Ong & Co Ltd v Makin Nominees Pte Ltd and Another

• Judge: Warren Khoo L H J
• Judgment Date: 08 October 1992
• Neutral Citation: [1992] SGHC 263
• Citation: [1992] SGHC 263
• Defendant Counsel: Harry Elias (Harry Elias & Partners)
• Published date: 19 September 2003
• Plaintiff Counsel: Woo Bih Li and Claire Wong (Allen & Gledhill)
• Date: 08 October 1992
• Docket Number: Suit No 3806 of 1986
• Court: High Court (Singapore)
• Subject Matter: Whether agreement void as against public policy,Agreement not to apply for stay of execution of judgment,Appeals,Stay of proceedings,Civil Procedure,Whether agreement purports to oust jurisdiction of court,Whether application can still be made despite agreement,Agreement not to appeal against judgment

This is an appeal from the decision of an assistant registrar on 21 November 1986 in an O 14 application whereby he ordered summary judgment to be entered for the plaintiffs against the first and second defendants. The judgment was for $6,731,855.20, together with interest at 6%pa from 21 June 1986 to date of judgment and scale costs in the sum of $700. The plaintiffs` claim was for sums due under a guarantee in writing dated 21 August 1984 signed by the second defendant whereby the second defendant undertook to pay and discharge all sums and liabilities due under a share trading account opened under an account agreement of the same date between the plaintiffs and the first defendants.

On 24 November 1986, the defendants filed a notice of appeal to judge-in- chambers against the assistant registrar`s judgment.

On 19 March 1987, at the hearing of the appeal it was adjourned by consent to a date to be fixed.

The parties carried on negotiations to settle the defendants` liabilities to the plaintiffs. A settlement was reached, and the terms and conditions were incorporated in a written agreement dated 19 March 1987. In gist, the agreement provides in cll 1 and 2 for the deferred payment of the indebtedness of the defendants, subject to the provision of collateral at dates and in the manner specified. Clauses 9 and 10 provide as follows:

9 The hearing of Makin and DMK`s appeal against the judgment shall be restored by Makin and/or DMK and the company shall consent to the judgment being set aside with no order as to costs on the day fixed for hearing provided that the obligations of Makin and DMK herein up to the date of hearing are complied with.

(10) If any of the moneys due and payable to the company under cl 1(a) or 1(b) or 1(c) herein is not paid within 14 days after the due date as provided herein or the collateral referred to in cl 2(a) herein is not provided in accordance with cl 2(a) or if Makin`s and DMK`s share of stamp duty is not paid as provided herein, then

A if the judgment has not been set aside at the time of default, then,

(a) the company shall be at liberty to enforce the judgment for a sum equivalent to the total of the following:

(i) so much of the principal sum as is unpaid, and

(ii) any unpaid share of stamp duty, and

(iii) costs and interest as has been granted under the judgment and further interest under the Rules of the Supreme Court 1970, and

(b) Makin and DMK shall not appeal against the judgment or apply for a stay of execution thereof or for an injunction against execution thereof, and the judgment shall not merge into this agreement, and

B if the judgment has been set aside at the time of default, Makin and DMK shall immediately be due (sic) and liable to pay without demand:

(a) so much of the principal sum as is unpaid at the time...