Overseas Union Bank v Lew Keh Lam

JurisdictionSingapore
CourtCourt of Three Judges (Singapore)
JudgeKarthigesu JA
Judgment Date26 August 1998
Neutral Citation[1998] SGCA 49
Citation[1998] SGCA 49
Published date19 September 2003
Defendant CounselSavliwala Fakhruddin Huseni and Yap Pett Chin (Salem Ibrahim & Partners)
Docket NumberCivil Appeal No 48 of 1998
Plaintiff CounselK Shanmugam SC and Ronald Choo Han Woon (Allen & Gledhill)
Date26 August 1998
Subject MatterWhether leave can be given retrospectively,Contract,Civil Procedure,Guarantee,Whether valid consideration existing for a continuing guarantee,Appeals,Whether appeal to be struck off for not obtaining leave of court pursuant to s 76(1)( c)(ii) of the Bankruptcy Act,s 76 Bankruptcy Act (Cap 20),Consideration
Judgment:

KARTHIGESU JA

(delivering the grounds of judgment of the court): This appeal concerns a claim for moneys under a guarantee. We allowed the appeal and entered judgment for the appellant (`the bank`) for $312,186.10 together with interest at the rate of 4% pa with monthly interests from 27 July 1995 to 5 August 1998, the date of our judgment. We now give our reasons.

2.From July 1988, the bank had been granting Lea Tool & Moulding Industries Pte Ltd (`the company`) facilities of various kinds. These facilities varied in nature and amounts from time to time. Every time there was such a change, the bank would require two things. Firstly, the directors of the company to sign a guarantee as security, in addition to any other security agreed. Secondly, a directors` resolution accepting the facilities and referring to these requirements.

3.In May 1991, pursuant to such changes in the facilities, the directors of the company at that time, Tham Weng Kay (`Tham`) and Li Kwok Wah (`Li`), signed a guarantee in the bank`s standard form of personal guarantee dated 6 June 1991. Under the terms of the guarantee, they were jointly and severally liable.

4.A year later in 1992, owing to disagreement over the management of the company, Li was removed as a director and the respondent was appointed in his place. In view of this change in the directors of the company, the bank wanted the respondent to be a guarantor in addition to both Tham and Li. Subsequently, a guarantee, identical to the standard form signed by Tham and Li in June 1991 was signed by the respondent alone.

5.This was done in the following way. Chua, who was the bank`s branch credit officer, prepared the guarantee and gave it to Tham and asked him to get it signed by the respondent. After Tham had procured the respondent`s signature, he returned it to Chua. Chua then dated the guarantee and signed it as a witness after verifying the respondent`s signature against the specimen signatures in the bank`s records. Chua also gave evidence that this was in accordance with the bank`s usual practice. The respondent was the only guarantor named on the guarantee form.

6.The company defaulted and the bank sought to claim the amount owed by the company from all three guarantors in their capacity as guarantors. The bank relied on the 1991 guarantee for its claim against Tham and Li, and the 1992 guarantee against the respondent. The court below only had to deal with the bank`s claim against the respondent as the bank had already entered a judgment against Tham and Li under the default provisions of the rules of court..

7.The learned judge in the court below held that the bank was not entitled to claim from the respondent for the following reasons. Firstly, the intention of the parties was that the respondent was to join Tham and Li as joint and several guarantors, and as all three had not signed on the same guarantee form, it was well-established in law that such a guarantee was invalid. He relied on Indian Bank v Raja Suria & Ors [1993] 2 SLR 497 .

8.Secondly, there was no consideration for the respondent`s promise to be a guarantor. This was because when the respondent signed the guarantee, the facilities that were granted by the bank in exchange for the 1991 guarantee had been fully drawn down and no new facilities had been granted. Furthermore, the bank had not recalled or threatened to recall the facilities. As such, the learned judge held that there were no requested exchange of promises and hence no consideration. He also dismissed the alternative argument that the guarantee was executed as a deed. There was no seal and he held that there was no intention to execute the guarantee as a deed.

9.The learned judge rejected the bank`s submission that a sole personal guarantee was created by the respondent when he signed the 1992 guarantee. His finding of fact was that the intention was to create a joint and several guarantee with all three, ie Tham, Li and the respondent. The only reason why the guarantee only had the respondent`s signature was the bank`s erroneous belief that it was enough for the respondent to sign the 1992 guarantee as Tham and Li had previously signed the 1991 guarantee and neither of them had been released of their obligations.

