Lim Quee Choo (suing as co-administratrix of the estate of Koh Jit Meng) and Another v David Rasif and Another

• Jurisdiction: Singapore
• Judge: Goh Yi Han AR
• Judgment Date: 10 March 2008
• Neutral Citation: [2008] SGHC 36
• Court: High Court (Singapore)
• Year: 2008
• Published date: 25 March 2008
• Plaintiff Counsel: Sarjit Singh Gill SC and Pradeep Pillai (Shook Lin & Bok LLP),Johnny Cheo (Cheo Yeoh & Associates LLC)
• Subject Matter: Civil Procedure
• Citation: [2008] SGHC 36

10 March 2008

AR Goh Yihan:

Introduction

1 The present application concerns two broad prayers, which I will outline shortly but not before providing a brief summary of the parties involved. David Tan Hock Boon (“the second defendant”) is the second defendant in Suit No 2 of 2007 (“the present action”) and the applicant in the present application. Suit No 2 of 2007 is a negligence suit brought against him and David Rasif (“the first defendant”) by two co-administratrices of the estate of Koh Jit Meng (“the deceased”), namely, Lim Quee Choo (“the first plaintiff”) and Wong Peng Luan (“the second plaintiff”). The plaintiffs are the respondents in the present application.

2 In the present application, the first prayer is for an order to set aside the order of court dated 30 January 2007 wherein it was ordered that the service of the amended writ of summons (“the amended writ”) in this action be effected on the second efendant by, inter alia, publication of a Notice in English in one issue of The Straits Times (“the order for substituted service”), and that all proceedings in this action taken thereafter to be similarly set aside. The second alternative prayer is for the interlocutory judgment (with damages to be assessed) entered in default of appearance on 26 February 2007 against the second defendant to be set aside, and that the final judgment against the second defendant with damages assessed at $3,695,622.32 on 14 September 2007 to be similarly set aside. If the interlocutory judgment and the final judgment are set aside, the second prayer goes on further and seeks leave for the second defendant to enter an appearance to the action and to file and serve his defence to the action herein.

3 As the orders are prayed for in the alternative, such that the granting of one will render consideration of the other unnecessary, I will deal initially with the first prayer to set aside the order for substituted service. Notwithstanding my conclusion in relation to the first prayer, I will, for completeness, also deal with the second prayer to set aside the interlocutory judgment entered in default of appearance and the final judgment against the second defendant. I turn now to the second defendant’s first prayer in the present application for an order to set aside the order for substituted service.

Prayer for order to set aside order for substituted service

The facts

Commencement of present action

4 The genesis of this first prayer can loosely be said to stem from a newspaper article. On 6 January 2007, there appeared in The Straits Times an article authored by K C Vijayan entitled “Suits mount against runaway lawyer” (“The Straits Times article”). The “runaway lawyer” referred to in the article is, of course, David Rasif, who is the first defendant in the present action and the named defendant in other actions brought in the aftermath of his runaway. However, the well publicised saga surrounding his misappropriation and subsequent disappearance do not concern this application brought by the second defendant and constitute a somewhat unnecessary, if unavoidable, distraction to the facts at hand. The Straits Times article is only relevant to the extent that it reported that on 3 January 2007, two co-administrators of a dead man’s estate filed a High Court negligence suit for a flawed $3.5 million share-transfer agreement involving a company director and a shareholder against the first defendant and the second defendant, the latter of whom was expressly identified as “David Tan” and described as “a lawyer who worked at [the first defendant’s] firm”. It should additionally be mentioned that while the Straits Times article provided some brief background as to the circumstances leading to the negligence suit, including the name of the deceased, it did not mention anything about the identity of the law firm which was instructed to commence the said suit. The detailed facts surrounding the suit are not relevant for now. Nonetheless, it is clear from the information provided in the Straits Times article that the “High Court negligence suit” actually referred to the present action, viz, Suit No 2 of 2007.

5 The second defendant deposed in his affidavit filed on 7 December 2007 for the purposes of the present application (“the second defendant’s first affidavit”) that he had read the Straits Times article. He thus conceded that he “was aware” of that a negligence action was commenced against him by virtue of this article. However, in the same affidavit, he also stated that he had no idea as to whether the plaintiffs would be proceeding with their action against him. He was also unsure whether he could be held liable for any alleged defaults of the first defendant’s law firm, David Rasif & Partners (“DRP”), as DRP was a sole proprietorship and he was merely an employee.

