Heng Chyu Kee v Far East Square Pte Ltd

• Jurisdiction: Singapore
• Judgment Date: 20 November 2001
• Date: 20 November 2001
• Docket Number: Suit No 572 of 2001
• Court: High Court (Singapore)

Heng Chyu Kee

Plaintiff

and

Far East Square Pte Ltd

Defendant

[2001] SGHC 348

Choo Han Teck JC

Suit No 572 of 2001

High Court

Landlord and Tenant–Distress for rent–Levying distress–Function of writ of distress–Whether writ illegal, irregular and excessive–Whether action for damages for wrongful execution can arise–Whether landlord negligent in distraining–Landlord's duties in distraining–Whether offset of sum demanded in writ against another debt possible

The plaintiff (“Heng”) rented a shop unit from the defendant (“Far East”). She fell into arrears of rent and Far East served a writ of distress (“the writ”) on her for the amount of $3,078.30. After various items were seized, Heng paid $3,500 to Far East. Far East utilised the $3,500 towards payment of legal costs and other outstanding debts so that the sum of $3,078.30 stated in the writ of distress was not fully paid. Far East then proceeded to auction the seized items.

Heng sued Far East for damages for the wrongfully executed writ. Far East submitted that the auction was justified as the sum stated in the writ remained unpaid.

Held, dismissing the claim:

(1) A writ of distress was a form of relief available to a landlord against a tenant who failed to pay rent. As it was issued by the court, although at the landlord's request, it could not be said to be illegally or unlawfully issued. Further, although the writ appeared irregular since it failed to identify the person to whom it was addressed, no injustice arose as Heng knew what it was all about. Hence, her contention that the writ was illegal, irregular and excessive was dismissed: at [4] and [16].

(2) As a writ of distress was a demand for a specified sum for a specific debt, the creditor could not, unless expressly authorised, appropriate the debtor's payment towards some other debt, even if that other debt was due. If the debtor made no directions as to the payment, it must be inferred that it was only for the specified debt. Hence, Far East was wrong to appropriate the payment the way they did: at [7] and [8].

(3) Although the writ was not illegal, Far East was negligent in its execution as it failed to, inter alia (a) ensure that the value of the goods seized did not exceed the debt; (b) identify the goods seized by affixing the court seal on them; (c) give adequate notice of the sale; (d) ensure that only the seized items were sold; and (e) ensure that the purchaser took away only the items purchased: at [14].

[Observation: A writ of distress was a notice to an errant tenant that, by its authority: (a) the tenant's movables in the rented premised were being distrained, ie seized; (b) they were not to be sold or disposed of until released by the sheriff; and (c) unless payment was made; they were to be sold and the proceeds used to pay the arrears in rent: at [5].

The landlord's duty was to: (a) ensure that the bailiff, who was deemed to be his agent, affixed the court's seal on each of the distrained items; (b) ensure that only the distrained items were sold when their sale arose due to the tenant's failure to make payment within the stipulated time; and (c) apply for the release of the distraining order once the tenant made payment pursuant to the writ of distress: at [5].

Where the court issued a writ of distress, no action for damages for wrongful distress could arise as the writ was an embodiment of the law; the aggrieved plaintiff could apply to set it aside or sue for malicious prosecution. As for the omissions and irregularities in the conduct of the auction, the remedy lay in other causes of action such as negligence or breach of statutory duty: at [16].]

Chop Chye Hin Chong v Ng Yeok Seng [1934] 1 MLJ 265 (folld)

Croft v Lumley 10 ER 1459 (refd)

Davenport v Queen (1877) 3 App Cas 115 (folld)

Davies v Property and Reversionary Investments Corp [1929] 2 KB 222 (refd)

Dovey Enterprises v Guardian Assurance Public [1993] 1 NZLR 540 (refd)

Ginsin Holdings Pte Ltd v Tan Mui Khoon [1996] 3 SLR (R) 500; [1997] 1 SLR 553 (folld)

Metro Mechanical Ltd v Neil Day Motors Ltd [1995] DCR 232 (refd)

South Union Co Ltd v Seng Hin Ltd [1971-1973] SLR (R) 370; [1972-1974] SLR 326 (refd)

Distress Act (Cap 84, 1996 Rev Ed) s 5 (3)

Rules of Court (Cap 322, R 5, 1997 Rev Ed) O 46 r 23

A Thamilselvam (S Nabham & Partners) for plaintiff

Lim Thian Siong Sean and Tan E-Fang (Hin Tat & Partners) for defendant.

