District Court of Singapore

Longitude 101 Pte. Ltd. v Navinea Kanapathy Pillai and another matter
[2024] SGDC 47

Civil procedure – Discovery of documents – Whether a party is deemed to admit to the authenticity of documents when the notice of non-admission of authenticity is not filed within the 14 day timeline under Order 27 rules 4(1)-4(2) of the Rules of Court (Cap 332, R5, 2014 Rev Ed)

Companies – Directors – De facto directors

Confidence – Breach of confidence – Contract

Employment law – Contract of service – Breach

Employment law – Contract of service – Termination with notice

Employment law – Unfair dismissal – Section 84(1)(b) of the Employment Act 1968 (2020 Rev Ed) – Whether the Ministry of Manpower’s Tripartite Guidelines On Wrongful Dismissal are relevant in determining what constitutes sufficient cause for dismissal

Employment law – Unfair dismissal – Whether an employee was dismissed due to pregnancy

Evidence – Admissibility of evidence – Whether the requirements of section 67 of the Evidence Act 1893 (2020 Rev Ed) are satisfied

Evidence – Principles – Whether authenticity of documents established

Tort – Conspiracy – Whether the controlling director conspired with the company

1 March 2024

Judgment reserved.

District Judge Samuel Wee:

Introduction

1 Parliament has legislated protection for women against wrongful dismissal during their pregnancy or maternity leave.[note: 1] Unfortunately, instances of wrongful dismissal due to pregnancy remain a reality. Employers may conjure reasons to obscure the true motive for terminating pregnant employees. This is precisely what the Defendant in this case endured.

The parties

2 Longitude 101 Pte. Ltd. (“Longitude”) is the Plaintiff in the claim and the First Defendant in the counterclaim. Longitude provides accounting services; and is a related company of Latitude 1.1 Group Pte Ltd (“Latitude”), which offers corporate secretarial and directorship services to various clients. Longitude was engaged by Latitude to provide accounting services to its clients.[note: 2]

3 Ms Navinea Kanapathy Pillai (“Ms Pillai”) is the Defendant in the claim and the Plaintiff in the counterclaim. She was a former employee of Longitude holding the position of Head of Finance and was also named the sole director of Longitude up till the termination of her employment.

4 Mr Haeusler Thomas (“Mr Haeusler”) is the Second Defendant in the counterclaim. He is the sole shareholder of both Longitude and Latitude. Additionally, he was disqualified from acting as a director under the Companies Act (Cap 50, 2006 Rev Ed) for 5 years from 6 June 2017.[note: 3]

Background facts

5 Ms Pillai was initially employed by Latitude sometime in 2019.[note: 4] Mr Wee Sung Cheng (“Mr Wee”, who is also known as Marc) was the sole director of Latitude at the time.

6 On 2 September 2019, Longitude was incorporated with Ms Pillai named as its sole director.[note: 5] The decision to do so was made by Mr Haeusler.[note: 6]

7 On 31 October 2019, Latitude issued a letter to Ms Pillai relating to her deployment from Latitude to Longitude.[note: 7] The letter was signed by Mr Haeusler on behalf of Latitude.

8 On 1 November 2019, Ms Pillai signed an employment contract with Longitude (“Employment Contract”).[note: 8] The Employment Contract was signed by Mr Haeusler on behalf of Longitude. The salient terms of the Employment Contract are as follows:

(a) Clause 10 relates to confidentiality obligations (“Confidentiality Clause”) and states:

10.1 The Employee is aware that in the course of employment under this Agreement she will have access to and be entrusted with information in respect of the business of the Company and its dealings transactions and affairs, all of which information is or may be confidential.

10.2 The Employee shall not during or after the period of employment under this Agreement divulge to any person whomsoever or otherwise make use of, whether for her own benefit or for the benefit of any other person, firm, company or association (and shall use her best endeavors to prevent the publication or disclosure of) any trade secrets or any client information of confidential information concerning the business of the Company or which any company owned by or affiliated to the Company owes an obligation of confidentiality to a third party. This duty of confidentiality shall survive the termination of this Agreement.

10.3 All notes and memoranda of any trade secrets or confidential information concerning the business of the Company or otherwise which shall be acquired, received or made by the Employee during the course of her employment shall be the property of the Company and shall be surrendered by the Employee to a person duly authorized at the termination of the employment or at the request of the Company at any time during the course of her employment.

10.4 The Employee shall not remove any documents or tangible items which belong to the Company or which contain any confidential information from the Company’s premises at any time without proper advance authorization from the Company.

10.5 The Employee must, if requested by the Company, delete all confidential information from any re-usable material and destroy all other documents and tangible items which contain or refer to any confidential information and which are in her possession or under her control.

(b) Clause 11.1.1 states: “…the employment of the Employee may be terminated by the Company by giving 3 (three) month notice in writing to the Employee of the termination of her employment …” (“Termination With Notice Clause”).

(c) Clause 11.4.1 states: “Upon termination of his appointment hereunder however occurring, the Employee shall … forthwith deliver to the Company all books, documents, papers, materials and other property of or relating to the business of the Company, which may be in her possession or under her power or control [(“Returnable Items”)]” (“Handover Clause”).

9 From March 2020, Ms Pillai started working from home due to the COVID-19 pandemic.[note: 9] Longitude provided her with furniture, stationery, and computer equipment, and documents were delivered to her home to facilitate the work from home arrangements.

10 Around 15 December 2020, Ms Pillai informed Mr Haeusler that she was pregnant.[note: 10]

11 Between 15 January 2021 and 18 March 2021, Ms Pillai withdrew sums amounting to $100,500 from Longitude’s bank accounts – $71,500 from a DBS bank account (“DBS Account”); and $29,000 from a UOB bank account (“UOB Account”).[note: 11] The purpose of the withdrawals and destination of the funds are the subject of this dispute and will be elaborated on under Issue 2.

12 On 27 April 2021, Longitude issued a “Notice Of Termination With Salary In Lieu Of Notice” (“Termination Letter”) through its solicitors August Law Corporation.[note: 12] The salient points relating to the Termination Letter are as follows:

(a) The termination was effective on 27 April 2021.

(b) Longitude offered to pay Ms Pillai 3 months’ salary in lieu of notice ($43,500) and an additional bonus of $15,000. These sums have yet to be paid to Ms Pillai.[note: 13]

(c) Longitude requested that Ms Pillai return all Returnable Items in compliance with the Handover Clause.

(d) Longitude referred to the fact that Ms Pillai was working from home and “expecting”; and requested that she propose a time and place for its representative to meet her to collect the Returnable Items and provide her a cheque for $58,500.

(e) Aside from the reference to the Termination With Notice Clause, there were no reasons provided for the termination.

13 Ms Pillai was the only remaining employee of Longitude[note: 14] when she was terminated from her positions as both a director and an employee; and Mr Wee was named as Longitude’s sole director on 27 April 2021.[note: 15]

14 After Ms Pillai’s employment was terminated, issues arose between Longitude and her regarding the return of the Returnable Items and the $100,500 that Ms Pillai withdrew from Longitude’s bank accounts.

15 Consequently, Longitude commenced these proceedings against Ms Pillai seeking the return of the Returnable Items; damages arising out of Ms Pillai’s alleged failure to return the Returnable Items, which was a breach of the Employment Contract; and payment of $100,500.[note: 16]

16 Ms Pillai in turn launched a counterclaim against Longitude and Mr Haeusler for damages arising out of her wrongful dismissal, which she alleged was due to her pregnancy and in breach of section 84(1)(b) of the Employment Act 1968 (2020 Rev Ed) (“Employment Act”).[note: 17] She also relied on the tort of conspiracy.[note: 18]

Issues

17 Several issues arise from the claim and counterclaim:

(a) Issue 1: Whether Mr Haeusler was a de facto director of Longitude.

(b) Issue 2: Whether Ms Pillai misappropriated $100,500 from Longitude.

(c) Issue 3: Whether Ms Pillai breached the Handover Clause. This involves ascertaining what Returnable Items Ms Pillai received from Longitude in the first place and what she has done with them (eg. whether she has disposed of or handed them back to Longitude).

(d) Issue 4: Whether Ms Pillai breached the Confidentiality Clause or an equitable duty of confidence.

(e) Issue 5: Whether Ms Pillai was wrongfully dismissed from her employment with Longitude. This involves determining whether Longitude terminated Ms Pillai’s employment because of her pregnancy or for some other legitimate reasons.

(f) Issue 6: Whether there was a conspiracy by unlawful means between Longitude and Mr Haeusler to cause damage or injury to Ms Pillai.

18 Ascertaining Issue 1 will help the court understand how Longitude operated (eg. how decisions were made) and set the context for the subsequent issues. In this regard, Issues 2 to 4 deal with Longitude’s claims against Ms Pillai, whereas Issues 5 and 6 deal with Ms Pillai’s counterclaims against both Longitude and Mr Haeusler.

Issue 1: Mr Haeusler was a de facto director of Longitude and its controlling mind

19 Longitude’s and Mr Haeusler’s position is that Mr Haeusler was not acting as a director of Longitude.[note: 19] Instead, he was the “of counsel” for Latitude (as opposed to Longitude) and was consulted on decisions in his capacity as the sole shareholder of Longitude.[note: 20]

20 Ms Pillai argues that Mr Haeusler was the de facto director of Longitude.[note: 21]

The law

21 Under section 4 of the Companies Act 1967 (2020 Rev Ed) (“Companies Act”), a “director” is defined to include “any person occupying the position of director of a corporation by whatever name called and includes a person in accordance with whose directions or instructions the directors or the majority of the directors of a corporation are accustomed to act and an alternate or substitute director”.

22 This includes a de facto director, who is a person who acts as a director by exercising the powers and discharging the functions of a director even though he is not formally appointed (Raffles Town Club Pte Ltd v Lim Hock Eng Peter and others (Tung Yu-Lien Margaret and others, third parties) [2010] SGHC 163 (“Raffles Town Club”) at [50]).

23 To determine whether a person is a de facto director, the following principles laid out in Raffles Town Club at [58] are relevant:

(1) To establish that a person was a de facto director of a company, it is necessary to plead and prove that he undertook functions in relation to the company which could properly be discharged only by a director (per Millett J. in Re Hydrodam (Corby) Ltd (in liq.) [1994] BCC 161 at 163).

(2) It is not a necessary characteristic of a de facto director that he is held out as a director; such “holding out” may, however, be important evidence in support of the conclusion that a person acted as a director in fact (per Etherton J. in Secretary of State for Trade and Industry v Hollier [2006] EWHC 1804 (Ch); [2007] BCC 11 at [66]).

(3) Holding out is not a sufficient condition either. What matters is not what he called himself but what he did (per Lewison J. in Re Mea Corp Ltd [2006] EWHC 1846 (Ch); [2007] BCC 288).

(4) It is necessary for the person alleged to be a de facto director to have participated in directing the affairs of the company (Hollier (above) at [68]) on an equal footing with the other director(s) and not in a subordinate role (above at [68] and [69] explaining dicta of Timothy Lloyd Q.C. in Re Richborough Furniture Ltd [1996] BCC 155 at 169–170).

(5) The person in question must be shown to have assumed the status and functions of a company director and to have exercised “real influence” in the corporate governance of the company (per Robert Walker L.J. in Re Kaytech International Plc [1999] BCC 390).

(6) If it is unclear whether the acts of the person in question are referable to an assumed directorship or to some other capacity, the person in question is entitled to the benefit of the doubt (per Timothy Lloyd Q.C. in Re Richborough Furniture Ltd (above)), but the court must be careful not to strain the facts in deference to this observation (per Robert Walker L.J. in Kaytech at 401).

Mr Haeusler played an active and dominant role in the decisions of Longitude and was its de facto director and controlling mind

24 It is clear from the evidence that Mr Haeusler played an active and dominant role in the decisions of Longitude; and that Ms Pillai (who was the named director until 27 April 2021) would defer to him.

