Chan Tuck Keong v Lam Yen Fong

• Jurisdiction: Singapore
• Judge: Teo Jing Lu
• Judgment Date: 11 August 2022
• Neutral Citation: [2022] SGDC 182
• Court: District Court (Singapore)
• Docket Number: District Court Suit No 193 of 2022 (Summons No 1933 of 2022)
• Published date: 09 November 2022
• Year: 2022
• Hearing Date: 26 July 2022
• Plaintiff Counsel: Mr Ang Woon Kherk (Ang & Tan Law Corporation)
• Defendant Counsel: Mr Lam Wai Seng (Lam W S & Co)
• Subject Matter: Civil Procedure,Summary Judgment,Tort,Conversion,Disposal of Goods
• Citation: [2022] SGDC 182

Deputy Registrar Teo Jing Lu: Introduction

This is the Plaintiff’s application for summary judgment. The claim is a straightforward one in the tort of conversion, for damages to be assessed in relation to auctioned goods won by the Plaintiff at Sheriff’s sales. All of the goods, save for two items, have been disposed by the Defendant.

At the conclusion of the hearing, I granted summary judgment for the Plaintiff. These are the full grounds of my decision.

Background facts

At all material times, the Defendant, Lam Yen Fong, was a director of Sapporo Japanese Restaurant Pte Ltd (“Sapporo”). Sapporo was the execution debtor in Writ of Seizure and Sale No. HC/WSS 35/2020, pursuant to which two separate auctions were carried out over two days at two different premises: On 1 September 2021, an auction was held at 8 Shenton Way #01-17/20 AXA Tower, Singapore (“the AXA premises”). At the material times, the occupier of the AXA premises was Minato Dining Pte Ltd ("Minato Dining"). Minato Dining was a tenant of the AXA premises, and was operating the business of a dine in Japanese restaurant at the AXA premises. On 2 September 2021, an auction was held at 3 Yuan Ching Road #01-02A, Singapore ("the Yuan Ching premises"). At the material times, the occupier of the Yuan Ching premises was Niwa Dining Pte Ltd (“Niwa Dining”). Niwa Dining was a tenant of the Yuan Ching premises, and was operating the business of a dine in Japanese restaurant at the Yuan Ching Premises.

The Defendant was at the material times the director of both Minato Dining and Niwa Dining.¹

The Plaintiff, Mr Chan Tuck Keong, was the successful bidder of all the items sold at both auctions on 1 and 2 September 2021 (“the Goods”). The successful bid price paid by the Plaintiff for the items sold at the AXA premises was $3,000, while the successful bid price paid by the Plaintiff for the items sold at the Yuan Ching premises was $11,200.

The facts surrounding the attempted collection of Goods by the Plaintiff on 1 and 2 September 2021 were hotly contested. Nevertheless, the upshot was that the Plaintiff did not eventually manage to collect or recover any items on the same day after he won the auctions at the respective premises.

A series of emails was later exchanged between the Plaintiff, Defendant, and the Sheriff with regard to the terms and arrangements for the collection of the Goods. On a goodwill basis, the Sheriff facilitated the discussion for parties to arrive at an amicable resolution. In an email from the Sheriff dated 3 September 2021 (timestamp: 5.57PM) to the parties, it was stated, inter alia, that both parties have agreed for the removal and collection of the sold auctioned items to be scheduled at the following dates and timings: For items at the Yuan Ching premises, from 6 September 2021 at 11PM to 7 September 2021 at 6AM. For items at the AXA premises, from 7 September 2021 at 11PM to 8 September 2021 at 6AM.

The Defendant turned up at both premises at the scheduled dates and timings, but the Plaintiff failed to do so. As it turned out, the Plaintiff emailed the Sheriff on 6 September 2021 sometime about 5PM to 7PM informing that he would not be attending the scheduled date and timing at the Yuan Ching premises, and requested for a refund if the sale could not eventually be completed. The Defendant, who was not copied on these emails from the Plaintiff to the Sheriff, eventually waited for the Plaintiff in vain.

Following this incident, the Defendant sent further emails to the Plaintiff demanding for the Goods to be collected, but the Plaintiff appeared unresponsive. He subsequently took other steps to recover the Goods from the Defendant sometime from late September 2021 or early October 2021. These steps include engaging a licensed debt collector, and commencing a claim in the Small Claims Tribunals. The Plaintiff later engaged solicitors in December 2021, and commenced the present suit in January 2022 claiming for the delivery of the Goods or in the alternative damages to be assessed.

The Defendant has since disclosed in her Answer to Interrogatories² that all the items won by the Plaintiff at the AXA premises were disposed of on 27 November 2021, and all the items won by the Plaintiff at the Yuan Ching premises were disposed of on 13 September 2021 (save for items #38 and #41 which are aircon units).

