The Lawsuit

What was the lawsuit about

Background of the lawsuit

I started my Economics tuition business (Economics at Tuitiongenius / Tuitiongenius) in 2007. Within a short period of time, the Economics tuition business gained relative success.

In 2009. a family friend (Keng Senior) approached me to start a joint venture - a tuition centre offering all levels and subjects. We named the centre “Real Education Centre”. We also incorporated a holding company “Tuitiongenius Pte Ltd”. The name “Tuitiongenius” was not used in the branding for the tuition centre “REAL Education Centre”.

In late 2014, after attending my wedding dinner, the children and wife of Keng Senior started harassing my family due to unfounded rumours that my mother was having an affair with Keng Senior.

In 2015, the harassment against my family escalated, culminating in a dangerous and long car chase by the daughter of Keng Senior, putting my mother’s life in danger. At the time of the car-chase, my wife was heavily pregnant with my 1st child. To avoid anymore unnecessary conflict - I decided to sever all ties with the Keng family, through resigning from all my positions in TGPL and Real Education Centre. Despite having spent 6 years building TGPL/REAL Education Centre. I also gave up all my shares in TGPL to Keng Senior at no cost in October 2015.

Early February 2015, a week before my 1st kid’s birth - I received a Letter of Demand from TGPL. Keng Senior’s son, Ethan Keng Jun Hao (Junior Keng) had taken over the company from his father and launched a lawsuit using the company I built, against me.

The Claims

1. I’ve breached fiduciary duties to TGPL by running my Economics tuition business

2. I’ve breached my Employment Contract to TGPL by running my Economics tuition business

3. The brand “Economics at Tuitiongenius” is passing off a brand owned by TGPL

The High Court Trial

The above claims were filed in High Court of Singapore in May 2016. Trial commenced in May 2018 through June 2018 and was adjourned and resumed for a second tranche in February/March 2019. The trial took a total of 19.5 days. Judgment was issued on 5th November 2019. We won. The Judge dismissed all substantive claims. The plaintiffs were dissatisfied with the results and appealed against the Judgment. We were later awarded $347,000 In costs by the judge.

The Court of APPEAL TRIAL

The Plaintiffs launched an appeal to the Court of Appeal to challenge the decision of the High Court. The hearing was heard by three Judges - Chief Justice Sundaresh Menon, Judge of Appeal Tay Yong Kwang & Justice Quentin Loh. The judgment, delivered by Chief Justice on 29 June 2020, dismissed the appeal in its entirety and awarded us $57,000 in costs.

The High Court Judgment

Click here to read the High Court Judgment

1. Para 38 “I find Eugene generally to be a credible witness and his testimony on this aspect of his case to have withstood the scrutiny of cross- examination. “

2. Para 75 “First and foremost, Eugene’s conduct in relation to the setting up of the ETG Entities was completely transparent.”

3. Para 90 “As a result, I find that there was no breach of fiduciary duties in respect of the above acts.”

4. Para 101 “Eugene’s uncontroverted evidence was that he has used the mark “Tuition Genius” to promote his own tuition business even before the plaintiff was incorporated. “

5. Para 102 “It follows that the plaintiff cannot claim ownership of the phrase “Tuition Genius” as a trade mark.”

6. Para 128 “I also believe Eugene that his family was subjected to various instances of harassment by Keng’s family – the Car-Chase incident in which Xiang Qi drove into Eugene’s mother’s car being one such instance of this.”

7. Para 130 “For the reasons above, I dismiss all the plaintiff’s claims except the claim for breach of cl 12 of the Employment Agreement in respect of Timothy*. I will hear counsel on whether an order for assessment of damages in respect of this breach should be issued.”

*In the Court of Appeal judgment, the Court of Appeal judges has in effect found that there was no breach of clause 12.

Court of Appeal Judgment

Click here to read the Court of Appeal Judgment

1. Para 14 “On most of the contentious factual issues, the Judge preferred Mr Toh’s version of events to Mr Keng’s. Thus, on the circumstances leading to the incorporation of the appellant, the Judge rejected Mr Keng’s claim that his business dealings with Mr Toh began with the CCK Joint Venture.”

2. Para 15 “The Judge also found that there was no breach of the best efforts (cl 5) and exclusive employment (cl 11) clauses in the Employment Agreement because he was satisfied that the appellant had no intention to enforce against Mr Toh any term of the Employment Agreement that was inconsistent with the Joint Venture Agreement. In any event, the Judge held that the appellant had unequivocally waived its rights to enforce cll 5 and 11 of the Employment Agreement. In the same vein, the Judge held that there was no breach of any fiduciary duties by Mr Toh because the parties had a subsequent oral agreement that Mr Toh could continue to run his private tuition business through the ETG Entities and retain the revenue that this generated (see GD at [48]–[51], [88]– [90] and [93]).”

3. Para 19 “In any case, we are satisfied that on the totality of the evidence, the Judge was amply justified to find the existence of the Oral Agreements. We elaborate.”

4. Para 21 “We first turn to the Judge’s rejection of Mr Keng’s claims in relation to the CCK Joint Venture. In our judgment, this finding is unimpeachable.”

