Kim Eng Securities Pte Ltd v Tan Suan Khee

CourtHigh Court (Singapore)
JudgeBelinda Ang Saw Ean J
Judgment Date18 May 2007
Neutral Citation[2007] SGHC 75
Citation[2007] SGHC 75
Defendant CounselTan Suan Khee, defendant in person
Plaintiff CounselSean Lim (Hin Tat Augustine & Partners)
Published date23 May 2007
Docket NumberSuit No 298 of 2006 (Registrar's Appeal No 320 of 2006)
Date18 May 2007
Subject MatterPrivate documents,No cause of action arising until demand for payment made,Creditor calling on on-demand guarantee,Whether e-mail not marked "without prejudice" forming part of negotiations and subject to without-prejudice privilege,When time begins to run,Documentary evidence,Evidence,Admissibility of evidence,"Without prejudice" privilege,Time only beginning to run when demand made,Limitation of Actions,Whether acknowledgment of debt subject to privilege,Whether e-mail from defendant discussing repayment of debt amounting to acknowledgment of debt,Whether demand by creditor against guarantor out of time because of statute-barred principal transaction

18 May 2007

Belinda Ang Saw Ean J:

1 This was an appeal by the plaintiff, Kim Eng Securities Pte Ltd (“Kim Eng”), against an order of the Assistant Registrar made on 10 November 2006 whereby it was ordered that summary judgment be entered against the defendant, Tan Suan Khee, in the sum of $258.28 together with interest thereon at the rate of 7.5% per annum from 2 March 2005 until payment and costs fixed at $350. In addition, the Assistant Registrar granted the defendant unconditional leave to defend the balance of Kim Eng’s claim and costs in the cause was ordered for this part of the application made under O14 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed). I allowed Kim Eng’s appeal against the grant of unconditional leave to defend the balance claim amount of $342,860.56 and, accordingly, entered summary judgment in Kim Eng’s favour in respect of the aforesaid claim amount. I also allowed Kim Eng’s claim for interest. I fixed costs of the appeal and below at $7,000 inclusive of disbursements. The defendant has appealed against my decision.

Background Facts

2 Kim Eng is a member of the Singapore Exchange Securities Trading Ltd (“SES”) carrying on the business of stockbroking. The defendant, at all material times, was a remisier with Kim Eng having been so appointed pursuant to an Agency Agreement dated 24 January 1992 (“the Agency Agreement”) to act as Kim Eng’s agent to trade and deal in stocks, shares and other marketable securities (collectively referred to as “the securities”) in Kim Eng’s name and in its trading room, upon the terms and conditions set out in the Agency Agreement.

3 The defendant had from time to time traded in securities in the SES for clients introduced by him to Kim Eng. Arising from his trading activities, some of the clients defaulted on their transactions and contra losses were incurred. It was not disputed that contra losses could arise in the situations described by the defendant in his show cause affidavit of 13 September 2006. The first situation is where the client fails to pay on the due date for the securities bought on his behalf. Kim Eng elects to “force-sell” the securities and the resultant difference is the contra loss. The second situation is where the client fails to deliver the securities sold on his behalf. A “buy-in” from the market to perform the sale contract is undertaken by Kim Eng and the difference represents the contra loss.

4 In this action, the contra losses incurred formed the bulk of the claims. It is convenient to reproduce below the particulars of paragraph 15 of the Amended Statement of Claim.

PARTICULARS

(i)

Outstanding contra losses as at 1 March 2005 in respect of transactions dealt by or through the Defendant for the following clients:-
(i) Tan Ee Hwa $ 285.28
(ii) Ng Soo Kee $65,551.89
(iii) Lee Tiong $ 1,009.64
(iv) Boh Kwee Eng $71,247.21


$138,094.02

(ii)

Accumulated interest on contra losses in respect of transactions dealt by or through the Defendant for the following clients:-
(i) Tan Ee Hwa $ 19.93
(ii) Ng Soo Kee $ 48,456.04
(iii) Lee Tiong $ 821.97
(iv) Boh Kwee Eng $69,834.35


$119,132.18[note: 1]

(iii)

Accumulated interest on contra losses in transactions dealt by or through the Defendant and other sums due and payable by Defendant:-
(i) Plaintiffs’ Tax invoice dated 30/6/04 $51,668.53
___________________________________________

