Close | Bin Khee Meng v Leong Onn Kee and Others [2008] SGMC 7 |
| MC Suit 20494/2007, RA 34/2008, 35/2008, RAS 115/2008, 118/2008 | |
| 15 Oct 2008 | |
| Magistrates Court | |
| Leslie Chew | |
| Gan Kam Yuin (Bih Li & Lee) for the plaintiffs, Allan Chan (C H Chan & Co) for the 1st defendants, David Gan (Regional Law LLC) for the 2nd & 3rd defendants |
Judgment
15 October 2008 District Judge Leslie Chew: Background 1. These were two appeals against the decisions of the Deputy Registrar refusing to set aside the Judgments in default entered by the Plaintiff against all three Defendants. I heard the appeals on 24 April 2008 and dismissed the appeals. 2. The Defendants have since obtained leave to appeal my decision to the High Court. I now give my reasons for dismissing the appeals. The Law 3. At the outset, I would note for the record that since hearing the appeals, the law with respect to the appropriate tests to apply to set aside a Judgment in Default have been revisited and changed by the Court of Appeal in Mercurine Pte Ltd v Canberra Development Pte Ltd 4. I dismissed the appeals in both RA 34 and 35 of 2008 based on the test then applicable namely the one set out in Abdul Gaffer v Chua Kwang Yong 5. The Court of Appeal has now laid down a new test in Mercurine at [60]. The new test is ‘whether the defendant can establish a prima facie defence in the sense of showing that there are triable or arguable issues’. The Present Case 6. I have set out the law first in order to record the new development since my decision to dismiss the appeals was naturally based on the old law. 7. In light of this new development as contained in Mercurine, which needless to say I could not have applied, I now consider whether I would have arrived at a different decision if Mercurine was in existence. (I did consider the High Court’s decision in Mercurine 8. Based on the then existing test laid down in Abdul Gaffer for the setting aside of a default judgment, I had found that the Defendants could not show a defence that had a strong prospect of success, that is it was not merely one which showed an arguable defence or raised arguable issues to be tried. 9. The factual matrix and of the present case and the consequent defences put up by the Defendants may be briefly summarized as follows: a. The Plaintiff sued the 1st and 2nd Defendants who are shareholders in the 3rd Defendants for misrepresentation in that they induced him to enter into a purchase of shares in the company known as Alpha I T Corporation Pte Ltd. The Plaintiff sued the 3rd Defendants for breach of contract for failing to deliver shares for which the Plaintiff had paid a sum of $25,000 to the 3rd Defendants. b. The Defendants’ defence was based principally on the defence put forward by the 1st Defendants. In both written and oral submissions before me Counsel for the 2nd and 3rd Defendants adopted the arguments and defences put forward by the 1st Defendants. The Defence put forward by the Defendants consisted merely of denials and counter assertions as follows: (i) The Plaintiff’s claim is not clearly pleaded. (ii) The oral agreement asserted by the Plaintiff as the basis for the claims cannot be true since the pleadings are not clear. (iii) Based on Kris Chee’s affidavit of 10 March 2008 the Plaintiff’s claim of misrepresentation on the part of the 1st and 2nd Defendants cannot be true. (iv) The Plaintiff failed to plead the relationship between the 3rd Defendants and a Thai company known as Alpha IT. (v) In reality the Plaintiff was investing in D-Alpha and not the 3rd Defendants. But he subsequently refused to accept shares in D-Alpha. (vi) The wrong parties are being sued. c. Although in submissions, Counsel for the 2nd and 3rd Defendants allied himself with the arguments of the 1st Defendants, Counsel also submitted the following: (i) The Plaintiff’s Statement of Claim does not show how he was induced into entering into the agreement to purchase the shares. (ii) No particulars are given as to the oral representations of inducement and mirepresentation. (iii) Plaintiff failed to plead that he acted in good faith. (iv) Plaintiff’s claim is a bare assertion (v) The Plaintiff’s alternative claim that the 1st/2nd Defendants have breached the agreement to deliver shares in the Company, fails because there is no proof that Plaintiff demanded that shares in the Company ought to be issued to him (vi) The Plaintiff has sued the wrong party – he should have sued the Thai company. (vii) Without fraud the Defendants are not liable and the Plaintiff ought to sue the Thai company. (viii) There is a substantial dispute of facts. 