Ng Kong Choon v Tang Wee Goh

• Jurisdiction: Singapore
• Judge: Belinda Ang Saw Ean J
• Judgment Date: 29 April 2016
• Neutral Citation: [2016] SGHC 83
• Plaintiff Counsel: Liew Teck Huat and Thaddeus Oh (Global Law Alliance LLC)
• Docket Number: Magistrates’ Courts Suit No 11423 of 2013 (Registrar’s Appeal (State Courts) No 166 of 2013)
• Date: 29 April 2016
• Hearing Date: 14 January 2016,25 August 2014,06 April 2015
• Subject Matter: Statutory interpretation -Construction of statute -Section 35 of the Subordinate Courts Act,Civil procedure -Striking out,Contract -Contractual terms -Rules of construction
• Published date: 11 May 2016
• Citation: [2016] SGHC 83
• Defendant Counsel: Roger Yek Nai Hui and Cindy Cham (Lawrence Chua Practice LLC)
• Court: High Court (Singapore)
• Year: 2016

Belinda Ang Saw Ean J: Introduction

This Registrar’s Appeal (State Courts) No 166 of 2013 (“RAS 166/2013”) raises some points of general importance to motorists and their insurers. Arising from a road traffic accident, repeated writs were filed by the plaintiff, Ng Kong Choon (“NKC”), against the defendant, Tang Wee Goh (“TWG”). Two of NKC’s writs, one for uninsured loss and another for personal injury, were settled without adjudication on the merits. The present writ in NKC’s name is a subrogation action instituted by NKC’s insurer, Allianz Global Corporate and Specialty SE Singapore Branch (“Allianz”). The question for determination in RAS 166/2013 is whether s 35 read with s 52(2) of the Subordinate Courts Act (Cap 321, 2007 Rev Ed) (“the SCA”) applies to preclude Allianz from suing through NKC to recover the cost of repairs to NKC’s vehicle, especially after NKC had sued TWG twice to recover his uninsured loss and damages for personal injury.

Section 35 of the SCA (“s 35”) prohibits the dividing of a cause of action for the purpose of bringing two or more actions in the Subordinate Courts (now the State Courts). For the statutory prohibition to apply, the cause of action must be a single one. This judgment will consider: (a) whether one or two causes of action arise out of a tort committed on an individual where that tort results in damage to both his person and his property; and (b) whether the statutory prohibition would bar the institution of subsequent proceedings when the earlier proceedings were settled amicably without entering judgment on the merits.

This judgment will also examine the two discharge vouchers executed by NKC. In particular, the second discharge voucher was widely-worded and the query as to its ambit is whether the language of this discharge voucher had effectively compromised all claims in relation to the road traffic accident that NKC had and/or would have against TWG. If this was indeed the case, then TWG would have been discharged and released from the claim for cost of repairs, and the present MC Suit No 11423 of 2013 (“MC Suit 11423/2013”) to recover the cost of repairs (“the Repairs Writ”) must be struck out as frivolous, vexatious or an abuse of the process of the court. In that event, s 35 does not arise for determination. It is only if the cost of repairs falls outside of the second discharge voucher that the court is required to consider s 35. Therefore, logically, the resolution of this appeal calls for, first and foremost, a construction of the second discharge voucher to determine its proper ambit and effect.

Factual background

The brief facts are as follows. NKC and TWG were involved in a road traffic accident. It is common ground that TWG’s vehicle collided into the rear of NKC’s vehicle. The accident occurred on 28 May 2009, at about 7.45am, along Loyang Avenue towards Changi Village outside Loyang Valley Condominium. The two vehicles that were behind TWG’s vehicle were SFF 5753A (insured by AXA Insurance Singapore Pte Ltd (“AXA”)) and JGQ 954 (insured by Pacific Insurance Bhd (“Pacific Insurance”)). Although these two other vehicles were involved in what appeared to be a chain collision, the writs that were filed concerned the same two parties, viz, NKC and TWG, and the collision between their respective vehicles, SJC 693R and SFA 8123A.

NKC, and his insurer, Allianz (pursuant to its subrogation rights), brought three different claims against TWG. These claims were in respect of: (a) insurance excess and loss of use (collectively referred to as “uninsured loss”); (b) cost of repairs; and (c) personal injury. From the narrative below, a grand total of five writs were filed in respect of these three claims. The Repairs Writ is the last of the five writs.

History of the five writs

MC Suit No 7643 of 2010 (“MC Suit 7643/2010”) was filed by NKC to recover his uninsured loss on 26 March 2010 (“the Uninsured Loss Writ”). This writ was served on 30 March 2010. The uninsured loss claim was for $3,002.35 and this claim was settled for a sum of $420.32. A discharge voucher was executed on 9 May 2011 (“the 2011 Discharge Voucher”). Although the 2011 Discharge Voucher stated that the settlement was in respect of “all loss or damage”, there were two endorsements on the document. The endorsements are reproduced at [24] below. According to TWG’s insurer, NTUC Income Insurance Co-operative Limited (“NTUC Income”), the endorsements were made by NKC and/or his then lawyers, Oracle Law Corporation (“Oracle Law”). However, NTUC Income did not take issue with the endorsements as it was accepted that in MC Suit 7643/2010, what NKC had claimed for and what was settled was the claim for uninsured loss only. The Notice of Discontinuance in respect of MC Suit 7643/2010 was filed on 12 July 2011.

