Ng Koon Yee Mickey v Mah Sau Cheong: Share Purchase Agreement Termination & Set-Off

Ng Koon Yee Mickey appealed against the decision of the High Court in Singapore, which found that Mah Sau Cheong had validly terminated a share purchase agreement (SPA) signed between them on 13 November 2013. The High Court had ruled that Mah was entitled to two tranches of payments he had made to Ng under the SPA. Ng conceded liability for sums disbursed to him by Mah under three agreements but claimed a set-off against a sum Mah owed him under the SPA. The Appellate Division of the High Court allowed the appeal, finding that Mah had not validly terminated the SPA and was liable to Ng for the Tranche 3 Payment. The court also addressed the issue of set-off.

1. Case Overview

1.1 Court

Appellate Division of the High Court of the Republic of Singapore

1.2 Outcome

Appeal Allowed

1.3 Case Type

Civil

1.4 Judgment Type

Judgment

1.5 Jurisdiction

Singapore

1.6 Description

Appeal regarding the valid termination of a share purchase agreement. The court allowed the appeal, finding the SPA was not validly terminated.

1.7 Decision Date

29 September 2022

2. Parties and Outcomes

Party Name	Role	Type	Outcome	Outcome Type	Counsels
Ng Koon Yee Mickey	Appellant, Plaintiff in counterclaim, Defendant	Individual	Appeal Allowed	Won	Tham Lijing of Tham Lijing LLC Tan Li-Chern Terence of Robertson Chambers LLC Goh Peizhi Adeline of Withers KhattarWong LLP
Mah Sau Cheong	Respondent, Plaintiff, Defendant in counterclaim	Individual	Appeal Dismissed	Lost	Isaac Tito Shane of Tito Isaac & Co LLP Sindhu Nair d/o Muralidharan Nair of Tito Isaac & Co LLP Kawal Pal Singh s/o Amarjit Singh of Tito Isaac & Co LLP Jaspreet Kaur Purba of Tito Isaac & Co LLP

3. Judges

Judge Name	Title	Delivered Judgment
Quentin Loh	Judge of the Appellate Division	No
See Kee Oon	Judge of the High Court	Yes
Chua Lee Ming	Judge of the High Court	No

4. Counsels

Counsel Name	Organization
Tham Lijing	Tham Lijing LLC
Tan Li-Chern Terence	Robertson Chambers LLC
Goh Peizhi Adeline	Withers KhattarWong LLP
Isaac Tito Shane	Tito Isaac & Co LLP
Sindhu Nair d/o Muralidharan Nair	Tito Isaac & Co LLP
Kawal Pal Singh s/o Amarjit Singh	Tito Isaac & Co LLP
Jaspreet Kaur Purba	Tito Isaac & Co LLP

4. Facts

Ng and Mah signed a share purchase agreement (SPA) on 13 November 2013.
Under the SPA, Ng agreed to sell his 5% shareholding in Enersave International to Mah.
Mah agreed to purchase Ng’s 5% shareholding in Enersave International for RMB 13m, to be paid in three tranches.
Mah made the Tranche 1 and 2 Payments to Ng but not the Tranche 3 Payment.
Mah had earlier extended the deadline for the Closing Date from 24 October 2014 to 24 October 2016.
The signing of the Operational Agreement only took place on 3 November 2016 after the Deadline.
On 21 October 2016, Mah sent an email to Ng stating that the SPA would be terminated if the Closing Date did not materialise by the Deadline.

5. Formal Citations

Ng Koon Yee Mickey v Mah Sau Cheong, Civil Appeal No 57 of 2021, [2022] SGHC(A) 33

6. Timeline

Date	Event
2013-05-29	Three agreements signed between Mah Sau Cheong and Ng Koon Yee Mickey.
2013-11-13	Share purchase agreement signed between Ng Koon Yee Mickey and Mah Sau Cheong.
2014-10-24	Original deadline for the Closing Date in the share purchase agreement.
2015-10-21	Deadline for the Closing Date extended to 24 October 2015.
2016-07-01	Mah Sau Cheong removed the Founding Members, including Ng, as directors of Enersave International by July to August 2016.
2016-10-21	Deadline for the Closing Date extended to 24 October 2016.
2016-10-21	Mah Sau Cheong sent an email to Ng Koon Yee Mickey stating that the SPA would be terminated if the Closing Date did not materialise by the Deadline.
2016-11-03	Operational Agreement signed after the Deadline.
2018-01-01	Suit 506 of 2018 commenced by Mah Sau Cheong against Ng Koon Yee Mickey.
2021-04-28	Judge of the General Division of the High Court handed down orally in Mah Sau Cheong v Ng Koon Yee Mickey HC/S 506/2018.
2021-11-02	Judgment reserved.
2022-09-30	Judgment delivered.

