More than seven months after the Court delivered its judgment on the AHTC-PRPTC case in October 2019, the Plaintiff—Aljunied-Hougang Town Council (AHTC)—has filed to make several amendments to its statement of claim (SOC).
In response, the Defendants in the case—Workers’ Party (WP) then-Aljunied GRC Members of Parliament (MPs) Pritam Singh, Sylvia Lim, Low Thia Khiang, and appointed town councillors Chua Zhi Hon and Kenneth Foo—made a submission to the Court as to why the amendments should not be allowed.
AHTCs new claims
According to the Defendant’s submissions, AHTC applied on 18 May 2020 to add a new cause of action against the Ms Lim and Mr Low. That is, the proposed amendment includes a new claim that the two of them allegedly failed to properly scrutinise the first EMSU contract which resulted in AHTC to improperly waive the tender.
“As per the draft Amended SOC, alleged breaches of equitable duties of care and skill “by failing to exercise proper scrutiny in causing AHTC to improperly waive the tender” for the 1st EMSU contract and awarding the 1st EMSU contract to FMSS”.
FMSS , or FM Solutions & Services, is the managing agent (MA) of AHTC and is also a Defendant in this case.
A similar new cause is also made against Mr Singh as well as Mr Chua and Mr Foo. Additionally, the proposed amendments also includes a claim alleging the same breaches of duties in relation to the 1st MA contract and awarding the 1st and 2nd MA contract to FMSS.
Next, the amendment also includes a claim that Mr Singh, Mr Chua and Mr Foo allegedly allowed “conflicted persons” to certify work done and approve payments to themselves. This is in relation to the payment made under the 1st and 2nd MA contracts as well as the 1st and 2nd EMSU contracts.
The Defendant’s submission noted: “The proposed new claim for ‘miscellaneous improper payments’ against the third to fifth Defendants relates to specific payments made as a result of the alleged ‘control failures’.”
The final amendment to AHTC’s SOC is an alleged breach of equitable duties of care and skill by Mr Singh, Mr Chua and Mr Foo for failing to enquire into the facts and/or circumstances surrounding the contracts and a failure to disclose and inform and set right to AHTC the alleged control failures and breaches.
Defendant’s say the amendments should not be allowed due to time limitation and prejudice
In their submission, the Defendants’ lawyers noted the AHTC has not explained why these new claims could not have been made earlier during the course of the proceedings, adding that they had many opportunities to do so from the time the suit commenced in July 2017 to the conclusion of the trial on the last day of oral submissions on 9 April 2019.
It also argued, “AHTC should not be allowed to have a second bite at the cheery by amending its pleadings to suit the judgment”, adding that this would undermine the rules that all parties are bound by their pleadings. The Defendant’s argued that this is an “abuse of process of the court”.
The submission noted, “The Application (to amend the SOC) is a blatant attempt to benefit from the findings in the judgment in relation to suit 716 (commenced by Pasir Ris-Punggol Town Council against the Defendants). Having had sight of the judgment, AHTC is clearly attempting to have a second bite at the cherry”.
It continued to assert that a party should not be allowed to amend its pleadings after the trial and after a judgment has been made where the amendments are intended to take advantage of that judgement.
On another point, the Defendants also argued that the proposed new claims cannot be made as they are time-barred under the 6-year and 3-year limitation period under the Limitation Act.
The AHTC referred to the high court’s judgment, saying that the limitation period starts from 9 February 2015. However, the Defendant’s lawyers disagree. Instead, they argued that this was not the High Court’s decision.
Specifically, the submission noted that the High Court found that the Ms Lim and Mr Low acted in breach of their fiduciary duties by entering into the first MA contract, while Mr Singh, Mr Chua, and Mr Foo were found in breach of their duties of skill and care in failing to question the AHTC entering these contracts. That would be 2011 for the first incident and 2012 for the second, making it eight and nine years ago.
Given that the limitation period is six-years, the Defendant’s lawyers argue that the proposed amendments are time-barred.
Additionally, they also noted that the High Court’s finding on the date of 9 February 2015 was in respect to the three-years limitation period, which ended on 9 February 2018. They argued that “all proposed new claims in respect of the MA and EMSU contracts” are therefore also time-barred.
Moving on, the Defendant’s lawyers argued that the proposed amendments to AHTC’s SOC would prejudice the five defendants as it raises completely new claims.
It added that the prejudice suffered is also “irremediable” as the Defendants would have conducted their defence differently if these claims were made right at the beginning. This includes introducing additional evidence and calling in other town councillors to testify on the matters.
On top of that, the introduction of new evidence would require a re-trial, which the Defendants’ lawyers asserted would “severely prejudice” the Ms Lim, Mr Low, Mr Singh, Mr Chua, and Mr Foo.
