Oversea-Chinese Banking Corp Ltd v Frankel Motor Pte Ltd and Others

• Jurisdiction: Singapore
• Judge: Kan Ting Chiu J
• Judgment Date: 31 March 2009
• Neutral Citation: [2009] SGHC 76
• Docket Number: Suit No 775 of 2007 (Registrar's Appeal No 300 of 2008)
• Date: 31 March 2009
• Year: 2009
• Published date: 03 April 2009
• Plaintiff Counsel: G Mohan Singh (G Mohan Singh)
• Citation: [2009] SGHC 76
• Defendant Counsel: Loke Pei-Shan (Rajah & Tann LLP)
• Court: High Court (Singapore)
• Subject Matter: Judgments and orders,Test for setting aside regular default judgment,Plea of non estfactum,Civil Procedure,Whether there was prima facie defence in the sense of showing that there were triable or arguable issues,Whether defendant was properly served with writ,Application to set aside default judgment

31 March 2009 Judgment Reserved.

Kan Ting Chiu J:

1 The appellant, Ho Yik Fuh, is the second defendant in this action. The plaintiff, Oversea-Chinese Banking Corporation Limited, had entered judgment against him in default of appearance after effecting service on him by substituted service. The plaintiff had obtained an order of court on 21 December 2007 to effect service of the writ on the appellant by posting it at the appellant’s last known address at 35 Simei Street 4 #10-03 Modena Singapore 529869 (“the Simei address”). Service under the order of court was effected on 8 January 2008 and default judgment was entered on 17 January 2008.

2 The plaintiff had sued the first defendant, Frankel Motor Pte Ltd (“Frankel Motor”), a customer of the plaintiff to which the plaintiff had granted banking facilities. The plaintiff also sued three directors of the company, including the appellant, who had stood guarantee for Frankel Motor.

3 The appellant’s application stated that the grounds of the application are set out in the affidavit filed in support of the application. In that affidavit, he deposed:

3. I am residing at [69A Frankel Avenue Singapore 458197]. I believe that all my records with the authorities show that I am residing at the abovementioned address. My NRIC indicates the same as well.

4. Sometime in the third week of March 2008 I went to 35 Simei Street, #10-03 Modena Singapore 529869 which is property owned by me and which was vacant at that time and which I wanted to sell. My agent is marketing it now. I have not been there for about a number of weeks. I went there to check the condition and to see any mail. When I reached there I discovered a Originating Summons (Creditor’s Bankruptcy Application) on the floor near the door. I wish to say that prior to the bankruptcy application which I found I had no notice of any action or claim by the Defendants. Only later after my solicitors received the documents from the Defendants lawyers did I discover that there has been a judgment filed against my company Frankel Motor Pte Ltd, the other directors and myself. I was shocked.

5. Worst so that the judgment against me was for a guarantee that I allegedly signed. I do not remember signing any guarantee. At the time I am alleged to have signed the guarantee Frankel Motor needed some financing. A bank officer came to our office and left a stack of documents about more than half inch thick with tabs markings and later he called to say asking all the directors to sign where the pages were tabbed and a cross (x) marked indicating the space where the directors were to sign. The bank officer did not explain or told me that it involve any personal guarantee by the directors. All I knew that Frankel Motor was seeking some financing facilities and some documents had to be signed.

6. I did not receive any writ of summons. I have not been staying at the address known as 35 Simei Street 4, #10-03 Modena Singapore 529869 since November 2007. I have also caused to have my address changed in my NRIC in early December 2007. I and my family were no longer residing there and the place was vacant. …

7. I verily belief that there has been no proper service of the Writ of Summons on me nor had I receive any copy of the order of court for substituted service and neither had I received the Judgment in default of appearance before the bankruptcy proceedings against me.

4 From his affidavit, it can be seen that the appellant was relying on two grounds to set aside the judgment namely:

(i) he was not residing at the Simei address since November 2007, and had changed the address in his NRIC in early December 2007 to 69A Frankel Avenue, and

(ii) he does not remember signing any guarantee because no one explained or told him that any personal guarantee was required from the directors of Frankel Motor.

5 The appellant’s application was first heard by an assistant registrar, and was dismissed and he appealed against that decision. In the course of the appeal before me, his counsel raised further grounds in support of the application not pleaded in the application or the affidavit filed in support, which I disregarded.

The appellant’s address

6 The appellant’s Simei address had been inserted in the loan documents between the plaintiff and Frankel Motor. From the outset, when the plaintiff issued its letter of offer to Frankel Motor on 22 April 2005, the appellant was named as one of the required guarantors and his address was stated as the Simei address. When the appellant executed the guarantee on 25 April 2005, the same address was used in the document.

7 When the plaintiff applied for the writ to be served by substituted service at the Simei address, it was on the basis that it was the address of the appellant last known to the plaintiff. In support of the plaintiff’s application, an affidavit by the plaintiff’s solicitors’ clerk was filed on 19 December 2007 in which he deposed that he went to the Simei address on 13 and 17 December 2007 to serve the writ on the defendant but was informed by the defendant’s wife on each occasion that he was not in.

8 Before making the application, the plaintiff’s solicitors had made a search on the Simei address which showed that the appellant was one of the two owners of the property and that property was owner-occupied. The solicitors apparently took heed to comply with the guidelines for such applications laid down in the Singapore Civil Procedure 2007 (Sweet & Maxwell Asia 2007) at 62/5/5:

Substituted service by posting on front door – Service by posting on the front door of the last known residential address of the person to be served may be ordered, but only where there is some reason for believing that such mode of service will bring the document to the defendant’s knowledge. The most common fact scenario would be where two unsuccessful attempts at personal service have been made at the said address, and on either or both occasions, the person effecting service is informed by someone apparently reliable (e.g. an occupant or neighbour) that the defendant is not present to accept service. In such circumstances, as the defendant is apparently still residing at the said address, it would be appropriate to obtain an order of court for substituted service by posting the document on the front door of the premises. In contrast, if, on both occasions, the person attempting personal service finds the premises locked, and no one is around, the court would then require some evidence to show that substituted service by way of posting on the front door of the said premises would be effective in bringing the document to the attention of the defendant. In such circumstances, the affidavit supporting the application for substituted service by posting on the front door must exhibit either: (1) a recent property tax search showing that the defendant is owner of the premises in question, and that the...