Tort Law

Citation(2005) 6 SAL Ann Rev 485
Published date01 December 2005
Date01 December 2005
AuthorKumaralingam AMIRTHALINGAM PhD LLB (Hons) (Australian National University); Associate Professor and Director, International Programmes, Faculty of Law, National University of Singapore. Gene KWEK LLB (Hons) (National University of Singapore); Advocate and Solicitor (Singapore).
Conversion

21.1 In Stahltec Metallhandels GmbH v Chuan Ann Metals Pte Ltd[2005] SGHC 46, the plaintiff sold and supplied rolled steel to the first defendant. Before fulfilling its payment obligation to the plaintiff, the first defendant was placed under receivership by one of its creditors, the Oversea-Chinese Banking Corporation (‘OCBC Bank’). The plaintiff claimed, inter alia, against the second and third defendants — the receivers and managers appointed by OCBC Bank — for damages for the tort of conversion. This claim was based on a retention of title clause in the contract between the plaintiff and the first defendant. The parties disputed the incorporation of the retention of title clause in the contract under German law, but this was resolved in favour of the plaintiff with Choo Han Teck J noting that business between the plaintiff and the first defendant proceeded on the basis and understanding that the plaintiff retained title in the goods unless paid for by the first defendant.

21.2 On the facts, the court found that the plaintiff had notified the second and third defendants of its claim under the retention of title clause, and steps had been taken to identify the plaintiff”s goods among other such goods which the first defendant had purchased from other suppliers. Eventually, a list of goods had been drawn up pursuant to a joint inspection. In the circumstances, it was held that the second and third defendants had acted properly and reasonably in response to the plaintiff”s claim over the goods. Choo J was persuaded that the list of goods was an agreed inventory and no reason or evidence was given to suggest that it was incomplete. As receivers, the second and third defendants were under a duty to protect the goods of the first defendant and until they could properly ascertain the ownership of those goods, they were entitled to assume that they belonged to the first defendant since the goods were in the first defendant”s premises. The goods identified in the list of goods had been handed over to the plaintiff by

consent pending the outcome of the trial. As regards the remaining goods, it was reasonable for the second and third defendants to dispose of these goods in discharge of their duties and functions as receivers, there being no evidence that these goods belonged to the plaintiff. Consequently, there was no conversion by the second and third defendants.

Defamation

21.3 The case of Icadam Technologies Sdn Bhd v CAD-IT Consultants (Asia) Pte Ltd[2005] SGHC 130 (‘Icadam Technologies’) involved an alleged defamation between competitor companies. The action arose from a visit by the defendant”s representatives to Amtek Engineering Limited (‘Amtek’) to promote the defendant”s specialised software for use in the metal stamping industry. Amtek was a common target client of both the plaintiff and the defendant. The plaintiff claimed that the defendant”s representatives had spoken the following objectionable words during the sales visit to Amtek, namely:

(a) the plaintiff had no rights to develop software related to the metal stamping industry;

(b) the software developed by the plaintiff might have infringed the intellectual property rights of the defendant”s technology software and would be subject to future legal consequences; and

(c) any future user/customer, including Amtek, who used the plaintiff”s software, would have to pay royalty fees to the defendant for the use of the defendant”s technology.

The plaintiff claimed that these words, by their natural and ordinary meaning, were understood to mean that:

(a) the plaintiff, by developing and commercially exploiting its own software for use in the metal stamping industry, had acted in breach of its legal obligations and would be subject to civil and/or criminal liability for such breach;

(b) the plaintiff, by developing and commercially exploiting its own software for use in the metal stamping industry, had infringed or was likely to have infringed the intellectual property rights of the defendant such that legal proceedings would be commenced against the plaintiff and it would thereby be subject to civil and/or criminal liability;

(c) the plaintiff had been dishonest and/or dishonourable in its dealings with Amtek in relation to the promotion of its own software; and

(d) the plaintiff was dishonest and/or dishonourable in its trade.

Interestingly, the defendant did not plead any of the defences of justification, fair comment or qualified privilege; rather its defence was a bare denial of the words complained of and the meanings attributed to them.

