Lassiter Ann Masters v to Keng Lam (alias Toh Jeanette)

• Jurisdiction: Singapore
• Judgment Date: 26 March 2004
• Date: 26 March 2004
• Docket Number: Civil Appeal No 97 of 2003
• Court: Court of Appeal (Singapore)

Lassiter Ann Masters

Plaintiff

and

To Keng Lam (alias Toh Jeanette)

Defendant

[2004] SGCA 10

Chao Hick Tin JA

and

Choo Han Teck J

Civil Appeal No 97 of 2003

Court of Appeal

Civil Procedure–Appeals–Registrar's appeal from assessment of damages to judge in chambers–Whether operates as rehearing–Whether judge in chambers has discretion to allow further evidence–Whether Ladd v Marshall principles applicable–Order 56 r 1 Rules of Court (Cap 322, R 5, 1997 Rev Ed)

The appellant (“the plaintiff”) was the widow of Henry Adolphus Lassiter (“HAL”), a US citizen who died in a motor accident here in 1994. The respondent (“the defendant”) was the driver of the vehicle that collided with HAL. The plaintiff made a claim for dependency. The assessment hearing was conducted before the assistant registrar (“the AR”) in two tranches.

Companies belonging to HAL had come under Chapter 11 bankruptcy in the United States. This was not made known to the defendant. Upon the defendant's discovery of the Chapter 11 bankruptcy, the plaintiff sought to have an additional affidavit affirmed by one Baker (“2S-AEIC”) introduced during the second tranche of the hearing. The AR refused. At the conclusion of the assessment, the AR rejected the loss of inheritance claim. Both parties appealed to the judge in chambers.

The plaintiff filed a summons for further directions to have 2S-AEIC, a further affidavit affirmed by Baker (“3S-AEIC”) as well as a further affidavit affirmed by one Seaman (“4S-AEIC”), admitted into evidence for the purpose of the appeals. At the hearing, the judge in chambers deferred the consideration of the two substantive appeals in order to deal with the issues arising from the summons for further directions. She affirmed the AR's order in relation to 2S-AEIC, and refused to have 3S-AEIC and 4S-AEIC admitted into evidence. She also said that the plaintiff should have appealed against the AR's order on 2S-AEIC.

Before the Court of Appeal, the plaintiff sought only to have 2S-AEIC and 3S-AEIC admitted into evidence. In relation to 2S-AEIC, the issue was whether the judge in chambers exercised her discretion correctly in affirming the AR's decision. In relation to 3S-AEIC, the issue was whether the judge in chambers was correct to refuse to admit fresh evidence, and whether the Ladd v Marshall conditions were applicable to an appeal from an assessment award.

Held, dismissing the appeal:

(1) A registrar's appeal ought not to be treated in the same way as an appeal from the judge in chambers to the Court of Appeal. When a judge in chambers heard a registrar's appeal, he was exercising confirmatory and not appellate jurisdiction. There were no express provisions, as there were for appeals to the Court of Appeal, that the judge in chambers should not receive further evidence unless there were “special grounds” for doing so. Therefore, not all the conditions in Ladd v Marshall would apply in the present case: at [10], [22] to [23].

(2) However, reasonable conditions ought to be set for the exercise of the judge in chambers' discretion to admit fresh evidence. It would not be appropriate to impose the first condition under the Ladd v Marshall test, but there still had to be sufficiently strong reasons why the fresh evidence was not adduced before the Registrar. As to the second and third conditions under the Ladd v Marshall test, these were eminently reasonable, and remained relevant: at [24] to [26].

(3) The AR was justified in refusing the admission of 2S-AEIC. This affidavit contained matters that should already have been explained to the court in the light of inherent contradictions in the various documents pertaining to HAL's financial position. There was no basis to overturn the judge in chambers' exercise of discretion in affirming the AR's decision: at [40] and [43].

(4) The judge in chambers' exercise of discretion could not be shown to be erroneous in relation to 3S-AEIC since the reason given for its late introduction was hardly meritorious: at [44].

(5) As the AR had refused to admit 2S-AEIC, this should have been stated in the plaintiff's Notice of Appeal against his decision as one of the grounds of appeal. As for 3S-AEIC, the plaintiff ought to have proceeded by way of a summons in chambers pursuant to O 32 r 1 of the Rules of Court (Cap 322, R 5). Nevertheless, these were procedural defects which could be treated as irregularities under O 2 r 1: at [46] to [48].

[Observation: In the circumstances of this case, it was quite clear that the plaintiff did not proceed with the assessment of damages in all good faith. There were clear attempts at suppressing the truth and in preventing the defendant from discovering the truth. Sufficient opportunities were accorded to the plaintiff to substantiate her claims and yet she failed to do so. Any party who came to court seeking to play a “cat-and-mouse” game could not expect sympathy or indulgence: at [49].]

