fish & Co Restaurants Pte Ltd and another appeal	Court of Appeal	Yes	[2011] 1 SLR 150	Singapore	Cited for the observation, by way of obiter dicta, by this court.
Sembcorp Marine Ltd v PPL Holdings Pte Ltd and another	High Court	Yes	[2012] 3 SLR 801	Singapore	Cited as a recent Singapore High Court decision that referred to the Belize test.
Jet Holding Ltd v Cooper (Singapore) Pte Ltd	Court of Appeal	Yes	[2006] 3 SLR(R) 769	Singapore	Cited for the distinction between terms implied in fact or in law.
Recent developments in the law of implied terms	N/A	Yes	[2010] LMCLQ 140	N/A	Cited for the view that Lord Hoffmann’s speech in Belize may be seen to assimilate further implication within interpretation.
Implied Terms: The Journey of the Man on the Clapham Omnibus	N/A	Yes	[2011] CLJ 607	N/A	Cited for the approach to be derived from Belize seems to entail, in the context of contractual implied terms, the replacement of the officious bystander by another character from legal folklore, formerly referred to as the man on the Clapham omnibus.
Davis Contractors Ltd v Fareham Urban District Council	House of Lords	Yes	[1956] AC 696	England and Wales	Cited for the observations by Lord Radcliffe in the House of Lords decision.
Mediterranean Salvage and Towage Ltd v Seamar Trading and Commerce Inc, The Reborn	English Court of Appeal	Yes	[2010] 1 All ER (Comm) 1	England and Wales	Cited for the observations by Lord Clarke MR in the English Court of Appeal decision.
The Iterative Process of Contractual Interpretation	N/A	Yes	[2012] 28 LQR 41	N/A	Cited for the observations by Lord Grabiner QC.
Equitable Life Assurance Society v Hyman	House of Lords	Yes	[2002] 1 AC 408	England and Wales	Cited for the observations by Lord Steyn in the House of Lords decision.
Stena Line Limited v P & O Ferries Limited	English Court of Appeal	Yes	[2010] EWCA Civ 543	England and Wales	Cited for the view that the Belize case constitutes an important and recent development in the principles of interpretation.
Spencer and another v Secretary of State for Defence	English High Court	Yes	[2012] 2 All ER (Comm) 480	England and Wales	Cited for the comprehensive survey of the relevant precedents and purported to apply the Belize test.
Golden Harvest Films Distribution (Pte) Limited v Golden Village Multiplex Pte Ltd	Court of Appeal	Yes	[2007] 1 SLR(R) 940	Singapore	Cited for the principle that it was in principle possible to invoke past practice to fill in gaps in the articles of association of a company.
In re Imperial Mercantile Credit Association (Marino’s Case)	N/A	Yes	(1867) LR 2 Ch App 596	N/A	Cited for the principle that concrete evidence must be adduced to show that this practice was “the unvarying course” of the company.
Phua Kiah Mai and another v Foo Jong Peng and others	High Court	Yes	[2012] SGHC 14	Singapore	This is the High Court decision that was appealed. The Court of Appeal dismissed the appeal substantially.

13. Applicable Rules

Rule Name
Rule 7 of the Rules of the Singapore Hainan Hwee Kuan
Rule 8 of the Rules of the Singapore Hainan Hwee Kuan
Rule 9 of the Rules of the Singapore Hainan Hwee Kuan
Rule 12(1) of the Rules of the Singapore Hainan Hwee Kuan
Rule 13 of the Rules of the Singapore Hainan Hwee Kuan
Rule 14 of the Rules of the Singapore Hainan Hwee Kuan
Rule 15 of the Rules of the Singapore Hainan Hwee Kuan
Rule 16 of the Rules of the Singapore Hainan Hwee Kuan
Rule 17 of the Rules of the Singapore Hainan Hwee Kuan
Rule 19 of the Rules of the Singapore Hainan Hwee Kuan

14. Applicable Statutes

Statute Name	Jurisdiction
No applicable statutes

15. Key Terms and Keywords

15.1 Key Terms

Management Committee
Executive Committee
Office Bearers
Rules of the Singapore Hainan Hwee Kuan
Implied Term
Business Efficacy
Officious Bystander
Ultra Vires

15.2 Keywords

Singapore Hainan Hwee Kuan
Management Committee
Executive Committee
Implied Terms
Contract Law
Singapore Law

17. Areas of Law

Area Name	Relevance Score
Management Committee	50
Societies Law	40
Administrative Law	30
Business Law	20
Corporate Law	20
Company Law	20
Property Law	10

16. Subjects

Associations Law
Contract Law
Terms Implied in Fact