Allianz paid the cost of repairs in the total sum of $4,888.23 on 9 July 2009. Allianz then proceeded to recover in subrogation the cost of repairs, but NTUC Income rejected the claim on the ground that the driver of JGQ 954 (the last car in the chain), who was insured by Pacific Insurance, had purportedly admitted that he had caused the chain collision. Allianz then instructed Global Law Alliance LLC (“Global Law”) to issue proceedings against TWG. In this regard, Global Law ended up issuing three separate writs. First, MC Suit No 20269 of 2010 was filed on 4 August 2010 (“the August 2010 Writ”). Before issuing the August 2010 Writ, Global Law wrote to TWG and NTUC Income on 26 July 2010 to give each of them notice of Allianz’s intention to bring a subrogation action to recover the cost of repairs. Attempts to serve the August 2010 Writ on TWG personally were unsuccessful, and it duly lapsed after six months of its initial period of validity. Thereafter, Global Law filed MC Suit No 8560 of 2011, a fresh writ, on 4 April 2011 (“the April 2011 Writ”). Again, the April 2011 Writ was not served within six months of its initial period of validity. Notwithstanding that an order for substituted service was granted on 5 May 2011, nothing appeared to have been done to effect substituted service during the period of validity of the April 2011 Writ.

On 13 January 2012, NKC filed MC Suit No 1204 of 2012 (“MC Suit 1204/2012”) to recover damages for personal injury sustained in the accident (“the Personal Injury Writ”). The quantified claim amount was $400.20 being medical expenses, transport and medical report fees. General damages and Public Trustee’s administrative fees were also claimed. The Personal Injury Writ was served on 2 February 2012. The claim for personal injury was eventually settled at $883.71, and a discharge voucher was executed on 22 August 2012 (“the 2012 Discharge Voucher”). The Notice of Discontinuance in respect of MC Suit 1204/2012 was filed on 25 October 2012. Notably absent from the 2012 Discharge Voucher were endorsements similar to those found of the 2011 Discharge Voucher. The terms of the 2012 Discharge Voucher are set out in [29] below and I will return to them in due course.

Returning to the April 2011 Writ referred to at [7] above, Global Law had attempted to effect substituted service of this writ in April 2012. By then, however, the April 2011 Writ was already an expired writ. This point is not controversial as there was no order extending the validity of the April 2011 Writ. The Memorandum of Service filed by Global Law showed that the April 2011 Writ was served on NKC by way of posting a copy of the same on NKC’s front door and on the notice board of the Subordinate Courts on 2 April 2012 and 3 April 2012 respectively.

Global Law then wrote to NTUC Income on 25 May 2012 and in that communication, Global Law made reference to the April 2011 Writ. Instead of enclosing the April 2011 Writ, Global Law sent the August 2010 Writ. Notwithstanding this oversight, the fact of the matter is that the April 2011 Writ had also expired by then. Not surprisingly, NTUC Income’s lawyers, Lawrence Chua & Partners (“LCP”), responded on 30 May 2012 and requested a copy of the order extending the validity of the August 2010 Writ. Global Law’s letter of 5 July 2012 requested LCP to accept service of the April 2011 Writ.

On this occasion, LCP advised Global Law on 6 July 2012 that NKC had issued two writs for uninsured loss and for personal injury, and that both claims had been settled. As such, LCP took the position that NKC’s claim for cost of repairs was res judicata. LCP promptly required Global Law to confirm that NTUC Income would not be pursuing the cost of repairs claim. On 7 July 2012, Global Law asked for documents pertaining to the settlements. On 3 August 2012, LCP advised that its stated position was based on the case of Henderson v Henderson (1843) 3 Hare 100 (“the Henderson rule”).

On 23 May 2013, Global Law filed the Repairs Writ, the subject matter of this appeal in RAS 166/2013. As stated, the Repairs Writ is a subrogation action brought through NKC to recover the cost of repairs. TWG entered appearance on 11 June 2013.

Summons No 9210 of 2013 to strike out the Repairs Writ

On 1 July 2013, TWG filed Summons No 9210 of 2013 to strike out MC Suit 11423/2013 (ie, the Repairs Writ) pursuant to O 18 r 19(1)(b) and (d) of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) (“ROC 2006”). The supporting affidavit covered two points: (a) that TWG was again being vexed for the same cause of action by the Repairs Writ; and (b) that the Repairs Writ was in breach of s 35.

At this juncture, I should refer to two arguments raised by counsel for NTUC Income, Mr Roger Yek Nai Hui (“Mr Yek”). The first contention concerns NTUC Income’s objection to the lateness of the Repairs Writ in that it surfaced after NTUC Income had settled with NKC both of his claims. In relation to those claims, NTUC was able to obtain contributions from the insurers of SFF 5753A and JGQ 954 (ie, AXA and Pacific Insurance). Effectively, NTUC Income’s share of...