Chua Kok Tee David v DBS Bank Ltd

• Jurisdiction: Singapore
• Judge: Vinodh Coomaraswamy J
• Judgment Date: 31 July 2015
• Neutral Citation: [2015] SGHC 198
• Published date: 07 August 2015
• Date: 31 July 2015
• Year: 2015
• Hearing Date: 03 September 2014,05 January 2015,09 September 2014,28 November 2014,05 September 2014,26 November 2014,04 September 2014,10 September 2014,26 January 2015
• Plaintiff Counsel: Tan Teng Muan and Ong Ai Wern (Mallal & Namazie)
• Citation: [2015] SGHC 198
• Defendant Counsel: Tham Hsu Hsien, Tan Kai Liang and Hoh Jian Yong (Allen & Gledhill LLP)
• Court: High Court (Singapore)
• Docket Number: Suit No 743 of 2013

Vinodh Coomaraswamy J: Introduction

A creditor lends money to a debtor in 1983. The debtor is obliged upon demand to repay the money to the creditor together with interest compounded with monthly rests. In 2012, the creditor demands repayment. He claims that the debtor has not, in the intervening 29 years, repaid the debt to him. The debtor denies any obligation to repay the creditor. But it cannot offer positive proof that it has repaid the debt. Instead, it produces its internal records which show no evidence of any such debt due to the creditor from February 1984 onwards. Who succeeds?

That, in a nutshell, is the gist of this suit. The only unexpected feature is that the debtor is a bank and the creditor is the bank’s customer. The plaintiff is David Chua Kok Tee, a prominent and successful businessman. The defendant is DBS Bank Ltd, one of Singapore’s big three local banks. The debt in question is a fixed deposit which the plaintiff placed with the defendant in 1983 and which he sought to uplift in 2012.

Having reviewed the evidence and the submissions, I have dismissed the plaintiff’s claim with costs. I have found that the defendant has established on the balance of probabilities that it, in or before 1985, it repaid the plaintiff the debt represented by the plaintiff’s fixed deposit account. The plaintiff has appealed against my decision. I now set out my grounds.

The background

Over the years, the plaintiff maintained four accounts with the defendant. They were all opened in 1983. Those four accounts are as follows: The 9246 account: this is a fixed deposit account which the plaintiff opened on 13 March 1983 and which forms the subject-matter of this suit. The 9756 account: this is a fixed deposit account in the joint names of the plaintiff and his wife. It was opened shortly after the 9246 account. The defendant accepts that it remains indebted to the plaintiff on this account. The 6143 account: this is a chequing account in the plaintiff’s sole name. The plaintiff opened this account in July 1983 and closed it in June 1998.¹ The 6144 account: this is a chequing account in the joint names of the plaintiff and his wife. They opened this account in July 1983 and closed it in June 2013, just before the plaintiff commenced this suit.² Although two of these four accounts are joint accounts with the plaintiff's wife, nothing turns on that fact. For ease of exposition, therefore, I will refer to all four accounts as though the plaintiff were the sole account-holder.

Events in 1983 The plaintiff opens the 9246 account

On or about 13 March 1983, the plaintiff opened the 9246 account at the defendant’s Orchard Road branch. To open this account, the plaintiff placed the principal sum of $135,954.43 with the defendant on one month’s fixed deposit, ie, until 13 April 1983, at an interest rate of 6.0625% per annum.³

In exchange for this placement, the defendant issued to the plaintiff a fixed deposit receipt dated 13 March 1983.⁴ The plaintiff produced this receipt at trial. The defendant does not dispute the authenticity of this receipt or that it records accurately the terms of the fixed deposit placement which it records. In addition to recording these terms, the receipt also bears the notation “Automatic Renewal”. It is common ground that this means that the plaintiff authorised the defendant, until further notice, to place the principal and all accrued interest in the 9246 account on a new one-month fixed deposit on the 13th of every month at the defendant’s prevailing interest rate.

The plaintiff opens the 9756 account

Two months after opening the 9246 account, on or about 11 May 1983, the plaintiff opened the 9756 account. This was also opened at the defendant’s Orchard Road branch. To open this account, the plaintiff placed the principal sum of $1,000 with the defendant on one year’s fixed deposit, ie, until 11 May 1984, at an interest rate of 6.5% per annum.⁵ The plaintiff was required to place and maintain this deposit with the defendant as a condition of being permitted to rent one of the defendant’s safe deposit boxes. The safe deposit box which the plaintiff initially rented was located at the Orchard Road branch.⁶ In December 1999, with the plaintiff’s consent and participation, the safe deposit box which he rented was moved to the defendant’s Shenton Way branch.⁷

In exchange for the initial placement of $1,000 on the 9756 account, the defendant issued to the plaintiff a fixed deposit receipt dated 11 May 1983. The plaintiff produced this receipt at trial too. Again, the defendant does not dispute the authenticity of this receipt or that it records accurately the terms of the fixed deposit placement it records. This receipt also bears the notation “Automatic Renewal”. It is common ground that this means that the plaintiff authorised the defendant, until further notice, to place the principal and all accrued interest in the 9756 account on a new one-year fixed deposit on 11 May every year at the defendant’s prevailing interest rate.

