Lim Kai Xin v Personal Representative of the Estate of Ong Ah Lak (Deceased) and another

• Jurisdiction: Singapore
• Judge: Chiah Kok Khun
• Judgment Date: 28 November 2017
• Neutral Citation: [2017] SGDC 319
• Court: District Court (Singapore)
• Docket Number: District Court Suit No. 1298 of 2013
• Published date: 27 April 2018
• Year: 2017
• Hearing Date: 14 February 2017,13 February 2017,15 August 2016,17 November 2016,16 February 2017,24 August 2017
• Plaintiff Counsel: Ms Ganga Avadiar and Ms Foo Li Chuan Arlene (Advocatus Law LLP)
• Defendant Counsel: Mr Lee Kim Chua Steven (Steven Lee Law Chambers)
• Subject Matter: Damages,measure of damages,tort,quantum,aggravation
• Citation: [2017] SGDC 319

District Judge Chiah Kok Khun:

INTRODUCTION

The dispute that gave rise to this case took place 10 years ago.¹ On 10 December 2006 the Plaintiff and the late Ong Ah Lak (“OAL”) entered into a lease agreement (“Tenancy Agreement”) in respect of a HDB shop space at Blk 283, Bukit Batok East Avenue 3, 01-275 (“the premises”). The 1st Defendant, Ong Chee Han (“OCH”) is the son of OAL and the personal representative of his estate.² The 2nd Defendant is the wife of OAL. OAL and the 2nd Defendant (collectively, “the Defendants”) held the premises as joint tenants of HDB.³ The premises were in fact half of a typical HDB shop space. It was about 250 to 350 sq ft. The Plaintiff carried on the sale of ladies apparel and accessories at the premises. Not long after the lease commenced, the parties squabbled. The disagreement culminated in the defendants re-entering the premises and changing the locks of the entrance on 28 April 2007. The Plaintiff’s goods and chattels in the premises were seized and retained. They were never returned to the Plaintiff. The retention of the goods and chattels of the Plaintiff formed the subject matter of the present case.

It took the Plaintiff six years after the retention of her goods and chattels to issue the writ. The writ was issued in 2013. Even after the issuance of the writ, the Plaintiff took her time with the prosecution of her claim. The Plaintiff eventually proceeded with the case and the trial was concluded this year. At the trial, the Plaintiff proceeded on claims for damages for conversion of and/or trespass to the goods and chattels retained by the Defendants. I delivered oral judgment on 24 August 2017 in respect of my decision on the Plaintiff’s claim. I found for the Plaintiff and awarded total damages in the sum of $48,396.39. The Defendants did not appeal my decision. The Plaintiff however, is dissatisfied with the quantum of damages I awarded. The Plaintiff has filed an appeal against the part of my decision as concerns quantum only.⁴ These grounds of decision are confined to the question of the quantum of damages in this case.

As alluded to earlier, the Plaintiff’s claims were for damages for conversion of and/or trespass to her goods and chattels. Besides apparels and accessories that were for sale, the goods and chattels in question comprised mannequins, signage, display racks, a telephone, a hi-fi system, an air-conditioner, an air-curtain, a cash register and cash. My finding in favour of the Plaintiff on her claim for conversion was premised on my determination that the re-entry on 28 April 2007 by the Defendants was wrongful. My determination that the re-entry was wrongful was in turn based on my finding that no rent was due from the Plaintiff to the Defendants under the Tenancy Agreement as at 28 April 2007. As no rent was due or in arrears as at 28 April 2007, the re-entry of the premises on 28 April 2007 by the Defendants was unlawful. I also found that there was insufficient notice of re-entry given to the Plaintiff by the Defendants under Section 18 of the Conveyancing and Law of Property Act. This by itself would have rendered the re-entry unlawful. Following the unlawful re-entry on 28 April 2007, the Defendants took possession and custody of the Plaintiff’s goods and chattels that were in the premises and retained them until the date of the trial. I noted further that the Defendants did not apply for an order for leave to issue a Writ of Distress against the Plaintiff under the Distress Act. By failing to obtain an order for leave to issue a Writ of Distress under the Distress Act, the taking and retaining of the Plaintiff’s goods and chattels that were in the premises would have been unlawful.⁵ I further found on the facts that the Defendants did not return the goods and chattels, despite numerous demands made for their return.⁶

I held that given the circumstances as set out above, the goods and chattels in question were wrongfully taken and received by the Defendants when they were not entitled to do so, and the tort of conversion was made out. I accordingly found the Defendants liable to the Plaintiff under the tort of conversion for converting the Plaintiff’s goods by wrongfully retaining and/or detaining them.

