Liew Kai Lung Karl v Ching Chiat Kwong
Judge | Edmund Leow JC |
Judgment Date | 16 May 2016 |
Neutral Citation | [2016] SGHC 98 |
Citation | [2016] SGHC 98 |
Court | High Court (Singapore) |
Published date | 20 May 2016 |
Docket Number | Originating Summons (Bankruptcy) No 89 of 2015 (Registrar’s Appeal No 11 of 2016) |
Plaintiff Counsel | Balasubramaniam Albert Selvaraja (Mohan Das Naidu & Partners) |
Defendant Counsel | Sim Kwan Kiat and Tan Zhi Han Eugene (Rajah & Tann Singapore LLP) |
Subject Matter | Insolvency Law,Bankruptcy,Bankruptcy application disputed by debtor,Abuse of Process |
Hearing Date | 15 February 2016 |
Liew Kai Lung, Karl (“the appellant”) applied in Originating Summons (Bankruptcy) No 89 of 2015 (“OSB 89/2015”) to dismiss the application by Ching Chiat Kwong (“the respondent”) for a Bankruptcy Order in Case No B 2552/2014 against the Plaintiff filed on 19 December 2014 (“the Application”), or in the alternative, to stay all proceedings on the Application for such time as it is necessary to determine by trial whether the appellant is indebted to the respondent. The appellant’s application was dismissed by the Assistant Registrar (“the AR”) and he filed this Registrar’s Appeal No 11 of 2016 against the AR’s decision.
At the conclusion of the hearing before me, I affirmed the decision below with costs. The appellant has filed a notice of appeal (in Civil Appeal No 21 of 2016) against my decision. I thus set out my reasons.
Factual and procedural background The appellant was the director of Realm Capital Limited (“Realm Capital”), and the respondent was the director of Ever Tycoon Limited (“Ever Tycoon”).1 After Realm Capital failed to make payment to Ever Tycoon under certain facility agreements2 and the appellant failed to make payment to Ever Tycoon under certain personal guarantees,3 the appellant and respondent entered into the following:
Under the Deed of Settlement, the respondent and Ever Tycoon agreed to refrain from commencing legal proceedings against,
Parties failed to reach an agreement under cl 1.3; the respondent then served a statutory demand on the plaintiff dated 14 October 2014 for a sum of $2,209,863.01 (“the SD”) pursuant to cl 2.4 of the third supplementary deed.8 The plaintiff had attempted, unsuccessfully, to set aside the SD in Originating Summons (Bankruptcy) No 15 of 2015 (“OSB 15/2015”) and in the consequent Registrar’s Appeal No 89 of 2015 (“RA 89/2015”) (See
The appellant’s main arguments in OSB 89/2015 before the AR were first, the facility agreements forming the foundation for the SD were never utilized and so there were no disbursement of funds by Ever Tycoon to Realm Capital, and second, the appellant was acting under a mistake of fact that he had executed the personal guarantees in favour of Ever Tycoon which formed the foundation for the SD, when he had never done so.10 Curiously, the appellant appeared to contradict himself in his submissions by also claiming that he was labouring under incessant moral pressure exerted by the respondent when he executed those personal guarantees.11 The appellant claimed that the personal guarantees that formed the basis of the dispute were “contrived”.12 He also claimed that he was misled by his former solicitors, who were discharged in May 2015, into believing that he had executed those personal guarantees. The appellant also alleged that the respondent was fully aware of the lack of disbursement under the facility agreements and the non-execution of the personal guarantees.13 The appellant implied that the Deed of Settlement and the Supplementary Deeds were invented,14 or should be void by virtue of the respondent’s knowledge.15
The appellant’s counsel argued that the appellant did not know and did not understand the issues as he was unrepresented when he filed the Appellant’s Case for CA 77/2015 in July 2015. Even when appellant’s counsel came on-board in late September 2015, it was too late to raise those arguments, and so benefit of the doubt should be given to the appellant.16
When the AR pointed out that CA 77/2015 was heard in November 2015, and so it was open to the appellant’s counsel to file an application for leave to adduce further evidence, the appellant’s counsel merely responded that he was too busy and did not have time to do so.17
The AR was of the view that the issue of whether the deed was signed under mistake was a substantive one that impinged on the validity of the SD; thus it should have been dealt with in Originating Summons (Bankruptcy) No 15 of 2015. Given that the Court of Appeal had already affirmed the validity of the SD in CA 77/2015, there was no basis to dismiss the Application which was premised on a valid statutory demand; thus she dismissed Prayer 1 of OSB 89/2015.18 The AR found that the documents and facts that formed the basis for the appellant’s arguments in OSB 89/2015 were already in the appellant’s possession by May 2015 and were in fact canvassed in the Appellant’s Case for CA 77/2015, though those arguments were not raised at the appeal.19 She was of the view that there was no cogent explanation as to why the arguments that were being raised before her could not have been canvassed before the Court of Appeal in CA 77/2015 by way of an application to adduce new evidence.20 She thus decided that there was no basis to exercise the discretion to stay the Application and dismissed Prayer 2 of OSB 89/2015.
Parties’ ArgumentsThe appellant essentially repeated the same arguments that were put before the AR at para 6 above, and also pointed out that there were at least three major triable...
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