Gomez v Bird & Bird: Professional Negligence Claim for Failure to Recover Debt

In Suit 198 of 2019, Kevin Bennett Gomez sued Bird & Bird ATMD LLP and Boey Swee Siang in the General Division of the High Court of Singapore, alleging professional negligence in failing to recover debt from Magnetron Insurance & Financial Services Pte Ltd and Mr. Kuhadas Vivekananda. Mavis Chionh Sze Chyi J dismissed Gomez's claim on 30 June 2021, finding no breach of duty of care by the defendants. The plaintiff's claim was based on the defendant's failure to apply for taxation of costs, allowing the First Statutory Demand to lapse, and poorly drafting the 22 February 2013 Email. The court ordered Gomez to pay the defendants' costs.

1. Case Overview

1.1 Court

General Division of the High Court of the Republic of Singapore

1.2 Outcome

Claim Dismissed

1.3 Case Type

Civil

1.4 Judgment Type

Grounds of Decision

1.5 Jurisdiction

Singapore

1.6 Description

Kevin Gomez sued Bird & Bird for professional negligence, alleging failure to recover debt. The court dismissed Gomez's claim, finding no breach of duty.

1.7 Decision Date

2. Parties and Outcomes

Party NameRoleTypeOutcomeOutcome TypeCounsels
Gomez, Kevin BennettPlaintiffIndividualClaim DismissedLost
Bird & Bird ATMD LLPDefendantLimited Liability PartnershipJudgment for DefendantWonAng Cheng Ann Alfonso, Ch’ng Chin Leong James, Cheah Shu Xian, Anneson Neo
Boey Swee SiangDefendantIndividualJudgment for DefendantWonAng Cheng Ann Alfonso, Ch’ng Chin Leong James, Cheah Shu Xian, Anneson Neo

3. Judges

Judge NameTitleDelivered Judgment
Mavis Chionh Sze ChyiJudgeYes

4. Counsels

Counsel NameOrganization
Ang Cheng Ann AlfonsoA. Ang, Seah & Hoe
Ch’ng Chin Leong JamesA. Ang, Seah & Hoe
Cheah Shu XianA. Ang, Seah & Hoe
Anneson NeoA. Ang, Seah & Hoe

4. Facts

  1. Plaintiff engaged the 2nd defendant to file Suit 700 against Magnetron for unpaid commissions.
  2. Judgment was entered against Mr Kuhadas and Magnetron in Suit 700.
  3. Plaintiff instructed the 2nd defendant to proceed with bankruptcy against Mr Kuhadas.
  4. Defendants served a statutory demand on Mr Kuhadas.
  5. The First Bankruptcy Application was withdrawn due to a filing error.
  6. The 2nd defendant sent an email to Mr Kuhadas regarding the withdrawal of the Second Bankruptcy Application.
  7. The Federal Circuit Court of Australia set aside the Australian Bankruptcy Notice.

