Hon G v Tan Pei Li

• Jurisdiction: Singapore
• Judge: Jonathan Ng Pang Ern
• Judgment Date: 18 April 2023
• Neutral Citation: [2023] SGMC 21
• Court: Magistrates' Court (Singapore)
• Docket Number: Magistrate’s Court Originating Claim No 184 of 2022 (Summons No 810 of 2023)
• Hearing Date: 11 April 2023
• Citation: [2023] SGMC 21
• Year: 2023
• Plaintiff Counsel: Chua Ze Xuan and Quek Wen Jiang Gerard (PDLegal LLC) (instructed), Michael Lukamto and Lim Joo Toon (Joo Toon LLC)
• Defendant Counsel: Lee Wei Fan (Anthony Law Corporation)
• Subject Matter: Civil Procedure,Appeals,Leave
• Published date: 28 July 2023

District Judge Jonathan Ng Pang Ern:

This was the Claimant’s application for permission to appeal against my decision in Hon G v Tan Pei Li [2023] SGMC 8 (the “Trial Judgment”) and my subsequent orders on interest and costs (the “Interest and Costs Orders”). Should permission to appeal be granted? After hearing parties, I dismissed the application. These are the grounds of my decision.

Background

As stated in the Trial Judgment (at [5]-[6]), the Claimant and the Defendant entered into an oral agreement (the “Agreement”) for the Claimant to sell, and for the Defendant to purchase, two of the Claimant’s pre-owned luxury watches (the “Watches”): (a) a Rolex Datejust Diamond (the “Rolex Watch”); and (b) a Hublot Big Bang Unico Diamond (the “Hublot Watch”). Parties agreed that the purchase price for the Rolex Watch ($28,000) would be paid first, while payment of the purchase price for the Hublot Watch ($16,000) would be deferred. Pursuant to this, the Defendant made payment for the Rolex Watch, and the Watches were delivered to the Defendant. However, the Defendant subsequently withheld payment for the Hublot Watch on the basis that the Watches were not authentic. The Claimant thus commenced Originating Claim No 184 of 2022 in the Magistrate’s Court to claim the purchase price of the Hublot Watch, while the Defendant responded with a counterclaim for a refund of the purchase price of the Rolex Watch.

On 8 February 2023, I rendered decision on the originating claim by way of the Trial Judgment. In summary, I entered judgment for the Defendant against the Claimant for the sum of $28,000 (Trial Judgment at [96]) after finding that: the Watches were not authentic (Trial Judgment at [11]-[46]); the Defendant’s counterclaim based on breach of contract should be allowed (Trial Judgment at [49]-[78]); the Defendant’s counterclaim based on failure of consideration should be allowed (Trial Judgment at [79]-[91]); and the Claimant’s claim should be dismissed (Trial Judgment at [92]-[93]).

After hearing parties, I made the Interest and Costs Orders on 23 February 2023. These were for the Claimant to pay to the Defendant: (a) interest on the sum of $28,000 at 5.33% per annum from the date of the originating claim to the date of the Trial Judgment; and (b) costs of the action fixed at $8,000 plus reasonable disbursements to be agreed plus any applicable goods and services tax.

Pursuant to s 21(1)(a) of the Supreme Court of Judicature Act 1969, the Claimant required permission to appeal against the Trial Judgment and the Interest and Costs Orders. And pursuant to O 18 r 19(1) read with O 18 r 3(1) of the Rules of Court 2021, the Claimant had 14 days from 23 February 2023 to apply for such permission.

The Claimant thus filed the present application on 9 March 2023. The application sought the following orders: 1. that the Claimant be granted permission to appeal, under O. 18, r. 19 of the Rules of Court 2021, to bring an appeal to the High Court against the decision of His Honourable District Judge Jonathan Ng Pang Ern made on the 8th day of February 2023 and 23rd day of February 2023; and 2. costs of this application be costs in the appeal.

The law on permission to appeal

The law on permission to appeal (previously referred to as leave to appeal) is well established. The applicant must show that there is: (a) a prima facie case of error; (b) a question of general principle decided for the first time; or (c) a question of importance upon which further argument and a decision of a higher tribunal would be to the public advantage (Lee Kuan Yew v Tang Liang Hong and another [1997] 2 SLR(R) 862 at [16]).