21.4 After careful consideration of the evidence and witness accounts, Kan Ting Chiu J found that the plaintiff had established, on the balance of probabilities, that the defendant”s representatives had spoken the words complained of. In considering the natural and ordinary meaning of those words, Kan J applied the well-established test, ie, the proper approach was to consider what meaning the words would convey to an ordinary reasonable person, who was neither unduly naïve or suspicious, using his general knowledge and common sense. Such a meaning was not confined to the literal or strict meaning of the words but included any inferences which could reasonably be drawn by such person. Kan J underscored the objective nature of the test, as opposed to the subjective meaning intended by the maker, or understood by the recipient. Applying this test, Kan J found that the words complained of were defamatory of the plaintiff. Taking cognisance of s 5 of the Defamation Act (Cap 75, 1985 Rev Ed), the learned judge noted that the action was sustainable without proof of special damage so long as the words complained of were ‘calculated to disparage the plaintiff in any office, profession, calling, trade or business’ (at [38]), ie, the section did not require actual harm to be caused; intention would suffice. In his Honour”s view, the present action therefore fell within the purview of the section as the words complained of were clearly calculated to disparage the plaintiff in its trade and business.

21.5 Kan J also provided some clarification on the issue of aggravated damages. This addressed an apparent inconsistency between the defamation action in the case of Macquarie Corporate Telecommunications Pte Ltd v Phoenix Communications Pte Ltd[2004] 1 SLR 463 (‘Macquarie’), and the two defamation cases of Lee Kuan Yew v Chee Soon Juan (No 2)[2005] 1 SLR 552 and Goh Chok Tong v Chee Soon Juan (No 2)[2005] 1 SLR 573. In Macquarie, Kan J had awarded the plaintiff aggravated damages, the quantum of which was to be assessed at the subsequent assessment hearing. In contrast, in Lee Kuan Yew v Chee Soon Juan (No 2) and

Goh Chok Tong v Chee Soon Juan (No 2), Kan J had stated that the decision whether to award aggravated damages should be left to the person having conduct of the hearing for the assessment of damages. In the present case (Icadam Technologies), Kan J took the opportunity to explain that the two cases against Chee Soon Juan had come up before the senior assistant registrar on the plaintiffs” applications for summary judgment. The issue before the senior assistant registrar was whether there was any triable issue that could be raised on the issue of liability. As the evidence was led by affidavits, with no cross-examination, there was little before the senior assistant registrar which could assist him in determining whether aggravated damages should be awarded. In that context, it was proper for the decision to be left to the court that was to assess damages. In the Macquarie case, there was a full trial with witnesses being produced and examined. At the conclusion of the hearing, the court had all the evidence in deciding whether aggravated damages should be awarded and had therefore proceeded to make that determination.

21.6 Moving on to the present case of Icadam Technologies, the learned judge held that the plaintiff was not entitled to the aggravated damages sought, on the basis that: (a) the defendant had not attempted to justify the allegations or to claim that it was entitled to make them; and (b) the words complained of were said to a limited audience and were not repeated by the defendant”s representatives.

21.7 In Tan Chor Chuan v Tan Yeow Hiang Kenneth[2006] 1 SLR 16, some 24 members of the Singapore Chess Federation (‘SCF’) submitted a requisition (‘the Requisition’) for an extraordinary general meeting (‘EGM’), listing 12 matters to be discussed. These matters involved, inter alia, allegations of conflict of interest, lack of transparency and mismanagement of the SCF by members of the SCF Executive Council (‘the Exco’). In response to the Requisition, the President of the SCF, on behalf of the Exco, published an appeal to its members (‘the Appeal’). The Appeal was subsequently posted on the SCF website. The Appeal contained statements (‘the Offending Words’) to the effect that the issues raised by the members who submitted the requisition were either ‘mischievous or selectively inaccurate’, the objective being ‘to misrepresent and therefore to remove the SCF Exco’, for reasons best known to these members. The Exco received resounding support from those members who attended the EGM. Nine of the members who had submitted the Requisition brought the present action against the members of the Exco personally, on the basis of the Offending Words. It was common ground between the parties that the Offending Words carried one or more of the following defamatory meanings:

(a) that the plaintiffs were dishonest and/or mischievous and/or untruthful and/or deceitful in requisitioning the EGM;

(b) that the plaintiffs had an ulterior and/or a hidden agenda in requisitioning the EGM;

(c) that the plaintiffs had distorted and misrepresented facts with a view to removing the Exco for reasons best known to them;

(d) that the plaintiffs had hoped to influence the decision...

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