K Kawshigan v Tan Shu Mei, Nora

• Jurisdiction: Singapore
• Judge: Lewis Tan
• Judgment Date: 13 January 2023
• Neutral Citation: [2023] SGMC 3
• Court: Magistrates' Court (Singapore)
• Docket Number: Magistrate’s Court Originating Claim No 2237 of 2022 (Summons No 4487 of 2022)
• Published date: 28 January 2023
• Year: 2023
• Hearing Date: 10 January 2023
• Plaintiff Counsel: The Claimant in person
• Defendant Counsel: Pereira Edmond Avethas and Cheung Shu Jia Jessica (Edmond Pereira Law Corporation)
• Subject Matter: Civil Procedure,Pleadings,Striking out,Abuse of process
• Citation: [2023] SGMC 3

Deputy Registrar Lewis Tan: Introduction

This is a claim emanating from Mr K Kawshigan’s (“the Claimant”) frustration with Ms Tan Shu Mei, Nora (“the Defendant”) due to her unwillingness to accommodate his demands to deepen their “relationship”. It follows from almost one and the half years of counselling sessions, which began in 2020 after the Claimant had threatened legal action for the emotional trauma that he allegedly suffered upon finding out that the Defendant only regarded him as a friend.

While the Defendant had hoped that the counselling sessions would help the Claimant come to terms with her decision to not pursue a romantic relationship with him, this was not the result. Faced with repeated requests and demands for more frequent meetings and deeper conversations, the Defendant decided in May 2022 to cease all contact with the Claimant. An Expedited Protection Order has since been obtained against him, but the Defendant remains faced with the task of defending lawsuits brought by the Claimant.

Prior to bringing this action, he had initiated a claim against her in the General Division of the High Court (“High Court”) for damages in excess of $3 million. This $3 million, he claims, would serve as damages for among others, indefinite loss of potential investments, rehabilitation and therapy programs to overcome the sustained trauma, as well as reductions in his earning capacity.

After the Defendant proved her resolve to defend the High Court action, he commenced this action in the Magistrate’s Court, seeking $22,000 in special damages for “lost income arising from [his] affected earning capacity” stemming from the Defendant’s breach of an agreement, which he says arose from an “offer” that she had made on 24 April 2022.

Striking out application Applicable principles

By this application, the Defendant seeks to strike out his claim for disclosing no reasonable cause of action, being an abuse of process, or pursuant to the inherent powers of the Court. These heads are consistent with O 9 r 16(1) of the Rules of Court 2021 (“ROC 2021”), which provides: 16.—(1) The Court may order any or part of any pleading to be struck out or amended, on the ground that — (a) it discloses no reasonable cause of action or defence; (b) it is an abuse of process of the Court; or (c) it is in the interests of justice to do so,

and may order the action to be stayed or dismissed or judgment to be entered accordingly.

In Iskandar bin Rahmat and others v Attorney-General and another [2022] SGCA 58 at [17]–[19], the Court of Appeal provided guidance on each of the above three grounds: 17 Under O 9 r 16(1)(a) [of] ROC [2021], the test is whether the action has some chance of success when only the allegations in the pleadings are concerned: Gabriel Peter & Partners (suing as a firm) v Wee Chong Jin and others [1997] 3 SLR(R) 649 (“Gabriel Peter”) at [21]. If that is found to be the case, then the action will not be struck out. 18 Order 9 r 16(1)(b) allows the court to strike out pleadings which constitute an abuse of process of the court. The inquiry here includes considerations of public policy and the interests of justice, and signifies that the process of the court must be used bona fide and properly and must not be abused; the court will prevent improper use of its machinery and the judicial process from being used as a means of vexation and oppression in the process of litigation: Gabriel Peter at [22]. 19 In addition, Order 9 r 16(1)(c) allows the Court to strike out pleadings when it is in the interests of justice to do so. … [T]his gives effect to the court’s inherent jurisdiction to prevent injustice, such as where the claim is plainly or obviously unsustainable: The “Bunga Melati 5” [2012] 4 SLR 546 at [33].

Further, it is accepted that authorities pertaining to O 18 r 19(1) of the Rules of Court 2014, the predecessor provision of O 9 r 16(1) of ROC 2021, remain relevant in assessing the merits of a striking out application: see Leong Quee Ching Karen v Lim Soon Huat and others [2022] SGHC 309 at [23] and Eurogreen Building Products Private Limited v Savourer Pte Ltd [2022] SGMC 53 at [13].

With these overarching principles, I proceed to consider the application.

