Kelly v Clicks2customers: Breach of Contract and Damages Dispute

In Suit No 218 of 2018, Patrick Michael Kelly sued Clicks2customers Pte Ltd, Incubeta Holdings (Pty) Ltd, Alan Gary Lipschitz, and Jonathan Gluckman in the General Division of the High Court of Singapore, alleging breach of contract and seeking unpaid commissions. The court, presided over by Aedit Abdullah J, allowed the plaintiff's claim in part, finding that the 8 March 2012 Memorandum of Understanding (MOU) governed the relationship and that the plaintiff was entitled to unpaid commissions for 2015. The court rejected the defendants' counterclaim for overpayment.

1. Case Overview

1.1 Court

General Division of the High Court of the Republic of Singapore

1.2 Outcome

Plaintiff's claim allowed in part; Defendant's counterclaim rejected.

1.3 Case Type

Civil

1.4 Judgment Type

Grounds of Decision

1.5 Jurisdiction

Singapore

1.6 Description

Patrick Kelly sues Clicks2customers for breach of contract, claiming unpaid commissions. The court found in favor of Kelly, awarding damages for unpaid commissions.

1.7 Decision Date

5 January 2023

2. Parties and Outcomes

Party Name	Role	Type	Outcome	Outcome Type	Counsels
Patrick Michael Kelly	Plaintiff	Individual	Claim allowed in part	Partial	Pillai Pradeep G of PRP Law LLC Lin Shuling Joycelyn of PRP Law LLC Tham Kai Lun Josiah of PRP Law LLC
Clicks2customers Pte Ltd	Defendant	Corporation	Counterclaim rejected	Lost	Goh Seow Hui of Bird & Bird ATMD LLP Sharmaine Chan Sze Min of Bird & Bird ATMD LLP
Incubeta Holdings (Pty) Ltd	Defendant	Corporation	Counterclaim rejected	Lost	Goh Seow Hui of Bird & Bird ATMD LLP Sharmaine Chan Sze Min of Bird & Bird ATMD LLP
Alan Gary Lipschitz	Defendant	Individual	Counterclaim rejected	Lost	Goh Seow Hui of Bird & Bird ATMD LLP Sharmaine Chan Sze Min of Bird & Bird ATMD LLP
Jonathan Gluckman	Defendant	Individual	Counterclaim rejected	Lost	Goh Seow Hui of Bird & Bird ATMD LLP Sharmaine Chan Sze Min of Bird & Bird ATMD LLP

3. Judges

Judge Name	Title	Delivered Judgment
Aedit Abdullah	Judge of the High Court	Yes

4. Counsels

Counsel Name	Organization
Pillai Pradeep G	PRP Law LLC
Lin Shuling Joycelyn	PRP Law LLC
Tham Kai Lun Josiah	PRP Law LLC
Goh Seow Hui	Bird & Bird ATMD LLP
Sharmaine Chan Sze Min	Bird & Bird ATMD LLP

4. Facts

Plaintiff engaged by defendants to provide marketing and business development services.
Parties initially agreed on a 70/30 Split GP Model for commission.
Parties negotiated and signed an MOU on 8 March 2012.
The 8 March MOU altered the commission calculation to a Net Gross Profit basis.
Plaintiff was removed from the Standard Chartered Bank account in 2014.
Defendants terminated the plaintiff's services on 28 September 2015.
Plaintiff claimed damages for breaches of the 2011 Oral Agreement, July 2011 Agreement, and the 8 March MOU.

5. Formal Citations

Kelly, Patrick Michael v Clicks2customers Pte Ltd and others, Suit No 218 of 2018, [2023] SGHC 4

6. Timeline

Date	Event
2011-05-30	Telephone call between the plaintiff and the fourth defendant.
2011-06-01	70/30 Split GP Model agreement began.
2011-07-05	Plaintiff proposed retaining 70/30 Split GP Model.
2011-07-06	Defendants agreed to retain 70/30 Split GP Model until final agreement.
2012-03-08	MOU signed in Johannesburg.
2014-01-01	Discussions regarding Standard Chartered Bank performance.
2014-05-01	Plaintiff removed from Standard Chartered Bank account.
2015-09-28	Plaintiff's services terminated.
2018-01-01	Suit filed.
2021-07-06	Trial began.
2022-01-12	Case conference held.
2022-04-11	Brief remarks issued.
2023-01-06	Judgment issued.

7. Legal Issues

Breach of Contract
- Outcome: The court found that the defendants breached the 8 March MOU by terminating the plaintiff's services without reasonable notice and by failing to pay commissions owed.
- Category: Substantive
- Sub-Issues:
  - Wrongful termination
  - Non-payment of commissions
Reasonable Notice for Termination
- Outcome: The court held that there was a breach of an implied term of reasonable notice for termination of the contract with the plaintiff and that three months' notice would be a reasonable length of time.
- Category: Substantive
- Sub-Issues:
  - Implied term of reasonable notice
Interpretation of Contractual Clauses
- Outcome: The court interpreted clause 5.6 of the 8 March MOU to mean active involvement in either acquisition or retention, not both, and applied the contra proferentem rule against the defendants.
- Category: Substantive
- Sub-Issues:
  - Active involvement in client acquisition or retention

8. Remedies Sought

Monetary Damages
Unpaid Commissions

9. Cause of Actions

Breach of Contract

10. Practice Areas

Commercial Litigation

11. Industries

Marketing
Advertising

12. Cited Cases

Case Name	Court	Affirmed	Citation	Jurisdiction	Significance
Rudhra Minerals Pte Ltd v MRI Trading Pte Ltd	High Court	Yes	[2013] 4 SLR 1023	Singapore	Cited for the principle that parties may conclude a binding contract even though some terms are yet to be agreed upon.
Zurich Insurance (Singapore) Pte Ltd v B-Gold Interior Design & Construction Pte Ltd	Court of Appeal	Yes	[2008] 3 SLR(R) 1029	Singapore	Cited for the application of the contra proferentem rule in contract interpretation.
LTT Global Consultants v BMC Academy Pte Ltd	High Court	Yes	[2011] 3 SLR 903	Singapore	Cited for the application of the contra proferentem rule in contract interpretation.
Eng Chiet Shoong and others v Cheong Soh Chin and others and another appeal	Court of Appeal	Yes	[2016] 4 SLR 728	Singapore	Cited for the principle that a party may terminate a contract by giving reasonable notice to the other where the contract is silent on termination.
Hamsard 3147 Limited Trading as “Mini Mode Childrenswear”, J S Childrenswear Limited (in liquidation) v Boots UK Ltd	English High Court	Yes	[2013] EWHC 3251 (Pat)	England and Wales	Cited for the principle that the length of reasonable notice depends on the particular facts of the case.
Levy v Goldhill	Court of Appeal	No	[1917] 2 Ch 297	England and Wales	Cited to suggest that a non-employee is not entitled to reasonable notice, but the court found this case not controlling.

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

70/30 Split GP Model
Net Gross Profit
Memorandum of Understanding
Active Involvement
Reasonable Notice
Termination
Commission
Equity
Standard Chartered Bank

15.2 Keywords

contract
breach
commission
termination
MOU
agreement
damages
Singapore
High Court

17. Areas of Law

Area Name	Relevance Score
Contract Law	90
Breach of Contract	75
Termination	65
Damages	60
Wrongful Termination	55
Commercial Disputes	50
Contractual Interpretation	45
Remedies	40
Estoppel	30
Agency Law	25
Misrepresentation	20

16. Subjects

Contract Dispute
Commercial Dispute
Employment Law