Borneo Ventures v Ong Han Nam: Breach of Contract & Warranties Dispute over Sutera Harbour Resort Land

In a suit before the High Court of Singapore, Borneo Ventures Pte Ltd, the Plaintiff, brought a claim against Ong Han Nam, the Defendant, for breach of contract relating to a Subscription Agreement (SA) concerning the Sutera Harbour Group. The Plaintiff alleged that the Defendant breached warranties by failing to disclose a sale and purchase agreement (S&P) involving a portion of land within the Sutera Harbour Resort. The court found in favor of the Plaintiff, granting injunctions and awarding damages to be assessed by the Registrar, and dismissed the Defendant's counterclaim.

1. Case Overview

1.1 Court

High Court of the Republic of Singapore

1.2 Outcome

Judgment for Plaintiff

1.3 Case Type

Civil

1.4 Judgment Type

Judgment

1.5 Jurisdiction

Singapore

1.6 Description

Borneo Ventures sues Ong Han Nam for breach of contract regarding the sale of Sutera Harbour Resort, alleging undisclosed land transfer. The court found in favor of Borneo Ventures.

1.7 Decision Date

4 May 2020

2. Parties and Outcomes

Party Name	Role	Type	Outcome	Outcome Type	Counsels
Ong Han Nam	Defendant	Individual	Counterclaim Dismissed	Lost	Poon Pui Yee of Eversheds Harry Elias LLP Lem Jit Min Andy of Eversheds Harry Elias LLP Selvaratnam Sharmini Sharon of Eversheds Harry Elias LLP Zhuang Changzhong of Eversheds Harry Elias LLP
Borneo Ventures Pte. Ltd.	Plaintiff	Corporation	Judgment for Plaintiff	Won	Yeo Yian Hui Mark of Engelin Teh Practice LLC Teh Guek Ngor Engelin of Engelin Teh Practice LLC Lim Xiao Wei Charmaine of Engelin Teh Practice LLC Bryan Hew Jianrong of Engelin Teh Practice LLC

3. Judges

Judge Name	Title	Delivered Judgment
Lai Siu Chiu	Senior Judge	Yes

4. Counsels

Counsel Name	Organization
Poon Pui Yee	Eversheds Harry Elias LLP
Lem Jit Min Andy	Eversheds Harry Elias LLP
Selvaratnam Sharmini Sharon	Eversheds Harry Elias LLP
Zhuang Changzhong	Eversheds Harry Elias LLP
Yeo Yian Hui Mark	Engelin Teh Practice LLC
Teh Guek Ngor Engelin	Engelin Teh Practice LLC
Lim Xiao Wei Charmaine	Engelin Teh Practice LLC
Bryan Hew Jianrong	Engelin Teh Practice LLC

4. Facts

Plaintiff acquired 77.5% of the share capital in SH Group for RM700m.
Defendant warranted SHGCC owned the Sembulan Land without encumbrances.
SHGCC agreed to sell a portion of the Sembulan Land to OBSB for RM1,000.
Defendant did not disclose the sale and purchase agreement in the disclosure letter.
Plaintiff discovered the sale and purchase agreement during a tax review.
The Malaysian court dismissed SHGCC’s claim and allowed the Defendant’s counterclaim.
The Co-Gen Facility was developed by PHSB between 1997 and 1999 at a cost of RM155m.

5. Formal Citations

Borneo Ventures Pte Ltd v Ong Han Nam, Suit No 1268 of 2016, [2020] SGHC 91

6. Timeline

Date	Event
1991-12-19	Defendant became a director of Sutera Harbour Golf & Country Club Bhd
1997-01-01	Co-Gen Facility developed by Profound Heritage Sdn Bhd between 1997 and 1999
2012-01-11	Profound Heritage Sdn Bhd wound up by court order in Malaysia
2013-03-28	Omega Brilliance Sdn Bhd paid RM34.438m to Bank Islam on behalf of Profound Heritage Sdn Bhd
2013-07-12	Asset sale agreement executed for sale of PHSB’s plant and machinery to OBSB
2013-10-18	Term sheet dated
2013-12-30	Subscription Agreement signed
2014-03-18	Disclosure letter issued to the Plaintiff
2014-03-21	Sale and purchase agreement signed
2014-03-26	Acquisition under the Subscription Agreement completed
2016-02-29	SHGCC commenced proceedings in the Malaysian High Court against OBSB and the Defendant
2016-10-03	Plaintiff commenced arbitration proceedings against the Defendant in Singapore
2016-10-17	Defendant filed a response to arbitration
2016-11-30	Arbitration proceedings terminated by consent
2016-11-30	Plaintiff filed this Suit
2016-12-27	Defendant applied to court to stay this Suit
2017-04-07	Stay Application granted by an Assistant Registrar
2017-10-31	Judgment delivered in the Malaysian Suit
2018-01-29	Defendant withdrew his appeal
2019-07-22	Trial began
2019-07-26	Trial
2019-07-29	Trial
2019-07-30	Trial
2019-07-31	Trial
2019-09-18	Trial
2019-10-16	Trial
2020-05-05	Judgment reserved

