Housing & Development Board v Cenobia Majella Chettiar

• Jurisdiction: Singapore
• Judge: Melissa Tan
• Judgment Date: 13 December 2023
• Neutral Citation: [2023] SGDC 303
• Court: District Court (Singapore)
• Docket Number: District Court Originating Claim No 369 of 2022
• Hearing Date: 21 August 2023,22 September 2023,18 October 2023
• Citation: [2023] SGDC 303
• Year: 2023
• Plaintiff Counsel: Twang Kern Zern and Low Wei Wen Justin (Central Chambers Law Corporation)
• Defendant Counsel: Defendant in person.
• Subject Matter: Civil Procedure,Pleadings,Striking out
• Published date: 20 December 2023

Deputy Registrar Melissa Tan: Introduction

The Defendant filed an application to strike out the last sentence of paragraph 2, as well as paragraphs 3, 4 and 5 of the Statement of Claim (“SOC”) filed by the Claimant. As the SOC is five paragraphs long, the Defendant was essentially applying for this action to be dismissed in its entirety. Having considered the parties’ affidavits and submissions, I dismissed the Defendant’s application. The Defendant has lodged an appeal vide DC/RA 63/2023. I now set out the full grounds of my decision.

Background facts

The Claimant and Stansfield College Pte. Ltd. (“Tenant”) entered into a renewal of tenancy of a property (“Tenancy Agreement”). The Defendant signed a Deed of Guarantee dated 16 May 2017 in relation to the Tenancy Agreement (“Deed of Guarantee”). Pursuant to the Deed of Guarantee, the Defendant agreed to guarantee payment by the Tenant of rent, service and conservancy charges, double rent and all other sums of money due to the Claimant. At all material times, the Defendant was a shareholder and director of the Tenant.

The Claimant terminated the tenancy by serving a Notice to Quit, which expired on 31 January 2019.¹ The Claimant then commenced an action against the Tenant in DC/DC 631/2019 (“DC 631”) in respect of various sums owed under the Tenancy Agreement and obtained a default judgment on 27 March 2019 (“Default Judgment”).² Pursuant to the Default Judgment, the Claimant obtained a Writ of Possession.³

On 2 June 2022, the Claimant issued a written demand to the Defendant (“Written Demand”) for the Defendant to pay the sum of $123,706.52 (“Sum”), which was the total amount due and owing from the Tenant to the Claimant under the Default Judgment and arising from the Writ of Possession.⁴ The Defendant did not make any payment to the Claimant.⁵

On 25 July 2022, the Claimant commenced the present action against the Defendant for the Sum, interest at the rate of 5.33% per annum on $119,436.26 and legal costs. After the Defendant filed her Defence, the Claimant applied for summary judgment vide DC/SUM 2916/2022 (“Summary Judgment Application”).

The Summary Judgment Application was heard by Deputy Registrar Allen Ng (“the DR”). At the second hearing on 10 January 2023, the DR granted summary judgment for the sum of $29,208.75 in favour of the Claimant. Unconditional leave was also granted for the Defendant to defend the rest of the Claimant’s claim in respect of double rent from 1 February 2019 to 20 June 2019, service and conservancy charges for the same period, judgment interest and legal costs and disbursements in DC 631.⁶ In addition, the DR gave the Defendant permission to amend her pleadings to rely on the prevention principle.⁷ The Claimant appealed against the DR’s decision. The appeal was dismissed, as was the Claimant’s application to the High Court for permission to appeal against the appeal decision: see Housing & Development Board v Cenobia Majella Chettiar [2023] SGHC 161.

On 17 January 2023, the Defendant filed the present striking out application.

The parties’ arguments

At the outset, I noted that the Defendant appeared to have changed positions on which grounds she was relying on for the striking out application.

The Defendant’s initial position, as seen in paragraph 19 of her supporting affidavit, was that paragraphs 2 to 5 of the SOC should be struck out under the three grounds of O 9 r 16(1) of the Rules of Court 2021 (“ROC”) for the reasons set out in the supporting affidavit. However, her supporting affidavit only set out reasons in respect of paragraphs 2 to 4 of the SOC. These reasons are summarised as follows: The last sentence of paragraph 2 of the SOC should be struck out as “the burden is on the Claimant to show that the Tenant overstayed in accordance with Clause 2 of the Deed of Guarantee”.⁸ Paragraph 3 of the SOC should be struck out for disclosing no reasonable cause of action against the Defendant. In this connection, the Defendant relies on the Claimant’s alleged admission that the present action and the Summary Judgment Application are not enforcement applications on the Default Judgment.⁹ Paragraph 4 of the SOC should be struck out for being an abuse of process of the Court. No certificate of the amount payable was issued pursuant to Clause 3 of the Deed of Guarantee. The Written Demand was pivoted on the Default Judgment that the Claimant admitted is no longer their case against the Defendant, and the Claimant allegedly conceded in its supplementary written submissions for the Summary Judgment Application that it has no basis for stating that the Defendant is bound by the Default Judgment given that the Defendant was not a party.¹⁰

