HSBC Institutional Trust Services (Singapore) Ltd v Elchemi Assets Pte Ltd and another

• Jurisdiction: Singapore
• Judge: Woo Bih Li J
• Judgment Date: 03 March 2010
• Neutral Citation: [2010] SGHC 67
• Court: High Court (Singapore)
• Docket Number: Suit No 740 of 2009 (Registrar’s Appeal No 18 of 2010)
• Year: 2010
• Published date: 04 March 2010
• Hearing Date: 11 February 2010
• Plaintiff Counsel: Cheryl Fu (WongPartnership LLP)
• Defendant Counsel: Peter Ezekiel (Peter Ezekiel & Co)
• Subject Matter: Civil Procedure,summary judgment
• Citation: [2010] SGHC 67

Woo Bih Li J: Introduction

The plaintiff, HSBC Institutional Trust Services (Singapore) Limited (“HSBCIT”), sues in its capacity as trustee of Mapletree Logistics Trust. HSBCIT is the owner and was the landlord of the property known as 9 Tampines Street 92 Singapore 528871 (“the Property”). The first defendant, Elchemi Assets Pte Ltd (“Elchemi”), is engaged in the business of technology asset management. The second defendant, Ang Chee Seng (“Ang”), was at all material times a director of Elchemi.

By a lease agreement in writing dated 12 January 2009, HSBCIT leased the Property to Elchemi for a term of 15 years commencing from 1 November 2008 and expiring on 31 October 2023.

By a Deed of Guarantee and Indemnity dated 8 July 2009, Ang agreed to guarantee payment of all sums that were due and payable by Elchemi to HSBCIT under the lease agreement.

Unfortunately, Elchemi failed to make payment of sums due under the lease agreement. As at 21 August 2009, a sum of $4,869,529.17 was due as follows:

	Description	Quantum (S$)
(a)	Security deposit for year 1	2,435,192.76
(b)	Rental arrears for period from 1 December 2008 to 31 August 2009 and late payment interest	2,039,836.28
(c)	Land rent and property tax and late payment interest	359,446.93
(d)	Payment for miscellaneous services for the maintenance and repair of the property (security, pest control and cleaning services)	35,053.20
	Total	4,869,529.17

Elchemi continued to be in default notwithstanding letters of demand for payment.

On 27 August 2009, HSBCIT’s solicitors wrote to Elchemi to demand that vacant possession of the Property be delivered by 11am of 28 August 2009. They also stated that the lease agreement would be terminated upon such re-entry. On 28 August 2009, Elchemi’s solicitors wrote to HSBCIT’s solicitors to confirm that vacant possession of the Property would be delivered to HSBCIT. Accordingly, the lease agreement was terminated on 28 August 2009 upon re-entry by HSBCIT.

Subsequently, HSBCIT commenced the present action against Elchemi and Ang for outstanding rental and other arrears and for damages.

After a defence and counterclaim was filed by the defendants, HSBCIT filed Summons No 5625 of 2009 on 28 October 2009 to seek final judgment for $2,434,336.41 against Elchemi and Ang and interlocutory judgment against both defendants for damages to be assessed pursuant to certain provisions in the lease agreement together with interest and costs.

HSBCIT also filed Summons No 5626 of 2009 on 28 October 2009 to strike out the counterclaim of the defendants on the following grounds: (a) it disclosed no reasonable cause of action; (b) it was scandalous, frivolous and vexatious; (c) it might prejudice, embarrass or delay the fair trial of the action; and/or (d) it was otherwise an abuse of the process of the court.

On 15 December 2009, an assistant registrar granted HSBCIT summary judgment as sought and dismissed the counterclaim of the defendants with costs on an indemnity basis.

On 19 January 2010, Elchemi and Ang filed an appeal against the decision to grant summary judgment. Apparently, they also wanted to file an appeal against the decision to dismiss the counterclaim but were late in doing so. Instead of asking for an extension of time to do so, they decided not to pursue an appeal against the decision to...