Lam Soon Oil and Soap Manufacturing Sdn Bhd and Another v Whang Tar Choung and Another

• Judgment Date: 17 October 2001
• Date: 17 October 2001
• Docket Number: Suit No 974 of 2000 (Summons in
• Court: High Court (Singapore)

Lam Soon Oil and Soap Manufacturing Sdn Bhd and another

Plaintiff

and

Whang Tar Choung and another

Defendant

[2001] SGHC 316

Lee Seiu Kin JC

Suit No 974 of 2000 (Summons in Chambers No 2097 of 2001)

High Court

Civil Procedure–Pleadings–Amendment–Defendant applied for leave to amend defence at commencement of trial–Application to amend last in series of procedural means to stay or delay proceedings–Defendant seeking to raise issues of time bar and laches when he was aware of such issues at earlier date–Plaintiff would plead fraud necessitating prolonged interlocutory process if amendment allowed–Whether leave to be granted–Whether undue delay or prejudice to other party existed

In this interim application pursuant to an action for an assignment of certain trade marks entered into in breach of trust, after attempting to stay or delay the proceedings via other procedural means, the first defendant applied for leave to amend his defence by adding three material paragraphs on the first day of trial:

1. (a) paragraph 47, to plead that the plaintiffs were out of time by operation of s 6 (1) of the Limitation Act (Cap 163, 1996 Rev Ed) (“Limitation Act”);

2. (b) paragraph 57, to plead that even if the first defendant had held the trade marks on trust, by his refusal to execute a deed of assignment in 1987, he was in breach of trust at the time. Therefore the cause of action ran from that date, and was time barred pursuant to s 22 (2) of the Limitation Act, if it were a constructive remedial trust; and

3. (c) paragraph 58, to plead, in case s 21 (1) (b) of the Limitation Act was applicable, the defence of laches.

The first defendant through his son explained that the late application was principally due to the fact that the defendants had changed solicitors recently. However, the first defendant's son studiously avoided answering when they were advised that a change of solicitor was necessary; in addition, more than a year before the trial the first defendant was aware of the issues of limitation and laches and had pleaded these in a separate action in respect of the trade marks in Malaysia (“the earlier Malaysian action”).

The plaintiffs opposed the application on two grounds. Firstly, the proposed amendments did not disclose good defences. In respect of the proposed para 57, there was no evidence of the alleged refusal. In any event, in the case of breach of trust, there was a continuing duty to perform. If the first defendant raised the question of s 22, then the plaintiffs would apply to amend their claim to plead fraud. Secondly, the amendments if allowed would prejudice the plaintiffs, as new evidence would have to be adduced and additional instructions taken.

Held, allowing the application in part:

(1) Paragraph 47 was allowed and therefore not the subject of the appeal: at [12].

(2) As a general rule, a party might amend his pleadings if it was reasonably necessary for the due presentation of his case on costs, provided there had been no undue delay on his part and no prejudice to the other party. However, in this case to allow the amendments meant that the present trial dates, with 13 hearing days, would have to be vacated. It would also mean a prolonged interlocutory process as the plaintiffs would be pleading fraud. In this case, with the first witness and another material witness in advanced ages, further delays could very well prejudice the fair trial of the matter: at [19 (a)] and [19 (b)].

(3) A distinction had to be drawn between allowing amendments to clarify the issues in dispute and those that permit a distinct defence to be raised for the first time as the impact of these two types of amendments were quite different and ought therefore be treated differently: at [19 (c)] .

(4) Delay in the disposition of this suit would cause prejudice to the plaintiffs in that there was uncertainty whether they should continue to develop the trade marks further. The first defendant pleaded the issues of time bar and laches in the earlier Malaysian action, but made no such allegations in the present action until the first day of trial. There was undue delay on the part of the first defendant and even if the delay were caused by the omission of his previous solicitors, the defendant would ordinarily be expected to bear the consequences of that carelessness and look to his solicitors for compensation if he is so minded: at [19 (d)] and [19 (e)].

Ketteman v Hansel Properties Ltd [1987] AC 189; [1988] 1 All ER 38 (folld)

Limitation Act (Cap 163, 1996 Rev Ed) ss 6 (1) (a), 21 (1) (a), 21 (1) (b), 22 (2)

Davinder Singh SC, Philip Jeyaretnam, Harpreet Singh Nehal, Jamie Yip and Tan Kok Peng (Helen Yeo & Partners) for the plaintiffs

Kenneth Tan SC and Kevin Kwek (Kenneth Tan Partnership) for the defendants.

Lee Seiu Kin JC

1 The first defendant, Whang Tar Choung (“WTC”), has certain trade marks registered in his name (“the trade marks”). On 15 November 2000 he assigned the trade marks to the second defendant, Forward Supreme Sdn Bhd (“Forward Supreme”). The first plaintiff, Lam Soon Oil and Soap Manufacturing Sdn Bhd (“LSOS”) and the second plaintiff, Lam Soon (M) Bhd (“LSMB”) claim that WTC was holding those trade marks on trust for them and seek, through this action to obtain their transfer to LSMB.

2 On 5 September 2001, the first day of the trial, Mr Kenneth Tan, counsel for the defendants, applied on behalf of WTC to amend his defence. I adjourned the hearing of his application until the following day to enable counsel for the plaintiffs, Mr Davinder Singh, to consider it as he had no prior notice of it. On 7 September, after hearing submissions on both sides, I allowed Mr Tan's application in respect of one paragraph but dismissed it in respect of the other two paragraphs. On 3 October 2001, WTC appealed against my decision to the extent that it dismisses his application to amend his defence and I now give my written grounds of decision.

Interlocutory stage

3 It is necessary to set out the manner in which this action has progressed at the interlocutory stage, at least in respect of the material events. The plaintiffs filed the writ along with their joint statement of claim on 17 November 2000. On the same day they applied for and obtained an interim injunction to forbid the defendants from transferring or otherwise disposing of the trade marks until after the trial of the action.

4 On 12 December 2000, in Summons in Chambers No 1447 of 2000 (“SIC 1447/2000”), WTC applied for the action to be stayed...