Chan Tuck Keong v Lam Yen Fong

• Jurisdiction: Singapore
• Judge: Jill Tan Li Ching
• Judgment Date: 31 October 2022
• Neutral Citation: [2022] SGDC 255
• Court: District Court (Singapore)
• Hearing Date: 26 August 2022
• Docket Number: District Court Suit No DC/DC 193/2022, Registrar’s Appeal No 62/2022
• Plaintiff Counsel: Ang Woon Kherk (Ang & Tan Law Corporation)
• Defendant Counsel: Lam Wai Seng (Lam W S & Co)
• Subject Matter: Civil Procedure,Summary judgment,Whether there was an issue that ought to be tried or whether there ought for some other reason to be a trial,Order 14 r 3 Rules of Court 2014,Tort,Conversion,Whether items were abandoned
• Published date: 09 November 2022

District Judge Jill Tan Li Ching: Introduction

This suit was a claim in conversion. The subject matter of the claim consisted of items (“the Items”) that the plaintiff won in two auctions that were held by the Sheriff of the Supreme Court (“Sheriff”) under Writ of Seizure and Sale HC/WSS 35/2020. The judgment creditor in that case was a company named Des-Wood Pte Ltd (“Des-Wood”), and the judgment debtor was Sapporo Japanese Restaurant Pte Ltd (“Sapporo”).¹

The Items were physically situated in two locations occupied by restaurants, and they included bottles of alcohol, kitchen appliances such as refrigerators and freezers, furniture such as tables, chairs and lights, tableware such as cutlery and crockery, and air-conditioning units.² The first location was occupied by Minato Dining Pte Ltd (“Minato”), at AXA Tower at 8 Shenton Way #01-17/20 (“the AXA premises”). The second was occupied by Niwa Dining Pte Ltd (“Niwa”), at 3 Yuan Ching Road #01-02A (“the Yuan Ching premises”). The Defendant was the director of Sapporo, Minato and Niwa at all material times.

The auction for the items at the AXA premises took place on 1 September 2021, while the auction for the items at the Yuan Ching premises took place on 2 September 2021. Despite some communications between parties, they were unable to agree on the time and manner of the plaintiff’s collection of the Items.

The plaintiff filed the present suit in January 2022 for, inter alia, delivery of the Items or damages to be assessed. It was revealed in June 2022, through the defendant’s answers to interrogatories, that all the items bar three air-conditioning units (“items #38 and #41” or “the air-con units”) in the Yuan Ching premises had been disposed of on or about 13 September 2021, while all the items in the AXA premises had been disposed of on or about 27 November 2021.³

The plaintiff thereafter filed an application for summary judgment. The Deputy Registrar (“DR”) entered summary judgment in the plaintiff’s favour for damages to be assessed in respect of all the Items disposed of, with costs reserved to the registrar assessing the damages. No orders were made in respect of the air-con units that had yet to be disposed of. The defendant filed a Registrar’s Appeal (“RA”) against this decision, seeking unconditional leave to defend, and also sought leave to admit further evidence in support of the appeal. I dismissed the appeal, and these are the grounds of my decision.

Issues to be Determined

The preliminary issue to be determined was whether to allow the admission of the further evidence in the appeal.

The primary issue was whether there was an issue or question in dispute which ought to be tried, or that there ought for some other reason to be a trial, such that the summary judgment should be set aside, and leave granted to defend the action.

Preliminary Issue: Whether the further evidence should be admitted Law

The preliminary issue was straightforward, and the applicable law was not controversial. Since a judge hearing an RA on a summary judgment hears the matter afresh, that judge is free to allow the admission of fresh evidence in the absence of contrary reasons. Thus, the “Ladd v Marshall” conditions strictly do not apply – see Lian Soon Construction Pte Ltd v Guan Qian Realty Pte Ltd [1999] 1 SLR(R) 1053 at [38].

The further evidence which the defendant sought to admit consisted of two emails, one letter, and documents concerning a claim filed in the Small Claims Tribunals (“SCT”).⁴ The plaintiff did not object to the admission of this evidence. The emails were from the defendant to the plaintiff, asking the latter to remove the Items from the premises, while the letter was from the landlord of the AXA premises stating when the lease was ending. The SCT documents concerned a claim filed by the plaintiff against Sapporo for the delivery of the items won at the auction at the Yuan Ching premises (“the SCT claim”). Sapporo, represented by the defendant at the SCT, contended that the action should have been filed against the Supreme Court of Singapore or the Sheriff instead. The plaintiff withdrew the claim on or about 23 November 2021.

Analysis

Although the Ladd v Marshall conditions did not strictly apply in the present case, I nevertheless had regard to them as a frame of reference. Thus, in terms of availability, the evidence was clearly available at the time the Defence was filed, and should have been submitted earlier. In terms of credibility or authenticity of the evidence, there was no dispute as to this.

