Lim Beng Yaw Admen v GT Dollar Pte Ltd

• Jurisdiction: Singapore
• Judge: Liu Zeming
• Judgment Date: 16 June 2021
• Neutral Citation: [2021] SGMC 39
• Court: Magistrates' Court (Singapore)
• Docket Number: Magistrate’s Court Suit No 11690 of 2020 (Summons No 586 of 2021)
• Year: 2021
• Published date: 23 June 2021
• Hearing Date: 25 March 2021,08 April 2021
• Plaintiff Counsel: Crystal Chik (M/s Nicholas & Tan Partnership LLP)
• Defendant Counsel: Kenji Ong Shao Qiang (JC Law Asia LLC)
• Subject Matter: Civil Procedure,Judgments and orders,Setting aside regular default judgments
• Citation: [2021] SGMC 39

Deputy Registrar Liu Zeming:

This is the Defendant’s application to set aside judgment entered in default of defence on 17 December 2020. The oral arguments took place before me on 25 March 2021, at the end of which I reserved my decision. On 8 April 2021, I gave my decision with brief oral grounds. I now set out the written grounds of my decision.

Brief Procedural Background

On 5 November 2020, the Plaintiff commenced these proceedings against the Defendant, claiming the sum of $30,000. Service of process was effected and the Defendant entered an appearance on 16 November 2020.

Despite having entered an appearance, the Defendant did not file any defence. On 1 December 2020, the Plaintiff’s solicitors gave the Defendant’s former solicitors two working days’ notice of the Plaintiff’s intention to apply for default judgment against the Defendant. Despite this, no defence was filed. On 17 December 2020, the Plaintiff requested for judgment to be entered in default of defence. The default judgment was granted on the same day (“Default Judgment”).

Shortly after the Default Judgment was entered, the Plaintiff commenced execution proceedings and a writ of seizure and sale was issued on 21 January 2021. As at the date of the hearing of this application, the writ of seizure and sale has not yet been executed.

On 2 February 2021, the Defendant’s current solicitors were appointed. This present application to set aside the Default Judgment (“Application”) was filed on the same day.

Parties’ Respective Case

The Plaintiff’s claim in this action is straight-forward – it is for payment of $30,000 under a settlement agreement dated 25 August 2020¹ (“Settlement Agreement”) and, alternatively, on an dishonoured cheque issued by the Defendant (“Cheque”) for the same amount.² Copies of the Settlement Agreement and the dishonoured Cheque were exhibited in the Plaintiff’s affidavit in this Application³, and the Defendant did not file any affidavit in response.

In fact, the Defendant does not dispute that: there was a Settlement Agreement between the parties; it issued a cheque for $30,000 to the Plaintiff pursuant to the Settlement Agreement;⁴ and the Cheque was dishonoured upon presentation.⁵

The Defendant, however, said that the “the cheque for the sum of S$30,000 was issued to [the Plaintiff] as a refund of his purchase of GTB coins”⁶ and was issued “on the basis that the Plaintiff was to return all the GTB in his possession to the Defendant”⁷ (“Alleged Refund Arrangement”). As the Plaintiff never returned any “GTB coin” to the Defendant, the Plaintiff was not entitled to the $30,000 “refund”.⁸

As for the reason for the delay in making this application, the Defendant explained that this was because its directors were “initially unable to agree on the course of action to take”.⁹ No explanation was given as to why there was a default in the filing of defence in the first place.

The Law

There is no dispute between the parties that the Default Judgment was a regular one¹⁰ and the law for setting aside a regular default judgment is clear. The primary consideration is whether the defendant can show a prima facie defence that raises triable or arguable issues: see Mercurine Pte Ltd v Canberra Development Pte Ltd (“Mercurine”) [2008] 4 SLR(R) 907 at [60]. This is not intended to be a high threshold – it is no stricter than that for obtaining leave to defend in an application for summary judgment under O 14 of the Rules of Court (an “O 14 application”): see Mercurine at [60].

That being said, two additional points must be kept in mind.

First, the burden lies on the defendant to “produce to the Court evidence that he has a prima facie defence”: see Evans v Bertlam [1937] AC 473 at 480, cited with approval in Mercurine at [64]. In this regard, it is trite that bare assertions on their own are insufficient to raise a triable issue: see Prosperous Credit Pte Ltd v Gen Hwa Franchise International Pte Ltd and others [1998] 1 SLR(R) 53 at [14]. In the context of O 14 applications, a court will not generally grant leave to defend if all the defendant provides is a mere assertion, contained in an affidavit, of a given situation which forms the basis of his defence: see M2B World Asia Pacific Pte Ltd v Matsumura Akihiko [2015] 1 SLR 325 at [19]. The court is not bound to, and in fact should not, accept the defendant’s sworn evidence uncritically. If the sworn evidence is ambiguous, imprecise, inconsistent with contemporaneous documents or inherently improbable, then it may well be that an arguable or triable issue has not been raised despite the sworn evidence. This is so even if the court is not embarking on a detailed examination of the merits at this stage.

