Bannirchelvam v Parimalam d/o Jyah Raman

• Jurisdiction: Singapore
• Judge: Foo Tuat Yien
• Judgment Date: 10 September 2002
• Neutral Citation: [2002] SGDC 237
• Published date: 19 September 2003
• Court: District Court (Singapore)
• Subject Matter: Civil Procedure,Striking out,Striking out application under Order 18 Rule 19,Res judicata,Abuse of court process

Judgment

GROUNDS OF DECISION

1. This is an appeal from the decision of the learned Deputy Registrar on 24.6.02 ordering that the plaintiff’s action be dismissed under order 18 Rule 19 and that the plaintiff pay the defendant costs of $2 500. I dismissed the plaintiff’s appeal on 31 July 2002. These are my grounds of decision.

Background

2. The plaintiff states that he practised as an advocate and solicitor under the name and style of Bannir and Associates from 1985. In March 1998, the plaintiff entrusted his firm to the defendant, who was his legal assistant. It was agreed that the defendant would pay $5 000 per month indefinitely for the firm, until the terms and conditions for the sale of the firm could be finalised. The defendant disputes the alleged terms.

3. On 28^th April 1999, parties signed an agreement for the plaintiff to sell his firm to the defendant for $150 000 (purchase price) to be paid in monthly installments of $5 000 for 30 months wef 1^st May 1999. The last installment was due on 1^st October 2001. It was also agreed that payment of another sum of $12 771.19, that was in arrears (sum in arrears) was, apart from the first installment of $771.81, to be paid in installments of $500 per month. The last installment was due on 1^st May 2002.

4. Clause 2 of the agreement provided that until payment of the final installment, the ownership, title and interests of the firm and its assets would remain in the plaintiff. Clause 14 provided that the plaintiff was ‘ to spare 14 days to do such general and client relation works per year as required by the (defendant) without charging any fees save for expenses incurred.’ Clause 5 provided that ‘ Save for Australian migration cases, the (plaintiff) was to endeavour to pass on all clients and legal works to the (defendant) and would assist the (defendant), when required to establish a legal practice.’

5. The defendant took over the firm. On 12^th June 2000, the defendant sent an email to terminate the agreement, stating in essence that she was unable to pay any more moneys to the plaintiff

6. On 21^st November 2000, the plaintiff commenced an action in MC Suit No 26351 of 2000/Q for the sum of $48 256.17, being the payments allegedly due and outstanding. In the statement of claim, the plaintiff reserved his right to claim for future installments of $60 000 for the purchase price beginning from 1^st October 2000 and $3 500 for the balance sum in arrears that would accrue from 1^st November 2000.

7. On 29^th March 2001, the plaintiff applied for summary judgement. On 10^th May 2001, the plaintiff was given judgement for the sum of $48 256.17, interest and with a stay of execution pending the resolution of the defendant’s cross claim arising out of the agreement. On appeal, the District Judge in Chambers on 22^nd August 2001, reduced the judgement amount to $25 920.66. This MC suit is pending.

8. On 8^th January 2002, the plaintiff started this DC action for the balance $60 000 due as from 1^st November 2000 to 1^st October 2001 and $3 500 for the balance sum in arrears from 1^st November 2000 to 1^st May 2001.

9. On 9^th April 2002, the plaintiff applied for summary judgement. On 21^st May 2002, the defendant applied for the plaintiff’s action to be dismissed under Order 18 Rule 19. At the hearings for both applications on 19^th June 2002, the learned Deputy Registrar proceeded to hear the defendant’s application first. On 24^th July 2002, she ordered that the plaintiff’s action be dismissed.

Defendant’s case

10. The defendant’s case is that the purchase price was liquidated and fixed at $150 000. When the plaintiff commenced his first suit in November 2000, the plaintiff was aware that the defendant had repudiated the contract and would not pay him further. The plaintiff should then have claimed for the entire balance sum of $150 000 and not just for the amounts falling due under the installment scheme. As the plaintiff’s cause of action for the entire balance sum arose at the time of the defendant’s termination of the agreement on 12^th June 2000 and as the plaintiff had obtained judgement for part of his claim in the earlier MC suit, the plaintiff’s second action under this DC suit for the additional sum of $63 500, being the balance due under the installment scheme wef 1^st November 2000 is res judicata and an abuse of the court process.

Plaintiff’s case

11. The plaintiff states that the amount of $63 500 accrued only after the commencement of the MC suit 26351 of 2000/Q. The plaintiff did not accept the defendant’s repudiation of the contract and as such is entitled to maintain this DC suit for the installment amounts which fell due after the filing of the MC suit .

12. The following cases were cited: White and Carter (Councils) Ltd v McGregor [1962] AC 413, Henderson v Henderson [1843] 3 Hare 100, Yat Tung Investment Co Ltd v Dao Heng Bank Ltd and Another [1975] AC 581, MP-Bilt...