(ii) Plaintiffs’ Tax invoice dated 31/7/04
(inclusive of $51,668.53) $ 52,872.74
(iii) Less interest reversal ($ 329.12)
(iv) Plaintiffs’ Tax invoice dated 31/8/04 ($ 729.02)
(v) Plaintiffs’ Tax invoice dated 30/9/04 ($ 92.34)
(vi) Less Commission due to Defendant ($ 19.20)
(vii) Less Commission due to Defendant ($ 204.00)

$51,668.53


$51,449.06

(iv)

Expenses incurred by Plaintiffs for Defendant in year 2004:-
(i) SES Terminal ($480 per month) $ 3,360.00
(ii) SES Subscription ($75 per month) $ 525.00
(iii) Telephone charges (Jan – May 2004) $ 403.58
(iv) Telephone charges (June 2004) $ 50.00
(v) Licence fee $ 800.00

$ 5,138.58

(v)

Legal costs incurred by Plaintiffs in respect of claim made against Tan Ee
Hwa

$ 1,054.00

5 Paragraph 8 of the Amended Statement of Claim relates to a different group of people and the contra losses incurred totalled $28,278.20. In an e-mail dated 21 June 2004, Kim Eng informed the defendant that it would utilise a sum of $28,278.20 held in the defendant’s Trust Account with Kim Eng to pay the contra losses. In response, the defendant objected to the names given under this group and promised to provide Kim Eng with a list of deductions. He never did and on or about 28 June 2004, Kim Eng proceeded to deduct the sum of $28,278.20, utilising moneys in the defendant’s Trust Account.

6 Kim Eng’s claims in this action were made under the Agency Agreement. The relevant terms and conditions of the Agency Agreement read as follows:

7. Liability in respect of transactions

7.1 All sums due and payable to the Company in respect of transactions dealt by or through the Remisier in the name of the Company (hereinafter called the “contract sum”) shall be settled within seven days of the date of despatch by the Company of the relevant debit note (s) (hereinafter called the “due date”).

7.3 The Remisier hereby undertakes to pay the Company on demand:

(a) the contract sum or any part thereof remaining outstanding for more than seven days after its due date; and

(b) interest thereon at a rate to be determined from time to time from the due date to the date of full payment.

7.4 Any payment made by the Remisier under Clause 7.3 shall be refunded to him to the extent of any amount that may subsequently be recovered from the party liable for the same, after the deduction of any expenses incurred in connection with the recovery.

10. Indemnity

The Remisier shall indemnify the Company against all damages, liabilities, actions, proceedings, judgments, costs (including costs on a solicitor-and-client basis), claims, demands and any other losses of whatever nature that may be suffered or incurred by the Company in connection with or arising from transactions in securities dealt by or through the Remisier in the name of the Company (whether or not the same may have been caused by or may relate to any fraud, deceit, neglect, misconduct, breach of contract or default on the part of the Remisier or his client).

7 I should mention, for the sake of completeness, the supplemental letter to the Agency Agreement dated 9 January 2004 (and countersigned by the defendant) even though it was not specifically referred to by either party. The relevant portions read:

The Remisier agrees that the indemnity given by the Remisier in favour of the Company under Clause 10 of the Agency Agreement shall extend to all losses, liabilities, actions, proceedings, costs, claims and demands that may be suffered or incurred by the Company in connection with or arising from transactions in securities dealt by or through the Remisier or accepted by the Remisier or allocated or designated under the Remisier’s code in the name of the Company or from any act or omission of the Remisier.

8 Clauses 8, 11 and 13.4 of the Agency Agreement read:

Charges Payable

8.1 The Remisier shall reimburse the company in respect of:

(i) all charges incurred in respect of the installation of telephones and other electronic equipment for the use of the Remisier;

(ii) all periodic charges payable to the Telecommunication Authority of Singapore for the use of such telephones and electronic equipment;

(iii) all payments and subscriptions made to the Stock Exchange of Singapore Limited by the Company on the Remisier’s behalf; and

(iv) such administrative charges as shall be imposed by the Company from time to time for the use of the Company’s facilities.

8.2 Such reimbursement shall be made within seven days of the Company’s demand for the same.

11 Legal Advice

The Company shall be entitled, at its absolute discretion, to appoint legal advisers of its own choice to advise on any issue, claim, dispute, proceedings or other matter arising out of or having connection with the trading activities of the Remisier. All legal fees, expenses and other charges that may be incurred by the Company in respect thereof shall be borne by the Remisier.

