Don King Martin t/a King Excursion & Transport Provider v Lenny Arjan Singh

• Jurisdiction: Singapore
• Judge: Sim Mei Ling
• Judgment Date: 03 August 2023
• Neutral Citation: [2023] SGDC 165
• Court: District Court (Singapore)
• Docket Number: District Court Suit No 2230 of 2021
• Hearing Date: 10 April 2023,11 April 2023,12 April 2023,13 March 2023,31 July 2023
• Citation: [2023] SGDC 165
• Year: 2023
• Plaintiff Counsel: Sankaran Karthikeyan (Pertinent Law LLP)
• Defendant Counsel: Thulasidas s/o Rengasamy Suppramaniam (Ling Das & Partners)
• Subject Matter: Tort,Conversion,Money And Moneylenders,Illegal moneylending
• Published date: 11 August 2023

District Judge Sim Mei Ling:

At the material time, the plaintiff was trading as a sole proprietor under the name King Excursion & Transport Provider (“KETP”). The plaintiff owned a Toyota Hiace Commuter GL 2.7A (“Van”), which he used for his business of providing transport services. The defendant was the plaintiff’s friend.

The plaintiff commenced the present action for damages arising from the defendant’s alleged conversion of the Van on 2 separate occasions.

The defendant denied converting the Van and filed a counterclaim for repayment of various alleged loans to the plaintiff. He also counterclaimed for the plaintiff’s alleged contractual breach in failing to make him a 50% partner in the business entity that owns the Van.

Having considered the witnesses’ testimony at trial, the relevant documentary evidence, and both counsel’s written submissions, I allow only part of the plaintiff’s claim and part of the defendant’s counterclaim. In summary: The defendant did convert the Van, but only on the 2nd of the 2 alleged occasions, and even then, not for the entire duration alleged by the plaintiff. I assess the plaintiff’s damages for the defendant’s conversion at S$20,600. The loans by the defendant are enforceable as they are not moneylending transactions within the Moneylenders Act 2008 (2020 Rev Ed) (“Moneylenders Act”). The plaintiff is therefore obliged to pay the defendant the balance outstanding, at S$33,789. The defendant is not entitled to damages for the plaintiff’s failure to make him a partner in the business entity that owns the Van, as he has failed to prove loss.

I set out my reasons for my decision below.

Background Facts

The salient facts are briefly as follows.

The plaintiff and defendant are Singaporeans based in Johor Bahru, Malaysia and met through a mutual friend. The plaintiff puts this as around December 2018 while the defendant puts this as August 2018¹.

In January 2019, the plaintiff needed funds to renew the Prevailing Quota Premium Certificate of Entitlement (“COE”) for the Van as the existing COE was due to expire. The defendant agreed to provide him a loan².

The plaintiff and defendant met up on 1 February 2019. During this meeting, the defendant handed the plaintiff a loan agreement for the sum of S$40,000, which the plaintiff signed (the “Loan Agreement”)³. The Loan Agreement provided for interest at the rate of 6% per annum. Further, clause 8 of the Loan Agreement states: 8. Inclusion of Ownership 8.1 The Borrower agrees to include the Lender as a Partner in the Business Entity that retains legal ownership of the Vehicle on the commencement of the Loan repayment or at any time as deemed fit. 8.2 The Business Entity is identified as:

King Excursion & Transport Provider

UEN 53336802B

8.3 On mutual agreement, the Borrower and the Lender may enter into a new Business Entity that retains legal ownership of the Vehicle, as may deemed required by the Accounting and Corporate Regulatory Authority.

The plaintiff says he signed without checking all the details; whereas the defendant says he read and explained each of the clauses to the plaintiff⁴.

The defendant also says that at this meeting, the plaintiff signed a document known titled “Acknowledgement of Receipt of Funds”⁵ (the “Acknowledgement”). This states that the plaintiff acknowledged the receipt of a cashier’s order for the sum of $31,933, as well as cash of “ $8067- (1432 – 3700) = 2935”. The plaintiff denies having signed the Acknowledgement or receiving any cash from the defendant⁶.

The COE for the Van was renewed on 2 February 2019⁷.

Between August to September 2019, there were various issues with the Van’s performance. The defendant says that the plaintiff had on several occasions during this period, requested his help to pay for repairs and maintenance works, and the defendant agreed to extend the plaintiff interest-free loans amounting to $3,078. The plaintiff says he was not aware of these repair and maintenance charges⁸.