10. I ought to mention that the defences I have summarized above are based on the written submissions of the Defendants – 1st Defendants’ submissions dated 20 Mar 2008 and the 2nd and 3rd Defendants’ submissions dated 21 April 2008. 11. Based on the above submissions and the affidavits filed by both sides which included in the case of the Defendants, 3 further affidavits which they filed subsequent to the hearing before the Deputy Registrar (in respect of which I granted leave for these to be admitted into evidence for the purpose of the appeals before me) , Counsel for the Plaintiff tendered their written submission of 17 April 2008. 12. Essentially, the Plaintiff contended that: (i) The undisputed fact was that the Plaintiff paid $25,000 to the 3rd Defendants for shares in the Thai company but received no shares. (ii) The Plaintiff’s claim is a suit for the return of his monies (iii) The 1st Defendant admits that the Plaintiff paid the monies to the 3rd Defendants but the Plaintiff refused to sign the necessary documents for shares in the Thai company to be issued to him. This assertion is unbelievable because there are no documents for example, showing that those documents were sent to the Plaintiff only that the documents were sent to the 1st Defendant. (iv) The Defendants’ allegations were mere assertions unsupported by documents and moreover related to irrelevant matters for example allegations against the Plaintiff’s sister which were not germane to the Plaintiff’s claim. 13. Overall based on the affidavit evidence and the submissions made as I have set out above, I found that the Defendants did not show any merit in their alleged defences much less a ‘defence which had a strong prospect of success and carried a degree of conviction’ (under the Saudi Eagle/Abdul Gaffer test). For that reason, I dismissed the appeals. 14. In light of Mercurine however, I now consider, whether I would have decided otherwise on the facts of the present case. I am satisfied that even if I had applied the test in Mercurine which boils down to the lower standard of a defence sufficient to stave off a summary judgment I would have come to the same decision to dismiss the appeals. 15. I am satisfied that all the Defendants’ arguments and affidavit evidence did not show any defence to the claims of the Plaintiffs. Indeed they do not raise triable issues. The defences put forward were mere arguments and assertions which were neither supported by the surrounding circumstances as deposed to by the Defendants and Kris Chee nor any objective evidence such as correspondence or documents. One of the more disturbing features of the defences was that they included an assertion that the Plaintiff had failed to properly plead his case. That can hardly be a defence on merits sufficient to warrant a setting aside of a judgment in default entered regularly by the Plaintiff. The Defendants conceded before me that the Judgment was regular. It is of course trite that if the Plaintiff’s pleadings did not disclose a cause of action then, the Defendants could have applied to strike the claim down. Alternatively, if the pleadings lacked the requisite details or particulars which would have prejudiced the Defendants’ case, they could have applied for particulars coupled with the necessary consequential orders. The Defendants did not do either of these. In any event, based on what was before me, I should add that I did not find that the Plaintiff had, as asserted by the Defendants, failed to adequately plead their case. 16. While the Defendants need only meet the lower standard of an arguable defence as normally understood in summary judgment applications, even under the tests applicable to such applications, it behoves the court to examine the various assertions and arguments put forward by the Defendants to see if they provided a fair or reasonable probability of the Defendants having a real or bona fide defence – see Abdul Salam Asanaru Pillai v Nomanbhoy & Sons Pte Ltd 17. On the affidavit evidence which was before me and based on the submissions made to me at the hearing of the appeals, I am satisfied that the assertions made by the Defendants remained just that, mere assertions and these did not show a reasonable probability of a real or bona fide defence. I ought to also make clear that while the Defendants referred to evidence which raised questions, these questions skirted the Plaintiff’s claim and did not in anyway address the claims unequivocally such that it could be said that triable issues or questions were raised which ought to be tried. 18. Overall therefore, I am satisfied that I would not have reached a different conclusion even if I had applied the test now laid down by Mercurine.
