Chia Kok Kee v Tan Wah

• Judgment Date: 21 February 2012
• Date: 21 February 2012
• Docket Number: Suit No 97 of 2011 (Registrar's Appeals Nos 273, 274 and 275 of 2011)
• Court: High Court (Singapore)

Chia Kok Kee

Plaintiff

and

Tan Wah and others

Defendant

[2012] SGHC 36

Tay Yong Kwang J

Suit No 97 of 2011 (Registrar's Appeals Nos 273, 274 and 275 of 2011)

High Court

Civil Procedure—Striking out—Plaintiff claiming fraud in new action without factual basis—Plaintiff claiming for future dividends—Whether there was reasonable course of action—Order 18 r 19 (a) Rules of Court (Cap 322, R 5, 2006 Rev Ed)

Civil Procedure—Striking out—Plaintiff instituting new action despite original dispute already adjudicated by previous courts—Plaintiff making same allegation as in previous proceedings—Plaintiff instituting new action without factual basis—Plaintiff bringing parties having little to do with original dispute into present action—Whether action an abuse of court process—Order 18 r 19 (d) Rules of Court (Cap 322, R 5, 2006 Rev Ed)

Civil Procedure—Striking out—Plaintiff instituting new action despite original dispute already adjudicated by previous courts—Plaintiff making same allegation as in previous proceedings—Plaintiff instituting new action without factual basis—Plaintiff bringing parties having little to do with original dispute into present action—Whether action frivolous and vexatious—Order 18 r 19 (b) Rules of Court (Cap 322, R 5, 2006 Rev Ed)

The plaintiff and the first defendant were investors in a joint venture in China (‘the Chinese Investment’). A company, HX Investment Pte Ltd (‘HX’), was set up as the investment vehicle through which they participated in the Chinese Investment. The second defendant was HX's auditor while the third defendant was the first defendant's solicitor acting for her in her previous related matters of Suit No 558 of 2005, Civil Appeal No 127 of 2005 and Originating Summons No 331 of 2010.

A dispute arose between the plaintiff and the first defendant where the plaintiff alleged that his contribution in the Chinese Investment was unrecorded by the first defendant in HX's books and he also accused her of saying that he had mishandled the dividend payouts. Consequently the plaintiff sued HX in Suit No 558 of 2005 in the High Court to resolve the dispute. He failed to establish his case. His appeal before the Court of Appeal in Civil Appeal No 127 of 2005 was dismissed. The plaintiff's application for a new trial in Originating Summons No 331 of 2010 before the Court of Appeal was also dismissed.

Thereafter the plaintiff instituted a new action in Suit No 97 of 2011, in which the present appeals arose, alleging fraud against the first defendant in omitting to record his investment contribution and further alleging that the second and third defendants were in collusion in this fraud. The defendants filed defences stating that the plaintiff was re-litigating his former claims and that his claims were an abuse of process of court.

The plaintiff applied to strike out the defendants' defences in Summons No 1111 of 2011 pursuant to O 18 r 19 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed). The defendants in turn applied to strike out the plaintiff's claim in Summons No 1645 of 2011 and Summons No 1658 of 2011.

The Assistant Registrar (‘AR’) dismissed the plaintiff's application to strike out the defences. The defendants' applications to strike out the plaintiff's claims were granted by the AR.

The plaintiff appealed against the decision of the AR.

Held, dismissing the plaintiff's appeals:

(1) The ground of abuse of process of court under O 18 r 19(d) of the Rules of Court in striking out applications sought to ensure that the court's process was used only for proper and bona fide purposes. It prevented a party who could have litigated an issue in previous proceedings but failed to do so from initiating a new action to determine it where clear and justifiable reasons for allowing so were absent: at [29] and [40].

(2) In determining if proceedings were an abuse of process of court, a ‘broad, merits-based judgment’ approach was taken: at [30].