7. Legal Issues

Termination of Share Purchase Agreement
- Outcome: The court held that Mah had not validly terminated the SPA and had not given valid notice to terminate. In addition, he had breached his duty to cooperate with Ng to obtain the signing of the Operational Agreement. By the operation of the prevention principle, Mah was thus precluded from relying on the non-fulfilment of that condition under Article 4.7 of the SPA to terminate the agreement.
- Category: Substantive
- Sub-Issues:
  - Validity of termination notice
  - Entitlement to terminate
  - Breach of duty to cooperate
- Related Cases:
  - [1919] AC 1
  - [1983] 1 WLR 195
  - [1993] 1 SLR(R) 469
  - [1971] 1 QB 164
Set-off
- Outcome: The court held that Ng was entitled to a legal set-off against Mah’s claim. Set-off by judgment similarly applied.
- Category: Procedural
- Sub-Issues:
  - Legal set-off
  - Equitable set-off
  - Set-off by judgment
- Related Cases:
  - [2018] SGHC 147
  - [1995] 2 SLR(R) 643
  - [2013] SGHC 160
  - [2021] SGHC 278
Prevention Principle
- Outcome: The court held that Mah had breached his implied duty to cooperate under the SPA. By the operation of the prevention principle, Mah was thus precluded from relying on the non-fulfilment of that condition under Article 4.7 of the SPA to terminate the agreement.
- Category: Substantive
- Sub-Issues:
  - Breach of duty to cooperate
  - Impossibility of performance
- Related Cases:
  - [2006] 1 SLR(R) 634
  - [2009] 1 SLR(R) 385
  - [2011] SGHC 126
  - [2011] 4 SLR 455
  - [1982] 1 WLR 794
  - [2020] 4 SLR 1328
Implied Duty to Cooperate
- Outcome: The court held that Mah did have an implied duty to cooperate.
- Category: Substantive
- Sub-Issues:
  - Terms implied in fact
  - Terms implied in law
  - Business efficacy
- Related Cases:
  - (1881) 6 App Cas 251
  - [2015] 3 SLR 695
  - [2009] 3 SLR(R) 518
  - [2013] 1 AC 523
  - [1992] 1 AC 294
  - [2020] VSCA 201
  - [2021] VSCA 69
  - [2015] SGHC 306
  - [1941] AC 108
  - [1997] 1 SLR(R) 469
  - [1949] 2 All ER 1014
  - [2013] 4 SLR 193

