Leads Engineering (S) Pte Ltd v Chin Choon Co (Pte) Ltd (personal representatives of the estate of Choo Kok Hoe, deceased, garnishee)
Judge | Lai Siu Chiu J |
Judgment Date | 05 March 2009 |
Neutral Citation | [2009] SGHC 53 |
Citation | [2009] SGHC 53 |
Published date | 12 March 2009 |
Court | High Court (Singapore) |
Plaintiff Counsel | Liow Wang Wu Joseph (Straits Law Practice LLC) |
Defendant Counsel | M N Swami (Swami & Partners) with Joethy Jeeva Arul |
Subject Matter | Civil Procedure |
5 March 2009 |
Judgment reserved |
1 In this case, the court was tasked with determining whether the Estate of Choo Kok Hoe (“the garnishee”) was indebted to a company Chin Choon Company (Pte) Ltd (“the defendant”) so as to enable Leads Engineering (S) Pte Ltd (“the plaintiff”) who was a judgment creditor of the defendant, to make absolute a garnishee order nisi that the plaintiff had obtained against the garnishee in the sum of $144,460.70.
2 The genesis of this suit was Originating Summons No. 1384 of 2006 (“the OS”) wherein the plaintiff applied to court to enforce an arbitration award against the defendant in the sum of $144,460.70, pursuant to s 46 of the Arbitration Act (Cap 10, 2002 Rev Ed).
3 According to the plaintiff’s statement of claim, the plaintiff was engaged by the defendant to construct 16 dwelling houses at Figaro Street, Singapore by an agreement dated 25 January 2000 (“the building contract”). The building contract imported terms from the Articles and Conditions of Building Contract (lump sum) of the Singapore Institute of Architects’ (“SIA”) including arbitration under clause 37(1).
4 Disputes arose between the parties during the performance of the building contract. By a Notice of Dispute, the plaintiff on or about 13 September 2000 referred the dispute to arbitration and an architect Goh Chong Chia (“Goh”) was appointed the arbitrator.
5 In his award dated 9 March 2006 (“the Award”), Goh:
(a) ordered the defendant to pay the plaintiff $228,398.08;
(b) held that the defendant was not entitled to liquidated damages as the plaintiff was entitled to an extension of time to complete the construction works;
(c) held that the plaintiff was entitled to a sum of $34,979.43 being extra preliminaries incurred due to the prolonged contract period;
(d) ordered the plaintiff to pay the defendant a sum of $118,916.81 for defective works.
The net amount payable to the plaintiff after deducting $118,916.81 was therefore $144,460.70.
6 On 27 September 2006, the plaintiff obtained judgment in the OS against the defendant in the sum of $144,460.70 (“the judgment sum”).
7 Choo Kok Hoe (“the deceased”) was a developer who, by a letter dated 30 March 1998 (“the Agreement”), had appointed the defendant to be the main contractor to construct 20 housing units along Figaro Street (“the project”). In turn the defendant appointed the plaintiff as the subcontractor to construct the remaining 16 housing units in the project after it had completed construction of four units. The units constructed by the defendant comprised phase 1 of the project whilst those constructed by the plaintiff came within phase 2 of the project.
8 The deceased was a director as well as a shareholder of the defendant together with his sons. The defendant company was incorporated on 31 July 1970 and members of the deceased’s family or relatives who were/are its shareholders (see 1AB 702-713) included the following:-
(a) The deceased – 1 share;
(b) Choo Eng Cheong (the deceased’s son) – 70 shares;
(c) Choo Eng Seng (the deceased’s son) – 70 shares;
(d) Choo Eng Tee (the deceased’s nephew, son of Choo Kok Leong) – 200 shares;
(e) Choo Yeow Khim – 70 shares;
(f) Choo Ai Wah (daughter of the deceased) – 50 shares
9 The deceased was 83 years old when he appointed the defendant as the main contractor for the project. He passed away at the age of 93 on 3 April 2007. He was survived by his wife and eight children including Choo Eng Cheong (“CEC” who is also known as Paul Choo) and Choo Eng Seng (“CES”) (collectively “the sons”). CEC and CES are the executors of the estate of the deceased for which the grant of probate was extracted on 18 February 2008.
