Tort Law
| Citation | (2004) 5 SAL Ann Rev 445 |
| Published date | 01 December 2004 |
| Date | 01 December 2004 |
20.1 In Loh Luan Choo Betsy v Foo Wah Jek[2005] 1 SLR 64, the deceased and his family and the defendant and his family were holidaying together in South Africa when an accident took place. The defendant was driving the vehicle they were in at the time of the accident.
20.2 Mdm Loh brought the action on behalf of the deceased”s estate and her son and also on her own account. The claim was brought on two causes of action, namely negligence and breach of statutory duty. The claim for breach of statutory duty was brought on the basis that it was against South African law for the defendant to drive without an international driving licence.
20.3 Following X (Minors) v Bedfordshire County Council[1995] 2 AC 633, the High Court held (at [25]) that in the ordinary case, a breach of statutory duty does not in itself give rise to a private law cause of action for damages unless construction of the statute in question established ‘that the statutory duty was imposed for the protection of a limited class of the public and that Parliament intended to confer on members of that class a private right of action for breach of the duty’. As no evidence of the relevant South African statute was adduced and the plaintiff did not call any expert witness to testify that the statute was intended to confer a private right of action, the court could not hold that the breach of the statute gave rise to a right of action to the plaintiffs.
20.4 Turning to the Singapore legislation, the Road Traffic (International Circulation) Rules (Cap 276, R 7, 2001 Rev Ed) made pursuant to the Road Traffic Act (Cap 276, 1997 Rev Ed) gave the Automobile Association of Singapore and the Deputy Commissioner of Police the power to issue international driving permits to qualified persons who apply for them. The Rules did not require that a person going abroad had to apply for an
international driving permit. There being no breach of any Singapore statutory provision, the claim for breach of statutory duty failed. The plaintiff”s appeal was dismissed.
20.5 In Tang Yoke Kheng v Lek Benedict (No 2)[2004] 4 SLR 788, the plaintiff, a creditor of Amrae Benchuan Trading Pte Ltd (‘the Company’) sued the third defendant for conspiring with the first and second defendants in alleged wrongdoings. The plaintiff”s claim against the third defendant was that the third defendant, being an employee of the Company, had conspired with the first and second defendants (the directors and shareholders of the Company) to cause the Company to continue trading when it was insolvent, and to wrongfully transfer the Company”s assets in order to put them out of the plaintiff”s reach. In particular, the plaintiff alleged that the third defendant had conspired with, aided and abetted the first and second defendants in the dissipation of the assets of the Company by receiving moneys as purported salaries, bonuses and loans, as well as in the setting up of other companies and transferring to them goods bought by the Company from the plaintiff without the Company or the plaintiff being paid for the same.
20.6 On the facts, the court held, inter alia, that the allegations against the third defendant were not made out. The court endorsed the view in Seagate Technology Pte Ltd v Goh Han Kim[1995] 1 SLR 17 that the essence of a conspiracy was an agreement and that there has to be proof of the existence of an agreement or, at least, an arrangement between the alleged conspirators to defraud. It was further held that a high degree of proof was required. In the present case the court held that no evidence of any conspiratorial agreement or arrangement was adduced, and that the allegations made in the present case would not suffice to establish the tort. The plaintiff”s appeal was dismissed.
20.7 The case of RBG Resources plc v Banque Cantonale Vaudiose[2004] 3 SLR 421, involved a dispute between Credit Lyonnais (‘CL’) and RBG Resources plc (‘RBG’) relating to the sale and purchase of metals, arising out of the liquidation of RBG. One of the issues that arose was whether the removal, by CL, of 300mt of nickel briquettes owned by RBG and stored in a warehouse, amounted to conversion of those goods.
20.8 The relevant background for the conversion claim may be very briefly set out as follows. RBG entered into metal trading with CL, where CL purchased metals from RBG. The metals were not physically delivered into CL”s possession, but were stored in a warehouse. The purchase was constituted or evidenced by a purchase confirmation which involved the issuance of delivery documentation to CL by the warehouse manager. This was in the form of a warehouse receipt certifying that the metal cargo in the warehouse was held for the account of and to the order of CL. The delivery documentation also set out specific lot reference numbers purportedly identifying the metal cargo in question. However, the quantities of metal purchased by CL were not physically segregated and identified as CL”s, but were stored within the warehouse as part of an unsegregated bulk.