8. Remedies Sought

Monetary Damages
Set-off

9. Cause of Actions

Breach of Contract

10. Practice Areas

Commercial Litigation

11. Industries

No industries specified

12. Cited Cases

Case Name	Court	Affirmed	Citation	Jurisdiction	Significance
New Zealand Shipping Co Ltd v Société des Ateliers et Chantiers de France	House of Lords	Yes	[1919] AC 1	England and Wales	Cited to determine whether a contract would be automatically terminated upon the occurrence or non-occurrence of a specified event is dependent on the construction of the contract.
Afovos Shipping v Pagnan	House of Lords	Yes	[1983] 1 WLR 195	England and Wales	Cited for the principle that a notice of termination issued before the right to terminate has accrued is invalid.
Wardley v Datin Chong Mooi Lan and another (administratrix and administrator of the estate of Dato Tong Lee Hwa, deceased)	Court of Appeal	Yes	[1993] 1 SLR(R) 469	Singapore	Cited for the principle that a notice served before the date fixed for completion had passed is premature and ineffective.
Maredelanto Compania Naviera SA v Bergbau-Handel GmbH, The Mihalis Angelos	Court of Appeal for England and Wales	Yes	[1971] 1 QB 164	England and Wales	Cited for the principle that a right to exercise an option arises after the occurrence or non-occurrence of certain specific events.
North Midland Building Ltd v Cyden Homes Ltd	Court of Appeal	Yes	[2018] EWCA Civ 1744	England and Wales	Cited for the development of the prevention principle in the 19th Century.
Holme v Guppy	Court of Exchequer	Yes	(1838) 3 M&W 387	England and Wales	Cited for the principle that if a party is prevented by the other party from completing the contract within the time limited, he is not liable in law for the default.
Dodd v Churton	Queen's Bench Division	Yes	[1897] 1 QB 562	England and Wales	Cited for the principle that if the building owner has ordered extra work beyond that specified by the original contract which has necessarily increased the time requisite for finishing the work, he is thereby disentitled to claim the penalties for non-completion provided by the contract.
Trollope and Colls Ltd v North West Metropolitan Regional Hospital Board	House of Lords	Yes	[1973] 1 WLR 601	England and Wales	Cited for the principle that when there is a stipulation for work to be done in a limited time, if one party by his conduct renders it impossible or impracticable for the other party to do his work within the stipulated time, then the one whose conduct caused the trouble can no longer insist upon strict adherence to the time stated.
Multiplex Constructions (UK) Ltd v Honeywell Control Systems Ltd (No 2)	High Court	Yes	[2007] EWHC 447 (TCC)	England and Wales	Cited for the principle that actions by the employer which are perfectly legitimate under a construction contract may still be characterised as prevention, if those actions cause delay beyond the contractual completion date.
Roberts v The Bury Improvement Commissioners	Court of Common Pleas	Yes	(1870) LR 5 CP 310	England and Wales	Cited for the principle that no person can take advantage of the non-fulfilment of a condition the performance of which has been hindered by himself.
Alghussein Establishment v Eton College	House of Lords	Yes	[1988] 1 WLR 587	England and Wales	Cited for the principle that a contracting party will not in normal circumstances be entitled to take advantage of his own breach as against the other party.
Evergreat Construction Co Pte Ltd v Presscrete Engineering Pte Ltd	High Court	Yes	[2006] 1 SLR(R) 634	Singapore	Cited for the principle that no man can take advantage of his own wrong, so that one party may not be allowed to rely on such a provision where the occurrence of the event is attributable to his own act or default.
Yap Boon Keng Sonny v Pacific Prince International Pte Ltd	High Court	Yes	[2009] 1 SLR(R) 385	Singapore	Cited for the principle that a contractor’s obligation to complete the works under a construction contract within a prescribed period of time is premised on the requirement that he is not delayed by reason of any ‘acts of prevention’ committed by either the employer or his agent.
Chua Tian Chu and another v Chin Bay Ching and another	High Court	Yes	[2011] SGHC 126	Singapore	Cited for the principle that when an employer or a purchaser had performed acts of prevention, in the absence of an extension of time clause in the agreement, the contractual time for completion would no longer be binding.
Lim Chin San Contractors Pte Ltd v LW Infrastructure Pte Ltd	High Court	Yes	[2011] 4 SLR 455	Singapore	Cited for the principle that the delay in question must have resulted in a delay in completion of the works before time would be set at large.
Percy Bilton Ltd v Greater London Council	House of Lords	Yes	[1982] 1 WLR 794	England and Wales	Cited for the principle that if no delay in completion is proven, the general rule applies and time is not set at large.
Fundamental Investors Pte Ltd v Palm Tree Investment Group Pte Ltd	High Court	Yes	[2020] 4 SLR 1328	Singapore	Cited for the principle that the application of the prevention principle should not be limited to contractual claims of a specific nature.
Mackay v Dick	House of Lords	Yes	(1881) 6 App Cas 251	England and Wales	Cited for the principle that where in a written contract it appears that both parties have agreed that something shall be done, which cannot effectually be done unless both concur in doing it, the construction of the contract is that each agrees to do all that is necessary to be done on his part for the carrying out of that thing, though there may be no express words to that effect.
