Anil Singh Gurm v J S Yeh & Co and another
Jurisdiction | Singapore |
Judge | Sundaresh Menon CJ |
Judgment Date | 07 February 2020 |
Neutral Citation | [2020] SGCA 5 |
Docket Number | Civil Appeal No 164 of 2018 |
Date | 07 February 2020 |
Published date | 12 February 2020 |
Plaintiff Counsel | Deborah Evaline Barker SC, Ushan Premaratne, and Jonathan Tan (Withers KhattarWong LLP) |
Hearing Date | 20 August 2019 |
Defendant Counsel | Chandra Mohan Rethnam and Ang Tze Phern (Rajah & Tann Singapore LLP) |
Court | Court of Appeal (Singapore) |
Subject Matter | Attendance,Evidence,Video link,Witnesses |
In
…
[E]very litigant has a general right to bring all evidence relevant to his or her case to the attention of the court. This general right is so fundamental that it requires no authority to be cited in support of it; in fact, to say that the right derives from some positive decision or rule is to understate its constitutive importance to the adversarial approach to fact-finding. The importance of the right is reflected in the fact that a litigant may pray in aid the machinery of the court to compel, on the pain of contempt, all persons who are in a position to give relevant evidence, to come forward and give it.The general right is, of course, subject to specific limits. … The adduction of relevant evidence must, as far as practicable, take place in accordance with the rules of procedure whose purpose is to ensure the
fair , economical, swift and orderly resolution of a dispute. Finally, a litigant is prohibited from manipulating the court’s machinery to further his ulterior or collateral motives in an abusive or oppressive manner.In striking the proper balance between the general right and the specific limits,
a trial judge must not only be guided by the applicable rules and decisions, but must look beyond the mechanical application of these rules and decisions, and carefully assess the interests at stake in every case to ensure that a fair outcome is reached through the application of fair processes. It should always be borne in mind that grave consequences might flow from the wrongful exclusion of evidence (such as by shutting out a witness from testifying or preventing cross-examination). …[emphasis in original in italics; emphasis added in bold italics]
The litigant’s right to bring all relevant evidence before the court is a right to physically adduce that evidence in court. Modern technology has been called in aid of litigants who for one reason or another have difficulty in bringing witnesses into the courtroom. One specific way that it has done so is to enable litigants to call witnesses to testify in judicial proceedings through live video link, thereby giving them and the court access to evidence that might otherwise be inadmissible or unavailable. That said, Singapore law does not grant litigants a
This appeal arose out of an application by Mr Anil Singh Gurm, the plaintiff in Suit No 580 of 2016 (“Suit 580”), for leave pursuant to s 62A(1)(
The appellant is a Singapore citizen and is resident here. The first respondent (and first defendant in Suit 580), J S Yeh & Co (“JSY”), is a local law firm. The second respondent (and second defendant in Suit 580), Ms Yasmin binte Abdullah (“Ms Yasmin”), is a solicitor and was employed by JSY at the material time. The appellant alleged that the respondents had been negligent in acting for him in the purchase of a local residential property.
Background to the disputeIn 2006, Mr Sekhon, who is the appellant’s cousin, sought to purchase a house in Singapore (“the Property”) for occupation by himself and his family. Being a foreigner, however, Mr Sekhon could not purchase the Property without the prior approval of the Land Dealings Approval Unit (“the LDU”) pursuant to s 3 of the Residential Property Act (Cap 274, 2009 Rev Ed) (“the RPA”), which places restrictions on foreign nationals’ ownership of local residential property. Mr Sekhon applied for permanent residency in Singapore in June 2006. Sometime during the period from July to August 2006, he engaged JSY to act as his solicitors in his application for the LDU’s approval (“the LDU application”) and his acquisition of the Property. During this period, he liaised directly with Ms Yasmin and a Ms Quah Kwee Suan (“Ms Quah”) who was also a solicitor employed by JSY at the material time. Unfortunately, Mr Sekhon did not obtain the necessary approval from the LDU and therefore could not purchase the Property in his own name.
In October 2006, Mr Sekhon approached the appellant and asked if the appellant would be willing to consider purchasing the Property as Mr Sekhon’s “nominee”. According to the appellant:
The respondents disputed this version of events, and instead contended that:
A fresh option to purchase the Property was issued by the vendors in the appellant’s favour in November 2006. Shortly afterwards, the appellant appointed JSY as his solicitors in the Property’s acquisition. The appellant eventually acquired the Property in his own name with the transaction being completed in late December 2006. He claimed that both he and Mr Sekhon were unaware that it was unlawful for him to act as the latter’s nominee in the purchase of the Property.
According to the appellant, the Property was sold in mid-2012 for about $5.5m. The proceeds of sale were used to discharge the mortgage and pay for other related outstanding expenses, with the balance, amounting to about $3m, being returned to Mr Sekhon who by then had left Singapore for Australia.
In December 2012, the Commercial Affairs Department of the Singapore Police Force (“CAD”) commenced an investigation into the purchase of the Property and seized documents from the appellant’s house. The appellant informed Mr Sekhon of this investigation, and the two men started communicating on the steps that they should take to raise the necessary funds for the purposes of making restitution to the State. Both men hoped that the criminal investigation would be dropped after they had made full restitution to the State. They also discussed the commencement of legal proceedings against the respondents with the expectation that the respondents would indemnify them against any sum payable as restitution to the State. Mr Sekhon remitted about $2m to the appellant between May 2014 and March 2015 for this purpose. However, their relationship subsequently deteriorated as Mr Sekhon was unable to deliver on his promise to provide the appellant with sufficient funds to cover the amount that the appellant might have to pay the State under a confiscation of benefits order. The appellant has not received any further sums from Mr Sekhon.
In January 2015, the appellant was charged with an offence under s 23 of the RPA for his role in the purchase of the Property as a nominee/trustee of Mr Sekhon, a foreigner, with the intention of holding the Property on trust for the latter. He claimed trial to the charge. In July 2015, the Prosecution also informed the appellant that the proceeds from the sale of the Property (
As mentioned above, the appellant claimed trial to the charge. His criminal trial was originally scheduled to take place at the end of 2016. However, the appellant sought and obtained an adjournment of the criminal trial on the basis that it would be more expedient if his negligence claim against the respondents in Suit 580 was determined first. It appeared that his defence against the charge was that s 23 of the RPA required proof that he had purchased the Property on Mr Sekhon’s behalf without knowing that his...
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