Burswood Nominees Ltd (formerly Burswood Nominees Pty Ltd) v Liao Eng Kiat

• Jurisdiction: Singapore
• Judge: Lai Siu Chiu J
• Judgment Date: 01 April 2004
• Neutral Citation: [2004] SGHC 64
• Docket Number: Originating Summons No 1217 of 2003
• Date: 01 April 2004
• Year: 2004
• Published date: 02 April 2004
• Plaintiff Counsel: Sharon Tay (Donaldson and Burkinshaw)
• Citation: [2004] SGHC 64
• Defendant Counsel: Jeanny Ng (Jeanny Ng)
• Court: High Court (Singapore)
• Subject Matter: Order 67 Rules of Court (Cap 322, R 5, 1997 Rev Ed), ss 3, 5 Reciprocal Enforcement of Commonwealth Judgments Act (Cap 264, 1985 Rev Ed),Enforcement,Judgments and orders,Civil Procedure,Section 5 Civil Law Act (Cap 43, 1999 Rev Ed),Whether foreign judgment should be registered in Singapore,Betting, Gaming and Lotteries,Public policy considerations and doctrine of comity of nations,Wagering contracts,Whether foreign wagering contract valid under foreign governing law enforceable in Singapore

1 April 2004

Lai Siu Chiu J:

The facts

1 Burswood Nominees Ltd (the applicants) are a company incorporated in Western Australia, located at Great Eastern Highway, Victoria Park, Western Australia and are trustees of the Burswood Property Trust which owns the Burswood International Resort Casino (“the Casino”). The Casino holds a gaming licence issued pursuant to s 21 of the (Western Australia) Casino Control Act 1984. Liao Eng Kiat (the respondent), according to his affidavit filed on 25 August 2003, was a patron of the Casino, having visited it on no less than eight occasions in 1997/1998. The respondent resides at 43 Woo Mon Chew Road, Singapore.

2 On or about 20 November 1997, the respondent signed a cheque cashing facility agreement (“the agreement”) with the Casino in respect of the presentation of cheques drawn by the respondent. Under the terms thereof, it was agreed that:

(a) all cheques cashed by the respondent under the agreement up to the limit of A$50,000 at any one time, would be met when presented for payment;

(b) in respect of any cheques cashed by the respondent, the applicants were entitled to charge interest at a rate of 18% per annum on the amount of any cheque drawn by the respondent and which remained uncleared after seven days from the date of first dishonour;

(c) the law of Western Australia was the choice of law and the respondent voluntarily submitted himself to the non-exclusive jurisdiction of the Western Australian courts in relation to any proceedings to be instituted by the applicants.

3 According to the applicants, the respondent signed and delivered to them a cheque numbered 676843 (“the cheque”) on or about 19 October 1998, drawn upon United Overseas Bank Limited, Changi Branch (“UOB”) in the sum of S$52,900. On receipt of the cheque, the applicants provided the respondent with a cheque credit slip in the amount of A$50,000 (“the sum”). The plaintiff exchanged the cheque credit slip for gaming chips worth A$50,000, gambled and lost the entire sum at the Casino.

4 The applicants presented the cheque to UOB for payment in late October 1998 via Thomas Cook through Hongkong Bank. On or about 2 November 1998, UOB dishonoured the cheque for the reason “Refer to Drawer” and returned it to Hongkong Bank.

5 The applicants sued the respondent in the Supreme Court of Western Australia on the dishonoured cheque and for contractual interest (from 19 October 1998). Notice of the writ of summons was effected on the respondent at his Singapore residence on 4 October 2001, after the Western Australian courts had granted leave to the applicants on 7 September 2001 to issue a writ for service outside jurisdiction.

6 The respondent failed to enter an appearance to the proceedings within the 35-day deadline specified in the notice of the writ of summons. Consequently, on 13 December 2001, the applicants obtained judgment in default of appearance against the respondent in the sum of A$78,331.50 plus costs to be taxed. The costs were subsequently taxed at A$2,765.28 on 10 March 2003.

7 On 2 May 2003, the applicants obtained a certificate from the Western Australian courts pursuant to s 146(2)(b) of the Supreme Court Act 1935 and s 14 of the Foreign Judgments (Reciprocal Enforcement) Act 1963 of Western Australia. The Registrar of the Supreme Court of Western Australia certified a copy of the judgment (“the Judgment”) in the judgment sum of A$78,331.50 and costs of A$2,765.28.

