Joshua Steven v Joshua Deborah Steven and Others (No 2)

• Jurisdiction: Singapore
• Judge: Tan Lee Meng J
• Judgment Date: 26 August 2004
• Neutral Citation: [2004] SGHC 184
• Docket Number: Originating Summons No 1403 of (Summons in Chambers No 3273 of 2004)
• Date: 26 August 2004
• Published date: 02 September 2004
• Year: 2004
• Plaintiff Counsel: James Ponniah (Wong and Lim)
• Citation: [2004] SGHC 184
• Defendant Counsel: Daniel John (John, Tan and Chan)
• Court: High Court (Singapore)
• Subject Matter: Equity,Whether leave to amend counterclaim should be granted after conclusion of trial,Amendment,Whether defendants had beneficial interest in property on basis of estoppel,Civil Procedure,Applicable principles,Proprietary estoppel,Estoppel,Whether plea of estoppel justified based on evidence already adduced,Pleadings

26 August 2004

Tan Lee Meng J:

1 The first, second and fifth to tenth defendants in Originating Summons No 1403 of 2002, who are members of a religious group called the “House of Israel” (“HOI”), sought leave to amend their Counterclaim against the plaintiff, Mr Steven Joshua (“SJ”), a few weeks after the conclusion of the trial. I dismissed the application and now give the reasons for my decision.

Background

2 As the facts in this case have been referred to in [2004] SGHC 166, they will only be briefly mentioned here. SJ, one of five registered owners of 577A Sembawang Place, sought, inter alia, an order for the sale of the said property. The first, second and fifth to tenth defendants (the “HOI defendants”) filed a Counterclaim in which they asserted that SJ had no right to sell the property because it is trust property that is intended to accommodate members of the HOI. They also claimed to have a share in the said property by virtue of the alleged trust. The HOI defendants’ case, as pleaded and canvassed throughout the trial, was based entirely on trust law. However, after the conclusion of the trial, their counsel, Mr Daniel John, stated in his written submissions that his clients had decided to abandon all their claims based on trust law. When Mr John was asked why his clients still claimed a beneficial interest in 577A Sembawang Place after destroying the foundation of their counterclaim by abandoning all their claims based on trust law, he thought about the matter and submitted Supplementary Closing Submissions, in which he disclosed for the first time that his clients claimed a beneficial interest in the property on the basis of estoppel.

3 On 16 June 2004, the HOI defendants, who initially contended that they were entitled to rely on estoppel without amending their Counterclaim, sought leave to amend their Counterclaim to introduce the issue of estoppel. This application which was heard on 2 July 2004 was, understandably, strenuously opposed by SJ.

Whether the amendment to the Counterclaim should be allowed

4 Whether an amendment of a Counterclaim should be allowed is a matter for the discretion of the trial judge. While it has been said that an amendment to pleadings should be allowed if there is no injustice to the other side that cannot be compensated by costs, in Ketteman v Hansel Properties Ltd [1988] 1 All ER 38 at 62, a decision of the House of Lords, Lord Griffiths put the matter in its proper perspective when he stated:

[W]hatever may have been the rule of conduct a hundred years ago, today it is not the practice invariably to allow a defence which is wholly different from that pleaded to be raised by amendment at the end of the trial even on terms that an adjournment is granted and that the defendant pays all the costs thrown away. There is a clear difference between allowing amendments to clarify the issues in dispute and those that permit a distinct defence to be raised for the first time.

[emphasis added]

5 An assertion of proprietary estoppel is clearly distinct from an assertion that rights arise under a trust. In their affidavit in support of their application to amend the Counterclaim, two of the HOI defendants declared that SJ would not be prejudiced by the proposed amendment because they had not sought to adduce any fresh evidence in support of their case. However, SJ’s counsel, Mr James Ponniah, rightly pointed out that there would be a need for further cross-examination of witnesses if the counterclaim was amended as he had conducted his cross-examination during the trial solely on the basis that the counterclaim rested on the law of trust. As such, he had not cross-examined the HOI defendants on matters such as the nature of the alleged representation that led to the estoppel, the detriment suffered by them as a result of the alleged representation or how the representation altered their position. He also pointed out that during the trial, the HOI defendants decided not to call Mr James Abraham (“JA”), one of their witnesses, to testify after it became obvious that the latter would, if cross-examined, face embarrassing questions as to why he, a lawyer, helped to create a trust in favour of foreigners in violation of the Residential Property Act (Cap 274, 1985 Rev Ed) when he knew that some of the HOI defendants were foreigners at the time 577A Sembawang Place was purchased. As the HOI defendants now contended that JA was one of those who made representations that led to the alleged estoppel, Mr Ponniah argued that he should be allowed to cross-examine JA if the Counterclaim was amended.

6 In the present case, there was ample time before and during the trial for the HOI defendants to deal with the defence of proprietary estoppel. In Ketteman v Hansel Properties Ltd (supra at [4]), Lord Griffiths rightly noted (at 62) that “[allowing] an amendment before a trial begins is quite different from allowing it at the end of the trial to give an apparently unsuccessful defendant an opportunity to renew the fight on an entirely different defence”. His Lordship explained:

Another factor that a judge must weigh in the balance is the pressure on the courts caused by the great increase in litigation and the consequent necessity that, in the interests of the whole community, legal business should be conducted...