13 Term and Termination

13.4 Notwithstanding the termination of this Agency Agreement for any reason whatsoever, the Remisier shall remain fully liable to the Company under this Agreement until all outstanding amounts payable hereunder shall be fully recovered by the Company.

9 The defendant’s appointment as remisier ceased as of 1 July 2004. Notwithstanding his departure, the defendant under cl 13.4 of the Agency Agreement remained fully liable to pay all outstanding sums due to Kim Eng.

10 On 8 July 2004, Kim Eng, through its solicitors, demanded from the defendant payment of the total outstanding sum of $383,237.85 as at 30 June 2004. Following the defendant’s query on 16 July 2004, Kim Eng provided a breakdown of the sum of $383,237.85 on 22 July 2004. A further letter was sent on 18 March 2005 to the defendant. Subsequently, by letter dated 23 March 2005, Kim Eng’s solicitors demanded payment of the contra losses and accumulated interest due and owing as at 1 March 2005, that is to say, items (i) to (iii) of paragraph 15 of the Amended Statement of Claim (see [4] above). As regards, item (iv), on 4 April 2006, Kim Eng’s solicitors demanded from the defendant payment of the sum of $1,054, being the legal costs incurred by Kim Eng in respect of a claim made against one Tan Ee Hwa for contra losses due and owing to Kim Eng.

11 In this action commenced on 10 May 2006, Kim Eng applied for summary judgment against the defendant. Mr Lim Thian Siong represented Kim Eng. The defendant was not legally represented. He acted in person.

12 The defendant declared that for the purposes of the O14 application and the appeal before me, he was not...

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4 cases
  • Cytec Industries Pte Ltd v APP Chemicals International (Mau) Ltd
    • Singapore
    • High Court (Singapore)
    • 6 August 2009
    ...the inclusion of Dr Liu’s name at the end of the e-mail affirmed his act of signing off (see Kim Eng Securities Pte Ltd v Tan Suan Khee [2007] 3 SLR 195 at Exceptions or limitations to the “without prejudice” rule 32 Having found that the Raymond Liu e-mail read with the Coface letter conta......
  • Fairview Developments Pte Ltd v Ong&Ong Pte Ltd
    • Singapore
    • Court of Appeal (Singapore)
    • 20 January 2014
    ...[2009] 2 SLR (R) 332; [2009] 2 SLR 332 (refd) Gee&Co (Woolwich) Ltd, Re [1975] Ch 52 (refd) Kim Eng Securities Pte Ltd v Tan Suan Khee [2007] 3 SLR (R) 195; [2007] 3 SLR 195 (folld) PT Bakrie Investindo v Global Distressed Alpha Fund 1 Ltd Partnership [2013] 4 SLR 1116 (refd) Rainforest Tra......
  • Anuva Technologies Pte Ltd v Advanced Sierra Electrotech Pte Ltd and another suit
    • Singapore
    • High Court (Singapore)
    • 14 October 2019
    ...in writing and signed by the person making the acknowledgment: s 27(1) Limitation Act. In Kim Eng Securities Pte Ltd v Tan Suan Khee [2007] 3 SLR(R) 195 at [52], the High Court accepted that an email could satisfy the signed writing requirement under s 27(1) Limitation Act. My As a prelimin......
  • Cytec Industries Pte Ltd v APP Chemicals International (Mau) Ltd
    • Singapore
    • High Court (Singapore)
    • 6 August 2009
    ...the inclusion of Dr Liu’s name at the end of the e-mail affirmed his act of signing off (see Kim Eng Securities Pte Ltd v Tan Suan Khee [2007] 3 SLR 195 at Exceptions or limitations to the “without prejudice” rule 32 Having found that the Raymond Liu e-mail read with the Coface letter conta......
1 books & journal articles
  • Banking Law
    • Singapore
    • Singapore Academy of Law Annual Review No. 2007, December 2007
    • 1 December 2007
    ...of the Civil Law Act for a lease to be embodied in a signed written memorandum. Similarly, in Kim Eng Securities Pte Ltd v Tan Suan Khee[2007] 3 SLR 195, Belinda Ang Saw Ean J decided that an e-mail acknowledgment by a guarantor was sufficient to revive a time-barred debt. Duty of Disclosur......

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