Tay Shing Lee v Liang Ting Pang Jeffrey: Contractual Waiver and No Oral Modification

In Tay Shing Lee Eileen v Liang Ting Pang Jeffrey, the General Division of the High Court of Singapore addressed the claimant's application for the defendant to pay $362,000.00 based on a Settlement Agreement. The court, presided over by Justice Goh Yihan, allowed the application, finding the agreement valid and enforceable. The key legal issues were waiver by election and the impact of a 'no oral modification' clause on the agreement's terms. The court determined that the claimant did not waive her right to immediate repayment, and the 'no oral modification' clause remained effective.

1. Case Overview

1.1 Court

General Division of the High Court

1.2 Outcome

Application allowed

1.3 Case Type

Civil

1.4 Judgment Type

Judgment

1.5 Jurisdiction

Singapore

1.6 Description

Singapore High Court case concerning contractual waiver and the effect of a no oral modification clause. Application allowed.

1.7 Decision Date

2. Parties and Outcomes

Party NameRoleTypeOutcomeOutcome TypeCounsels
Eileen Tay Shing LeeClaimantIndividualJudgment for ClaimantWon
Liang Ting Pang JeffreyDefendantIndividualApplication AllowedLost

3. Judges

Judge NameTitleDelivered Judgment
Goh YihanJudge of the High CourtYes

4. Counsels

Counsel NameOrganization
Joshua Thomas RajTang Thomas LLC
Vigneesh s/o NainarTang Thomas LLC

4. Facts

  1. Parties entered into a Settlement Agreement.
  2. Agreement included a payment schedule.
  3. Defendant defaulted on a payment.
  4. Agreement had an acceleration clause.
  5. Agreement had a 'no oral modification' clause.
  6. Claimant continued receiving payments after default.
  7. Defendant claimed he didn't realize the total amount.

5. Formal Citations

  1. Tay Shing Lee EileenvLiang Ting Pang Jeffrey, Originating Application No 566 of 2024, [2024] SGHC 261

6. Timeline

DateEvent
Settlement Agreement signed
Defendant began making weekly payments
Defendant defaulted on $190,000 payment
Claimant filed affidavit
Affidavit served on defendant
Defendant filed letter to court
Oral submissions heard
Judgment reserved

7. Legal Issues

  1. Waiver by Election
    • Outcome: The court held that the claimant did not waive her right to immediate repayment by accepting payments after the breach.
    • Category: Substantive
    • Sub-Issues:
      • Clear and unequivocal communication
      • Inconsistent rights
    • Related Cases:
      • [2018] 1 SLR 317
      • [2023] 2 SLR 468
      • [2023] SGHC(A) 3
  2. Oral Modification
    • Outcome: The court held that the 'no oral modification' clause was effective, and there was no agreement to depart from it.
    • Category: Substantive
    • Sub-Issues:
      • No oral modification clause
      • Rebuttable presumption
    • Related Cases:
      • [2021] 2 SLR 153
  3. Non est factum
    • Outcome: The court held that the defendant could not claim non est factum due to lack of radical difference and negligence.
    • Category: Substantive
    • Sub-Issues:
      • Radical difference
      • Negligence
    • Related Cases:
      • [2015] 5 SLR 62
  4. Ousting Court Jurisdiction
    • Outcome: The court held that the 'waiver of contest' and 'consent to judgment' clauses did not oust the court's jurisdiction.
    • Category: Jurisdictional
    • Sub-Issues:
      • Waiver of contest
      • Consent to judgment