20.9 With effect from 3 May 2002, the English court ordered RBG to be placed in provisional liquidation, and on 7 October 2002, RBG was ordered to be wound up by the Singapore court. On 9 May 2002, CL arranged with the warehouse manager for the release of 300mt of nickel briquettes. This quantity of metal was then taken by CL”s hauliers to another free trade zone at Jurong Port. RBG claimed against CL for conversion.
20.10 The court held that property to the nickel briquettes would not pass to CL, notwithstanding its receipt of the delivery documentation, unless and until the metal in question was ascertained pursuant to s 16 of the Sale of Goods Act (Cap 393, 1999 R ev Ed). In the present case, CL”s position was that the appropriation was achieved by the references to lot numbers in the warehouse receipt, which was part of the warehouse accounting system. However, on the facts, the court held that although the lot numbers were a point of reference in communication, they did not amount in this case to a warehouse accounting system of identification and appropriation. On the evidence, the court held that the lot numbers were used by the warehouse manager to give the impression that the metals referred to in each warehouse receipt had been appropriated to the order of CL when in fact this was not so. The court also opined that CL was unable to adduce any direct evidence of a proper warehouse accounting system and the indirect factors which it sought to rely on were equivocal.
20.11 In the circumstances, the court held that the nickel briquettes had not been appropriated to CL prior to their release. Vis-a-vis CL, RBG remained the legal and beneficial owner of the nickel briquettes in the warehouse which had been held for the account of RBG prior to any dealing of the metals between RBG and CL. CL was therefore liable for conversion for the removal of the nickel briquettes from the warehouse.
20.12 The case of Hong Leong Finance Limited v Cycle and Carriage Motor Dealer Pte Ltd[2004] SGDC 105 involved the conversion of a Preferential Additional Registration Fee (‘PARF’) certificate. The plaintiff hire purchase company entered into a hire purchase agreement with one Ang Eng Hian (‘Ang’). Through intervening fraud, the vehicle was de-registered and exported. The Land Transport Authority (‘LTA’) duly issued the PARF certificate for the de-registration of the vehicle, bearing a rebate value of S$92,710, which was sold to the defendant for that sum. The defendant was unaware of the hire purchase agreement or any of the circumstances leading to the de-registration of the vehicle. The defendant thereafter used the PARF certificate to offset the costs in relation to the purchase of a vehicle. The plaintiff brought an action against the defendant for conversion of the PARF certificate.
20.13 The court held that it was settled law that physical documents evidencing choses in action may be converted. The issues were: (a) whether the plaintiff had an immediate right to possession of the PARF certificate; and (b) whether there was wrongful appropriation by the defendant.
20.14 On the first issue, the court first analysed the hire purchase transaction between the plaintiff and Ang. Although the vehicle was registered in Ang”s name, as was the Certificate of Entitlement, the proprietary interest in the vehicle remained with the plaintiff. The purported transfer of the vehicle to a third party was subject to the principle of nemo dat quod non habet, and the subsequent party could acquire no better title than Ang. At the same time, the hire purchase agreement having been breached, the plaintiff would have the right to immediate possession of the vehicle. Going a step further, the court held that the PARF certificate was also part and parcel of the hire purchase agreement because the plaintiff, who retained the proprietary interest in the car, also owned the surrender value from the outset, and this value was evidenced in the PARF certificate. Therefore the court held that the right to the PARF rebate was in existence from inception, its price at any time during the hire purchase being dependent upon the age of the car and its Open Market Value (‘OMV’). Once the physical document, the PARF certificate, came into existence in the course of Ang”s breach of the hire purchase agreement, the plaintiff had an immediate right to possession of it.
20.15 On the second issue, it was settled law that the fact that the defendant had no knowledge of the intervening fraud and was a bona fide purchaser for value was no defence in an action for conversion. The knowledge of the defendant was immaterial. Dealing with the goods in a
manner inconsistent with the owner”s rights, and an intention in so doing to assert rights inconsistent with the owner”s, was sufficient to establish the tort.
20.16 Therefore the court...
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