5. Para 22 “Importantly, no other reason was advanced to explain why Mr Toh would otherwise have parted with a half-interest in a successful private tuition business that he had built up on his own in favour of Mr Keng, who had no expertise in the tuition industry at all and no evident value to add to the enterprise. Mr Keng’s response to this was that he had not bothered to inspect the aforesaid room in the HDB Flat after its renovation. However, in our judgment, that is not relevant because regardless of whether Mr Keng did or did not inspect that room, there was simply no evidence to substantiate the payment that he claimed he had made and no sign of any such alleged renovation work having been done in that room. Having found that there was no such expenditure in the circumstances, unsurprisingly, the Judge found it incredible that Mr Toh would agree to limit his monthly salary to $2,000 and to split half of the remaining income from his tuition classes in return for an investment of a small sum to renovate the room in a way that was ultimately unnecessary. This is because, as the Judge noted, it was evident from the single invoice that Mr Keng did produce that there had been an air-conditioning unit in place which had been traded in for the new air-conditioning unit (see GD at [29]–[45]). We agree with the Judge’s conclusion on this and with his reasons for coming to that conclusion.

6. Para 24 “However, this ignores the fact that Mr Toh had already built up a successful and growing private tuition business by the time of the Joint Venture Agreement. In line with this, the Judge accepted Mr Toh’s evidence that it was Mr Keng who had wished to leverage on his popularity as a tuition teacher as well as his knowledge of the tuition industry (see GD at [40]). Further, the appellant would benefit even if Mr Toh was concurrently involved in his own private tuition business, given that his students could be expected to and did sometimes take up tuition for other subjects with the appellant. There was thus a degree of referral business from this arrangement. It is evident to us that the joint venture would not have been viable without Mr Toh’s participation because, as Mr Keng himself admitted, he was “not familiar with the tuition business” and clearly depended on Mr Toh’s network and expertise.

7. Para 27 “Having reviewed the evidence, we are satisfied that the Judge’s finding as to the existence of the Second Oral Agreement is similarly unimpeachable. In reaching this conclusion, the Judge made two crucial findings. First, he was satisfied that Mr Keng knew about the ETG Entities because Mr Toh had set up the ETG Entities in a completely transparent manner.”

8. Para 34 “It is evident from all this that there was a structured and transparent system in place for the appellant’s staff to channel payments for classes taught by Mr Toh to ETGPL. Former employees who had worked at the appellant at the relevant time also testified that they knew of Mr Toh’s private tuition business (through the ETG Entities) and regarded this as a separate business from the appellant’s. In our judgment, this evidence is unsurprising given the transparent manner in which Mr Toh conducted his private tuition business through the ETG Entities.”

9. Para 39 “In the light of the foregoing analysis, it is evident that Jun Hao knew that Mr Toh owned a separate and distinct tuition business that operated alongside the appellant’s business and this was carried out using the ETG Entities or, more particularly, ETGPL, and that Jun Hao had been trained by former employees of the appellant to separate the revenues received from Mr Toh’s classes from the revenues received from the appellant’s classes. Jun Hao had even helped to facilitate some payments to Mr Toh and/or the ETG Entities. Mr Toh’s conduct in relation to the establishment and operations of the ETG Entities was completely transparent, and all of this information was freely available to Jun Hao.”

10. Para 55 “Clause 5 of the Employment Agreement provides that Mr Toh may spend “reasonable amounts of time” on “personal or outside business [which] shall not constitute a violation of the [Employment Agreement]”. This recognises that notwithstanding the obligation on Mr Toh’s part to expend best efforts and devote most of his time to the appellant’s business, there was an express understanding that he could not only keep alive but continue to grow his private tuition business as a “personal or outside business” distinct from the appellant’s. When one considers this language in the light of the relevant factual matrix, specifically, the existence of the Joint Venture Agreement, this construction becomes compelling. We therefore find there was no breach of this clause.”

11. Para 56 “Further, Mr Toh’s private tuition business complemented rather than competed with the appellant’s business. Mr Toh was a key draw for the appellant in its effort to build its business because Mr Toh not only provided his expertise and reputation in the tuition industry, but also presented business opportunities arising from his current students taking up tuition for other subjects offered by the appellant. The parties even conducted joint marketing activities. For these reasons, we find that there was no breach of this clause.”

12. Para 57 “Given our conclusion that there was no breach of cll 5 and 11 of the Employment Agreement by Mr Toh”

13. Para 60 “At the outset, we note that the appellant’s contention rests on the notion that Mr Keng was unaware of the use of the ETG Entities by Mr Toh to run his own private tuition business. In the light of the Judge’s findings as to the existence of the Oral Agreements, which findings we have affirmed, this argument cannot stand. Aside from this, the hallmark of a fiduciary is the duty to act in the best interests of another person. A fiduciary cannot act for his own benefit without the informed consent of his principal (see Tan Yok Koon v Tan Choo Suan and another and other appeals [2017] 1 SLR 654 at [192], citing Bristol and West Building Society v Mothew [1998] Ch 1). Given the agreement between Mr Keng and Mr Toh, who were the promoters of the appellant, as to the basis on which the appellant’s and Mr Toh’s respective businesses would co-exist under the Oral Agreements, there cannot be any question of Mr Toh acting in breach of his fiduciary duties in running his private tuition business through the ETG Entities. In doing this, he was acting in line with what had been agreed.”