Choo Han Teck JC

1 This is an action by the plaintiff (PW1) against her former landlords. She is a 46-year-old divorcee with three children and was, at the material times, carrying on the business of a hairdressing salon at #B1-06/07, Lucky Chinatown, New Bridge Road. She claimed that she was also carrying on the business of a gift shop. In this action she sued the defendants for damages arising from what she alleged to be a wrongfully executed writ of distress issued on 30 November 2000 from the Subordinate Courts at the instance of the defendants. The writ was issued against the plaintiff for arrears in rent in respect of her premises at #B1-06/07 Lucky Chinatown. In June 1999 the plaintiff contracted to rent this unit from the defendants for two years from 1 September 1999. The monthly rental was $1,026.10 and a monthly service charge of $761.50 was also payable under the tenancy agreement. It is relevant to note that at that time the plaintiff was already renting another unit from the defendants also at Lucky Chinatown. That unit was at #B1-15 and was used by the plaintiff for her gift shop, known as Sweetzy World Gift Shop, selling “Hello Kitty” products that included soft toys, stationery, toasters and various other items. #B1-06/07 was used by the plaintiff as a hairdressing salon, known as Sweetzy World Unisex Hair Salon and Beauty Care. The plaintiff asserted that she moved her gift shop to #B1-06/07 in April or May 1999 and thereafter, #B1-06/07 was used by the plaintiff partly as an hairdressing salon and partly as a gift shop. The apparent inconsistency with the incontrovertible evidence that #B1-06/07 was rented from September 1999 was not explained, but in the event I do not regard this discrepancy to be significant. The plaintiff soon fell into arrears in rent and on 1 February 2001 the defendant's employee, Mr Sim Mong Hiong (DW4) brought Mr Yen Meow Thien (DW2), a bailiff from the Subordinate Courts to serve the writ of distress on the plaintiff. The writ stipulated as follows:

I hereby direct you to distrain the movable property found on the premises at 211 New Bridge Road, #B1-06/07 Lucky Chinatown, Singapore 059432 for the sum of Singapore Dollars only $3,078.30 being all arrears of rent due to the [defendants] for the same from 1 September 2000 to 30 November 2000, together with costs and the prescribed fees and expenses of executing this Writ, according to the provisions of the Distress Act (Cap 84).

2 The plaintiff alleged that Mr Yen Meow Thien advised her that if she paid the arrears by 7 March 2001 he would cancel the writ of distress. In the meantime, he would record various items as seized under the writ but would not actually place the court seal on those items to avoid embarrassing the plaintiff since the amount due was very small. It was not disputed that the items recorded by the bailiff in the inventory of seized items were as follows:

1. (1) 3sets of Hair Dressing machines;

2. (2) CTV 20" (LG);

3. (3) Mini compo ('Aiwa');

4. (4) 2 Steamers;

5. (5) all miscellaneous items in the premises.

The plaintiff testified that she believed Mr Yen Meow Thien because he had said the same thing in a previous distress action. On that occasion she paid up the arrears and the auction of the distrained items was called off. On this occasion, the plaintiff went to the defendants' office on 12 February 2001 to make payment. She paid $3,500 and was given a receipt. This was not disputed by the defendants, but Mr Lim submitted on behalf of the defendants that the sum of $3,500 was utilised by the defendants towards payment of legal costs and other outstanding debts, so that the sum of $3,078.30 stated in the writ of distress...