Second, although the existence of a prima facie defence is a highly significant consideration, it does not mean that a defendant who is able to demonstrate a prima facie defence has an automatic entitlement to have the default judgment set aside. Other factors should also be taken into consideration: Mercurine at [98]. Commonly, these include the length of delay in making the application, the explanation given for the delay, why the default occurred and any prejudice that would be caused to the plaintiff or to third parties if the default judgment were to be set aside.

My Decision

For the reasons that follow, I have concluded that the Default Judgment should not be set aside.

Has the Defendant Shown a Prima Facie Defence? The Factual Basis of the Putative Defence

As explained at [8] above, the main thrust of the Defendant’s case, and the entire factual basis for its purported defence, was the Alleged Refund Arrangement.

However, on such a critical issue, the Defendant provided nothing more than bare assertions made in its affidavit. The relevant parts of the affidavit are reproduced below: 6. [T]he Plaintiff had failed to reveal that the cheque for the sum of S$30,000.00 was issued to him as a refund of his purchase of GTB coins (“GTB”). 7. Thus, the cheque was issued only on the basis that the Plaintiff was to return all the GTB in his possession to the Defendant. 8. As the Plaintiff is well aware, the Plaintiff has, to date, failed to return all the GTB in his possession to the Defendant. 9. The claimed sum of S$30,000 in question is therefore in dispute as the Plaintiff failed to perform the requisite steps for the refund arrangement. 10. Pursuant to the above, we were under the impression that the arrangement with the Plaintiff was sufficiently clear and that the lack of performance on the Plaintiff’s part meant that the refund transaction in question had been called off.

[emphasis added in bold and underline]

Apart from the foregoing, there was no other evidence in the Defendant’s affidavit on the Alleged Refund Arrangement.

This was notwithstanding that the Plaintiff had, by way of his reply affidavit, exhibited a copy of the Settlement Agreement¹¹ which clearly did not contain any express term obliging the Plaintiff to return “GTB coins”, or otherwise impose any condition for payment. To the contrary, the Settlement Agreement provided that: “It is a term of this Agreement that no party will pursue any extra claims relating to refunds or conditions of investment, whether dealt with in this Agreement or not…”

Belatedly, in the Defendant’s Skeletal Written Submissions filed on 4 March 2021, the Defendant enclosed certain messages exchanged between the parties through the WeChat messaging platform (“WeChat exchanges”) which purportedly “corroborates the Defendant’s assertion…that there was an arrangement for the GTB to be exchanged for monies”.¹² No further explanation on the background to these WeChat exchanges was provided.

Although this was clearly evidence from the bar, I was prepared to consider whether the Defendant should be allowed leave to adduce these documents as evidence by way of a supplementary affidavit, had these documents been of potential relevance. Therefore, at the oral hearing on 25 March 2021, I invited the Defendant’s counsel to address the court on how these WeChat exchanges purportedly corroborated the Defendant’s case.

Counsel for the Defendant then referred me to one particular message dated 21 August 2020 at 6.20PM (“Message”),¹³ which counsel for the Defendant explained was a message from one of the Defendant’s directors to the Plaintiff. The message was as follows: I’ve already talked to most of them. But the problem can only be solved by cash. They would only give me the B [the Defendant’s counsel submitted that “B” referred to GTB coins] because I was going to give them cash. That’s how I could settle it. Because they don’t want to say, [that they had] received the cheque, then gave the [currency] to you, then they’ll wait. That’s the problem, If the cash is ready, I can settle most of them for you any time. I personally have 60,000 plus dollars and I’ve exchanged 20,000 plus dollars. I’m left with slightly more than 30,000 dollars.

The Defendant’s counsel submitted that the Message was evidence of the following arrangement (“Alleged Refund Arrangement Variant”): [The] Plaintiff is supposed to consolidate GTB from third party purchasers to return to the Defendant. Plaintiff himself also purchased GTB coins. And Defendant was supposed to make payment to the Plaintiff for return of all these GTB coins in the Plaintiff's possession. This refers to GTB coins the Plaintiff himself purchased, and those third parties purchased.

I would add at this point that this was the first time the Defendant raised the assertion (by way of oral submissions) that ““the Plaintiff [was] supposed to consolidate GTB from third party purchasers” and return, not only the GTB coins which the Plaintiff himself allegedly purchased, but also “those [which] third parties purchased”.

In any event, I was unable to see how the Message supported either the...