14. Para 61 “At the hearing of this appeal, Mr Tan submitted that even if the Oral Agreements exist, Mr Keng had not agreed that Mr Toh could use the appellant’s staff to divert its business to the ETG Entities. Having reviewed the evidence, we are satisfied that Mr Toh’s instructions to the appellant’s staff to promote his own economics classes were not in breach of his fiduciary duties. In this regard, it is helpful to reiterate the line drawn between the appellant’s business and Mr Toh’s private tuition business as set out above at [56]. It follows from this that Mr Toh was entitled to maintain and run his own business alongside the appellant’s.

15. Para 63 “Once it becomes evident that the parties were proceeding on the basis of the Oral Agreements, it is untenable for the appellant to contend that Mr Toh was doing anything impermissible in developing his own business. This is especially so because the appellant’s own success as a tuition centre was heavily tied to the growth of Mr Toh’s own business. Relative to Mr Keng, Mr Toh had much more knowledge of and experience in the tuition industry, and his personal popularity as a tutor helped to draw in students who might then go on to take classes in the other 12 subjects for which tuition services were offered by the appellant at the primary, secondary and JC levels. We therefore found no merit in this contention.”

16. Para 69 “In addition to all this, we note from the following documentary evidence that Mr Toh had operated ThinkTank in an open and transparent manner. “

17. Para 69d “This again demonstrates that Mr Toh was open about his involvement in and operation of ThinkTank”

18. Para 75 “In these circumstances, the appellant’s claim in relation to the Bedok Centre, not having been pleaded, should not have been allowed to proceed in the first place”

19. Para "76 “In any event, even if we were to consider the merits of the appellant’s claim in relation to the Bedok Centre, we are satisfied that Mr Toh had not breached his fiduciary duties by causing ThinkTank to take over the Bedok Centre premises and the appellant’s Bedok Centre students.”

20. Para 78 “We are therefore satisfied that Mr Toh had not breached any of the fiduciary duties he owed to the appellant.”

21. Para 90 “In our judgment, the TG Mark is not distinctive of the appellant’s tuition business because the appellant had marketed its tuition business predominantly under the “REAL Education Centre” mark (the “REC Mark”). On the appellant’s Facebook page, the appellant used only the REC Mark in the course of marketing and promoting its tuition classes. The appellant’s signboard at the entrance of its Clementi and Bedok Centres also stated “REAL EDUCATION CENTRE”. Further, the appellant’s former employees testified that the appellant had never used the TG Mark to market its tuition business. Having reviewed the marketing materials exhibited by the former employees, we are satisfied that the appellant had advertised its tuition services using the REC Mark rather than the TG Mark.

22. Para 96 “We turn finally, to the students’ testimonials, which, in our view, do not assist the appellant because they mainly vouched for Mr Toh’s skills as a tutor and his method of teaching.”

23. Para 100 “In this case, pursuant to the Oral Agreements, the parties agreed to allow Mr Toh to continue conducting his private tuition business through the ETG Entities and to participate in joint marketing activities with the appellant. In that light, there was simply no deception, misrepresentation or intention to injure the interests of the appellant to speak of. For this reason also, the appellant’s claim against the respondents in passing off fails.”

24. Para 101 “On the contrary, the evidence demonstrates that Mr Toh’s business developed precisely in line with the basis agreed on in the Oral Agreements, and there was no doubt that he was the key draw for the appellant’s business. We therefore doubt that the element of damage could in any case be said to have been established.”

25. Para 102 “For all these reasons, the appeal is dismissed. The respondents will have their costs of the appeal, inclusive of their disbursements, which we fix in the aggregate sum of $57,000. We also make the usual order for the payment out of the security for the costs of the appeal.”

Why am I writing about the lawsuit?

To inform students / parents about facts pertaining to the lawsuit

When you do a search for “Tuitiongenius” the following search result comes out, and ranks 4th or 5th (as of 21 June 2021).

Also, the related search terms on Google for “Tuitiongenius” and “Economics at Tuitiongenius” also include “Tuitiongenius” lawsuit

Honesty, integrity and transparency are values that are important to me and what we believe in at ETG. There is sometimes, stigma and a ‘negative’ implication of being involved in a legal suit. This is especially the case in the relation of an education company or a private tutor like myself.

The objective of this post is to present facts & information of the lawsuit & judgments to help students & parents understand more - given the apparent interest in the lawsuit.

A Pyrrhic Victory

As of 17th March 2022, the Plaintiffs have made no restitution nor shown any sign that they are going to do so for the ordered costs of nearly $348,000.

In the last few years, I have been exhausted financially, emotionally and mentally to fight this case, only because I believe that it is important to stand up against bullies and also to protect my reputation and integrity.

Thus, the least I can do - is at least make readily the information of the lawsuit readily available to students and parents on my own platform.