Wah Tat Bank Ltd and Others v Chan Cheng Kum and Others

• Jurisdiction: Singapore
• Judge: A V Winslow J
• Judgment Date: 24 July 1972
• Neutral Citation: [1972] SGHC 11
• Date: 24 July 1972
• Docket Number: Suit No 1284 of 1961
• Published date: 19 September 2003
• Defendant Counsel: RJ Parker QC and J Grimberg (Drew & Napier)
• Court: High Court (Singapore)
• Plaintiff Counsel: JC Le Quesne, QC and M Karthigesu (Allen & Gledhill)

I shall assume for the purposes of this judgment that I need not set out in detail the reasons why the judicial committee of the Privy Council found itself able to reach the conclusion that the shipment of certain goods, the subject matter of this action for conversion was a delivery to the vessels, Hua Heng and Hua Li, owned by the first defendant and chartered by the second defendants, as bailees for the plaintiffs so that thereby the pledge of the said goods to them was completed and the plaintiffs given the possessory title, on which they relied, entitling them to succeed in their claim for conversion.

The Privy Council accordingly dismissed the appeal of the two defendants herein against the judgment of the Federal Court in favour of the plaintiffs against the second defendants herein for damages to be assessed by the registrar and confirmed the order that the remaining issue as to whether the first defendant was also liable in conversion should be remitted for a re-trial.

This issue eventually came before me for re-trial on 6 March 1972, damages having been finally assessed, on an appeal from the registrar, on 20 June 1969 in the sum of $570,500 which the second defendants have been unable to pay although they have paid slightly more than the total taxed costs and still have £500 due back to them on that score.

The parties were represented by Mr Le Quesne QC with Mr Karthigesu for the plaintiffs and Mr Parker QC with Mr Grimberg for the defendants.

Mr Le Quesne opened his case for the plaintiffs with a brief account of the previous history of the proceedings in this action culminating in the order of the Federal Court for the present re-trial of the issue as confirmed by the Privy Council as already stated. Whilst he was in the process of making submissions on what he considered to be the proper scope of the re-trial he ventured to submit that the Federal Court`s judgment might be against the wrong defendant but that was, nevertheless, no bar to this court`s giving judgment against the first defendant Mr Parker, who seemed to have been anxious to be heard on certain preliminary objections, immediately took his cue from Mr Le Quesne`s submissions at this stage to state quite emphatically that he did not agree that the judgment of the Federal Court was no bar to my giving judgment against the first defendant.

From then on until 4pm on Thursday, 9 March 1972, as recorded on p 35 of my notes, I heard arguments from both counsel on two preliminary points of objection. In the course of that argument Mr Parker handed up two sets of documents, exhs PD1 and PD2, setting out the agreed position between the parties on each of these points.

It may be useful at this stage to set out in full the agreed position stated out in these exhibits:

Exhibit PD1 reads as follows:

THE SECTION 11 POINT

1 It is accepted by both parties that under common law final judgment against one joint tortfeasor operates as a complete bar to all further proceedings against any other joint tortfeasor whether in the same action or otherwise.

(2) It is accepted by the defendant Chan that the Federal Court judgment, being only interlocutory, is not by itself a complete bar to all further proceedings against the defendant Chan under the common law.

(3) It is accepted by the plaintiffs that the Federal Court judgment, coupled with the assessment of damages thereunder, constitutes a final judgment and is a complete bar at common law to all further proceedings against the defendant Chan.

(4) It therefore follows that the plaintiffs` claim against the defendant Chan is now barred and that the claim against him must be dismissed unless the common law rule has been altered by statute.

(5) It is for this reason that s 11(1)(a) of the Civil Law Act becomes relevant. The plaintiffs contend that section has altered the common law rule so that the final judgment already given in this case is not a bar to further proceedings against the defendant Chan.

(6) It is accepted by both parties that s 11(1)(a) does alter the common law rule so that final judgment against one joint tortfeasor is no longer a bar to an action against any other joint tortfeasor if, but only if, he has not been `sued` within the meaning of that sub-section.

(7) The plaintiffs contend that the final judgment already given in this case is not a bar to further proceedings against the defendant Chan because they contend that `sued` in s 11(1)(a) means `sued to final judgment`, and since Mr Chan has not been sued to final judgment, there is no complete bar to further proceedings against him.

