Chan Gek Yong v Violet Netto (practising as L F Violet Netto) and another and another matter

• Jurisdiction: Singapore
• Judge: Tan Siong Thye J
• Judgment Date: 20 September 2018
• Neutral Citation: [2018] SGHC 208
• Citation: [2018] SGHC 208
• Defendant Counsel: Christopher Anand Daniel and Harjean Kaur (Advocatus Law LLP)
• Published date: 30 March 2019
• Hearing Date: 11 July 2018
• Plaintiff Counsel: Appellant in person
• Docket Number: Suit No 750 of 2012 (Registrar’s Appeal No 290 of 2017) and Suit No 751 of 2012 (Registrar’s Appeal No 291 of 2017)
• Court: High Court (Singapore)
• Date: 20 September 2018
• Subject Matter: Formation,Capacity of parties,Incapacity,Contract,Mistake,Non est factum,Duress

Tan Siong Thye J: Introduction

The plaintiff lodged Registrar’s Appeal No 290 of 2017 and Registrar’s Appeal No 291 of 2017 against the decisions of the learned Assistant Registrar James Elisha Lee Han Leong (“AR”) in Summons No 5327 of 2016 (“SUM 5327/2016”) and Summons No 5328 of 2016 (“SUM 5328/2016”) respectively. These summonses arose from Suit No 750 of 2012 (“Suit 750/2012”) and Suit No 751 of 2012 (“Suit 751/2012”) (collectively, “the Main Suits”). The defendants instituted SUM 5327/2016 and SUM 5328/2016 under O 18 r 19(1)(d) of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) (“Rules of Court”) to strike out the Statement of Claims and the Main Suits altogether.

The plaintiff in the Main Suits, Mdm Chan Gek Yong, was the appellant in these Registrar’s Appeals (“RAs”). She was unrepresented. The defendants in the Main Suits were the respondents in these RAs. They were Violet Netto, a lawyer practising in M/s L F Violet Netto, and Ravi s/o Madasamy (“Mr Ravi”) who was also a practising lawyer. In these RAs, they were represented by two lawyers, namely Mr Christopher Anand Daniel and Mr Asik Sadayan (“Mr Asik”) from M/s Advocatus Law LLP.

The central thrust of the defendants’ striking out applications was that it would be an abuse of the process to allow the Main Suits to continue as the parties had already reached an amicable settlement at the Singapore Mediation Centre (“SMC”). The parties had signed a Settlement Agreement titled “Settlement Deed Suit No 750/2012/G and Suit No 751/2012/L”, Mediation No. SMC/MC-225 of 2016, on 29 September 2016 (“the Settlement Agreement”) before two SMC-appointed mediators, Dr Joseph H H Sheares (“Dr Sheares”), a medical practitioner from Mount Elizabeth Hospital and Mr Lim Tat, a lawyer from M/s Aequitas Law LLP.

On 11 July 2018, after hearing the parties’ arguments I dismissed the appeals. The plaintiff filed a notice of appeal on 13 August 2018. I shall now give the reasons for my decision.

Background Events leading up to the Settlement Agreement

On 7 September 2012, the plaintiff commenced Suit 750/2012 against the defendants alleging that the defendants were professionally negligent and had breached their duty of care owed to her regarding her share of the net sales proceeds of a Housing & Development Board property at Block 253 Serangoon Central Drive #01-233 Singapore 550253. Arising from the same dispute in Suit 750/2012, the plaintiff commenced another suit, namely Suit 751/2012, also on 7 September 2012, against the defendants. Suit 751/2012 was for breach of trust and breach of statutory duty in respect of S$207,000, being money which the plaintiff claimed belonged to her that the defendants had transferred from the defendants’ client account to their office account without the plaintiff’s consent.

On 15 September 2016, four years later, the plaintiff and the defendants agreed to attempt to resolve the Main Suits through mediation scheduled for one day.¹ The mediation took place on 29 September 2016 at the SMC and the plaintiff and the defendants signed the Settlement Agreement on the same day.² The relevant clauses of the Settlement Agreement are reproduced for ease of reference:³ 1. Ms Violet Netto (“Ms Netto”) and Mr Ravi s/o Madasamy (“Mr Ravi”) shall pay the sum of S$150,000/- to Mdm Chan Gek Yong (“Mdm Chan”) in the following manner: (1) A sum of S$50,000/- to Mdm Chan, within 1 month from the date of this Settlement Deed; (2) The sum of S$100,000/- to Mdm Chan, in 17 monthly instalments of S$5,550/- commencing from January 2017 payable on the 15th day of every month, with a final instalment of S$5,650/-. Ms Netto and Mr Ravi shall give post-dated cheques for such sums and dated payable on such dates, within 7 days of the date of this Settlement Deed. (3) If any such instalment is not paid on its due date, then all instalments then remaining unpaid shall immediately become due and payable, and such acceleration shall be Mdm Chan’s sole remedy for such non-payment. 2. Suit No. 750/2012/G (“Suit 750”) and Suit No. 751/2012/L (“Suit 751”) shall be discontinued on the following terms: (1) Mdm Chan shall withdraw all outstanding applications in Suit 750 and Suit 751, and file a Notice of Discontinuance, with no Orders as to costs, in each of Suit 750 and Suit 751, within 14 days from the date of the Settlement Deed. (2) All parties to Suit 750 and Suit 751 shall each bear their own legal costs. 3. If Mdm Chan fails to comply with paragraph 2 above, Ms Netto and/or Mr Ravi shall be at liberty to make the appropriate application to Court to achieve the same result, and Mdm Chan shall be obliged to consent to any such application.