Parties’ submissions Plaintiff’s case for summary judgment

The Plaintiff sought for summary judgment against the Defendant for damages to be assessed in relation to the Goods. In Antariksa Logistics Pte Ltd and others v McTrans Cargo (S) Pte Ltd [2012] 4 SLR 250 (“Antariksa Logistics”) at [44], the High Court held that to succeed in a claim for conversion, a plaintiff must show that: it has actual possession of, or the right to immediate possession of the chattel converted; the right to sue for conversion existed at the time of the conversion; and the defendant acted in a manner inconsistent with the plaintiff’s superior possessory title.

With regard to the first and second element, counsel for the Plaintiff, Mr Ang Woon Kherk, submitted that the Plaintiff became the rightful and legal owner of the Goods the moment he bid successfully and paid for the Goods in full. From that moment onwards, the Plaintiff has the right to sue for conversion, and the first two requisite elements for a claim in conversion are fulfilled.³

As regards the third element, Mr Ang pointed to two separate sets of conduct which would establish that the Defendant has acted in a manner inconsistent with the Plaintiff’s right to possess the Goods.⁴ First, the Defendant refused to allow the Plaintiff and his movers to take possession of the Goods on 1 and 2 September 2021 (“Refusal to Allow Possession of Goods on 1 and 2 September 2021”). Second, the Defendant had disposed of the Goods on 13 September 2021 and 27 November 2021 (“Disposal of Goods on 13 September 2021 and 27 November 2021”).

On both of the above grounds, Mr Ang submitted that the Defendant had usurped the Plaintiff’s rights and there was plainly and undeniably no defence to the Plaintiff’s claim. The Plaintiff never did manage to take possession of a single item of the Goods.⁵

Defendant’s case for unconditional leave to defend

In resisting the summary judgment application, counsel for the Defendant, Mr Lam Wai Seng, submitted in the main that the present case raises numerous issues and/or questions of fact in dispute and issues of law which ought to be tried at trial, where witness can and may be examined to establish the truth.⁶ These triable issues of fact and law pertain largely to the factual circumstances surrounding the collection of the Goods from the Defendant’s premises, including whether reasonable access have been granted by the Defendant to the Plaintiff for the latter to collect the Goods.

Mr Lam also sought to persuade the court that the Plaintiff was not a bona fide buyer of the Goods, and had deliberately chose not to collect the Goods in order to inconvenience, harass and obstruct the smooth running of Minato Dining and Niwa Dining.⁷ According to the Defendant, the Plaintiff was seeking revenge against Sapporo on behalf of Des-Wood Pte Ltd (“Des-Wood”), the execution creditor in HC/WSS 35/2020, because Des-Wood was not able to recover from Sapporo a debt arising from renovation works carried out by Des-Wood for Sapporo.⁸

My decision

The principles governing summary judgment applications are well-established. In order to obtain summary judgment, the plaintiff must show that he has a prima facie case for judgment. If the plaintiff satisfies this, the burden shifts to the defendant to establish that there is a fair or reasonable probability that one or more of the defences raised is bona fide, or that there is some other reason for the matter to go to trial: see KLW Holdings Ltd v Straitsworld Advisory Ltd and another [2017] 5 SLR 184 (“KLW Holdings”) at [16] to [18].

A claim in conversion lies where there has been an unauthorised dealing with a chattel in a manner which deprives the claimant of the use and the possession of the same: Precious Shipping Public Co Ltd and others v OW Bunker Far East (Singapore) Pte Ltd and others and other matters [2015] 4 SLR 1229 at [42] citing Clerk & Lindsell on Torts (Michael Jones, gen ed) (Sweet & Maxwell, 21st Ed, 2014) at para 17-07. In this case, parties did not dispute the applicability of the three elements of conversion set out in Antariksa Logistics at [44].

As there were two separate sets of conduct relied on by the Plaintiff in proving conversion, each shall be analysed below in turn.

Refusal to Allow Possession of Goods on 1 and 2 September 2021

A substantial portion of the Defendant’s submissions was dedicated to demonstrating that there is a major dispute regarding the factual circumstances on 1 and 2 September 2021 at the AXA premises and Yuan Ching premises, as well as the parties’ conduct thereafter in arranging for the collection of the Goods. To this end, Mr Lam highlighted the following: No explanation is given as to why there were no affidavits filed from any of the alleged movers filed in support of the Plaintiff’s summary judgment application. The Plaintiff’s allegations as to what transpired on 1 and 2 September 2021 are not corroborated at all. It will be necessary to call the Plaintiff’s alleged movers to testify at the trial.⁹ The Sheriff had fixed two dates and timings for the Plaintiff to collect and remove the auctioned Goods. These two dates and timings were agreed to by parties. However, the Plaintiff failed, refused and/or neglected to attend on those two dates and timings despite the Defendant’s messages and reminders.¹⁰ As seen from email correspondences with the Sheriff, the Defendant had always wanted to hold the auctions as soon as possible. It will be necessary to call the Sheriff as a witness to the trial...