On or about 11 May 1983, the plaintiff put the two original fixed deposit receipts issued to him for both the 9246 account and the 9756 account into his safe deposit box at the defendant’s Orchard Road Branch. The receipts remained in this safe deposit box until 2012, first at the Orchard Road branch, and from 1999 at the Shenton Way branch.

Events in 2012

On 6 January 2012 and again on 11 May 2012, the defendant wrote to the plaintiff to inform him that it would be terminating his safe deposit box facility with effect from 30 June 2012. This was because the defendant’s Shenton Way branch was closing, to be replaced by a new branch at the Marina Bay Financial Centre (“MBFC”). The MBFC branch had no safe deposit box facilities. The defendant’s letter invited the plaintiff to attend at its Shenton Way branch at the latest by 30 June 2012 in order to close his safe deposit box.⁸

On 25 June 2012, the plaintiff visited the defendant’s Shenton Way Branch to close and surrender his safe deposit box. The plaintiff retrieved from the box the two original fixed deposit receipts which he had placed there in 1983. He asked an officer of the defendant, Ms Ho Siew Fong (“Ms Ho”) to confirm the amount due to him under each receipt and to uplift both fixed deposits and credit the proceeds to his 6144 account. After checking, Ms Ho was able to tell the plaintiff immediately the amount standing to his credit on the 9756 account. She was unable, however, to find any trace of the 9246 account in the records available to her. She told the plaintiff that the defendant would need time to respond to him.⁹

On 17 July 2012, Ms Ho called the plaintiff and informed him that the defendant was still unable to find any trace of the 9246 account. She asked the plaintiff to make a formal request in writing to ask the defendant to trace the 9246 account.¹⁰

The plaintiff thus wrote to the defendant on 18 July 2012. The plaintiff enclosed a copy of the initial fixed deposit receipt for the 9246 account which he had retrieved on 25 June 2012 from his safe deposit box. He asked the defendant to carry out further investigations to ascertain the principal and interest due to him on the 9246 account. He concluded by countermanding his instructions to renew automatically the fixed deposit comprised in the 9246 account.¹¹

By a letter dated 7 August 2012, the defendant informed the plaintiff that it had no details of any transactions on the 9246 account because it retains records of closed accounts for a maximum of seven years before deleting them from its archives. The letter was signed by the Service Manager of the defendant’s Shenton Way branch, Ms Siah Christine Mrs Christine Tan (“Ms Christine Tan”).¹²

The plaintiff responded to this letter on 17 August 2012. He told the defendant that the contents of its letter “raised disturbing questions as to the status of the Fixed Deposit Accounts maintained with your bank”. He further told the defendant that until an original fixed deposit receipt is presented for payment, “it is incumbent upon your bank to maintain safe custody of the [fixed deposits] placed with you including accuracy of records, the principal sum and accumulated interest”. He ended his letter by offering to travel to Singapore to present personally for payment the original fixed deposit receipts for both the 9246 and the 9756 accounts.¹³

The plaintiff waited for a response from the defendant. No response having been received by 13 October 2012, the plaintiff wrote to the Monetary Authority of Singapore (MAS) by email on 13 October 2012 and by letter on 16 October 2012. His purpose was to draw this matter to the attention of the MAS and, in effect, to invite the MAS to intercede with the defendant in his attempts to uplift the 9246 account.¹⁴

A correspondence then ensued between the plaintiff, the defendant and the MAS. Following this, on 2 January 2013, the defendant wrote to the plaintiff¹⁵ to say that its records showed that the 9246 account had been closed but that the lapse of time meant that it could not provide details of the circumstances in which it had been closed.

The plaintiff commences action

The plaintiff commenced this action on 20 August 2013. He claims an account of the money due and payable to him in respect of both the 9246 account and the 9756 account.

The defendant accepts in its pleadings that it remains indebted to the plaintiff on the 9756 account. Given the defendant’s position on this aspect of the plaintiff’s claim, I need say no more about the 9756 account.

The amount standing to the plaintiff’s credit on the 9756 account as at 10 September 2013, the date on which the defendant filed its defence in this suit, was $2,300.93.¹⁶ The plaintiff’s initial deposit of $1,000 on the 9756 account therefore increased by a factor of just over 2.3 over 30 years. That implies a constant average...