Dr Rachel Leow’s book, Corporate Attribution in Private Law (Hart Publishing, 2022) was cited by the High Court of Singapore in Axis Megalink Sdn Bhd v Far East Mining Pte Ltd [2023] SGHC 243.
In the case, Axis claimed to be entitled to an ‘arranger fee’ for services it had provided to Far East Mining. The services, rendered under an engagement letter, had been provided in connection with Far East Mining’s conduct of a reverse takeover of another company. Far East Mining refused to pay, alleging that it had entered into the engagement letter not knowing that Axis’s beneficial owner was a Mr Lee, who was also involved in the target of the takeover.
Goh Yihan JC dismissed Axis’s claim, accepting that Far East Mining did not know that Mr Lee was the beneficial owner of Axis at the time that it entered into the engagement letter. The legal effect of this finding was that the engagement letter was void for unilateral mistake.
A key question was whether the knowledge of Far East Mining’s group financial controller, a Ms Chong, could be attributed to Far East Mining. Goh Yihan JC considered and partially applied Dr Leow’s analysis in concluding that Ms Chong’s knowledge could not be attributed:
“51 Turning to Ms Chong, I find that her knowledge of Axis’s beneficial ownership should not be attributed to FEM as there is no connection between the nature of the acts which she was empowered to do for FEM and the nature of the information that she received. While case law has not settled on a single test for attribution, I observe that an academic commentator has suggested that “[w]hat is important is whether the knowledge is material to the powers allocated or delegated to the knowledge-holder. The wider the scope of such powers, the more likely that knowledge will be attributable” (see Rachel Leow, “Attributing Knowledge” in Corporate Attribution in Private Law (Hart Publishing, 2022) ch 6 at p 162). This suggests that there must be some connection between the scope of the knowledge-holder’s powers to act for the principal, and the content of the knowledge that is sought to be attributed to the principal.
52 While this begs the question as to the degree of the connection required, I do not think that it is necessary to express a conclusive view on this question in this case. This is because, in so far as the Engagement Letter is concerned, there is no evidence that Ms Chong was given any powers by FEM. Indeed, Ms Chong’s unchallenged evidence was that her role was merely to “assist [Mr Lim] with documentation, records and paperwork required for the proposed listing exercise of FEM and/or its mining subsidiary and perform day to day operations for FEM and other ad hoc assignments as required”. Since Ms Chong’s responsibilities were limited to those of an administrative nature and did not include a power to contract on behalf of FEM, there is no reason why her knowledge should be attributed to FEM for the purpose of ascertaining FEM’s state of mind when it entered into the Engagement Letter.”