Counsel for the defendant/appellant Mr Lam Wai Seng submitted that the evidence was relevant, and would support the defendant’s position. Counsel for the plaintiff/respondent Mr Ang Woon Kherk took the view that the evidence was relevant, but did not affect the outcome of the case.

My view was that the evidence was relevant as the emails and the letter supported the defendant’s case, while the SCT documents supported the plaintiff’s case. Although they might not be decisive of the parties’ cases and should have been submitted earlier, I determined that allowing their admission into evidence would give the court a fuller picture of what had transpired between parties. I therefore admitted this further evidence and considered it in arriving at my decision.

Primary Issue: Whether there was an issue or question in dispute which ought to be tried, or whether there ought for some other reason to be a trial Law

On the primary or substantive issue, the applicable law was not disputed.

In an application for summary judgment, where the plaintiff has shown that there is a prima facie case for judgment, the burden then shifts to the defendant to show that there is a fair or reasonable probability that he has a bona fide defence to obtain leave to defend – see M2B World Asia Pacific Pte Ltd v Matsumura Akihiko [2015] 1 SLR 325 (“M2B World Asia Pacific”) at [17]. Where the court is satisfied not only that there is no defence, but that there is no fairly arguable point to be argued on behalf of the defendant, it is the court’s duty to give judgment for the plaintiff – Stone Forest Consulting Pte Ltd v Wee Poh Holdings Ltd [2004] 3 SLR(R) 216 at [18], citing Anglo-Italian Bank v Wells (and Davies) (1878) 38 LT 197 at 201.

O 14 r 3(1) of the Rules of Court 2014 states that a court may grant summary judgment to the plaintiff unless the defendant satisfies the court that there is an issue or question in dispute which ought to be tried, or that there ought for some other reason to be a trial. It has been held that the latter limb can be invoked where a court is satisfied that there are circumstances that ought to be investigated, even though the defendant cannot point to a specific issue which ought to be tried. As noted by the High Court in Concentrate Engineering Pte Ltd v United Malayan Banking Corp Bhd [1990] 1 SLR(R) 465 at [12], citing Megarry J in Miles v Bull [1969] 1 QB 258, “Order 14 is for the plain and straightforward, not for the devious and crafty.” However, where it is clear that there is no defence, the fact that the court disapproves of the general behaviour of the plaintiff or parties is not a reason to deny summary judgment – see Ling Yew Kong v Teo Vin Li Richard [2014] 2 SLR 123 at [33].

Next, to sustain a claim in conversion, the plaintiff has to prove three elements. First, that he had actual possession of, or the right to immediate possession of, the chattel converted. Second, the plaintiff must show that the right to sue for conversion existed at the time of the conversion. Third, the plaintiff must show that the defendant acted in a manner inconsistent with the plaintiff’s superior possessory title – see Antariksa Logistics Pte Ltd and others v McTrans Cargo (S) Pte Ltd [2012] 4 SLR 250 at [44].

Analysis

The defendant did not dispute that the plaintiff had the right to immediate possession of the Items won at the auctions, and that he had a right to sue for conversion at the time the Items were disposed of. The Defendant therefore accepted that the first two elements in the legal test for conversion were satisfied.

The defendant also admitted that all the Items (except for the air-con units) had been disposed of. It was thus clear that the plaintiff had shown that there was a prima facie case for summary judgment. The burden then fell to the defendant to show that she had a bona fide defence.

In this regard, Mr Lam raised three main arguments – abandonment, the plaintiff’s lack of bona fides, and whether the defendant was the correct party to sue. I dealt with the first two points together, followed by the third.

Abandonment and lack of bona fides

During the RA, Mr Lam contended that the third element to prove conversion was not made out: that is, the defendant had not acted in a manner inconsistent with the plaintiff’s superior possessory title, because the plaintiff had effectively abandoned the Items.

I noted that abandonment was not pleaded in the Defence. At best, it was alluded to in the assertion⁵ that the plaintiff had been given the opportunity to collect and remove the Items, but failed to do so. However, the thrust of the pleaded Defence seemed to be the unreasonableness of the plaintiff’s conduct, and that he had not been a bona fide purchaser of the Items, only purchasing them to harass and cause disruption to the businesses of Minato and Niwa.⁶ It appeared that it was only after the DR mentioned abandonment in his Grounds of Decision (“DR’s GD”)⁷ that this point was substantively taken up by the defendant.

If abandonment was in fact the defence,⁸ then since the Items (except for the air-con units) had been disposed of, it did not appear on the present facts that it was tenable for the defendant to accept that the second element of the test for conversion had been satisfied, but also claim that the third was not. This was because if the...