The One Suites Pte Ltd v Pacific Motor Credit (Pte) Ltd	Court of Appeal	Yes	[2015] 3 SLR 695	Singapore	Cited for the observation that the precise legal basis of the duty to cooperate might be debatable.
Ng Giap Hon v Westcomb Securities Pte Ltd and others	Court of Appeal	Yes	[2009] 3 SLR(R) 518	Singapore	Cited for the differences between terms implied in law or in fact.
Geys v Societe Generale, London Branch	UK Supreme Court	Yes	[2013] 1 AC 523	United Kingdom	Cited for the distinction between terms implied into a particular contract and terms implied into a class of contractual relationship.
Scally v Southern Health and Social Services Board	House of Lords	Yes	[1992] 1 AC 294	England and Wales	Cited for the principle that terms implied in law are implied as a necessary incident of a definable category of contractual relationship.
Adaz Nominees Pty Ltd v Castleway Pty Ltd	Supreme Court of Victoria	Yes	[2020] VSCA 201	Australia	Cited for the consideration of the duty to cooperate as one to be implied in law.
Bensons Property Group Pty Ltd v Key Infrastructure Australia Pty Ltd	Supreme Court of Victoria	Yes	[2021] VSCA 69	Australia	Cited for affirming the duty to cooperate as one to be implied in law.
Tan Chin Hoon and others v Tan Choo Suan (in her personal capacity and as executrix of the estate of Tan Kiam Teon, deceased) and others and other matters	High Court	Yes	[2015] SGHC 306	Singapore	Cited for considering the duty to cooperate as a term to be implied in fact.
Luxor (Eastbourne) Ltd v Cooper	House of Lords	Yes	[1941] AC 108	England and Wales	Cited for the principle that no duty to prevent the fulfilment of an agreement could be implied.
Bee See & Tay v Ong Hun Seang and others (trustees of Zion Gospel Mission Ltd) and another appeal	Court of Appeal	Yes	[1997] 1 SLR(R) 469	Singapore	Cited for the conclusion that based on the parties’ understanding at the time of entering into the agreements, there was no basis to imply a duty to cooperate.
Mona Oil Equipment & Supply Co Ltd v Rhodesia Railways Ltd	King's Bench Division	Yes	[1949] 2 All ER 1014	England and Wales	Cited for the principle that in the ordinary business contract, and apart, of course, from express terms, the law can enforce co-operation only in a limited degree – to the extent that is necessary to make the contract workable.
Sembcorp Marine Ltd v PPL Holdings Pte Ltd and another and another appeal	Court of Appeal	Yes	[2013] 4 SLR 193	Singapore	Cited for the steps that apply in determining if a term is to be implied in fact.
BDW Trading Ltd (t/a Barratt North London) v JM Rowe (Investments) Ltd	Court of Appeal	Yes	[2011] EWCA Civ 548	England and Wales	Cited for the principle that the application of the prevention principle can be excluded or modified by the terms of the contract and that its scope in any particular case will depend upon the construction of the relevant agreement.
Petroplus Marketing AG v Shell Trading International Ltd	Commercial Court	Yes	[2009] 2 Lloyd’s Rep 611	England and Wales	Cited for the principle that the application of the prevention principle can be excluded by an express provision to the contrary or by the parties’ intentions as revealed by the express contractual terms.
Inzign Pte Ltd v Associated Spring Pte Ltd	High Court	Yes	[2018] SGHC 147	Singapore	Cited for the law in relation to the defence of set-off.
Pacific Rim Investments Pte Ltd v Lam Seng Tiong & another	Court of Appeal	Yes	[1995] 2 SLR(R) 643	Singapore	Cited for the principle that an equitable set-off may apply whether the amount is ascertained or not, so long as the cross-claim arises from the same transaction as the plaintiff’s claim or is closely connected with it such that it would be manifestly unjust to allow the plaintiff to enforce payment without taking into account the cross-claim.
Longyuan-Arrk (Macao) Pte Ltd v Show and Tell Productions Pte Ltd and another suit	High Court	Yes	[2013] SGHC 160	Singapore	Cited for the principle that set-off by judgment arises under the Court’s inherent jurisdiction to set-off cross-liabilities which have been established by judgments, leaving one single liability for the balance sum.
Haribo Asia Pacific Pte Ltd v Aquarius Corporation	High Court	Yes	[2021] SGHC 278	Singapore	Cited for the principle that the date with reference to which the set-off is effected can have a significant impact on the amount payable, because exchange rates between the relevant currencies may have fluctuated between the date on which the respective liabilities were incurred.

13. Applicable Rules

Rule Name
No applicable rules

14. Applicable Statutes

Statute Name	Jurisdiction
Rules of Court	Singapore

15. Key Terms and Keywords

15.1 Key Terms

Share Purchase Agreement
SPA
Closing Date
Operational Agreement
Nangang Project
Tranche 1 Payment
Tranche 2 Payment
Tranche 3 Payment
Prevention Principle
Duty to Cooperate
Set-off

15.2 Keywords

Share Purchase Agreement
Contract Law
Termination
Set-off
Singapore
Civil Appeal

17. Areas of Law

Area Name	Relevance Score
Contract Law	80
Breach of Contract	75
Set-off	70
Contractual terms	60
Debt Recovery	60
Termination	60
Duty to cooperate	50
Implied Terms	50
Prevention principle	40
Estoppel	30
Measure of Damages	20

16. Subjects

Contract Law
Civil Procedure
Share Purchase Agreement
Debt Recovery