(3) The present proceedings by the plaintiff were an abuse of the court's process and were rightly struck out by the AR. Although the plaintiff's present claim took the form of a claim in fraud, the essence of the plaintiff's complaint remained the same as that of previous proceedings where he claimed for an account of his investment contribution and dividend entitlement. The plaintiff's claim had already been adjudicated by the High Court and his appeal therefrom dismissed by the Court of Appeal. The institution of the present proceedings by the plaintiff thus amounted to an abuse of the court's process and a collateral attack on the courts' previous decisions. Alleging without factual basis that the High Court judge was misled by fraud to give judgment in favour of the first defendant was an abuse of process of court. Further, the plaintiff continued to make the same allegations against the first defendant even though the original dispute had already been adjudicated and brought in the second and third defendants who had little to do with the underlying original dispute to answer to the present fraud claims which lacked factual basis: at [34], [35] and [37] to [39].

(4) The plaintiff's action could be dismissed on the alternative ground of it being a frivolous and vexatious action under O 18 r 19(b) of the Rules of Court for the same reasons above: at [42].

(5) The plaintiff's action could also be dismissed on the alternative ground of there being no reasonable cause of action under O 18 r 19(a) of the Rules of Court. There were no facts supporting the plaintiff's allegation of fraud against the defendants. Also, there was no basis for the plaintiff's claim for future dividends as these had not yet accrued: at [43], [45]and [46].

Chia Kok Kee v HX Investment Pte Ltd [2007] SGHC 164 (refd)

Chua Kwee Chen v Koh Choon Chin [2006] 3 SLR (R) 469; [2006] 3 SLR 469 (refd)

Drummond-Jackson v British Medical Association [1970] 1 WLR 688; [1970] 1 All ER 1094 (refd)

Gabriel Peter & Partners v Wee Chong Jin [1997] 3 SLR (R) 649; [1998] 1 SLR 374 (refd)

Goh Koon Suan v Heng Gek Kiau [1990] 2 SLR (R) 705; [1990] SLR 1251 (refd)

Goh Nellie v Goh Lian Teck [2007] 1 SLR (R) 453; [2007] 1 SLR 453 (refd)

Henderson v Henderson [1843-1860] All ER Rep 378 (refd)

Johnson v Gore Wood & Co (a firm) [2002] 2 AC 1 (refd)

Lai Swee Lin Linda v AG [2006] 2 SLR (R) 565; [2006] 2 SLR 565 (refd)

Osprey, The [1999] 3 SLR (R) 1099; [2000] 1 SLR 281 (refd)

Rippon v Chilcotin Pty Ltd (2001) 53 NSWLR 198 (refd)

Rules of Court (Cap 322, R 5, 2006 Rev Ed) O 18 r 19 (consd) ; O 18 r 19 (1) (a) , O 18 r 19 (1) (b) , O 18 r 19 (1) (d)

The plaintiff in person

Wong Yao Fang (Fabian & Khoo) for the first and second defendant

The third defendant in person.

Tay Yong Kwang J

1 The plaintiff, Chia Kok Kee, appealed against the decision of the assistant registrar (‘the AR’) in Summonses Nos 1111, 1645 and 1658 of 2011. In Summons No 1111 of 2011, the AR dismissed the plaintiff's application to strike out the first, second and third defendant's defences. In the latter two summonses, ie, No 1645 of 2011 and No 1658 of 2011, the AR granted the applications by the defendants to strike out the plaintiff's action.

2 The plaintiff was not represented by solicitors. He spoke in English during the hearing before me. After hearing the parties' arguments, I dismissed the plaintiff's appeals.

Facts

Parties

3 The plaintiff is an investor in a hydroelectric power plant joint venture in Dujiangyan, Sichuan Province, People's Republic of China (‘the Chinese Investment’).

4 The first defendant is similarly an investor in the Chinese Investment. A company, HX Investment Pte Ltd (‘HX’), was set up to be the investment vehicle through which the parties participated in the Chinese Investment. The directors and shareholders of HX comprised the plaintiff's mother and the first defendant.

5 The second defendant was the auditor and corporate secretary of HX. He assisted with the capitalisation of HX in its early years.

6 The third defendant was the solicitor acting for the first defendant in the previous related matters, namely, Suit No 558 of 2005, Civil Appeal No 127 of 2005 and Originating Summons No 331 of 2010.

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