7. Legal Issues

Breach of Contract
- Outcome: The court found that the Defendant breached the warranties in the Subscription Agreement.
- Category: Substantive
- Sub-Issues:
  - Breach of warranties
  - Failure to disclose material information
Issue Estoppel
- Outcome: The court held that issue estoppel did not apply because the parties and issues in the Malaysian Suit and the current suit were different.
- Category: Procedural
Proprietary Estoppel
- Outcome: The court found that the Defendant's claim of common expectation did not meet the requirements for proprietary estoppel.
- Category: Substantive
Rectification
- Outcome: The court dismissed the Defendant's counterclaim for rectification of Schedule 4 of the Subscription Agreement.
- Category: Substantive

8. Remedies Sought

Mandatory Injunction
Indemnification for Losses
Damages

9. Cause of Actions

Breach of Contract
Breach of Warranty

10. Practice Areas

Commercial Litigation

11. Industries

Hospitality
Construction

12. Cited Cases

Case Name	Court	Affirmed	Citation	Jurisdiction	Significance
Borneo Ventures Pte Ltd v Ong Han Nam	High Court	Yes	[2017] SGHC 320	Singapore	Cited for the procedural history of the case, specifically regarding the stay application.
Henderson v Henderson	N/A	Yes	(1843) 3 Hare 100	N/A	Cited for the extended doctrine of res judicata.
Humpuss Sea Transport Pte Ltd (in compulsory liquidation) v PT Humpuss Intermoda Transportasi TBK and another	N/A	Yes	[2016] 5 SLR 1322	Singapore	Cited for the requirements for recognition of a foreign judgment and its relation to res judicata.
Lee Tat Development Pte Ltd v Management Corporation of Strata Title Plan No 301	N/A	Yes	[2005] 3 SLR(R) 157	Singapore	Cited for the four conditions that must be satisfied for issue estoppel to apply.
Gleeson v J Wippell & Co Ltd	N/A	Yes	[1977] 1 WLR 510	N/A	Cited to support the argument that a subsidiary is not necessarily a privy of its parent company.
Infiniteland Ltd and another v Artisan Contracting Ltd and another	N/A	Yes	[2006] 1 BCLC 632	United Kingdom	Cited by the Defendant for the principle of general disclosure in warranty claims, but distinguished by the court.
New Hearts Ltd v Cosmopolitan Investments Ltd	N/A	Yes	[1997] 2 BCLC 249	N/A	Cited for the principle that mere reference to a complex source of information is insufficient for fair disclosure in warranty claims.
Tay Tuan Kiat and another v Pritnam Singh Brar	N/A	Yes	[1985-1986] SLR(R) 763	Singapore	Cited for the principle that a mandatory injunction should lead to a fair result.

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

Subscription Agreement
Sale and Purchase Agreement
Sembulan Land
Sutera Harbour Group
Warranties
Disclosure Letter
Co-Generation Facility
Common Expectation
Omega Brilliance Sdn Bhd
Profound Heritage Sdn Bhd

15.2 Keywords

breach of contract
warranties
land sale
Sutera Harbour
Singapore High Court
Ong Han Nam
Borneo Ventures

17. Areas of Law

Area Name	Relevance Score
Breach of Contract	95
Warranties	90
Contract Law	90
Contracts	80
Misrepresentation	60
Estoppel	50
Issue Estoppel	40
Interim injunctions	30
Company Law	20
Civil Procedure	20
Corporate Law	10
Corporate Litigation	10

16. Subjects

Contract Law
Breach of Contract
Commercial Litigation
Property Law