Multi-Pak Singapore Pte Ltd ((in Receivership)) v Intraco Ltd and Others

JurisdictionSingapore
CourtHigh Court (Singapore)
Judgment Date09 July 1992
Docket NumberSuit No 7195 of 1985
Date09 July 1992

[1992] SGHC 188

High Court

G P Selvam JC

Suit No 7195 of 1985

Multi-Pak Singapore Pte Ltd (in receivership)
Plaintiff
and
Intraco Ltd and others
Defendant

Wong Meng Meng, Sundaresh Menon and Dilhan Pillay Sandrasegara (Wong Meng Meng & Partners) for the plaintiff

Tan Kok Quan, Tang Khin Wai and Maurice Lee (Lee & Lee) for the first defendant.

Belmont Finance Corporation Ltd v Williams Furniture Ltd [1979] Ch 250 (folld)

Bills v Roe [1968] 1 WLR 925 (refd)

Bruce v Odhams Press Ltd [1936] 1 KB 697 (folld)

Esso Petroleum Co Ltd v Southport Corporation [1956] AC 218 (refd)

Letang v Cooper [1965] 1 QB 232 (refd)

Lever Brothers Ltd v Bell [1931] 1 KB 557 (refd)

Lloyde v West Midlands Gas Board [1971] 1 WLR 749 (refd)

Panding v London Brick Co Ltd [1971] 10 KIR 207 (refd)

Philipps v Philipps (1878) 4 QBD 127 (folld)

Ratnam v Cumarasamy [1965] 1 WLR 8 (refd)

Regina Fur Co Ltd v Bossom [1958] 2 Lloyd's Rep 425 (folld)

Spedding v Fitzpatrick (1888) 38 Ch D 410 (refd)

Weldon v Neal (1887) 19 QBD 394 (folld)

Companies Act (Cap 50,1990Rev Ed)s 76

Rules of the Supreme Court1970, TheO 20rr 5 (2), 5 (5) (consd);O 18rr 5, 7,15 (1)

Companies Act 1948 (c 38) (UK)

Civil Procedure–Pleadings–Amendment–Introduction of new relief or remedy after limitation period through voluntary particulars–Whether new relief or remedy based on material facts already pleaded–Whether introduction of new relief or remedy permitted under Rules of Supreme Court–Exercise of court's discretion–Order 20 rr 5 (2) and 5 (5) The Rules of the Supreme Court 1970–Civil Procedure–Pleadings–Voluntary particulars–Whether part of pleadings such as to require party wishing to add them to apply for leave–Failure to object to filing of voluntary particulars did not amount to waiver generally–Whether application for leave to amend necessary–Order 20 rr 5 (2) and 5 (5) The Rules of the Supreme Court 1970–Words and Phrases–“Cause of action”–Order 20 r 5 The Rules of the Supreme Court 1970

The plaintiff was placed under receivership by its debenture holder. The receiver found that the plaintiff had issued monies to the first defendant half a year before the plaintiff was placed under receivership, and consequently the plaintiff issued a writ endorsed with a statement of claim against the first defendant for the amount paid as money lent or money held on resulting trust. The first defendant's defence was that the monies were paid in consideration for the first defendant assigning to the plaintiff a debt due to the first defendant. Shortly before this action came to trial but after the relevant limitation period, the plaintiff's solicitors purported to file voluntary particulars, during the court vacation, after bringing these voluntary particulars to the notice of the first defendant's solicitors by a course of letters in the earlier part of that month, and not receiving a response to the same.

At trial, the first defendant objected to the voluntary particulars being part of the plaintiff's pleadings, arguing that it introduced a new cause of action outside the limitation period. The plaintiff argued that: (a) the first defendant had waived the right to object to the voluntary particulars; (b) the case constituted by the voluntary particulars was already part of its pleaded case and that it was accordingly entitled to lead evidence and cross-examine on them; and (c) even if the voluntary particulars introduced a new cause of action, it was based on the same or substantially the same facts which had been pleaded. The plaintiff applied for leave to effect the relevant amendment under O 20 rr 5 (2) and 5 (5) of The Rules of the Supreme Court 1970 (“the Rules”).

Held, dismissing the plaintiff's application:

(1) O 18 r 7 and O 18 r 15 (1) of the Rules required a party to set out in its pleadings all material facts on which he relied for his claim or defence, and to state specifically the relief or remedy which he claimed. Failure on the part of the pleader to conform to these rules could preclude the pleader from presenting a case on the point omitted from the pleadings. As a general rule, the failure to object to the filing of voluntary particulars per se could not amount to a waiver. The procedure was not found in the Rules and except in certain exceptional circumstances, a mere failure to respond could not amount to a waiver. Order 18 r 5 provided that except with the court's leave or the parties' consent, pleadings could not be served during court vacation without the leave of the court. As particulars were part of pleadings, a party wishing to include them must, except where permitted by the Rules, obtain leave to add them. If the particulars were not filed according to the Rules, the introduction of the voluntary particulars was unauthorised and they were not part of the pleader's pleadings: at [17] to [20], [22], [24] and [25].

(2) Order 20 r 5 (5) of the Rules used the term “cause of action” to refer to the relief or remedy which the plaintiff sought. If all the material facts on which a party relief for his claim had been pleaded, the party would be allowed under O 20 r 5 (5) to amend his statement of claim to add an alternate relief or remedy after the limitation period. On a true construction of O 20 rr 5 (2) and 5 (5), a plaintiff seeking an order under it must satisfy two requirements: (a) that the facts of the case remained the same or substantially the same; and (b) that the justice of the case was with him. If he failed in one, he failed altogether. The plaintiff had failed to plead the factual circumstances in connection with its case under s 76 of the Companies Act (Cap 50, 1990 Rev Ed) before the expiration of the limitation period, and that the overall equities rested with them: at [29], [31], [32] and [35] to [37].

G P Selvam JC

The background

1 This decision relates to certain questions in connection with the plaintiffs' pleadings.

2 First the background. In January 1985 the plaintiffs were placed under receivership by their debenture holders, Arab Bank Ltd. The debenture was dated 5 September 1984. The receivers found that the plaintiffs had issued a cheque dated 6 June 1984 in favour of Intraco Ltd for $2,371,079.62 and that it had been paid into the account of Intraco Ltd on 21 June 1984.

3 The plaintiffs on 21 July 1985 issued a writ endorsed with a statement of claim against Intraco claiming the amount as money lent or money held on a resulting trust for the plaintiffs.

4 Intraco filed a defence on 13 August 1985. According to this, the plaintiffs had entered into a written agreement on 24 May 1984 by which Intraco assigned to the plaintiffs a debt of $2,545,897.83 due to Intraco from City Carton Co Pte Ltd and Box Pak (S) Pte Ltd (“the debtor companies”). The payment of $2,371,079.62 by the plaintiffs was consideration for the assignment of the debt.

5 On 22 October 1986 the plaintiffs amended the writ with leave of court by adding Peter Ng and David Ng as the second and third defendants and Pattinson Temple as the fourth defendant. The second and third defendants were directors in the plaintiffs as well as the debtor companies. The fourth defendant was the financial controller of the three companies.

6 The statement of claim was also amended by leave of the court to assert that the payment of $2,371,079.62 to Intraco was a misapplication of the plaintiffs' funds in that the debtor companies were insolvent and the assignment conferred no benefit to the plaintiffs. It was stated that the directors in making the payment did not act honestly and diligently in the discharge of their duties as...

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