In the course of the Defendant’s oral and written submissions, the Defendant expanded the grounds on which each part of the SOC should be struck out. Her submissions are summarised as follows: The last sentence of paragraph 2 should be struck out for being an abuse of process of the Court.¹¹ The Defendant submitted that this sentence was untrue¹² as her evidence in the Summary Judgment Application established that vacant possession was handed over on 31 January 2019. She further argued that the Claimant lacked prima facie evidence and could only provide a “one-liner explanation” to support its claim that vacant possession was delivered on 20 June 2019.¹³ Paragraph 3 of the SOC should be struck out under all three grounds of O 9 r 16(1).¹⁴ First, there was no reasonable cause of action disclosed. The Default Judgment obtained against the Tenant (as principal) did not bind the Defendant (as guarantor) who was not a party to DC 631. The Defendant further relied on the extended doctrine of res judicata to argue that the Claimant was relitigating DC 631 by taking out the present action against her on the same issues despite not having added her to DC 631. Second, relying on the extended doctrine of res judicata, she argued that this was an abuse of the Court’s process. Third, it was in the interests of justice to strike out paragraph 3 as the present action was based on the same factual matrix as DC 631 and the claim was for a single sum based on the Default Judgment.¹⁵ Paragraphs 4 and 5 of the SOC should be struck out for disclosing no reasonable cause of action.¹⁶ The Defendant submitted that the pleadings failed to specify the terms of the Deed of Guarantee that pertain to liabilities separate from the Tenant’s contractual liabilities. By replicating the judgment sum found in paragraph 3 of the SOC, the Claimant’s case was not based on the Deed of Guarantee but rather the Default Judgment against the Tenant. These two paragraphs should also be struck out in the interests of justice for the same reasons that paragraph 3 should be struck out under this ground.¹⁷

On the other hand, the Claimant argued that the Defendant’s striking out application should be dismissed with costs. The Claimant’s submissions are summarised as follows: The last sentence of paragraph 2 of the SOC was an assertion as to when vacant possession was delivered to the Claimant.¹⁸ The Defendant’s statement in her supporting affidavit that the Claimant bore the burden to show that the Tenant overstayed is an acknowledgement that this is an issue for determination at trial.¹⁹ Insofar as the Claimant previously stated that the present action and the Summary Judgment Application are not enforcement applications, this was factually accurate.²⁰ In fact, the Claimant relied on the Default Judgment to obtain the partial judgment in the Summary Judgment Application.²¹ With respect to paragraphs 3 and 4 of the SOC, the Claimant obtained partial judgment based on the matters pleaded in these paragraphs.²² The Claimant stated that paragraph 3 referred to Default Judgment obtained in DC 631 and paragraph 4 set out particulars of that judgment and claim amount.²³ Had these paragraphs made out any ground under O 9 r 16(1), the Court would not have granted partial judgment.²⁴ With respect to paragraph 4 of the SOC in particular, there was no prerequisite requirement for a certificate to be issued before a demand can be made under Clause 3 of the Deed of Guarantee.²⁵ With respect to paragraph 5, the Defendant did not explain in her supporting affidavit why it should be struck out.²⁶ Given that this paragraph was a summary of the Claimant’s claim, there was no reason for it to be struck out.²⁷

The Claimant further emphasised that the Defendant was being sued on the Deed of Guarantee and not the underlying Tenancy Agreement. When this action goes to trial, the issues will centre on the interpretation of Deed of Guarantee and whether it covers liability under the Default Judgment.²⁸

Applicable legal principles

O 9 r 16 of the ROC 2021 states as follows: 16.—(1) The Court may order any or part of any pleading to be struck out or amended, on the ground that —

(a) it discloses no reasonable cause of action or defence;

(b) it is an abuse of process of the Court; or

(c) it is in the interests of justice to do so,

and may order the action to be stayed or dismissed or judgment to be entered accordingly.

(2) No evidence is admissible on an application under paragraph (1)(a).

…

It will typically only be in “plain and obvious” cases that the Court should invoke the power of striking out: Gabriel Peter & Partners (suing as a firm) v Wee Chong Jin and others [1997] 3 SLR(R) 649 at [18].

The Defendant’s striking out application was founded on all three grounds under O 9 r 16(1) of the ROC. The Court of Appeal’s decision of Iskandar bin Rahmat and others v Attorney-General and another [2022] 2 SLR 1018 is instructive in providing guidance in respect of each ground (at [17]–[19]): 17 Under O 9 r 16(1)(a) ROC, the test is whether the action has some chance of success when only the allegations in the pleadings are concerned: Gabriel Peter & Partners (suing...