Koh Ewe Chee v Koh Hua Leong and Another

• Jurisdiction: Singapore
• Judge: Choo Han Teck JC
• Judgment Date: 03 May 2002
• Neutral Citation: [2002] SGHC 100
• Docket Number: Originating Summons No 533 of 2000
• Date: 03 May 2002
• Published date: 19 September 2003
• Year: 2002
• Plaintiff Counsel: Gopinath Pillai and Tan Siu-Lin (Drew & Napier LLC)
• Citation: [2002] SGHC 100
• Defendant Counsel: Lim Khoon (Lim Hua Yong & Co) and R Chandra Mohan (Rajah & Tann)
• Court: High Court (Singapore)
• Subject Matter: Whether plaintiff can apply for declaration that firm was sole proprietorship pursuant to such order,Order appointing receivers and managers over partnership,Nature and scope of order,Civil Procedure,'Liberty to apply' order,Judgments and orders

Civil Procedure — Judgments and orders — Order of court — Whether further order that firm is a sole proprietorship fell within scope of ‘liberty to apply’ order

Facts

The plaintiff and the two defendants are brothers. In 1965, the father of the parties founded Sin Wah Seng, a partnership firm ("the firm"). When he died in 1979, the running of the firm was passed on to the parties. Following disagreements, the defendants applied in December 1999 for an order to dissolve the firm and appoint receivers and managers over its assets and liabilities. This was discontinued after they served a notice of dissolution of the partnership on 11 February 2000. On 7 April 2000, the plaintiff applied to appoint two named receivers and managers to realise the partnership properties. On 7 June 2000, TQ Lim JC ("Lim JC") granted the plaintiff’s application.

Subsequently, as a result of the alleged inability of the receivers to determine the shares of the partners in six of the seven properties, the plaintiff applied by way of a summons-in-chambers pursuant to Lim JC’s "liberty to apply" order for an order that the court declare that the firm is a sole proprietorship. As its sole proprietor, he claimed that he was entitled to ownership over all the properties against the claims of the defendants. In addition, he also prayed for an order to discharge the receivers, and for a declaratory order that the defendants were holding on resulting trust the seven pieces of property, and that they be ordered to transfer title to him.

Held

, dismissing the application

(1) The "liberty to apply" order is a judicial device intended to supplement the main orders in form and convenience only so that the main orders may be carried out; Cristel v Cristel [1951] 2 KB 725 (folld). Within its ambit, errors and omissions which do not affect the substance of the main orders may be corrected or augmented, but nothing must be done to vary or change the nature or substance of the main orders. The variation of orders is governed by other rules. What amounts to a variation depends on the context of the individual case. Even if parties apply by consent to vary the original order under a "liberty to apply" order, where substantial changes are made to the original order or main orders, the proper mode and procedure must be adopted (see 4, 5).

(2) In the proceedings leading to Lim JC’s order, the plaintiff had used unequivocal language in the documents and proceeded before Lim JC on the basis that the firm was a partnership. Notwithstanding his present contentions with some of the facts, the matters deposed in his March affidavit contained matters which he knew or ought to have known before the application to Lim JC was made. The plaintiff could not now assert that the firm was in fact a sole proprietorship. In any case, a "liberty to apply" order was not the right avenue to proceed on and the orders sought were not minor improvements (see 6).

(3) On the prayer to discharge the receivers, it was noted that no affidavit was received from the receivers and managers stating the problems, if any, that require correction by adjudication. In any case, the ambit of their work was to realise only the partnership properties and if there was any doubt as to whether property belonged to the partnership, they should seek legal advice. However, the properties in question have been in existence for years and were not unknown to the parties. In fact, it was incomprehensible that the parties did not think that the ownership of these properties would be an issue when the orders of Lim JC were sought. In any case, the current application under a "liberty to apply" order was not the appropriate forum to unravel these disputes (see 7).

Case(s) referred to

Cristel v Cristel [1951] 2 KB 725, [1951] 2 All ER 574 (folld)
Bairstow and Ors v Queen’s Moat Houses plc, 19 Sept 1997 (unreported) (refd)
Tan Yeow Khoon & Anorv Tan Yeow Tat (No. 2) [2000] 3 SLR 323 (refd)

Judgment

GROUNDS OF DECISION

1. This is an application by the plaintiff who is the brother of the two defendants. The undisputed facts from the Originating Summons and supporting affidavits appear to be as follows (the word ‘appear’ is a necessary description because of the curious nature of this application). The parties were partners in a partnership firm known as Sin Wah Seng. This firm was founded in 1965 by Mr. Koh Sim, the father of the parties. The principal business of the firm was that of a hardware retailer. Mr. Koh Sim died in 1979 and his three sons carried on the business as the remaining partners. Disagreements arose between the plaintiff and his two brothers and the plaintiff’s two brothers applied by way of an Originating Summons (Originating Summons No. 1930 of 1999) in December 1999 for a court order to dissolve the partnership and the appointment of receivers and managers over its assets and liabilities. Shortly thereafter, on 11 February 2000, the defendants served a notice of dissolution of the partnership on the plaintiff and followed that by an application to amend Originating Summons No. 1930 of 1999 by the addition of a fresh prayer for a declaration that the firm was dissolved on 11 February 2000. However, when this application came up for hearing, the defendants (the plaintiffs in Originating Summons No. 1930 of 1999) withdrew their application and filed a notice of discontinuance of Originating Summons No. 1930 of 1999 on 6 April 2000. On the next day, 7 April 2000, the plaintiff filed this Originating Summons praying for an order appointing Mr. Timothy Reid and Mr. Chan Kek Teck as receivers and managers of the partnership. The application was granted by Judicial Commissioner TQ Lim on 7 June 2000.

2. The plaintiff now applies by way of a...