10 Besides the defendant, the deceased and the sons were shareholders in two other family companies viz Choo Kok Hoe Realty Pte Ltd (“CKHR”) which was incorporated on 11 October 1973 and Surrey Development Pte Ltd (“Surrey”) which was incorporated on 12 April 1983 (see 3AB102-111).
11 By way of execution proceedings on the judgment sum, the plaintiff obtained (exparte) a garnishee order nisi against the garnishee on 12 July 2007. The garnishee was required to show cause on 26 July 2007 why the order nisi should not be made absolute.
12 Six weeks later (on 5 September 2007), the deceased’s daughter Choo Ai Wah (“the petitioner”) filed a petition in CWU No.109 of 2007 (“the winding-up petition”) to wind up the defendant on the ground that the defendant owed her $83,546.50 under a statement of account dated 16 July 2007. The petitioner claimed the sum remained unpaid despite a demand made by her solicitors.
13 The petition was opposed by the plaintiff whose general manager/director Ng Peck Jin (“Ng”) filed an affidavit giving the reasons therefore. The winding-up petition was eventually withdrawn on 16 January 2008 with leave of court and costs were awarded to the plaintiff against the petitioner.
14 In these proceedings, the garnishee disputed the plaintiff’s claim by affidavits filed by the sons. Consequently, by an order of court dated 14 February 2008, the issue of whether there was any debt due and accruing in any amount from the garnishee to the defendant was ordered to be tried with the plaintiff being the plaintiff and the garnishee being the defendant in such proceedings. The affidavits filed by the sons and the two affidavits filed by the plaintiff’s counsel Joseph Liow (“Liow”) were ordered to stand as pleadings.
15 Prior to the hearing before this court, the plaintiff had administered Interrogatories to the garnishee which were answered by CEC on 12 June 2008. I shall return to the Interrogatories later.
The evidence
16 I begin my review of the evidence by referring to the parties’ affidavits. In addition to the two affidavits of its solicitor Liow, Ng also filed an affidavit of evidence-in-chief on the plaintiff’s behalf for the hearing.
17 For the plaintiff’s claim, Liow (in his first affidavit filed on 12 July 2007) relied on the examination of CEC as a judgment debtor (“EJD”) on 12 June 2007 (see [32] below) which adduced the following facts:-
(a) the defendant was the main contractor of the project;
(b) the developer was the deceased;
(c) the Agreement inter alia provided that the deceased would pay the defendant construction costs plus 2% commission. There was no fixed period for completion of the project by the defendant;
(d) the judgment sum was for part of the building works carried out on the project (including variations) after deducting omissions and defects;
(e) the garnishee should be indebted to the defendant in the judgment sum plus 2% commission amounting to $2.889.21;
(f) the defendant had not asked the garnishee to pay the judgment sum plus 2% commission.
18 In his affidavit, Ng deposed how the deceased had approached him in late 1999 to provide a quotation to carry out construction of the project. He was invited to submit a tender which the plaintiff did on or about 5 January 2000. Ng deposed that at the request of the deceased, the plaintiff reduced and revised its tender price to $7,794,816.74 (“the tender price”). The plaintiff then received a letter of award dated 21 January 2000 (“the letter of award”) from the project’s architect Atria Architects (“the architect”) accepting the tender price on behalf of the defendant and not the deceased, a fact which Ng said he overlooked at the time.
19 When the plaintiff received the building contract subsequently for its signature, the name and signature of the employer were not typed or written in. The plaintiff’s original performance bond dated 24 February 2000 furnished under the building contract was issued to the deceased (see 1AB1423) before it was amended to the defendant’s name at the architect’s request dated 3 July 2000.