25 First, he was making decisions on behalf of Longitude and directing the way that Ms Pillai undertook her work. Salient examples are as follows:

(a) He decided on how invoices were issued by Longitude.[note: 22]

(b) He would instruct Ms Pillai to sign documents.[note: 23]

(c) He dictated the bonus payments of Longitude’s staff.[note: 24]

(d) He decided the last day of employment of Longitude’s former staff Ms Joey Ling and gave instructions regarding her replacement as the Corporate Secretary for Longitude.[note: 25]

(e) He was the one who terminated Ms Pillai as both an employee and director of Longitude. In a Police Report filed by Mr Wee on 28 May 2021 relating to the alleged misappropriate of the $100,500 by Ms Pillai, Mr Wee states that Ms Pillai “was terminated by the shareholder of my company based on her contract”.[note: 26] During cross-examination, Mr Haeusler confirmed that he made the decision to terminate Ms Pillai’s employment.[note: 27]

26 Second, Mr Haeusler was signing various documents on behalf of Longitude.

(a) Mr Haeusler was the one who signed Ms Pillai’s Employment Contract on 1 November 2019.[note: 28]

(b) There are invoices from Longitude to its clients that were signed by Mr Haeusler as Longitude’s “authorised signatory”.[note: 29] To this end, I note that Mr Haeusler accepted during cross-examination that such invoices should be signed by a director;[note: 30] and the only explanation he gave on why he signed the invoices was unbelievable. Mr Haeusler’s explanation was that he signed these invoices in his capacity as the representative of Longitude’s client (and signatory to the client’s bank account) as he had an arrangement with the client’s bank to make payments to Longitude as long as his signature was on Longitude’s invoice.[note: 31] I find this explanation hard to believe, particularly in the absence of any contemporaneous evidence (such as documentation from the banks) substantiating the same. Further, even if Mr Haeusler’s signature (as the client’s representative) was required on Longitude’s invoice before the bank could make payment, Mr Haeusler has not explained why he signed above the line for “authorised signatory LONGITUDE 101 PTE. LTD.” rather than on some other part of the invoice that could have reflected his signature in his capacity as the client’s representative.

27 Third, Mr Haeusler was referred to as the “boss” of Longitude.

(a) There are emails showing that Ms Pillai referred to Mr Haeusler as the boss of Longitude to Longitude’s other staff[note: 32] and Longitude’s clients.[note: 33]

(b) There are WhatsApp messages where Mr Wee referred to Mr Haeusler as Ms Pillai’s boss in Longitude.[note: 34]

28 Fourth, Mr Haeusler admitted in his Defence to Counterclaim that he was involved in the management of Longitude’s affairs even though Ms Pillai was named as the sole director.[note: 35] There are also emails where Mr Haeusler states that he was part of the management of Longitude.[note: 36]

29 I therefore find that Mr Haeusler was a de facto director of Longitude, and in fact its controlling mind.

30 In coming to my decision, I considered and rejected Mr Haeusler’s argument that he was, as the sole shareholder of Longitude, entitled to deal with issues relating to finance, the overall strategic positioning of Longitude, and matters relating to the oversight of the sole director of Longitude (“Alleged Sole Shareholder Management Duties”).[note: 37] There was simply no basis to Mr Haeusler’s argument for the following reasons:

(a) There is a division of powers between directors and shareholders. This is reflected in section 157A of the Companies Act, which states:

(1) The business of a company is to be managed by, or under the direction or supervision of, the directors.

(2) The directors may exercise all the powers of a company except any power that this Act or the constitution of the company requires the company to exercise in general meeting.

In line with section 157A of the Companies Act, the power and duty to manage a company lies principally with its directors and not its shareholders (TYC Investment Pte Ltd and others v Tay Yun Chwan Henry and another [2014] 4 SLR 1149 (“TYC Investment (HC)”) at [1]). This hands the directors a general right of management, subject to the proviso under section 157A(2) of the Companies Act that excludes any power which must be exercised in a general meeting under the Companies Act or the company’s constitution (Chan Siew Lee v TYC Investments Pte Ltd and others and another appeal [2015] 5 SLR 409 (“TYC Investments (CA)”) at [36]; and Independent State of Papua New Guinea v PNG Sustainable Development Program Ltd [2020] SLR 200 (“PNG Sustainable”) at [31]).

(b) In the present case, Mr Haeusler has not pointed to any provisions in the Companies Act or in Longitude’s constitution that placed the Alleged Sole Shareholder Management Duties upon him. In this regard, I note that Longitude’s constitution has not been disclosed and relied on by Longitude or Mr Haeusler to support the existence of the Alleged Sole Shareholder Management Duties.

(c) There is also no basis to imply any reserve powers in favour of the shareholders in general meeting. Reserve powers may only be implied based on necessity in exceptional circumstances – this requires a situation where the board of directors is deadlocked or is unable or unwilling to act; and the power is limited to what is necessary to resolve the deadlock (TYC Investments (CA) at [37]; and PNG Sustainable at [33]). Aside from the termination of Ms Pillai as the director of Longitude, I do not see how the other acts performed by Mr Haeusler arise from a situation of deadlock or an inability or unwillingness of Ms Pillai to act that would give rise to reserve powers in the form of the Alleged Sole Shareholder Management Duties.

(d) Instead, if Mr Haeusler wanted to be involved in the management of Longitude and exercise the Alleged Sole Shareholder Management Duties, he should have appointed himself as a director of Longitude. This was however not possible because Mr Haeusler was disqualified from acting as a director under the Companies Act (Cap 50, 2006 Rev Ed) for 5 years from 6 June 2017.

(e) In any event, even if Mr Haeusler was required to perform the Alleged Sole Shareholder Management Duties, such duties would in my view fall within the scope of the principles laid out in Raffles Town Club that assist the court in determining whether a person is a de facto director (see [23] above).

31 I was also mindful not to conflate the evidence from Mr Wee regarding his personal experience of working with Mr Haeusler in Latitude (where Mr Wee was a director at the material time). While it was not disputed that they are part of the same group of companies, the present proceedings deal with the issue of whether Mr Haeusler was a de facto director of Longitude rather than Latitude. Consequently, how Mr Haeusler worked with Mr Wee in Latitude may not be representative of how he did things in Longitude. To this end, Mr Wee accepted that he was not involved in the day-to-day management or affairs of Longitude until he took over as its director on 27 April 2021[note: 38] and his evidence on this issue was therefore limited. Assuming that I am wrong in drawing this distinction, the evidence in any case shows that Mr Wee was taking instructions from Mr Haeusler. This is reflected in the numerous emails where Mr Haeusler was directing Mr Wee to sign documents, and emails where Mr Wee was taking instructions from or seeking approval from Mr Haeusler.[note: 39]

Issue 2: Ms Pillai did not misappropriate $100,500 from Longitude

32 Longitude’s position is that Ms Pillai withdrew $100,500 in cash from the DBS Account and UOB Account between 15 January 2021 to 18 March 2021; that she had no basis to withdraw the said amounts; and that the amounts were retained by her. According to Longitude, they only found out about this in May 2021 after Ms Pillai’s employment was terminated.[note: 40]

33 Ms Pillai’s case is that the $100,500 was withdrawn from Longitude’s bank accounts and paid to Mr Haeusler as $97,000 in dividends due to him as the sole shareholder of Longitude and a further $3,500 as a shareholder distribution requested by Mr Haeusler.[note: 41]

34 I find that the $100,500 that Ms Pillai withdrew from Longitude’s bank accounts were paid to Mr Haeusler and not misappropriated by her.

Dividend and shareholder payments to Mr Haeusler amounted to $100,500

35 The contemporaneous documents relied upon by Ms Pillai provides an explanation for what the $100,500 in question was used for.

(a) On 15 January 2021, Mr Haeusler sent Ms Pillai a WhatsApp message asking her to withdraw $3,500 that should be recorded as an “amount due to shareholder”.[note: 42] Mr Haeusler conceded during cross-examination that this sum of $3,500 was part of the $100,500 in question.[note: 43]

(b) A Director’s Resolution dated 8 March 2021 was passed showing that Longitude declared $97,000 in dividends (“Dividend Resolution”).[note: 44] This resolution was confirmed and signed by Mr Haeusler; and states that “The sole shareholder namely, Thomas Haeusler, has requested the Company for a final dividend of S$97,000 …”.

36 According to Ms Pillai, whose evidence on this issue did not waver at trial, the sum of $97,000 was withdrawn in cash between January and March 2021 and paid to Mr Haeusler in the following manner:[note: 45]

(a) $25,000 on 8 February 2021 and a further $25,000 on 25 February 2021. This was supported by compiled ATM Transaction Records that were acknowledged and signed by Mr Haeusler (“Acknowledged ATM Records”) that reflected the said sums.[note: 46] While the authenticity and admissibility of the Acknowledged ATM Records have been challenged by Longitude and Mr Haeusler, I have for the reasons given at [46]-[64] below found that Longitude and Mr Haeusler are (i) deemed to admit to the Acknowledged ATM Records being a true copy that was printed, written, signed or executed as it purports to have been; and (ii) that Ms Pillai has in any event proven the authenticity and admissibility of the same.

(b) $47,000 on 21 March 2022. This corresponds with the note in the Acknowledged ATM Records that the remaining $47,000 for dividends was to be withdrawn.

37 Ms Pillai’s depiction of the events was corroborated by her email correspondence with Mr Haeusler on 8 March 2021 showing discussions between them on whether the dividend should remain as the sum of $97,000 (which based on the note in the Acknowledged ATM Records required a further withdrawal of $47,000) or whether it should be reduced to $50,000 (ie. the amount already received by Mr Haeusler based on the Acknowledged ATM Records). Key extracts from the emails exchange on 8 March 2021 are as follows:[note: 47]

(a) At 2.00pm, Ms Pillai sent an email to Mr Haeusler stating: “Dear Tom, As per your instructions, total 97k will be withdrawn for dividend payout to shareholder …”.

(b) At 2.08pm, Mr Haeusler replied: “… Last information from you was 50K, now it’s 97k”.

(c) At 2.23pm, Ms Pillai replied: “That last conversation with you was the amount mentioned which you said fine … However, if you change your mind now it’s not a problem, the cash will remain be [sic] in the bank …”.

(d) At 6.31pm, Mr Haeusler sent Ms Pillai the Dividend Resolution which he signed.

Mr Haeusler’s position that he did not receive the $100,500 was unbelievable

38 Mr Haeusler denied receiving the sum of $100,500, which comprised $3,500 as a shareholder distribution he requested and $97,000 in dividends.

39 I start with the sum of $3,500. Based on the evidence before the court, I find that it is more probable that Mr Haeusler received this sum of $3,500. Having asked Ms Pillai to withdraw $3,500 as an “amount due to shareholder” on 15 January 2019, Mr Haeusler would have been waiting to receive the money. If he truly did not receive this, I would have expected there to be some form of communication (verbal or written) between him and Ms Pillai on the issue. There was none.

40 Turning to the balance sum of $97,000. It was not disputed that the Dividend Resolution was signed by Mr Haeusler. However, Mr Haeusler alleged that he was never meant to receive the $97,000 in dividends as the Dividend Resolution was meant to legitimise payments in cash to third parties doing outsourced work for Longitude because Ms Pillai was due to go on maternity leave later that year.[note: 48]

41 I find Mr Haeusler’s evidence on this point to be unbelievable for the following reasons:

(a) There were inconsistencies in his evidence. During cross examination, he initially took the position that some money (not amounting to the full $97,000) was used to pay for outsourced work, which suggests that Longitude had decided to outsource some work.[note: 49] However, he subsequently changed tack and informed the court that “in the end the reaction was there was no outsourcing…”.[note: 50] In this regard, I am mindful that the explanation that the money in question was spent on outsourcing also contradicts Longitude’s claim, as it necessarily means that the money was used for Longitude’s purposes and not misappropriated by Ms Pillai.

(b) There was no explanation from Mr Haeusler why a cash payment to a third party for outsourced work had to be reflected as a false entry for a dividend rather than as some other accurate entry in Longitude’s accounts.

(c) There was no other documentary evidence provided by Longitude or Mr Haeusler showing that third parties had been engaged or approached to perform any outsourced work. There was also no evidence of what these outsourced works related to or how such outsourced work could total to $97,000. Instead, I note that there is an email from Ms Pillai on 8 March 2021 stating “There is no outsource work. This is withdrawals for dividend to shareholder as per instructions.”, and that Mr Haeusler replied by sending the Dividend Resolution.[note: 51]

(d) Further, Mr Haeusler’s evidence was that the outsourced work was required because Ms Pillai was due to go on maternity leave. However, the Dividend Resolution was signed on 8 March 2021 when Ms Pillai was still working for Longitude; and some months before she would go on maternity leave.

42 Mr Haeusler’s position that he did not receive the dividend of $97,000 was put into further doubt by the following:

(a) Longitude did not take steps to ascertain what happened to the $100,500 and their allegations against Ms Pillai appear speculative. When Mr Wee found out on 28 May 2021 about the $100,500 that was withdrawn from Longitude’s bank accounts, he did not check with Ms Pillai what the money was used for. Instead, his only reason for believing that $100,500 was misappropriated was that Ms Pillai did not return supporting documents to explain the transactions.[note: 52] While he was aware of the Dividend Resolution, he gave an unbelievable answer that he simply disregarded the document because it was not signed by Ms Pillai (as Longitude’s then director), even though Mr Haeusler had signed it as shareholder. In this regard, I do not see how the absence of Ms Pillai’s signature on the Dividend Resolution helps Longitude,[note: 53] as the critical fact here is that Mr Haeusler signed the resolution and would have been expecting to receive dividends of $97,000.