8. Remedies Sought

  1. Monetary Damages
  2. Interest
  3. Indemnity Costs

9. Cause of Actions

  • Breach of Contract
  • Action for Agreed Sum

10. Practice Areas

  • Commercial Litigation

11. Industries

  • No industries specified

12. Cited Cases

Case NameCourtAffirmedCitationJurisdictionSignificance
Mahidon Nichiar bte Mohd Ali and others v Dawood Sultan KamaldinCourt of AppealYes[2015] 5 SLR 62SingaporeCited regarding the doctrine of non est factum and the binding nature of signatures on contracts.
Tan Kee (suing as an administrator of the estate of Poh Wong, deceased and in her own personal capacity) and Others v The Titular Roman Catholic Archbishop of SingaporeHigh CourtYes[1997] SGHC 281SingaporeCited for the definition of a settlement agreement.
Gay Choon Ing v Loh Sze Ti Terence Peter and another appealCourt of AppealYes[2009] 2 SLR(R) 332SingaporeCited for principles of offer, acceptance, consideration, and intention to create legal relations.
Carlill v Carbolic Smoke Ball CompanyEnglish Court of AppealYes(1893) 1 QB 256England and WalesCited for objective construction of contractual intentions.
Mary Ann Williams v William CarwardineEnglish High CourtYes(1833) 4 B & Ad 621England and WalesCited for objective construction of contractual intentions.
Currie and others v MisaHouse of LordsYes(1875) LR 10 Exch 153England and WalesCited for the definition of consideration.
RTS Flexible Systems Ltd v Molkerei Alois Müller GmbH & Co KG (UK Production)UK Supreme CourtYes[2010] 1 WLR 753United KingdomCited for objective interpretation of intention to create legal relations.
Walford and others v Miles and anotherHouse of LordsYes[1992] 2 AC 128England and WalesCited for certainty of contractual terms.
Baker v Jones and othersEnglish High CourtNo[1954] 1 WLR 1005England and WalesCited regarding clauses ousting court jurisdiction, but disapproved on this point.
Haron bin Mundir v Singapore Amateur Athletic AssociationHigh CourtYes[1991] 2 SLR(R) 494SingaporeCited for quoting Baker v Jones on clauses ousting court jurisdiction.
Ochroid Trading Ltd and another v Chua Siok Lui (trading as VIE Import & Export) and anotherCourt of AppealYes[2018] 1 SLR 363SingaporeCited for common law illegality and public policy regarding contracts ousting court jurisdiction.
CKR Contract Services Pte Ltd v Asplenium Land Pte Ltd and another and another appeal and another matterCourt of AppealYes[2015] 3 SLR 1041SingaporeCited for distinguishing between excluding court recourse and limiting remedies.
Alexander Scott v George AveryHouse of LordsYes(1856) 5 HLC 811England and WalesCited for the principle that parties cannot contract to withdraw a case from the jurisdiction of ordinary tribunals.
Lee v The Showmen’s Guild of Great BritainEnglish Court of AppealYes[1952] 2 QB 329England and WalesCited for the distinction between taking the law out of the hands of the courts altogether and merely making a tribunal the final arbiter.
Leigh v National Union of Railwaymen and anotherEnglish High Court Chancery DivisionYes[1970] Ch 326England and WalesCited for affirming that contractual provisions requiring exhaustion of domestic remedies before recourse to courts are not contrary to public policy.
Hallen v SpaethPrivy CouncilYes[1923] AC 684OtherCited for the principle that contracting parties cannot contract to oust the courts of their jurisdiction but can impose preconditions on the right to bring an action.
Atlantic Shipping and Trading Company, Limited v Louis Dreyfus and CompanyHouse of LordsYes[1922] 2 AC 250England and WalesCited for the principle that it is not contrary to public policy to impose by contract that a litigant must have recourse to arbitration within a set period of time.
Shanmugam Kasiviswanathan v Lee Hsien Yang and another matterGeneral Division of the High CourtYes[2024] 5 SLR 194SingaporeCited for the principle that a court can enter judgment in favor of the claimant without needing to consider the defendant's defense if the defendant does not enter a notice to contest.
Re Rasmachayana Sulistyo (alias Chang Whe Ming), ex parte The Hongkong and Shanghai Banking Corp Ltd and other appealsHigh CourtYes[2005] 1 SLR(R) 483SingaporeCited for the principle that where parties were free to elect a consensual manner for service of documents in bankruptcy proceedings, they were also free to do so by way of contract.