The applications

8 On 25 August 2003, the applicants applied under this originating summons to register the Judgment (in the total sum of A$81,096.78) in Singapore, pursuant to O 67 of the Rules of Court (Cap 322, R 5, 1997 Rev Ed) read with ss 3 and 5 of the Reciprocal Enforcement of Commonwealth Judgments Act (Cap 264, 1985 Rev Ed) (“the Act”). The originating summons was granted an order in terms by the Registrar on 26 August 2003.

9 On 8 October 2003 the respondent applied by way of Summons in Chambers No 6341 of 2003 (“the respondent’s application”) to set aside the order of court dated 26 August 2003 and the registration of the Judgment.

10 In the affidavit filed in support of the respondent’s application, the respondent:

(a) did not deny that he gambled at the Casino. He went further to say that he visited the Casino using its complimentary scheme whereby, depending on turnover and the time he spent gambling and the amount in each bet he placed, he would be reimbursed for his airfares, food and accommodation, by the Casino. He deposed there were other schemes operated by the Casino such as “play now pay later”.

(b) admitted signing the agreement on or about 20 November 1997 in order to obtain credit facilities for gambling, but could not recall giving the cheque to the Casino. He could only remember giving a pre-signed blank (save for the payee’s name) and undated cheque to the Casino in exchange for a voucher for A$50,000, on 20 November 1997.

(c) deposed he then presented the voucher, together with his membership card of the Casino, to the supervisor at the gaming table who, after verifying his credit limit, advised the croupier to hand the respondent gaming chips worth A$50,000. At that gambling session, the respondent lost all the credit of A$50,000.

(d) deposed that based on legal advice he had received, the agreement dated 20 November 1997 was a contract by way of gaming or wagering and is null and void under the current s 5(1) of the Civil Law Act (Cap 43, 1999 Rev Ed) (“the CLA”).

(e) averred that the applicants’ course of action cannot be entertained under Singapore law for reasons of public policy and the Judgment debt cannot be enforced. The court’s time should therefore not be wasted by registering the Judgment in Singapore.

11 In reply to the respondent’s affidavit, the applicants filed an affidavit by its credit manager Roger J L Lewis (“Lewis”) refuting the respondent’s allegations. Lewis denied that credit was extended to the respondent for gaming purposes. He pointed out that the Casino was prohibited (under the schedule to the Casino (Burswood Island) Act 1985 (Western Australia) from:

(a) accepting a credit wager from any person;

(b) making a loan to any person;

(c) providing cash or chips to any person in respect of a credit card transaction; and

(d) extending credit in any form to any person.

12 Lewis explained that the agreement entered into by the applicants and the respondent was not a credit facility. It was a facility by which a patron provided the applicants with a cheque in return for a voucher which could be exchanged for gaming chips. The cheque given in exchange for the voucher was the payment of the amount due to the applicants. Lewis deposed that on or about 19 October 1998, the respondent was at the Casino, made use of the facility and delivered the cheque to the applicants in exchange for a voucher in the sum of A$50,000. The cheque amount of S$52,900 was the equivalent of A$50,000 at the then prevailing exchange rates. Lewis revealed that the respondent had written to the applicants’ Singapore office on 28 December 1998 asking for time until end February 1999 in which to pay the “advances”.

13 On 22 October 2003 the learned assistant registrar dismissed the respondent’s application. The respondent appealed against the dismissal by way of Registrar’s Appeal No 378 of 2003 (“the Appeal”) which came up for hearing before me on 5 November 2003. I dismissed the Appeal and the respondent, with leave granted by an order of court dated 6 January 2004, has now filed a notice of appeal (in Civil Appeal No 6 of 2004) against my decision. A stay of execution of my order was also granted on terms, pending the outcome of the respondent’s appeal.

The submissions

14 I did not have the benefit of reading the written submissions which counsel for the respondent tendered at the hearing below. Although the notes of arguments of that hearing recorded that she undertook to file her submissions, she did not do so. Neither did counsel file the written submissions which she tendered before me.

15 As I recall, the gravamen of the respondent’s case was Star City Pty Ltd v Tan Hong Woon [2001] 3 SLR 206 which decision was affirmed on appeal (see report at [2002] 2 SLR 22). In that case, the plaintiffs operated a licensed casino in Sydney. The defendant patronised the casino and gambled using the same modus operandi as in this case. He signed a cheque cashing facility agreement with the casino and handed over his personal cheques in exchange for gaming chips equivalent to the amounts stated in his cheques. If the defendant did not have his own cheques to hand over to the casino, the latter provided him with “house cheques” for his signature. Such house cheques are recognised by...