Chen Chun Kang v Zhao Meirong

• Jurisdiction: Singapore
• Judgment Date: 14 December 2011
• Date: 14 December 2011
• Docket Number: Suit No 312 of 2008 (Summons No 1000 of 2011)
• Court: High Court (Singapore)

Chen Chun Kang

Plaintiff

and

Zhao Meirong

Defendant

[2011] SGHC 263

Andrew Ang J

Suit No 312 of 2008 (Summons No 1000 of 2011)

High Court

Civil Procedure—Judgments and orders—Enforcement—Plaintiff enforcing default judgment—Defendant incarcerated in Taiwan—Defendant unable to appear in person or instruct solicitors effectively—Plaintiff's competency to testify doubted—Whether adjournment was an ‘order’ that might be appealed under s 29 A (1) Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed)—Whether leave to appeal had to be obtained under ss 34 (1) and 34 (2) Supreme Court of Judicature Act—Whether adjournment made in course of ‘interlocutory application’ under Fifth Schedule para (e) Supreme Court of Judicature Act—Whether adjournment justified in interests of justice—Sections 29 A (1), 34 (1), 34 (2) and para (e) of Fifth Schedule, Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed)

The plaintiff sought to recover moneys and assets that he had transferred to the defendant, his former mistress, allegedly in reliance on her false representations. Pursuant to a complaint lodged by the plaintiff in Taiwan, the defendant was convicted and incarcerated in Taiwan. The plaintiff commenced proceedings in Singapore to recover moneys (‘the Advances’) and bonds that were transferred to the defendant's account (‘Zhao's Citibank Singapore Account’) with Citibank NA, Singapore Branch (‘the Citibank Singapore Branch’). The plaintiff obtained default judgment (‘the Default Judgment’), on the ground, inter alia, that the Advances were procured by the exercise of undue influence. After having recovered a major portion of the Advances in a series of enforcement proceedings, the plaintiff discovered that the defendant had transferred moneys from Zhao's Citibank Singapore Account to another account pursuant to a global managed portfolios investment management agreement (‘the Agreement’) with the Citibank Singapore Branch. The plaintiff then sought an order that the defendant, inter alia, instruct the Citibank Singapore Branch to terminate the Agreement and transfer to the plaintiff all assets in the investment accounts established under the Agreement. Since proceedings in Singapore were commenced, the defendant had not been able to appear in person or instruct her solicitors effectively. Her solicitor discharged himself on 29 June 2011. The plaintiff later informed the court that the defendant would only be released on 26 October 2012, and admitted that he would be opposing any parole application by the defendant.

Held, granting an adjournment to 30 November 2012:

(1) The hearing of the Summons was adjourned to 30 November 2012 to allow the defendant about a month after her release to set aside the Default Judgment, if she intended to oppose the Summons. The plaintiff was at liberty to apply for an earlier hearing date should the defendant be released on parole: at [22] and [23] .

(2) A decision to adjourn the hearing of an application could be regarded as an ‘order’ to which s 29 A (1) of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) (‘SCJA’) applied: at [25] and [27] .

(3) Section 34 and the Fifth Schedule of the SCJA did not specify whether an order of adjournment would be one for which leave to appeal had to be sought. The Summons would not fall comfortably within the meaning of an ‘interlocutory application’ under s 34 (2) (d) read with para (e) of Fifth Schedule of the SCJA. The Summons was an application to enforce a judgment rather than an interlocutory application which was typically sought in the course of obtaining final judgment: at [31] to [33] .

(4) The court would be justified in adjourning a hearing if there were adequate reasons for doing so, and manifest injustice would not be caused to the parties: at [35] .

(5) An adjournment was necessary to enable the defendant to present her case effectively. The defendant faced significant difficulties instructing her solicitors because she was incarcerated in Taiwan: at [39] .

(6) The defendant's evidence was material and necessary because it remained uncertain whether the Advances were obtained by the exercise of undue influence, or by false representations or were explicable on account of the relationship between the plaintiff and the defendant. Furthermore, the veracity of the plaintiff's evidence and his competency to testify were in doubt: at [45] to [47] and [51] .

(7) The defendant should be given the opportunity to set aside the Default Judgment for lack of full and frank disclosure. The plaintiff did not disclose that he did not give oral evidence nor was he cross-examined in the Taiwanese proceedings. There were suspicions that he relied on his dementia to avoid giving oral evidence. This, if true, should have been drawn to the judge's attention when the Default Judgment was sought: at [54] and [56] .

(8) The plaintiff would not suffer substantial prejudice. There was no risk of dissipation of the defendant's assets. Although the plaintiff could become incompetent to give oral evidence in court, considering that his competency to testify was in doubt since proceedings commenced in Singapore, the adjournment would not be as great an injustice to the plaintiff as a refusal of such would be to the defendant: at [58] and [59] .