Management Corporation Strata Title Plan No 4701 v MCL Land (Vantage) Pte Ltd (in members’ voluntary liquidation)General Division of the High CourtYes[2023] 4 SLR 1529SingaporeCited for the principle that even where the parties agree to enter into a consent order, the court still retains the residual jurisdiction to ensure that the consent order is in accordance with the law.
QBE Insurance (Singapore) Pte Ltd and another v Relax Beach Co LtdCourt of AppealYes[2023] 2 SLR 655SingaporeCited for the principle that even where the parties agree to enter into a consent order, the court still retains the residual jurisdiction to ensure that the consent order is in accordance with the law.
Chan Kwong Shing Adrian (in his capacity as the joint and several trustee of the bankruptcy estate of Ng Yu Zhi) and another v Invidia Capital Pte Ltd (in creditors’ voluntary liquidation)General Division of the High CourtYes[2024] 4 SLR 1224SingaporeCited for the principle that the court always retains a residual jurisdiction to ensure that it is not making an unlawful order or judgment.
Oversea-Chinese Banking Corp Ltd v Yeo Hui Keng (Tan Peng Chin LLC, third party)High CourtYes[2019] 5 SLR 172SingaporeCited for the principle that non est factum should only be allowed in exceptional situations to rectify injustice and unfairness.
Chan Gek Yong v Violet Netto (practicing as L F Violet Netto) and another and another matterHigh CourtYes[2019] 3 SLR 1218SingaporeCited for the principle that non est factum should only be allowed in exceptional situations to rectify injustice and unfairness.
BGC Partners (Singapore) Ltd and another v Sumit GroverGeneral Division of the High CourtYes[2024] SGHC 206SingaporeCited for the principle that a signature to a document by a person of full age and understanding binds that person, whether or not he or she read or understood it.
Wang Fumin v Citibank Singapore LtdGeneral Division of the High CourtYes[2022] SGHC 106SingaporeCited for the principle that the inquiry is whether the party could have read and understood the document, and not whether he or she in fact did.
Tonny Permana v One Tree Capital Management Pte Ltd and anotherGeneral Division of the High CourtYes[2021] 5 SLR 477SingaporeCited for the principle that a party pleading non est factum must show proof of their incapacity to read and understand the contents of documents.
Saunders (executrix of the will of Rose Maud Gallie, deceased) v Anglia Building SocietyHouse of LordsYes[1971] AC 1004England and WalesCited for examples of incapacity to read and understand documents, such as blindness, illiteracy, illness, or innate incapacity, and the need to show reasonable precautions were taken.
Lee Siew Chun v Sourgrapes Packaging Products Trading Pte Ltd and othersHigh CourtYes[1992] 3 SLR(R) 855SingaporeCited for the principle that a court must ask itself what a reasonable person, possessing the qualities of the defendant concerned, should have done in the circumstances.
Universe Tankships Inc of Monrovia v International Transport Workers Federation and othersHouse of LordsYes[1983] 1 AC 366England and WalesCited for the test of whether pressure constitutes illegitimate pressure under circumstances which had overborne the contracting party's will in cases of duress.
Tam Tak Chuen v Khairul bin Abdul Rahman and othersHigh CourtYes[2009] 2 SLR(R) 240SingaporeCited for the principle that the legitimacy or illegitimacy of a threat of lawful action depends on circumstances such as abuse of legal process, lack of bona fides, unreasonableness, or unconscionability.
Oon Swee Gek and others v Violet Oon Inc Pte Ltd and others and other matterGeneral Division of the High CourtYes[2024] SGHC 13SingaporeCited for the principle that whether an act is illegitimate entails an objective evaluation of the pressure exerted and the overall circumstances.
Tjong Very Sumito and others v Chan Sing En and othersHigh CourtYes[2012] 3 SLR 953SingaporeCited for the circumstances where a threat was being made in order to exploit the contracting party's vulnerable position or had been unreasonably made in order to extract contractual concessions from them.