(8) If this contention is upheld this court is free to consider and decide upon the plaintiffs` claim against the defendant Chan within whatever may be held to be the proper scope of the re-trial ordered by the Federal Court.

(9) The defendant Chan contends that the final judgment already given in this case is a bar to all further proceedings against the defendant Chan because `sued` in s 11(1)(a) bears its ordinary and natural meaning and the defendant Chan, who is a defendant in the same action in which the final judgment has been given against the defendant company, has been `sued` within such ordinary and natural meaning.

(10) If this contention is upheld then all further proceedings against the defendant Chan are completely barred and the plaintiffs` claim against the defendant Chan must be dismissed.

Exhibit PD2 reads as follows:

THE SO-CALLED BARE-BOAT CHARTERPARTY POINT

1 This point only arises if the defendants fail on the s 11 point. It would then be necessary to decide what is the proper scope of the re-trial ordered by the Federal Court.

(2) It was from the outset alleged by both the defendants that the Master and crew were the servants of the defendant company and not of the defendant Chan.

(3) The sole ground upon which the two defendants sought to establish this allegation was that there was an oral bare-boat charterparty in existence between the defendant Chan (the owner of the vessels on which the goods were carried) and the defendant company.

(4) It is accepted by the plaintiffs that, if there was a bare-boat charterparty in existence, then the Master and crew were the servants of the defendant company and not of the defendant Chan.

(5) It is accepted both by the plaintiffs and by the defendant Chan that the Master and crew were employed either by the defendant company or by the defendant Chan and that they were not employed jointly by both defendants.

(6) It is accepted by the plaintiffs that the only basis upon which judgment could have been given against the defendant company is that the Master and crew were the servants of the defendant company and not of the defendant Chan.

(7) It is further accepted by the plaintiffs that if the Master and crew were the servants of the defendant company and not of the defendant Chan, the only remaining issue would be whether the defendant Chan is also liable, that is to say whether he is liable as a joint tortfeasor with the company.

(8) The plaintiffs contend that it is open to the court to investigate and decide upon the question whether the Master and crew were the servants of the defendant company or of the defendant Chan and to hold that the Master and crew were the servants of the defendant Chan and not of the defendant company, that is to say that there was no bare-boat charterparty in existence.

(9) The defendant Chan contends that such matters are not open to this court having regard, principally, to the fact that the plaintiffs asked for the judgment in fact given, which judgment is admittedly sustainable only on the basis that the Master and crew were the servants of the defendant company and not of the defendant Chan, that is to say that there was a bare-boat charterparty in existence.

(10) The defendant Chan further contends that since, in the last paragraph of the written judgment of the Federal Court and in the formal order pursuant thereto, the only issue ordered to be retried is the issue whether the defendant Chan is also liable, it is not open to this court to investigate or decide upon the question whether the defendant company was in truth liable, that is to say whether the Master and crew were in truth the servants of the defendant company at all.

(11) The plaintiffs contend that the intention of the Federal Court is shown by the whole of their written judgment to be that the whole issue which of the defendants is liable or whether both are liable for the conversion of the goods, should be retried and that this court should give effect to that intention notwithstanding the terms of the last paragraph of the written judgment, the terms of the formal order, and the other matters relied upon by the defendant Chan.

When the court adjourned at the end of the sitting on Thursday 9 March 1972 I indicated that I would give my decision on both these points on Monday 13 March 1972. A decision on the first point in favour of the first defendant would have resulted in the dismissal of the action but it was agreed by both counsel that no matter what I decided with regard to these two preliminary points on 9 Monday, the action would proceed as ordered by the Federal Court on the issue whether the first defendant was also liable in conversion like the second defendants who had already been found so liable by the Federal Court judgment as confirmed by the Privy Council.

On Monday 9 March 1972 I answered both questions on the preliminary points in favour of the first defendant, ie in favour of Mr Parker`s contentions. I then proceeded to hear the case on the basis that, in any case, the action would, at the end of the trial, be dismissed.

Mr Le Quesne then continued his opening address, called one witness, PW 1, Mr Choo Chew Sing, now managing director of the first plaintiffs. He also formally put in the record of evidence of Mr...