Ang Tin Gee v Pang Teck Guan

• Judge: Belinda Ang Saw Ean J
• Judgment Date: 14 September 2015
• Neutral Citation: [2015] SGHC 241
• Citation: [2015] SGHC 241
• Docket Number: Suit No 697 of 2010 (SUM No 6145 of 2013)
• Published date: 19 September 2015
• Hearing Date: 21 May 2015,08 January 2015
• Plaintiff Counsel: Lai Mun Onn (Lai Mun Onn & Co)
• Date: 14 September 2015
• Defendant Counsel: Yeo Choon Hsien Leslie (Sterling Law Corporation)
• Court: High Court (Singapore)
• Subject Matter: Civil Procedure,Judgment and orders,Effect of order that money be held by stakeholder for judgment creditor's benefit

Belinda Ang Saw Ean J: Introduction

Summons No 6145 of 2014 (“SUM 6145/2014”) was the plaintiff’s application for payment out of a sum of $545,277.42 (“the stake money”) that was held by a firm of lawyers as a stakeholder pursuant to an Order of Court dated 14 August 2012 (“the Stakeholder Order”). The defendant objected to the payment out application on the ground that the stake money was not ring-fenced to pay his judgment debt in favour of the plaintiff. Rather, the stake money formed part of the defendant’s estate to be administered and distributed by the Official Assignee.

The defendant’s objection was inspired by Bankruptcy No 2279 of 2014, a bankruptcy application filed by his wife on 6 November 2014, nine days after he agreed to a Consent Order made in Registrar’s Appeal Nos 383 and 384, both of 2013 (“the Appeals”). This Consent Order, made on 28 October 2014, was in respect of the defendant’s Appeals against the orders made by Assistant Registrar Justin Yeo (“AR Yeo”) on 7 November 2013 and 19 November 2013 respectively. These decisions are collectively referred to hereafter as “AR Yeo’s 2013 decisions”.

No adjudication order has been made against the defendant. The plaintiff is separately contesting the veracity and credibility of the bankruptcy application which she saw as nothing more than tactical manoeuvring by the defendant and his wife to stymie her right to the stake money as the defendant’s judgment creditor in this action, Suit No 697 of 2010/A (“Suit 697/2010”).

Payment out of the stake money to the plaintiff’s solicitors was ordered on 21 May 2015. Notably, a determination of SUM 6145/2014 was not limited to construing the scope and effect of the Stakeholder Order. Linked to the Stakeholder Order was the defendant’s successful application to stay execution of AR Yeo’s 2013 decisions including costs taxed on 26 November 2013 pending the outcome of the Appeals. An order to stay execution was granted on 24 January 2014 (“the Stay of Execution Order”). An analysis of the Stakeholder Order would be incomplete without considering the effect of the Stay of Execution Order. The principal questions to be answered in SUM 6145/2014 were: (a) whether the bankruptcy application would affect the court’s power to release the stake money to the plaintiff; and (b) whether the effect of the Stakeholder Order and/or Stay of Execution Order gave the plaintiff what could fairly be characterised as conditional payment of, and/or security for, the various sums in AR Yeo’s 2013 decisions including costs taxed on 26 November 2013 pending the outcome of the Appeals.

The defendant has appealed against my Order of 21 May 2015. I now publish the reasons for my decision.

History of the proceedings

Suit 697/2010 was a partnership dispute that was concluded in favour of the plaintiff in 2011 after a nine-day trial. The facts and disputes are detailed in my written Judgment (Ang Tin Gee v Pang Teck Guan [2011] SGHC 259) handed down on 2 December 2011 (“the 2011 Judgment”).

Pursuant to the 2011 Judgment, a series of pre-trial conferences in relation to the taking of accounts of the partnership were held between 7 February 2012 and 27 November 2012. Eventually an Account and Enquiry was heard before AR Yeo over an intermittent period of 11 days commencing on 17 January 2013 after which AR Yeo rendered his decisions on 7 November 2013 and 19 November 2013 respectively.

I now come to the two relevant interlocutory applications, namely Summons No 2481 of 2012 (“SUM 2481/2012”) and Summons No 6231 of 2013 (“SUM 6231/2013”).

SUM 2481/2012 and the Stakeholder Order

Whilst the parties were preparing for the taking of accounts (see [7]), the plaintiff learned that the defendant was selling his flat (“the Kemaman Property”) which she believed to be his “only substantial asset”. On 21 May 2012, the plaintiff filed Summons No 2481/2012 for the following orders: An injunction preventing the defendant from dealing with or diminishing the net sale proceeds of the Kemaman Property. The net sale proceeds are to be held by a neutral stakeholder “to secure the rights and interests of the [p]laintiff pursuant to the [2011 Judgment]”. To facilitate items (a) and (b), the defendant furnishes an account of the sale proceeds from the disposal of the Kemaman Property within seven days from the date of order or such time as the court deems fit to impose.