(b) Mr Wee (as director of Longitude at the time) did not arrange for an annual general meeting (“AGM”) or extraordinary general meeting (“EGM”) to table this issue of the alleged misappropriation of $100,500 by Ms Pillai even though his own evidence is that an AGM or EGM should have been called to deal with an issue as serious as this.[note: 54]

(c) Longitude chose not to produce its audited financial accounts, which according to Mr Wee would have helped shed light on whether the $100,500 was misappropriated;[note: 55] and would hence have been relevant and material to the proceedings. In particular, the audited financial accounts would have shown whether there was any amount owing to the shareholder. In this regard, I find that the court may draw an adverse inference under section 116(g) of the Evidence Act 1893 (2020 Rev Ed) (“Evidence Act”) from the failure to disclose the audited financial accounts. The effect of the adverse inference relates to the detrimental impact to the weight I accord to both Mr Wee’s and Mr Haeusler’s evidence on this issue of whether Mr Haeusler received the dividends (Sudha Natrajan v The Bank of East Asia Ltd [2017] 1 SLR 141 at [32]).

43 Viewed as a whole, I find that it is more likely that Mr Haeusler received $97,000 in dividends between February and March 2021 (see [36] above).

44 I therefore find that Longitude has failed to prove that Ms Pillai misappropriated $100,500 from it. The $100,500 she withdrew from Longitude’s bank accounts were paid to Mr Haeusler and have been accounted for.

45 In reaching this finding, I considered the following arguments raised by Longitude and Mr Haeusler:

(a) Longitude and Mr Haeusler pointed out that while the Acknowledged ATM Records may show that Mr Haeusler received $50,000 in dividends, there were no signed documents before the court showing that he received the further sum of $47,000.[note: 56] This does not affect my decision because:

(i) The Acknowledged ATM Records states that the remaining $47,000 for dividends was to be withdrawn and Mr Haeusler also signed the Dividend Resolution relating to a dividend of $97,000. If he truly did not receive the further sum of $47,000, there would have been some form of communication (verbal or written) between him and Ms Pillai on the issue. However, there was no evidence of any such communication.

(ii) I accept Ms Pillai’s explanation that she did not obtain further acknowledged ATM Transaction Records for the balance $47,000 because the Dividend Resolution had been signed by Mr Haeusler by that time. This is in contrast with the circumstances prior to 8 March 2021 when the signed Dividend Resolution was not yet available.

(iii) Longitude has not produced its audited financial accounts, which would have helped shed light on the issue (see [42(c)] above).

(iv) There is an email from Ms Pillai to Mr Haeusler on 21 April 2021 which states: “Longitude has already made one staff bonus payment and dividend payment up until March”.[note: 57] This email reinforces Ms Pillai’s position that the dividends of $97,000 (as reflected in the Dividend Resolution) were paid to Mr Haeusler (who was the sole shareholder of Longitude and only person who was entitled to receive the said dividends).

(b) Longitude and Mr Haeusler pointed out that it was strange for Ms Pillai to have made many small piecemeal withdrawals for the $97,000 rather than going to the bank to make a single withdrawal transaction.[note: 58] I find this to be a neutral point as Mr Haeusler signed on the Acknowledged ATM Records and knew that piecemeal withdrawals were being made.

Dispute on the authenticity of the Acknowledged ATM Records

46 Longitude and Mr Haeusler sought to dispute the authenticity of the Acknowledged ATM Records[note: 59] on the eve of the trial by filing a Notice of Non-Admission of Authenticity (“NONA”) on 4 July 2023.

47 This issue was addressed at the start of the trial on 5 July 2023. I determined that Longitude and Mr Haeusler are deemed to have admitted to the authenticity of the Acknowledged ATM Records pursuant to Order 27 rules 4(1) and 4(2) of the Rules of Court (Cap 332, R5, 2014 Rev Ed) (“ROC 2014”).

48 The background to this issue is as follows:

(a) The Acknowledged ATM Records were described as copies in Ms Pillai’s List of Documents filed on 28 March 2022.

(b) It was not disputed that a copy of the Acknowledged ATM Records was provided to Longitude and Mr Haeusler around 28 March 2022.

(c) Pursuant to Order 27 rule 4(1) of the ROC 2014, Longitude and Mr Haeusler would be deemed to admit that the Acknowledged ATM Records are true copies unless (i) their authenticity have been denied in the pleadings (which was not the case, since Longitude’s and Mr Haeusler’s pleadings did not make reference to the Acknowledged ATM Records); or (ii) the NONA was filed by around 11 April 2022 (being 14 days after 28 March 2022) in accordance with Order 27 rule 4(2) of the ROC 2014, which they failed to do.

49 In light of this, Longitude and Mr Haeusler sought a retrospective extension of time to file the NONA. They relied on the following arguments:[note: 60]

(a) They did not file the NONA at the time because they did not know what Ms Pillai was relying on the Acknowledged ATM Records for.

(b) It was only when the affidavits of evidence-in-chief (“AEICs”) were exchanged around 9 May 2023 that they realised that Ms Pillai was relying on them to show that Mr Haeusler received the money. This prompted them to consider the issue of the authenticity of the Acknowledged ATM Records.

(c) They initially took the position that Mr Haeusler’s signature was forged by ink signing; and that the original document was required so that the Health Sciences Authority (“HSA”) would be able to perform a handwriting or signature analysis by looking at the pressure on the original document. However, they later abandoned this position, and conceded that the signature was Mr Haeusler’s but argued that it seemed to have been a “cut and paste” job.

(d) There would be no prejudice to Ms Pillai that would not be able to be compensated by costs, as she would still be able to call further witnesses to prove the authenticity of the Acknowledged ATM Records.

50 Ms Pillai objected to the extension of time and argued that Longitude and Mr Haeusler should be deemed to have admitted to the authenticity of the Acknowledged ATM Records. Her counsel, Mr Kishan Pratap, brought my attention to the case of Daniel Fernandez v Edith Woi and another [2021] SGHC 117 (“Daniel Fernandez”), where a defendant was deemed to admit to the authenticity of documents which were only objected to in a NONA filed one day before the trial and more than 1 year after they were disclosed. The High Court’s findings at [130]-[131] are instructive:

130 When I queried the defendants’ counsel as to how he planned to overcome the fact that, by operation of the ROC, the defendants had already lost their right to challenge the authenticity of the MeikoPay statements through their failure to file notices of non-admission within the time permitted by the ROC, he replied to say that the plaintiff would suffer no prejudice.

131 I am unable to agree. No reasonable explanation has been provided by the defendants as to why this notice of non-admission was filed so late. Critically, the first defendant did not even deny the authenticity of the relevant MeikoPay documents in her AEIC. In these circumstances, it is certainly far too late to raise objections of authenticity on the eve of the trial for documents discovered more than a year ago. If such late objections are allowed, parties might have to scramble to search for an appropriate witness to prove the authenticity of documents even as the trial is progressing. This might lead to trial dates being vacated, or trials being part-heard because a witness that is needed to prove the authenticity of a documents is not available at short notice. In this case, the plaintiff would suffer prejudice because he would then have to locate and persuade someone from Shenzhen Hongzhanzheng Trading Co Ltd to agree to give evidence as to the provenance of the MeikoPay documents before he would be able to close his case, and all this while the trial is already ongoing.

51 Like the case of Daniel Fernandez (whose facts are similar to the present case), I found that Longitude and Mr Haeusler are deemed to admit to the authenticity of the Acknowledged ATM Records as their explanation for the delay (as set out at [49] above) was not be reasonable since:

(a) While the Acknowledged ATM Records were provided to them around 28 March 2022, they chose not to take the necessary steps required under Order 27 rule 4(2) of the ROC 2014 to file the NONA in April 2022 as it was not obvious to them what the document stood for. This was a deliberate choice that they cannot now complain about. If Longitude and Mr Haeusler were indeed concerned about why Mr Haeusler’s signature was reflected on the Acknowledged ATM Records, they should have done the prudent and cautious thing by filing the NONA within the requisite time frame.

(b) The authenticity of a document should not be impacted by Ms Pillai’s rationale for relying on the document. Longitude and Mr Haeusler argued that it was only after they read Ms Pillai’s AEIC that they realised that the Acknowledged ATM Records were being relied upon to show that Mr Haeusler received the money; and that this prompted them to file the NONA. I did not find this to be a reasonable explanation because if Mr Haeusler truly doubted the authenticity of a document, his doubt would exist regardless of Ms Pillai’s reasons for relying on the document.

(c) Longitude and Mr Haeusler took inconsistent positions regarding the reasons behind their objection to the authenticity of the Acknowledged ATM Records. As mentioned at [49(c)] above, their initial position was that Mr Haeusler’s signature was forged by ink signing and required HSA handwriting or signature analysis;[note: 61] before they changed tack and conceded that the signature belonged to Mr Haeusler but that it seemed to have been a “cut and paste” job.[note: 62]

52 Further, there would have been prejudice to Ms Pillai if I allowed the extension of time for the NONA, as she would then have to locate and persuade others to give evidence while the trial was ongoing, which was a factor that the High Court took into account in Daniel Fernandez.

53 The effect of Longitude’s failure to file the NONA is that the Acknowledged ATM Records are deemed to be admitted under Order 27 rule 4(1) of the ROC 2021 and to be a true copy that was printed, written, signed or executed as it purports to have been.

54 In any event, I find that Ms Pillai has proven the authenticity of the Acknowledged ATM Records on a balance of probabilities based on the direct and circumstantial evidence (CIMB Bank Bhd v World Fuel Services (Singapore) Pte Ltd and another appeal [2021] 1 SLR 1217 (“CIMB”) at [55]-[61]).

55 First, Ms Pillai has given evidence that she prepared the compiled ATM Transaction Records and personally provided them to Mr Haeusler, who signed them.[note: 63] This evidence remained unshaken during the cross-examination.[note: 64] Further, I do not agree with the arguments raised by Longitude and Mr Haeusler to try to discredit her evidence: (a) there is no basis to their argument that she should be precluded from relying on the said defence or that it has been raised as an afterthought,[note: 65] as Ms Pillai’s pleaded position in her Defence and Counterclaim sets out her position that the sum of $97,000 was paid to Mr Haeusler;[note: 66] (b) while there were some inconsistencies in Ms Pillai’s evidence and the position in her Defence and Counterclaim regarding the dates when the payments to Mr Haeusler were made,[note: 67] I did not find these to be material, especially in light of the other evidence before the court (see [57] below); and (c) it is untrue and misleading for Longitude and Mr Haeusler to argue that the police report filed by Ms Pillai on 5 July 2021 and a previous affidavit signed by Ms Pillai on 6 July 2021 do not mention that she gave the money to Mr Haeusler,[note: 68] as the police report states that “SGD97k was a dividend declared and paid to the company’s sole shareholder”[note: 69] and the previous affidavit states “S$97,000 was the payment of the Dividend to the shareholder, Mr. Tom”.[note: 70]

56 Second, there was no credible evidence from Longitude and Mr Haeusler that the latter did not sign the Acknowledged ATM Records. Longitude’s and Mr Haeusler’s evidence and position regarding the authenticity of the Acknowledged ATM Records was inconsistent and unreliable; and I therefore gave little weight to the same.

(a) Longitude’s and Mr Haeusler’s reasons for their objections to the authenticity has shifted starkly, which casts doubts as to the genuineness of their challenge to the authenticity of the Acknowledged ATM Records and the veracity of their position. As mentioned at [49(c)] above, their initial position was that Mr Haeusler’s signature was forged by ink signing and required HSA handwriting or signature analysis; before they changed tack and conceded that the signature belonged to Mr Haeusler but that it seemed to have been a “cut and paste” job. Incredulously, they decided to persist with this prevarication in their closing submissions, where they reverted to their initial position that the original document was required for “HSA to analyse the handwriting and signature to determine if the signatures were a forgery”.[note: 71] Such conduct is unsatisfactory and attracts the circumspection and scepticism of the court (Recovery Vehicle 1 Pte Ltd v Industries Chimiques Du Senegal and another appeal and another matter [2021] 1 SLR 342 at [102]).