5. Formal Citations

  1. Gomez, Kevin Bennett v Bird & Bird ATMD LLP and another, Suit No 198 of 2019, [2021] SGHC 230

6. Timeline

DateEvent
Plaintiff engaged the 2nd defendant to file Suit 700 against Magnetron.
The 2nd defendant joined the 1st defendant as a partner and transferred Suit 700 to the 1st defendant.
The 2nd defendant joined Mr Kuhadas as a defendant in Suit 700.
Judgment entered against Mr Kuhadas in Suit 700.
Judgment entered against Magnetron in Suit 700.
Judgment for $1,226,289.70 given against Mr Kuhadas and Magnetron jointly and severally.
Defendants requested payment of the judgment sum from Mr Kuhadas.
Plaintiff instructed the 2nd defendant to proceed with bankruptcy against Mr Kuhadas.
Plaintiff instructed the 2nd defendant to serve Mr Kuhadas with a statutory notice.
First Statutory Demand was dated.
Defendants served the First Statutory Demand on Mr Kuhadas.
Mr Kuhadas' solicitors filed applications to set aside part of the October 2011 Judgment and seek an extension of time to appeal.
The 2nd defendant agreed to a request by Mr Kuhadas’ then solicitors that pending the hearing of the two applications, there be no enforcement action taken against Mr Kuhadas in respect of the full commissions as assessed in the October 2011 Judgment.
Setting Aside Application was dismissed.
The 2nd defendant confirmed he would proceed with the bankruptcy application against Mr Kuhadas.
Defendants filed the First Bankruptcy Application against Mr Kuhadas.
Plaintiff informed the 2nd defendant that Mr Kuhadas owned a 45% share of a property at Ballota Park.
Defendants served the Second Statutory Demand on Mr Kuhadas.
The First Bankruptcy Application was withdrawn.
The 2nd defendant successfully applied for attachment against Mr Kuhadas’ interest in the Ballota Park Property.
The 2nd defendant commenced garnishee proceedings to garnish money from Magnetron’s OCBC bank account.
Defendants filed the Second Bankruptcy Application against Mr Kuhadas.
Plaintiff informed the 2nd defendant that Mr Kuhadas had sold a property in Australia.
Mr Kuhadas sent an email to the 2nd defendant asking that the plaintiff withdraw the Second Bankruptcy Application.
The 2nd defendant replied to Mr Kuhadas asking for details of Mr Kuhadas’ “alleged debts”.
Plaintiff said in an email to the 2nd defendant that Mr Kuhadas’ emails “look[ed] promising”.
The High Court issued a writ of seizure and sale for Mr Kuhadas’ shares in Magnetron.
The 2nd defendant informed Mr Kuhadas that the plaintiff required him to remit $300,000 from the sale of the Changi Court Property within 7 days, or he would proceed with the bankruptcy petition.
Mr Kuhadas replied saying that he was a “man of straw” and asking the plaintiff to “postpone the court hearing which will adjudged [him] (sic) as a bankrupt”.
The 2nd defendant told the plaintiff that they should adjourn the hearing of the Second Bankruptcy Application to complete the plaintiff’s takeover of the Magnetron Shares.
The 2nd defendant sent an email to Mr Kuhadas stating, inter alia, that the plaintiff was agreeable in principle to the sale of the Ballota Park Property.
