Lau Eng Khoon v Lim Hua Nam and Others

CourtDistrict Court (Singapore)
JudgeLeslie Chew
Judgment Date02 August 2007
Neutral Citation[2007] SGDC 214
Citation[2007] SGDC 214
Published date24 September 2007
Plaintiff CounselConrad Campos/Chua Wen Xiu (Robert Wang & Woo LLC)
Defendant CounselAnthony Bevin Netto (Netto & Magin LLC)

2 August 2007

District Judge Leslie Chew:

Introduction

1. This is an Order 14 Appeal against the decision of the Deputy Registrar, in this case, granting unconditional leave to defend to the Defendants. In this appeal the Plaintiff seeks to have me reconsider the matter and to set aside the order dated 22 May 2007 of the learned Deputy Registrar and to grant him summary judgment in respect of his action. In these situations it is trite law that sitting as a District Judge in chambers I am not strictly, exercising an appellate function as it were. The matter being heard within the structure of the District Courts is a case of a District Judge exercising confirmatory powers by rehearing the matter – see Singapore Court Practice, Pinsler at para [55B/1/5]. I therefore heard this matter de novo. At the end of the hearing I granted the Plaintiff summary judgment on his claim. I now give my reasons.

2. The case concerns monies advanced to the Defendants, which the Plaintiff said was a loan to the Defendants. The Plaintiff’s action is to recover the balance of the monies which he says is now due. The Defendants on the other hand claimed that while they accepted that the Plaintiff had advanced certain monies to them the real issue concerns the terms of that advance or loan. The Defendants’ case briefly stated is that the advance of monies to them by the Plaintiff was not a case of a simple loan but rather that there were certain terms attached to it and specifically a particular term with respect to the Defendants’ repayment obligation.

The Factual Background

3. At the hearing before me, Counsel for the Plaintiffs tendered his written submission of 29 June 2007 (“Plaintiff’s Written Submission”). In the Plaintiff’s Written Submission, Plaintiff’s Counsel argued as follows:

a. There is no dispute that there was a contract for a loan from the Plaintiff to the Defendants for the amount of $100,000.00 – see affidavit of Plaintiff of 19 March 2007 (“Plaintiff’s Affidavit”).

b. The Plaintiff’s Affidavit also set out his position with respect to the loan extended to the Defendants. Essentially, the Plaintiff said that on or about 26 January 2006, the 2nd Defendant an old friend of his, had approached the Plaintiff requesting a loan of $100,000.00 to help the Defendants start up a new business venture involving certain energy and fuel saving products.

c. As security for such a loan, the 3rd Defendant had offered 2 jade pieces.

d. The Plaintiff agreed to extend the loan and to secure the loan he accepted the 2 jade pieces. However, as the Plaintiff was doubtful as to the value of the 2 jade pieces he also required the Defendants to jointly and severally guarantee the loan he was about to advance to them.

e. In addition and as a perk or incentive for the Plaintiff to make the loan the Defendants had agreed that if the business venture they were about to start, was to ‘take off’, the Plaintiff would be entitle to share in the profits. Up to this point, the Defendants do not dispute the Plaintiff’s position and view of the matter – see paragraph 3 of the Defence filed by the Defendants on 8 February 2007.

f. The Defendants did however refer to additional terms of the loan. Specifically, the Defendants asserted in the Defence that as part of the loan arrangement, the Plaintiff was to participate in the business by being entitled to 20% of the profit from the business and that he would also be invited to be part of a new joint venture business to be entered between the Defendants. I-Telecom Pte Ltd and KME Pwer-Tech Sdn Bhd – see paragraph 3 (iv) and (v) of the Defence.

g. The Defendants also alluded to a Memorandum of Understanding dated 28 February 2006 (“the MOU”) which they say contain the above-mentioned terms.

h. Where the two parties parted company with respect to the factual matrix of the dispute is as follows:

(i) The Plaintiff’s position was that he extended a loan to the Defendants for which he said there was already a payment term which the Defendants failed to adhere to.

(ii) The fact that the loan permitted him to participate in the business by receiving 20% of the profits and also to be invited to participate in the other joint venture business, did not detract from the case being one of a loan and nothing more than that.

(iii) Indeed there was agreement that the loan was to be repaid within 10 months from the date the sales under the Defendants’ business commenced – see paragraph 4 of the Plaintiff’s Written Submission.

(iv) The Defendants, on the other hand claimed that the loan was not simply a loan. They asserted that the sum of $100,000.00 advanced by the Plaintiff was “…really a business investment cum loan…” – see paragraph 5 of the Defence.

(v) Accordingly, the loan was repayable in instalments commencing on the date when the KME business (the intended investment by the Plaintiff) venture had become “…fully operative and profits were being earned” – see paragraph 9 of the Defence.

(vi) The Plaintiff’s overall position was that the loan was to be repaid by the Defendants within 10 months (in 10 monthly instalments) when the sales under the business venture in respect of which he had made the loan had commenced and this, the parties had agreed to be in April 2006 – see paragraph 13 of the Plaintiff’s Affidavit.

(vii) It was against the above backdrop that the Plaintiff launched his action to recover the balance sum of $90,000.00 from the Defendants. Apparently a sum of $10,000.00 was paid by the Defendants on 30 April 2006. According to the Defendants, this payment was not an instalment repaid as claimed by the Plaintiff but rather it was paid to allay the concerns of the Plaintiff when the business venture had failed to commence as quickly as the Defendants and the Plaintiff had contemplated – see paragraph 13 of the Defence.

The Evidence

4. Against the factual matrix which I have set out in the preceding paragraphs, at the hearing I had to consider the affidavit evidence and of course the arguments put forward by both parties.

5. The evidence for both sides consisted of the affidavits filed by the Plaintiff on 19 March 2007 and 26 April 2007 (“the Plaintiff’s 2nd Affidavit”) and those of the Defendants filed on 12 April 2007 by the 1st and 3rd Defendants and the affidavit also of the same date filed by the 2nd Defendant, all of which I collectively refer to as the Defendants’ Affidavits.

6. It is perhaps convenient to refer as a start, to the Plaintiff’s Affidavit. It is also apposite to do so since, this is the affidavit upon which the Plaintiff had sought and continue to seek summary judgment against the Defendants in these proceedings.

7. In the Plaintiff’s Affidavit, he exhibited two documents which, in my judgment represented the crucial evidence touching this dispute. These documents are marked as Tab A and Tab B.

8. I first deal with the document in Tab A. This was a document which is hand-written and contained what parties agree are the notes of the discussions between them on 25 February 2006, when they first discussed the $100,000.00 advance to be made by the Plaintiff to the Defendants. Significantly, this is the only document to which all the parties from both sides of the dispute had subscribed...

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