(b) Mr Wee gave evidence during trial that (i) he discussed the contents of the Acknowledged ATM Records with Mr Haeusler prior to the filing of the AEICs; (ii) it was Mr Haeusler’s signature on the Acknowledged ATM Records; (iii) he verified with Mr Haeusler on his receipt of the $50,000;[note: 72] and (iv) Mr Haeusler’s response to seeing the Acknowledged ATM Records at that time was that “he did not receive the money”, the money “to be spent on outsourcing” amounted to $50,000, and that nothing else was discussed.[note: 73] The evidence shows that both Longitude and Mr Haeusler knew about the Acknowledged ATM Records before the AEICs were exchanged; and that they had prior to the exchange of the AEICs already applied their mind to the fact that the Acknowledged ATM Records showed that Mr Haeusler received the money. This contradicted Longitude’s and Mr Haeusler’s submission to the court that it was only when the AEICs were exchanged around 9 May 2023 that they realised that Ms Pillai was relying on them to show that Mr Haeusler received the money (see [49(b)] above).[note: 74] Further, if the Acknowledged ATM Records were truly not authentic, one would have expected Mr Haeusler to question them immediately after receiving Ms Pillai’s AEIC around 9 May 2023 and realising what Ms Pillai was relying on them to show. Instead, he did nothing at the time and waited till the eve of trial to file the NONA.

(c) Longitude’s and Mr Haeusler’s argument that the Acknowledged ATM Records are not authentic as the “signatures are suspect [because Ms Pillai] drew a line under both signatures”[note: 75] lacked reason. The signatures on the Acknowledged ATM Records were on or above the line (in the same manner that Mr Haeusler signed other documents);[note: 76] and were not drawn across the signatures or in some other unusual place. I therefore do not see how this argument holds any weight.

57 Third, the circumstantial evidence supports the finding that the Acknowledged ATM Records are authentic.

(a) Mr Haeusler signed the Dividend Resolution, which shows that he must have been expecting to be paid $97,000 in dividends. As set out at [40]-[43] above, I find it simply unbelievable that he signed the resolution to legitimate payments in cash to third parties for outsourced work.

(b) The figures set out in the Acknowledged ATM Records match those in the Dividend Resolution – $97,000.

(c) There are emails between Ms Pillai and Mr Haeusler showing discussions on the dividend sum of $97,000 (see [37] above); and the withdrawal of money to pay the dividends (see [41(c)] above)). The email sent from Ms Pillai to Mr Haeusler on 21 April 2021 also makes it clear that Mr Haeusler was aware that “Longitude has already made one staff bonus payment and dividend payment up until March”;[note: 77] and there was no response from Mr Haeusler (being the sole shareholder of Longitude and the only person who was entitled to receive the dividends) to dispute his receipt of the dividends.

58 Consequently, I find that the Acknowledged ATM Records are authentic.

Dispute on the admissibility of the Acknowledged ATM Records

59 Longitude and Mr Haeusler raised a separate objection to Ms Pillai’s reliance on the Acknowledged ATM Records based on its admissibility under sections 66 and 67 of the Evidence Act. This objection was raised for the first time in Longitude’s and Mr Haeusler’s closing submissions.

60 The question of a document’s admissibility is distinct from that of its authenticity. Even if the authenticity of the documents is established, they would still be inadmissible unless the requirements of the Evidence Act are satisfied (Jet Holding Ltd and others v Cooper Cameron (Singapore) Pte Ltd and another and other appeals [2006] 3 SLR(R) 769 at [36]; and CIMB at [45]).

61 There was no primary evidence under section 66 of the Evidence Act of the Acknowledged ATM Records. I accept Ms Pillai evidence that she does not have the original document as she returned it to Longitude[note: 78] – I have no reason to doubt the credibility of her testimony on this was point as it was coherent. In response, Longitude has indicated that it does not have the original either.[note: 79]

62 I therefore turn to the secondary evidence, which I find Ms Pillai was entitled to rely on pursuant to sections 67(1)(a) and 67(1)(c) of the Evidence Act.

(a) Section 67(1)(a) of the Evidence Act is triggered as: (i) Ms Pillai has alleged that Longitude had possession of the original Acknowledged ATM Records; (ii) the notice to produce the document under section 68 of the Evidence Act was not required because it was clear from the nature of the case that Longitude must have known that it was required to produce it; and (iii) Longitude has not produced it.

(b) Section 67(1)(c) of the Evidence Act is also triggered because based on Ms Pillai’s and Longitude’s positions, the Acknowledged ATM Records have been destroyed or lost. In addition, Ms Pillai (as the party offering evidence of the contents of the Acknowledged ATM Records) cannot produce it for reasons not arising from her own default or neglect (see [61] above).

63 The secondary evidence that Ms Pillai relied on, which I accept, was in the form of her oral account of the contents of the Acknowledged ATM Records which she had personally seen since she was the one who prepared the compiled ATM Transaction Records and personally provided them to Mr Haeusler, who signed them.[note: 80]

64 Consequently, I find that the Acknowledged ATM Records are admissible.

Conclusion on Issue 2

65 I find that Ms Pillai did not misappropriate $100,500 from Longitude. The money she withdrew from Longitude’s bank accounts were paid to Mr Haeusler and accounted for.

Issue 3: While Ms Pillai was in breach of the Handover Clause between 27 April 2021 and 24 August 2021, Longitude has not proven any quantifiable loss

66 Longitude’s pleaded position is that Ms Pillai was in possession of Returnable Items that needed to be handed over to Longitude pursuant to the Handover Clause. The alleged Returnable Items included copies of various documents; some original documents; and furniture, stationery, and computer equipment (“Office Hardware”).[note: 81]

67 The Handover Clause states: “Upon termination of his appointment hereunder however occurring, the Employee shall … forthwith deliver to the Company all books, documents, papers, materials and other property of or relating to the business of the Company, which may be in her possession or under her power or control [ie. Returnable Items]”.

68 Longitude’s claim rests on it proving that there were Returnable Items in Ms Pillai’s possession or under her power or control that she failed to return. To do this, Longitude must necessarily show that the Returnable Items were received by Ms Pillai in the first place.

Ms Pillai complied with the Handover Clause as of 24 August 2021

69 I will deal with the copies of documents, followed by the original documents and the Office Hardware.

Copies of documents

70 Longitude relied on various handover forms from Latitude (as opposed to Longitude) to show the nature of documents that were provided to Ms Pillai while she was working from home.[note: 82] There are several points to make regarding the handover forms:

(a) Mr Wee confirmed during cross-examination that aside from the handover forms, there was no itemised list setting out any other documents that Longitude was trying to recover from Ms Pillai in these proceedings.[note: 83]

(b) The handover forms were provided by Latitude instead of Longitude; and were addressed by Latitude to Ms Pillai. Nevertheless, it was not disputed that Ms Pillai received these documents in her capacity as an employee of Longitude.

(c) Ms Pillai did not sign the handover forms – this was confirmed by both Mr Wee and Mr Haeusler during cross-examination.[note: 84] As such, the handover forms do not actually help Longitude prove that she received the documents.

(d) While the handover forms use the term “original documents”[note: 85] to describe documents that were allegedly handed to Ms Pillai, Mr Wee conceded that these documents were actually copies and not originals.[note: 86] Mr Wee also confirmed that all the originals were kept by Latitude and were not provided to Ms Pillai.[note: 87] Consequently, the handover forms only go so far as to show that copies (as opposed to originals) were allegedly provided to Ms Pillai.

(e) Further, Mr Haeusler confirmed that the majority of the documents were available on Longitude’s Office 365 cloud services (“Longitude’s Cloud Storage”) that could be accessed by Longitude online after Ms Pillai’s employment was terminated.[note: 88]

71 As far as the copies of documents reflected in the handover forms are concerned, Ms Pillai’s position is as follows:

(a) She did not receive each and every document set out in the handover forms. This was why she did not sign them.[note: 89]

(b) Prior to the termination of her employment on 27 April 2021, she already disposed of many of the copies of documents that she received; and that Mr Haeusler (on behalf of Longitude) indicated that she could dispose of the copies once she no longer needed them.[note: 90] I accept this explanation, which made logical sense since these documents were merely copies and in any event accessible in soft copy on Longitude’s Cloud Storage (see [70(e)] above). In this regard, I reject Mr Haeusler’s unbelievable explanation that Ms Pillai was not entitled to dispose of these copies by shredding or tearing because the copies had to be retained by Longitude for regulatory purposes.[note: 91] Mr Haeusler’s explanation made no sense since the documents were merely copies (and not originals) that were already on Longitude’s Cloud Storage; and could have been printed out again assuming that the unspecified regulatory requirements he referred to actually mandated hard copies. It was therefore reasonable for such documents to be disposed of appropriately by Ms Pillai rather than having multiple copies filed away by Longitude.

(c) Any remaining copies of documents that she had after the termination of her employment were returned to Longitude on 24 August 2021.[note: 92] This was confirmed by Mr Wee during cross-examination.[note: 93]

72 There was therefore no evidence from Longitude of any copies of documents that Ms Pillai had yet to return by the time the trial commenced.

Original documents and Office Hardware

73 Longitude alleged that it provided Ms Pillai with original documents which she has not returned. However, it was unable to specify what these original documents are:

(a) Mr Wee confirmed during cross-examination that Longitude does not have an itemised list setting out the original documents that Ms Pillai needs to return to Longitude;[note: 94] and

(b) Mr Haeusler indicated during cross-examination that he was only aware of 3 files containing original documents. [note: 95] However, while he could identify that the files related to the companies “Iman Holding”, “Caelum” and “Aspan”, he did not specify or identify what these original documents were.

74 I therefore find that Longitude has not discharged its burden of proving that Ms Pillai is holding on to any original documents which need to be returned under the Handover Clause.

75 Turning to the Office Hardware, the parties accepted that the Office Hardware were returned on 24 August 2021.[note: 96]

76 Consequently, Ms Pillai had complied with the Handover Clause as of 24 August 2021. The copies of the documents and Office Hardware were returned by 24 August 2021, and there was no evidence that Ms Pillai was holding on to any original documents that are subject to the Handover Clause. There is therefore no longer any basis for Longitude to be seeking an order for the return of any Returnable Items.

77 That said, there remains a question of whether Ms Pillai breached the Handover Clause during the period from 27 April 2021 to 24 August 2021.

Ms Pillai was in breach of the Handover Clause between 27 April 2021 to 24 August 2021

78 It is evident that after her employment was terminated on 27 April 2021, Ms Pillai held on to some Returnable Items (ie. the copies of documents and Office Hardware) and only returned them to Longitude on 24 August 2021 – (ie. after these proceedings were commenced). These Returnable Items comprised: 2 boxes of photocopied documents; 2 office chairs; a computer; a printer; a calculator, 3 pens; 2 bank files; 5 cheque books; 2 bank tokens; and 2 debits cards.[note: 97]

79 This was in breach of the Handover Clause that required her to return the Returnable Items to Longitude promptly upon the termination of her employment on 27 April 2021.

Longitude has failed to prove that it suffered any quantifiable loss because of Ms Pillai’s breach of the Handover Clause between 27 April 2021 to 24 August 2021

80 While Ms Pillai may have breached the Handover Clause between 27 April 2021 to 24 August 2021, Longitude must prove that it suffered loss for the purposes of the remedy of compensatory damages.

81 Unfortunately, Longitude’s position on the issue of loss was unclear and its evidence also lacking. In this regard, while I invited Longitude to address the court on the nature and quantum of damages it was seeking,[note: 98] it chose not to do so. As will be seen in the later portions of this judgment, this was not the only issue that Longitude and/or Mr Haeusler refused to address despite being invited by the court to do so (see [104], [110] and [129(e)] below).

82 Based on the evidence, there appeared to be two areas of loss that Longitude relied on:

(a) The sum of $4,800 in relation to an invoice dated 31 January 2022 from Latitude to Longitude (“EOT Fees”).[note: 99] This related to extensions of time (“EOTs”) that Latitude applied for regarding the holding of AGMs and filing of Annual Returns for its clients, which were due around June or July 2021.

(b) Fees that Longitude had to incur to hire a third party to “re-verify and/or redo the work that [Ms Pillai] was supposed to have done” (“Re-verification Fees”).[note: 100]

83 In terms of the EOT Fees, I am not satisfied that Longitude incurred them as a result of Ms Pillai’s breach of the Handover Clause for the following reasons:

(a) Mr Wee accepted that Latitude could have proceeded with the filing of the Annual Returns based on the copies of the documents it already had, which were on Longitude’s Cloud Storage.[note: 101]

(b) There was no evidence showing that the EOTs to file the Annual Returns were required because of documents that Ms Pillai did not return to Longitude.[note: 102] Mr Wee was unable to shed light on this; and Longitude has unfortunately chosen not to call the accountant who subsequently prepared the relevant Annual Returns to testify on this.

