Koh Teck Hee (trading as Mui Teck Heng Garments & Trading Co) v Leow Swee Lim (trading as Meyoung Trading)

• Jurisdiction: Singapore
• Judge: K S Rajah JC
• Judgment Date: 01 August 1991
• Neutral Citation: [1991] SGHC 110
• Docket Number: District Court Appeal No 45 of 1990
• Date: 01 August 1991
• Year: 1991
• Published date: 19 September 2003
• Plaintiff Counsel: Chua Chong Hong (CH Chua & Co)
• Citation: [1991] SGHC 110
• Defendant Counsel: RS Bajwa (Bajwa & Co)
• Court: High Court (Singapore)
• Subject Matter: Discovery of documents,Drawer's seal irregular,Commercial Transactions,List of documents,Evidence of contract -Implied from conduct,O 24 rr 4, 5 & 16 Rules of the Subordinate Courts 1986,Inadmissibility of document,Banking,Civil Procedure,Duty of solicitor,Duty of customer of bank to write cheque carefully,Sale of goods,Failure to file list,Cheques

Cur Adv Vult

This is an appeal against the decision of the magistrate who awarded final judgment to the plaintiff. The plaintiff claimed $5,109.60 from the defendant, being the balance due to him for the price of goods sold and delivered or in the alternative, resting his claim on an account stated.

On 18 June 1986, the defendant ordered certain textile goods from one William Teo who acted as a broker for the plaintiff in the sale of the goods. The plaintiff delivered the goods to the defendant`s premises on 18 June 1986. Upon receipt of the goods, the defendant drew a Tat Lee Bank `cash` cheque dated 18 June 1986 for $8,586.30 as payment for the goods. Receipt of the cheque was acknowledged by the plaintiff on his invoice which was given to the defendant. The cheque had two tiny faint pencil lines drawn on the left-hand corner of the cheque which can be missed unless looked for carefully. The words `Lay Pheng Trading Co` and the figure `1075` were written on the reverse side of the cheque but were not noticed by the plaintiff when he received the cheque from the defendant. The plaintiff noticed the words and figure when he banked the cheque on the same day after indorsing his firm`s name and account number.

The defendant instructed his bank to stop payment on the cheque. When the bank returned the cheque to the plaintiff, the bank gave an additional reason - `drawer`s seal irregular`. The bank did not honour the cheque because payment was stopped and because the `drawer`s seal [was] irregular`. The seal on the cheque was `Mui Teck Heng Garments`. It should have been `Mui Teck Heng Garments & Trading Co`. Three words were omitted.

The learned magistrate carefully examined the relationship between the parties and found as a fact that William Teo was engaged as a broker by the plaintiff to sell the plaintiff`s goods to the defendant.

The learned magistrate refused to admit in evidence invoice No 1075 allegedly issued by Lay Pheng Trading Co to the defendant on 18 June 1986 when the plaintiff objected to the document being admitted as evidence on the ground that the maker of the invoice, William Teo, was not called, since the truth of its contents was disputed. William Teo was present in court when the court first started hearing the case. He was identified by the plaintiff. Two days after the hearing began, however, William Teo, who owed a sum of $3,943 to the defen, did not appear in court. The plaintiff`s attempts to contact William Teo thereafter were not successful. The plaintiff served early notice that he had decided not to call William Teo.

The learned magistrate considered the argument put forward by the defendant that the defendant had only dealt with William Teo of Lay Pheng Trading Co and that it had never occurred to the defendant that the defendant was dealing with the plaintiff. The learned magistrate noted that the defendant relied on the words `Lay Pheng Trading Co` and the figure `1075` written on the reverse side of the defendant`s cash cheque. Fraud and duress were alleged by the defendant with respect to the preparation of the document (P4) which described the plaintiff as the `seller`, the defendant as the `buyer` and `Lay Pheng Trading Co` as a `witness`. William Teo signed for Lay Pheng Trading Co. The learned magistrate who heard and saw the witnesses did not accept the defendant`s story that the goods were first sold to Lay Pheng Trading Co and then resold to the defendant by Lay Pheng Trading Co.

There was a conflict of evidence as to whom the cheque was given and the circumstances leading to the return of part of the goods. There was also a conflict of evidence as to how the document `P4` came to be prepared. The learned magistrate accepted the plaintiff`s version of the events as having been proved on a balance of probabilities and gave judgment for the plaintiff.

The appellant`s case

Counsel for the appellant argued that the plaintiff should have called William Teo to give evidence to establish privity of contract between the plaintiff and the defendant. It was argued by counsel that since the plaintiff did not call William Teo, it was probable that William Teo`s evidence would not be in the plaintiff`s favour. Adverse inferences against the plaintiff should have been drawn. The learned magistrate erred.

The appellant`s counsel further submitted that the presence of the words `Lay Pheng Trading Co` and the invoice No `1075` of Lay Pheng...