10.He based his findings of the parties` intention firstly on the directors` resolution required by the bank in conjunction with the making of the respondent a guarantor which stated, inter alia, that:

... the above facilities be secured by the continuing joint and several guarantees of Messrs Tham Weng Kay, Li Kwok Wah and Mr Lew Keh Lam (the respondent).

The learned judge felt that this statement indicated that the intention was for all three of them to be joint and several guarantors. Secondly, the bank`s standard form of personal guarantee was designed to be used by either one or more guarantors. This was achieved by the use of the device `I/We` and `me/us` in all the provisions referring to the guarantor or guarantors and by the general provision in cl 16 which reads:

This guarantee where there are more than one guarantor shall be binding on us jointly and severally ... and shall be construed in the manner and with the effect as if each of us had executed a separate guarantee.

Hence he reasoned that the fact that such a form was used showed that the implied intention was that all three should be included in it as guarantors and to quote from his judgment, `the paramount intention was for all three to be jointly and severally liable, and not for two to be jointly and severally liable and the remaining one to be solely liable.`

11.Before us the bank argued that all along, the intention had been to create a separate personal guarantee with the respondent alone. The flow of the argument can be summarised as follows: (a). The respondents` signature was the only one that appeared on the 1992 guarantee.

(b). On the face of the document, this indicated that...

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12 cases
  • Caltong (Australia) Pty Ltd (fka Tong Tien See Holding (Australia) Pty Ltd) and Another v Tong Tien See Construction Pte Ltd (in liquidation) and another appeal
    • Singapore
    • Court of Three Judges (Singapore)
    • 29 May 2002
    ...including any appeal. There is really no good reason why leave should be obtained at every stage; Overseas Union Bank v Lew Keh Lam [1999] 3 SLR 393 distinguished (see 51 – (5) Tracing is a process rather than a remedy. It enables a plaintiff to trace what has happened to his property, iden......
  • Oversea-Chinese Banking Corp Ltd v Infocommcentre Pte Ltd
    • Singapore
    • High Court (Singapore)
    • 29 July 2005
    ...forbearance in relation to its rights. This by itself constitutes sufficient consideration: see Overseas Union Bank v Lew Keh Lam [1999] 3 SLR 393 and my observations in Chwee Kin Cheong v Digilandmall.com Pte Ltd [2004] 2 SLR 594 at [139]. In addition, the facility arrangement was reinstat......
  • Wong Ser Wan v Ng Bok Eng Holdings Pte Ltd and Another (No 2)
    • Singapore
    • High Court (Singapore)
    • 6 September 2004
    ...before the trial and this would seem to be an attempt to delay proceedings. Finally, I note from Overseas Union Bank v Lew Keh Lam [1999] 3 SLR 393, the court can make orders that have retrospective effect. This order must have retrospective effect so as to prevent injustice and 25 The defe......
  • Empire International Holdings Ltd v Mok Kwong Yue and Another
    • Singapore
    • High Court (Singapore)
    • 28 September 2004
    ...of debts already incurred as well as future advances, has been reiterated on innumerable occasions. In Overseas Union Bank v Lew Keh Lam [1999] 3 SLR 393, Karthigesu JA, who delivered the judgment of the Court of Appeal said at [28] as We note that in Malaysia, the courts have consistently ......
  • Request a trial to view additional results
3 books & journal articles
  • Insolvency Law
    • Singapore
    • Singapore Academy of Law Annual Review Nbr. 2003, December 2003
    • 1 December 2003
    ...the company or its assets (see, in the context of the corresponding moratorium provision in bankruptcy, Overseas Union Bank v Lew Keh Lam[1999] 3 SLR 393). A counterclaim against the company falls within this moratorium (Langley Constructions (Brixham) Ltd v Wells[1969] 1 WLR 503). 14.6 In ......
  • Insolvency Law
    • Singapore
    • Singapore Academy of Law Annual Review Nbr. 2002, December 2002
    • 1 December 2002
    ...already been obtained prior to the commencement of the action. Referring to its previous decision of Overseas Union Bank v Lew Keh Lam[1999] 3 SLR 393, the court reiterated that the purpose of obtaining leave of court was to prevent a scramble among creditors in taking action or obtaining d......
  • Insolvency Law
    • Singapore
    • Singapore Academy of Law Annual Review Nbr. 2007, December 2007
    • 1 December 2007
    ...provisions can be retrospectively validated by the grant of leave by the court nunc pro tunc (Overseas Union Bank v Lew Keh Lam[1999] 3 SLR 393). This is because the action or proceeding is not a nullity; the moratorium provisions do not deprive the plaintiff of the capacity to commence or ......

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