Email correspondence between the 2nd defendant and Mr Kuhadas.
Mr Kuhadas emailed the 2nd defendant stating that he could arrange to sell the Ballota Park Property.
Mr Kuhadas again emailed the 2nd defendant stating that the best way to “realize some money is through the sale of BALLOTA PARK”.
The 2nd defendant informed Mr Kuhadas by email that the plaintiff was agreeable to withdraw the Second Bankruptcy Application if Mr Kuhadas’ father paid him $25,000 upfront and Mr Kuhadas provided a written undertaking to pay $50,000 to the plaintiff upon completion of the sale of the Ballota Park Property.
The 2nd defendant sent the 22 February 2013 Email to Mr Kuhadas.
The 2nd defendant informed Mr Kuhadas that he would withdraw the Second Bankruptcy Application “unconditionally” upon confirmation that the money had been received.
The 2nd defendant was granted leave to withdraw the Second Bankruptcy Application.
The plaintiff’s mother offered to buy all of the Magnetron Shares for $1,000.
The plaintiff told the 2nd defendant that he had collected the Magnetron share transfer deed.
The plaintiff informed the 2nd defendant that he “own[ed] Magnetron officially”.
The plaintiff sent the 2nd defendant copies of Magnetron’s statement of accounts summary for September 2008 and a debit voucher relating to the withdrawal for Mr Kuhadas’ bail bond.
The plaintiff wrote to the Commercial Affairs Department requesting access to all of Magnetron’s documents.
The plaintiff wrote to the 2nd defendant asking if he could seize the assets of two other companies where Mr Kuhadas was the sole director.
Plaintiff instructed Mr Parwani to issue another statutory demand against Mr Kuhadas.
Mr Parwani issued the Third Statutory Demand against Mr Kuhadas.
The plaintiff emailed the 2nd defendant asking him whether the costs awarded pursuant to the October 2011 Judgment were “final”.
Mr Kuhadas wrote to the 2nd defendant referring to the 7 March 2013 Email.
The plaintiff registered the October 2011 Judgment in the Supreme Court of New South Wales.
The plaintiff served the Australian Bankruptcy Notice on Mr Kuhadas.
The plaintiff served the Australian Bankruptcy Notice on Mr Kuhadas.
Mr Kuhadas applied to set aside the Australian Bankruptcy Notice.
Mr Parwani’s firm served the Third Statutory Demand on Mr Kuhadas by advertisement.
The Federal Circuit Court of Australia set aside the Australian Bankruptcy Notice.
The plaintiff emailed the 2nd defendant informing him of the FCC’s decision.
Mr Kuhadas' application to set aside the Third Statutory Demand was dismissed by an assistant registrar.
Mr Parwani’s firm filed the Third Bankruptcy Application against Mr Kuhadas.
The Third Statutory Demand was set aside on appeal.
The plaintiff's appeal to the Federal Court of Australia was dismissed.
Mr Kuhadas emailed the 2nd defendant to demand “important documents” related to Suit 700.
The 2nd defendant forwarded this email to the plaintiff, calling it a “rude missive” from Mr Kuhadas.
Plaintiff commenced Suit 198 against the defendants.
Hearing commenced.
Hearing concluded.
Court dismissed the plaintiff’s claim.
Plaintiff filed a Notice of Appeal.
Reasons for the decision given.

