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13 January 2021

Recasting Brickenden: Sim Poh Ping v Winsta Holding Pte Ltd [2020] 1 SLR 1199

Jonathan Tian Heng Lee

Published on e-First 13 January 2021

Abstract:
In an admirably comprehensive judgment, the Court of Appeal of Singapore in Sim Poh Ping v Winsta Holding Pte Ltd [2020] 1 SLR 1199 has definitively recast the causation test for equitable compensation for non-custodial breaches of fiduciary duties – the burden is on the errant fiduciary to rebut the presumption that loss would not have been suffered but for his breach – in an apparent attempt to soften the perceived hard edges of the Privy Council’s judgment in Brickenden v London Loan & Savings Co [1934] 3 DLR 465 (“Brickenden”). It will be argued, however, that had the court confronted the more fundamental issue of principle, namely whether fiduciary duties are truly proscriptive in Singapore, and accepted the orthodox position that they are, it would have appreciated that the failure to disclose is not a breach of fiduciary duty and the approach in Brickenden is in fact entirely consistent with principle and policy.