Times Travel (UK) Ltd and another v Pakistan International Airlines CorpnUK Supreme CourtYes[2023] AC 101United KingdomCited for the principle that a threat to maintain a police report could not be said to be illegitimate on the facts here.
BOM v BOK and another appealCourt of AppealYes[2019] 1 SLR 349SingaporeCited for the narrow doctrine of unconscionability in Singapore law, requiring the party pleading it to show that he or she had labored under an infirmity which the other party exploited.
Audi Construction Pte Ltd v Kian Hiap Construction Pte LtdCourt of AppealYes[2018] 1 SLR 317SingaporeCited for the explanation of the doctrine of waiver by election, requiring a voluntary relinquishment of a known right communicated in clear and unequivocal terms.
Vim Engineering Pte Ltd v Deluge Fire Protection (S.E.A.) Pte LtdAppellate Division of the High CourtYes[2023] 2 SLR 468SingaporeCited for the principle that where a party unequivocally chooses not to exercise one of two inconsistent rights, and he is aware of the circumstances giving rise to the existence of that right, he would be deemed as having elected to waive that right.
Terigi, Morgan Bernard Jean and others v Hook, LaurenceAppellate Division of the High CourtYes[2023] SGHC(A) 3SingaporeCited for the test to be applied is one of clear and unequivocal communication to the counterparty of one’s election to abandon an accrued right in favour of another.
Cosmetic Care Asia Ltd and others v Sri Linarti Sasmito and othersSingapore High CourtYes[2023] SGHCR 4SingaporeCited for the principle that there was a similar inconsistency between two contractual rights there, one for the receipt of instalment payments, the other for a right to immediate payment on default.
Charles Lim Teng Siang and another v Hong Choon Hau and anotherCourt of AppealYes[2021] 2 SLR 153SingaporeCited for the principle that the test should be whether at the point when parties agreed on the oral variation, they would necessarily have agreed to depart from the [no oral modification] clause had they addressed their mind to the question, regardless of whether they had actually considered the question or not.
Beatty v Guggenheim Exploration CoNew York Court of AppealsYes[1919] 225 NY 380United StatesCited for the proposition that an initial limitation imposed by a [no oral modification] clause can be unwound by the same parties at a later date.
Comfort Management Pte Ltd v OGSP Engineering Pte LtdCourt of AppealYes[2018] 1 SLR 979SingaporeCited for the observation that a term of a contract which states that the contract can only be varied in writing will not prevent there being an oral variation.
BGC Partners (Singapore) Ltd v Yap Yuk Hee and othersGeneral Division of the High CourtYes[2021] SGHC 279SingaporeCited for the principle that the effect of a purported oral waiver or a purported oral modification is, in either scenario, to purport to orally vary a contract in the face of a clause that prohibits oral variations.
Rose and Frank Company v J R Crompton and Brothers, Limited and othersHouse of LordsYes[1925] AC 445England and WalesCited for the principle of severability of obligations in a contract.
Marchmont Pte Ltd v Campbell Hospitality Pte Ltd and othersAppellate Division of the High CourtYes[2024] SGHC(A) 30SingaporeCited for the guidance on the time for appeal against a decision.

13. Applicable Rules

Rule Name
O 6 r 1 of the Rules of Court 2021
O 15 r 7(5) of the Rules of Court 2021
O 3 r 1(2) of the Rules of Court 2021
O 6 r 12(1) read with O 3 r 3(7) of the Rules of Court 2021
O 19 r 4(1) read with O 19 r 4(2)(a)(i) of the ROC 2021

14. Applicable Statutes

Statute NameJurisdiction
Rules of Court 2021Singapore

15. Key Terms and Keywords

15.1 Key Terms

  • Settlement Agreement
  • Repayment Sum
  • Waiver by Election
  • No Oral Modification
  • Non est factum
  • Acceleration Clause
  • Instalment Payments

15.2 Keywords

  • Contract
  • Waiver
  • Settlement
  • Singapore
  • Litigation

17. Areas of Law

Area NameRelevance Score
Breach of Contract90
Contracts90
Waiver70
Contractual terms60
No Oral Modification Clause60
Settlement Agreement50

16. Subjects

  • Contract Law
  • Civil Procedure
  • Waiver
  • Settlement Agreements