7. Legal Issues

  1. Breach of Duty of Care
    • Outcome: The court found that the defendants did not breach their duty of care to the plaintiff.
    • Category: Substantive
    • Related Cases:
      • [2004] 4 SLR(R) 594
      • [2014] SGHC 159
  2. Causation
    • Outcome: The court found that the plaintiff failed to prove that the alleged negligence caused his inability to recover the judgment sum.
    • Category: Substantive
  3. Mitigation of Loss
    • Outcome: The court found that the plaintiff failed to take all reasonable steps to mitigate the consequent losses.
    • Category: Substantive
  4. Limitation
    • Outcome: The court found that the plaintiff had admitted the time-bar defence in respect of the alleged error in allowing the First Statutory Demand to lapse.
    • Category: Procedural

8. Remedies Sought

  1. Monetary Damages

9. Cause of Actions

  • Professional Negligence

10. Practice Areas

  • Professional Negligence
  • Commercial Litigation

11. Industries

  • Legal Services
  • Financial Services

12. Cited Cases

Case NameCourtAffirmedCitationJurisdictionSignificance
Lie Hendri Rusli v Wong Tan & Molly Lim (a firm)High CourtYes[2004] 4 SLR(R) 594SingaporeCited for the standard of care expected of a solicitor in discharging their duties.
Su Ah Tee and others v Allister Lim and Thrumurgan (sued as a firm) and another (William Cheng and others, third parties)High CourtYes[2014] SGHC 159SingaporeCited for the definition of a solicitor's duty of care.
Tan & Au LLP v Goh Teh LeeHigh CourtYes[2012] 4 SLR 1SingaporeCited for the principle that a solicitor should be judged in light of the circumstances at the time, without the benefit of hindsight.
Zhou Tong and others v Public ProsecutorCourt of AppealYes[2010] 4 SLR 534SingaporeCited for the principle that solicitors are not expected to always 'get it right'.
The “Vasiliy Golovnin”Court of AppealYes[2007] 4 SLR(R) 277SingaporeCited for the principle that findings in a prior proceeding do not bind the Singapore courts when the parties are not the same.
Man Financial (S) Pte Ltd (formerly known as E D & F Man International (S) Pte Ltd v Wong Bark Chuan DavidCourt of AppealYes[2008] 1 SLR(R) 663SingaporeCited for the principle that the court will consider the substance of an agreement rather than its form, and will consider the context in which the agreement was arrived at.
Sandar Aung v Parkway Hospitals Singapore Pte Ltd (trading as Mount Elizabeth Hospital) and anotherCourt of AppealYes[2007] 2 SLR(R) 891SingaporeCited for the principle that a contract's language must be construed in the context in which the contract concerned has been made.
Foakes v BeerHouse of LordsYes(1884) 9 App Cas 605EnglandCited for the principle that a promise to accept part payment cannot found a fresh contract to discharge a larger debt for want of consideration.
In re Selectmove LtdEnglish Court of AppealYes[1995] 1 WLR 474EnglandCited for the principle that a promise to accept part payment cannot found a fresh contract to discharge a larger debt for want of consideration.
Gay Choon Ing v Loh Sze Ti Terence Peter and another appealCourt of AppealYes[2009] 2 SLR(R) 332SingaporeCited for discussion on the continued relevance of the doctrine of consideration.
Evergreat Construction Co Pte Ltd v Presscrete Engineering Pte LtdHigh CourtYes[2006] 1 SLR(R) 634SingaporeCited for the principle that a party has an implied duty to cooperate in the performance of the terms of an agreement.
Tan Chin Hoon and others v Tan Choo Suan (in her personal capacity and as executrix of the estate of Tan Kiam Toen, deceased) and others and other mattersHigh CourtYes[2015] SGHC 306SingaporeCited for the principle that a party has an implied duty to cooperate in the performance of the terms of an agreement.
Pacific Rim Palm Oil Ltd v PT Asiatic Persada and othersHigh CourtYes[2003] 4 SLR(R) 731SingaporeCited for the principle that in the absence of any express deadline, a party is nonetheless obliged to perform his part of the contract within a reasonable time.
Ford and others v Cotesworth and anotherCourt of Queen's BenchYes(1868) Law Rep QB 127EnglandCited for the principle that in the absence of any express deadline, a party is nonetheless obliged to perform his part of the contract within a reasonable time.
Behzadi v Shaftesbury Hotels LtdCourt of AppealYes[1992] Ch 1EnglandCited for the principle that in the absence of any express deadline, a party is nonetheless obliged to perform his part of the contract within a reasonable time.
IPP Financial Advisers Pte Ltd v Saimee bin Jumaat and another appealCourt of AppealYes[2020] 2 SLR 272SingaporeCited for the principle that the burden falls on the plaintiff to prove that his claim fell within the limitation period.
V Nithia (co-administratrix of the estate of Ponnusamy Sivapakiam, deceased) v Buthmanaban s/o Vaithilingam and anotherCourt of AppealYes[2015] 5 SLR 1422SingaporeCited for the general rule that parties are bound by their pleadings.

13. Applicable Rules

Rule Name
Bankruptcy Rules (2002 Rev Ed)

14. Applicable Statutes

Statute NameJurisdiction
Limitation Act (Cap 163, 1996 Rev Ed)Singapore
Limited Liability Partnerships Act (Cap 163A, 2006 Rev Ed)Singapore

15. Key Terms and Keywords

15.1 Key Terms

  • Professional negligence
  • Duty of care
  • Causation
  • Mitigation of loss
  • Statutory demand
  • Bankruptcy application
  • Taxation of costs
  • Settlement agreement

15.2 Keywords

  • professional negligence
  • legal malpractice
  • debt recovery
  • Singapore
  • High Court
  • Bird & Bird
  • Gomez
  • Boey Swee Siang

16. Subjects

  • Professional Negligence
  • Civil Procedure
  • Debt Recovery

17. Areas of Law

  • Legal Profession
  • Professional Conduct
  • Tort
  • Negligence