In accordance with cl 2(1) of the Settlement Agreement, the plaintiff was required to file Notices of Discontinuance to discontinue the Main Suits within 14 days of the signing of the Settlement Agreement.

Events after the signing of the Settlement Agreement

On 30 September 2016, in a telephone conversation between the plaintiff and the defendants’ counsel, Mr Asik, the latter explained to the plaintiff the need to place a seal on the Settlement Agreement. On 5 October 2016, Mr Asik and the plaintiff had another telephone conversation whereby Mr Asik informed her of the formalities necessary to seal the Settlement Agreement and reminded her of her obligation to file the Notices of Discontinuance to discontinue the Main Suits. Mr Asik also informed her that the defendants will give her the 18 post-dated cheques as per the Settlement Agreement by way of a covering letter.⁴

There were two pre-trial conferences (“PTCs”) ordered by the court following the signing of the Settlement Agreement. The PTCs were on 6 and 13 October 2016. At the PTC on 6 October 2016 the plaintiff informed the court that she did not want to proceed with the Settlement Agreement and wanted to continue with the Main Suits. At the end of 14 days after the signing of the Settlement Agreement, the plaintiff did not file the Notices of Discontinuance pursuant to cl 2(1) of the Settlement Agreement.

Despite the plaintiff’s refusal to discontinue the Main Suits pursuant to the Settlement Agreement, the defendants on 27 October 2016 proceeded to issue four cheques totalling a sum of S$50,000 to the plaintiff pursuant to cl 1(1) of the Settlement Agreement and 18 post-dated cheques totalling a sum of S$100,000 to her pursuant to cl 1(2) of the Settlement Agreement.⁵

The plaintiff refused to accept the cheques issued by the defendants.⁶ As a result, the defendants filed SUM 5327/2016 and SUM 5328/2016 to strike out the Main Suits in their entirety on the basis that to allow the Main Suits to continue would be an abuse of the process as the Main Suits were already resolved through the Settlement Agreement willingly executed by the parties at the SMC.

The AR’s decisions

After hearing the parties’ arguments, the AR granted the defendants’ applications to strike out the Main Suits. The AR found that the Settlement Agreement had been validly entered into.⁷ He dismissed the plaintiff’s arguments on the following grounds: The plaintiff had not specifically stated and had not adduced any evidence that she had experienced giddiness or was labouring under the effects of her medication at the time of the mediation. Furthermore, she did not inform the defendants, their lawyers nor the mediators that she was feeling unwell; The plaintiff had not adduced any evidence that she was under any form of duress or illegitimate pressure during the mediation and the signing of the Settlement Agreement; The plaintiff had not raised any issue about the inconsistency or discrepancy between the agreement she signed and the version which the defendants’ lawyer had tried to seal the day after the mediation. Furthermore, her concerns about the sealing of the Settlement Agreement were not valid; The plaintiff’s disapproval of the defendants’ insurance company paying for the first S$50,000 was irrelevant to the validity of the Settlement Agreement; The plaintiff’s allegation that the first defendant’s firm had ceased operations was unfounded as the first defendant had filed an affidavit to confirm that she is still the sole proprietor of the firm; and The AR did not accept the plaintiff’s arguments that the Settlement Agreement should cover only the Main Suits and not the other matters in which the defendants had acted for her.⁸

The AR, therefore, granted the defendants’ striking out applications. The plaintiff appealed against the decisions and the RAs were heard before me on 11 July 2018.

The parties’ cases The plaintiff’s case

The plaintiff’s arguments before me were a repetition of her arguments before the AR. In brief, she argued that the AR should not have struck out the Main Suits for two main reasons: (1) the Settlement Agreement was invalid; and (2) the Settlement Agreement was not binding because the defendants in the first place did not and had no intention to abide by the terms of the Settlement Agreement.

On the invalidity of the Settlement Agreement the plaintiff made several assertions. First, the plaintiff argued that on the day of the mediation she was unwell and was under medication which made her drowsy. Thus she was not mentally and fully alert when she signed the Settlement Agreement. The plaintiff averred that she did not understand what she was signing on 29 September 2016. She also claimed that one of the mediators, Dr Sheares, had noticed that she was anxious.⁹

Second, the plaintiff contended that she signed the Settlement Agreement under duress. She claimed that she was not represented by lawyers during the mediation whilst the defendants who were lawyers were further represented by their lawyers.¹⁰ The plaintiff also claimed that the two mediators pressurised her into signing the Settlement Agreement by emphasising to her that it was already at the end of the full day...