(c) During cross-examination, Mr Wee gave evidence that the EOTs were required not only because of the alleged delay in receiving the Returnable Items from Ms Pillai but also from delays faced by Latitude in obtaining information from its clients.[note: 103]

84 As for the Re-verification Fees, Mr Wee confirmed that Longitude did not engage any external third party to undertake such work; and conceded that there was no actual loss suffered by Longitude.[note: 104] In this regard, I must add that Mr Wee’s evidence on the Re-verification Fees was suspect. In his AEIC, he took the position that Longitude had hired an accountant to perform the required works.[note: 105] However, he took an inconsistent position during cross-examination when he conceded that Longitude had not yet engaged an external third party to perform the works; and clarified that the accountant he referred to in his AEIC was in fact hired by Latitude rather than Longitude.[note: 106]

85 There is therefore no basis for an award of compensatory damages even though Ms Pillai was in breach of the Handover Clause between 27 April 2021 to 24 August 2021.

Issue 4: Longitude has not proven that Ms Pillai breached the Confidentiality Clause or an equitable duty of confidence

86 Longitude’s position is that Ms Pillai breached the Confidentiality Clause and an equitable duty of confidence because she deleted confidential information from her computer or refused to return the information to Longitude.[note: 107] With regard to the equitable duty of confidence, Longitude relied on both a wrongful gain interest and a wrongful loss interest.[note: 108]

87 Ms Pillai argued that Longitude should not be entitled to rely on a claim based on a breach of confidentiality because it was not sufficiently pleaded; and that the claim was in any event not made out.[note: 109]

The law

88 The law is clear that the causes of action based on a breach of a contractual duty of confidence and a breach of an equitable duty of confidence are distinct and should not be conflated (Adinop Co Ltd v Rovithai Ltd and another [2019] 2 SLR 808 (“Adinop”) at [37]).

89 Where a contractual duty of confidence is concerned, the court will apply the usual principles of contractual interpretation to determine the extent of the confidentiality obligations (Adinop at [38]).

90 Where an equitable duty of confidence is concerned, the court will need to consider the nature of interest involved before applying the appropriate test (Shanghai Afute Food and Beverage Management Co Ltd v Tan Swee Meng and others [2023] SGHC 34 at [100]).

(a) If there is a wrongful gain interest, the traditional approach in Coco v AN Clark (Engineers) Ltd [1969] RPC 41 (“Coco”) applies.

(b) If there is a wrongful loss interest, the modified approach in I-Admin (Singapore) Pte Ltd v Hong Ying Ting and others [2020] 1 SLR 1130 (“I-Admin”) applies.

91 Under the traditional approach in Coco, three elements must be satisfied:

(a) the information must possess the necessary quality of confidence;

(b) the information must have been imparted in circumstances importing an obligation of confidence; and

(c) there must have been unauthorised use of the information to the detriment of the party from whom the information originated.

92 Based on the modified approach in I-Admin:

(a) A presumption of a breach of confidence arises if the first two requirements of the traditional approach in Coco are met (ie. the relevant information possesses the necessary quality of confidence; and was imparted in circumstances importing an obligation of confidence).

(b) The presumption can be rebutted if the defendant can discharge its burden of proving that his conscience was unaffected (eg. if he came across the information by accident, was unaware of its confidential nature, or believed there to be a strong public interest in disclosing the information).

(c) The modified approach is limited to “taker” cases involving unauthorised acquisition of confidential information (Lim Oon Kuin and others v Rajah & Tann Singapore LLP and another appeal [2022] 2 SLR 280 (“Lim Oon Kuin”) at [41]). Based on the facts in I-Admin, “taker” cases would include a situation where an employee who has authorised access to his company’s database of confidential information surreptitiously downloads or copies (ie. “takes”) the information onto other media.

93 I will address an evidential issue relating to the KPMG Forensic Technology Services Report dated 10 May 2022 (“KPMG Report”)[note: 110] that Longitude relied on, before analysing whether Longitude has proven a breach of the Confidentiality Clause or an equitable duty of confidence.

It is unclear if the KPMG Report was prepared based on Ms Pillai’s Computer

94 The main evidence relied on by Longitude to establish the breach of the Confidentiality Clause or an equitable duty of confidence was the KPMG Report. Mr Eddie Toh (“Mr Toh”) gave factual (as opposed to expert) evidence on the contents of the KPMG Report on behalf of Longitude.

95 Unfortunately for Longitude, the KPMG Report provided limited assistance because it is unclear whether the KPMG Report was prepared based on the computer system that Ms Pillai had used as part of her work for Longitude.

96 First, Ms Pillai does not accept that the KPMG Report was based on her computer. In particular, she has pointed out that the KPMG Report indicated that files were deleted on 1 August 2021[note: 111] even though she was confident that she did not access her computer on 1 August 2021 as it was mere days before she gave birth to her child.[note: 112]

97 Second, the KPMG Report indicated that file activity started in 2020.[note: 113] However, Ms Pillai’s evidence was that she had been using her computer since June 2019.[note: 114]

98 Third, there were no clear indicators in the KPMG Report showing that the computer analysed was indeed the computer used by Ms Pillai. While the subject of the KPMG Report was a “HP Pavilion All-in-One 24-xa0072d”,[note: 115] Ms Pillai indicated that all of Longitude’s and Latitude’s computers were “HP” computers.[note: 116] Ms Pillai also testified that other computers belonging to Longitude and Latitude would bear a user profile for her,[note: 117] which was consistent with the KPMG Report that showed that the computer analysed reflected a separate user profile for a “sohwan”.[note: 118] This suggests that other “HP” computers used by Longitude or Latitude could reflect multiple user profiles; and it was not conclusive that the computer referred to in the KPMG Report was the one Ms Pillai used.

99 Consequently, there was insufficient evidence before the court to conclude that the KPMG Report was actually prepared based on Ms Pillai’s computer. This was a burden that Longitude bore and failed to discharge.

Longitude has failed to prove a breach of the Confidentiality Clause

100 Under the Confidentiality Clause, Ms Pillai was not entitled to divulge confidential information to any third parties or make use of Longitude’s confidential information for her own benefit or the benefit of others (Clause 10.2 of the Employment Contract). She was also required to surrender any confidential information at the termination of her employment (Clause 10.3 of the Employment Contract).

101 However, the Confidentiality Clause does not specify what constitutes confidential information. Instead, Clause 10.1 of the Employment Contract merely states that Ms Pillai would have “access to and be entrusted with information in respect of the business of the Company and its dealings transactions and affairs, all of which information is or may be confidential” [emphasis added]. In other words, not every piece of information she received as an employee of Longitude constituted confidential information.

102 As Longitude’s case is premised on Ms Pillai’s deletion of confidential information from her computer or refusal to return the information to Longitude,[note: 119] it must do the following to prove that she breached the Confidentiality Clause:

(a) identify the information in question and show that it was confidential in nature; and

(b) show that Ms Pillai failed to surrender the confidential information at the termination of her employment.

103 Based on the available evidence, I find that Longitude has failed to prove a breach of the Confidentiality Clause.

104 First, Longitude was unable to identify the confidential information that it was relying on.

(a) Aside from the KPMG Report (which Longitude has not proven was prepared based on Ms Pillai’s computer), Longitude has not provided any other evidence to support its claim.

(b) Even if I accepted that the KPMG Report was prepared based on Ms Pillai’s computer, Longitude has failed to give details of the specific confidential information or documents in question. The KPMG Report merely shows file paths relating to folders or documents that may have been deleted or copied. However, it does not show what these folders or documents are or how they are confidential in nature. Further, there is no evidential basis for Longitude’s unsubstantiated assertion that “[t]he information in the computer consists of financial information relating to [Longitude’s] customers, which is highly confidential and sensitive”.[note: 120]

(c) I am also mindful that Longitude has chosen not to specify the confidential documents that its claim was based on, even though I invited them to do so.[note: 121]

105 Second, there was no evidence that Ms Pillai failed to surrender any confidential information. Other than the KPMG Report, Longitude has not adduced any evidence that Ms Pillai deleted documents (or confidential information) from Longitude’s computer. Contrary to Longitude’s arguments, Ms Pillai’s testimony during cross-examination did not go so far as to concede that she deleted documents from Longitude’s computer.[note: 122] Further, while Ms Pillai admitted during cross-examination that she copied documents from Longitude’s computer onto an external storage media and disclosed some documents to the Inland Revenue Authority of Singapore and the Accounting and Corporate Regulatory Authority,[note: 123] it is unclear what these documents were and whether they were confidential in nature.

106 I therefore find that Longitude has failed to establish a breach of the Confidentiality Clause.

Longitude has failed to prove a breach of an equitable duty of confidence

107 Longitude has failed to specify the information that it relied on for this cause of action of a breach of an equitable duty of confidence, let alone how such information was confidential in nature (see [104] above); and has not discharged its burden of establishing the first element of the traditional approach in Coco.

108 Consequently, Longitude’s claim based on a breach of an equitable duty of confidence fails in relation to both a wrongful gain interest, which the traditional approach in Coco applies to; and a wrongful loss interest because the presumption of a breach of confidence under the modified approach in I-Admin does not arise since the first element of the traditional approach in Coco is not met, and the burden of rebutting the presumption did not shift to Ms Pillai.

109 For completeness, I allowed Longitude to rely on the causes of action based on a breach of the Confidentiality Clause and an equitable duty of confidence despite Ms Pillai’s objections on the ground that they were not pleaded.[note: 124] This is since:

(a) The material facts supporting the elements of a breach of the Confidentiality Clause or equitable duty of confidence were pleaded (How Weng Fan and others v Sengkang Town Council and other appeals [2023] 2 SLR 235 (“How Weng Fan”) at [19]). Longitude’s Statement of Claim referred to Ms Pillai’s obligations under the Confidentiality Clause; that she had received confidential information from Longitude; that she had failed to surrender the confidential information to Longitude upon the termination of her employment; and that she had breached her obligations of trust and confidence to Longitude.[note: 125] While Longitude could have pleaded its case with more clarity and precision, the fact remains that the material facts for both causes of action were set out in the Statement of Claim.

(b) Further, there would be no irreparable prejudice caused to Ms Pillai as she clearly knew that these claims had to be addressed and had the opportunity to do so (How Weng Fan at [20] and [25]). It was apparent from Mr Wee’s AEIC[note: 126] and Longitude’s opening statement at trial[note: 127] that Longitude’s claim related to a breach of confidence. Ms Pillai’s counsel also had the opportunity to cross-examine both Mr Wee[note: 128] and Mr Haeusler[note: 129] in relation to this issue.

Longitude has in any event not specified the nature and quantum of damages sought in relation to the alleged breach of the Confidentiality Clause or an equitable duty of confidence

110 Similar to its claim relating to the breach of the Handover Clause, Longitude’s position on the issue of loss arising from the alleged breach of the Confidentiality Clause or an equitable duty of confidence was unclear; and it chose not to address the court on the nature and quantum of damages sought even though I invited submissions on the same.[note: 130]

111 I therefore do not see how an award of damages would have been appropriate even if Longitude was able to establish a breach of the Confidentiality Clause or an equitable duty of confidence.

Issue 5: Ms Pillai was wrongfully dismissed by Longitude on the basis of her pregnancy

112 Ms Pillai asserts that she was dismissed by Longitude because she was pregnant. She also raises the possibility that she was dismissed because she did not follow Mr Haeusler’s instructions to perform acts that were in breach of statutory and regulatory requirements, or because of issues regarding sexual harassment from Mr Haeusler.[note: 131]

113 Longitude denies any wrongful dismissal and relies on the contractual notice period as the basis for her termination;[note: 132] and Mr Haeusler denies any form of sexual harassment.[note: 133]

The law

114 Under section 84(1)(b) of the Employment Act, a notice of dismissal given without sufficient cause by an employer to a female employee does not deprive her of any maternity benefits that she would be due under Part 9 of the Employment Act if the female employee has been certified by a medical practitioner as being pregnant and she has served her employer for a period of at least 3 months. Section 84(1)(b) states as follows:

Right to benefit unaffected by notice of dismissal given without sufficient cause

84.—(1) Without affecting sections 81 and 84A, a notice of dismissal given without sufficient cause by an employer to a female employee which —

…

(b) if given on or after 1 May 2013, is given at any time of her pregnancy (as certified by a medical practitioner before the notice of dismissal is given), where the female employee has served the employer for a period of 3 months or more immediately preceding the day the notice is given; or

…

does not have the effect of depriving her of any payment to which, but for that notice, she would have been entitled or would, on or before the date of her confinement, have become entitled to under this Part.