20 Subsequently, the plaintiff received the Permit to Carry out Building works (“the Permit”) dated 25 February 2000. It was issued by the Building and Construction Authority (“the BCA”) to the deceased who was stated on the Permit as “the applicant” whilst the plaintiff was stated to be the “builder”. A day later, the plaintiff received a second Permit also dated 25 February 2000 which was in the exact same terms as the earlier Permit, save that the defendant was stated to be a co-applicant with the deceased.
21 On 13 March 2000 the plaintiff conducted a search in the Land Titles register which search confirmed that the deceased was the owner of No 2-C, lots 2918 and 3061 Mukim 27, Figaro Street (“the land”) on which the project stood.
22 On 11 July 2000, the plaintiff wrote to the architect to seek clarification on who was the plaintiff’s employer. The architect’s reply dated 20 July 2000 (at 1AB687-688) was not helpful – the architect said it was not involved in the tender exercise or in the negotiations between the plaintiff and CEC nor in the agreement reached between the parties. The architect added that if the plaintiff was not agreeable to the defendant being the contractual party, then the plaintiff should not have signed and accepted the letter of award. The architect requested the plaintiff to deal directly with CEC and/or the deceased on the issue. As far as it was concerned, the architect assumed the contracting parties were as per the letter of award. Attempts were also made by the plaintiff’s solicitors to ascertain from the BCA why two Permits were issued; the BCA did not respond to the inquiries.
23 The plaintiff also wrote to the architect in June 2000 to inquire who had appointed the latter. The architect’s fax dated 23 June 2000 (1AB186) said “we do not understand the contents of your letter”. The plaintiff’s solicitors’ further letter dated 29 June 2000 (at 1AB187) inquiring whether the architect had been engaged by the defendant and was authorised by the defendant to issue the letter of award drew no response.
24 As it was not getting anywhere in its inquiries, the plaintiff decided not to pursue the issue of rectifying the building contract to...
To continue reading
Request your trial-
Westacre Investments Inc v The State-Owned Company Yugoimport SDPR (Deuteron (Asia) Pte Ltd, garnishee) and others
...why a provisional garnishee order should not be made final is on the garnishee (Leads Engineering (s) Pte Ltd v Chin Choon Co (Pte) Ltd [2009] SGHC 53 (“Leads Engineering”)) or the judgment debtor (see Robert Petroleum Ltd v Bernard Kenny Ltd (in liquidation) [1982] 1 All ER 685, reversed b......
-
Telecom Credit Inc v Star Commerce Pte Ltd
...and Leads Engineering (S) Pte Ltd v Chin Choon Co (Pte) Ltd (personal representatives of the estate of Choo Kok Hoe, deceased, garnishee) [2009] SGHC 53), and so would have involved quite different considerations in terms of proof. I am therefore unable to see how those cases assist him. Mo......
-
Manuchar Steel Hong Kong Limited v Star Pacific Line Pte Ltd
...of Leads Engineering (S) Pte Ltd v Chin Choon Co (Pte) Ltd (personal representatives of the estate of Choo Kok Hoe, deceased, garnishee) [2009] SGHC 53 (“Leads Engineering”) in support of her new submission. I did not find Leads Engineering helpful to Manuchar’s case as the facts and issue ......
-
Manuchar Steel Hong Kong Limited v Star Pacific Line Pte Ltd
...of Leads Engineering (S) Pte Ltd v Chin Choon Co (Pte) Ltd (personal representatives of the estate of Choo Kok Hoe, deceased, garnishee) [2009] SGHC 53 (“Leads Engineering”) in support of her new submission. I did not find Leads Engineering helpful to Manuchar’s case as the facts and issue ......
-
Security for performance
...order is made over money owed by the owner to the main contractor: see, eg, Leads Engineering (S) Pte Ltd v Chin Choo Co (Pte) Ltd [2009] SGhC 53. 1116 SeCURiTY FOR PeRFORmANCe (in the nature of a lien or a charge), of money owing in respect of that work. 406 he jurisdictions in which these......