On 13 December 2020, the plaintiff parked his Van at Danga Bay in Johor Bahru to feed some stray dogs. When he came back, he realised that his Van had gone missing. He informed the defendant about the missing Van on 20 December 2020.⁹

There is some dispute between the parties as to whether it was the defendant who informed the plaintiff that the Van had been stolen by a crime syndicate, or whether it was through several workshop owners that they learnt that this was what had likely happened. In any case, on 25 December 2020, the plaintiff gave the defendant RM10,000, for the defendant to pay to a crime syndicate to recover the Van.¹⁰

According to the defendant, he met up with the crime syndicate on 26 December 2020 and negotiated the Van’s return in exchange for RM10,000 plus a tow fee of RM300. The plaintiff however claims that the entire series of events was part of a fraudulent scheme which the defendant orchestrated to convert the Van to his use, to unlawfully obtain money from the plaintiff.¹¹

The defendant brought the Van back to the plaintiff on 31 December 2020.¹²

On 29 January 2021, the defendant requested to borrow the Van from the plaintiff to collect a surfboard from Mersing. The plaintiff agreed, and the defendant took possession of the Van on 31 January 2021. The plaintiff claims that the defendant was supposed to return the Van on 1 February 2021.¹³

On 1 February 2021, the defendant did not return the Van and handed the plaintiff a document titled “Notice of Possession – Vehicle No. SJN1575K” (“Notice of Possession”)¹⁴. By the Notice of Possession, the defendant alleged that a sum of $63,114 was outstanding and demanded full payment within 7 days.

The defendant however claims that they had a conversation on the night of 31 January 2021. Essentially, parties had discussed the various payments that were due in respect of the Van, such as its road tax and insurance and arrears owing to the defendant, and lack of revenue given the Movement Control Order in Malaysia. It was in this context, the defendant says, that the plaintiff accepted that he should not continue to have the use of the Van and volunteered to surrender the Van to the defendant as collateral for repayments. Further it was the plaintiff that asked the defendant for documentation to show that the Van was in the defendant’s possession, though he later refused to acknowledge receipt of the Notice of Possession.¹⁵

The plaintiff and the defendant thereafter corresponded on WhatsApp through a mutual friend, in an attempt to resolve the matter. The defendant continued to retain possession of the Van, which he parked at 57-J Jalan Serai, Taman Stulang Luat, 80300, Johor Bahru, Johor (“57-J Jalan Serai”)¹⁶.

The plaintiff then applied to deregister the Van and was informed by the Land Transport Authority on 25 August 2021 that the Van had been deregistered with effect from 13 December 2020. The plaintiff received a COE rebate amount of S$25,995 (“COE Rebate”)¹⁷.

On 21 January 2022, Malaysian Customs seized the Van from 57-J Jalan Serai. The defendant says he was informed by a Malaysian Customs officer that the Van was seized because of the plaintiff’s deregistration of the Van; the plaintiff says the Van was seized because it was found to contain uncustomed or prohibited goods¹⁸.

To date, the plaintiff has not regained possession of the Van¹⁹.

It is undisputed that to date, KETP remains a sole proprietorship. The defendant has not been made a partner in the entity having ownership of the Van²⁰.

The plaintiff therefore commenced the present action against the defendant for conversion. The plaintiff claims that there were 2 periods of conversion: from 13 December to 31 December 2020 (the “1st Alleged Conversion”) and from 1 February 2021 to date (the “2nd Alleged Conversion”). The plaintiff seeks the cost of the Van, which he puts at S$75,000, as well as damages for loss of use of the Van at $100 per day, for the entire duration of the 1st Alleged Conversion and 2nd Alleged Conversion.

In his reply submissions, the plaintiff has additionally asked for a return of RM10,000 which was paid to the defendant on 25 December 2020²¹.

The defendant counterclaimed for S$33,789, being a return of the loan sum of S$40,000 under the Loan Agreement plus loans for repairs and maintenance charges amounting to A$3,078, less the plaintiff’s partial repayments.

The defendant originally sought an account of the profit and loss of KETP since 1 February 2019 to 31 January 2021 as well as loss and damages for the plaintiff’s alleged breach of clauses 8.1 and 8.3 of the Loan Agreement, including but not limited to half of the COE Rebate which the plaintiff obtained on deregistration²².

However, the defendant has confirmed in his closing submissions that he is no longer seeking an account of the profit and loss of KETP. He has also quantified his alleged loss and damage at S$12,997.50, being 50% of the COE Rebate²³.

While the defendant initially claimed costs on an indemnity basis, he has confirmed in his solicitors’ letter of 22 June 2023 to the court that he is seeking costs on a standard basis.

The plaintiff’s claims in conversion

I find that the plaintiff has not proven the 1st Alleged Conversion. As for the 2nd Alleged Conversion, I find that the defendant did convert the Van on 1 February 2021, but such conversion had ceased by 21 January 2022.

The law on conversion

An act of conversion is a wrongful interference with the claimant’s chattel, in a manner which is inconsistent with the claimant’s superior possessory title in the chattel: Gary Chan Kok Yew and Lee Pey Woan, The Law of Torts in Singapore (Academy Publishing, 2011) (“Law of Torts”) at [11-002].

Liability is strict, in the sense that it is not necessary to show that a defendant was aware of or intended to interfere specifically with the claimant’s...