115 The purpose of section 84(1)(b) of the Employment Act is explained in the Second Reading of the Child Development Co-Savings (Amendment) Bill (see Singapore Parliamentary Debates, Official Report (8 April 2013), vol 90) when the then Acting Minister for Social and Family Development Mr Chan Chun Sing indicated:

From 1 May 2013, pregnant employees who have served an employer for at least three months and obtained a doctor’s certification of pregnancy prior to the notice of dismissal will be protected against dismissal without sufficient cause, or retrenchment, throughout their pregnancy. This means that employers will be required to compensate or reinstate pregnant employees with their full maternity leave benefits, if employers dismiss pregnant employees without sufficient cause or retrench them.

Sufficient cause for dismissal under section 84(1)(b) of the Employment Act

116 The Employment Act does not specify what constitutes sufficient cause for dismissal under section 84(1)(b); and there are no reported cases on the same.

117 I therefore turn to the Ministry of Manpower’s Tripartite Guidelines On Wrongful Dismissal (“Tripartite Guidelines”).

(a) The Tripartite Guidelines provide “illustrations to guide employers, employees, mediators, and adjudicators on what constitutes dismissals that are not wrongful and what constitutes wrongful dismissal under the Employment Act” (Tripartite Guidelines at [2]).

(b) Under section 20(7)(a) of the Employment Claims Act 2016 (2020 Rev Ed) (“Employment Claims Act”), the Employment Claims Tribunals are to have regard to the Tripartite Guidelines when deciding claims involving wrongful dismissal disputes, which includes those relating to section 84(1)(b) of the Employment Act (see section 2 read with the Third Schedule of the Employment Claims Act).

(c) While the Employment Act does not make specific reference to the applicability of the Tripartite Guidelines, I do not see any reason why the courts should not take them into account when dealing with claims for wrongful dismissal under section 84(1)(b) of the Employment Act. Finding otherwise would be illogical as it would lead to the adoption of different rules in respect of the same wrong between the courts and the Employment Claims Tribunals; and invite forum shopping by aggrieved parties in search for the court or tribunal that is most likely to provide them a favourable outcome for wrongful dismissal claims.

118 Taking into account the Tripartite Guidelines, there are a few categories that do not, in my view, constitute sufficient cause for the dismissal of a pregnant employee under section 84(1)(b) of the Employment Act. For the avoidance of doubt, these categories are not meant to be exhaustive, and the court will have to scrutinise the relevant facts before establishing whether there was sufficient cause.

(a) First, relying on a contractual notice period or paying salary in lieu thereof does not of itself constitute sufficient cause, and an employer must show something more. Paragraph 1 of the Tripartite Guidelines defines a “dismissal” as a termination with or without notice, including salary in lieu of notice; and paragraph 11 and Illustration 6 of the Tripartite Guidelines demonstrates that it is wrongful to dismiss a pregnant employee with notice to deprive her of her maternity benefits where: (i) the employer was unable to provide a legitimate reason for the dismissal; (ii) the employee was dismissed shortly after she informed her employer of her pregnancy; and (iii) the employer did not pay the employee her maternity benefits. This is a logical position to adopt, as it ensures that employers cannot circumvent and undermine the protection for women against wrongful dismissal during their pregnancy under section 84(1)(b) of the Employment Act by terminating a pregnant employee by giving contractual notice (or paying salary in lieu thereof) without any further substantiation or reason. In this regard, I note that section 86 of the Employment Act prevents an employer from contracting out of the provisions under Part 9 of the Employment Act.

(b) Second, retrenchment would not be sufficient cause, since section 84A(1)(b) of the Employment Act specifically states that a notice of dismissal given on the ground of redundancy or by reason of any reorganisation of her employer’s profession, business, trade or work, does not deprive her of any maternity benefits.

(c) Third, a dismissal without notice on the ground of misconduct would not constitute sufficient cause if the employer has not conducted “due inquiry” into the alleged misconduct (eg. theft, dishonesty, disorderly conduct at work, insubordination, or bringing the organisation into disrepute) (section 14 of the Employment Act; and Tripartite Guidelines at [5]). Conversely, an employer who dismisses a pregnant employee for misconduct, with or without notice, after there has been proper “due inquiry” would, in my view, be placed in a better evidential position when trying to persuade the court or tribunal that there was sufficient cause. In this regard, I reproduce the High Court’s findings in Long Kim Wing v LTX-Credence Singapore Pte Ltd [2017] SGHC 151 at [161], which explain the meaning of “due inquiry”:

It seems to me that the phrase “due inquiry” means something more than just the making of inquiries and the conduct of an investigation. Otherwise the word “inquiry” alone would suffice. The phrase suggests some sort of process in which the employee concerned is informed about the allegation(s) and the evidence against him so that he has an opportunity to defend himself by presenting his position, with or without other evidence. While the website of the MOM does not have the force of law, its guide that the employee concerned should have the opportunity to present his case is a useful one. That accords with notions of justice and fairness especially since serious consequences may follow. Furthermore, as already mentioned, the Defendant did not dispute that the Plaintiff should have an opportunity to present his case.

(d) Fourth, a dismissal due to discrimination (eg. against an employee’s age, race, gender, religion, marital status, family responsibilities or disability) would not be sufficient cause (Tripartite Guidelines at [9]-[10]).

(e) Fifth, a dismissal to punish an employee for exercising an employment right (eg. filing an employment related claim with the Tripartite Alliance for Dispute Management, or declining a request to work overtime) would not constitute sufficient cause (Tripartite Guidelines at [12]).

The burden of proof

119 The question then arises as to where the burden of proof lies.

120 In Noor Mohamed bin Mumtaz Shah v Apollo Enterprises Ltd (trading as Apollo Hotel Singapore) [2000] 1 SLR(R) 670 (“Noor Mohamed”), the High Court determined that an employee was wrongfully dismissed on the grounds of redundancy even though the employment was terminated with notice or payment of salary in lieu of notice; and found that the employer bore the onus of showing that the termination was not solely or mainly due to redundancy. [17] of the decision states:

The law in England is therefore as follows. If an employee is dismissed in circumstances where a redundancy results and that employee is entitled to redundancy payments were he retrenched on account of redundancy, there is a presumption that the dismissal is on that ground. The onus then shifts to the employer to show that it was not solely or mainly due to redundancy. I see no reason why the same position should not obtain in Singapore.

121 The findings in Noor Mohamed suggest a shifting of the evidential burden of proof as opposed to the legal burden of proof. The distinction between these two burdens was explained by the Court of Appeal in Britestone Pte Ltd v Smith & Associates Far East Ltd [2007] 4 SLR(R) 855, which states at [60]:

… at the start of the plaintiff’s case, the legal burden of proving the existence of any relevant fact that the plaintiff must prove and the evidential burden of adducing some (not inherently incredible) evidence of the existence of such fact coincide. Upon adduction of that evidence, the evidential burden shifts to the defendant, as the case may be, to adduce some evidence in rebuttal. If no evidence in rebuttal is adduced, the court may conclude from the evidence of the plaintiff that the legal burden is also discharged and making a finding on the fact against the defendant. If, on the other hand, evidence in rebuttal is adduced, the evidential burden shifts back to the plaintiff. If, ultimately, the evidential burden comes to rest on the defendant, the legal burden of proof of that relevant fact would have been discharged by the plaintiff.

122 In the present case, Ms Pillai bears the legal burden of proving that she was wrongfully dismissed by Longitude on the grounds of her pregnancy. The initial evidential burden falls on her to adduce some (not inherently incredible) evidence that her dismissal was due to her pregnancy. Thereafter, the evidential burden shifts to Longitude to rebut Ms Pillai’s position – this would involve Longitude adducing evidence to show the purported reasons for the dismissal.

123 For completeness, it is apt to point out that under section 27(2)(c) of the Employment Claims Act, the burden of proving that a pregnant employee was dismissed with sufficient cause in relation to claims under section 84(1)(b) of the Employment Act is on the employer. However, this only applies to proceedings under the Employment Claims Act before the Employment Claims Tribunals or the General Division of the High Court; and not to claims for wrongful dismissal in court proceedings such as the present matter. Consequently, section 27(2)(c) of the Employment Claims Act has no impact on my decision in this case.

Ms Pillai’s pregnancy

124 It was not disputed that Longitude and Mr Haeusler were aware of Ms Pillai’s pregnancy when the Termination Letter was issued.

125 Based on Ms Pillai’s evidence:

(a) She was not given any reason for the termination of her employment aside from Longitude’s reliance on the Termination With Notice Clause.[note: 134]

(b) The only reason she could think of for Longitude wanting to terminate her employment was that she had become pregnant.[note: 135]

(c) Mr Haeusler reacted negatively when he first found out that Ms Pillai was pregnant in December 2020. He told her that it was not good to have a baby in Singapore; and suggested that she abort the child. He also made life difficult for her.[note: 136]

126 I find that Ms Pillai has discharged her initial evidential burden to adduce some (not inherently incredible) evidence that her dismissal was because of her pregnancy; and the evidential burden shifted to Longitude to rebut Ms Pillai’s position.

There is no other reasonable explanation for the termination of Ms Pillai’s employment

127 The Termination Letter was titled “Notice Of Termination With Salary In Lieu Of Notice” and merely referred to the Termination With Notice Clause as the basis for terminating Ms Pillai’s employment. It did not set out any other reasons for Ms Pillai’s dismissal.

128 As set out at [118(a)] above, relying on a contractual notice period or paying salary in lieu thereof does not of itself constitute sufficient cause under section 84(1)(b) of the Employment Act, and an employer must show something more.

129 Based on the evidence before the court, I find that Longitude and Mr Haeusler have not shown any reasons that amount to sufficient cause for terminating Ms Pillai’s employment.

(a) First, Mr Haeusler’s evidence during trial indicated that Ms Pillai’s employment was being terminated based on the Termination With Notice Clause rather than for performance related reasons. This is apparent from the following exchange during the cross-examination of Mr Haeusler:[note: 137]

Q: So you would agree with me that if it was a termination due to performance of an employee, you would not be giving---firstly, you would not be giving the employee salary in lieu of termination because it was termination for performance.

A: It was an ordinary termination and the termination does not need to specify the reasons why it happened. There was no right of lifelong employment. And if you terminate an employee under an ordinary termination, then the in lieu of salary payments is part of the package. The bonus was purely out of goodwill, because the bonus is in the discretion of the management and who is the management in this case obviously, the shareholder.

(b) Second, I was not convinced by Mr Haeusler’s evidence during trial that there was tension between Ms Pillai and himself that led to his decision to terminate her employment,[note: 138] because this contradicted his concession that her employment was not being terminated for performance related reasons (see [129(a)] immediately above) and was in any event not adequately proven.

(i) Mr Haeusler pointed to an alleged disagreement in March 2020 concerning the approach to adopt during a mediation of a dispute with a former employee.[note: 139] The details of this incident were however lacking and not adequately proven. Further, Mr Haeusler conceded that Ms Pillai ultimately acted in accordance with his instructions and that they had agreed to learn from the incident and move on from the same,[note: 140] which makes it doubtful that this was a reason behind the termination of her employment more than a year later on 27 April 2021.

(ii) He pointed to how he was dissatisfied that Ms Pillai had threatened to terminate the employment of Longitude’s employee Ms Joey Ling and that this led to Ms Ling’s resignation sometime in January 2021.[note: 141] There was however no evidence of how this threat was allegedly made, and Mr Haeusler ultimately conceded during cross-examination that he could only assume that Ms Ling resigned because of a disagreement with Ms Pillai.[note: 142] His position was therefore speculative and not adequately proven.

(iii) He alleged that Ms Pillai was having problems with other employees in January 2021.[note: 143] There was however no contemporaneous evidence of such problems as Mr Haeusler accepted that he did not send any emails to Ms Pillai about this even though he “probably should have done [so]” by issuing reminder letters and warning letters.[note: 144] There was therefore insufficient evidence of this allegation.

(c) Third, while Mr Wee’s evidence indicated that Longitude faced some difficulties working with Ms Pillai, he chose not to elaborate on the same and merely relied on the fact that Ms Pillai’s employment was terminated based on the Termination With Notice Clause. This is evident from Mr Wee’s AEIC, which states:

66. There is no basis for the claim of wrongful dismissal or her fantastic claims of losses. We had in fact experienced difficulties in working with [Ms Pillai], which does not need to be dealt with in detail, but in any case, we terminated her in accordance with her employment contract. [Ms Pillai] had been terminated in accordance with the terms of Clause 11.1 of her employment contract, that is, by giving her three (3) months’ notice in writing to her …

The absence of any elaboration on the alleged difficulties suggests that Longitude considered them insignificant and unimportant insofar as these proceedings were concerned; and also means that there was no evidential basis to show that they constituted sufficient cause.

