Lim Leong Huat v Chip Hup Hup Kee Construction Pte Ltd

• Jurisdiction: Singapore
• Judge: Woo Bih Li J
• Judgment Date: 25 January 2008
• Neutral Citation: [2008] SGHC 12
• Docket Number: Suit No 779 of 2006
• Date: 25 January 2008
• Published date: 05 February 2008
• Year: 2008
• Plaintiff Counsel: Indranee Rajah SC, Randolph Khoo, Johnson Loo and Keow Mei Yen (Drew & Napier LLC)
• Citation: [2008] SGHC 12
• Defendant Counsel: Molly Lim SC, Philip Ling, Hwa Hoong Luan and Chu Hua Yi (Wong Tan & Molly Lim LLC)
• Court: High Court (Singapore)
• Subject Matter: Allegation raised in affidavit not pleaded in defence,Civil Procedure,Whether defendants can rely on such allegation over and above those pleaded in defence,Order 14 Rules of Court (Cap 322, R 5, 2006 Rev Ed),Summary judgment

25 January 2008

Woo Bih Li J

Background

1 The plaintiff Lim Leong Huat (“Lim”) was at all material times an employee of the defendant Chip Hup Hup Kee Construction Pte Ltd (“CHHKC”). Lim was employed as General Manager and designated as Executive Director/Projects Director of CHHKC from about 16 November 1994 to about 29 November 2006. In this action, Lim claims the return of various loans amounting to $7,635,000 alleged to have been made by him to CHHKC, at the request of CHHKC’s Managing Director Neo Kok Eng (“Neo”), from about July 2003 to September 2006. CHHKC disputes the claim and has in turn made a counterclaim on various grounds for alleged wrongful acts by Lim. The counterclaim is made against Lim, his wife Mdm Tan Siew Lim (“Tan”) and AZ Associates Pte Ltd (“AZ”) a company said to be owned and controlled by Lim.

2 Consequently, Lim applied in Summons No. 713 of 2007/N for summary judgment for $7,205,000 or for certain smaller sums as stated in the Summons. In turn, CHHKC applied in Summons No. 1595 of 2007/K for summary judgment for various sums against various parties. An assistant registrar (“AR”) declined to grant judgment in favour of Lim. As regards CHHKC’s application for summary judgment, the AR also declined to grant judgment in favour of CHHKC and granted conditional leave to defend in respect of three sums:

(a) $347,030

(b) $469,740

(c) $260,000

The condition was the provision of security for these three sums.

3 Lim filed an appeal in RA 131 of 2007 for summary judgment. CHHKC also filed an appeal in RA 159 of 2007 to seek final judgment for:

(a) $347,030 (originally stated in the notice of appeal to be $337,855 or $363,830)

(b) $469,740

(c) $260,000

Lim also filed an appeal in RA 189 of 2007. This was to reduce one of the sums, ie, $347,030 (which he was to provide security for) by $55,926.

4 All three appeals were heard by me. I decided as follows:

(a) Lim’s appeal in RA 131 of 2007 was dismissed.

(b) CHHKC’s appeal in RA 159 of 2007 was partially allowed in that summary judgment was granted for $347,030 against Lim and for $426,700 (being $469,740 less $43,040) against Lim and Tan with interest on each sum at the rate of 5.33% per annum from date of counterclaim till judgment.

(c) Lim’s appeal in RA 189 of 2007 was dismissed.

5 An appeal has been filed to the Court of Appeal in respect of the judgments in favour of CHHKC for $347,030 and $426,700 and the dismissal of Lim’s appeal in RA 189 of 2007. My grounds of decision will address these issues only.

Judgment for $347,030

6 CHHKC claimed that Lim had misappropriated various sums of money amounting to a total of $2,243,266. Lim’s defence was that these were payments to third parties for work done on some of CHHKC’s projects. However, CHHKC managed to obtain copies of various cheques which showed that some of the payments in fact went into Lim’s own bank account no. 976-XXX-XXX-X. These cheques were supposed to total $347,030. However, Lim had three responses to these.

7 First, Lim’s counsel Ms Indranee Rajah SC submitted that CHHKC had made a claim against one Khoo Kiat Hoon (“Khoo”) also known as Jean Khoo for misappropriation of the entire $2,243,266 in Suit no 149 of 2007. This was inconsistent with CHHKC’s claim for summary judgment for $347,030 which was part of the $2,243,266.

8 Secondly, Ms Rajah submitted that of the copies of cheques disclosed, there was some doubt as to whether the money from seven cheques dated between 9 January 2006 and 25 January 2006 were in fact credited into Lim’s bank account. These were cash cheques with the numbers 506201, 506202, 506278, 506279, 506280, 506295, 506296. They totalled $55,000. The reverse side of these cheques had the alphabets “OVR”. Ms Rajah submitted they meant “override” and since the signatures on the reverse side were those of Khoo, then it might be that it was Khoo who took this sum. Accordingly, Ms Rajah submitted that the amount of security which Lim should provide, being the condition to defend this part of CHHKC’s counterclaim, should be reduced by $55,000. This was the subject of RA 189 of 2007.

9 Thirdly, Ms Rajah submitted that even if certain sums of money had been credited into Lim’s bank account, this did not necessarily mean that the money remained there and did not subsequently go into someone else’s account.

10 Ms Molly Lim SC counsel for CHHKC explained that the claim against Khoo was made before CHHKC managed to get copies of the cheques in question. She said that CHHKC would withdraw its claim against Khoo for the $347,030 in view of the evidence that the money had gone into Lim’s bank account and since Lim did not dispute this.

11 I would add that Ms Rajah informed me that the claim against Khoo was for breach of implied duty of good faith and fidelity and not because she had received the money. It seemed to me that a plaintiff may have different causes of action against different parties or the same cause of action against different parties. A plaintiff may also obtain judgment against more than one party for the same loss. The qualification is only that a plaintiff may not receive over-payment for his loss. So, if, for example, CHHKC has received payment of $347,030 from Lim, it cannot receive this same sum again from Khoo.

12 Accordingly, in the light of [10] and [11], I did not think that the action against Khoo precluded CHHKC from obtaining judgment against Lim for this sum of $347,030.

13 This brings me to the most important point against Lim in respect of the sum of $347,030. The documentary evidence to show that various amounts had been credited into his bank account was filed late in the hearing before the AR, ie, it was not part of the original evidence but at least it was filed before the AR gave her decision. It was open to Lim to seek an adjournment to respond to such evidence. He could then have filed an affidavit to say that for the sums totalling $55,000, they were in fact received by Khoo and not by him and for those other sums which were in fact credited into his bank account, they were eventually used to pay third parties. After all, Lim was the best person to know what sums he had received and what became of them. Yet, no adjournment was sought to file such an affidavit. Indeed, Ms Lim stressed that even in the hearing before me, Lim had introduced new affidavit evidence on other points but not on this one.

14 I was of the view that it was not for Ms Rajah to make arguments which were not even based on Lim’s own assertions. The possibilities which she raised were matters within Lim’s own knowledge. If he chose not to assert as a fact that either he did not receive certain sums or that...