No reasonable cause of action

The first ground relied on by the Defendant is that the Statement of Claim (“SOC”) discloses no reasonable cause of action against her. Reference is made to the chain of messages between the parties as exhibited in her affidavit in support of this application. It is submitted that such messages were exchanged in a social context, and when read holistically, reveal that there was no intention to create legal relations. Accordingly, an essential requirement for contractual formation is not satisfied, and so the claim in breach of contract is unsustainable and must fail.

However, as the Claimant rightly submitted, O 9 r 16(2) of ROC 2021 provides that “[n]o evidence is admissible on an application under [O 9 r 16](1)(a) of ROC 2021]”. Without reference to any evidence, and in particular to the chain of messages in the Defendant’s affidavit, I am unable to conclude that the Claimant’s claim, premised on a breach of contract, is wholly devoid of merit or that it is “plain and obvious” that the claim discloses no reasonable cause of action (Gabriel Peter & Partners (suing as a firm) v Wee Chong Jin and others [1997] 3 SLR(R) 649 (“Gabriel Peter”) at [18]). This is because the Claimant has pleaded all the requirements necessary for a binding agreement, namely an offer, acceptance, intention to create legal relations, and consideration. He has also pleaded the alleged breach of such agreement, namely her act of “wantonly ceas[ing]” contact with him to “evade” her obligations under the agreement.

Abuse of process

I turn therefore to consider the alternate ground of whether the claim is an abuse of process of the Court. The abuse of process ground found in O 9 r 16(1)(b) of ROC 2021 seeks to ensure that the court’s process is used only for proper and bona fide purposes (Chia Kok Kee v Tan Wah and others [2012] 2 SLR 352 (“Chia Kok Wee”) at [29]). This allows the court to “prevent the improper use of its machinery” and prevents “the judicial process from being used as a means of vexation and oppression in the process of litigation” (Gabriel Peter at [22]). Before exercising such power, the court must look at all the circumstances of the case (Goh Nellie v Goh Lian Teck [2007] 1 SLR(R) 453 at [53]).

A common instance of the courts exercising their discretion to strike out a pleading to stem an abuse of process is when there is a re-litigation of former claims that have already been adjudicated upon (see, eg, Chia Kok Wee). However, the categories of conduct rendering a claim an abuse of process are not closed and will depend on the relevant circumstances of each case, and another judicially recognised type of conduct that constitutes an abuse of process is the bringing of an action for a collateral purpose (Gabriel Peter at [22]). The abuse of process doctrine was described by Sir Jack Jacob in “The Inherent Jurisdiction of the Court” (1970) 23 CLP 23 at 40–41 (cited with approval in Chee Siok Chin and others v Minister for Home Affairs and another [2006] 1 SLR(R) 582 (“Chee Siok Chin”) at [32]):

It connotes that the process of the court must be used properly, honestly and in good faith, and must not be abused. It means that the court will not allow its function as a court of law to be misused, and it will summarily prevent its machinery from being used as a means of vexation or oppression in the process of litigation. Unless the court had power to intervene summarily to prevent the misuse of legal machinery, the nature and function of the court would be transformed from a court dispensing justice into an instrument of injustice. It follows that where an abuse of process has taken place, the intervention of the court by stay or even dismissal of proceedings may often be required by the very essence of justice to be done, and so to prevent parties being harassed and put to expense by frivolous, vexatious or groundless litigation. [emphasis in original removed, emphasis added in bold]

Abuse of process can thus be classified into four categories, namely (Chee Siok Chin at [34]): (a) proceedings which involve a deception on the court, or are fictitious or constitute a mere sham; (b) proceedings where the process of the court is not being fairly or honestly used but is employed for some ulterior or improper purpose or in an improper way; (c) proceedings which are manifestly groundless or without foundation or which serve no useful purpose; (d) multiple or successive proceedings which cause or are likely to cause improper vexation or oppression.

[emphasis in original]

Here, the Defendant submits that this claim amounts to an abuse of process as it is without foundation and has been brought for an ulterior purpose, namely to ensure that she will comply with his demands to, among other things, resume communications with him. This is clear from paragraph 22 of his SOC, where he has claimed that he has had to expend significant time and energy to connect with her network to obtain insights on her conduct.¹ Before making an assessment, a surgical examination of the parties’ relationship leading up to this action is required.

Circumstances leading up to the proceedings

The first threatened legal action

The Defendant first met the Claimant in a social setting in 2016. Over time, their friendship developed, but problems began to arise on or about September 2020, when they became misaligned about how they saw their relationship: while the Defendant only regarded the Claimant as a “friend”, he considered her to be his “closest friend”.² In the discussions that followed, the Defendant requested for their interactions to be reduced. This caused...