(d) Fourth, Ms Pillai’s own suggestion that she may have been dismissed because she did not follow Mr Haeusler’s instructions to perform acts that were in breach of statutory and regulatory requirements did not constitute sufficient cause.[note: 145] Ms Pillai’s evidence on this was not challenged during cross-examination. In this regard, I accept Ms Pillai’s argument that her decision to abstain from performing acts that were in breach of statutory and regulatory requirements was akin to the exercise of an employment right referred to in the Tripartite Guidelines at [12];[note: 146] and that a dismissal arising from the same would not constitute sufficient cause (see [118(e)] above).

(e) Lastly, I note that Longitude and Mr Haeusler have, in their submissions, chosen not to specify any reasons for terminating Ms Pillai’s employment with notice, despite being invited by the court to address the same.[note: 147]

130 Consequently, I find that there was no sufficient cause for Longitude to terminate Ms Pillai’s employment; and Ms Pillai has discharged the legal burden of proving that she was wrongfully dismissed by Longitude on the grounds of her pregnancy.

Ms Pillai’s allegations regarding Mr Haeusler’s harassing conduct

131 Ms Pillai raised Mr Haeusler’s harassing conduct as part of the reason her employment was terminated.[note: 148]

132 As I have found that Ms Pillai’s employment was terminated because of her pregnancy, it is not necessary for me to decide whether there was sexual harassment in this case. Indeed, Ms Pillai’s solicitors did not make detailed arguments on how the alleged sexual harassment as a standalone ground led to the termination of her employment.

133 Nevertheless, I make an observation on a particular incident that was borne out in the evidence:

(a) Mr Haeusler sent two photographs of himself to Ms Pillai while he was serving his COVID-19 quarantine. The photographs were selfies that were taken by Mr Haeusler in his hotel washroom and showed him topless in shorts.[note: 149]

(b) The photographs were sent in response to an innocuous question by Ms Pillai about Mr Haeusler’s swab test results during his COVID-19 quarantine, even though they had nothing to do with his swab test results.

(c) This conduct was inappropriate and unacceptable in the ordinary context of an employer-employee relationship or a shareholder-director relationship (such as in the present case). In this regard, it is peculiar that while Mr Haeusler accepted during cross-examination that it would not be normal for a shareholder to send such photographs to a director in “big companies”,[note: 150] he found such an act appropriate in the context of a smaller company like Longitude.

Ms Pillai is entitled to damages as a result of her wrongful dismissal

134 Ms Pillai’s claim for damages covers: (a) unpaid salary of $43,500 for the 3 months’ notice period from 27 April 2021; (b) maternity and childcare leave benefits of $62,350 for 118 days; (c) encashment of annual leave for 49 days amounting to $35,525; (d) 3 months’ bonus payment of $43,500; (e) employer Central Provident Fund (“CPF”) contributions of $34,914; and (f) an annual wage supplement of $14,500.

135 I find that Ms Pillai is entitled to payment of $122,123.93, plus interest at the rate of 5.33% per annum from 27 April 2021 (being the date her employment was terminated) to the date of judgment.

136 First, she is entitled to $43,500, being the salary in lieu of notice for the 3 months’ notice period under the Termination With Notice Clause for the period from the date of termination on 27 April 2021.[note: 151] This payment is consistent with section 11(1) of the Employment Act.

137 Second, she is entitled to $26,769.20 as payment for 8 weeks of the maternity benefit period under section 76 of the Employment Act on the basis of $3,346.15 per week.

(a) As Ms Pillai’s child is not a Singaporean citizen,[note: 152] she is only entitled to payment of 8 weeks of the maternity benefit period under section 76(1A) of the Employment Act.

(b) The gross rate of pay per week is $3,346.15:

138 Third, she should be paid $25,430.74 as encashment of her balance leave on the basis of $669.23 per day for a total of 38 days.

(a) Under section 88A(8) of the Employment Act, “the employer must pay the employee the employee’s gross rate of pay in respect of every day of that leave not taken by the employee” if the dismissal is not based on misconduct.

(b) I find that Ms Pillai was entitled to 38 days of leave as of the date of the termination of her employment on 27 April 2021. This takes into account that: (i) Clause 6.1 of the Employment Contract specified that she was entitled to paid annual leave of 25 working days per calendar year; (ii) Mr Haeusler had agreed for all outstanding leave in 2020 to be carried forward to 2021;[note: 153] and (iii) she had a balance of 24 days leave in 2020 as her leave entitlement for 2020 was 25 days and she only took 1 day of leave,[note: 154] while her leave entitlement for 2021 would have been pro-rated to 14 days for the period of 208 days from 1 January 2021 till 27 July 2021 (the date the 3 months’ notice period would have expired). In this regard, I disagreed with Ms Pillai that she should be entitled to the full 25 days of leave for 2021 since she did not complete her employment for the whole year.

(c) The gross rate of pay per day is $669.23:

139 Fourth, Ms Pillai is entitled to the bonus of $15,000 that Longitude has declared in the Termination Letter that states: “Please be informed that the Company is giving you a bonus of S$15,000 for your contributions over the last year of service”.[note: 155] She is however not entitled to the bonus of 3 months amounting to $43,500 that she has claimed, since any further bonuses for 2021 would be at Longitude’s discretion under Clause 4.4 of the Employment Contract that states “The company may pay an additional bonus at its own discretion”; and Longitude’s past declaration of a bonus of 3 months for Ms Pillai for 2020 is not indicative or determinative of what the bonus would have been for 2021.[note: 156]

140 Fifth, Longitude needs to make payment of $11,423.99 in employer CPF contributions.

(a) Under section 7 of the Central Provident Fund Act 1953 (2020 Rev Ed) (“CPF Act”) read with the First Schedule, Longitude was required to contribute a further 17% in CPF contributions for Ms Pillai’s salary. This is payable on the maternity leave benefits of $26,769.20, the encashment of leave of $25,430.74 and the bonus of $15,000; but not on salary in lieu of notice.

(b) The additional employer’s CPF contribution that Longitude would have to pay Ms Pillai is therefore $11,423.99 (being 17% x $67,199.94).

(c) For completeness, I note that this figure is within the contribution limit for additional wages (ie. the additional wage ceiling) under the CPF Act.

141 Ms Pillai was however not entitled to any annual wage supplement for 2021 because she did not complete a full year of service and the annual wage supplement (13th month salary) under Clause 4.2 of the Employment Contract was only due to be paid on 31 December each year.

142 To sum up Issue 5, Ms Pillai was wrongfully dismissed by Longitude due to her pregnancy and is entitled to payment of $122,123.93, plus interest at the rate of 5.33% per annum from 27 April 2021 (being the date her employment was terminated) to the date of judgment.

Issue 6: There was a conspiracy by unlawful means between Longitude and Mr Haeusler to cause damage to Ms Pillai

143 Ms Pillai’s position is that Longitude and Mr Haeusler conspired to wrongfully dismiss her from Longitude’s employment.[note: 157]

144 Longitude’s and Mr Haeusler’s position is that Ms Pillai has not adequately pleaded her claim in conspiracy and that it is in any event devoid of merit.[note: 158]

The law

145 It is settled law that a conspiracy can be between a company and its controlling director (Nagase Singapore Pte Ltd v Ching Kai Huat and others [2008] 1 SLR(R) 80 (“Nagase”) at [22]).

146 To prove a claim of conspiracy by unlawful means, the following elements must be satisfied: (a) a combination of two or more persons and an agreement between them to do certain acts; (b) the conspirators intended to cause damage or injury to the other party by those acts; (c) the acts were unlawful; (d) the acts were performed in furtherance of the agreement; and (e) damage was suffered by the other party (EFT Holdings, Inc and another v Marinteknik Shipbuilders (S) Pte Ltd and another [2014] 1 SLR 860 (“EFT Holdings”) at [112]; Nagase at [23]).

147 The standard of proof for establishing a conspiracy is the civil standard based on the balance of probabilities. However, where such an allegation is made, more evidence is required than would be in an ordinary civil case (Wu Yang Construction Group Ltd v Zhejiang Jinyi Group Co, Ltd and others [2006] 4 SLR(R) 451 at [94]-[95]).

Longitude and Mr Haeusler are jointly and severally liable to Ms Pillai for damages suffered on account of the conspiracy

148 Ms Pillai has established all the five elements required to prove a claim of conspiracy by unlawful means.

149 The first and second elements are satisfied. There was an agreement between Mr Haeusler and Longitude to cause damage or injure Ms Pillai by terminating her employment based on the Termination With Notice Clause when she was pregnant, which deprived her of benefits and payments that she was entitled to. The agreement is established by attributing Mr Haeusler’s mental state (as a de facto director and controlling mind of Longitude) to Longitude (The Wellness Group Pte Ltd and another v OSIM International Ltd and others and another suit [2016] 3 SLR 729 at [209]). In this regard, the relevant facts and findings surrounding the wrongful dismissal and showing that it was Mr Haeusler who made the decision have been set out at [25(e)] above and under Issue 5, and need not be repeated here. Alternatively, the agreement can be seen to exist between Mr Haeusler and Longitude by virtue of its new director, Mr Wee, who replaced Mr Pillai as Longitude’s director right before the Termination Letter was issued on 27 April 2021.[note: 159]

150 The third and fourth elements are satisfied. The termination of Ms Pillai’s employment based on the Termination With Notice Clause and without any sufficient cause when she was pregnant was unlawful as it was contrary to section 84(1)(b) of the Employment Act (see [118(a)] above); and it was clear that Ms Pillai’s employment was terminated in furtherance of Longitude’s and Mr Haeusler’s agreement.

151 The fifth element is also satisfied. Ms Pillai has clearly suffered damage in the form of the benefits and payments she was deprived of because of the wrongful dismissal. The damages she is entitled to relates to the $122,123.93 payable to her as result of her wrongful dismissal (see [135]-[140] above), less the amount of $58,500 that Longitude had offered to pay Ms Pillai in the Termination Letter (which comprised $43,500 in salary in lieu of notice and the bonus of $15,000). The latter must be excluded as they are not losses suffered on account of the conspiracy in question – they cannot be characterised as amounts that Longitude and Mr Haeusler intended to deprive Ms Pillai of under the conspiracy since Longitude already offered to pay her the same.

152 Consequently, Mr Haeusler is jointly and severally liable with Longitude to pay $63,623.93 to Ms Pillai, plus interest at the rate of 5.33% per annum from 27 April 2021 (being the date her employment was terminated) to the date of judgment. For the avoidance of doubt, this sum of $63,623.93 is part of the $122,123.93 that Longitude is liable to pay Ms Pillai.

153 In this regard, I find that Mr Haeusler is not entitled to rely on the principle in Said v Butt [1920] 2 KB 497, which provides that a director who acted bona fide within the scope of his authority would be immune from tortious liability (PT Sandipala Arthaputra & Ors v ST Microelectronics Asia Pacific Pte Ltd & Ors [2018] SGCA 17; [2018] 1 SLR 818 at [53] and [66]). On the facts of the case, I do not see how the decision to terminate Ms Pillai’s employment was in the best interest of Longitude since the dismissal was in breach of section 84(1)(b) of the Employment Act; and Longitude’s own position is that after Ms Pillai’s employment was terminated, it faced difficulties in completing its work assignments for Latitude (see [82] above).

154 I also disagree with Mr Haeusler’s argument that Ms Pillai has not adequately pleaded her claim against him in relation to the alleged conspiracy. It is evident from Ms Pillai’s Defence and Counterclaim that the material facts to establish the elements of conspiracy were adequately pleaded.[note: 160]

Conclusion

155 In summary:

(a) I dismiss Longitude’s claims against Ms Pillai. I find that (i) Ms Pillai did not misappropriate $100,500 from Longitude; (ii) while Ms Pillai breached the Handover Clause between 27 April 2021 and 24 August 2021, Longitude has not proven any quantifiable loss arising from the breach; and (iii) Longitude has failed to discharge its burden of proving that Ms Pillai breached the Confidentiality Clause or an equitable duty of confidence.

(b) I grant Ms Pillai’s counterclaim against Longitude and Mr Haeusler. Ms Pillai was wrongfully dismissed from her employment due to her pregnancy; and there was a conspiracy by unlawful means between Longitude and Mr Haeusler to cause damage to Ms Pillai. Longitude and Mr Haeusler are therefore jointly and severally liable to pay Ms Pillai $63,623.93, plus interest at the rate of 5.33% per annum from 27 April 2021 to the date of judgment; and Longitude is liable to pay her a further sum of $58,500, plus interest at the rate of 5.33% per annum from 27 April 2021 to the date of judgment.

156 The parties are to file and exchange written submissions on the issue of costs (limited to 10 pages) within 14 days from the date of this judgment.[Context] [Hide Context]

^{[note: 1]}Section 84 of the Employment Act 1968 (2020 Rev Ed) (“Employment Act”).