Albon (trading as NA Carriage Co) v Naza Motor Trading Sdn Bhd (No 5) [2008] 1 WLR 2380 (refd)

Bank Austria Creditanstalt AGv Go Dante Yap [2007] 4 SLR (R) 667; [2007] 4 SLR 667 (refd)

Boyle v Ford Motor Co Ltd [1992] 1 WLR 476; [1992] 2 All ER 228 (refd)

Bozson v Altrincham Urban District Council [1903] 1 KB 547 (refd)

Dick v Piller [1943] KB 497; [1943] 1 All ER 627 (refd)

Hup San Timber Trading Co Sdn Bhd v Tan Ah Lan [1979] 1 MLJ 238 (refd)

Insas Bhd v Ayer Molek Rubber Co Bhd [1995] 2 MLJ 833 (refd)

Intergraph Corp v Solid Systems CAD Services Ltd [1993] FSR 617 (refd)

Kabiraj Tudu v State of Assam 1994 Cri LJ 432 (refd)

Kee Lik Tian v PP [1984] 1 MLJ 306 (refd)

Lee Ah Tee v Ong Tiow Pheng [1984] 1 MLJ 107 (refd)

Lee Hsien Loong v Singapore Democratic Party [2007] 1 SLR (R) 675; [2007] 1 SLR 675 (refd)

Maxwell v Keun [1928] 1 KB 645 (refd)

MGG Pillai v Tan Sri Dato Vincent Tan Chee Yioun [1995] 2 MLJ 493 (folld)

PP v Chan Wai Heng [2008] 5 MLJ 798 (refd)

R v General Commissioners of Income Tax for Sevenoaks ex parte Thorne [1989] STC 560 (refd)

R v The General Commissioners for the Purposes of the Income Tax Acts for the District of Kensington; Ex parte Princess Edmond de Polignac [1917] 1 KB 486 (refd)

Tan Pak v Cham Boon San [1992] 2 MLJ 271 (refd)

Tay Long Kee Impex Pte Ltd v Tan Beng Huwah [2000] 1 SLR (R) 786; [2000] 2 SLR 750 (refd)

Vasiliy Golovnin, The [2008] 4 SLR (R) 994; [2008] 4 SLR 994 (refd)

Wellmix Organics (International) Pte Ltd v Lau Yu Man [2006] 2 SLR (R) 525; [2006] 2 SLR 525 (refd)

Wong Phila Mae v Shaw Harold [1991] 1 SLR (R) 680; [1991] SLR 93 (folld)

Evidence Act (Cap 97,1997 Rev Ed) s 120

Rules of Court (Cap 322, R 5, 2006 Rev Ed) O 19 r 7, O 32 r 6

Supreme Court of Judicature Act (Cap 322, 1999 Rev Ed) s 34 (1) (c)

Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) ss 29 A (1) , 34, Fifth Schedulepara (e) (consd) ;ss 29 A (1) ,34 (2) (d) ,Fifth Schedule

Supreme Court of Judicature (Consolidation) Act 1925 (c 49) (UK) s 27 (1)

David Chan and Koh Junxiang (Shook Lin & Bok LLP) for the plaintiff

Sean Say (Keystone Law Corporation) for the defendant.

Andrew Ang J

Introduction

1 Summons No 1000 of 2010 (‘the Summons’) concerns an application taken out by Chen Chun Kang (‘the Plaintiff’) to enforce default judgment obtained against his former mistress, Zhao Meirong (‘the Defendant’). The Plaintiff had brought an action against the Defendant, alleging that he had transferred substantial sums of money to her in reliance on her false representations. On 29 July 2011, I ordered that the hearing of the Summons be adjourned to 30 November 2012. This was to allow the Defendant a final opportunity to apply to set aside the default judgment as she has been incarcerated in Taiwan since proceedings commenced in Singapore. The Plaintiff has appealed against my decision to adjourn the hearing of the Summons.

Background facts

2 The Plaintiff is a wealthy retired businessman, aged 79, and a national of Taiwan. He was formerly a director of General Textile Mill Corporation, a listed company in Taiwan. The Defendant is a national of the People's Republic of China who resided in Taiwan. The Plaintiff and the Defendant met in Taipei in early 2000 and, in time, entered into an intimate relationship. Over the course of their relationship, the Plaintiff transferred substantial sums of money to the Defendant. The Plaintiff later sought to recover these moneys, arguing that he transferred these moneys in reliance on various false representations made to him by the Defendant, that:

(a) she was 23 years of age at the time she first met the Defendant;

(b) she was a Singapore citizen;

(c) she was studying medicine at the National Taiwan University;

(d) she was single;

(e) she had been abandoned by her father;

(f) her parents were suffering from terminal illnesses and were in urgent need of financial aid for their medical treatment and surgery;

(g) her brother was indebted to the National Cheng-Chi University in the sum of New Taiwan Dollars (‘NT$’)16 m;

(h) she was suffering from leukaemia and required money for medical treatment and bone marrow transplants; and

(i) she had given birth to a set of twins fathered by the Plaintiff.

3 The Plaintiff subsequently discovered, in August 2007, that the Defendant was in fact 35 years old when he first met her and that she was a Chinese national. She was not a student and had never read medicine. The Defendant was also married to one Fan Li Wei (‘Fan’). Her parents were not ill or in need of any medical treatment and she never had a...