Khoo Wai Keong Ronnie v Hanam Andrew J

CourtMagistrates' Court (Singapore)
JudgeEarnest Lau Chee Chong
Judgment Date13 November 2003
Neutral Citation[2003] SGMC 41
Citation[2003] SGMC 41
Publication Date15 January 2004
Plaintiff CounselAndrew J Hanam (PK Wong and Advani)
Defendant CounselKhoo Wai Keong Ronnie appearing as plaintiff in person

Brief facts

1. This case concerns the use of committal proceedings against judgment debtors who fail to pay judgment debts.

2. The Plaintiff/Judgment Debtor is Ronnie Khoo Wai Keong, a 24-year old man serving full time national service. He sued the Defendant/Judgment Creditor, Andrew John Hanam, for damages arising out of a motor vehicle accident. Mr. Hanam is an advocate and solicitor with M/s PK Wong & Advani. He appointed his firm as his solicitors on record. Mr. Hanam, wearing his hat of a lawyer, also appeared throughout this case as counsel. Since Mr. Hanam is both litigant and counsel, it makes easier reading if I refer to the parties by their names in this decision.

3. After open court trial, the trial judge dismissed Mr. Khoo’s claim and awarded Mr. Hanam costs of the action. Mr. Hanam extracted a judgment with the following terms (“Costs Order”):

“IT IS THIS DAY ADJUDGED that this action do stand dismissed out of this Court with costs to the Defendant fixed at $3,200.00 and disbursements of $300.00”

4. On 28 July 2003, Mr. Hanam obtained an instalment order under SIC No. 12027 of 2003 from the Deputy Registrar of the Subordinate Courts (“Instalment Order”) stating:

“IT IS ORDERED that

1. The costs of $3,850 is to be paid to [Mr. Hanam] in 4 equal monthly instalments of $962.50 per month with effect from 20 August 2003 and thereafter on the 20th day of each subsequent month.

2. [Mr. Khoo’s] counsel to take out application for discharge by 1 August 2003.

3. No order as to costs.

[Penal notice inserted]”

5. By 28 August 2003, Mr. Khoo had failed to pay Mr. Hanam in accordance with the Instalment Order. So in ex-parte SIC 17190 of 2003 Mr. Hanam sought leave to issue committal proceedings against Mr. Khoo. The Statement In Support For Leave cited Mr. Khoo’s breach of the Instalment Order as the ground in support. The order granting leave was made on 19 September 2003.

6. On 22 September 2003, Mr. Hanam pursuant to the leave given filed SIC 19187 of 2003 to commit Mr. Khoo into prison for contempt of court for non-compliance with the Instalment Order.

7. On 14 October 2003, Mr. Khoo filed SIC 20417 of 2003 for permission to pay the judgment debt by instalments. It was undisputed this court has the jurisdiction and power to hear this application under Section 43(1) Subordinate Courts Act.

8. On 17 October 2003, Mr. Khoo and Mr. Hanam came before me in chambers. I first heard Mr. Khoo’s instalment application under SIC 20417 of 2003 in my capacity as a Deputy Registrar. After disposing Mr. Khoo’s application, I dealt with Mr. Hanam’s committal application under SIC 19187 of 2003 as a District Judge in Chambers.

SIC 20417 of 2003 – Instalment application by Mr. Khoo

9. In this instalment application Mr. Khoo tendered an affidavit containing supporting documents describing his personal circumstances.

a) He is a full time national serviceman earning $417.50 per month with no other source of income. His salary is paid directly into his OCBC bank account. The August 2003 and September 2003 bank statements show him having no savings. Pending national service, it is also impossible for him to earn other employment income.

b) He is single and lives with his 2 aged parents. He is currently servicing a hire-purchase loan for his motorcycle at $238.55 per month. Apart from the finance company and Mr. Hanam, he has no other creditors. At the hearing, he mentioned his national service duty would end in June 2004.

c) He initially proposed to pay Mr. Hanam $50.00 per month but in the course of the hearing, he increased the offer to $100.00 per month. This leaves him with less than $100.00 per month to meet his monthly expenditure.

Instalment orders made under Section 43 Subordinate Courts Act

10. Under Section 43(1) Subordinate Courts Act (read with Section 52(1) Subordinate Courts Act), the Magistrates Court may, as it thinks fit, order a money judgment to be paid by such instalments payable at such times as the court may fix. The object of this provision is concessionary; it gives debtors reprieve from execution: see also O46 r.26A. Section 43 Subordinate Courts Act finds its statutory ancestry in Sections 1197 and 1203 of the Civil Procedure Code 1907 (and its equivalents in the Civil Procedure Ordinance 1898). Behind this power rests a policy preventing judgment debtors from being pauperized by their creditors: see MPLA Peyna Carpen Chitty v. Max JD Souza [1893] 1SSLR 64.

11. What must a court weigh in deciding these applications? There are hardly any reported cases which assist but relevant factors can be deduced from an affidavit prescribed in Form 95B of our Rules. This affidavit discloses the judgment debtor’s means and is filed under O47 r.1B to support an application to vary an earlier order made under Section 43 Subordinate Courts Act. A similar affidavit is frequently used by judgment debtors making a first instance application. It is also helpful to peruse how other jurisdictions approach similar instalment applications: see in particular the Malaysian case of Phan Pow v. Tuck Lee Mining & Co [1959] 1 MLJ 32. From these sources and understanding the policy behind Section 43 Subordinate Courts Act, it appears the duty of the court is to ascertain whether there exists special circumstances of hardship rendering it just and equitable to make an instalment order. Although this is mainly an exercise of common sense, it is nevertheless useful to set out the usual factors considered. Examples include:

(a) Whether the debtor has made full disclosure of his assets and liabilities i.e.

(i) his net disposable income; household expenses for basic amenities e.g. utility bills, food, transport; and

(ii) special expenses e.g. recurrent medical expenses;

(iii) number of dependants and their basic expense items such as school fees and medical bills; and

(iv) whether he owns any items of value.

(b) Whether there is any serious danger of the judgment creditor losing the fruits of his judgment. For example, if a debtor has multiple execution creditors from other judgments, it may not be equitable for the court to fetter the judgment creditor by making an...

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