Ang Sin Hock v Khoo Eng Lim

• Judgment Date: 08 April 2010
• Date: 08 April 2010
• Docket Number: Civil Appeal No 99 of 2009
• Court: Court of Appeal (Singapore)

Ang Sin Hock

Plaintiff

and

Khoo Eng Lim

Defendant

[2010] SGCA 17

Chao Hick Tin JA

,

Andrew Phang Boon Leong JA

and

V K Rajah JA

Civil Appeal No 99 of 2009

Court of Appeal

Civil Procedure—Appeals—New point on appeal—Whether appellate court should decide new point not raised during trial, when all facts relating to that new point had been pleaded, and no new evidence was required to be adduced—

Limitation of Actions—Extension of limitation period—Acknowledgment—Effect of express promise to pay accrued debt—

Tort—Conversion—Election between alternative and inconsistent rights—Whether consignor who had made claim against consignee for sales proceeds under consignment contract could make alternative claim for conversion against consignee

The Appellant consigned a parcel of gemset jewellery to the Respondent and Mr Ajit Singh ("Singh") for sale in January 1999, after the Respondent and Singh told him that they were able to find overseas buyers for the jewellery. The sale was supposed to be finalised by the end of February 1999, but this did not materialise. In September 1999, the Respondent informed the Appellant that the gemset jewellery had been sold and requested the Appellant to prepare an invoice to document the payment of the Appellant's share of the sales proceeds to the Appellant. The Appellant acceded to this request.

Despite the issuance of the invoice, the Appellant did not receive payment. In January 2000, the Appellant lodged a police report against the Respondent and Singh for failing to pay him his share of the sales proceeds. In response, the Respondent and Singh signed an undertaking on 6 January 2000 ("the Undertaking") promising to pay him $270,725 (representing his share of the sales proceeds as documented on the invoice) by 29 February 2000.

Despite the Undertaking, no money was received by the Appellant even after 29 February 2000. After threats of further legal action from the Appellant, the Respondent wrote a letter to him on 12 April 2000, informing him that he would pay him the amount by a bank draft on 18 April. That said date passed without any payment. In July 2001, Singh was charged with dishonest appropriation of property under s 403 of the Penal Code (Cap 224, 1985 Rev Ed). Singh pleaded guilty and was sentenced accordingly.

On 1 November 2001, the Appellant instructed his lawyers to send the Respondent a letter demanding payment. The Respondent denied liability on the ground that the consignment of the jewellery was to Singh and that he had merely played the role of an intermediary. Further letters of demand from the Appellant were met with the same response. Following this, no further legal action was taken by the Appellant until 17 April 2006, when he brought a claim against the Respondent and Singh for fraudulent misrepresentation, conversion, and breach of the consignment contract. Singh did not contest the Appellant's claims and judgment was therefore entered against him.

The trial judge held that the Appellant's claim of fraudulent misrepresentation failed because there was no evidence of fraudulent intent, and that in any case, that statements made by the Respondent and Singh were statements of intent that the Appellant did not rely on. The trial judge rejected the Appellant's claim in conversion on the grounds that the Appellant had waived his right to sue in conversion when he accepted a monetary claim against the Respondent and Singh under the consignment contract instead. Finally, the trial judge held that although the Appellant had a good claim against the Respondent and Singh under the consignment contract, this claim was time-barred under section 6 (1) (a) of the Limitation Act (Cap 163, 1996 Rev Ed) ("the Act").

Held, allowing the appeal:

(1) The Appellant's claim in conversion could not be sustained. A claim in conversion had to be premised on the claimant's immediate right to possession. Once a claimant treated the defendant's actions as an authorised sale and made a claim for the proceeds, he lost the immediate right of possession to the chattel, and any previous right to a claim in conversion was extinguished. Here, the Appellant's act of issuing the invoice to the Respondent and Singh showed that he had irrevocably elected to relinquish any rights he had to the gemset jewellery in favour of a monetary claim against them for the sales proceeds under the consignment contract: at [30] to [31].

(2) In so far as the Respondent's representations to the Appellant that he had contacts who could find overseas buyers for the gemset jewellery were concerned, there was no evidence that the Respondent had acted fraudulently when he made them: at [40].

(3) In so far as the Respondent's representations to the Appellant that the gemset jewellery had been sold were concerned, there was sufficient evidence to demonstrate that the Respondent made these representations with serious doubts about their truthfulness, or was reckless as to whether or not they were true. Nevertheless, there was no evidence that the Appellant relied on these representations in any event. Accordingly, the Appellant's claim in fraudulent misrepresentation failed: at [43] to [45].

(4) The Appellant's claim against the Respondent under the consignment contract was time-barred. The Appellant's claim, at the latest, accrued on 6 September 1999, when the Respondent represented to him that the jewellery had been sold and asked him to prepare the invoice. The Respondent's various acknowledgments of the debt owed to the Appellant had the effect of extending the date from which the six-year limitation period under s 6 (1) (a) of the Act started to run. However, the date of the last acknowledge was on 12 April 2000, and more than six years had passed before the Appellant commenced legal action against the Respondent on 17 April 2006. Accordingly, the Appellant's claim under the consignment contract was time-barred: at [50].