Insofar as limb (a) is concerned, the prima facie case of error can be either an error of law or an error of fact (Rodeo Power Pte Ltd and others v Tong Seak Kan and another [2022] SGHC(A) 16 (“Rodeo Power”) at [10]). Where the error in question is an error of law, the test involves two conjunctive considerations: (a) whether the appeal is likely to succeed (this being a standard that goes beyond merely an arguable case); and (b) broadly, whether there is a likelihood of substantial injustice if permission is not granted (Zhou Wenjing v Shun Heng Credit Pte Ltd [2022] SGHC 313 at [37]). On the other hand, where the error in question is an error of fact, the test is whether the error is obvious from the record and clear beyond reasonable argument (Rodeo Power at [10]). Whether the error is an error of law or an error of fact, the applicant must show something more than just his disagreement with the subject decision (Bellingham, Alex v Reed, Michael [2022] 4 SLR 513 at [100]-[101]).

Issues

In the present application, the Claimant submitted that there were four prima facie cases of error and two questions of general principle decided for the first time. Accordingly, the issues that arose for my determination were: whether there were prima facie cases of error (“Issue 1”); and whether there were questions of general principle decided for the first time (“Issue 2”).

Issue 1: Whether there were prima facie cases of error

As mentioned earlier (see [9] above), the Claimant submitted that there were four prima facie cases of error.

The first alleged prima facie case of error was that I had failed to consider whether the Watches were sold on an “as-is-where-is” basis before concluding that the Claimant had breached the Agreement.¹ The submission here was that if the Watches were sold on such a basis, then the risk of the Watches being counterfeit passed to the Defendant upon delivery and the Defendant should be deemed to have accepted the Watches “without warranty or guarantee as to quality, character, condition, size, weight or kind”.² This submission was based on the High Court’s decision in Norwest Holdings Pte Ltd (in liquidation) v Newport Mining Ltd [2010] 3 SLR 956, where it was held (at [42]) that:

… In an “as is, where is” sale, the buyer agrees to take the subject matter “as it is” or “as seen”, without warranty or guarantee as to quality, character, condition, size, weight or kind … The buyer cannot ask for the subject matter to be better than it actually is, but, at the same time, and crucially for this case, the buyer had not agreed to accept anything less. Put in another way, it is against all commercial sense to say that an interested buyer who offers to take in existing condition thereby offers to take in any condition henceforth – an agreement to take “as is” does not operate as an entire assumption of risk. Absent any contrary intention, the condition which the offeror-buyer offers to take is, quite naturally, the condition at the time the offer was made and not the time of acceptance, which is by definition a complete and unconditional agreement to the terms of the offer. … [emphasis in original]

In my view, this submission was not open to the Claimant. While the Claimant had pleaded that the Watches were sold on an “as-is-where-is” basis at para 6 of the Defence to Counterclaim, the Claimant had also pleaded, in the same breath, that the sale of the Watches was on the basis, express and/or implied, that the Watches were authentic:³

… The Claimant will say that the sale was on the basis, express and/or implied, that the Rolex and Hublot were authentic, but that there were no boxes or papers (i.e., receipts) for the Rolex and Hublot, that the Rolex and Hublot were used watches of the Claimant and, sold on an as-is-where-is basis, that the Rolex and Hublot were encrusted with after-market diamonds on the bezel and the case, and that the Rolex and Hublot would be inspected by the Defendant upon delivery and acceptance. [emphasis added]

Unless the Claimant was now suggesting that he had pleaded his case inconsistently, his case could only have been harmoniously interpreted in one way, ie, that the Watches were sold on an “as-is-where-is” basis subject to them being authentic. Put another way, the authenticity of the Watches was not part of the “as-is-where-is” basis of the sale. I had therefore proceeded (at [49] of the Trial Judgment) on this basis.

The Claimant did not make clear whether this alleged prima facie case of error was an error of law or an error of fact. However, given [12]-[13] above, whether the applicable test here was that for an error of law or an error of fact (see [8] above), I was of the view that it was not satisfied.

The second alleged prima facie case of error was my finding (at [57]-[58] of the Trial Judgment) that the Claimant’s breach of the Agreement had deprived the Defendant of substantially the whole benefit which it was intended that she should obtain from the Agreement.⁴ The submission here, as I understood it, was that the Defendant was not so deprived in view of the pleaded basis and terms of the sale, these being that there were no boxes or papers for the Watches, and that the Watches were used watches sold on an “as-is-where-is” basis.⁵

This submission conveniently omitted mention of the fact that the Claimant had also pleaded that the sale of the Watches was on the basis,...