Ong Leong Chuan v Ong Heng Chuan and Others

• Jurisdiction: Singapore
• Judge: Belinda Ang Saw Ean JC
• Judgment Date: 13 June 2002
• Neutral Citation: [2002] SGHC 126
• Docket Number: Originating Summons No 1944 of (Summons in Chambers No 600451 of 2002)
• Date: 13 June 2002
• Year: 2002
• Published date: 19 September 2003
• Plaintiff Counsel: Plaintiff in person
• Citation: [2002] SGHC 126
• Defendant Counsel: Ranvir Kumar Singh ( Kumar & Loh ),Andy Chiok and Ong Lee Woei ( Michael Khoo & Partners )
• Court: High Court (Singapore)
• Subject Matter: Principles,Whether to grant application,Costs following the event,Whether fixing of costs fair and reasonable,Costs,s 216 Companies Act (Cap 50, 1994 Ed),Whether circumstances justifying departure from normal rule,Civil Procedure,Parties arriving at compromise agreement,Scheduling of terms of agreement to a Tomlin Order,Commencement of proceedings under s 216 Companies Act (Cap 50, 1994 Ed) by plaintiff,Application by plaintiff to enforce compromise agreement,Companies,Oppression

Judgment

GROUNDS OF DECISION

1. The Plaintiff, Ong Leong Chuan, and the first three Defendants, Ong Heng Chuan, Ong Teck Chuan and Ong Boon Chuan are brothers.

2. On 16 December 1999, the Plaintiff as shareholder of the Tong Guan Food Products Pte Ltd, the 4^th Defendant, commenced proceedings under s 216 Companies Act (Cap 50). Subsequently, an amicable resolution of the proceedings was reached and the terms of the compromise agreement were scheduled to a Tomlin Order ("the Compromise Agreement").

3. Unfortunately, the differences amongst the brothers did not end with the compromise settlement. The present dispute, which is one of many, is over the terms of the Compromise Agreement.

4. On 21 March 2002, the Plaintiff, acting in person, filed an application by way of summons-in-chambers entered no.6000451 of 2002 to enforce the Compromise Agreement.

5. On 2 May 2002, I granted leave to the Plaintiff to amend the date of the Tomlin Order to read as 26 July 2000 instead of 17 July 2000. Insofar as the other prayers were concerned, I dismissed the Plaintiff’s application with costs fixed at $800.00 to the 3^rd Defendant, Ong Boon Chuan ("Boon Chuan"). I now set out the grounds of my decision.

6. The Plaintiff’s appeal is against the dismissal of prayers 2 to 6 of his application and costs.

Prayers 2 and 3 of the application

7. Prayer 2 of the Plaintiff’s application was for an order to compel the 3^rd Defendant, Boon Chuan, to observe Clause 8 of the Compromise Agreement and to transfer 380,000 shares in the 4^th Defendant to the Plaintiff as he had made part payment in the sum of $190,000 for those shares in accordance with the terms of Clause 7.

8. Clauses 7 and 8 read as follows:

"7. The plaintiff shall purchase from the 3^rd defendant, and the 3^rd defendant shall transfer, 380,000 shares in Tong Guan which had been allotted to the plaintiff pursuant to the October 1999 Rights Issue but which had not been subscribed for by him, for a total consideration of $380,000 to be paid to the 3^rd defendant as follows:

a. as to $190,000 within 8 weeks of this order; and

b. as to the balance of $190,000 on the completion of the sale of all his shares in the company to the 1^st to 3^rd defendants or any of them as they may so decide. This payment shall be set-off against the sale proceeds of the plaintiff’s shares.

Provided that if the plaintiff shall default in the payment of the sum of $190,000 to the 3^rd defendant within the prescribed period of 8 weeks from the date of this Order, the plaintiff shall be deemed to have declined to purchase the said 380,000 shares from the 3^rd defendant, and he shall have no claim whatsoever on the said shares. The sale of all his shares to the defendants or such of them pursuant to clause 1 shall accordingly be less the 380,000 shares.

8. On receipt from the plaintiff of the sum of $190,000 the 3^rd defendant shall transfer the 380,000 shares to the plaintiff who shall thereupon execute a transfer of those shares in escrow and deliver the transfer form(s) and the share certificate(s) to his solicitors M/s Hee Theng Fong & Co., to be held by the said solicitors as stakeholders pending completion of the sale and purchase. The transfer forms shall be prepared by the company secretary of Tong Guan."

9. Clause 7(a) does not stipulate the mode of payment. Payment could be made in any commercially acceptable form.

10. The effect of a stipulation as to time depends on the true construction of Clause 7. The proviso to Clause 7 deals with the consequence of a default in payment. If there is non-payment by the appropriate time specified, the Plaintiff is treated as having declined to purchase the 380,000 shares.

11. If part payment for those 380,000 shares were made in accordance with Clause 7(a), then the provisions of Clause 8 would come into play.

12. At the material time, M/s Hee Theng Fong & Co represented the Plaintiff. It is evident from the firm’s letter of 5 October 2002 that the due date for payment of $190,000 pursuant to Clause 7(a) was undeniably 20 September 2000: see exhibit marked "OBC-26" to affidavit of Boon Chuan filed on 18 March 2002 in Originating Summons no. 100 of 2002. At the hearing, the Plaintiff argued for the date of the Tomlin Order to be 27 July 2000 so that the last day for payment would fall on 21 September 2000. I agreed with Counsel for Boon Chuan, Mr. Andy Chiok, that the last day for payment under Clause 7(a) was 20 September 2000. I should mention that in Skeletal Arguments prepared in support of the Plaintiff’s...