Kupetz & Ors v Terraform Labs PTE LTD & Ors -[2026] SGCA(I) 1- (06 March 2026)

Key Facts

Transaction Type

Issues

• Whether the Judge erred in assessing the quantum of damages awarded to specific representative appellants including Mr Epstein, Mr Arun, Mr Tan, and Mr Davis.
• Whether the Judge erred in determining the cut-off date and time for assessing damages on a representative basis without considering individual circumstances of each appellant.
• Whether the Judge erred in adopting US$0.8011 as the Cut-Off Price for calculating damages in the absence of expert evidence on market liquidity.
• Whether the appellants' application to adduce further evidence (SUM 29) on appeal should be allowed given the requirements of non-availability, materiality, and credibility.
• Whether the Judge erred in ordering each party to bear their own costs of the trial given the outcome of the representative action.

Holdings

• The Court of Appeal determined that the appellants were the successful party in CAS 4 and should be awarded 20% of their claimed costs and disbursements of S$4,231,661.93, yielding a costs award of S$846,332.39 to be paid by the respondents on a joint and several basis. The respondents were broadly successful in CAS 2 while appellants were broadly successful in CAS 4.
• The Court of Appeal dismissed the application to adduce further evidence (SUM 29) on appeal. The cut-off price was revised from US$0.8011 to US$0.60485. Damages awarded to representative appellants Mr Davis, Mr Epstein, Mr Tan, and Mr Arun were revised accordingly. The appellants were awarded 20% of their claimed costs in CAS 4. OAS 3 and OAS 4 were dismissed.
• The Court of Appeal dismissed the appellants' applications in OAS 3 and OAS 4. OAS 3 involved an application for permission to appeal against the Judge's decision in SUM 58 regarding release of Deposit paid into court. The interest accrued on the sum to be released should be paid to the respondents pursuant to Order 27 rr 6 and 7 of ROC 2021.
• The Court of Appeal held that the Judge's finding on the Cut-Off Date and Cut-Off Time does not necessarily bind the represented claimants, though it binds the representative appellants. The Cut-Off Price was revised to US$0.60485 (average of opening and closing price of UST on 12 May 2022) as it better accounts for the possibility that appellants would have obtained lower selling prices had they attempted to sell at or around the Cut-Off Time.

Remedies

• In CAS 4, appellants were awarded costs of S$846,332.39 to be paid by respondents. In CAS 2, respondents were awarded S$210,000 total (S$140,000 to 1st/3rd respondents, S$70,000 to 2nd respondent). In OAS 3 and OAS 4, S$3,000 each was awarded to 1st/3rd respondents.
• Interest on the money lodged in court was awarded to the respondents pursuant to Order 27 r 6 and 7 of the Rules of Court 2021. The sum of US$125,396.13 accrued on the sum of US$41,948,675.49 was to be released to the first respondent.
• The court revised the quantum of damages awarded to the representative appellants (Mr Davis, Mr Epstein, Mr Tan, and Mr Arun) by adopting a revised cut-off price of US$0.60485 instead of the previous US$0.8011. The total damages awarded to the representative appellants were revised to US$681,605.71.
• Part of the Deposit paid into court was released to the first respondent to satisfy damages awarded to representative appellants and interest. Part of the remainder was retained pending determination of represented claimants' claims. The remaining portion of the Deposit will be released to the first respondent.

Monetary Damages

Legal Principles

• The judgment states that the claimant bears the burden of proving the actual amount of damage suffered and the causal link between the misrepresentation and the loss. The defendant does not need to disprove every possible obstacle to the claimant selling assets.
• The court applied the principles of proportionality and reasonableness to award costs. While the appellants were the successful party (obtaining a money judgment), they failed on several claims. Consequently, they were awarded 20% of their claimed costs and disbursements.
• The court clarified the interplay between causation and mitigation in claims for fraudulent misrepresentation. The causal link between the misrepresentation and loss persists until the claimant discovers the fraud, unless they are 'locked into' the property. The 'cut-off date' marks the point when reliance ends, breaking the chain of causation for subsequent losses.
• The court applied the *Ladd v Marshall* principles (non-availability, materiality, and credibility) to assess an application to adduce further evidence on appeal. The application was dismissed as the evidence was available during the trial and lacked materiality.
• The court discussed the binding effect of findings in representative actions. Findings on common issues bind representative claimants, but represented claimants are entitled to adduce individualized evidence to show that the cut-off time applicable to them differs.

Precedent Name

• POP Holdings Pte Ltd v Teo Ban Lim
• Ladd v Marshall
• Wee Chiaw Sek Anna v Ng Li-Ann Genevieve
• Livingstone v The Rawyards Coal Co
• AnAn Group (Singapore) Pte Ltd v VTB Bank (Public Joint Stock Co)
• Smith New Court Securities Ltd v Citibank NA
• Doyle v Olby (Ironmongers) Ltd
• Koh Chong Chiah v Treasure Resort Pte Ltd

Cited Statute

• Rules of Court 2021 Order 27 rule 7
• Evidence Act 1893 (2020 Rev Ed)
• Singapore International Commercial Court Rules 2021 Order 1 rule 2
• Rules of Court 2021 Order 27 rule 6

Judge Name

• Steven Chong
• Beverley McLachlin PC
• Belinda Ang Saw Ean

Passage Text

• 146 In our view, the more appropriate approach would be to adopt the price of US$0.60485 that was proposed by the first and third respondents at the trial below. 147 We bear in mind Lord Blackburn's classic dictum in Livingston v Rawyards at 39 that when damage is done maliciously or with full knowledge that the person doing it was doing wrong 'you would say that everything would be taken into view that would go most against the wilful wrongdoer'. 148 In the present case, we are of the view that the cut-off price of US$0.60485, representing the average of the opening and closing price of UST on 12 May 2022, is a fair and an appropriate cut-off price to adopt on the best available evidence, which primarily comprises the data for the opening, closing, highest, and lowest daily prices of UST.
• 112 In our view, the cut-off date and time may not be entirely determinable on a representative basis in the present case. However, the Judgment appears to leave open the possibility that the cut-off date and time for individual appellants may differ based on their individual circumstances, and to that extent, the Judge did not err. 125 Our view, that the Judge's finding of the Cut-Off Date and Cut-Off Time is not absolutely binding on the represented claimants without the possibility of adjustment based on individual circumstances, coheres with the parties' own agreed list of issues. 126 Therefore, in our view, the Judge's finding as to the Cut-Off Date and Cut-Off Time does not necessarily bind the represented claimants, although it binds the representative appellants, and the Judge did not err in his approach to determining the Cut-Off Date and Cut-Off Time.
• 174 Considering that the appellants failed in respect of most of the live issues, it is appropriate that they be deprived of a significant proportion of their costs. Taking into account all the above factors, the appellants should only be awarded 20% of their claimed costs and disbursements of S$4,231,661.93, which yields a costs award of S$846,332.39 (rounded to the nearest cent). 175 As for whether the appellants' claimed costs were reasonable and proportionate, the appellants have prima facie shown that their costs are reasonably incurred by providing a breakdown showing the hours claimed, the levels of seniority of their counsel and corresponding hourly rates, and what types of work were done.

Damages / Relief Type