For completeness, I should mention that the Defendants mounted a defence of time bar in answer to the Plaintiff’s claim. I discussed this defence in the course of my oral judgment and made a finding that the Plaintiff’s claim was commenced within the limitation period, and the defence of time-bar was not made out.

My oral judgment delivered on 24 August 2017 would give the necessary context to these grounds of decision on quantum. The text of the oral judgment is found at “Annexure A”.

THE QUANTUM OF DAMAGE THAT THE PLAINTIFF CLAIMED

I move now to my grounds of decision on quantum. The trial was not bifurcated. The trial was to therefore determine both liability and quantum. Accordingly, all evidence in respect of quantum was to be adduced at the trial. There was not to be a separate assessment of damages stage. I made this clear to the parties at the outset, and again in the course of the trial. I reminded the Plaintiff in particular, that the quantum of any damages claimed would be assessed at the trial. All evidence in respect of quantum would have to be adduced at the trial.

Following my prompting, parties worked to address the question of the evidence relating to the issue of quantum. In between the tranches of the trial, parties carried out a joint inspection of the goods (apparels and accessories) in the possession of the Defendants. The Plaintiff took a number of photographs of the goods at the joint inspection. Following the joint inspection, the Joint Inspection Report (“JIR”) was put together by the parties.

The Plaintiff’s heads of claim for damages were as follows: $555,762.57 being damages on the basis of Plaintiff’s stated quantities of goods and accessories and the Plaintiff’s stated retail prices (paragraph 142 of the Plaintiff’s Closing Submission). $12,793.00 being the cost price of the chattels said to be left behind in the premises (paragraph 148 of the Plaintiff’s closing submission). $3,458.00 being the stated cost price of chattels not found in the JIR (paragraph 149 of the Plaintiff’s Closing Submission). $2,008.00 being cash said to be left behind in the premises (paragraph 150 of the Plaintiff’s Closing Submission). $20,000.00 being the costs of renovation of the premises. Aggravated damages. Exemplary damages.

The Plaintiff’s claims could therefore be grouped into three categories. One category of claims was in respect of goods ((a) above), another category was in respect of chattels, renovation costs and a cash item ((b), (c), (d) & (e) above); and the third category consisted of claims for aggravated and exemplary damages ((f) & (g) above).

THE QUESTION OF BURDEN OF PROOF

Before I discuss the Plaintiff’s heads of claim, I will turn briefly to the question of the burden of proof. It is trite that the burden of proof lay with the party asserting a claim. In the present case, the burden of proof of the quantum of damages lay squarely with the Plaintiff.

In fact, the case authority that the Plaintiff relied on makes it clear that the burden of proof rested with the Plaintiff. This is the oft cited case of SCT Technologies Pte Ltd v Western Copper Co Ltd [2016] 1 SLR 1471 (“SCT Technologies”). The Court of Appeal provided succinct analysis of the concept of burden of proof as follows:

“The concept of burden of proof may be spoken of in two distinct senses which, to avoid any confusion in the analysis which follows, we would clarify from the outset.” ([16]) “First, the concept may be used in the context of referring to the legal burden of proof, which is “properly speaking, a burden of proof, for it describes the obligation to persuade the trier of fact that, in view of the evidence, the fact in dispute exists” … Central to determining where the burden lies in a civil suit is the state of the parties’ pleadings. It is in the pleadings that one finds the material facts that each party asserts to establish its claim or defence (as the case may be) and, as is trite law, he who asserts must prove – this is a rule which is consistent with the general principle underlying ss 103 and 105 of the Evidence Act (Cap 97, 1997 Rev Ed)” ([17])

…

“This leads us to the second sense in which the concept of burden of proof is commonly used, which is in the evidential sense. Essentially the evidential burden of proof refers to “the need of the party to adduce evidence to discharge his legal burden (or the need of the opposing party to adduce evidence to prevent the proving party from discharging his legal burden)”. … From this description alone, it is clear that, unlike the legal burden of proof, the evidential burden can shift from one party to the other depending on the evidence which is adduced at trial by either side.” ([18])

…

at [19]: “[t]o contextualise the above principles, at the start of the plaintiff’s case, the legal burden of proving the existence of any relevant fact that the plaintiff must prove and the evidential burden of adducing some (not inherently incredible) evidence of the existence of such fact coincide. Upon adduction of that evidence, the evidential burden shifts to the defendant, as the case may be, to adduce some evidence in rebuttal. If no evidence in rebuttal is adduced, the court may conclude from the evidence of the plaintiff that the legal burden is also discharged and making a finding on the fact against the defendant. If, on the other hand, evidence in rebuttal is adduced, the evidential burden shifts back to the plaintiff. If, ultimately, the evidential burden comes to rest on the defendant, the legal burden of proof of that relevant fact would have been discharged by the plaintiff. The legal burden of proof –...