Ang Leng Hock v Leo Ee Ah [2004] 2 SLR (R) 361; [2004] 2 SLR 361 (refd)

Augustine Zacharia Norman v Goh Siam Yong [1992] 1 SLR (R) 746; [1992] 1 SLR 767 (folld)

Chang Ah Lek v Lim Ah Koon [1998] 3 SLR (R) 551; [1999] 1 SLR 82 (distd)

Cheong Kim Hock v Lin Securities (Pte) [1992] 1 SLR (R) 497; [1992] 2 SLR 349 (refd)

Evans v Bartlam [1937] AC 473 (refd)

Herbs and Spices Trading Post Pte Ltd v Deo Silver (Pte) Ltd [1990] 2 SLR (R) 685; [1990] SLR 1234 (folld)

Ladd v Marshall [1954] 1 WLR 1489 (refd)

Lian Soon Construction Pte Ltd v Guan Qian Realty Pte Ltd [1999] 1 SLR (R) 1053; [1999] 2 SLR 233 (folld)

Vishva Apurva, The [1992] 1 SLR (R) 912; [1992] 2 SLR 175 (folld)

Civil Law Act (Cap 43, 1999 Rev Ed) s 20

Rules of Court (Cap 322, R 5, 1997 Rev Ed) O 2 r 1, O 25 r 7, O 32 r 1, O 38 r 2 (3), O 57 r 13 (2)

Supreme Court of Judicature Act (Cap 322, 1999 Rev Ed) s 37 (4)

Michael Hwang SC (instructed) and Ernest Wee (Michael Hwang SC), Siva Murugaiyan and Parveen Kaur Nagpal (Sant Singh Partnership) for the appellant

Quentin Loh SC and Anthony Wee (Rajah & Tann) for the respondent.

Judgment reserved.

Chao Hick Tin JA

(delivering the judgment of the court):

1 This appeal raises a number of procedural issues relating to the principles governing the exercise of discretion in the admission of evidence at an assessment of damages conducted by the Registrar, the nature of the jurisdiction of the judge in chambers on hearing an appeal from such an assessment, and the applicable principles governing the admission of new evidence on the hearing of the “appeal” before the judge.

The background

2 We will first set out the facts upon which these issues arose for consideration. The plaintiff, Ann Masters Lassiter (“Mrs Lassiter” or “the appellant” as may be appropriate), is the widow of the late Henry Adolphus Lassiter (“HAL”), a US citizen, who was, on 9 May 1994, killed in a motor accident in Singapore. He was then aged 48. Mrs Lassiter commenced an action making a dependency claim, including an unusual claim for loss of inheritance, against the driver of the vehicle which collided with HAL, one Mdm To Keng Lam (“TKL” or “the respondent”). The claim was made by Mrs Lassiter on behalf of herself as well as her four daughters, under what is now s 20 of the Civil Law Act (Cap 43, 1999 Rev Ed). By agreement, on 19 May 1998, a consent judgment was entered into apportioning liability between HAL and TKL for the accident in the ratio of 55 and 45 respectively.

3 The assessment commenced before the assistant registrar (“AR”) on 27 February 2002 and continued until 5 March 2002 (“the first tranche”). It resumed on 20 June 2002 and ended on 28 June 2002 (“the second tranche”). Of the witnesses called by the appellant, we need only mention two. The first is Dr Bruce Seaman from the Georgia State University, an expert witness, and the other is Mr James Baker, a real estate broker who had known HAL from 1981. The respondent called two expert witnesses, one is Mr William Hecht, a certified public accountant and lawyer and the other is Carl Bellows, an American lawyer who gave his legal opinion on certain tax issues.

4 At the time of his death, HAL was in the real property business, buying large tracts of timber land, clearing them and subdividing them into smaller lots, which he would then dispose of. He carried out his business primarily through two firms, Lassiter Properties Inc (“LPI”) and Micro Design Inc (“MDI”). Unbeknown to TKL, HAL and LPI came under Chapter 11 bankruptcy in the US. Though orders for discovery were made against the appellant, she suppressed the documents relating to the fact that HAL and LPI were subject to Chapter 11. This was only discovered much later by the respondent which necessitated the appellant's witnesses having to file further affidavits to modify the very rosy picture which they had painted in their earlier affidavits regarding the business of HAL. A second supplementary affidavit of Mr Baker (“2S-AEIC”) was sought to be admitted into evidence by the appellant during the second tranche of the hearing. This was refused by the AR.

5 At the conclusion of the assessment, the AR made his awards, but he rejected the appellant's claim for loss of inheritance, it being not a claim permitted under a dependency claim. In the alternative, he held that the loss of inheritance claim had not been proved.

6 The appellant lodged an appeal to the judge in chambers against the award. So did TKL. For the hearing before the judge in chambers, the appellant filed a summons for further directions to have 2S-AEIC admitted into evidence for the appeal as well as a third...