Ong Cher Keong v Goh Chin Soon Ricky

• Jurisdiction: Singapore
• Judge: Judith Prakash J
• Judgment Date: 03 February 2001
• Neutral Citation: [2001] SGHC 21
• Docket Number: Suit No 302 of 1998
• Date: 03 February 2001
• Published date: 19 September 2003
• Year: 2001
• Plaintiff Counsel: Aloysius Leng and Vernon Voon (Abraham Low & Partners)
• Citation: [2001] SGHC 21
• Defendant Counsel: Anthony Netto and Anand Thiagarajan (Netto & Netto)
• Court: High Court (Singapore)
• Subject Matter: Judgments and orders,Civil Procedure,Setting aside judgment or order of court,Applicable principles for setting aside

: This suit has a long and complicated procedural history. The issue here concerns the nature and effect of certain court orders made in 1999.

Background

The original claim

The plaintiff, Mr Ong Cher Keong, commenced this action in March 1998. The amended statement of claim recited that the plaintiff and Mr Ricky Goh Chin Soon, the defendant, had entered into a written agreement (`the agreement`) in June 1995 whereby they had agreed to jointly develop certain land in Tong Huat Road, Singapore (`the property`). The plaintiff had a 30% share in the joint venture whilst the defendant held the remaining 70% interest. Subsequently, (i) the plaintiff paid the defendant an amount of $1,008,780 in respect of his share in the joint venture and (ii) the property was purchased by a joint venture company with the aid of a mortgage loan from the OCBC Bank.

Paragraph 6 of the statement of claim pleaded that some time in November 1996, the defendant informed the plaintiff that the property had been sold to Taiwanese parties for the sum of $45m but neither supporting documents on the sale nor statements of account on the expenses of the project were provided to the plaintiff. By para 7 the plaintiff averred that on 21 November 1996, he asked the defendant to account for the 30% share due him under the agreement upon the sale of the property and for the detailed breakdown of the figures for property tax, stamp duty, legal fees and bank interest for bank loan but none of these were provided to him.

Paragraphs 8 and 9 of the statement of claim are important. They read as follows:

8 On 12 December 1997, the defendant orally agreed to repay by instalments to the plaintiff his 30% share under the agreement upon the sale of the said properties in the sum of $4,386,365.69 which together with the plaintiff`s earlier payment of the $1,008,000 amounts to the sum of $5,394,965.69 as computed by the defendant without any supporting documents being provided for this computation.

9 Wrongfully and in breach of the agreement, the defendant has failed to account to the plaintiff in the manner requested by the plaintiff.

In para 10, the plaintiff said that he had computed his 30% share in the joint venture falling due upon sale of the property, subject to the taking of accounts, as being $5,475,923.52 based on a sale price of $45m. He set out his estimate of the receipts and expenses and also details of payments made to him by the defendant (totalling $3,700,000). By para 11, it was averred that despite the plaintiff`s requests, the defendant had failed to account to or pay the plaintiff the sum which he calculated to be due or such sum as was due to him as his 30% share under the agreement upon the sale of the property.

The plaintiff then went on to make five claims. The first (which was later referred to as prayer 1 of the statement of claim) was for `an account of all sums due from the defendant to the plaintiff being his 30% share under the agreement of 2 June 1995 upon the sale of the [property]`.

Summary judgment application

The defendant having entered an appearance to the action, the plaintiff applied for summary judgment. In response, the defendant filed an affidavit on 25 May 1998 in which he stated that the property had not been sold and so there were no profits for which he was obliged to account. He alleged the property remained in the ownership of the joint venture company. Further, some time towards the end of November 1996, he had reached a settlement of disputes with the plaintiff and agreed to pay the latter $2.7m. This sum had been paid by instalments and there were no further moneys due to the plaintiff.

The plaintiff`s application was heard on 29 May 1998. It was not disputed at the hearing that the property had not been sold to the Taiwanese parties, nor that it remained in the ownership of the joint venture company. The plaintiff contended that whether the property had been sold or not did not detract from the defendant`s fiduciary duty to the plaintiff to account for the management of the property. What the plaintiff sought was an account of the sums due from the defendant as his 30% share in the joint venture.

The assistant registrar, Ms Audrey Lim, found in favour of the plaintiff. The first order made by the assistant registrar was:

(1) An account be taken of all sums due from the defendant to the plaintiff being his 30% share under the agreement of 2 June 1995, of all expenses and deductions of the subject property as at 30 November 1996 per exh `OCK-2` in the plaintiff`s affidavit filed on 13 April 1998.

