Ng Chee Chong and Another v Toh Kouw and Another

JurisdictionSingapore
JudgeGoh Joon Seng J
Judgment Date12 July 1999
Neutral Citation[1999] SGCA 51
Docket NumberCivil Appeal No 6 of 1999
Date12 July 1999
Published date19 September 2003
Year1999
Plaintiff CounselCheah Kok Lim (Michael Khoo & Partners)
Citation[1999] SGCA 51
Defendant CounselRamesh Appoo (S Narayanan & Partners)
CourtCourt of Appeal (Singapore)
Subject MatterWhether res judicata applicable to prevent second action,Res Judicata,Res judicata,Sellers instituting two separate actions,Whether sellers estopped on grounds of res judicata in pursuing second action,Estoppel,Equity,One contract giving rise to two separate causes of action,Sellers instituting two separate actions as a result of buyers' breach of contract to buy sellers' flat

(delivering the grounds of judgment of the court): In this case, the appellants` claim against the respondents for damages for breaching a contract for the sale and purchase of a Housing and Development Board (HDB) flat, was struck out on the ground that the appellants` conduct was frivolous and/or vexatious and/or an abuse of the process of the court. We allowed the appellants` appeal against the striking out order and now give the reasons for our decision.

Background

On 16 July 1997, the appellants contracted to sell their HDB flat in Choa Chu Kang to the respondents for $568,000. Under the terms of the contract for sale and purchase, the respondents were required to pay the appellants a deposit of $5,000 immediately upon signing the contract. Clause 6 of the contract further provided that the respondents were to apply to the HDB for the requisite approval of the purchase of the said flat within 90 days, that is by 14 October 1997.

Two days after signing the contract, the respondents informed the appellants that they did not intend to proceed with the purchase of the flat and that they did not intend to pay the $5,000 deposit, which had, to date, not been paid.


On 28 July 1997, the appellants` solicitors wrote to the respondents to demand the payment of the deposit of $5,000 and to place on record that the appellants regarded the respondents` intimation that they would not proceed with the purchase of the flat as an anticipatory breach of the contract.
The respondents, who were informed that the appellants accepted this repudiation of the contract, were further informed that they would be held liable for any loss of profit suffered by the appellants if the flat was subsequently sold at a lower price than that offered by the respondents.

On 14 August 1997, the appellants commenced an action in the magistrate`s court for the recovery of the $5,000 deposit.
On 23 October 1997, they obtained summary judgment for the amount claimed.

On 23 September 1997, the appellants` solicitors informed the respondents that prospective purchasers had offered to pay $535,000 for the flat.
On 2 October 1997, the respondents were informed that unless they were in a position to have the flat sold at a higher price, the flat would be sold for $535,000. The respondents did not respond to these letters and the flat was sold for $535,000 on 5 October 1997.

On 27 October 1997, the appellants` solicitors wrote to the respondents` solicitors to demand the payment of $30,500.
This sum included the appellants` loss of profit and the property agent`s commission for introducing the new purchaser to the appellants. As the respondents refused to pay the sum demanded, the appellants commenced DC Suit No 5113 of 1997 against the respondents on 25 November 1997.

On 20 January 1998, the respondents applied to have the appellants` statement of claim struck out with costs under O 18 r 19(1)(b) and (d) of the Rules of Court 1996 on the ground that the appellants` conduct was `frivolous and/or vexatious and/or an abuse of the process of the court`.
The respondents pointed out that the appellants` claim in both suits arose out of the same breach of the contract for the sale and purchase of the HDB flat and that the appellants had already been awarded the sum of $5,000 for this breach of contract. The appellants` claim was struck out by the deputy registrar on 2 March 1998.

The appellants succeeded in their appeal against the deputy registrar`s decision.
On 9 April 1998, the District Judge set aside the striking out order made on 2 March 1998. The respondents appealed to the High Court.

The proceedings below

The learned judge said that the question which arose in the appeal before him was `whether the first action for the recovery of the $5,000 deposit [estopped the appellants] from initiating or maintaining the second action for recovery of damages`.

The learned judge accepted that the cause of action founded on the accrued liability to pay the deposit was distinct from that arising from the wrongful repudiation of the contract as a whole.
As such, the appellants` two suits involved two different causes of action. However, relying on Henderson v Henderson [1843] 3 Hare 100; 67 ER 313 and Yat Tung Investment Co Ltd v Dao Heng Bank Ltd & Anor [1975] AC 581, his Honour held that the...

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