DBS Bank Ltd v Lam Yee Shen

• Judge: Aedit Abdullah J
• Judgment Date: 10 June 2021
• Court: High Court (Singapore)
• Docket Number: Originating Summons No 1107 of 2020 (Registrar's Appeal No 49 of 2021)

DBS Bank Ltd

and

Lam Yee Shen and another

[2021] SGHC 136

Aedit Abdullah J

Originating Summons No 1107 of 2020 (Registrar's Appeal No 49 of 2021)

General Division of the High Court

Civil Procedure — Summary judgment — Defendants defaulting on housing loans which were secured by mortgage — Plaintiff seeking to enforce mortgage via application for order for possession of property under O 83 Rules of Court (2014 Rev Ed) — Whether triable issue standard in O 14 Rules of Court ought to apply to originating summons proceedings under O 83 Rules of Court — Whether plaintiff had established prima facie case that it was entitled to possession of property — Whether defendant had raised any triable issue — Orders 14, 81 and 83 Rules of Court (2014 Rev Ed)

Held, dismissing the appeal:

(1) Proceedings begun by originating summons (“OS”) under O 83 ROC were summary in nature and the threshold of a triable issue in O 14 ROC ought to apply to such proceedings. In an O 83 ROC OS action for possession of a mortgaged property, the plaintiff had to first show a prima facie entitlement to the possession of the property, presumably on the basis of mortgage documents showing that a mortgage existed, and that there had been a breach of the terms of the mortgage entitling the mortgagee to possession. If the plaintiff was unable to show a prima facie case, its application would be dismissed at the outset. If a prima facie case had been established by the plaintiff, the defendant had to, to resist the plaintiff's application, raise an issue or question in dispute which ought to be tried, or show that there ought for some other reason to be a trial. A bare allegation did not raise a triable issue. The improbability of a bare assertion would also weigh against finding that a triable issue had been raised. There had to be some cogent evidence to support the defendant's assertions. A robust approach ought to be taken for OS proceedings under O 83 ROC which gave effect to security underpinning the provision of finance for those seeking help to purchase properties: at [11], [13] and [22].

(2) The plaintiff had made out a prima facie case, with its documentation showing the existence of a mortgage down the years, covering various facilities, as well as account statements proving that the defendants had defaulted on their monthly instalments. The defendants alleged that their signatures on the instrument of mortgage had been forged, and that the plaintiff had overcharged them. Allegations of presumed undue influence and discrepancies in the mortgage documents were also raised. None of these raised anything close to a triable issue: at [4], [7] and [16].

Case(s) referred to

B2C2 Ltd v Quoine Pte Ltd [2018] 4 SLR 1 (folld)

Calvin Klein, Inc v HS International Pte Ltd [2016] 5 SLR 1183 (folld)

Hua Khian Ceramics Tiles Supplies Pte Ltd v Torie Construction Pte Ltd [1991] 2 SLR(R) 901; [1992] 1 SLR 884 (folld)

KLW Holdings Ltd v Straitsworld Advisory Ltd [2017] 5 SLR 184 (folld)

Malayan Banking Bhd v Sivakolunthu Thirunavukarasu [2008] 1 SLR(R) 149; [2008] 1 SLR 149 (folld)

MP-Bilt Pte Ltd v Oey Widarto [1999] 1 SLR(R) 908; [1999] 3 SLR 592 (folld)

National Westminster Bank plc v Daniel [1993] 1 WLR 1453 (folld)

Sim Lian (Newton) Pte Ltd v Gan Beng Cheng Raynes [2007] SGHC 84 (folld)

Zheng Yu Shan v Lian Beng Construction (1988) Pte Ltd [2009] 2 SLR(R) 587; [2009] 2 SLR 587 (folld)

Facts

The defendants obtained two housing loans (the “Facility”) from the plaintiff, both of which were secured by a mortgage over a property (the “Property”). The defendants defaulted on the Facility but did not surrender vacant possession of the Property despite the plaintiff's demands. The plaintiff subsequently applied for an order for possession of the Property under O 83 Rules of Court (2014 Rev Ed) (“ROC”), and the assistant registrar (“Assistant Registrar”) granted the plaintiff's application. Dissatisfied, the defendants appealed against the Assistant Registrar's decision.

Legislation referred to

Evidence Act (Cap 97, 1997 Rev Ed) ss 59(1), 59(2)

Land Titles Act (Cap 157, 2004 Rev Ed) ss 4, 36(2)(a), 75, 75(1), 75(2)

Land Titles (Strata) Act (Cap 158, 2009 Rev Ed) s 4

Rules of Court (2014 Rev Ed) O 14, O 83 (consd); O 14 r 1, O 81, O 83 r 1(1), O 83 r 4(1)

Koh Yeong Hung Sasha (Adsan Law LLC) for the plaintiff;

Dhanwant Singh (S K Kumar Law Practice LLP) for the first and second defendants.

10 June 2021

Aedit Abdullah J:

1 In this appeal, the plaintiff sought to enforce the security granted to it in the form of property mortgaged to it by the defendants. The defendants resisted it on flimsy grounds below and added a further bare allegation of fraud on appeal before me. The defendants have now appealed further.

Background

2 The first and second defendants obtained a housing loan facility (the “Facility”) from the plaintiff, comprising a “Housing Loan” on 1 April 1999 and a “Term Loan” on 26 July 2012. Both loans were secured by a mortgage over the whole of Lot No MK 17-U68155W (Type SSCT Volume 937 Folio 176) comprising the property known as 20 Jalan Raja Udang #08-03 Global Ville Singapore 329192 (the “Property”). As the defendants defaulted on payments required under the Facility, the plaintiff issued two letters on 27 August 2020 informing the defendants that it had recalled the Facility and demanded payment of outstanding sums within seven days. By another three letters on 27 August 2020, the plaintiff informed the defendants that they were required to deliver vacant possession of the Property within one month. As the defendants did not surrender vacant possession, the plaintiff made an application on 3 November 2020 for an order for, inter alia, possession of the Property under O 83 of the Rules of Court (2014 Rev Ed) (“ROC”). A certificate (the “Certificate”) provided by the vice-president of the plaintiff indicated the outstanding sums payable under the Housing Loan and Term Loan as at 3 November 2020.

Procedural history

3 An order-in-terms of prayers 1–3 in HC/OS 1107/2020 was granted by the assistant registrar (“Assistant Registrar”) on 23 February 2021. As this was an appeal from the decision of the Assistant Registrar, the matter was heard afresh.

Summary of the defendants' arguments on appeal

4 On appeal, the defendants alleged that their signatures on the instrument of mortgage dated 12 March 2004 (the “2004 mortgage document”) had been forged. In this regard, the defendants took issue with the evidence of the mortgage and documentation being hearsay, and pointed out discrepancies in the documents, namely, the copy of the mortgage document forwarded to the defendants back in 1999 (the “1999 mortgage document”) and the 2004 mortgage document. Allegations of presumed undue influence, and discrepancies as regards the subsidiary strata certificate of title (“SSCT”) of the Property, were also raised. These matters, the defendants argued, ought to be investigated by way of trial or cross-examination. The defendants also contended that there had been overcharging by the plaintiff.

Summary of the plaintiff's arguments on appeal

5 Relying on Sim Lian (Newton) Pte Ltd v...