Among the consequential orders made were the following:

(2) there be payment by the defendant to the plaintiff of all sums found to be due, if any, from the defendant to the plaintiff upon the taking of the account; and

(3) the defendant pay the plaintiff interest on the amount found due to the plaintiff at the rate of 6% per annum from the date of the writ to the date of judgment.

First taking of accounts

Surprisingly, the defendant did not appeal against the above orders. Instead, the parties proceeded with preparations for the taking of accounts pursuant to those orders. The accounts were taken by Assistant Registrar Eugene Teo on 1 October 1998. He found the sum of $3,222,650.83 to be due to the plaintiff from the defendant and gave judgment for the plaintiff for that sum and for four-fifths of the costs of the proceedings. The figure was arrived at on the basis that the property was worth $4.5m as at 30 November 1996.

In his grounds of decision, Assistant Registrar Teo noted the defendant`s assertion that there was nothing to account for since the first prayer of the statement of claim had asked for an account to be taken `upon the sale` of the property. He recorded that the plaintiff had sought to explain by way of his affidavit filed on 23 May 1998 that the figure of $45m was actually an agreed price for the property arrived at between the defendant and himself in November 1996 and that he was claiming an account of all sums due from the defendant based upon this price. Mr Teo pointed out that in order to get around the flaw in the case as stated in the amended statement of claim, the order made on the hearing of the summary judgment application was for an account to be taken of all sums due from the defendant to the plaintiff being the latter`s 30% share under the agreement, and of all expenses and deductions relating to the property as at 30 November 1996.

First order for accounts set aside

The defendant appealed from the above assessment. The appeal was heard by Lim Teong Qwee JC on 30 December 1998. The defendant renewed his arguments on the flaw in the plaintiff`s claim as pleaded. The appeal was allowed on this basis, ie the account could not be taken because the property had not been sold and the judgment of 1 October 1998 was set aside. The judge further ordered parties to attend before Assistant Registrar Audrey Lim to seek clarification of para 1 of the 29 May 1998 order.

The parties appeared before Assistant Registrar Audrey Lim on 14 January 1999 for clarification. The court made the following clarification:

Property - estimated selling price as reflected in OCK2 of $45m is only an estimate. Price is still subject to valuation and proof at accounting stage.

[bull ] Similarly other heads/items in OCK2 subject to proof.

[bull ] Date of account is at 30/11/96.

Two months later, the parties appeared before Lim Teong Qwee JC for further directions. Counsel for the plaintiff informed the court of the clarification made by Assistant Registrar Lim on 14 January and asked for the matter to be referred back to Assistant Registrar Lim for further directions on the taking of accounts. The court then remitted the matter back to Assistant Registrar Lim for directions and further consideration or review.

The further hearing before Assistant Registrar Lim took place on 20 March 1999. Counsel for the defendant informed the assistant registrar that Lim JC had been concerned that the judgment given in May 1998 did not reflect the pleadings. Whilst para 8 of the statement of claim had recited that on 12 December 1997, the defendant orally agreed to repay by instalments to the plaintiff his 30% share under the agreement upon the sale of the property, para 9 had contained an allegation of breach of the agreement and had not mentioned anything to do with the sale of the property. Also prayer 1 had been for an account upon sale. Counsel further stated that Lim JC had suggested that the plaintiff set aside the judgment and amend the statement of claim or that the plaintiff ask Assistant Registrar Lim to review the order which was why the matter had been sent back to Assistant Registrar Lim. Counsel then suggested three alternative courses:

(a) that the plaintiff apply to set aside the order of 29 May 1998 and then amend his statement of claim;

(b) that the assistant registrar herself set aside the order; or

(c) that the assistant registrar amend the order so that it provided for the account to be given upon the actual sale of the property.

In response, counsel for the plaintiff pointed out that the order made by Assistant Registrar Lim on 29 May 1998 had not been appealed from.

The court then adjourned the matter to 5 April 1999 to give counsel time to take instructions from the plaintiff on the proposed courses. Assistant Registrar Lim further noted that she agreed with counsel for the defendant that one of the three courses of action suggested by him should be taken since what had been pleaded did not tally with what had been asked for in the claim.

Order made on 7 April 1999

At the next hearing before Assistant Registrar Lim, on 7 April 1999, counsel for the plaintiff informed the court that the plaintiff did not want to set aside the judgment of 29 May 1998. The plaintiff was agreeable to the...