6 As it turned out, the initial writ of summons in the present action was issued against the defendants on 3 January 2007. The Straits Times article was therefore accurate in so far as it reported that there was a High Court negligence suit filed against the defendants on 3 January 2007. However, the amended writ was subsequently issued on 23 January 2007.

Application for substituted service

7 On the same day when the amended writ was issued, the plaintiffs applied by way of an ex parte summons for an order for substituted service. In support of the summons, the solicitor for the plaintiffs filed an affidavit stating, inter alia, that: (a) the second defendant was a former partner of DRP and that he had left the practice; (b) neither he nor the plaintiffs knew of the second defendant’s residential address; (c) the plaintiffs had only communicated with the second defendant at the office of DRP which has since closed; and (d) service by way of advertisement in The Straits Times would be effectual in bringing the amended writ to the second defendant’s knowledge.

8 The summons first came before the assistant registrar on 23 January 2007. The assistant registrar refused to grant the order for substituted service and directed, with respect to the second defendant, that the plaintiffs’ solicitor filed a supplementary affidavit exhibiting People Profile Information (“PPI”) searches and describing attempts to serve at alternative addresses, if any.

9 Later in the afternoon of the same day, the plaintiffs’ solicitor attended before the assistant registrar and submitted, with respect to the second defendant, that the he had tried PPI searches but that there were too many “David Tans” such that he could not be sure which referred to the second defendant. This was reflected clearly in the assistant registrar’s minutes of the proceedings.

He additionally submitted that he had tried to get the second defendant’s residential address from the Law Society of Singapore (“the Law Society”) but that the latter declined to provide the required address on grounds of confidentiality.

10 The assistant registrar then directed the plaintiffs to file a supplementary affidavit setting out the matters submitted by him. This supplementary affidavit was filed on 29 January 2007 and deposed to, inter alia, the following: (a) the plaintiffs only knew the second defendant’s name and identity card number but not his residential address; (b) the plaintiffs were unable to conduct a property search to ascertain the second defendant’s residential address based purely on his name and identity card number; (c) the Law Society had refused to release the second defendant’s residential address; and (d) the Law Society had forwarded to the second defendant correspondence from the plaintiffs’ solicitor concerning the present action but that the second defendant had not responded. As a further follow-up to the state of the said correspondence, the plaintiffs have in their affidavit filed on 4 January 2008 for the purposes of the present application (“the plaintiffs’ first affidavit”) deposed that they eventually discovered in December 2007 that the Law Society had sent the correspondence to the second defendant’s former address, from which he had moved out prior to the commencement of the present action.

11 After the supplementary affidavit was filed, the order for substituted service was granted by the assistant registrar on 30 January 2007.

Judgments entered against the second defendant in default of appearance

12 Pursuant to the order for substituted service, an advertisement was put on The Straits Times on 7 February 2007. The second defendant never saw this advertisement and thus did not enter an appearance. On 12 February 2007, the plaintiffs informed the brokers for the second defendant’s professional indemnity insurers’ (“Lockton”) that they had commenced the present action. However, it appears that this information never reached the second defendant as Lockton later replied on 15 February 2007 that they were only the brokers and did not deal with claimants or their solicitors directly. In the result, interlocutory judgment in default of appearance was entered against the second defendant on 26 February 2007 and final judgment with damages assessed at $3,695,622.32 was obtained on 14 September 2007.

The second defendant’s discovery of the present action

13 Less than a month after final judgment was obtained, the first plaintiff called the second defendant on his mobile phone on 5 October 2007 and informed him that the plaintiffs had obtained default judgment against him. The plaintiffs had not contacted the second defendant by his mobile phone prior to this because, as they have stated in their first affidavit, they did not realise that they had the mobile phone number of the second defendant written on a note until late 2007. A meeting was arranged on 8 October 2007 between the parties, during which the second defendant was informed that the amended writ was served on him by way of substituted service. The plaintiffs have also in their first affidavit deposed that the second...