Cupid Jewels Pte Ltd v Orchard Central Pte Ltd

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 11 April 2011
• Neutral Citation: [2011] SGCA 15
• Plaintiff Counsel: David Nayar (David Nayar and Vardan)
• Docket Number: Suit No 182 of 2010
• Date: 11 April 2011
• Hearing Date: 28 February 2011
• Subject Matter: Illegal distress,Distress for Rent,Landlord and tenant
• Year: 2011
• Citation: [2011] SGCA 15
• Defendant Counsel: Ling Tien Wah (Rodyk & Davidson LLP)
• Court: Court of Appeal (Singapore)
• Published date: 20 April 2011

Chao Hick Tin JA (delivering the grounds of decision of the court): Introduction

The appellant, Cupid Jewels Pte Ltd (“Cupid Jewels”) is a tenant of the respondent, Orchard Central Pte Ltd (“Orchard Central”). A writ of distress was obtained by Orchard Central, and all goods on the tenant’s premises were seized to satisfy arrears in rent. Among the goods seized were 576 pieces of jewellery (“the seized jewellery”). Cupid Jewels applied to discharge the writ of distress and recover the seized jewellery. The trial judge (“the Judge”) dismissed its application for seemingly lack of standing. On 28 February 2011 we heard the appeal and allowed the appeal to the extent that we ordered that Cupid Jewels’ application be restored and heard on the merits. We now set out our reasons.

Facts

Cupid Jewels sold jewellery from premises which it had leased from Orchard Central by a lease dated 28 May 2008 (“the premises”). In April 2010, Cupid Jewels began to fall behind on rental payments. On 3 August 2010 Cupid Jewels owed S$891,501.09 in rent arrears. Three days later, on 6 August, Orchard Central applied for (by way of Originating Summons No 813 of 2010) and was granted a writ of distress against Cupid Jewels. There is some uncertainty as to the date on which the Sheriff made the seizure. This is because the parties agreed that the seizure took place on 6 August 2010, but the Sheriff’s Notice of Seizure and Inventory is dated 10 August 2010. However, nothing turns on this discrepancy. What is not in dispute is that the Sheriff did seize the seized jewellery from the premises pursuant to the writ of distress.

On 16 August 2010, Cupid Jewels filed Summons 3835/2010 (“SUM 3835”) seeking an order, pursuant to s.16 of the Distress Act (Cap 84, 1996 Rev Ed) (“the Act”), for the discharge or suspension of the writ of distress, and for the release of the seized jewellery to Cupid Jewels. Three days later, on 19 August 2010, Forever Jewels Pte Ltd (“the Non-Party”) filed Summons No 3916/2010 (“SUM 3916”) seeking an order, pursuant to s.10 of the Act, for the release of the seized jewellery to the Non-Party. It would be noted that both SUM 3835 and SUM 3916 sought the release of the same articles – i.e. the seized jewellery.

At the hearing before the Judge on 7September 2010, both Cupid Jewels and the Non-Party contended that the seized jewellery was consigned by the Non-Party to Cupid Jewels for sale at the premises. They further argued that since the Non-Party was the owner of the seized jewellery, the seized jewellery should accordingly be released. The Judge held that as there were disputes of fact in relation to the Non-Party’s application, he gave leave for cross-examination on the affidavits of the Non-Party at a future date.

However, the Judge dismissed Cupid Jewels’ application. The reason for the dismissal is set out in the grounds of decision as follows:

Curiously, [Cupid Jewels] applied in Summons No 3835 of 2010 for the release of the jewellery to them, even though on their own case, [Cupid Jewels] were not the owner of the jewellery. I had given the necessary directions in Sum 3916/2010 for the hearing to determine the Non-Party’s claim to the jewellery. However in Sum 3835/2010, [Cupid Jewels] claimed to be entitled to an order for the jewellery be released to them based on an argument which I would, out of respect, describe as beyond my comprehension. (emphasis added)

Reference to the Notes of Argument shows that the Judge recorded:

“As the goods in question are the same as in [the Non-Party’s] application, their disposal will be determined under [that application].”

It seems reasonably clear that Cupid Jewels’ application had been dismissed for lack of standing. It was Cupid Jewels’s own case that the Non-Party was the owner of the seized jewellery. Since the Non-Party was already seeking the recovery of the exact same items, it was understandable that the Judge, as a matter of common sense, viewed Cupid Jewels’ insistence, that its parallel application should also proceed to hearing, with some incredulity. The failure of the counsel for both parties to properly address the issue of standing undoubtedly added to the Judge’s concern.

On appeal, Cupid Jewels submitted that it had the locus standi, pursuant to s 16 of the Act, to apply for the release of the seized jewellery and that its application in SUM 3835 should be heard together with the Non-Party’s application in SUM 3916. Cupid Jewels also made the further argument that it would be unfairly prejudiced by the dismissal of its application if the Non-Party were to later unilaterally decide to discontinue SUM 3916 and choose instead to seek compensation from it. Moreover, it was also emphasised that there would be very little prejudice to Orchard Central if both the applications were allowed to proceed.

Standing

Thus the key question which this court had to answer was: should the Non-Party’s and Cupid Jewels’s parallel applications, which relate to the same articles, be allowed to proceed concurrently? Answering this question requires an understanding of the law of distress in Singapore. The standing to discharge or suspend the execution of a writ of distress, or to release any part of the property seized under a writ of distress is governed by the Act.

We will now refer to the relevant provisions in the Act which clearly accord to a tenant, as well as a non-tenant, a separate right, and under distinct grounds, to apply for the release of things seized pursuant to a writ of distress. In the case of the tenant, it is s 16 read with s 8 of the Act. Section 16 reads:

Application by tenant. 16. The tenant may apply to a Judge to...