Khoo Wai Keong Ronnie v Hanam Andrew J
| Jurisdiction | Singapore |
| Judge | Earnest Lau Chee Chong |
| Judgment Date | 13 November 2003 |
| Neutral Citation | [2003] SGMC 41 |
| Citation | [2003] SGMC 41 |
| Court | Magistrates' Court (Singapore) |
| Plaintiff Counsel | Andrew J Hanam (PK Wong and Advani) |
| Defendant Counsel | Khoo Wai Keong Ronnie appearing as plaintiff in person |
| Published date | 15 January 2004 |
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
(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 instalment order since other execution creditors are unrestrained from seizing the debtor’s assets. Conversely, the court may view an instalment application more favourably if the debtor only has a single judgment creditor.
(c) The size of judgment debt outstanding, and the instalment offer proposed. For instance, it may be inequitable for the court to compel the judgment creditor to receive payment of say $100 per month on a judgment debt of $30,000 as compared to a judgment debt of $3,000.
12. If special circumstances exist, the court may let the instalment plan run until the entire judgment debt is repaid, or for a shorter period resulting in partial payment of the instalment plan. This latter scheme is appropriate when debtors are temporarily unable to repay the full sum to their creditors and have reasonable prospect of regaining financial solvency in the near future. Section 43(2) Subordinate Courts Act also gives the court the discretion to stay or suspend any execution against the judgment debtor if an instalment order is made.
13. For the sake of completeness, there is doubt whether judgment debtors who are companies can apply under Section 43 Subordinate Courts Act in lieu of the stricter compromise regimes found in the Companies Act i.e. schemes of arrangement and judicial management. Financial evidence relating to companies can be voluminous, complex and incomplete. Company accounts must be properly interpreted and verified to attain an accurate reading of a company’s financial situation. It would be preferable for such matters to be reviewed under the relevant Companies Act provisions. Moreover, the hardships afflicting an individual debtor do not apply to companies, since execution proceedings do not extend to officers, employees and shareholders of corporate debtors.
My decision on SIC 20417 of 2003
14. After hearing parties, I allowed Mr. Khoo to pay the judgment debt over 10 monthly instalments of $100 per month until he leaves national service. Thereafter, I would expect Mr. Khoo to be able to find a job earning a salary significantly more than his NS allowance. Any longer instalment plan would be inequitable to Mr. Hanam. In the circumstances, I made the following order:
“(1) The Plaintiff to pay $100 per month commencing 12 November 2003, and thereafter on the 12th day of each month until 12 August 2004.
(2) Payment shall be made by the Plaintiff directly into the Defendant’s bank account (details to be furnished by the Defendant) by GIRO.
(3) Time of payment is of the essence. Pending this instalment scheme, all execution is stayed and the stay shall be automatically lifted upon any default by the Plaintiff, or by 1 September 2004.”
SIC 19187 of 2003 – Committal application by Mr. Hanam
15. In view of the instalment order made for Mr. Khoo, I gave no order on Mr. Hanam’s application and ordered no costs. Mr. Hanam later wrote in for further arguments requesting that I either allow or dismiss his committal application.
16. On 23 October 2003, Mr. Hanam attended before me on his further arguments. Mr. Khoo was absent as he was not informed of the hearing date. I then reversed my earlier orders on Mr. Hanam’s committal application and adjourned the hearing to a later date for Mr. Khoo to be present. My order on Mr. Khoo’s instalment application was undisturbed.
17. On 13 November 2003, both parties came before me again. I dismissed Mr. Hanam’s application and gave Mr. Khoo compensatory costs as a litigant in person fixed at $150.00 pursuant to O59 r.18A. Mr. Hanam then sought leave to appeal to the High Court, which I granted. Against my decision Mr. Hanam now appeals.
My findings
18. My dismissal is based on 2 grounds:
(a) First, Mr. Hanam cannot rely on the Instalment Order for his committal application because it was not an order...
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