(5) However, the letter from the Respondent to the Appellant on 12 April, in which he promised to make payment by 18 April 2000, was a fresh contract for which the Appellant had given good consideration in the form of forbearance to sue. The Respondent's failure to pay the Appellant on 18 April 2000 constituted a breach of contract, which entitled the Appellant to damages which would put him in the same position as if the contract had been performed. The limitation period of six years under s 6 (1) (a) of the Act vis-…-vis this particular contract commenced from the time the contract was breached (here, 18 April 2000). Given that the writ was issued on 17 April 2006, the Appellant's claim based on this fresh contract was commenced within the limitation period, and there was no issue of time bar: at [65] to [72].

(6) Although the Appellant had not made the argument of a fresh contract (based on the Respondent's letter to him on 12 April 2000) before the trial judge, his pleadings had included all the facts that were required for such a claim. In any event, the court could consider this particular issue as a new point of law pursuant to O 57 r 13 (4) of the Rules of Court (Cap 322, R 5, 2006 Rev Ed). Accordingly, the Court could properly consider whether or not a fresh contract had been entered into by the parties: at [53] to [64].

Blackpool and Fylde Aero Club Ltd v Blackpool Borough Council [1990] 1 WLR 1195 (refd)

Candler v Crane, Christmas & Co [1951] 2 KB 164 (refd)

Chwee Kin Keong v Digilandmall.com Pte Ltd [2004] 2 SLR (R) 594; [2004] 2 SLR 594 (refd)

Chwee Kin Keong v Digilandmall.com Pte Ltd [2005] 1 SLR (R) 502; [2005] 1 SLR 502 (refd)

City and Westminster Properties (1934) Ltd v Mudd [1959] Ch 129 (refd)

Clarke v The Earl of Dunraven and Mount-Earl (The Satanita) [1897] AC 59 (refd)

Couchman v Hill [1947] 1 KB 554 (refd)

Edgington v Fitzmaurice (1885) 29 Ch D 459 (folld)

Gay Choon Ing v Loh Sze Ti Terence Peter [2009] 2 SLR (R) 332; [2009] 2 SLR 332 (refd)

Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465 (refd)

Heilbut, Symons & Co v Buckleton [1913] AC 30 (refd)

Hiap Huat Pottery (S) Pte Ltd v TV Media Pte Ltd [1998] 3 SLR (R) 734; [1999] 1 SLR 14 (refd)

Hongkong & Shanghai Banking Corp Ltd v Jurong Engineering Ltd [2000] 1 SLR (R) 204; [2000] 2 SLR 54 (refd)

Hughes Aircraft Systems International v Airservices Australia (1997) 146 ALR 1 (refd)

Imperial Steel Drum Manufacturers Sdn Bhd v Wong Kin Heng [1997] 1 SLR (R) 297; [1997] 2 SLR 695 (refd)

J Evans & Son (Portsmouth) Ltd v Andrea Merzario Ltd [1976] 1 WLR 1078 (refd)

Kamouh v Associated Electrical Industries International Ltd [1980] QB 199 (refd)

Lee Chee Wei v Tan Hor Peow Victor [2007] 3 SLR (R) 537; [2007] 3 SLR 537 (refd)

Lemon Grass Pte Ltd v Peranakan Place Complex Pte Ltd [2002] 2 SLR (R) 50; [2002] 4 SLR 439 (refd)

Malayan Banking Bhd v Lauw Wisanggeni [2003] 4 SLR (R) 287; [2003] 4 SLR 287 (refd)

Mendelssohn v Normand Ltd [1970] 1 QB 177 (refd)

Panwah Steel Pte Ltd v Koh Brothers Building & Civil Engineering Contractor (Pte) Ltd [2006] 4 SLR (R) 571; [2006] 4 SLR 571 (refd)

Robinson v Harman (1848) 1 Exch 850; 154 ER 363 (refd)

Sargent v ASL Developments Ltd (1974) 131 CLR 634 (folld)

Sea-Land Service Inc v Cheong Fook Chee Vincent [1994] 3 SLR (R) 250; [1994] 3 SLR 631 (refd)

Shanklin Pier Ld v Detel Products Ld [1951] 2 KB 854 (refd)

Strongman (1945) , Ltd v Sincock [1955] 2 QB 525; [1955] 3 All ER 90 (refd)

Susilawati v American Express Bank Ltd [2009] 2 SLR (R) 737; [2009] 2 SLR 737 (refd)

United Overseas Bank Ltd v Ng Huat Foundations Pte Ltd [2005] 2 SLR (R) 425; [2005] 2 SLR 425 (refd)

Williams v Roffey Bros & Nicholls (Contractors) Ltd [1991] 1 QB 1 (refd)

Wishing Star Ltd v Jurong Town Corp [2008] 2 SLR (R) 909; [2008] 2 SLR 909 (folld)

Limitation Act (Cap 163,1996 Rev Ed) ss 6 (1) (a) ,26 (2) , 29

Penal Code (Cap 224,1985 Rev Ed) s 403

Rules of Court (Cap 322,R 5, 2006 Rev Ed) O 57r 13 (4)

Unfair...