^{[note: 2]}Mr Wee’s AEIC at [9]-[13].

^{[note: 3]}Ms Pillai’s Defence and Counterclaim (“DCC”) at [36]; Mr Haeusler’s Defence to Counterclaim at [14].

^{[note: 4]}1TRANS_66:29-1TRANS_67:9. *[Day of Trial]TRANS_[PDF Page Number]:[Lines].

^{[note: 5]}1TRANS_70:1-5.

^{[note: 6]}1TRANS_72:10-27; 1TRANS_94:9-12.

^{[note: 7]}Ms Pillai’s AEIC at page 32.

^{[note: 8]}Ms Pillai’s AEIC at pages 24-31.

^{[note: 9]}Mr Wee’s AEIC at [18].

^{[note: 10]}Ms Pillai’s AEIC at [7].

^{[note: 11]}Mr Wee’s AEIC at [51].

^{[note: 12]}Ms Pillai’s AEIC at page 33-35.

^{[note: 13]}1TRANS_19:27-1TRANS_20:5; 2TRANS_102:11-17.

^{[note: 14]}Mr Haeusler’s Defence to Counterclaim at [9].

^{[note: 15]}Longitude’s Reply at [15].

^{[note: 16]}Statement of Claim (“SOC”) at page 9.

^{[note: 17]}Ms Pillai’s DCC at [27].

^{[note: 18]}Ms Pillai’s DCC at [38].

^{[note: 19]}Mr Haeusler’s Defence to Counterclaim at [14]-[15].

^{[note: 20]}Mr Wee’s AEIC at [17].

^{[note: 21]}Ms Pillai’s DCC at [36].

^{[note: 22]}Ms Pillai’s AEIC at pages 104-106.

^{[note: 23]}Ms Pillai’s AEIC at page 67, 105.

^{[note: 24]}Ms Pillai’s AEIC at pages 72-76.

^{[note: 25]}Ms Pillai’s AEIC at pages 84-95.

^{[note: 26]}Mr Wee’s AEIC at page 388.

^{[note: 27]}3TRANS_62:18-26; 3TRANS_71:27-3TRANS_72:4; 3TRANS_101:13-21.

^{[note: 28]}Ms Pillai’s AEIC at page 31.

^{[note: 29]}Ms Pillai’s AEIC at pages 131-135.

^{[note: 30]}3TRANS_53:6-9.

^{[note: 31]}3TRANS_54:5-3TRANS_55:6.

^{[note: 32]}Ms Pillai’s AEIC at page 145-146.

^{[note: 33]}Ms Pillai’s AEIC at page 148-151.

^{[note: 34]}Ms Pillai’s AEIC at pages 144, 178-182.

^{[note: 35]}Mr Haeusler’s Defence to Counterclaim at [4].

^{[note: 36]}Ms Pillai’s AEIC at page 74.

^{[note: 37]}3TRANS_36:17-3TRANS_38:21.

^{[note: 38]}1TRANS_94:9-12.

^{[note: 39]}Ms Pillai’s AEIC at pages 108-125, 167A-167E, 168-171.

^{[note: 40]}SOC at [19]-[20].

^{[note: 41]}Ms Pillai’s AEIC at [20]-[29].

^{[note: 42]}Ms Pillai’s AEIC at page 59.

^{[note: 43]}3TRANS_88:21-31.

^{[note: 44]}Ms Pillai’s AEIC at pages 50-58.

^{[note: 45]}Ms Pillai’s AEIC at [23]-[25].

^{[note: 46]}Ms Pillai’s AEIC at pages 61-62.

^{[note: 47]}Ms Pillai’s AEIC at pages 50-52.

^{[note: 48]}3TRANS_90:23-3TRANS_91:10.

^{[note: 49]}3TRANS_90:23-3TRANS_91:10.

^{[note: 50]}3TRANS_105:15-16.

^{[note: 51]}Ms Pillai’s AEIC at page 50.

^{[note: 52]}2TRANS_27:4-16; 2TRANS_97:22-32; 2TRANS_108:1-5.

^{[note: 53]}Longitude’s and Mr Haeusler’s Closing Submissions at [43]-[45].

^{[note: 54]}2TRANS_94:13-2TRANS_95:16.

^{[note: 55]}2TRANS_97:12-21.

^{[note: 56]}Longitude’s and Mr Haeusler’s Closing Submissions at [68]-[69].

^{[note: 57]}Ms Pillai’s AEIC at page 63.

^{[note: 58]}Longitude’s and Mr Haeusler’s Closing Submissions at [51]-[55].

^{[note: 59]}Ms Pillai’s AEIC at pages 60-62.

^{[note: 60]}1TRANS_33-1TRANS_40.

^{[note: 61]}1TRANS_35:12-14.

^{[note: 62]}1TRANS_43:24-1TRANS_44:7.

^{[note: 63]}Ms Pillai’s AEIC at [23]-[25].

^{[note: 64]}4TRANS_35:1-25; 4TRANS_51:1-6; 4TRANS_53:4-25.

^{[note: 65]}Longitude’s and Mr Haeusler’s Closing Submissions at [60(a)], [63] and [69].

^{[note: 66]}D&CC at [13].

^{[note: 67]}Longitude’s and Mr Haeusler’s Closing Submissions at [60(b)].

^{[note: 68]}Longitude’s and Mr Haeusler’s Closing Submissions at [60(c)], [60(d)] and [62].

^{[note: 69]}DBD_23-26.

^{[note: 70]}Ms Pillai’s affidavit dated 6 July 2021 at [30].

^{[note: 71]}Longitude’s and Mr Haeusler’s Closing Submissions at [79].

^{[note: 72]}2TRANS_103:23-2TRANS_104:6.

^{[note: 73]}2TRANS_106:17-31; 2TRANS_107:10-14.

^{[note: 74]}Longitude’s and Mr Haeusler’s Closing Submissions at [66].

^{[note: 75]}Longitude’s and Mr Haeusler’s Closing Submissions at [72].

^{[note: 76]}Ms Pillai’s AEIC at pages 29, 31, 56 and 57.

^{[note: 77]}Ms Pillai’s AEIC at page 63.

^{[note: 78]}4TRANS_49:15-19.

^{[note: 79]}1TRANS_37:23-25; 3TRANS_93:15-32; Longitude’s and Mr Haeusler’s Closing Submissions at [70].

^{[note: 80]}Ms Pillai’s AEIC at [23]-[25].

^{[note: 81]}SOC at [12]; Mr Wee’s AEIC at [19]-[20] and [33].

^{[note: 82]}Mr Wee’s AEIC pages 43-108.

^{[note: 83]}2TRANS_45:8-29.

^{[note: 84]}2TRANS_41:4-7; 3TRANS_80:27-3TRANS_81:11.

^{[note: 85]}Mr Wee’s AEIC at pages 43-58, 64-76, 86-90, 92-101, 104-108.

^{[note: 86]}2TRANS_40:31-2TRANS_41:3; 2TRANS_42:6-30.

^{[note: 87]}2TRANS_29:18-2TRANS_30:2.

^{[note: 88]}3TRANS_80:27-3TRANS_81:11.

^{[note: 89]}Ms Pillai’s AEIC at [13] and page 44.

^{[note: 90]}Ms Pillai’s DCC at [2]; 4TRANS_73:16-4TRANS_74:29.

^{[note: 91]}3TRANS_82:3-19.

^{[note: 92]}Ms Pillai’s AEIC at page 49; 4TRANS_70:21-25.

^{[note: 93]}2TRANS_39:25-2TRANS_40:4; 2TRANS_50:31-2TRANS_51:29.

^{[note: 94]}2TRANS_44:8-2TRANS_45:29.

^{[note: 95]}3TRANS_75:30-3TRANS_76:11.

^{[note: 96]}2TRANS_88:12-13; Ms Pillai’s AEIC at [16] and page 49.

^{[note: 97]}Ms Pillai’s AEIC at page 49.

^{[note: 98]}Correspondence from Courts dated 25 January 2024.

^{[note: 99]}3PBD_3-16.

^{[note: 100]}Mr Wee’s AEIC at [36]-[37]; 2TRANS_72:31-2TRANS_73:10.

^{[note: 101]}2TRANS_70:29-2TRANS_71:8.

^{[note: 102]}2TRANS_71:5-8

^{[note: 103]}2TRANS_68:3-7.

^{[note: 104]}2TRANS_73:5-2TRANS_74:4.

^{[note: 105]}Mr Wee’s AEIC at [36]-[37].

^{[note: 106]}2TRANS_69:30-32; 2TRANS_75: 10-31.

^{[note: 107]}Mr Wee’s AEIC at [38]-[47]; 2TRANS_88:5-13; Longitude’s and Mr Haeusler’s Reply Submissions at [18].

^{[note: 108]}Longitude’s and Mr Haeusler’s Reply Submissions at [12]-[19].

^{[note: 109]}Ms Pillai’s Closing Submissions at [43]-[52].

^{[note: 110]}1PBD_145-391.

^{[note: 111]}1PBD_389-390.

^{[note: 112]}4TRANS_82:27-4TRANS_83:2.

^{[note: 113]}1PBD_153-155.

^{[note: 114]}4TRANS_91:11-22.

^{[note: 115]}1PBD_149.

^{[note: 116]}4TRANS_82:4-6.

^{[note: 117]}4TRANS_86:21-32.

^{[note: 118]}1PBD_151.

^{[note: 119]}Mr Wee’s AEIC at [38]-[47]; 2TRANS_88:5-13; Longitude’s and Mr Haeusler’s Reply Submissions at [18].

^{[note: 120]}Longitude’s and Mr Haeusler’s Closing Submissions at [117].

^{[note: 121]}5TRANS_35:1-2.

^{[note: 122]}Longitude’s and Mr Haeusler’s Closing Submissions at [108]-[111].

^{[note: 123]}4TRANS_95:10-16; 4TRANS_96:28-29; 4TRANS_97:23-27.

^{[note: 124]}Ms Pillai’s Closing Submissions at [43].

^{[note: 125]}SOC at [3], [4] and [21].

^{[note: 126]}Mr Wee’s AEIC at [38]-[47].

^{[note: 127]}1TRANS_16:30-1TRANS_17:5.

^{[note: 128]}2TRANS_80:30-2TRANS_88:11.

^{[note: 129]}3TRANS_79:7-83:9.

^{[note: 130]}Correspondence from Courts dated 25 January 2024.

^{[note: 131]}Ms Pillai’s DCC at [19]-[27]; Ms Pillai’s AEIC at [41]-[77].

^{[note: 132]}1TRANS_16:8-11.

^{[note: 133]}Mr Haeusler’s Defence to Counterclaim at [5]-[12].

^{[note: 134]}5TRANS_8:19-5TRANS:9:11.

^{[note: 135]}5TRANS_9:10-11.

^{[note: 136]}Ms Pillai’s AEIC at [66], [72]-[73]; 5TRANS_9:26-5TRANS_10:32.

^{[note: 137]}3TRANS_72:9-20.

^{[note: 138]}3TRANS_62:18-66:15; 3TRANS_101:13-21.

^{[note: 139]}3TRANS_62:22-3TRANS_64:10.

^{[note: 140]}3TRANS_63:25-3TRANS_64:10.

^{[note: 141]}3TRANS_64:11-3TRANS_65:28

^{[note: 142]}3TRANS_65:24-28.

^{[note: 143]}3TRANS_66:4-15.

^{[note: 144]}3TRANS_66:11-15.

^{[note: 145]}Ms Pillai’s AEIC at [41]-[47].

^{[note: 146]}Ms Pillai’s Reply Submissions at [13].

^{[note: 147]}Correspondence from Courts dated 25 January 2024.

^{[note: 148]}Ms Pillai’s DCC at [23]-[27].

^{[note: 149]}3PBD_22.

^{[note: 150]}3TRANS_99:14-20.

^{[note: 151]}Ms Pillai’s AEIC at page 27.

^{[note: 152]}4TRANS_109:14-21.

^{[note: 153]}DBD_160.

^{[note: 154]}5TRANS_7:10-18.

^{[note: 155]}Ms Pillai’s AEIC at page 33.

^{[note: 156]}Ms Pillai’s Reply Submissions at [9]-[10].

^{[note: 157]}Ms Pillai’s Reply Submissions at [14]-[17].

^{[note: 158]}Longitude’s and Mr Haeusler’s Closing Submissions at [142]-[144]; Longitude’s and Mr Haeusler’s Reply Submissions at [22]-[24].

^{[note: 159]}3TRANS_ 73:4-5.

^{[note: 160]}Ms Pillai’s DCC at [35]-[40].