The defendant did not object to the application in SUM 2481/2012. His counsel, Mr Leslie Yeo (“Mr Yeo”), merely pointed out that, logically speaking, the defendant should only be required to provide an account of the sale proceeds two weeks before completion of the sale, and not from the date sought in item (c) above. I agreed with the defendant’s counsel, Mr Yeo, on that point. I allowed the plaintiff’s application in amended terms. For present purposes, I set out the order made in relation to prayer (b) which is known here as the Stakeholder Order:

That the net sale proceeds … from the sale of the Kemaman Property … be held by [the solicitors representing the defendant in the sale of the Kemaman Property, being a designated neutral stakeholder] … either wholly or in such amounts as may be fair, just and necessary to secure the rights and interests of the Plaintiff pursuant to the [the 2011 Judgment] …

As stated, the defendant did not oppose SUM 2481/2012 and, naturally, there was no appeal against the Stakeholder Order.

SUM 6231/2013 and the Stay of Execution Order

I now come to the application for stay of execution pending: (a) the appeal of AR Yeo’s 2013 decisions (see Ang Tin Gee v Pang Teck Guan [2013] SGHCR 26); and (b) the Review of the costs order of 26 November 2013. As a result of AR Yeo’s 2013 decisions and the costs taxed on 26 November 2013, the quantified sum that the defendant was required to pay to the plaintiff as a judgment creditor was computed at $607,756.69 (excluding interest).

I should mention Bill of Costs No 186 of 2012 (“BC 186”) which was the plaintiff’s Bill of Costs in respect of the 2011 Judgment that was taxed by another Assistant Registrar on 26 November 2013. Party and party costs in BC 186 were taxed as follows: $200,000 (section 1 costs); $2,000 (section 2 costs); and $51,567.80 (section 3 costs).

Following AR Yeo’s 2013 decisions and taxation of BC 186 on 26 November 2013 (see [13] above), the plaintiff’s counsel, Mr Lai Kwok Seng (“Mr Lai”), called upon the stakeholder to release the stake money (ie, $545,277.42). That prompted the defendant to file his application for stay of execution pending appeal on 2 December 2013 (ie, SUM 6231/2013).

Prayer 2 of SUM 6231/2013 was for an order that the same law firm in the Stakeholder Order “holds the sum of $545,277.42 as stakeholders pending the final disposal of the appeals” against the AR Yeo’s decisions including the costs order of 26 November 2013. In the defendant’s supporting affidavit, he stated that maintaining the status quo would not “prejudice” the plaintiff’s position “in any way”. The Assistant Registrar, Ms Lim Sai Nei (“AR Lim”), granted the order for a stay of execution on 24 January 2014 (“the Stay of Execution Order”). AR Lim further ordered that:

M/s De Souza & Goh LLP holds the sum of $545,277.42 as stakeholders pending the final disposal of the appeals against [AR Yeo’s 2013 decisions] and the [costs order] dated 26 November 2013.

AR Lim’s order set out in [15] above is significant. I will elaborate of this specific order later in this written decision. In the meantime, I propose to set out extracts of AR Lim’s Notes of Evidence to show the parties’ stance before AR Lim.

S No 697 of 2010 (SUM No 6231 of 2013)

24 January 2014 9am

DC:	This is my application for a stay pending the appeal. Which is coming up on 4 March. I filed an affidavit in support. Don’t believe LF has filed a reply. No right?
PC:	[Nods]
DC:	… Long history. … Ang J declared equal partnership and ordered accounts to be taken. Accounts finally came to be taken by AR Justin Yeo. We have filed an appeal against both his decision on the account and costs. …
	Appeal is going to be heard in a month’s time. Para 7 of Df’s affidavit. Sum of money being held by De’Souza Lim & Goh LLP. So effectively Pf’s position is secured pending the hearing of the appeal.
Court:	Is the money still with De’Souza? When was it supposed to be held until?
DC:	Still with the solicitors. It is essentially to secure the monies of the Df. No automatic stay.
	But this case is special because of the amount being secured. And we are talking about one month to the appeal. …
Court:	So the sum held by the law firm is more than the amount ordered by the AR?
PC/DC:	Yes.
…
PC:	… What is before YH is whether you should exercise your discretion to grant a stay. Tab 6 – letter dd 27 Nov 2013 from PC to DC showing amount owing from Df is $876,935.98. So the sum of $545,277.42 held by De’Souza is not enough to cover.
	[Goes through written submissions]
	Pf mortgaged her house to pay monies on behalf of the partnership. There are no special circumstances.
Court:	But it will only be for 4 weeks before the appeal will be heard. Even if she gets the money now, surely she wouldn’t use it to pay the mortgage.
PC:	My conclusion is that the stay application be dismissed. No reason for stay. …
Court:	…
PC:	… Bring YH to authorities.
	Tab 1 – Lee Sian Hee [1992] 1 SLR 77 – pg 78. A stay will be granted if it can be shown by affidavit that, if the damages and costs are paid, there is no reasonable probability of getting them back, if the appeal succeeds. If...